Secretary of State v. Julien  UKSSCSC CIS_542_1990 (02 April 1992)
Mr. M. H. Johnson CIS/542/19905.3.91
CA (Purchas and Mann LJJ and Sir Michael Kerr)2.4.92
Housing costs – claimant living in an unnecessarily expensive area – whether claimant was in a position to meet his financial commitments when they were entered into
The claimant purchased the dwelling occupied as the home in July 1989, whilst self employed, with a mortgage of £630,000. The dwelling consisted of a flat and a garden studio used by the claimant for his work. He claimed income support on 7 June 1990 as his business had failed. He had made only two payments on the mortgage between July 1989 and June 1990.
The tribunal found that any restriction to the housing costs should be implemented immediately under paragraph 10(6) of the Income Support (General) Regulations 1987 as the claimant could not afford the financial commitment when it was entered into. The Commissioner (in decision on file No. CIS/542/1990) decided that the dwelling was situated in a more expensive area than other areas in which suitable alternative accommodation existed and that housing costs would fall to be restricted.
The Commissioner further decided, having seen and heard the claimant, that at the time he entered into the mortgage he was in a position to meet his financial obligation and genuinely believed that he would continue to be able to do so. Accordingly the claimant's housing costs were not to be restricted for a period of six months from 7 June 1990.
On 2 April 1992 the Court of Appeal (Purchas and Mann LJJ and Sir Michael Kerr) dismissed an appeal by the Secretary of State and held that:
- the correct test under regulation 10(6) was whether the claimant at the time he took out the mortgage had the ability to meet the continuing commitment under that mortgage for the reasonably foreseeable future;
- the Commissioner had found as a question of fact that the claimant had the requisite ability to pay at the material time and his decision was not open to challenge.
(a) the unanimous decision of the Whittington House West social security appeal tribunal given on 21 August 1990 is erroneous in point of law and is accordingly set aside.
(b) the claimant's applicable amount for income support is to include an amount for housing costs calculated in accordance with the provisions of paragraph 7 of Schedule 3 to the Income Support (General) Regulations 1987 for the period of 6 months from 7 June 1990.
"… if it is decided that a claimant's housing costs are excessive the legislative path leading to a restriction of those costs is set out at subparagraphs 10(4) to 10(7) of Schedule 3 to the Income Support (General) Regulations . In this case it is my submission that this path does not appear to have been adhered to."
Those sub-paragraphs provide as follows:
"(4) The amounts to be met shall be regarded as excessive where-
(a) the dwelling occupied as the home, excluding any part which is let, is larger than is required by the claimant and his family and any child or young person to whom regulation 16(4) applies (foster children) and any other non-dependants having regard, in particular, to suitable alternative accommodation occupied by a household of the same size; or
(b) the immediate area in which the dwelling occupied as the home is located is more expensive than other areas in which suitable alternative accommodation exists; or
(c) the outgoings of the dwelling occupied as the home in respect of which the amounts to be met under paragraphs 7 to 10 are higher than the outgoings of suitable alternative accommodation in the area but for the purposes of this sub-paragraph no regard shall be had to the capital value of the dwelling occupied as the home.
(5) Where, having regard to the relevant factors, it is not reasonable to expect the claimant and his family to seek alternative cheaper accommodation no restriction shall be made under sub-paragraph (3).
(6) Where sub-paragraph (5) does not apply and the claimant (or other member of the family) was able to meet the financial commitments for the dwelling occupied as the home when these were entered into, no restriction shall be made under this paragraph during the first six months of any period of entitlement to income support nor during the next six months if and so long as the claimant uses his best endeavours to obtain cheaper accommodation.
(6A) Where sub-paragraph (4) applies the amounts to be met shall be restricted and the excess over the amounts which the claimant would need to obtain suitable alternative accommodation shall not be allowed.
