Northern Ireland - Social Security and Child Support Commissioners' Decisions

BMD-v-Department for Social Development (HB) [2011] NICom 178

Decision No:  C1/10-11(HB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

HOUSING BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 28 July 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 28 July 2009 is in error of law.  The error of law identified will be explained in more detail below.

 

2.     Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.

 

3.     Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I give the decision which I consider the appeal tribunal should have given.  That decision is that the appeal against the decision of the Northern Ireland Housing Executive (NIHE) dated 10 June 2008 is allowed in that the decision-maker was wrong to conclude that regulation 9(1)(h) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, applied to the claim in that the appellant had failed to satisfy the NIHE that she could not have continued to occupy that dwelling without relinquishing ownership.  Entitlement to housing benefit (HB) is to be re-calculated on this basis and an assessment made as to whether the appellant satisfies the other conditions of entitlement to that benefit.

 

         Background

 

4.     Throughout all of the proceedings before the Social Security Commissioner the appellant has been represented by Mr Sean O’Farrell of the Citizens Advice Bureau and the Department has been represented by Ms Teresa Murray of the Housing Benefit Advice (HBA) section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions in relation to this most difficult and convoluted matter.

 

5.     On 23 April 2008 a claim form to HB was received in the NIHE.  On 10 June 2008 a decision-maker decided that the appellant was not entitled to HB.  The relevant decision was attached to the original appeal submission as Tab No 7.  The decision did not have a date of disallowance but it has since been confirmed that the effective date of disallowance was 28 April 2008.  An appeal against the decision dated 10 June 2008 was received in the NIHE on 23 June 2008.  The decision dated 10 June 2008 was reconsidered on 21 July 2008 but was not changed.

 

6.     An oral hearing of the appeal took place on 29 June 2009.  The appeal was adjourned to enable the applicant to obtain a new representative.  The substantive appeal tribunal hearing took place on 28 July 2009.  The appellant was present and was represented.  A presenting officer from NIHE was also present.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 10 June 2008.

 

7.     On 2 October 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 6 October 2009 the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

8.     On 17 November 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 20 January 2010 observations were sought from HBA and these were received on 18 February 2010.  Observations were shared with the applicant and the applicant’s representative on 4 March 2010.  On 8 March 2010 a further submission was received from the applicant’s representative which was shared with HBA on 15 March 2010. HBA was also asked by the legal officer to comment on whether the appeal tribunal ought to have considered the ‘Partition Acts’.  On 31 March 2010 a further submission was received from HBA.  On 12 April 2010 the legal officer asked HBA to provide a further submission in connection with the applicability of the Partition Acts.  A further submission was received on 19 April 2010.  The submissions dated 31 March 2010 and 19 April 2010 were shared with the applicant and her representative on 22 April 2010.  On 4 May 2010 a further submission was received from the applicant’s representative.  The further submission was shared with HBA on 7 May 2010.

 

9.     On 9 June 2010 I granted leave to appeal.  In granting leave to appeal I stated that arguable issues arose as to:

 

‘(a)  whether the appeal tribunal’s reasons are adequate to explain why it determined that the appellant could have continued to occupy a dwelling which she had previously owned without relinquishing ownership of that dwelling;

 

(b)  whether the appeal tribunal should have considered the policy intention behind regulation 9(1)(h) of the Housing Benefit Regulations (Northern Ireland) 2006;

 

(c)  whether the appeal tribunal should have considered the issue of whether the claim to HB was affected by capital; and

 

                  (d)  whether the appeal tribunal should have considered whether the Partition Acts had any applicability to the issues arising in the appeal.’

 

10.   I directed an oral hearing of the appeal which took place on 28 September 2010.  There then followed a delay in the promulgation of this decision occasioned, in part, by a requirement on my part to undertake what turned out to be a futile attempt to investigate the policy intention behind a particular legislative amendment.

 

         Why was the decision of the appeal tribunal in error of law?

 

11.   The record of proceedings for the appeal tribunal hearing runs to four A4 pages, and from this it is clear that the appeal tribunal addressed the difficult issues arising in the appeal in a careful and thorough manner.  Equally, the appeal tribunal has provided an analytical statement of reasons for its decision.  Notwithstanding the care taken, did the appeal tribunal go wrong in law and, if so, where?

