R(IS) 10/93

Mr. V. G. H. Hallett 	CIS/375/1992
17.11.92
Housing costs - home larger than required by claimant and his family - whether inability to sell the home and a consequent inability to buy an alternative home is relevant to the “availability” of suitable alternative accommodation
The claimant, a married man with two dependant children, bought his house for £175,000 in 1988 with the assistance of a mortgage of £65,000. Income support was awarded from 4 October 1990 and on 16 July 1991 the adjudication officer decided that the claimant’s housing costs would be nil from 4 October 1991 because:
(1)	the home was larger than is required by the claimant and his family; and
(2)	it is reasonable to expect the claimant and his family to obtain alternative accommodation;
(3)	the housing costs are regarded as excessive.
The claimant appealed to a social security appeal tribunal which allowed the appeal. The tribunal’s reasons for allowing the appeal were:
“although there are homes for sale in his area, they are not in practical terms available to the claimant since, despite all his best efforts, he cannot sell his home, and therefore he does not have the resources to purchase a new home.”
The tribunal decided that the claimant’s inability to sell his home was a “relevant factor” under paragraph 10(7) of Schedule 3 to the Income Support (General) Regulations 1987. They further decided that the Department may review the decision at a later date when there is an upturn in the housing market. The adjudication officer appealed to a social security Commissioner.
Held that:
1. 	the inability of the claimant to obtain suitable accommodation which is on offer is a relevant factor. That factor is subjective because it must include consideration of the personal circumstances of the claimant and his family (para. 12);
2. 	the question of whether it is not reasonable to expect the claimant and his family to seek alternative cheaper accommodation, having regard to the “relevant factors” is just as much a question of fact as the question of reasonableness. In so concluding the Commissioner confirmed the principle, set out in R(SB) 8/88, that the decisions of social security appeal tribunals on questions of fact should not be disturbed unless there is some demonstrable error of law (para. 14).

DECISION OF THE SOCIAL SECURITY COMMISSIONER
Decision
1.	This adjudication officer’s appeal fails. My decision is that the decision of the social security appeal tribunal dated 30 September 1991 is not erroneous in law.
Representation
2.	I held an oral hearing of this appeal. The adjudication officer was represented by Mr. J. Polland of Central Adjudication Services, Leeds. The claimant was represented by Ms. M. Jalali of Avon and Bristol Community Law Centre.
Nature of the appeal
3. 	The questions of law arising in this appeal are:
(1)	whether a claimant’s inability to sell his dwelling due to the state of the housing market is a “relevant factor” in terms of paragraph 10(7) of Schedule 3 to the Income Support (General) Regulations 1987, and 
(2) 	whether a reasonable tribunal, properly instructed as to the law could have given the decision that the appeal tribunal did.
The relevant law
4. 	Sub‑paragraphs (5) and (7) of Schedule 3 to the Income Support (General) Regulations 1987 (as amended) provide:
“(5) Where, having regard to the relevant factors, it is not reasonable to expect the claimant and his family to seek alternative cheaper accommodation, no restrictions shall be made under sub‑paragraph (3)
.............
(7) In sub‑paragraph (5) “the relevant factors” are -
(a)	the availability of suitable accommodation and the level of housing costs in the area; and
(b)	the circumstances of the family including in particular the age and state of health of its members, the employment prospects of the claimant and, where a change in accommodation is likely to result in a change of school, the effect on the education of any child or young person who is a member of his family, or any child or young person who is not treated as part of his family by virtue of regulation 16(4) (foster children).”
[Note: Sub‑paragraph (3) imposes restrictions on meeting housing costs.]
Background
5.	The claimant, a married man with two dependant children, bought a house for £175,000 in November 1988, with the assistance of a £65,000 mortgage. His business collapsed and he was in receipt of income support from 4 October 1990. 
The adjudication officer’s decision
6.	On 16 July 1991 an adjudication officer issued the following decision:
“The claimant’s applicable amount for income support includes an amount for housing costs of £164. This will be restricted to nil from 4 October 1991 because:
1.	The home is larger than is required by the claimant and his family; and
2.	It is reasonable to expect the claimant and his family to obtain alternative accommodation
3.	The housing costs are regarded as excessive”
The claimant appealed against this decision to a social security appeal tribunal.
The social security appeal tribunal’s decision
7. 	The appeal tribunal heard the appeal on 30 September 1991. Their decision was:
“The appeal is allowed.”
8.	Their recorded findings of fact were:
“1.	Mr. H. has been in receipt of income support since 4 October 1990.
2.	Formerly he ran a construction company, but the business has failed and was wound up in December 1990.
3. 	He is an electrician by trade but has been unable to find work as an electrician (despite attempts to do so).
4.	He has applied for a job as an insurance salesman.
5. 	His house has been on the market since July l7, 1990. Since then it has been with a number of agents. Despite reductions in the asking price (from £250,000 to £179,000) no sale has resulted. He has had only a small number of viewings.
6.	On one occasion (July 1991) the house was offered for sale with no price stated, so anxious was Mr. H. to obtain a buyer. Even so no viewings resulted.
7. 	The tribunal finds as a fact that the current state of the housing market where Mr. H. lives is very slow indeed.
8. 	The tribunal also finds that the asking prices for his house have always been reasonable, indeed the latest asking price represents extremely good value for money.”
9. 	The recorded reasons for this decision, which was unanimous, were:
“Taking into account all the efforts that Mr. H. has made to sell his house, the tribunal concludes that it would not be reasonable, in current circumstances, to require him to take further steps to seek alternative accommodation. (Schedule 3, para. 10(5)). In reaching this conclusion, we have taken the relevant factors into account (para. 10(7)). Although there are houses for sale in his area, they are not, in practical terms, available to Mr. H. since, despite all his best efforts, he cannot sell his home, and therefore he does not have the resources to purchase a new house. The Department of Social Security may need to review this decision at a later date when there is an upturn in the housing market.”
10. 	The adjudication officer appealed against this decision on the ground that the claimant’s inability or failure to sell his house is not a “relevant factor”. He relied on decision R(SB) 7/89 in this respect. Mr. Polland put the case in a different way. In his submission, the policy of the regulation was, as with regulation 21 of the corresponding supplementary benefit regulation, which the present income support provisions replace, that benefit was to be limited to what was necessary to cover the outgoings on accommodation which was reasonable for a claimant’s needs and the occupation of an unnecessarily large home or one located in an expensive area was not to be subsidised out of public funds: see paragraph 11 of decision R(SB) 6/89. In the light of this, he submitted no reasonable tribunal, properly instructed as to the law, could have reached the decision that this tribunal did.

