UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CIS_20038_1997 (12 December 1997)

SJP/SH/CW/3

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/20038/1997

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER S J PACEY

Claimant :

Tribunal :

Tribunal Case No :


 


1. This is an appeal by the claimant's appointee (his father) against the decision of the Birkenhead social security appeal tribunal held on 24 September 1996 and relating to entitlement to a severe disability premium ("SDP") pursuant to paragraph 13 of Schedule 2 to the Income Support (General) Regulations 1987.
2. The conditions for entitlement to SDP include the condition that the claimant should have no "non-dependants" residing with him or her: paragraph 13(2)(a)(ii) of Schedule 2 to the 1987 Regulations, and regulation 3 of those Regulations provides for the definition of "non-dependant." That definition has been amended several times, from 10 April 1989.
3. Regulation 3(1) defines "non-dependant" as "any person ... who normally resides with a claimant". A list of exceptions is provided in what has now become regulation 3(2) (2A)  and (2B). Regulation 3(4) provides that:

"For the purposes of this regulation a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area but not if each person is separately liable to make payments in respect of his occupation of the dwelling to the landlord."

4. The substantive issue before the tribunal was whether the claimant normally resided with a non-dependant. The tribunal found against the claimant on the basis that he and the person concerned shared a kitchen and were thus caught by the definition in regulation 3(4). By my leave the claimant appeals from that decision. There was some uncertainty as to the date of the application for leave. I found special reasons for accepting the late application for consideration and determination. That accounts for some of the delay in this case. The appeal is not supported by the adjudication officer now concerned, whose place has been taken by the Secretary of State's representative.
5. The adjudication officer contends that the tribunal erred in law in failing to consider the possible application of paragraph 3(2A) of the General Regulations. As is apparent from the decision of the tribunal and the grounds of appeal, however, this part of regulation 3 was never in issue before the tribunal. I am obliged to the claimant's representative for his candour: he says of regulation 3(2A) that "It is not and never has been contended that this regulation has any application to this case. I do not agree that the tribunal erred in law in failing to consider it, notwithstanding their inquisitorial jurisdiction, since they were entitled to rely on the informed representations made to them in identifying the points at issue." I unhesitatingly accept the observations of the representative as being an entirely proper and responsible reflection of the limitation of the tribunal's inquisitorial function. In consequence I do not accept the submission of the adjudication officer which does not address the point at issue.
6. It is argued on behalf of the claimant that regulation 3(4) "does no more than set out a necessary but not sufficient precondition for people to be treated as 'residing together' so the fact that a kitchen is shared is not conclusive." It is acknowledged that the word "household" does not appear in regulation 3 but argued that the regulation still requires that people "reside together" which, in turn, involves consideration of whether there are separate households and whether members of any such households reside together. It is submitted that the tribunal erred in law in considering what was said by the House of Lords in the Bate case given that that case did not encompass the present situation of two separate families inhabiting the same building.
7. It is readily apparent from the terms of the tribunal's decision that they accepted that the claimant and the other person concerned (a Mrs Barrett) lived in separate households but that they went on to make it clear that the concept of "household" was one alien to regulation 3 and, therefore, by implication not determinative. They drew support from what was said, of "resides with" in Bate, to the effect that that phrase "seems to me to mean no more than that the claimant and the other person live in the same residence or dwelling." Regulation 3 is of particular importance in providing a set of definitions and close regard, then, must be had to its wording. When the tribunal said that "household" was not a word that appeared in regulation 3 I think it is implicit that they had in mind regulation 3(1) and (4). "Household" is referred to in (2) and (2A) but, as I have indicated, those provisions were not in issue before the tribunal. That the concept of "household" nowhere appears in 3(1) or 3(4) cannot easily or reasonably, in those circumstances, be ignored. A more simple criterion is used, that is to say one of normal residence. The tribunal, then, in my view were quite right to have regard to that criterion. Nor do I accept that they erred in law in having regard to what was said in Bate in the House of Lords. The tribunal quoted from the leading judgment in that case, that of Lord Slynn. He went on to say that "There is no need to read into the phrase 'resides with a claimant' the qualification that the household has to be that of the claimant or that the dwelling must be one in which the claimant has the legal interest and that the other person is there in a subordinate position (it is not his household) or without any legal interest before that person can reside with the claimant. ... The phrase 'resides with the claimant' thus includes a situation where the household in a broad sense is that of the claimant ... and also where it is that of the other person." Lord Slynn went on to refer to regulation 3(4) as giving an indication of the nature of "residing with" without expressly or by reasonable implication reading into regulation 3(4) any concept of "household." Notwithstanding that the circumstances in Bate were not identical to those in the instant appeal the tribunal were in my judgment right to extract from the Bate case matters of principle of general application and certainly eminently applicable to the instant appeal.
8. The tribunal were, then, in my judgment correct in their decision as a matter of law. That decision, to my mind, was one reasonably open to them as a matter of fact in the light of the evidence before them: the submission of the adjudication officer to the tribunal had recited that it had been asserted, albeit in connection with an appeal by the claimant's father, by the same welfare rights organisation that represented the claimant that he resided with the person whom the tribunal found to be a non-dependant. Similarly there was before the tribunal a copy of an income support claim form, on behalf of the claimant through his appointee, in which he indicated that Mrs Barrett lived with him. The phraseology of the relevant question on that form clearly reflected the terms of regulation 3(4). That claim form was dated 14 February 1994 but there was nothing to indicate that the situation was materially different for any period in issue before the tribunal.
9. I do not, then, consider that the tribunal erred in law and in consequence dismiss this appeal.

(Signed) S J Pacey

Commissioner

(Date) 12 May 2000