 

         The relevance of the interest of appellant’s son in the property which was sold

 

12.   The basis of the disallowance of the claim to HB was the application of regulation 9(1)(h) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended.

 

13.   Insofar as it is relevant this regulation provides:

 

“9.-(1)  A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where-

 

(h)       he previously owned, or his partner previously owned, the dwelling in respect of which the liability in respect of rent arises and less than 5 years have elapsed since he or, as the case may be, his partner, ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership”

 

14.   In her claim form to HB the appellant had stated that she had previously owned the dwelling in respect of which she now wished to claim HB.  Further, she stated that she had sold the property on 6 October 2007.  As the date of claim to HB was 24 April 2008, it was clear that, for the purposes of regulation 9, less than 5 years had elapsed since she had ceased to own the property.

 

15.   Further investigations by the NIHE resulted in the receipt, on 23 June 2008, of correspondence from the appellant’s solicitors.  In this correspondence, the solicitors confirmed that the appellant’s property had been sold with the date of the completion of sale being 9 October 2007.  The solicitors confirmed that the sale proceeds were £144,280 out of which the outstanding mortgage with her building society was discharged in the sum of £12,021.21, and their own costs in the sum of £1,088.81.  This left a balance of £131,169.98, which the solicitors stated was divided equally between the appellant and the co-owner of the property.  That emphasis is mine.  The issue of the relevance of the capital sum which the appellant received will be discussed in more detail below.

 

16.   Before the appeal tribunal the appellant’s representative submitted evidence, in the form of written correspondence, from a P McC.  P McC indicated that he had acted as a financial advisor to the appellant when she had purchased her property from the Northern Ireland Housing Association and that he had maintained that professional relationship with her.  P McC stated that at the time of the original purchase there was a requirement for assistance from the appellant’s son who was in full-time employment.  As the appellant’s sole income was social security benefits she would not, according, to P McC have been eligible for a mortgage.  P McC also gave details of the circumstances surrounding the subsequent sale of the property.  He indicated that the appellant had approached him in 2007 to advise that her son wished to purchase a property of his own but, in order to do so, required to be released from the existing mortgage commitment.  He also required his share of the equity as a deposit for his own purchase.  P McC indicated that he had assessed the appellant’s position and had deemed her to be ineligible for a remortgage.  Accordingly he entered into an arrangement with the appellant to buy the property from her and permit her to rent it back from him.  P McC was subsequently named on the application for HB as the appellant’s landlord.

 

17.   Also before the appeal tribunal was evidence, in the form of written correspondence, date 22 July 2009, from the appellant’s son.  In this correspondence the son indicated that the sale of his mother’s home was due to ‘… demands placed upon my mother by me.’  He also stated that he had agreed to have his name on the mortgage after pressure had been placed on him by his mother who had argued that it was the only way that she could buy the property.  He stated, in addition, that since the commencement of the mortgage he had made no contribution to the mortgage payments, adding that ‘… I didn’t feel in any way obliged to do this since it was always agreed that my mother alone would maintain the mortgage payments – it was her that considered the house her family home.’  The son added that he had decided to buy his own property and thought that the sale of his mother’s house would provide him with a deposit towards his own mortgage and assist him financially for a period.  Further, he was aware that his mother was struggling with her mortgage repayments and he was concerned that his credit rating was at serious risk of being damaged.  Accordingly, he placed financial and emotional pressure on his mother to sell her house.

 

18.   The appellant also provided evidence to the appeal tribunal in respect of other debts which she stated that she owed.

 

19.   The statement of reasons for the appeal tribunal’s decision reads as follows:

 

‘The decision was taken under Regulation 9(1)(h) of the Housing Benefit Regulations (NI) 2006.

