UK Social Security and Child Support Commissioners' Decisions

Ewens v. Secretary of State for Social Security [2001] UKSSCSC CIS_15269_1996 (13 February 2001)

R(IS) 8/01

(Ewens v. Secretary of State for Social Security [2001] EWCA Civ 270)

Mr. H. Levenson CIS/15269/1996

8.12.99

CA (Judge & Mance LJJ and Sir Anthony Evans)

13.2.01

Housing costs - former partner's business loans secured on home but claimant not continuously living there after former partner left - whether to be treated as if taken out for the purpose of "acquiring an interest in the dwelling"

The claimant was married and lived with her husband in a house (No. 4) with no mortgage or loan secured on it. However, in 1987 the claimant's husband bought a public house, which included living accommodation, with the help of a loan secured on No. 4. A business account with an overdraft facility was opened, also secured on No. 4. The couple moved to live at the public house and let out No. 4. In 1988 a further business loan was taken out and secured on No. 4. The two loans and the overdraft were in the joint names of the claimant and her husband. In 1990 the claimant and her husband separated: the husband remained in the public house and the claimant went to live at No. 4 with her children. The claimant claimed income support as a lone parent. The adjudication officer included the interest on the two loans and the overdraft within the claimant's applicable amount. A further joint account became overdrawn and in 1994 the claimant rationalised the two loans and the two overdrafts into one mortgage, secured on No. 4. An adjudication officer reviewed the award of income support in relation to housing costs, allowing the interest representing the two loans but not that in respect of the overdrafts. The claimant appealed unsuccessfully to a social security appeal tribunal and then appealed further to the Commissioner. The Commissioner held that the interest on the loans should never have been included in the claimant's applicable amount because paragraph 7(7) of Schedule 3 to the Income Support (General) Regulations 1987 required that the claimant occupied the home at the time the loans were taken out and that the claimant continued to live there after the former partner left. The claimant appealed to the Court of Appeal.

Held, unanimously allowing the appeal, that the requirements of paragraph 7(7) of Schedule 3 to the Income Support (General) Regulations 1987 were satisfied because:

there were bank loans, to which the former partner was party, taken out and secured on the claimant's home;

it was immaterial whether both or either of the claimant and her former partner were living in the home when the loans were taken out;

the claimant's former partner did once live in the home but had left before the claim for income support was made; and

in the weeks to which the income support claim related the claimant's former partner was not paying the interest on the loans and the claimant had to pay it in order to continue living in the home

