UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CIS_1068_2003 (09 July 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Stoke appeal tribunal, held on 10 October 2002 under reference U/04/049/2002/01442, 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 Mr Commissioner Bano. The Secretary of State supports the appeal, but not in a way that is to the claimant's advantage.

The issue

3. The issue in this case is whether the claimant has eligible housing costs that can be included in the applicable amount for the purpose of calculating his entitlement to income support. This issue turns on whether the claimant satisfies the condition in paragraph 4(10)(b) of Schedule 3 to the Income Support (General) Regulations 1987. That comes down to this question of fact: did he move house 'solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged 10 or over who are part of the same family as the claimant'?

The background

4. Before the move, the claimant was living in a property that he owned and on which there was no mortgage. In other words, he had no eligible housing costs. He lived there with his wife and four children, two boys (aged 12 and 13) and two girls (aged 6 and 10). The house had three bedrooms. The boys had a room each, which is what they wanted. The two girls shared with their parents. One of the bedrooms was very small, especially as the headroom of the stairs projected into it. The tribunal found that this room could not accommodate two beds. I am prepared to accept that. It would be possible to have used bunk beds, but they would have blocked the light from the window. So, for practical purposes the room could only accommodate one bed.
5. The claimant gave his reasons for the move to a larger property. They were listed by the tribunal. (a) The children were not getting on with each other. (b) His wife objected to the girls' behaviour when sharing a bedroom with their parents. (c) He wanted to provide separate bedrooms for the girls, one of whom was 10.

The tribunal's reasoning

6. The tribunal's reasoning was that the original property could have accommodated the family and provided separate sleeping arrangements for children of the opposite sex who were 10 or older without the need for moving. One possible arrangement was for the boys to share one room, with the elder girl in the smaller room and the younger girl sharing with her parents. The other possibility was the same, but with the younger girl sharing with her brothers.

R(IS) 5/01

7. This decision of Mr Commissioner Mesher is relevant to this appeal. His reasoning was confirmed on appeal by the Court of Appeal in Saleem v Secretary of State for Social Security, which is reported along with the Commissioner's decision.
8. The tribunal found that the claimant had moved house in order to obtain more spacious accommodation generally. Mr Mesher decided that the tribunal was entitled to come to that conclusion on the evidence. On appeal to the Court of Appeal, the claimant argued that the test was an objective one. The court rejected that argument and confirmed the Commissioner's subjective approach (paragraph 19):

'It was necessary to focus on the reason for the change of home. If the operative reason for the change was not the need to provide separate sleeping accommodation for children of different sexes of ten or over, the condition would not be met. … If the sole or exclusive reason for the change of home is the need to provide separate sleeping accommodation for children of different sexes aged 10 or over, the condition would be met even if the new home selected incidentally carried other benefits for the family.'

9. The claimant argues that he is entitled to succeed on a subjective test.
10. Of course, I accept the authority of the Court of Appeal's decision. But the passage I have quoted has to be interpreted in the context of the case before the Court of Appeal and in the context of the legislative language.
11. The question is: did the claimant move house 'solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged 10 or over who are part of the same family as the claimant'? The reason for the move is only one part of the condition. The Court of Appeal concentrated on that aspect, because the claimant had failed on this point before both the tribunal and the Commissioner. However, the significance of the word 'need' has to be considered. If the test were solely a subjective one of the claimant's intention, the word 'need' would be redundant. That cannot be right. Take this example. A claimant lives with twin children aged 10. One child is a boy; the other is a girl. Their house has only two rooms designed for use and used as bedrooms, but it has several other rooms that were designed for other purposes, such as a study and store room, which are standing empty. Any of those rooms is suitable in all respects to be used as a bedroom. The claimant forms the genuine belief that a change of home is necessary in order to provide each child with a separate bedroom. The rationality of a claimant's view is relevant to the question of whether it is genuinely held. But assuming that it is genuinely held, is that sufficient to satisfy the condition? Even though there is objectively no need for extra space? If so, the word 'need' has effectively been read out of the condition.
12. It is possible to give the word 'need' a meaning while accepting the Court of Appeal's decision on a subjective reason for the change of house. This can be done by taking the condition in two stages. The first stage is to ask: is there a need for separate accommodation? If there is not, the condition is not met. If there is, the second stage is to ask: was that the claimant's sole or exclusive reason for the change of home? If it was not, the condition is not met. If it was, it is met.

Did the tribunal go wrong in law?

13. No, it did not.
14. The tribunal's reasoning emphasised that there was no need for a change of home in order to provide appropriate sleeping arrangements for the children within the terms of paragraph 4(10)(b). It came to the conclusion there was no need. It was entitled to come to that conclusion. Its reasoning is rational and persuasive. Given that conclusion, the claimant's subjective motivation was irrelevant.

Conclusion

15. The claimant's decision to move was a sensible one from the point of view of accommodating his family. However, the condition that has to be satisfied for his housing costs to be eligible is very narrow. He does not satisfy it. So, his housing costs are not eligible.
16. The tribunal came to the correct conclusion for the right reason. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 4 July 2003