(7) In sub-paragraph (5) "the relevant factors" are-
(a) the availability of suitable accommodation and the level of housing costs in the area; and
(b) the circumstances of the family including in particular the age and state of health of its members, the employment prospects of the claimant and, where a change in accommodation is likely to result in a change of school, the effect on the education of any child or young I person who is a member of his family, or any child or young person who is not treated as part of his family by virtue of regulation 16(4) (foster children)."
Having heard Mr. Simkin and Mr. Heath I am satisfied that the submission of 19 December 1990 is correct. In my judgment the tribunal clearly misdirected themselves as to the relevant considerations. They decided with hindsight that the claimant had been imprudent; that may be so, but it forms no part of the statutory criteria. Their decision is plainly erroneous in point of law and is accordingly set aside.
Date: 5 March 1991 (signed) Mr. M. H. Johnson
The Secretary of State appealed to the Court of Appeal. The decision of the Court of Appeal follows.
Mr. W. Robert Griffiths (instructed by P. K. J. Thompson Esq., Solicitor to the DHSS) appeared on behalf of the Appellant (Respondent).
Mr. Richard Drabble (instructed by The Camden Tribunal & Rights Unit) appeared on behalf of the Respondent (Appellant).
LORD JUSTICE PURCHAS: I will invite Lord Justice Mann to deliver the first judgment.
LORD JUSTICE MANN: This is an appeal by the Secretary of State for Social Security against a decision of Mr. Commissioner Johnson given on 5 March 1991. The Commissioner gave leave to appeal on 6 June 1991. The respondent to the appeal is Mr. Peter Julien. By his decision the Commissioner allowed an appeal by Mr. Julien against the decision of the Whittington House social security appeal tribunal given on 21 August 1990 whereby they had dismissed his appeal against a decision of an adjudication officer issued on 9 July 1990 that the respondent's housing costs, for the purpose of calculating the applicable amount of income support, were restricted to £145.85 per week.
The short facts are these. Mr. Julien is an interior designer who set up in business on his own. He is a married man with two children. On 21 July 1989 Mr. Julien purchased a house and studio in Hampstead for £700,000. He obtained a mortgage on the house from the Town and Country Building Society in the sum of £630,000 and moved in. The house became the family home and the studio, which could be approached only through the house, was used for the business of interior design. In July 1989 the state of that business was that Mr. Julien had a contract, entered into in May of that year, which was to yield fees of £12,000 per month for ten months, a contract entered into in December 1988 which was to yield fees of £50,000 and there were projects in various stages of negotiation. Mr. Julien had no capital apart from, first a share in such equity as there was in a mortgaged flat which had been the previous family home; and, second, a bank credit of £6,000. The weekly payments due under the July mortgage were £l,873.71. Unfortunately for Mr. Julien and his family, the contracts were dishonoured, negotiations came to nothing and the interior design business collapsed. Mr. Julien made only two payments on the mortgage and, by 30 June 1990, the outstanding capital and interest amounted to £696,063. On 7 June 1990 Mr. Julien claimed income support and he commenced to receive it with effect from that date on 9th July. It is the determination of the housing cost component of the amount of that income support which has given rise to this appeal.
The adjudication offer restricted the component to £146.85 per week with immediate effect. The figure of £146.85 was arrived at by reference to the cost of servicing a 100% mortgage on a three bedroomed house in Maida Vale costing £110,000. Mr. Julien appealed against both the restriction imposed by the adjudication officer and the immediacy of its effect. The only issue alive before this court is the issue as to immediacy of effect.
Entitlement to income support is derived from section 20 of the Social Security Act 1986. Where an applicant has no income, the amount of support is the applicable amount, and where he has an income it is the difference between that income and the applicable amount: see section 21. The applicable amount is an amount determined in accordance with regulations: see sections 22(1) and 84(1).
The relevant regulations are the Income Support General Regulations 1987 which contain elaborate provisions in regard to the determination of the applicable amount. Regulation 17 provides that a claimant's weekly applicable amount "shall be the aggregate of such of [seven amounts] as apply in his case". Amongst the seven amounts is this:
"any amounts determined in accordance with Schedule 3 (housing cost), which may be applicable to him in respect of mortgage interest payments ..."
