Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C9/96(IS) (13 March 1997)

 


Decision No: C9/96(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 1 April 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of Belfast Social Security Appeal Tribunal, whereby it was held that she was not entitled to income support from 25 January 1996.
2. The claimant is a full time student at the University of Ulster who, by reason of a hearing disability, is in receipt of a disabled students allowance. Her application for income support was refused by the Adjudication Officer because her income was said to exceed her "applicable amount", and the grounds of her appeal to the Appeal Tribunal were that in making his calculations the Adjudication Officer had not taken account of a disability premium to which she was entitled. Before the date of her appeal the claimant informed the Tribunal that she would not be attending because of her hearing difficulty and, by way of an additional ground of appeal, she submitted that, in the calculation of her living expenses, account had not been taken of the rent which she paid.
3. As indicated in paragraph 1 above the Tribunal upheld the Adjudication Officer's decision that the claimant was not entitled to income support. Their recorded findings of fact were confined to a statement that "Tribunal accept that the total amount of weekly income received by appellant is £54.83, as correctly calculated by the Adjudication Officer at paragraphs 6.7, 6.8, 6.9 and 6.10 of his submission."

The reasons for decision were:-

"The amount payable to appellant under paragraph (a) of Regulation

17(1) of the Income Support (General) Regulations (Northern Ireland)

1987, is £46.50. The weekly applicable amount attributable to

appellant is £46.50. To be entitled to Income Support appellant's

weekly income must not exceed the applicable amount. As appellant's

weekly income has been found to be £54.83, which exceeds the

applicable amount by £8.33, appellant is not entitled to the

benefit."

4. The claimant's application for leave to appeal to the Commissioner as set out in her letter of 1 May 1996 was based solely on her submission that her rent had not been taken into consideration when calculating the amount of her income. Leave to appeal was granted by the Tribunal Chairman.
5. In his written observations on the appeal Mr C McLaughlin, the Adjudication Officer now concerned with the case, commented that the claimant did not appear to have identified any point of law on which the Tribunal might have erred. He nevertheless submitted that the Tribunal had failed to make proper findings of fact material to their decision as then required by regulation 23 of the Social Security (Adjudication) Regulations (Northern Ireland) 1987, (the Adjudication Regulations). In particular, there were no findings relating to the claimant's two grounds of appeal - (a) that she was entitled to have the disability premium included in her applicable amount and (b) that, in the calculation of her weekly income, account should have been taken of her liability for rent.
6. In response to an invitation to comment upon Mr McLaughlin's written observations the claimant, by letter dated October 1996, asserted:-

(a) that one way or another account should have been taken of the rent which she paid;

(b) that because she received a disabled students allowance she should automatically have qualified for income support; and

(c) that, being registered disabled, she should receive the disability premium.

7. Having considered this matter I accept that the Appeal Tribunal erred in law in failing to record their findings of fact and reasons for decision in sufficient detail. It is seldom satisfactory for a Tribunal to record findings of fact by reference merely to paragraphs of the Adjudication Officer's written submission, and in this instance it was not explained to the claimant why the Tribunal had rejected her grounds of appeal. There was accordingly a breach of the provisions of regulation 23 of the Adjudication Regulations. I hasten to add however, that I have also reached the conclusion that Mr McLaughlin is correct in stating that, although the Appeal Tribunal erred in law in failing to record their decision in sufficient detail, the claimant is nevertheless not entitled to the disability premium, and cannot have her liability for rent taken into account when calculating her weekly income for income support purposes. The Tribunal's overall decision that the claimant was not entitled to income support was therefore correct.
8. As the Tribunal erred in law in failing to record their decision in the detail required of them by the Adjudication Regulations I allow this appeal and set their decision aside. It is however in my view clearly a case in which it is appropriate and expedient that, in the exercise of my powers under section 21(7) of the Social Security Administration (Northern Ireland) Act 1992 I should give the decision which the Tribunal should have given.

Three issues require consideration:-

(a) Does the fact that the claimant receives a disabled students allowance automatically entitle her to income support?

Strictly speaking the answer is no. It is however correct to say that, unlike other students who do not qualify for income support because they are not considered to be available for employment, someone who receives a disabled students allowance is permitted to claim income support. However, entitlement to the benefit depends upon whether or not the individual's income exceeds his or her applicable amount. In this instance the Adjudication Officer decided that the claimant's income exceeded her applicable amount and that accordingly she was not entitled to income support.

(b) Does the claimant qualify for the inclusion of the disability premium in the calculation of her applicable amount?

The relevant provisions are those of paragraphs 11 and 12 of Schedule 2 to the Income Support (General) Regulations (Northern Ireland) 1987, (the Income Support General Regulations). Although the claimant satisfies paragraph 11(a) I find as a fact that she does not satisfy any of the conditions in paragraph 12. Paragraph 12 concerns such matters as entitlement to disability living allowance, the provision of an invalid carriage, being certified or registered as blind and being terminally ill. As the claimant does not satisfy any of those conditions I hold that she is not entitled to the disability premium.

(c) Is the claimant entitled to have the amount of her rent disregarded when calculating her income for income support purposes?

The relevant provisions are those of regulation 62(1) and (2)(e) of the Income Support General Regulations which read:-

"62(1) The amount of a students grant income to be taken into

account shall, subject to paragraph (2) and (2A), be the whole

of his grant income.

(2) There shall be disregarded from the amount of a students

grant income any payment -

(e) on account of the student maintaining a home at a place

other than that at which he resides while attending his course

but only to the extent that his rent or rates is not met by

housing benefit."

On the evidence, I find that the claimant is not maintaining a home at a place other than that at which she resides during her course and I therefore hold that no amount in relation to her rent can be disregarded when calculating her income.

Altogether I am satisfied that the claimant's weekly income and applicable amount have been correctly calculated by the Adjudication Officer in accordance with the relevant provisions of the Income Support General Regulations. Because the claimant's income exceeds the applicable amount, she does not qualify for income support. My decision therefore is that the claimant is not entitled to income support from 25 January 1996.

(Signed): R R Chambers

CHIEF COMMISSIONER

13 March 1997