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[1992] UKSSCSC CIS_654_1991 (08 July 1992)

R(IS) 3/93

Mr. A. T. Hoolahan QC CIS/654/1991

Capital - earnings deposited in current account - whether income has become capital

On 2 November 1990 the claimant applied for income support for his family. He was out of work but he declared as income child benefit, unemployment benefit and retirement occupational pension. He also declared his wife's earnings; she was a supply teacher who was paid monthly in arrears but her earnings varied greatly and he intended that his wife's income should be calculated over the period of a year. He further declared that monies deposited in three bank accounts totalled £8,063.85 as to date of claim and £7,944.99 on 8 November 1990, but contended that money in current account should not be treated as capital as it was constantly being used to pay for current expenses.

The adjudication officer decided that income support was not payable as the claimant's income (including tariff income) exceeded his applicable amount. On appeal a tribunal upheld the adjudication officer's decision and the claimant appealed to the Commissioner. The Commissioner allowed the appeal.

Held that:

a claim for income support was to be treated as being for an indefinite period (regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987); it was, therefore, an open-ended claim and the facts must, if the situation is fluid, be looked at week by week:
observations in R(SB) 4/85 at paragraph 13 applied (para. 18);

the amount of the wife's earnings must be calculated on a weekly basis (if necessary by reference to her contract of employment) and determined at the date when the claim was considered: (para. 13);

in order properly to determine the amount of the claimant's wife's earnings to be taken into account it was necessary to make findings of fact (if necessary by reference to the earner's contract of employment) as to the following:

(a) the amount of the earnings;

(b) whether any sum fell to be disregarded under Schedule 8 to the Income Support (General) Regulations;

(c) the period in respect of which the earnings were payable: regulation 29(2) of those regulations;

(d) and the date that the earnings were due to be paid: regulation 31(1)(a) of those regulations, (para. 17);

income paid into a bank current account does not undergo the metamorphosis into capital for income support purposes until tax liabilities have been deducted and the period over which it falls to be attributed under regulation 29 of those regulations has elapsed; observations in R(SB) 2/83 at paragraph 6 and R(SB) 35/83 at paragraphs 4 and 5 applied (para. 22);

there is no provision in income support regulations similar to Supplementary Benefit (Resources) Regulations 6(1) to disregard capital sums earmarked to cover current living expenses (para. 24).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow this appeal by the claimant. The decision of the social security appeal tribunal dated 26 June 1991 was erroneous in law and I set it aside. The case must be reheard and redetermined by a differently constituted tribunal.

The claimant was born in 1949. He lives with his wife and their seven children, aged 18, 17, 15, twelve, ten, six and two. They live in owner-occupied accommodation. Since 8 May 1990 he was registering as unemployed. On 2 November 1990 he completed claim form B1 to claim income support. The claim form was received at the local office on 14 November 1990 but the claim was treated as having been made on 2 November 1990, being the date when he first made representation to the unemployment benefit office concerning a claim for income support: see form AT2, paragraph 5.2 (page T34 of the case papers). By a decision issued on 21 December 1990 the adjudication officer decided that the claimant was not entitled to income support from 2 November 1990 because his income exceeded his weekly requirements. The claimant appealed. On 26 June 1991 the social security appeal tribunal made the same decision as the adjudication officer. The claimant appeals with the leave of the tribunal chairman.

In his claim form B1 the claimant stated that he had retired from teaching on the grounds of ill health on 14 February 1990 and that he had not worked since 14 February 1989 and that he was actively seeking work at the moment but without success. He stated that his wife worked as a supply teacher and that the number of hours a week that she worked varied greatly, some weeks being nil. He stated that his wife was always paid in arrears "usually six–eight weeks" and he enclosed a pay slip "which shows total pay for 90-91 so far". In part 6 of the form, column 1 (page T8 of the case papers), he indicated that he was in receipt of child benefit, unemployment benefit and retirement occupational pension. He stated that he received as child benefit, the sum of £50.75 per week, and that he was in receipt of retirement occupational pension since 14 February 1990 and received £408.30 per month payable on the 17 day. No sum was shown in respect of any unemployment benefit. He stated in part 9 that his mortgage interest was £516.26 a month. He disclosed that he had savings of £2,500 or more. At the request of the local office, he disclosed the bank statements of himself and his wife and the sums disclosed are set out in form AT2, paragraph 5.7. The two relevant entries are:

"2 November 1990 Higher interest account £6,593.71

Wife's account £988.19

Current account £481.95

Total £8,063,85

8 November 1990 Higher interest account £6,593.71

Wife's account £988.19

Current account £ 363.09

Total £7,944.99"

The adjudication officer determined that the claimant's applicable amount was as follows:

Under reg. 17 (a) claimant and wife £57.60

(b) children £124.25

(c) family premium £7.35

Under Sched. 3 para. 1: housing costs

(50% for first 16 weeks) £57.53

Total £246.73

The adjudication officer assessed the claimant's income as follows:

Unemployment benefit £ 37.35

Occupational pension £ 93.76

Child benefit £ 50.75

Wife's income £ 68.53 (after £5 disregard)

Capital treated as income

i.e. tariff income

(based on the bank

statements at 8 November 1990) £ 20.00
Total £270.39

As the claimant's income exceeded the applicable amount, the adjudication officer decided that the claimant was not entitled to income support.

Before the appeal tribunal the claimant made a number of submissions. These are set out in form AT3, box 2. I have indicated in the associated case, CIS/655/1991 in paragraph 3, that pages T52 and T55 in the case papers in that case should have been included in the case papers in the present case. The first four paragraphs of the findings of fact are the submissions and contentions of the claimant which should have been included in form AT3 box 1. In paragraph 5 (to be read at page T55 of CIS/655/1991) the appeal tribunal stated:

"Apart from the above there appears to be no dispute as to the other facts set out in the summary of facts in the copy documents".

That was wholly inadequate as a finding of fact, as will be apparent from the ensuing paragraphs, and, as was pointed out in CSSB/18/1985 at paragraph 3, it fails to comply with the requirements of regulation 25(2)(b) of the Adjudication Regulations and renders the decision erroneous in law. For that reason and for the reasons stated hereafter I must set aside the decision.

The claimant's contentions

The first point raised by the claimant in his submissions to the appeal tribunal concerned the mortgage and in their reasons in form AT3 box 4 the appeal tribunal accepted the claimant's contention and increased the amount allowed as the applicable amount for eligible housing costs from £57.53 to £59.56 i.e. an increase of £2.03, thereby making the total applicable amount £248.76.

The claimant's second contention related to the calculation of his wife's income. He disputed the calculation and stated that it should be taken over the period of a year. With regard to that, the appeal tribunal in form AT3 box 4, paragraph 4 stated:

"4. The [claimants] wife's income has been correctly assessed. At the time of claim she was paid monthly and in accordance with the provisions of regulation 32 of the General Regulations the amount of her monthly payment has to be multiplied by 12 and divided by 52 to get the correct figure."

The third contention of the claimant was that the income treated as coming from capital should be decreased as his capital decreased. As to that the appeal tribunal stated in box 4, paragraph 2 that they sympathised with the claimant's point. They stated that "the calculation is made at the date that his claim was accepted" and that "it could only be altered if the claimant made a new claim" and that it was not for the adjudication officer to hold a watching brief on the claimant's capital and that no amendment could be made to the calculations on this score.

The fourth point made by the claimant was that "money in his current account should not be treated as capital as this is constantly being used to pay for current expenses". As to that the appeal tribunal stated in their reasons in box 4, paragraph 3:

"Schedule 10 of the General Regulations sets out capital which is to be disregarded. These exceptions do not include monies in current accounts. The money in the [claimant's] current account had, therefore, to be included in the calculations."

The claimant's grounds of appeal to the Commissioner are set out in his undated letter, received 12 August 1991. He has submitted:

"Points 2, 3 and 4 have not received satisfactory assessment for the following reasons."

Point 2 relates to the calculation of his wife's income: see paragraph 7 above. Point 3 relates to the contention that his income treated as coming from capital should be decreased as his capital decreased: see paragraph 8 above. Point 4 relates to his contention that money in his current account should not be treated as capital as it was used for paying current expenses: see paragraph 9 above. I will deal with each point separately.