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. In accordance with the provisions of section 23(7)(a) of the Social Security Administration Act 1992 I set aside the decision made by the SSAT on 19 February 1996. I substitute my own decision. This is that the decision made by the adjudication officer to award income support from 17 July 1990 was made in error of law. The claimant's applicable amount for income support purposes does not include housing costs in respect of interests on the loans to which I refer below. The unfortunate effect of my decision is that the claimant, who had been receiving income support on the basis that some of the interest amounted to eligible housing costs, and who appealed because she wanted more of the interest to be so counted, ends up having none of the interest included. However, as I understand it, the claimant stopped claiming income support in June 1999 and there is no question of recovery of the payments that have already been made. No other aspect of income support entitlement or calculation is before me.
2. I held oral hearings in this appeal on 14 April 1999, 21 May 1999 and 10 November 1999. The claimant herself attended each hearing and at each she was represented by Mr. R. Khubber from the Free Representation Unit. The adjudication officer was represented by Ms. Powick from the office of the Solicitor to the Department of Social Security. I am grateful to all of them for their assistance. I adjourned the hearing of 21 May 1999 because certain facts emerged at that hearing which led me to doubt that there was any entitlement to housing costs at all. This was a new point which had not previously been considered and the parties required time to research and consider the issue. I am particularly grateful to Mr. Khubber for the amount of legal and factual research that he has done. That his argument is not successful is not for any lack of effort or ingenuity on his part.
3. The claimant was born on 30 December 1954 and married in 1983. The couple moved into the house where the claimant now lives and to which I shall refer as No. 4. They owned the property and there was no mortgage or secured loan on it. In 1987 the claimant's husband decided to acquire and run a public house which was at some distance from No. 4 and which had its own living accommodation. I do not know whether the public house business was to be in the husband's name or in both names, but it makes no difference to my decision. In order to set up the business it was necessary to take out bank loans. These were secured, not on the business but on No. 4. On 7 September 1987 a business current account with an overdraft facility was opened. On 29 September 1987 a business loan of £20,000 was taken. At the end of September 1987 the claimant and her husband moved to live at the public house. They retained ownership of No. 4 and rented out the house to students, although I do not have the full details of that arrangement. In April 1988 a small business loan was taken of £4,010. The two loans and the overdraft facility were all secured on No. 4 and there is substantial evidence to this effect in the bundle of papers. For a period in 1989 there were matrimonial difficulties and the claimant moved out of the public house and lived in No. 4 for two months before moving back to the public house. On 14 July 1990 the claimant and her husband separated, her husband stayed living in the public house and the claimant went to live at No. 4, where she has remained ever since. By this time she had two children, who came to live with her, and on 17 July 1990 she claimed income support as a lone parent. On 2 August 1990 the adjudication officer awarded income support from 17 July 1990. At that time the adjudication officer included as housing costs for the purposes of income support the interest on the overdraft and two loans. In about December 1990 the claimant opened another current account, which in due course became overdrawn. It is not clear whether this overdraft was secured, but it is certainly the case that the adjudication officer has never allowed housing costs in respect of the interest on this overdraft. This account, like the others, seems to have been in the joint names of the claimant and her husband. In 1991 the claimant and her husband were divorced. I assume for the purposes of my decision that throughout the relevant period the claimant's husband was either unable or unwilling to pay any of the interest and that payment of the interest was necessary to enable the claimant to continue to live at No. 4.
4. The claimant decided to rationalise her financial position and on 19 December 1994 re-scheduled all of the debts into one mortgage in respect of the total debit balance on that day which was £21,970.55. As a result of this change, the adjudication officer reviewed the award of income support in relation to the amount of housing costs. The adjudication officer decided that the two loans could be included for the purpose of housing costs, but not the two overdrafts. Much of the discussion in the papers and in the hearing before me relates to whether one or both of the overdrafts should be treated in the same way as the loans. Because of the basis on which I have made my decision, it is not necessary for me to express a concluded view on this complicated issue. However, it is clear that the reason given by the adjudication officer at the time for excluding the second overdraft (that it was taken out after the separation) and the reason given by Ms. Powick for excluding both overdrafts (that they were not taken out for specific purposes) are incorrect as a matter of law, and I return to these points below. On review the adjudication officer decided that the claimant was entitled to income support housing costs of £22.54 weekly from 1 July 1995. It is against that decision that on 13 October 1995 the claimant appealed to the SSAT. One of the difficulties in this case is that it has not been possible to work out whether that figure was correctly calculated, but again this is not now an issue on which I have to make a decision. It is clear that the adjudication officer was entitled to review the previous decision. However, I have given in paragraph 1 the decision that, in my opinion, the tribunal should have found that the adjudication officer should have given on review.
5. The tribunal considered the matter on 19 February 1996 and in general terms confirmed the decision of the adjudication officer. The tribunal was obviously disturbed by the inclusion of the two business loans because it commented that these had been treated as eligible "perhaps generously". In pursuit of its inquisitorial or quasi-inquisitorial function the tribunal should have pursued this point. The tribunal seems to have dealt with a complex appeal very sketchily but on 14 June 1996 the chairman of the tribunal granted the claimant leave to appeal to the social security Commissioner against the decision of the tribunal. The appeal was referred to me and I arranged for an oral hearing to be directed.
6. The legal situation is governed by the Income Support (General) Regulations 1987. My references are to the regulations in force at the time of the original claim. There have been subsequent amendments, but none that are relevant to the particular facts of this case or to the legal issues that I have to determine. Regulation 17(1)(e) provides that a claimant's weekly applicable amount is to include any amount determined in accordance with Schedule 3 to the regulations which may be applicable "in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule". In general terms paragraph 7(3) provides that eligible interest (for the purposes of calculating income support housing costs) means the amount of interest on a loan, whether or not secured by way of mortgage, taken out to defray money applied for the purpose of acquiring an interest in the dwelling occupied as the home or paying off another loan to the extent that interest on that other loan would have been eligible interest had the loan not been paid off. Paragraph 7(3A) refers to mortgage payments made under a hire purchase agreements. It is clear that the main purpose of paragraph 7 is to include in the calculation of the income support applicable amount the interest on loans taken out to acquire an interest in the dwelling occupied as the home. However, paragraph 7(7) provides as follows:

"(7) Where a person who was formerly one of a couple or a polygamous marriage-

(a) has taken out, either solely or jointly with his former partner, a loan secured on the dwelling occupied as the home for a purpose other than one specified in sub-paragraphs (3) and (3A); and

(b) has left the dwelling occupied as the home and either cannot or will not pay the interest on the loan,

and, if that person's former partner has to pay the interest on the loan in order to continue to live in the dwelling occupied as the home, there shall be met in respect of the former partner under this paragraph the amount of interest on the loan calculated as if it were a loan taken out for a purpose specified in sub-paragraphs (3) and (3A)."

7. The phrase "dwelling occupied as the home" has a wide definition in regulation 2, but for present purposes "means the dwelling ... normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately ...".
8. The importance of paragraph 7(7) is that it enables housing costs to be included in respect of interest on a loan which was not taken out in order to acquire an interest in the dwelling occupied as the home. Thus it is a special exception to the general scheme. It seems to me that the general aim of this provision is not to protect the financial position of the claimant in itself. A typical situation envisaged is that the home has been used for security for a business loan, that the partner who has probably been running the business and has been paying the interest on the loans (historically usually the man) has left the home and refuses to continue paying the interest. The danger is that the claimant might have to leave the home in which she has been living because the person who has left her refuses to continue making the payments, although the loan was taken out for his business purposes. I am not saying that the wording of the regulation is limited to this situation, and I accept Mr. Khubber's argument that the wording of any provision might have an unintended consequence, but I wish to identify the general context in which this provision is to be seen.
9. As I indicated above, Ms. Powick places particular emphasis on the use of the word "purpose" in paragraph 7(7)(a). She argues that because the overdrafts were not taken out for any specific or identifiable purpose, then they cannot come within the provision. I do not accept this. The phrase to be considered is "purpose other than one specified [above]". The point is that paragraph 7(7) is not limited to purposes identified earlier in the regulations, but that does not mean that there has to be a specified or identifiable purpose. In any event, an overdraft will always have the purpose of making money available.
10. Mr. Khubber placed a great deal of reliance on the decision of Mr Commissioner Sanders in CIS/450/1993. In that case, a married couple owned a manufacturing business in which the wife had 20% of the shares and her husband the balance. They lived in the matrimonial home which they had purchased with the assistance of a mortgage for £60,000. The husband left to live elsewhere, the business got into difficulties and they increased the mortgage by £40,000 to assist the business. The £40,000 increase was taken out ten months after the husband had left the matrimonial home. When the business collapsed, the wife made a claim for income support and the issue was whether income support should include the interest on the £40,000. The Commissioner decided that the events referred to in paragraph 7(7)(a) and paragraph 7(7)(b) need not happen in any particular order, so long as they have both happened by the time that entitlement to income support is being assessed. I accept that decision by the Commissioner, and that is why I have indicated above that the review decision made by the adjudication officer in this case was in error on that point. However, CIS/450/1993 provides no further assistance in respect of the issues in the case before me. Mr. Khubber argues that paragraph 7(7) does not require continuity of occupation, it is sufficient that the home in respect of which the loan has been secured was once occupied by the claimant and that it is sufficient that the former partner (the claimant's husband) left the dwelling at the same time as the claimant, the provision not specifying that he had to have left the claimant in the property. He developed these points in greater detail but I understand this to be the essence of his argument.
11. However, I do not accept that the provision can operate in this way. In my view the provision requires the loan secured on the dwelling occupied as the home to be taken out at a time when the claimant is occupying the dwelling as her home. The claimant has to continue living in that dwelling after the former partner has left. If she leaves with him, she cannot be said to be continuing to live in the home. It is not sufficient that, as Mr. Khubber contends, the claimant resumes living in the home at some time in the future. At one point Mr. Khubber seemed to suggest that if the claimant resumed living in the dwelling on day one and made the claim for income support on day two, then she would need income support to "continue" to live there irrespective of when the former partner had left. However, it seems to me that the provision requires a situation where the claimant continues to live in the dwelling from the time when the former partner leaves. Were this not the case, then the words "to continue" need not be in paragraph 7(7). I do not accept Mr. Khubber's argument that the natural reading of the provision bears the interpretation that he has suggested. Neither am I of the opinion that the result is so unjust or absurd that a strained interpretation need be given.
12. In the present case, the claimant did not continue to live at No. 4 when she separated from her husband. Her husband continued to live at the public house and she resumed occupation of No. 4. It is a question of fact whether in any particular case the claimant continues to live in the dwelling, and I am not suggesting that short breaks for holidays or visits break the continuity of occupation. However, on the facts of the present case, when the claimant went to live with her husband at the public house and No. 4 was rented out to others I do not see how it can be said that she continued to live in No. 4.

