UK Social Security and Child Support Commissioners' Decisions

[1998] UKSSCSC CIS_15936_1996 (21 May 1998)


 


MJG/SH/CM/9

Commissioner's File: CIS/15936/1996

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

1. I allow the claimant's appeal against the decision of the social security appeal tribunal dated 3 May 1996 as that decision is erroneous in law and I set it aside. My decision is that (as from 13 October 1995) the claimant is not disentitled to Income Support by possessing capital above the prescribed limit, nor is her capital such as to require attribution to her of "tariff" income. The adjudication officer should forthwith assess and award the claimant's Income Support on that basis. Any difficulty etc. can be referred to me or to another Commissioner for Direction or Supplemental Decision.
2. This is an appeal to the Commissioner by the claimant, a widow aged 73 at the time of the tribunal proceedings. The appeal is against the unanimous decision of a social security appeal tribunal dated 3 May 1996, which dismissed the claimant's appeal from a decision of an adjudication officer issued on 21 November 1995 to the effect that the claimant's "income support falls to be reduced by £15 per week tariff income.".
3. That tariff income was said to be derived (under regulation 53 of the Income Support (General) Regulations 1987, S.I. 1987, No. 1967) from capital of the claimant being her share (possibly one-third) in a dwelling house which she owned together with her daughter and son-in-law but which she did not live in from 12 December 1994 onwards.
4. The capital was valued under regulation 52 of the 1987 Regulations as amended from 2 October 1995 by S.I. 1995, No. 2303. The claimant's one-third share was valued simply as one-third of the actual net value of the property as a whole. That net value was £17,936.83 of which the claimant's one-third share was valued at £5,381.05. There should of course been a 10% deduction also for expenses of sale under regulation 49 of the 1987 Regulations.
5. However in the Common Appendix to this and the other two decisions in cases which were heard before me together with this one at oral hearings the last being on 15 May 1998, I have held that the 1995 Amendments to regulation 52 of the 1987 Regulations are ultra vires and therefore void.
6. The practical result is that the version of regulation 52 in force before the purported amendments in 1995 is still, in my judgment, the relevant regulation. That means that the valuation must be according to the principles enunciated by the Court of Appeal and a Tribunal of Commissioners in decisions on file CIS/391/92 (Palfrey) and CIS/417/92 (Dowell). Because of the concession made by Miss Perez, on behalf of the adjudication officer, at the hearing on 15 May 1998 (referred to in the Common Appendix), the practical result is as stated in para 1 of this decision.
7. If there is any difficulty in the implementation of this decision or otherwise it can be referred to me or to another Commissioner for direction or supplemental decision.

(Signed) M J Goodman

Commissioner

(Date) 21 May 1998