UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIS_88_2008 (24 June 2008)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14 of the Social Security Act 1998:

The decision of the Cardiff appeal tribunal under reference 188/07/02792, held on 19 September 2007, is not erroneous in point of law.

REASONS
2. The issue in this case is whether the claimant is entitled to housing costs in respect of her mortgage interest payments. Housing costs are not included in an award if the mortgage was taken out while the claimant was receiving income support. When the claimant took out her mortgage, she had neither claimed nor been awarded income support. However, she later claimed and was awarded income support for a period that included that date. I have decided that, in those circumstances, she is not entitled to housing costs.

History and background

3. The relevant facts of his case are very few and not in dispute. The claimant separated from her partner on 1 September 2006, taking her daughter with her. She first lived with her sister, but (with the help of her family) she quickly found a property to buy and a mortgage. The mortgage began on 28 November 2006. She claimed income support on 30 November 2006 and, on the advice of the JobCentre Plus asked for an award from 1 September 2006. Benefit was awarded from that date, but it did not include any amount in respect of interest payable on her mortgage. The claimant exercised her right of appeal in respect of housing costs and opted for a hearing on the papers. The tribunal dismissed her appeal.
4. At the hearing before me, the claimant produced documents telling her that she would receive housing costs in the future. However, as she was later told, these were sent in error and she would not receive her housing costs.
5. The refusal of her housing costs has left the claimant in a difficult position and her house is at risk. She has managed so far on the income support she has been paid, together with child benefit, tax credit and her savings.

The appeal to the Commissioner

6. The district chairman who heard the appeal gave the claimant leave to appeal to the Commissioner. At the application stage, the claimant was assisted by her local CAB, but it no longer acts for her
7. The Secretary of State's representative did not support the appeal and the claimant asked for an oral hearing. A hearing was directed by Mr Commissioner Levenson. It took place before me in the Civil Justice Centre in Cardiff on 23 June 2008. The claimant attended on her own and the Secretary of State was represented by Mr James. I am grateful to both of them for their clear and succinct submissions.

How the problem arises for the claimant

8. Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.
9. Section 124(1) of the 1992 Act provides:

'(1) A person in Great Britain is entitled to income support if-

…

(b) he has no income or his income does not exceed the applicable amount.'

10. Section 135 provides:

'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.

(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'

11. The claimant's entitlement depends on a comparison of her actual income and her applicable amount. That amount consists of a number of elements, one of which may be mortgage interest payments: regulation 17(1)(e) of, and Schedule 3 to, the Income Support (General) Regulations 1987. However, mortgage interest is not always included. They are not included if the mortgage was taken out during the relevant period: paragraph 4(2) of Schedule 3. Paragraph 4(4) defines 'relevant period':

'(4) 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, or

(b) is living as a member of a family one of whom is entitled to income support,

together with any linked period, that is to say a period falling between two such periods of entitlement to income support.'

The arguments of the parties

12. In the written observations on the appeal, the Secretary of State's representative relied on my decision in CPC/3226/2005, which dealt with the equivalent provisions for state pension credit. I decided that a retrospective decision on entitlement for a particular period prevented the inclusion of housing costs in the calculation of the claimant's award of state pension credit. The representative argued that this was consistent with the language of the legislation, because:

•    the legislation clearly envisages circumstances in which a period could become a relevant period retrospectively, for example if there was a gap of less than 26 weeks;

•    the words 'is entitled' were not qualified and naturally referred to any period during which there was entitlement;

•    in other areas of income support law, decisions can have retrospective effect.

Mr James adopted that analysis at the hearing.

13. On behalf of the claimant, the CAB argued that housing costs could be taken into account if the claimant subsequently became entitled to income support in respect of the period in which her mortgage was taken out. The representative also complained that the claimant had been advised to ask for her award to begin from 1 September 2006, although in the circumstances of her case that was to her detriment.

Analysis

14. The relevant legislation, which I have set out, is worded in the present tense. It says 'is entitled to income support'. The chairman of the tribunal noted that it does not say 'becomes entitled'. However, legislation on entitlement to benefit is generally worded in the present tense. But it has to be applied in the context of claims that are made. A claim is always made for a period. That period will almost always relate to the future, as it did in this case. It may also, as it did in this case, relate to the past. The decision on the claim applies the conditions of entitlement to each day in the period covered by the claim down to the date of the decision. Thereafter, the claimant's entitlement is subject to change on supersession if there is a change in her circumstances relevant to the conditions of entitlement. The present tense has to be applied to each day, past, present and future, in respect of which the claimant's entitlement has to be considered.
15. As I explained in CPC/3226/2005 in respect of the state pension credit provision:

'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.'

The remedy for poor advice

16. A claimant who has been poorly advised by the officers at JobCentre Plus may be entitled to compensation. That is outside the jurisdiction of the appeal tribunal and of the Commissioner.
17. The claimant must decide whether to seek compensation. She told me that the officer who advised had been very helpful and she had told her in full about her circumstances. Despite that, she was given advice that was to her detriment. However, even if she was poorly advised, it is unlikely that any compensation will equal the amount of housing costs that she would otherwise have been entitled to.

Disposal

18. The tribunal correctly interpreted the legislation and did not go wrong in law. I must dismiss the appeal.

Signed on original on 24 June 2008

Edward Jacobs Commissioner