UK Social Security and Child Support Commissioners' Decisions

 


CH 4972 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. The claimant and appellant is appealing with my permission against the decision of the Bournemouth appeal tribunal on 4 February 2002 under reference U 03 188 2001 04885.
3. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.
4. I held an oral hearing of this appeal in London on 18 June 2003. The claimant was represented at the hearing by Mr David Ward of Bournemouth CAB. The respondents, Bournemouth Borough Council, were not represented.
5. I deal with the appeal shortly because, in the absence of any argument to the contrary by Bournemouth Borough Council, I agreed with Mr Ward at the oral hearing that his client succeeded on at least one point of the issues raised by him. This is that the question of any period during which the property in France should be excluded from the assessment of the appellant's capital under paragraph 25 of Schedule 5 to the Housing Benefit (General) Regulations 1987 (and the relevant equivalent in the Council Tax Benefit (General) Regulations 1992). While the Council had argued in writing that it had taken this into account, and it may have done so, there was no evidence that the tribunal had considered the application of paragraph 25 at all. In particular, given the facts of the case, attention to paragraph 25 required the tribunal to consider whether a period of longer than 26 weeks was appropriate. That would require it to take evidence form the claimant and hear submissions from his representative. There is no indication in any part of the record of the tribunal that this was done. Accordingly, as I indicated orally to Mr Ward, the appeal must be allowed and the decision of the tribunal set aside. The new tribunal will need therefore to consider the application of paragraph 25 to the case. Is it reasonable in all the circumstances to exclude the capital value of the property from the claimant's capital for more than 26 weeks, and if so for how much longer?
6. As neither Mr Ward's client nor the Council were at the hearing, I was unable to take any decision other than to refer the matter back to a new tribunal. I therefore invited Mr Ward to make submissions on any point on which he wanted the new tribunal directed.
7. He raised with me the issue of the value of the property in France. There had been a dispute before the tribunal about what value should be put on his client's French property. Should it be the French value or the British value, or perhaps some other neutral value? Mr Ward stated that the evidence put to the tribunal was that the French value was about £5,000 (in the sterling equivalent of what were then still French francs) while a British offer (never completed) was £15,000.
8. The relevant rule is regulation 42 of the Housing Benefit (General) Regulations 1987. This reads, so far as relevant:

Capital which a claimant possesses in a country outside the United Kingdom shall be calculated -

(a) in a case where there is no prohibition in that country against the transfer to the United Kingdom of an amount equal to its current market value … at that value…

less, where there would be expenses attributable to sale, 10 per cent and the amount of any incumbrance secured to it.

As I commented at the hearing, this rule is common to the capital-related benefits and is also found in the same terms, for example, in Income Support (General) Regulations 1987, regulation 50 and Jobseeker's Allowance Regulations 1996, regulation 112.

9. Mr Ward submitted that that regulation meant what it said. The French property should be valued at the current market value in France, not the United Kingdom price or that, say, in New York if those were different. If his client's property has a French market value, but a higher price could be obtained by marketing in Britain (or anywhere else other than France), the rule requires only the French value. I think that must be right. That is what the words say. The value is the "current" market value. That, together with the short period allowed under paragraph 25 in most cases for a sale, suggests a local sale at the local "open market sale" price at the date of claim or decision, not a sale at the best price that could be obtained at some later time by an international marketing effort.
10. It may be that this rule needs reconsidering to take account of British values in the light of the very fluid market in all forms of asset within the European Union and in particular the Euro zone and the extensive foreign property holdings of the British. But that would require a different rule to that in regulation 42. I cannot read into regulation 42 the interpretation placed on it by the Council to justify it using what it said was the British value of the French property. I therefore direct the new tribunal to find and apply the French value of the property at the relevant times.
11. I do not need to deal with any other aspect of the decision or appeal. However, I note that there was some dispute about the evidence and forms of evidence before the previous tribunal. The appellant now has a chance to obtain any necessary translations and clarifications he may think necessary to put the full evidence before the new tribunal. I direct that he do so as soon as possible, and not later than six weeks from the date of issue of this decision.

David Williams

Commissioner

18 June 2003

[Signed on the original on the date shown]