Wife's earnings

As I have said, the first point raised by the claimant in this appeal is the calculation of the wife's income. Section 20(3)(b) of the Social Security Act 1986 provides that a person is entitled to income support if "his income does not exceed the applicable amount". If the person has income, the amount of income support "shall be the difference between his income and the applicable amount": section 21(1)(b). The income and capital of a claimant's partner are to be treated as income and capital of the claimant: regulation 23(1) of the Income Support (General) Regulations. For the purposes of section 20(3) of the Act, "the income of a claimant shall be calculated on a weekly basis": regulation 28(1). The claimant's wife has earnings as a supply teacher. It follows that for the purpose of determining the claimant's income on a weekly basis, it was necessary to determine the amount of the wife's earnings on a weekly basis.

The adjudication officer's calculation of the wife's earnings is in form AT2 paragraph 6.16(1) and (3) "a net monthly income of £318.67 (equivalent to £73.53 per week i.e. £318.67 x 12 ( 52)" with a disregard under Schedule 8 of £5, so that "the amount of earnings to be taken into account each week is therefore £68.53". Before the appeal tribunal the claimant contended that the adjudication officer's calculation was incorrect as his wife's earnings as a supply teacher varied. The appeal tribunal decided that the wife's income had been correctly assessed: see paragraph 7 above. They stated "the amount of her monthly payment has to be multiplied by 12 and divided by 52 to get the correct figure". In his letter seeking leave to appeal to the Commissioner the claimant stated:

"My wife's income may well be paid monthly (six to eight weeks in arrears); to merely multiply one month by twelve and divide by 52 has no sense of justice about it! If taking one month and multiplying it by twelve and dividing it by 52 gave a figure which was lower than the average weekly so far then to take the average would be acceptable[;] however when one month x 12 ... 52 gives a figure far in excess of the average is unfair, unjust and certainly not to the benefit of the applicant."

I have come to the conclusion that, in view of the dispute by the claimant, it was incumbent upon the appeal tribunal to make the necessary findings of fact and reach a decision as to what were the wife's earnings. That is to say, it was incumbent upon them to determine the wife's weekly earnings at the date when the claim was considered: see paragraph 18 below. How was that to be done? As I have said, regulation 28(1) provides that the income shall be calculated on a weekly basis and this is done:

"(a) by determining in accordance with this Part, other than Chapter VI, the weekly amount of his income; and

(b) by adding to that amount the weekly income calculated under regulation 53 (calculation of tariff income from capital)."

How are the wife's weekly earnings to be determined? The relevant regulations are regulations 29, 31 and 32 of the General Regulations.

Regulation 29(1) as amended provides:

"(1) Earnings derived from employment as an employed earner... shall be taken into account over a period determined in accordance with the following paragraphs and at a weekly amount determined in accordance with regulation 32 (calculation of weekly amount of income)."

Regulation 29(2) provides:

" ... the period over which a payment is to be taken into account shall be -

(a) in a case where it is payable in respect of a period, a period equal to the length of that period;

(b) in any other case, a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the net earnings ... by the amount of income support which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded under Schedule 8 (earnings to be disregarded) ...and that period shall begin on the date on which the payment is treated as paid under regulation 31 (date on which income is treated as paid)."

Regulation 31 provides:

"(1)... a payment of income to which regulation 29 (calculation of earnings received from employed earner's employment...) applies shall be treated as paid -

(a) in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, as the date on which it is due to be paid;

(b) in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account."

Regulation 32(1) provides for the calculation of the weekly amount of income, depending upon the length of the period in respect of which the payment was made i.e. "does not exceed a week", or monthly, or three monthly, or annually, or in any other case (the regulation is set out in form AT2 paragraph 6.9 and I do not need to repeat it here). Where the period of payment is a month, you multiply the amount of the payment by twelve and divide the product by 52.

