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[1996] UKSSCSC CIS_7319_1995 (28 June 1996)

R(IS) 4/97

Mr. P. L. Howell QC CIS/7319/1995

28.6.96

Income support - claimant attempting to sell farmland - whether taking reasonable steps to dispose of "premises"

The tribunal decided that the claimant was not entitled to income support from 6 June 1994 because she and her husband were to be treated as having capital assets worth more than £8,000. Her husband was the legal owner of an acre of land in Jamaica. The land was undeveloped but cultivated by his mother for subsistence purposes. In 1991, for a period of over twelve months, the claimant's husband had unsuccessfully advertised the land for sale at the price of £30,000. It was not being marketed at the time of the wife's claim. The tribunal decided that the property could not be disregarded under paragraph 26 of Schedule 10 to the Income Support (General) Regulations 1987. "Premises" did not include land with no buildings, which was used only for arable purposes. Furthermore, at the time of the claim, the husband was taking no steps to dispose of the land. The claimant appealed on three grounds: (1) the tribunal had no jurisdiction to consider the "land" issue, (2) they misconstrued the word "premises", and (3) they wrongly rejected the argument that the premises fell within paragraph 26 for, at any rate, six months. The representative abandoned the first argument at the oral hearing.

Held, allowing the appeal, that:

the tribunal had jurisdiction to consider the claimant's resources which been clearly raised in the correspondence, submissions and evidence before them. It was their function, as far as possible, to give the answers needed to dispose of the case once it came before them (para. 13);

the tribunal erred in giving a narrow interpretation to the word "premises". The Commissioner preferred to follow CSB/222/1986, which after consideration of a number of legal authorities showing that premises could have a wide construction, decided that "any premises" in corresponding supplementary benefit provisions should receive a wide construction. The property to be disregarded included land without buildings, or a mobile home, though not every species of property, as premises had never meant personal chattels, which were dealt with separately under paragraph 10. What was meant by "premises" in the supplementary provisions seemed to be the same question despite differences in wording about reasonable steps to dispose of the premises (paras. 17 and 18: observations in CIS/673/1993 as to "premises" in para. 26 not including "unbuilt-on land" not followed).

The Commissioner set aside the decision. He decided that the land did count as "premises" and referred the appeal to a new tribunal to decide whether and to what extent the claimant and her husband were taking steps to try and dispose of the land at the time of the claim, and when they first took "reasonable steps" for the purpose of calculating the allowable period under paragraph 26.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 21 February 1995 confirming the rejection of this claim for income support was erroneous in point of law. It must be set aside and the case referred to a fresh tribunal for redetermination.

I held an oral hearing of this appeal at which the claimant appeared and was represented by Mr. Marcus Revell of the welfare rights unit, National Association of Citizen Advice Bureaux, and the adjudication officer was represented by Mr. S. Priddis of the Solicitor's Office, Department of Social Security. I am grateful to both of them for their helpful submissions.

The claimant is a lady now aged 61. She and her husband live in a house in South London they own jointly. He is a retired London Transport employee and they have unhappily had to claim income support despite owning their own home and his having a reasonable pension from his years of work, as they have managed to get out of their depth with mortgage borrowing on the house. The original loan when they moved to their present address in 1985 was said on their claim form to be £29,500. This was no doubt a manageable sum by itself, but their troubles have stemmed from being allowed, or encouraged, over the next few years to borrow far too much additional money. The result was that by the beginning of the 1990's their borrowing had doubled, and instead of the secure retirement to which they should have been entitled they faced pressure from their mortgage lender and a debt now mounting out of control. Like many ordinary hardworking but financially inexperienced people who got caught up in the wave of irresponsible lending caused by the "financial deregulation" of the 1980's they, and the rest of the community via income support, have been left to pay a heavy price. By the time the claimant made her income support claim on 6 July 1994, their total debt outstanding was almost £90,000, and their monthly interest liability more than swallowed up the whole of her husband's pension.

The claim in the present case is treated under the regulations as effective from 6 June 1994, and if not disqualified on other grounds the claimant will be entitled to have at any rate some of the mortgage interest for which she and her husband are liable paid out of income support so as to reduce the likelihood of their facing repossession by the mortgage lender. I was told at the hearing of the appeal that a later claim for income support has in fact been accepted and benefit awarded for the period from 14 December 1994 onwards, so that the issue on the present appeal is whether income support was rightly refused for the period of just over six months from 6 June 1994.

