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[1997] UKSSCSC CIS_14468_1996 (01 August 1997)

R(IS) 16/98

Mr. D. G. Rice CIS/14468/1996

Housing costs - loan to provide cupboards and refrigerator - whether in respect of "repairs and improvements" by way of "provision of facilities for preparing and cooking food"

The claimant included in an income support claim additional housing costs in respect of the interest payable on a loan taken out for kitchen improvements, part of which included the provision of three cupboards and a refrigerator. An adjudication officer determined that that part of the loan was not in respect of the "provision of facilities for preparing and cooking food" within the meaning of paragraph 16(2)(f) of Schedule 3 to the Income Support (General) Regulations 1987 and accordingly that the interest on it was not an allowable housing cost. The claimant appealed to a social security appeal tribunal, which upheld the appeal. The adjudication officer appealed to the Commissioner.

Held, allowing the appeal, that:

earlier legislation had included "improvements to the facilities for storing, preparing and cooking food" whereas the current legislation specifically excluded "facilities for storing" which was a distinctly separate process from preparing and cooking food, and the three cupboards and the refrigerator were facilities for storage and as such fell outside paragraph 16 of Schedule 3 (para. 6);

paragraph 16 was also restricted to "repairs and improvements to the dwelling occupied as the home" which required that the repairs or improvements become fixtures of the dwelling and there was nothing to suggest that the refrigerator had become a fixture (para. 7).

The Commissioner set aside the tribunal's decision and remitted the appeal for rehearing by a differently constituted tribunal on the basis that the interest on the part of the loan in respect of the cupboards and refrigerator was not an allowable housing cost.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 12 February 1996 is erroneous in point of law and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.

This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 12 February 1996. In view of the fact that I did not find the written submissions of the adjudication officer now concerned wholly persuasive, I directed an oral hearing. At that hearing the claimant was neither present nor represented, but the adjudication officer appeared by Miss K. Idris of the Solicitor's office of the Department of Social Security.

The question for determination by the tribunal was whether the interest payable on a loan for kitchen improvements was "a qualifying loan" within paragraph 16 of Schedule 3 to the Income Support (General) Regulations 1987, SI 1987 No. 1967, giving rise to interest eligible to be treated as housing costs. This involved consideration of whether or not the provision of three cupboards and a refrigerator, part of the kitchen improvements, constituted "provision of facilities for preparing and cooking food" within paragraph 16(2)(f). If it did then that part of the loan taken out to cover this expenditure was a qualifying loan, with the result that the relevant interest payable was "eligible interest" for the purpose of calculating the claimant's entitlement to income support.

In order to understand what is meant by the "provision of facilities for preparing and cooking food" it is helpful to look at the earlier legislation which paragraph 16 of Schedule 3 replaced. The earlier legislation was contained in paragraph 8 of Schedule 3 to the Act, and this, so far as is relevant, reads as follows:

"8.- (1) ... there shall be met under this paragraph interest payable on any loan which is taken out, with or without security, for the purpose of-

(a) repairs and improvements to which paragraph 1(b) refers ...

and which is used for that purpose or is to be used within six months of the date of receipt or such further period as is reasonable, and the amount to be met under this paragraph shall be calculated as if the loan were a loan to which paragraph 7 applied.

...

(3) In this, paragraph 'repairs and improvements' means major repairs necessary to maintain the fabric of the dwelling occupied as the home ... and any of the following measures undertaken with a view to improving its fitness for occupation-

...

(g) improvements to the facilities for storing, preparing and cooking food."

The current provision reads, so far as is relevant, as follows:

"16. (1) A loan qualifies under this paragraph where the loan was taken out, with or without security, for the purpose of-

(a) carrying out repairs and improvements to the dwelling occupied as the home

...

and the loan was used for that purpose or is used for that purpose within six months of the date of receipt or such further period as may be reasonable in the particular circumstances of the case.

(2) In sub-paragraph (1) 'repairs and improvements' means any of the following measures undertaken with a view to maintaining the fitness of the dwelling for human habitation or, where the dwelling forms part of the dwelling, any part of the building containing that dwelling-

...

(f) provision of facilities for preparing and cooking food."

It will be noted that the present legislation specifically excludes "facilities for storing".

What is the purpose of a cupboard or refrigerator? Miss Idris contended that their function was simply to store, and as storing no longer featured in the definition of "repairs and improvements" giving rise to a qualifying loan, the interest on that part of the loan applicable thereto did not constitute housing costs for the purposes of calculating entitlement to income support. The new legislation had deliberately excluding "storing" and effect must be given to this change.

Of course, storage is a necessary preliminary step towards preparing and cooking food, and in a broad sense it could be said to be "facility" for preparing and cooking food. It facilitates the process of preparing and cooking and, looked at that way, it could be argued that receptacles for storage were simply facilities within the statutory provision. But, if that broad approach is to be adopted, where does it stop? Is the provision of a garage to accommodate a car with which for transport home foodstuffs purchased in the shops a facility for preparing and cooking food? In my judgment, any wide interpretation, such as this, is quite unjustified. As is clear from the subtle change in the legislation, the definition of what constitutes "repairs and improvements" must be construed strictly, and facilities for preparing and cooking food are not to be extended to include facilities for storing. For "storing", although in practical terms essential to "preparing and cooking", is still a distinctly separate process. Moreover, storing is something which may arise after, as well as before, cooking. Items that have been cooked often need to be stored. Accordingly, I am satisfied in the present case that the three cupboards and the refrigerator were facilities for storage, and not facilities for preparing and cooking food, and as such fell outside paragraph 16 of Schedule 3.

But had I thought otherwise, I am satisfied that that part of the loan applicable to the purchase of the refrigerator would in any event not have constituted a qualifying loan. Paragraph 16 restricts qualifying loans to those taken out for the purpose of "carrying out repairs and improvements to the dwelling occupied as the home". Manifestly, the "repairs and improvements" are restricted to activities integral to the premises, and if a refrigerator were otherwise to qualify, it would still have to be a fixture within the dwelling. I agree with what was said in CIS/363/1993 at paragraph 3:

"I take the view that the provision of domestic appliances of the type relevant here can be for the purpose of carrying out repairs or improvements to a dwelling only if the appliances become fixtures of the dwelling."

Although that case referred to the old legislation, I think it is equally applicable to the new and there is nothing to suggest that in the present case the refrigerator was a fixture. But in any event, I am not satisfied that a refrigerator can constitute a facility for preparing and cooking food within the narrow definition of paragraph 16(2)(f).

It follows from what has been said above that, by allowing as housing costs the interest payable on that part of the kitchen improvement loan applicable to the three cupboards and the refrigerator, the tribunal erred in point of law. I must therefore set aside their decision and direct that the appeal be reheard by a differently constituted tribunal, who will make a recalculation of the claimant's entitlement (if any) to income support on the basis that the loan interest in question is not eligible to be treated as housing costs.

I allow this appeal.

Date: 1 August 1997 (signed) Mr. D. G. Rice

Commissioner