Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC A2/93(FC) (26 April 1993)

 


Application No.: A2/93(FC)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 FAMILY CREDIT Application by the Adjudication Officer for leave to appeal to the Social Security Commissioner on a question of law from the decision of Ballymoney Social Security Appeal Tribunal dated 26 April 1993 DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the Adjudication Officer seeks leave to appeal against the decision of Ballymoney Social Security Appeal Tribunal, whereby it was held by a majority that, in relation to her claim for family credit, the claimant did not have capital in excess of £8,000.
2. The only issue before the Appeal Tribunal was whether 35 acres of farm land, valued at approximately £35,000, owned by the claimant's husband, came within the provisions of paragraph 1 of Schedule 3 to the Family Credit (General) Regulations (Northern Ireland) 1987, (the General Regulations), and accordingly fell to be disregarded in the calculation of the claimant's capital for family credit purposes.

Paragraph 1 of Schedule 3 to the General Regulations is in the following terms:-

"Capital to be disregarded

1. The dwelling including any garage, garden and outbuildings

normally occupied by the claimant as his home, together with

any agricultural land adjoining that dwelling and any land not

adjoining that dwelling which it is impracticable or unreasonable

to sell separately but, notwithstanding regulation 10 (calculation

of income and capital of members of claimant's family and of a

polygamous marriage), only one dwelling shall be disregarded under this paragraph."

3. The 35 acres of land did not adjoin the claimant's dwelling and when she applied for family credit in July 1992 the Adjudication Officer decided that it did not come within the provisions of paragraph 1 of Schedule 3 and should therefore be treated as capital of the claimant as required by regulation 10 of the General Regulations. As the value of the land exceeded the prescribed limit of £8,000 the Adjudication Officer held that there was no entitlement to family credit.
4. At the hearing before the Appeal Tribunal it was submitted on the claimant's behalf that it would be unreasonable to sell the 35 acres of farm land although it did not adjoin the claimant's dwelling and that accordingly it qualified as capital to be disregarded under the provisions of paragraph 1 of Schedule 3 to the General Regulations. The nature of the arguments advanced can be judged from the Tribunal's findings of fact which were as follows:-

"On 23 July 1993 Mrs B... claimed Family Credit for herself,

her husband and three dependants aged 16, 15 and 13. She is a

self-employed toy maker. Her husband is unemployed having

ceased work as a farmer on 31 March 1992.

Appellants own two pieces of land. One is 20 acres and surrounds

the farmhouse. This was disregarded by the Adjudication Officer.

The other is about 35 acres, it is 4/10ths of a mile away on

the Drumaroan Road which splits it in two. It has no farmhouse

but it does have outbuildings. Some of it is low lying. Some of

it is in a less-favoured area. It is currently let in conacre. It

is surrounded by other farmland. Both pieces of land have been in

the family for generations and appellant would like to keep it for

her children. If there were an upturn in agriculture, it would be

viable to farm all 55 acres. It would never be viable to farm just

20 acres. The land has always been farmed as one unit and not two.

The actual valuation has not been directly disputed. The land does

not adjoin the dwelling. The issue is whether appellant has shown

it would be impracticable or unreasonable to sell it separately. The

Tribunal was fortunate in having two members of the farming community

as members of the Tribunal."

5. By majority decision the Tribunal allowed the claimant's appeal; holding that the appellant did not have capital in excess of £8,000. Their reasons for decision were:-

"If appellant sold the 35 acres, the other 20 acres would not be a

viable farm producing an adequate income. The other 20 acres would

have to be sold as well but this is not required by the Family Credit

Regulations. Their farm has been in the family for generations and

Mr B... would wish to return to farming it when the economic situation

improves. It would be unreasonable to ask him to sell it when it is

his intention to return to farming as soon as possible."

The Chairman's dissenting decision was that the Appellant had not shown that it was impracticable or unreasonable to sell the land.

6. The grounds of the Adjudication Officer's application for leave to appeal to the Commissioner are as follows:-

"The Tribunal erred in law in that, no reasonable Tribunal, could

have arrived at their decision. On the findings of fact and the

evidence recorded it has not been shown that it would be

impracticable or unreasonable to sell the 35 acres of land not

adjoining the home."

7. I held an oral hearing at which the claimant and her husband were present. The Adjudication Officer was represented by Mrs A Fitzpatrick, Solicitor.

Mrs Fitzpatrick submitted that the Tribunal had erred in law in reaching their decision that it would be unreasonable to sell the 35 acres of land, and she referred to unreported GB Decision No. CIS/427/91. In that case the Commissioner had pointed out that income support was a non-contributory benefit, the bill for which was footed by the ordinary tax payer and he had gone on to state that, in the context of the relevant provisions of Schedule 10 to the Income Support (General) Regulations 1987, "unreasonable" must be read as "unreasonable in all the circumstances." Although the present case concerned family credit rather than income support and the GB Regulations did not extend to agricultural land adjoining the claimant's dwelling, it was Mrs Fitzpatrick's submission that the same principles applied, and that the Tribunal had erred in law in failing to take account of all the circumstances in reaching their decision. Among those relevant circumstances were the substantial value of the land which could be sold separately and which accordingly represented a realisable asset. On enquiry from me as to whether she was submitting that the decision of the Appeal Tribunal was perverse, Mrs Fitzpatrick said that that was no part of her case. She was merely arguing that all the relevant circumstances had not been taken into account by the Tribunal.

8. Mr B... was fully prepared to explain to me why it would be completely unreasonable for him to dispose of the land in question. However, I made it clear that, in the first instance, my views on that subject were irrelevant. Whatever conclusion I might reach, I had no power to intervene unless the Tribunal could be shown to have erred in point of law.
9. I have considered the grounds relied upon by the Adjudication Officer as set out in the application for leave to appeal and amplified by Mrs Fitzpatrick at the oral hearing. It was for the Appeal Tribunal to decide whether it would be unreasonable to sell separately the 35 acres of land which did not adjoin the claimant's dwelling. As the Tribunal Chairman pointed out, that was a question which members of the farming community were well equipped to answer and in my opinion there is nothing to suggest that they failed to take account of all relevant circumstances. Although I might not have reached the same conclusion, I would find it quite impossible to say that, on the recorded evidence and findings of fact, no reasonable Tribunal could have arrived at the decision that it would be unreasonable to ask the claimant's husband to sell the 35 acres of farmland which did not adjoin the dwelling. I am accordingly of the opinion that the grounds relied upon by the Adjudication Officer in support of this application for leave to appeal are without substance.
10. I have also considered whether there is any other ground for holding that the decision of the Appeal Tribunal in this case is or may be erroneous in point of law, and have reached the conclusion that there is not.

Leave to appeal will therefore be refused.

(Signed): R.R. Chambers

CHIEF COMMISSIONER