Date: 8 December 1999 (signed) Mr. H. Levenson

Commissioner

The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.


 


DECISION OF THE COURT OF APPEAL

Mr. R. Drabble QC & Mr. R. Khubber (instructed by Brighton Housing Trust (Housing Aid and Legal Centre)) for the Appellant.

Mr. J. Maurici (instructed by the Legal Department of the Department of Social Security) for the Respondent.

Judgment (reserved)

LORD JUSTICE MANCE:

13. This appeal from a decision of Mr. Commissioner H. Levenson dated 8 December 1999 raises short points on the interpretation of paragraph 7(7) of Schedule 3 to the Income Support (General) Regulations 1987 (which, although no longer generally in force, is we understand preserved in relation to this case by transitional provisions). The appellant, Mrs. Ewens, married Mr. Ewens in 1983 and they lived until the end of September 1987 at No. 4, Knepp Close, Brighton. They then moved to run the Black Horse public house, retaining and renting out No. 4. On 14 July 1990, they separated and Mrs. Ewens moved back into No. 4.
14. Prior to their move to the Black Horse, the Ewens arranged with Lloyds Bank, first, a business account with overdraft facility for trading purposes and, secondly, a business loan of £20,000 for the purchase of stock and working capital. It was presumably at this time that they both also executed an "all monies mortgage" of No. 4 in favour of Lloyds Bank, securing all present and future liabilities that they might incur to the bank. After the move, in April 1988, they arranged a third facility, a further small business loan in the sum of £4,010. Fourthly, they operated a current account, which they seem to have opened as early as some time in 1987, and which was in credit in 1990 but by March 1993 some £2,222 overdrawn. The liabilities on all these facilities were secured on No. 4 by the previously executed all monies mortgage.
15. On 17 July 1990 Mrs. Ewens made a claim for income support. She claims to have met on that basis such interest as arises from time to time on any of the above facilities. Although no significance attaches to this, in 1994 she took the doubtless sensible step of consolidating the overdrafts and loans and making them subject to a fresh mortgage.
16. The statutory basis of the relevant regulations consisted in ss. 123-4 of the Social Security Contributions and Benefits Act 1992. Under s.123(1):

"Prescribed schemes shall provide for the following benefits (in this Act referred to as income-related benefits")-

(a) income support;

...

(d) housing benefit;"

…

17. Under s.124:

"(1) A person ... is entitled to income support if-

(a) he is of or over the age of 18 ...

(b) he has no income or his income does not exceed the applicable amount;

(c) he is not engaged in remunerative work ...

(d) except in such circumstances as may be prescribed-

(i) he is available for, and actively seeking, employment;

(ii) he is not receiving relevant education.

...

(5) Where a person is entitled to income support for a period to which this subsection applies, the amount payable for that period shall be calculated in such manner as may be prescribed.