This question came before the tribunal by way of an appeal from the decision of an adjudication officer, given I think in July 1994, rejecting the claim on the grounds that the claimant's husband was in remunerative work. In fact after further investigation the adjudication officer accepted that this work (as a commission agent on an occasional basis for a life insurance company) did not disqualify the claimant for income support as her husband was not engaged on it for as much as 16 hours a week. However the refusal to pay benefit was maintained on the alternative ground that the claimant and her husband together had capital assets worth more than the limit of £8,000. The basis for this was that, in addition to savings in this country of a bit over £5,000 at the date of claim, the value of an acre of land in Jamaica of which the claimant's husband was the legal owner had to be taken into account. There is no formal record of the adjudication officer's decision about this among the papers, and it appears not to have been properly notified to the claimant, but there is no doubt she and her husband were made aware of it on the telephone. Moreover a letter dated 22 September 1994 at page T44 made it clear that the department had considered and rejected the claim on this ground, and acknowledged the claimant's right to appeal against it.

The adjudication officer's written submissions to the tribunal at page T50 acknowledged that the decision to refuse income support could not be sustained on the original ground given that the claimant's husband was in remunerative work, but made it clear that the refusal was being maintained on the alternative ground that their capital resources exceeded the prescribed amount of £8,000, and that this was the real issue before the tribunal. Written submissions dealing specifically with the effect of the land in Jamaica on the claim were made on behalf of the claimant by a member of the CAB who was acting as her representative and are at pages T61A to 61C. The claimant and her husband gave oral evidence to the tribunal, and all of the evidence related to the question of whether the land in Jamaica meant that she was not entitled to income support because of the capital resources rule.

According to the evidence given to the tribunal and the material before me which is not in dispute, the piece of land which gives rise to the problem is an acre of undeveloped land in a rural district of Jamaica which the claimant's husband purchased in 1962 for £200. The original aim was to build a house on it in which his father and mother could live at any rate until he himself came to retirement age, but he was never able to afford to build on it and the land remains undeveloped. The area around it is also still undeveloped although there would be no legal objection to developing it in one or more lots. His father has now died, his mother who lives with other relatives has for some time used the land for cultivation, and the produce she grows on it is her main means of subsistence. Obviously it would make things very difficult if his mother had to give up her use of the land, and Mr. Revell on behalf of the claimant raised the question of whether she might even be able to claim some equitable interest in it.

The evidence before the tribunal about the value of the land consisted of a copy of a small advertisement in the "Gleaner" which is a newspaper circulating among the West Indian community in this country, in which the claimant's husband had advertised the land for sale as an acre of residential land with fruit trees at a price of £30,000, and his oral evidence that this figure had been put on it by him not because of any valuation but simply as the amount he was hoping to raise. However he had had no serious offers in response to his advertisement in over twelve months from the first one, dated 7 May 1991. Because the property was remote and dealing with local agents at this distance difficult, he had not made any further active attempts at selling after this year or so of unsuccessful advertising in this country. Accordingly, the land was not actually being marketed at the time of his wife's income support claim.

On this evidence, the tribunal confirmed the rejection of the income support claim for the period from 6 June 1994. They did so on the ground that the claimant's capital resources exceeded the prescribed amount of £8,000, having considered and determined as a preliminary issue that despite an apparent procedural defect in the notification of the adjudication officer's decision on this question, they had the jurisdiction to deal with it as a matter first arising on the appeal under s. 36 Social Security Administration Act 1992. They recorded that the sole issue for their decision was, under s. 134(1) Social Security Contributions and Benefits Act 1992 and reg. 45 Income Support (General) Regulations 1987, SI 1987 No. 1967, whether the claimant had to be treated as having capital resources over £8,000 in value.