The interpretation of regulation 29(1) and (2) gives rise to two points. First, a similar provision to regulation 29(2) (namely regulation 9(2) of the Supplementary Benefit (Resources) Regulations) was considered in R(SB) 17/82. In that case, the claimant had received on 21 March 1981 two weeks unemployment benefit (£65.94), representing payment in arrears for the week ending 20 March 1981 and in advance for the week ending 27 March 1981. He then claimed supplementary benefit for the week ending 3 April 1981. The Commissioner held that the payment of £65.94 fell to be taken into account over two weeks beginning on 21 March 1981 and that supplementary benefit was not, therefore, payable either for the week beginning 21 March, or for the week beginning 28 March 1981 and ending 3 April 1981. The Commissioner pointed out in paragraph 3(2) of his decision that the effect was contrary to common sense in that the claimant had a week in which he had a need for social security benefit but could not be awarded it. Applying that decision to the present case, any payment of earnings for a past period will be taken into account for income support purposes for the appropriate period from the date when the earnings were to be treated as paid i.e. due to be paid.

Secondly, as Mr. Mesher points out in the general note to regulation 29(1) and (2) in "Income Support, the Social Fund and Family Credit: The Legislation" a problem arises where a supply teacher works for a varying number of days in each month, being paid at the end of each month. The question that arises is whether that payment was made in respect of the month or in respect of the number of days worked. Mr. Mesher points out that much will depend on "the precise contractual situation and the terms used by the parties".

It follows that in determining the amount of the wife's earnings at the date when the claim is considered, it was necessary to make findings of fact as to (1) the amount of the earnings; (2) whether any sum fell to be disregarded under Schedule 8; (3) the period in respect of which they were payable: regulation 29(2); (4) the date when they were to be treated as paid i.e. when payment was due to be made: regulation 31(1)(a). The appeal tribunal should then have calculated the amount of the weekly income derived from earnings: regulation 32(1). The appeal tribunal failed to make the necessary findings of fact and their decision failed to comply with the requirements of regulation 25(2)(b) of the Adjudication Regulations and was erroneous in law. The new tribunal to whom this case is remitted will require to see the wife's contract of employment in order to deal with the questions that they will have to decide.

Calculation of income

The next point raised by the claimant in his grounds of appeal is that the income to be treated as coming from capital should be decreased as his capital decreased. He stated "My capital did diminish and I did make a fresh application, which could have been dated on the day when I had less capital". The appeal tribunal in their reasons in form AT3 box 4 paragraph 2 stated:

"2... the calculation is made at the date his claim is accepted. It can only be altered if the [claimant] makes a fresh claim. It was, therefore, up to the [claimant] to claim afresh as his capital diminished. It was not for the adjudication officer to be holding a watching brief on his capital. No amendment can be made to the calculations on this sum".

The appeal tribunal were, however, wrong in law. A claim for income support is an open-ended claim: see regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (which came into operation on the same date that income support was introduced: 11 April 1988). That regulation provides that "a claim for benefit shall be treated as made for an indefinite period". The effect of an open-ended claim was explained by Mr. Commissioner Monroe in paragraph 13 of his decision in R(SB) 4/85 where he said:

"13... The claim was an open-ended claim for an allowance. In the national insurance field it has been held that a decision refusing benefit under an open-ended claim operates as a refusal of benefit down to the date of the decision unless otherwise stated (see decision R(I) 8/68), and that in particular a decision of a person or tribunal refusing benefit given on a particular day operates down to that day, and if confirmed an appeal operates down to the date of the appeal decision ... The appeal tribunal however clearly looked at the position only as at the date of the claim, whereas with a claim for a continuing benefit like a supplementary allowance the facts must, if the situation is fluid, be looked at week by week ... the tribunal found that the claimant had disposed of investments since the date of claim and discharged debts and the position should have been considered to see if the assets had been reduced below the statutory figure at some time before the date of their decision."

By looking at the position only at the date of the claim, the appeal tribunal erred in law

Current account

It is the claimant's next contention that money in the current account should not be treated as capital as "it is constantly being used for current expenses". In his grounds of appeal, he has submitted that "Money in a current account was not used in calculations for exemption from NHSS so why should it be included in calculations for income support". I do not know what are the rules relating to the computation of capital for the purposes of NHSS. I have to consider the matter in accordance with the regulations for income support.