(6) Subsection (5) applies-

(a) to a period of less than a week which is the whole period for which income support is payable; and

(b) to any other period of less than a week for which it is payable."

18. The regulations as they were in force at the relevant times provide:

"Interpretation

2(1) In these Regulations, unless the context otherwise requires

...

"dwelling occupied as the home" means the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home ...

Applicable amounts

17. Subject to … a claimant's weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:

...

(e) any amounts determined in accordance with Schedule 3 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule."

...

19. Schedule 3 provides:

"Eligible Housing Costs

1. Subject to the following provisions of this Schedule, the amounts which may be applicable to a person in respect of mortgage interest payments or other prescribed housing costs under regulation 17(1)(e) ... Are-

(a) mortgage interest payments;

...

Basic condition of entitlement to housing costs

2. Subject to the following provisions of this Schedule, the housing costs referred to in paragraph 1 shall be met when the claimant ... is treated as responsible for the expenditure to which that cost relates in respect of the dwelling occupied as the home which he or any member of his family is treated as occupying.

Circumstances in which a person is to be treated as responsible for housing costs

3(1) A person is to be treated as responsible for the expenditure which relates to housing costs where-

(a) he or his partner is liable to meet those costs other than to a member of the same household;

(b) because the person liable to meet those costs is not doing so, he has to meet those costs in order to continue to live in the dwelling occupied as the home and either he was formerly the partner of the person liable, or he is some other person whom it is reasonable to treat as liable to meet the cost; …

Interest on loans to acquire an interest in the dwelling occupied as the home

7. ...

(3) Subject to sub-paragraphs (3A) to (6B) and paragraphs 7A and 7B, in this paragraph "eligible interest" means the amount of interest on a loan, whether or not secured by a mortgage … , taken out to defray money applied for the purpose of-

(a) acquiring an interest in the dwelling occupied as the home;

(b) paying off another loan but only to the extent that interest on that other loan would have been eligible interest had the loan not been paid off.

(7) Where a person who was formerly one of a couple or a polygamous marriage-

(a) has taken out, either solely or jointly with his former partner, a loan secured on the dwelling occupied as the home for a purpose other than one specified in sub-paragraphs (3) and (3A); and

(b) has left that dwelling and either cannot or will not pay the interest on the loan, or has died,

and, if that person's former partner has to pay the interest on the loan in order to continue to live in the dwelling occupied as the home, there shall be met in respect of the former partner under this paragraph the amount of interest on the loan calculated as if it were a loan taken out for a purpose specified in sub-paragraphs (3) and (3A)."

20. The social security Commissioner held that Mrs. Ewens could not claim any part of the interest. It was or is common ground that the interest relating to all four facilities was on loans within the meaning of paragraph 7, and that such loans were all secured on a dwelling (No. 4) normally occupied by her as her home during the weekly periods in respect of which she was claiming. But the Commissioner considered, firstly, that paragraph 7(7) required any relevant loan to have been first secured on that dwelling at a time when she was occupying that dwelling as her home. That would alone exclude interest attributable to the third and probably fourth loans. Secondly, he considered that paragraph 7(7) required "continuity of occupation" by which he meant a situation where the claiming partner had remained on a continuous basis in that dwelling as her (or his) home after and from the time when the other partner had left. That was not the case, where (as here) both partners had left the home in 1987, lived in another home (the public house) until 1990, and finally separated, with the claiming partner only then returning to the original home. On that footing none of the four loans could qualify.
21. Mr. Drabble QC submits that the social security Commissioner's reasoning fails to pay due regard to the scheme according to which income benefits are payable and the definition in regulation 2 of the phrase "the dwelling occupied as the home". Reading that definition in, paragraph 7(7) would provide:

"Where a person who was formerly one of a couple …

(a) has taken out, either solely or with his former partner, a loan secured on the dwelling occupied by the claimant [the former partner] as her home; and

(b) has left that dwelling

and, if that person's former partner has to pay the interest on the loan in order to continue to live in the dwelling occupied by [her as] the claimant as her home, there shall be met in respect of the former partner under this paragraph the amount of interest on the loan calculated as if it were a loan taken out for a purpose specified in sub-paragraphs (3) and (3A)."