The tribunal noted that she had declared savings totalling over £5,000 in various accounts, and this was not in dispute. However she had also very properly declared on her claim form that her husband owned the land in Jamaica. He had shown them a Land Transfer Certificate with it registered in his name. They continued:

"The only evidence of value is that in May 1991 it had been assessed by [claimant's husband] personally at £30,000. There is hearsay evidence that the figure was too high but we disregard that on grounds of vagueness. There is thus actual capital of £35,404. We may discount 10% sale expenses for the land thus the net total becomes £32,404 ... Capital disregards may be permitted under the designated headings specified in Schedule 10 to the General Regulations and it has been submitted that this case falls under para. 26 as the land is "premises where the claimant is taking reasonable steps to dispose of those premises ...". We do not agree. There is no definition section for "premises" and it therefore must have its literal meaning, a structure with or without land attached and not land with only arable use and no buildings. Furthermore at the date of claim the claimant's husband was taking no active steps to dispose of his land. No portion of the assessed capital can be disregarded and the appeal is not allowed."

Against that decision the claimant appeals with the leave of the Commissioner granted on 11 September 1995 on the grounds set out on her behalf in the application for leave to appeal at pages 74-79, which are in summary that the tribunal erred in law first by deciding that they had jurisdiction to deal with the land issue on the appeal at all, second by misconstruing the word "premises" so as to exclude land without buildings on it, and third by failing to make and record adequate findings of fact and reasoning on who had the beneficial ownership of the land and whether the claimant or her husband were taking reasonable steps to dispose of any interest they had. Consequently they had wrongly rejected the argument that it fell within para. 26 of Sch. 10 under which premises of which the claimant is taking reasonable steps to dispose are to be disregarded as "capital" for at any rate six months. In addition, the tribunal's approach to the valuation of the land was challenged as wrong in principle.

On the appeal before me Mr. Revell did not pursue the challenge to the jurisdiction of the tribunal, which in my view was quite unarguable. The appeal was against the decision of an adjudication officer refusing income support for the relevant period, and the tribunal had to decide whether the claimant was entitled to income support for that period or not. All questions having a bearing on that issue were necessarily before the tribunal on the appeal, whether the ground originally given by the adjudication officer for rejecting the claim was sustainable or not. In the words of the Commissioner in R(SB) 9/81 to which my attention is drawn by the adjudication officer in his submission of 20 October 1995, all these matters were within the purview of the original claim. For my part I do not consider it is necessary to go any further and decide to what extent they were questions "first arising" in the course of the appeal to the tribunal so as to bring them within the express provisions of s. 36(1). That section appears to me to be intended to extend the jurisdiction so as to deal in a practical way with any separate matters that arise in the course of an appeal, in addition to those already within its purview on general principles.

In the present case the question of whether the claimant's capital resources disqualified her for income support had been quite clearly raised in the correspondence and in the submissions and evidence before the tribunal. It would have been a quite ridiculously impractical result if the tribunal had announced that they were unable to deal with it in the absence of a formally notified decision of an adjudication officer, so that the whole appeal had to be aborted and the matter sent back to an adjudication officer with yet another appeal to a tribunal in some months time. Nothing in case CIS/807/1992 cited in the claimant's notice of appeal obliges a tribunal to behave in such a restrictive and unhelpful fashion; once a case comes before them, the tribunal's function should always be to give the answers needed to dispose of it so far as they can.

I have next to consider whether the tribunal were right in law to hold that the acre of undeveloped land in Jamaica could not fall within the provisions of para. 26 of Sch. 10 for disregarding capital assets because it did not count as "premises". Depending on the answer to that question, further questions arise about whether (if within para. 26) reasonable steps were being taken for its disposal, and (if not disregarded) its value. It became apparent in the course of the appeal hearing that I do not have the material to give a final decision on these further issues. Thus if there was any material error of law in the tribunal's decision, the case has to be remitted for redetermination.

The tribunal cited no authority for their decision on "premises" and plainly thought that it had to be read here in its popular (or as they put it literal) meaning, of some sort of building or structure that a person can go into, and not just unbuilt-on land under cultivation. However, as Mr. Revell pointed out on behalf of the claimant, there is clear authority that in a legal context "premises" can have a considerably wider meaning and it is wrong to assume that there is any prima facie meaning from which one should start: see per Lord Wilberforce in Maunsell v. Olins [1975] AC 373 at 386, Lord Dilhorne at 383. Mr. Revell referred me to the decision in case CSB/222/1986 where on a very similar provision in the supplementary benefits legislation, the Commissioner considered a number of authorities showing that the word could have a wide construction including all forms of real property, and directed the tribunal when remitting the case that they were to accept that "premises" is capable of including land which is bare of buildings. The authorities referred to by the Commissioner did not include Maunsell v. Olins, but in my judgment nothing in his decision is inconsistent with what their Lordships said in that case.