Schedule 3 provides in paragraph l:
"Subject to the following provisions of this schedule, the amounts which may be applicable to a person in respect of mortgage interest payments ... are-
(a) mortgage interest payments".
Paragraph 7 provides that where the claimant and his partner are both under 60 years of age, as is the case of Mr. and Mrs. Julien, then for the first sixteen weeks of a continuous period of income support 50% of the mortgage interest payment is to be met; after 16 weeks of such a period the percentage becomes 100%.
The mortgage interest payments which are met either as to one half or as to the whole, are ordinarily by virtue of the provisions which I have read the payments due under the claimant's mortgage, which in this case would be £1,783.71 per week. I use the word "ordinarily" because paragraph 10 contains restrictions on the meeting of housing costs. Sub-paragraph (3) provides that:
"Where the amounts to be met under [paragraph] 7 ... are excessive, they shall be subject to restriction in accordance with sub-paragraphs (4) to (6)".
Sub-paragraph (4) provides, so far as is material:
"Subject to [sub-paragraph] (6), the amounts to be met shall be regarded as excessive and shall be restricted and the excess not allowed if and to the extent that-...
(b) the immediate area in which the dwelling occupied as the home is located is more expensive than other areas in which suitable alternative accommodation exists; or
(c) the outgoings of the dwelling occupied as the home in respect of which the amounts to be met under [paragraph] 7 ... are higher than the outgoings of suitable alternative accommodation in the area".
It was not disputed that conditions (b) and (c) applied. The acceptance of the application of (b) and (c) means that £1,783.71 is to be regarded as excessive. The amount of the excess is accepted to be the difference between that amount and £146.85, and it was that difference which the adjudication officer disallowed with immediate effect. Whether he was right to disallow with immediate effect depends upon paragraph 10(6), which is the critical provision for the purposes of this appeal. So far as is material, it reads:
"Where ... the claimant ... was able to meet the financial commitments of the dwelling occupied as the home when these were entered into, no restriction shall be made under this paragraph during the first six months of any period of entitlement to income support nor during the next six months if and so long as the claimant uses his best endeavours to obtain cheaper accommodation".
The adjudication officer imposed the restriction with immediate effect on the basis of lack of the requisite ability so as to attract sub-paragraph (6). Mr. Julien appealed to the social security appeal tribunal against the officer's decision and the tribunal dismissed his appeal. The reasons which the tribunal gave are these:
"The appeal proceeded mainly on the grounds that the claimant had been able to meet his financial commitments when they were entered into. The tribunal was invited to construe this narrowly, as meaning that at the time of entering into the mortgage the claimant's income in that month and in shortly - preceding months had been sufficient to meet the monthly out-goings entered into. But the tribunal took the view that what was connoted was financial prudence. He was entering into a financial commitment for a period of 20 years, and though it was not necessary to foretell his economic situation for even a greater part of that period, it was necessary to look beyond the next few months. He had entered into the commitments when he had contracts signed and committed worth £170,000, out of which after tax he had to find approximately £76,000. But beyond that he had no secure income, and no capital worth speaking of, and no assets other than the usual domestic ones. The tribunal did not consider that he had passed the test laid down in the regulations".
Against that decision Mr. Julien appealed to the Commissioner on the ground, broadly stated, that the test of financial prudence was too severe. The responding adjudication officer in his submissions said, in effect, that the tribunal had erred by benefiting from hindsight rather than focussing upon the ability at the time of entering into the commitment. The adjudication officer went on to suggest that ability to meet the commitments was demonstrated by the Building Society's approval of the loan.
There seems to have been a community of view between those advising the appellant and the adjudication officer that there had been a misdirection by the tribunal.
The Commissioner considered and agreed with the submissions which were made to him in regard to misdirection. He said this:
"... In my judgment the tribunal clearly misdirected themselves as to the relevant considerations. They decided with hindsight that the claimant had been imprudent; that may be so, but it forms no part of the statutory criteria. Their decision is plainly erroneous in point of law and is accordingly set aside".