 

The Tribunal found the following facts:-

 

(The claimant) applied for Housing Benefit on 23 April 2008.  She and her son were joint owners of …, Derry.  The property was sold on 9 October 2007 to P McC with (the claimant) becoming the tenant of the property on 6 October 2007.  The weekly liability for rent is £110.  The house was sold for £150,000 with half the proceeds going to (the claimant’s) son although he had made no contribution to the mortgage payments.  £12,000 was outstanding.  Although (the claimant) had slipped into arrears with her mortgage payments her Representative confirmed that there was no threat of repossession from the lender.  She had entered into an arrangement with the Building Society to amend her mortgage payment and change her date of monthly repayments to the middle of each month.  (The claimant) referred to other debts which are outstanding for furniture and a loan from her nephew.  (The claimant) referred to other debts which are outstanding for furniture and a loan from her nephew.  (The claimant) stated that her son was unable to get another mortgage and had made her sell the house.  The outstanding bills were paid out of the sale proceeds in April 2008.

 

On the basis of the facts found the Tribunal decided that as less than 5 years had passed since (the claimant) ceased to own the property the Tribunal had to consider whether she could not have continued to live in the property without relinquishing ownership.

 

The Tribunal took into account the evidence that while there had been ongoing difficulties with mortgage payments there was no threat of repossession from the Building Society.  I also considered the fact that (the claimant’s) son was a joint owner of the property but made no contribution to the mortgage payments.  I also considered the fact that her son had insisted on a sale of the property to enable him to obtain a mortgage of his own.  At the time of sale (the claimant) was not behind with her mortgage payments and had not sought advice other than selling to P McC.

 

Taking all these factors into account the Tribunal found that the evidence did not establish at the date of claim to Housing Benefit that (the claimant) could not have continued to occupy the dwelling without relinquishing ownership.

 

The appeal is therefore disallowed.’

 

20.   As can be seen from that statement of reasons, the appeal tribunal accepted, without demur, that the appellant’s son was the joint owner of the property which was sold.  This reflects the acceptance, by the appellant’s solicitors, that the appellant’s son was entitled to an equal half of the proceeds of the sale of the property, after deduction of payments to discharge the remaining mortgage and the solicitors’ costs.  It seems to me, however, that the position is not that straightforward.  As was noted above, HBA was asked by the legal officer to comment on whether the appeal tribunal ought to have considered the potential application of the ‘Partition Acts’.  In reply to that request, HBA provided a copy of the opinion of counsel on the matter. Counsel’s summary was as follows:

 

‘While a co-owner has a right to sale in lieu of partition, that right may only be exercised where the co-owner has a beneficial interest in the property, and is not a bare trustee for the other co-owner or some third party.  The Appellant would have had a reasonable to good case to argue that [her son] was a mere nominee for her, and therefore to defend any proceedings for sale in lieu of partition.  The Appellant might also have been able to argue for a stay or suspension of any order for sale in lieu of partition to preserve her occupation of the Premises.’

 

21.   Why should any of this make a difference to the deliberations of the appeal tribunal, deciding as it was, whether the appellant should have an entitlement to HB?  In this regard I have noted the comments by Ms Murray that while the role of the appeal tribunal is inquisitorial, there is no requirement to go on a ‘fishing expedition’ and address issues which could have been, but were not raised at the oral hearing of the appeal, by the appellant’s professional representative.

 

22.   It is important to remember, however, that the disallowance was on the basis of the application of regulation 9(1)(h) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended.  The live issue before the appeal tribunal was whether the appellant could or could not have continued to occupy her dwelling without relinquishing ownership.  The evidential background to her relinquishing ownership was stated to be, in part, pressure from her son to sell, in order, again in part, that he might have the proceeds of the sale.  It seems to me to be very relevant to the issue of whether the appellant could or could not have continued to occupy her dwelling without relinquishing ownership, the question of whether she could have resisted the pressure from her son by arguing that he had no legal or beneficial interest in the relevant property.  I do not say, for one moment, that the appeal tribunal was obliged to consider whether the ‘Partition Acts’ applied to the issues arising in the appeal.  It seems to me, however, that it was obliged to explore the circumstances in which the relevant property was sold.