A more recent decision in case CIS/767/1993 considered the meaning of "premises" in the first four paragraphs of Sch. 10, dealing with premises occupied or for occupation as a home. In para. 15 the Commissioner held that the context of these paragraphs was different from that of the supplementary benefit provision at issue in CSB/222/1986, and commented that there were powerful arguments for giving a wide meaning to a disregard of "premises" which are for sale. The supplementary benefit provision (set out in CIS/767/1993, para. 13) directed, as does para. 26 of Sch. 10, that the value of "any premises which are for sale" must be disregarded, without restricting this to premises of any particular type.

What is meant by "premises" in these provisions appears to me the same question, despite the differences in wording about reasonable steps to dispose of the premises and how long they are to be disregarded. Each paragraph appears as one of a number of associated provisions, the first of which excludes the claimant's own home, and each is close to other provisions about "premises" that plainly refer to premises for residential occupation. In extending the exclusion to property that is up for sale, each simply refers to it as "premises" without anything to indicate whether this means residential premises, all types of buildings and structures, or all types of real property in general. In my view the reasoned decision of the Commissioner in case CSB/222/1986, on a provision with such important similarities, is not distinguishable. He held specifically (see appx. para. 3) that "any premises" should receive a wide construction, enabling the adjudication officer or the appeal tribunal to "disregard for a reasonable time the value of property that, on the facts, cannot be sold quickly". The property to be disregarded included land without buildings, or a mobile home, though not every species of property, as "premises" had never meant personal chattels, separately dealt with under para. 10.

On behalf of the adjudication officer Mr. Priddis invites me to say that that reasoning is wrong and should not be followed for income support. He refers to an observation in the decision in case CIS/673/1993 which was directly concerned with whether para. 26 of Sch. 10 applied to "premises" consisting of a plot of land in Quebec. This had been acquired with a view to development, but could not in fact be built on. In para. 3 of his decision the Commissioner commented that "I do not consider that the disregard in para. 26 of Schedule 10 ... could apply, since that paragraph refers only to premises, which does not include unbuilt-on land." It does not appear however that the Commissioner had the benefit of any argument on this. Nor did he cite any authority for the assumption he apparently made, or refer to the point again.

It is plain in my judgment that the Commissioner in that case was basing himself on an assumption about the ordinary colloquial meaning of the word "premises" and the authorities referred to above and in the Commissioner's decision in CSB/222/1986 show that in a legal context this assumption is mistaken. Since he does not appear to have had before him the benefit of any citation of authority or the Commissioner's reasoning in the earlier case, it seems to me that I ought to prefer that reasoning which has also been approved in CIS/767/1993. I therefore decline to follow what the Commissioner said in CIS/673/1993 even though it is directly related to the provision before me. I hold instead that "premises" in para. 26 includes, as held in CSB/222/1986, any real properly including undeveloped land. The reason for giving special treatment to this type of capital must I think be that it normally takes some time to sell or dispose of it, so that it would be unfair to claimants to treat it as equivalent to cash that could be used for living expenses at once.

My conclusion on the meaning of "premises" means that the tribunal decision of 21 February 1995 was in my judgment erroneous in point of law in holding that the land in Jamaica fell outside the scope of para. 26 of Sch. 10 altogether. For this reason I set it aside, and refer the case in accordance with s. 23(7)(b) Social Security Administration Act 1992 to a differently constituted tribunal which I direct to rehear and redetermine all relevant issues on the income support claim from 6 June to 14 December 1994, on the basis that the land does count as "premises" eligible to be disregarded under para. 26.

