UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CJSA_1458_2002 (17 July 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Whittington House appeal tribunal, held on 26^th November 2001 under reference S/86/156/1998/00661, is not erroneous in point of law.

The appeal to the Commissioner

2. 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. The Secretary of State does not support the appeal.
3. The claimant has asked for an oral hearing of his appeal. I refuse that request. I am satisfied that I can deal with the case properly without one. The claimant gives as his reason that he wants a chance to clarify his points (page 405). That is unnecessary. The claimant has written a number of letters setting out his points in great detail. It is difficult to imagine in what respect they could usefully be expanded or clarified.

Background and update on the history of the case

4. This is a case of a claimant who has tried to be too clever and whose schemes have fallen apart. The claimant realised that there were certain inconvenient features of income support. Inconvenient, that is, to him. They were: (a) income reduces entitlement to income support; (b) so, potentially, does capital; and (c) the capital repayments on a mortgage are not eligible housing costs. So, he came up with a scheme that allowed him, or so he thought, to generate money from letting property in a way that it became neither income nor capital in his hands and which went to reduce the capital element of his mortgage.
5. As far as the letting side of the arrangement is concerned, he relied on a term of the tenancy agreement. Under the agreement, the tenant was liable to pay 'rent'. However, the tenancy also provided that until further notice the rent was to be paid into a particular account and

'These payments and accounts will be (either directly or indirectly) in respect of any of the landlords costs relating to the premises and (either directly or indirectly) in respect of any of the landlords mortgage capital repayments.'

6. The account into which the money was paid was a PEP. The claimant had tried to open it in the name of his mortgagee. However, that is not possible in law. The claimant discovered this when the case originally came before Mr Commissioner Lloyd-Davies as one of a series of appeals in CIS/1527/1999. The Commissioner allowed the appeal and remitted specific questions for rehearing. It is the decision by the appeal tribunal on rehearing that is now before me. It answered all the questions remitted adversely to the claimant. By the time of the rehearing, the claimant had directed that the funds in the PEP account be transferred into another financial instrument.

The procedure at the hearing

7. The claimant has made a number of complaints of unfairness in the procedure at the hearing and the re-organisation of the bundle. I reject them. I accept the clear and credible explanation in the full statement of the tribunal's decision of what happened procedurally, what was done with the papers and why. The record shows a chairman who took every sensible step to ensure that the claimant was not prejudiced. The claimant's correspondence shows that he is someone who applies painstaking attention to detail and who is well able to make his feelings known. If he had felt that he was at a disadvantage, I am sure he would have made that clear at the time. This was a rehearing. The case has been going on for eight years. The claimant could not have been unaware of what the issues were and what material he needed to present his case effectively.

The issues considered at the rehearing

8. The Commissioner directed the tribunal to consider certain issues. See paragraph 19 of the decision. The tribunal limited its consideration to those issues. It was entitled, indeed required, to do that. See Aparau v Iceland Frozen Foods Ltd [2000] 1 All England Law Reports 228.
9. I consider below each of those issues. Before doing that, I must make clear something which the claimant has misunderstood or chosen to disregard. An appeal to a Commissioner lies on a question of law. The issue is whether the tribunal went wrong in law. As far as the facts are concerned, the issue is whether there was evidence that, when analysed rationally, supported the tribunal's findings of fact. An appeal to a Commissioner is not the time to rehearse again arguments on facts that were rejected by the appeal tribunal.

How much was paid into the PEP?

10. The tribunal investigated and made findings of fact on the amounts paid into the PEP by the claimant. Those are findings of fact. There was evidence to support them. The full statement of the tribunal's decision refers to the pages containing the evidence. The statement also refers to the claimant's failure to make full disclosure despite a number of directions and opportunities. He cannot complain abut inadequacies or inaccuracies that are a result of his lack of openness.

Was there a charge over the PEP?

11. The tribunal found that there was not. The fact is that the building society did not give valuable consideration and that is fatal to the existence of a charge. The mortgage advance had been made before the PEP was opened, so that was past consideration. The claimant has suggested some ingenious ways in which consideration might be found. But the fact is that there is no evidence to show that the building society entered into any arrangement with him by which it provided consideration in return for the opening of the PEP.

Was there deprivation of capital?

12. The tribunal held that the deliberate failure to acquire an asset was a deprivation. That was correct in law. The whole of the scheme in this case has only to be stated in order to show that it was a device to take advantage of the income support scheme. In tax law, it would fall under the principle in Furniss v Dawson [1984] 1 All England Law Reports 530. In income support law, it falls under regulation 51 of the Income Support (General) Regulations 1987. The rent payable under the tenancy was within the claimant's control. It was an express term that he could direct the manner of payment. The rent was his income and became his capital just as if the tenant were paying rent under a standing order into the claimant landlord's building society or bank account. If there is any doubt about that, it is confirmed by the claimant's action when he closed the PEP. (He, of course, claims that the PEP was never validly opened, but the fact is that it was opened.) The claimant directed what was to happen to the money. All his protestations about the money not being his and about the nature of the tenant's obligation fall in the face of this blatantly contradictory action which he was able to take.
13. The claimant also tried to rely on regulation 51(3)(a)(ii), which provides that a payment to a third party in respect of a claimant is treated as the claimant's only in so far as it is used for the purposes specified, which do not include capital repayments on a mortgage. The claimant's argument is that the payments into the PEP are excluded from his capital under this provision. This explains the wording of the clause I have quoted from the tenancy agreement. The tribunal rejected that argument on the ground that the payments of rent were not made to a third party but into an investment vehicle that was beneficially owned by the claimant. I agree with that analysis. I would also reach the same result in a different way. Regulation 51(3) does not apply when the money is paid to a third party, rather than to the claimant, at the claimant's own direction.

What was the value of the PEP?

14. This was the last question remitted to the appeal tribunal. The answer was a finding of fact. There is no error of law for the reasons I have given when dealing with the amounts paid into the PEP.

Summary

15. I dismiss this appeal. It is a further attempt to open up issues of fact that have been investigated thoroughly by the appeal tribunal and to rehearse legal arguments that were properly rejected by the appeal tribunal.

Signed on original

Edward Jacobs Commissioner 17th July 2002