22. This reading would on any view suggest that there is no necessary connection between the time of any joint occupation of the home and the taking out of the loan. That was also held by Mr. Commissioner Sanders in a decision dated 17 November 1993 in case CIS/450/1993. There the couple ran a business in which the wife had 20% and the husband 80% of the shares. They separated, with the husband leaving the home. After the separation they increased the mortgage on the former joint home by £40,000 in order to fund their continuing business. Still later the business collapsed and the wife sought income support for inter alia the interest on the increased loan. She succeeded on the basis that there was no temporal connotation in the order in which sub-paragraphs 7(7)(a) and (b) appear. Mr. Maurici for the Crown did not, ostensibly, challenge the correctness of Mr. Commissioner Sanders' decision. But, if it is correct, it follows that there is no need for any loan to have been taken out or secured on the home while the home was a joint home. If it is not correct, there could also be odd results in other cases. Take that of a couple running a public house who buy a second house with a view to their retirement and secure upon it loans to raise money for their public house business. Later, they duly move into the second home, putting a manager into the public house. They then separate, with the husband leaving, and the wife claims income support in relation to unpaid interest on the loans. If Mr. Maurici's submission were accepted, this claim would again have to be refused.
23. Mr. Maurici points out, correctly, that paragraph 7(7) must be read as a whole. So read, he submits, sub-paragraphs (a) and (b) contemplate naturally a joint occupation of a matrimonial home, terminating in the leaving of that dwelling by the non-claiming partner referred to in sub-paragraph (b). Sub-paragraph (b) certainly contemplates that the non-claiming partner will have been in and have left the dwelling at some point. The words "or has died" were added at its end, following a difference between social security Commissioners as to whether a partner who died could be said to have "left the dwelling" within sub-paragraph (b). Their addition did not however specify, at least expressly, that the partner's death must itself have determined any joint occupation of the dwelling. There is nevertheless some attraction in Mr. Maurici's reading if one takes sub-paragraphs 7(7)(a) and (b) in isolation.
24. Mr. Maurici seeks to buttress his reading with the argument that appealed to Mr. Commissioner Levenson - namely that the next phrase "has to pay interest on the loan in order to continue to live in the dwelling" confirms that there must be "continuity of occupation" by the claimant wife from the time when the husband has left until the time she makes her claim.
25. A major difficulty facing Mr. Maurici's submissions is they involve reading the two phrases "the dwelling occupied as the home" in paragraph 7(7) inconsistently with each other and, where the phrase is first used, inconsistently with the definition in regulation 2. It is true that that definition only applies unless the context otherwise requires. But it is still a strong thing to treat the draftsman as having changed horses in mid-paragraph. Nowhere else in the relevant provisions was Mr. Maurici able to find support for a suggestion that "the dwelling occupied as the home" referred to any period of joint occupation of the home as a matrimonial home. In the basic provision of paragraph 7(3), dealing with the standard case of a loan to acquire an interest in the dwelling occupied by the claimant as a home, the phrase is clearly used in its defined sense. In such a case, it is also worth noting there could be no requirement of joint occupation at any time. If a couple living in a public house acquired a potential retirement home, taking out a loan secured upon the retirement house in order to acquire it, and if after separation the wife moved into the retirement house and was occupying it as her home, she could claim income support in relation to the interest cost of the loan without the husband ever having lived there.
26. Mr. Drabble's contention that the phrase "the dwelling occupied as the home" has its defined meaning in each place where it appears in paragraph 7(7) is consistent with the general scheme of the regulations, which looks to the position as it is in any week in respect of which benefit is claimed. This is emphasised by a reading of paragraphs 2 and 3 of Schedule 3 set out above. Paragraph 3 forms the background to and assists to clarify the reference in paragraph 7(7) to having to pay interest on the loan "in order to continue to live in the dwelling occupied as the home". What justifies a claim for income support is responsibility for the relevant expenditure, which in turn exists where the claimant, because of a former partner's failure to meet relevant costs "has to meet those costs in order to continue to live in the dwelling occupied as the home" This demonstrates that the general scheme is concerned not with past continuity of occupation, but rather with the claimant's ability from week to week of claim to continue to live in the dwelling which she is then occupying and on which the interest costs which she claims are secured.