I have already indicated that I do not think it possible to determine the further issues that arise in the case myself, so I will attempt to give a brief direction to the new tribunal on how in my view they should approach them. The first question they must consider is whether or to what extent the two conditions in para. 26, that the claimant is taking reasonable steps to dispose of the premises and that the permitted period for such disposal is still continuing, are satisfied. The first difficulty for the claimant is that neither she nor her husband appears to have been taking any steps at the date of her claim to try and dispose of the land. They had earlier made an attempt to sell it by advertising in a newspaper circulating in this country, but it appears fairly obvious from the valuation evidence produced on their later, successful income support claim that the price was quite unrealistic. At the time of the claim, they seem to have rather lost heart on the idea of selling the land at all, and it is clear from the letter of appeal on their behalf (29 September 1994, p. T48) that the claimant's husband then felt unwilling to sell because of the difficulty of asking his mother to give it up.

The tribunal should therefore look to see what, if any, evidence there is of steps to dispose of the land over the three months or so between the claim and this appeal letter. If they are not satisfied about this, its value cannot be disregarded under para. 26 for that period. Whether para. 26 can apply from 29 September onwards, when obviously on their representative's advice the claimant and her husband accepted the necessity of a sale (see p. T61A), depends on when they first took reasonable steps, as the permitted period under para. 26 is "a period of 26 weeks from the date on which he first took such steps" and the period must in my view be continuous. Taking advice from the CAB and placing the property in the hands of a specialist estate agent in this country (p. T61B) are plainly capable of counting as "reasonable", but will do the claimant no good unless they were the first such steps taken. Thus the tribunal will have to form a view on whether the earlier attempt to dispose of the property by advertisement did or did not count as reasonable. I direct them that what is reasonable is an objective test, so that if they are satisfied the earlier attempt was a hopeless one because the price was quite unrealistic or the media chosen unsuitable, they may properly disregard it. Then the question would become at what point after the claim did the claimant and his wife begin to take steps the tribunal considers reasonable, to start the period running.

Insofar as the land is not to be disregarded, the tribunal will have to consider whether its value took the couple's capital as measured for income support over £8,000 at any point. I imagine that their savings had to be drawn on as time went on, so that the question will have to be considered as a continuing one over the claim period, but the principle to be applied is not in doubt. There are no restrictions on the claimant and her husband selling their interest in Jamaica or remitting the sale proceeds to this country; sale expenses have to be allowed for, but there is no mortgage or encumbrance secured on the land itself. Consequently, what has to be brought into account under reg. 50 of the Income Support Regulations is the current market value in Jamaica of their interest, less 10% for expenses.

As I have indicated earlier, Mr. Revell sought to persuade me that the facts gave the claimant's mother-in-law an equitable interest by way of proprietary estoppel by reason of her having been allowed to use the land for cultivation, or given some expectation that a house would eventually be built on it. I am not satisfied on the evidence before me that a claim to such an interest can be made out, even assuming that the law of Jamaica is similar in this respect to that of England and Wales, and I do not accept that it was any error of law for the tribunal not to explore the possibility further. The fresh tribunal will need to have a good deal more cogent evidence, both of the facts and of the relevant West Indian law, to justify this suggestion if it is repeated before them on the rehearing. What is said on page T61A about the claimant and her husband accepting the necessity of selling the property so as to raise funds for themselves also appears to me to indicate that they do not regard his mother as having any legal interest preventing them from doing so.

A related practical point is however much better founded. Whatever the strict legal position of the claimant's mother in-law may be, there is no doubt in my judgment that any assessment of its market value for reg. 50 may quite properly, and indeed must, take into account any practical difficulties in the way of an immediate sale. Here the fact that the land has been cultivated for a number of years and no doubt at present has growing crops on it would make it very difficult in a practical sense to achieve a sale without some reasonable interim arrangement allowing access to the land for her to continue to look after the current year's crops and in due course harvest them. The practical difficulties and delays likely to be involved in any actual disposal of this particular land should in my view be reflected in its value for income support purposes. What is relevant is of course the true market value: it is not justifiable to start, as the previous tribunal did, with what was effectively a presumption against the claimant from the original "hope value" figure put on it by her husband and then dismiss as "hearsay" the plain fact that it never sold at that price, with no real indication that its true value was anything like that much.

The appeal is allowed and the case remitted accordingly.

Date: 28 June 1996 (signed) Mr. P. L. Howell QC

Commissioner