UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_984_2002 (16 May 2002)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's File No.: CIS 984 2002

1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.
2. 1. The decision of the Workington appeal tribunal under reference U/44/238/2001/00176, held on 28^th June 2001, is erroneous in point of law.
3. 2. I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
4. 3. My decision is that suggested by the Secretary of State which is that 'the claimant is not disentitled from receiving income support on capital grounds for the claim beginning on 14^th November 2000'.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. The Secretary of State supports the appeal and invites me to give a decision favourable to the claimant. In view of this concession, I have not invited the claimant or her representative to respond to the Secretary of State's observations.
6. In granting leave, the district chairman asked for the appeal to be heard urgently because the issue raised was of considerable importance and general interest.

The issue

7. The issue in this case is whether money held by the claimant's solicitor pending quantification of the statutory charge to the Legal Services Commission was the claimant's capital for the purposes of calculating her entitlement to income support. The Secretary of State treated the money as the claimant's capital and the appeal tribunal dismissed the appeal against that decision.
8. Money held by a solicitor for a client is the client's money and counts as actual capital for the purposes of entitlement to income support. See the decision of the Court of Appeal in Thomas v Chief Adjudication Officer, reported as R(SB) 17/87.
9. However, the reasoning in that case does not apply to money that is held by a solicitor and which is subject to the quantification and deduction of the amount of the statutory charge under section 10(7) of the Access to Justice Act 1999. Until that action has been taken, it is not possible to identify any particular amount as the claimant's capital. It is not part of the claimant's capital for the purposes of regulation 46 of the Income Support (General) Regulations 1987. Nor is any part of the money available to the claimant on application for the purposes of regulation 51(2).
10. Another way of analysing the matter is to treat the statutory charge as an incumbrance for the purposes of regulation 49(a)(ii). There is some support for that in the decision of the Commissioner in CIS/368/1993, in which the Commissioner treated as an incumbrance a solicitor's undertaking to a client's bank as to the holding of part of the client's money held by the solicitor.

Summary

11. I allow the appeal and substitute the decision suggested by the Secretary of State for the one given by the tribunal. It deals only with the claimant's capital and its effect on the decision from the date of claim. The Secretary of State must now consider other aspects of entitlement. That decision will carry the right of appeal to an appeal tribunal, if the claimant is dissatisfied with it.

Signed on original

Edward Jacobs Commissioner 16th May 2002