Was the appeal tribunal’s decision erroneous in law?

11. 	No, it was not.
12. 	The adjudication officer, in arguing that the inability to sell one’s house was not a relevant factor, relied on the following passage in paragraph 16 of decision R(SB) 7/89:
“So far as regulation 21(5)(a) is concerned ‘the availability of suitable accommodation’ in my judgment must be viewed objectively, that is to say regard must be had to whether suitable properties are being offered for sale in the area, not whether they could in fact be obtainable by the claimant.”
But paragraph 16 continues:
“However, in practice, the availability to him of any particular property is, in my view, adequately covered by the provisions of regulation 21(5)(b) as being one of the possible consequences of the ‘circumstances of the assessment unit’”.
I agree. One looks to see whether suitable accommodation is on offer i.e. available. The test is objective because it does not involve consideration of the circumstances of the claimant or his family (e.g. whether they are personally able to buy the property on offer). If it is not available, paragraph 21(7)(a) is in point. If it is available, then it is necessary to go on and to consider paragraph (b). This involves consideration of the circumstances of the claimant and the rest of his “family” (an expression defined in section 20(1) of the Social Security Act 1986, now section 137(1) of the Social Security (Contributions and Benefit) Act 1992). The inability of the claimant (and the rest of his family) to obtain suitable accommodation which is on offer is in my judgment a relevant factor. That factor is subjective because, unlike in paragraph (a), it must include consideration of the personal circumstances of the claimant and his family.
13. 	Mr. Polland submitted that no reasonable tribunal properly instructed as to the law could have reached the decision that this tribunal did. Why not? Paragraph 9(3) of Schedule 3 of the Income Support (General) Regulations 1987 provides that where (subject to certain deductions specified in paragraph 11) amounts to be met under paragraphs 7 to 9 are excessive they are to be subject to restriction; and sub‑paragraph 9(4) lists the restrictions to be made under sub‑paragraph (3). Sub‑paragraph (4) deals with 3 cases:
(a)	too large a house,
(b) 	too expensive an area, and 
(c) 	the case where the outgoings are higher than those of suitable alternative accommodation in the area. 
But sub‑paragraphs (5) and (7) provide an exception to all three restrictions for the case where it is not reasonable to expect the claimant to seek alternative cheaper accommodation, having regard to the relevant factors. In the light of those provisions the appeal tribunal asked themselves the right question namely was it reasonable to require the claimant to seek alternative accommodation in current circumstances? After considering the relevant factors and current circumstances, they decided it was not. The tribunal gave their reasons in an adequate form, found sufficient facts and based their conclusion, which was unanimous, on sufficient evidence. Their conclusion was one of fact and one which they were entitled to reach.
14. 	The question of whether it is not reasonable to expect the claimant and his family to seek alternative cheaper accommodation, having regard to “the relevant factors” is just as much a question of fact as the question of reasonableness. It has many times been held that what is reasonable is a question of fact. The Court of Appeal has been most reluctant to interfere in such cases: see the decisions of the Court of Appeal in Darnell v. Millwood [1951] 1 All ER 88 at page 90 and Cresswell v. Hodgson [1951] 2 KB 92 at pages 96 and 97. The relevant passages are set out in decision R(SB) 6/88 at paragraph 15. There a tribunal were required to have regard to three matters before making a finding that it would be unreasonable to treat a payment as made by a member of the assessment unit. The Commissioner (myself) found that the tribunal had considered all three points and that they had not considered any factor which they ought not to have considered. The payment had been made to provide for the education of an exceptionally bright child whose parents wish was that the claimant should be educated privately. It was argued that no reasonable tribunal properly instructed as to the law could have come to this conclusion and that the only reasonable conclusion contradicted the determination of the tribunal because its effect was that the claimant obtained more supplementary benefit than if it had not been made. The Commissioner held that it was impossible to hold that this was the only reasonable conclusion. The case was one where the decision might:
“have gone either way, without the tribunal ‘committing any error of law’. The principle that decisions of social security appeal tribunals on questions of fact should not be disturbed unless there is some demonstrable error of law is of crucial importance. It was a matter of fact for the tribunal whether it was unreasonable to deem the payments to be possessed by the dependant’s daughter in respect of whom they were made and I can see no ground for disturbing that decision”.
These principles apply to the present case. I can find no respect in which the appeal tribunal erred in law. Accordingly their decision should not, and indeed cannot, be disturbed. For an appeal to the Commissioner from the decision of a social security appeal tribunal lies, and lies only, on the ground that their decision is erroneous in law: see sections 23(1) and (7) of the Social Security Administration Act 1992 re‑enacting, in this respect, earlier legislation.
15.	My decision is set out in paragraph 1.

Date: 17 November 1992 	(signed) Mr. V. G. H. Hallett	Commissioner