The Commissioner then went on, in the exercise of the powers conferred on him by section 101(5)(a)(ii) of the Social Security Act 1975, to make his own findings and to decide the case for himself. After concluding that the critical question as to the application of paragraph 10(6), he said this:
"So far as the claimant's ability to meet his financial commitments is concerned, I do not regard the mere fact that a building society was prepared to lend him a large sum of money is conclusive proof that he was able to service the charges associated therewith. However, having seen and heard the claimant I have no reason to doubt that, at the time he entered into the mortgage, he was in a position to meet his financial obligations and genuinely believed that he would continue to be able to do so. He may well have been over-optimistic, imprudent or even foolhardy, but it is easy to be wise after the event and, had the legislature wished to include such considerations, it would only have been necessary to insert a proviso of reasonableness. As it stands the sub-paragraph is mandatory; subject only to ability to meet the financial commitments at the time they were entered into, no restriction is to be placed on a claimant's housing costs during the first six months of any period of entitlement to income support".
Accordingly, the Commissioner allowed the appeal, and decided that there should be no restriction for a period of six months from 7 June 1990.
It is against that decision that the Secretary of State now appeals. The appeal is and can only be on a question of law: see section 14(l) of the Social Security Act 1980.
The first question must be whether the Commissioner was right to set aside the decision of the social security appeal tribunal as having been made after a wrong self-direction in law. Mr. Griffiths for the Secretary of State argues that he was not right. Mr. Drabble for Mr. Julien argues that he was right.
The direction which the tribunal gave themselves is contained in the passage from their decision which I have already read. From that it will have been observed that the tribunal said:
"... what was connoted was financial prudence . ."
"... it was necessary to look beyond the next few months".
The use of the words "connoted" indicates that the tribunal were attributing some meaning beyond the ordinary meaning. Whether the tribunal intended to convey that that was their intent, I know not. However, it does seem plain that they related ability to financial prudence and that, having done so, they went on to reach the conclusion which I have read.
In order to decide upon the propriety of the self-direction, I have to examine more closely the language of paragraph 10(6), and in particular the words:
"the claimant was able to meet the financial commitments of the dwelling when these were entered into".
I can at once remark that it is ability at the time of entry that is material. That a person subsequently becomes disabled is not material and indeed, by hypothesis, a person who is not restricted to six months is now disabled, having once been able. The ability which has to be found is an ability "to meet the financial commitments for the dwelling". Where as here, the commitments are commitments under a mortgage, they are continuing commitments, and thus the concern must be with the ability to meet continuing commitments. If it be asked about a person whether he is at a particular moment able to meet a continuing commitment, then the uncertainties of human affairs can only permit of an affirmative answer, which is qualified by reference to the reasonably foreseeable future. The necessity for the qualification means that the regulation must be read as containing, by implication, the words "for the reasonably foreseeable future" after the words "the claimant was able". My construction of paragraph 10(6) is such that it inevitably follows that, in my judgment, the tribunal's self-direction was wrong. They looked to prudence, not to ability and, although it is immaterial, they looked at prudence with the benefit of hindsight rather than as at the date of entry into the commitment. I accordingly conclude that the Commissioner was correct to set aside the decision of the tribunal as being erroneous in point of law.
Mr. Griffiths, for the Secretary of State, then proceeds to attack the Commissioner's own determination upon a number of grounds. The first is that the Commissioner looked at the claimant's own belief as to his ability to meet the financial commitments for the dwelling and allowed it to be determinant, even although the applicant may have been imprudent or even foolhardy. If the Commissioner did allow the claimant's own ill-founded belief in his ability to meet commitments to be determinant, then I would unhesitatingly say that he was wrong to do so. In many cases a person's perception of his ability will correspond to his ability; but in others, it will not, as where the perception is, for example, roseate or foolish. The concern under the paragraph is with ability and not with the claimant's perception of ability. I think Mr. Drabble accepted that this was so and said that the Commissioner had truly confined himself to the correct question. Mr. Drabble drew attention to a portion of the passage which I have already read. I should re-read the relevant portion. It is this:
"... having seen and heard the claimant I have no reason to doubt that, at the time he entered into the mortgage, he was in a position to meet his financial obligations and genuinely believed that he would continue to be able to do so. He may well have been over-optimistic, impudent or even foolhardy, but it is easy to be wise after the event ..."