 

23.   The proper approach to the test in regulation 9(1)(h) was set out by Commissioner Jacobs in R(H) 6/07 in exploring the parallel provision in Great Britain, applicable at the time of his decision, regulation 7(1)(h) of the Housing Benefit (General) Regulations 1987, as amended.  At paragraph 15 of his decision he stated:

 

‘There is a distinction between the legal test to be applied and the circumstances to which it has to be applied.  Regulation 7(1)(h) deals with both.  It identifies the legal test as whether the claimant or her partner could have continued to occupy the dwelling without relinquishing ownership.  I stand by what I wrote in CH/3853/2001 that, as a matter of language, “could not” does not mean that it was completely impossible to do otherwise.  That is not how “could” is used and there is nothing in the context or the likely policy of the legislation to suggest a different interpretation.  That is the test, but what are the circumstances to which it must be applied?  The reference to the claimant and her partner makes the test not a general one of what is possible, but a targeted one of what is possible for them.  In other words, the test has to be applied to their circumstances.’

 

24.   It is my view that the appeal tribunal could and should have explored the relevance of the potential legal and beneficial interest of the appellant’s son in the relevant property as part of its duty to explore whether the appellant, for the purposes of regulation 9(1)(h), could or could not have continued to occupy her dwelling without relinquishing ownership.  I conclude, therefore, albeit with some reluctance, that the appeal tribunal’s failure to address this particular issue renders its decision as being in error of law.

 

         The appeal tribunal’s assessment of the evidence

 

25.   The statement of reasons for the appeal tribunal’s decision includes a section setting out the appeal tribunal’s findings of fact.  These findings included:

 

‘(The claimant) referred to other debts which are outstanding for furniture and a loan from her nephew’.

 

26.   Attached to the appeal submission, at Tabs No 10 and 11, were what appeared to be invoices from a furniture company, to a total sum of close to £15,000.  The appeal tribunal was also given evidence, in the form of correspondence, that the appellant had paid back a debt to her nephew in the sum of £6,000.  Additionally, attached to the original appeal submissions were copies of bank statements which had been annotated to include details of the eventual depository of sums which were withdrawn from those bank accounts.  These included a reference to the settlement of a debt of £7,000 to a Credit Union.  The appellant also gave oral evidence concerning the Credit Union debt at the oral hearing of the appeal.  In summary, therefore, the appellant was submitting that an aspect of the reason for the forced sale of the property was the settlement of outstanding debts.  She was submitting that, in total, those debts were in the sum of £28,000.

 

27.   Looking at the statement of reasons for the appeal tribunal’s decision, I cannot see how the appeal tribunal has demonstrated that it has taken into account the submission, and accompanying evidence, that an aspect of the reason for the forced sale of the property was the settlement of outstanding debts.  It may have been the case that the appeal tribunal did not accept that there were monies owing in the sums and to the parties as submitted by the appellant.  It may be the case that the appeal tribunal had formed the view that the relevant sums had been dissipated in other ways.  In my view, however, it was incumbent on the appeal tribunal to address the specific submission concerning the requirement to repay accrued debts and assess the evidence in connection with that submission.  Its failure to address this specific issue renders its decision as being in error of law.

 

         My further findings and conclusions

 

28.   I have noted the submission made by the appellant’s representative, at the oral hearing of the appeal before the appeal tribunal that despite the appellant falling into arrears with her mortgage, the appellant was not under pressure from her mortgage company and that there was no threat of repossession.  I am of the view that the appellant’s representative was correct to make that submission.  From the evidence which is before me, the mortgage company was endeavouring to assist the appellant through her financial difficulties by reassessing her mortgage payments and moving payment debts.  A threat of repossession by the mortgage company could not, therefore, be the reason behind the forced sale of the relevant property.

 

29.   I do accept the evidence from the appellant’s son that based on a motivation to obtain the proceeds of the sale of the property, in turn, based on his desire to obtain his own property, he was putting the appellant under pressure to sell the relevant property.  I accept that the appellant may have been under other financial pressure, having accumulated debts which were of concern to her. What was she to do in these circumstances?

 

30.   In R(H)6/07, Commissioner Jacobs noted, at paragraphs 16 to 19:

 

‘16.      In the context of this case, the test had to be applied to the claimant’s family and financial circumstances.  But was her perception of what was possible, sensible or appropriate in those circumstances relevant to the application of the test?

