UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CPC_3226_2005 (10 January 2006)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(i) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Blackpool appeal tribunal, held on 13 July 2005 under reference U/06/064/2005/00560, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is the housing costs in respect of the claimant's mortgage are not to be on his award of a state pension credit, because the loan was incurred during a period when, retrospectively, he was entitled to the state pension credit.

The issue and how it arises

2. The issue in this case is whether housing costs in respect of a mortgage may be met under an award of a state pension credit if the costs were incurred at a time when the claimant was not entitled to a credit, but which is later covered by the period of an award.
3. The claimant took out a mortgage on 13 April 2004. At that time, he had not claimed and was not entitled to state pension credit. Subsequently in January 2005, he claimed state pension credit and asked for an award from 19 January 2004. The credit was awarded, but the housing costs in respect of the mortgage were not met as part of the award.
4. The Secretary of State relied on the provisions of Schedule II to the State Pension Credit Regulations 2002. Paragraph 5(2) provides that housing costs are not met 'where the loan was incurred during the relevant period'. Paragraph 5(4) defines 'relevant period':

'The "relevant period" for the purposes of this paragraph is any period during which the person to whom the loan was made-

(a) is entitled to income support, income-based jobseeker's allowance or state pension credit; or

(b) has a partner and the partner is entitled to income support, income-based jobseeker's allowance or state pension credit;

together with any linked period, that is to say a period falling between two periods separated by not more than 26 weeks in which one of the heads (a) or (b) above is satisfied.'

5. The claimant appealed against that decision and the appeal was allowed. The tribunal decided:

'Entitlement to a State Pension Credit depends on a claim being made for it. Therefore at the date the mortgage was taken out there was no entitlement as there had been no claim. The mortgage was not taken out during the "relevant period" and payment of housing costs was not precluded by reason of para 5 of Schedule II.'

6. The Secretary of State applied for leave to appeal on the ground that the tribunal had misdirected itself in law. The Secretary of State's representative argued that a mortgage was incurred during the relevant period if the claimant was subsequently and retrospectively awarded a state pension credit in respect of that date. A district chairman gave the Secretary of State leave to appeal and the case was referred to me for case management directions. The submissions are now complete.

The submissions on the appeal

7. The Secretary of State's representative accepted that there can be no entitlement to a state pension credit without a claim. However, he argued that entitlement on a claim could be established retrospectively. He argued for this interpretation by reference to the language of paragraph 5, the structure of paragraph 5, and the linking period provision. As to the language, he argued that the natural meaning of the language of paragraph 5 included the possibility that a mortgage might be incurred during a relevant period retrospectively. As to the structure of paragraph 5, he argued that paragraph 5(4) defined the relevant period by reference to the period of the claimant's entitlement to state pension credit, not by reference to the loan. As to the linking period, he pointed out that the period of 26 weeks envisaged retrospective operation – a mortgage when taken out after the claimant ceased to be entitled to one of the listed benefits would fall within the linking period if the claimant were subsequently awarded one of the benefits.
8. In a later submission, the representative added a further argument relating to the normal operation of a claim for benefit. Suppose, he argued, that a claimant claimed a state pension credit and then took out a mortgage before the claim was decided. If a pension credit were later awarded from the date of claim, surely the loan would be incurred during the period of entitlement, although no award had been made at that stage?
9. The claimant was represented by a firm on solicitors. Their argument was:

'It is our client's position that the mortgage was not taken out during a relevant period as our client was not entitled to Pension Credit at the time he took out the mortgage. Our client had not applied for Pension Credit and therefore there was no entitlement to Pension Credit at the time when the mortgage was taken out. In the circumstances therefore our client disputes that the decision was erroneous in law and would ask the Commissioner to decide accordingly.'

Conclusion

10. I accept the arguments of the Secretary of State. With respect to the claimant's solicitors, they have stated his position on the appeal but they have not put forward any arguments in support of that position or responded to any arguments on interpretation put by the Secretary of State.
11. The provisions of Schedule II have to be interpreted and applied in the context of the provisions for claiming a state pension credit and adjudicating in respect of claims. Like many benefits, a claim for state pension credit may be made in respect of a past period. The conditions of entitlement have to be applied to the circumstances obtaining at the time covered by the award. Any of the claimant's relevant circumstances may have changed during the period for which the claim is made. The decision on the claim must reflect the circumstances as obtaining at different times. That may be advantageous or disadvantageous to the claimant. Either way, the conditions of entitlement have to be applied to the circumstances obtaining at particular times within the period of the claim. They cannot be interpreted or applied differently on the random chance that they occurred or changed before the date when the claim was made. The provisions governing housing costs that may not be met are no different in this respect from any of the conditions of entitlement. The language in which they are drafted is no different, neither is their interpretation, nor is their application.
12. The question posed in the Secretary of State's later submission shows the effect of refusing to allow the relevant period to be established retrospectively. If housing costs could be met in the circumstances set out by the representative, the result would be absurd and arbitrary. That shows that the interpretation sought by the claimant is not an appropriate one for the legislation.

Disposal

13. I allow the appeal. The tribunal misdirected itself on the interpretation and operation of paragraph 5 of Schedule II. I set its decision aside and substitute the decision that it should have given, which is to confirm the decision made by the Secretary of State.

Signed on original on 10 January 2006

Edward Jacobs Commissioner