27. In these circumstances, I prefer without hesitation Mr. Drabble's analysis, according to which there is no need for the relevant loan to have been obtained during any past period of joint occupation of the dwelling in which the claimant is at the time of her claim living as her home.
28. Is there then any provision or inference that the claimant must have been living in the dwelling when her former partner left and/or have continued to live there thereafter, up to the time of any claim? For reasons that I have already given, I do not think that the phrase "in order to continue to live in the dwelling occupied as the home" assists Mr. Maurici's argument on this point. On the face of paragraph 7(7), therefore, all that is necessary is that the former partner should have lived in that dwelling and left it at some time, or alternatively have died, and that the claimant should be living there during the relevant week of any claim.
29. It may legitimately be asked, on this analysis, why paragraph 7(7) has any requirement that the other partner should have "left that dwelling" (or have died) at all. I accept that Mr. Drabble's analysis does not provide a wholly satisfactory answer of policy to this point. Suppose that Mr. and Mrs. Ewens had never lived together at No. 4, but had acquired it as a potential retirement home and mortgaged it (as they did) to secure business indebtedness of their public house. When they separated and Mrs. Ewens went (on this hypothesis for the first time) to live at No. 4, and sought to claim income support in respect of interest on the loan secured on No. 4, she would not have been able to show that Mr. Ewens had "left that dwelling". Possibly if he died, she might have been able to satisfy sub-paragraph (b), although it would be arguable that the phrase "or has died" was simply inserted to embrace a more final means of exit from the dwelling. It seems to me probable that, in sub-paragraph (b), the draftsman did restrict his attention to what must on any view be the most typical case, of one partner having left a joint home. Why he did so is another matter. It would on any view be most unlikely that income support should be payable, if the former partner were still residing in the dwelling occupied by the claimant at the time of claim. So some provision that they should be living apart was inevitable. It is certainly conceivable that the draftsman expressed himself more narrowly in this regard than he might have done, had he directed his mind explicitly to all the possible permutations. One amendment to sub-paragraph (b) (the addition of the last three words, themselves not wholly clear, as I have said) was on any view required in the light of experience. I am not persuaded that the possibility, even on Mr. Drabble's analysis, of apparently discrepant results (e.g. the inability to recover income support in the situation just postulated, where there was no period whatever of joint occupation at No. 4) should lead us to interpret sub-paragraph (b) as introducing some general requirement of "continuity of occupation" from the time of the partner leaving until the time of any claim. The effect of any such interpretation would simply be even greater restriction on the scope of income support without achieving any obvious purpose of policy or uniformity.
     
    
30. It seems to me that we should take the requirements of paragraph 7(7) as we find them. They are satisfied in this case because (a) there were bank loans, to which Mr. Ewens was party, taken out and secured on No. 4, it being immaterial whether or not they were taken out while both or either of Mr. and Mrs. Ewens were living there, (b) Mr. Ewens did once live in No. 4 (with Mrs. Ewens, though I express no view as to any need for this), but had finally left No. 4 before Mrs. Ewens made any claims for income support, (c) in the weeks to which Mrs. Ewens's claims related, interest on the loans secured on No. 4 was not being met by Mr. Ewens and (d) Mrs. Ewens had to meet such interest in order to continue living in No. 4 as her home.
31. I would allow the appeal from the social security Commissioner and remit the issue of calculation of the income support to which Mrs. Ewens was on this basis actually entitled to the Secretary of State.

SIR ANTHONY EVANS: I agree.

LORD JUSTICE JUDGE: I also agree.

Order:

32. Appeal allowed with costs subject to detailed assessment.
33. Issue of calculation of appellant's income support to be remitted to the Secretary of State.

3. Legal Services Commission assessment of appellant's costs.

(Order does not form part of the approved judgement)