I agree with Mr. Drabble. It seems to me plain that the Commissioner was there finding as a fact that Mr. Julien had the requisite ability at the material time. That is a finding which is not open to challenge in this court, unless it can be stigmatised as a finding which is perverse. Mr. Griffiths suggested that it could be characterised as such. I content myself with saying that I do not regard the Commissioner's conclusion, upon the evidence before him, as being within any measurable distance of irrational or perverse.
What follows after the Commissioner's determinant finding of fact is to be regarded as gratuitous and, as I think, consolatory for the tribunal who had thought that the claimant was imprudent. Having found as he did, the Commissioner had to decide as he did, with the result that the housing component of the claimant's income support for a period of six months was to be unrestricted. The sum is, in the circumstances of Mr. Julien, a spectacular one. But the same rules apply to Mr. Julien as to those with more modest mortgages, for the regulations contain no ceiling upon the amount of relevant mortgage interest payments.
Before parting from the Commissioner's finding, I should draw attention to his rejection of the adjudication officer's suggestion that the lending by the building society was demonstrative of ability. The issue is a matter of fact but I should say that, in my view, it would be unwise to attach overmuch significance to the willingness of a building society to lend. It would be unwise for this reason, that the building society has, and can look to, the security of this mortgaged property when there is default.
Mr. Griffiths' second and perhaps subordinate point was that, in summarising paragraph 10(6) in the way in which I have read from his decision, the Commissioner reversed the onus of proof by making it incumbent on the adjudication officer to prove the claimant's inability to pay. Mr. Drabble accepted that the onus was on a claimant to show ability but submitted that, even if the 40 summary treatment by the Commissioner could be read as a reversal of burden, there was nothing in the decision which showed a dependence on a reversal. I agree. There is nothing in the Commissioner's decision which turns on the burden of proof, and I would regard the summary of regulation 10(6) as being no more than a verbal infelicity. I would dismiss this appeal.
SIR MICHAEL KERR: I agree that this appeal should be dismissed, for the reasons given by Lord Justice Mann, and there is nothing that I wish to add.
LORD JUSTICE PURCHAS: I also agree. The provisions, omitting words not relevant, of paragraph 10(6) Schedule 3 to the Income Support Regulations, which require to be construed in this appeal, are:
"a claimant was able to meet the financial commitments for the dwelling occupied as the home when these were entered into".
The ability of the claimant must be viewed in the light of circumstances existing at the time when the claimant assumed liability for the commitment; that is, in this case, when he negotiated the mortgage with the help of which he acquired the home. Whether or not the claimant had the ability must be decided by ordinary reasonable standards. The precise standards to be adopted must depend on the particular facts of each case and are not susceptible of legal definition. Obviously it would be unreasonable to allow ability to meet the commitment to depend upon a momentary or transient acquisition of financial capacity as it would be equally unreasonable to require an ultra-cautious or far-sighted approach. Where the standard should be set in any particular case is essentially a matter for the ultimate fact-finding tribunal, which in this case was the Commissioner, under the powers granted by the Social Security Act already referred to in the judgment of Lord Justice Mann. Stripped of its surplus comment, the Commissioner made a clear finding of fact in paragraph 11 that the claimant "was in a position to meet his financial obligations". The ensuing comments about over-optimism, imprudence or foolhardiness were otiose and did not qualify the firm finding of fact which preceded them.
For these reasons, and for the reasons already given in the judgment of Lord Justice Mann, I also would dismiss this appeal.
Order: Appeal dismissed, with costs and legal aid taxation; leave to appeal to House of Lords refused.