 

17.       The claimant’s perceptions may be relevant as evidence of what was practically possible.  But in this case the claimant admitted that she did not investigate the full range of possibilities.  It seems that, motivated by a desire to rid themselves of their debts, the claimant and her husband hit upon an idea and did not consider any other options.  Her perception in those circumstances is not relevant as evidence of what was actually possible.

 

18.       The claimant’s perceptions may also affect or limit the options that are available.  For example, a claimant might be under so much stress as a result of debts and worries that it is in the interests of her own mental health to dispose of ownership as quickly as possible without investigating and regardless of other options that are available.  But that would be an exceptional case and there is no evidence that the claimant or her husband were so much or so badly affected in this case.

 

19.       Apart from these possibilities, the claimant’s perceptions are not relevant to the application of the test.  It is impossible in the normal use of language to interpret “could not” to mean “believed she could not”.  The language is not susceptible to such an interpretation.  And there is no justification for subverting the language to be found in policy, in any feature of the legislative context, or in the practical consideration relevant to the application of the legislation.’

 

31.   In my view, what is different about the instant case is that the appellant did not simply hit upon the idea that the demands of her son and her other financial concerns could be easily satisfied by the quick sale of the property.  Unlike the claimant in R(H)6/07 she did explore ‘the full range of possibilities’.  As was noted above, the evidence of the appellant’s former financial advisor, now her landlord, and which does not appear to be disputed, was that she approached him, outlined the relevant factors and sought his advice.  I conclude that it was essentially on the advice of the former financial advisor that the relevant property was sold.  It was not her perception of what was relevant or sensible.  It was her acceptance of expert advice from a professional financial advisor of what was the only option.

 

32.   Accordingly, I conclude that the decision-maker was wrong to conclude that regulation 9(1)(h) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, applied to the claim in that the appellant had failed to satisfy the NIHE that she could not have continued to occupy that dwelling without relinquishing ownership.

 

         Other issues arising

 

33.   In the initial observations on the application for leave to appeal Ms Murray submitted that:

 

‘Rates element of housing benefit

 

I consider it prudent to raise the issue of housing benefit in respect of rates.  Housing benefit incorporates payments for both rent and rates therefore when (the claimant’s) claim for housing benefit was disallowed, both elements were disallowed.  Generally and providing the other entitlement conditions are satisfied claimants who pay rent, incorporating an element in respect of rates, are entitled to housing benefit for both rent and rates while owner-occupiers are only entitled for rates (as they only have one liability).  (The claimant) is no longer an owner-occupier and while she is not entitled to housing benefit for rent (providing the Commissioner accepts my submission on this point) it is the policy intention that she should be entitled to housing benefit in respect of rates.  I have a concern that the regulations do not achieve the policy intention regarding rates.

 

Regulation 9(1)(h) so far as is relevant to this issue provides:

 

“9.-(1)  A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where-

 

(h)  he previously owned … the dwelling in respect of which the liability in respect of rent arises …”

 

“in respect of rent” was added from 1^st June 2007 as a result of an anomaly that was noticed while the Department was preparing submissions in another case that was before the Commissioner in C1/06-07(HB).

 

The circumstances in that case were that the claimant had previously lived in a property owned by her husband but with her agreement ownership was transferred to their son.  The claimant and her husband separated and she moved out.  She later moved back to the property and her son gave her a life interest in it therefore she had no liability for rent.  The claimant however claimed that she was liable to pay rent to her son and claimed housing benefit in respect of rent and rates but was disallowed because she had no liability in accordance with Section 129(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which, so far as is relevant provides:

 

“129.-(1)  A person is entitled to housing benefit if-

 

(a)  he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home”

 

(2)  In subsection (1) above “payments in respect of a dwelling” means such payments as may be prescribed …

 

Regulations prescribe these payments to be rent and rates:

 

“Rates

 

12.-(1)  The payments in respect of which housing benefit is payable in the form of a rate rebate are the payments by way of rates in respect of the dwelling which a person occupies as his home …

 

Rent

 

13.-  Subject to the following provisions of this regulations, the payments in respect of which housing benefit is payable in the form of rent rebate or allowance are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home- …”

 

It was realised that a claimant who had a life interest in their home and therefore had no liability for rent on a property that he previously owned would not be entitled to housing benefit in respect of rates.