The first question for consideration is the distinction between capital and income. In "Income Support, The Social Fund and Family Credit: The Legislation", in the general note to regulation 23 of the Income Support (General) Regulations (in the 1990, 1991 and 1992 editions), Mr. John Mesher, the author, has stated:

"General note

Resources are to be either capital or income. There is nothing in between. The distinction between capital and income is one which has given a good deal of trouble in the past, and in many other legal contexts. There is no attempt at any general definition in the regulations, although see regs 35, 41 and 48. The approach tends to be that around the borderline a decision can go either way, and it is only if a decision is completely unreasonable that it embodies an error of law (R v. W. London SBAT, ex parte Taylor [1975] 2 All ER 790). But ultimately the question is one of law (see Lillystone v. SBC [1982] 3FLR 52(CA))."

In R(SB) 2/83, the claimant had money in a building society account, in a bank deposit account, and in a business account, and his wife had a bank current account. The tribunal of Commissioners in paragraph 6 stated:

"6. ... In most cases capital resources arise out of income resources. They represent savings out of past earnings. However, before they undergo the metamorphosis of income to capital all relevant debts, including, in particular, tax liabilities, are first deducted. Indeed, regulation 10(3)(a)(i) [meaning, I think, regulation 10(4)(a)(i) of the Supplementary Benefit (Resources) Regulations] specifically provides that income tax shall be deducted from a person's earnings. However, we do not know the source of the monies in the building society, and it is quite clear that the claimant and the tribunal, and in fact Mr. Rowland [for the claimant] in his submissions to us, have all proceeded on the basis that such monies are a capital resource. Manifestly, we too must proceed on the like basis."

The tribunal of Commissioners went on to deal with regulation 5 of the Resources Regulations and said in paragraph 14 that there was nothing to indicate in that regulation that "capital resources are anything other than the gross capital resources". In paragraph 15 they stated that "Parliament must be deemed to have intended that ... capital resources are to be treated as constituting the gross assets, not the net assets of a claimant" and that the appeal tribunal were right to disregard the claimant's indebtedness to the Inland Revenue (since the indebtedness had not been discharged) in computing his resources. I appreciate that that case concerned supplementary benefit and not income support but the observations must clearly be a guide when considering capital in relation to income support.

R(SB) 2/83 was referred to by the Commissioner in R(SB) 35/83 and in paragraphs 4 and 5 the Commissioner stated:

"4. ... The fact that in the present case the claimant had specifically stated that the monies in question had been saved up indicates in itself that they represented accumulated earnings and as such there might still be income from which tax and other relevant items were deductible before being treated as capital, or they might have already undergone complete transformation into capital. Certainly the tribunal were put on enquiry as to the true nature of the deposits in the bank account. However, they appear to have made no relevant findings of fact.

Now, if the monies in question did arise out of earnings, I do not see how they could properly be regarded as capital until income tax and other proper deductions had been taken into account. In my judgment, capital represented by savings of past earnings can only arise out of income from which all relevant liabilities have been deducted. Any other view would give a wholly false character to the monies in question."

In paragraph 9 the Commissioner said:

"9. Accordingly, I am satisfied that the tribunal erred in point of law in failing to consider the essential nature of the monies in the bank accounts, and that, as their nature had been put in issue by the claimant, they should have made specific findings as to whether all or any part of the monies in the bank accounts were to be regarded as capital resources."

In the present case, the claimant has put in issue the nature of the monies in the current account. In passing I note that according to form AT2 the wife's bank account was a savings account.

The appeal tribunal decided that the money in the claimant's current account "had to be included in the calculations" which I take in the context to mean that the money had to be included in the calculations as capital. Were they correct in doing so? The claimant's income is child benefit, unemployment benefit, occupational pension, and the wife's earnings. The occupational pension is to be taken into account as income: regulation 35(2)(d) together with regulation 40(1) and (4) of the General Regulations. However, the occupational pension is to be taken into account after deduction of tax from it: regulation 40(2) and Schedule 9, paragraph 1. The question is, do those items, when paid into a bank current account, become capital? The adjudication officer in paragraph 5 of the submission dated 17 February 1992 has submitted that "payments of income to the current account do not become capital for income support purposes until the period over which they fall to be attributed under regulation 29 of the General Regulations has elapsed". I agree with that submission.

