Decision No:  C5/08-09(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Application for leave to appeal and resultant
appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 14 August 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave with respect to an application by the claimant to appeal against a decision of a tribunal sitting in Lurgan on 14 August 2007 (the tribunal) and move to determine the resulting appeal.

2.	The Department has submitted two sets of comments on the application and supported it.  Both parties have consented to the application being treated as an appeal and any question arising on the application being determined as if it arose on appeal and, having regard to the very full comments from each side on the issues arising, I consider it appropriate for me so to treat the application.  In the original application, the claimant’s answer to an enquiry whether an oral hearing was requested was ambiguous but such a request, if it existed, has not been pursued and, in any event, I am wholly satisfied, having regard to all the points already fully made, that the proceedings can properly be determined without a hearing.

3.	I set aside the tribunal’s decision which I determine is in error of law, and return the appeal to a new tribunal for a fresh hearing.

	The issue

4.	The claimant, living in rented accommodation and in receipt of income support (IS), from July 1999 owned the property in which his parents lived following a transfer of it to him.  Following his father’s death, the appellant’s mother moved from the premises seven years later, leaving the premises unoccupied until the appellant himself took up residence in January 2007.

5.	The question is whether paragraph 28 of Schedule 10 to the Income Support (General) Regulations (Northern Ireland) 1987 applies to any or all of the above period when the house was thus empty.  Para 28 reads:

“Any premises which the claimant intends to occupy as his home to which essential repairs or alterations are required in order to render them fit for such occupation, for a period of 26 weeks from the date on which the claimant first takes steps to effect those repairs or alterations, or such longer period as is reasonable in the circumstances to enable those repairs or alterations to be carried out and the claimant to commence occupation of the premises.”

	The tribunal decision

6.	The legally qualified panel member (LQPM) who constituted the tribunal determined that para 28 was inapplicable for the following reasons:

“The house in question was fit for habitation when appellant’s mother left the premises in July.  It was also fit for habitation when [the claimant] took up residence in January 2007.

The property may have required extensive modernisation and/or repairs but I have no evidence before me to suggest the house was not fit [sic] habitation from the date 3 July 2006 when [the claimant’s mother] vacated the premises.”

	Appeal to the Commissioner

7.	The appellant set out several grounds in his application, made first to the LQPM and then to the Commissioner.  Suffice it to say, given the end result of the present appeal, that none of them are demonstrated as arguable errors of law.  In particular, I am concerned with whether the tribunal erred in law so that complaints about how matters were dealt with at an earlier stage of the proceedings are irrelevant.  I also wish to emphasise that the appellant’s offensive remarks about the LQPM, for example that “her brief was to favour the Department as a paid legal member and her report displays every sign of her doing so in a biased fashion”, are wholly without any demonstrated foundation.  The tribunal is an independent adjudicating authority, tasked with making up its own mind what are the facts of an appeal and how the law correctly applies to those facts, and has no connection whatsoever with the Department.  It is in the nature of adjudication that a decision is made in favour of one party or another and such an inevitable resolution of a dispute on the merits in no way exhibits bias, without more.  There is nothing whatsoever in the papers to suggest other than that the LQPM acted throughout in a thoroughly professional and impartial manner.
8.	It is however accepted on behalf of the Department, and I agree with that support, that the tribunal erred in its approach to the legal issue above.  Firstly, the tribunal failed sufficiently to explore all relevant matters at the hearing.  The appellant was present at the hearing but unrepresented.  As the further comments made on behalf of the Department dated 19 February 2008 put it:

“… the tribunal failed, in its inquisitorial role, to establish the condition of the property … during the period in question.  [The claimant] stated that he applied for a Housing Executive Home Improvement grant and … further questions could have ascertained the extent of the improvements needed.  The valuer, when considering the market value of the house stated that “it was in a largely unimproved state, requiring extensive modernisation”.  [The claimant] also stated that his brother, a plumber, and another brother, a joiner, had to do a few jobs to the house.  I submit that the tribunal did not establish whether or not this work was carried out to make the house habitable.  In my opinion this should have been elaborated on and further questions should have been asked to confirm what state the house was in.  I submit that the tribunal did not go far enough to investigate this case.”

9.	Secondly, although the tribunal and the Department focus on whether the house was “fit for habitation”, the statutory question is directed to whether essential repairs or alterations are required in order to render premises “fit for such occupation” “as his home”.  In my judgment, this is a slightly broader test than that encompassed by “fit for habitation”.  Moreover, while the test is an objective one, ie what repairs or alterations would the reasonable man consider were essential to render the premises fit for occupation as his home, nevertheless it is such a consideration by the reasonable man in all the circumstances.  This includes the state of the premises in question and what the ordinary average man would regard as essential before such a property could be occupied as a home; that the mother still lived in the house, where she had lived for years, does not necessarily preclude a state of affairs whereby anyone else coming into the premises to live there as his home would view certain repairs or alterations as essential before the premises were fit for such occupation, and where that would not be unreasonable on an objective overall view of all the circumstances, including a person’s situation as an IS claimant.  On the one hand, the wishes of an affluent person set the standard too high but, on the other, an IS claimant too may expect a minimum acceptable standard of housing in terms of health, safety and modern life.  It is a question of degree, eminently suitable for determination by a tribunal as the finder of fact.

10.	If the new tribunal determines that para 28 is potentially applicable having regard to the above considerations, it must then move on to determine the date “on which the claimant first took steps to effect those repairs or alterations”.  Again, it is a question of fact, having regard to the evidence, as to when the first such steps are taken; but I refer the new tribunal to the annotation at page 664 of volume II of the Social Security legislation 2007 and its discussion of R v Tower Hamlets LBC Housing Benefit Review Board Ex p Kapur, The Times, June 28, 2000, HC, in which case it was held that preparatory steps such as making enquiries about raising finance could count and that a narrow approach to what constitutes the necessary “steps to effect those repairs or alterations” should not be adopted.

11.	The onus of proof lies on the appellant to establish that the disregard of the value of his home is made out under para 28 and for what period.

	Summary

12.	For the above reasons, the tribunal erred in law and its decision must be set aside.  The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that it will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts of this case remains open.

(signed):  L T Parker

NI Deputy Commissioner

26 June 2008