 

The words “in respect of rent” were added to address this problem.  This means that anyone who has “their day in the house” with no liability for rent can receive housing benefit for rates.

 

I submit however that in a situation like (the claimant’s) where she does have a liability for rent, albeit that she is treated as not liable, that the regulation does not achieve the policy intention of allowing housing benefit for rates.  I submit this is because the first part of the regulation does not differentiate between payments for rent and rates and sub-paragraph (h) deems her not liable for these payments if the liability for rent arises and she was a previous owner within 5 years.

 

In the interests of justice and as I submit that regulation 9(1)(h) is not in accordance with the policy intention, I respectfully ask the Commissioner to consider this issue.  If the Commissioner does agree then I will recommend that an ex-gratia payment is made to (the claimant), subject to the investigation of her capital (…).’

 

34.   I accept the further concession from Ms Murray that the appeal submission was misleading in citing the wording of regulation 9(1)(h) before its amendment in 2007 through the Housing Benefit (Miscellaneous Amendments) Regulations (Northern Ireland) 2007.  It is clear, however, that the appeal tribunal had concluded that regulation 9(1)(h) applied to the appellant’s claim in that she had previously owned the dwelling in respect of which the liability in respect of rent arose; less than five years have elapsed since she ceased to own the property; and that she had not satisfied the appeal tribunal that she could not have continued to occupy that dwelling without relinquishing ownership.  In these circumstances, I agree that consideration should have been given to the albeit difficult question as to whether the appellant could have an entitlement to HB in respect of rates.  The question is difficult because, as Ms Murray points out, (i) the policy intention behind the legislative change is not clear, and (ii) decisions are being made at decision-maker level based on a mere assumption about what the policy intention was.

 

35.   As Ms Murray notes, a parallel issue arose in C1/06-07(HB), a case before the Chief Commissioner.  At paragraph 21 of his decision he stated:

 

‘… Mr Crilly’s submission on these points seem well founded.  However, as he concedes, any ruling of mine would merely be obiter dicta as the point is not directly before me.  I am also reluctant to put into question many apparently legitimate HB payments in proceedings that have not raised the issue.  Accordingly I will make no direct or indirect ruling on the matter except to say that further legislation might be required to resolve the situation.’

 

36.   Unfortunately similar considerations apply in the instant case.  Having found that regulation 9(1)(h) does not apply to the appellant, the complex issue of the policy intention behind that regulation does not arise.  Accordingly, any comments of mine would also be obiter dicta.  Additionally, my researches on this issue have failed to ascertain the true policy intention.  I would note, however, that the Chief Commissioner stated that legislation may be required to resolve the situation and that no action seems to have been taken in this respect.  I would repeat the concerns raised by the Chief Commissioner and would recommend that urgent action is taken to resolve this complex issue.  As the issue is one of policy, it will be for the policy-makers to resolve.

 

37.   Finally, at one stage in the proceedings before the Social Security Commissioner, an issue was raised concerning the effect of the capital rules on potential entitlement to HB.  In the case summary prepared for the oral hearing of the appeal Ms Murray submitted that:

 

‘The issue of capital would only arise if (the claimant) was successful in showing that she could not have continued to occupy the dwelling without relinquishing ownership and otherwise becomes entitled to housing benefit.

 

The Social Security Agency has since confirmed that (the claimant) was not entitled to income support but only for the period from 16^th October 2007 to 12^th March 2008.  As this was before the claim for housing benefit was made the issue of capital no longer arises in relation to (the claimant’s) claim for housing benefit.’

 

         Disposal

 

38.   The decision of the appeal tribunal dated 28 July 2009 is in error of law.  Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.

 

39.   Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I give the decision which I consider the appeal tribunal should have given.  That decision is that the appeal against the decision of the NIHE dated 10 June 2008 is allowed in that the decision-maker was wrong to conclude that regulation 9(1)(h) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, applied to the claim in that the appellant had failed to satisfy the NIHE that she could not have continued to occupy that dwelling without relinquishing ownership.  Entitlement to HB is to be re-calculated on this basis and an assessment made as to whether the appellant satisfies the other conditions of entitlement to that benefit.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

2 June 2011