Regulation 29(2)(a), as I have indicated in paragraph 12 above, provides that the period over which a payment is to be taken into account shall be:

"(a) in a case where it is payable in respect of a period, a period equal to the length of that period;"

Child benefit, unemployment benefit and occupational pension are payable in respect of a period, and they will constitute income for a period equal to the length of the period for which they were payable. Child benefit and unemployment benefit were (I assume) payable weekly; occupational pension is payable monthly. The position must be considered as at the date when the claim is considered. Any payment of child benefit or unemployment benefit will become capital a week after they are paid or due to be paid. Any payment of occupational pension will become capital a month after it is paid or due to be paid. Likewise the wife's earnings paid into a current account will if they were paid after deduction of tax, become capital at the end of the period equal to the period for which the earnings were paid. The income (including the wife's earnings) in current account which has not undergone the metamorphosis into capital will remain to be treated as income. The appeal tribunal were, therefore, incorrect in treating the whole of the current account as capital.

Expenses paid out of current account

Finally, the claimant's fourth point concerns the use of current account for the payment of expenses. Does the fact that the current account is used for payment of current expenses affect the above conclusion? In the days of supplementary benefit, regulation 6(1) of the Supplementary Benefit (Resources) Regulations provided that in calculating a claimant's capital resources, a number of categories or items were to be disregarded. These included in sub-paragraph (i), being the sub-paragraph following sub-paragraph (h):

"(i) any sum attributable to savings made out of income for the purpose of meeting any periodically recurring liability in respect of such personal living expenses and expenses of the home as are reasonable in the opinion of the adjudication officer, including in particular charges for -

(i) rent

(ii) rates

(iii) fuel

(iv) telephone calls

for such a period and up to such an amount as are reasonable in the opinion of the adjudication officer, having regard respectively to the time when the liability falls to be met and its expected amount."

That provision was introduced in 1982 and would, if it were still the law, answer the claimant's point. However, supplementary benefit has been replaced by income support and there is no similar provision in the income support regulations. The matter is dealt with in the Child Poverty Action Group "National Welfare Benefits Handbook" (20th edition 1990/91) at page 252 as follows:

"Savings

Your savings generally count as capital, and include, for instance, cash you have at home, premium bonds, stocks and shares, money in a bank account, or savings account, building society and the like.

Your savings from past earnings can only be treated as capital when all relevant debts, including tax liabilities, have been deducted. Savings from other past income (including social security benefits) will be treated as capital and may affect your entitlement. There is no longer any provision for disregarding savings of mobility allowance or money put aside to pay bills. If, therefore, you have savings just below £3,000, it may be best to pay future bills for gas, electricity, telephone etc. by monthly standing order through a bank/building society account, or by use of a budget account, in order to prevent your capital going over £3,000. As soon as it does, you will be treated as having tariff income (see p. 23)."

It follows that the fact that the current account was used for payment of current expenses does not affect the conclusion that I have reached, namely that money in a current account, in so far as it represented savings out of income (including earnings) which had undergone the metamorphosis was to be treated as capital, but that income in the current account which had not undergone the metamorphosis into capital remained to be treated as income. The metamorphosis occurs in relation to each item of income after payment of any tax liability and after the period in respect of which the item falls to be attributed has expired.

The new tribunal to whom this case is remitted must (1) make the necessary findings of fact and determine the amount of the wife's earnings and whether or not tax had been paid, and determine the period in respect of which the earnings were to be attributed; (2) make the necessary findings of fact and determine whether any part of the bank current account(s) contained income. It seems to me that the practical way of dealing with this problem is to treat the account(s) as capital save for those items representing child benefit, unemployment benefit, occupational pension, and wife's earnings in respect of which the period to which they were attributed had not expired. It seems to me that any payment into a deposit or savings account will be intended to be, and will be treated as, savings i.e. capital.

For those reasons I allow this appeal.

Date: 8 July 1992 (signed) Mr. A.T. Hoolahan QC

Commissioner