DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1.	The decision of the Birmingham appeal tribunal under reference U/04/024/2001/04791, held on 17th October 2001, is erroneous in point of law.
1.2.	I set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision in accordance with my analysis of the law.
I draw the Secretary of State’s attention to my direction in the final paragraph of this decision. It must be complied with in good time before the rehearing so that the claimant knows what will be in issue.
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 a district chairman of tribunals. The Secretary of State supports the appeal.
The issue
3.	This case concerns the claimant’s claim for income support that was made on 27th November 2000. The claim was refused on 24th January 2001, on the ground that her capital exceeded the £8,000 threshold for an award. So, by virtue of section 12(8)(b) of the Social Security Act 1998, the tribunal was not allowed to take in account any change in the amount of her capital after that date.
4.	The claimant and her husband were separated. In the relevant period between the date of the claim and its refusal, the claimant had four capital assets. (a) She had a bank account in her own name, which contained £718 (page 6). (b) She also had an ISA, which was valued on 6th December 2000 at £6,813.56 (page 15). (c) She had an interest in the matrimonial home. As this was being realised, its value was disregarded (page 21). (d) Finally, she and her husband had a savings account in joint names, which contained £65,651.87 (page 28). The husband held the books. The building society had applied ‘Matrimonial Difficulties stops’ to the account and required that both signatures were needed for withdrawals, transfers and amendments (page 27). So, without her husband’s consent or an order from a court, the claimant had no access to the funds in the account.
5.	The issue is this: was the value of the claimant’s interest in the joint savings account sufficient to take her capital over the threshold? The key provision is the current version of regulation 52 of the Income Support (General) Regulations 1987:
‘Except where a claimant possesses capital which is disregarded under regulation 51(4) (notional capital), where a claimant and one or more persons are beneficially entitled in possession to any capital asset they shall be treated as if each of them were entitled in possession to the whole beneficial interest therein in an equal share and the foregoing provisions of this Chapter shall apply for the purposes of calculating the amount of capital which the claimant is treated as possessing as if it were actual capital which the claimant does possess.’
6.	The claimant’s representative argued that the claimant’s entitlement to the any of the funds in the account should be disregarded. 
The authorities
7.	Three cases have been cited to me.
CIS/298/1989 
8.	This is a decision of Mr Commissioner Hallett. The case is reported in the Welfare Rights Bulletin for June 1992. It concerned a claim for income support by a claimant who was separated from her husband. Divorce proceedings were in progress. The couple had a building society account in joint names. It contained about £13,000. It could only be drawn on with the signature of both parties. The husband in effect froze the account. The adjudication officer submitted to the Commissioner that the claimant’s interest was not to be taken into account for two reasons. First, the extent of the parties’ beneficial interests in the funds in the account had not been decided. Second, as there were divorce proceedings, neither the claimant nor her husband was beneficially entitled to any of the money in the account. At the oral hearing before the Commissioner, the adjudication officer accepted that the claimant had no interest for the purposes of regulation 52, because she did not have access to the funds and the regulation was not intended to operate while there was a dispute over the asset. The Commissioner accepted that concession, but chose not to explain why. 
9.	Apart from the fact that divorce proceedings were in progress, the circumstances in that case are similar to the case before me. 
10.	The Bulletin’s account has all the hallmarks of a case in which a Commissioner was happy to accept a concession that produced the outcome he wanted without having to justify it on legal principle or analysis. As a decision given without reasons, it contains no legal principle and is of no authority under the decision of the Tribunal of Commissioners in R(I) 12/75. As a decision based on a concession, its value can be no greater than the correctness of the concession. The note in the Bulletin contains a clue as to the possible basis of the concession. It contains a quotation from a letter written by the then Secretary of State for Social Security stating that ‘it was always been our intention that any assets which are the subject of a matrimonial dispute should be disregarded until ownership of the asset is decided.’ That suggests that the justification may have been based on the policy intention behind the legislation. However, that cannot justify an interpretation that legislation cannot otherwise bear. I can find no possible justification for the concession in law. 
R(IS) 2/93 
11.	This is also referred to in the Bulletin article (by an incorrect unreported number). It is a decision of Mr Commissioner Johnson. The Commissioner was there concerned with a claim for income support by a claimant who was separated from her husband. Divorce proceedings were in progress. She had a building society account in her own name. She was advised by her solicitor that she was unlikely to retain more than half of the funds in that account in the divorce and that she should not draw on it. The Commissioner decided that, although the account was in her sole name, she was not solely beneficially entitled to it, but held it for herself and her husband. Regulation 52 therefore applied so that only the value of her half share was taken into account in determining her entitlement to income support.
12.	The facts of that case are very different from the case before me. It does not contain any principle that is relevant to this case.
CIS/5912/1999 
13.	This is a decision of Mr Commissioner Mesher. The Commissioner was there concerned with a frozen bank account. It was in the sole name of the claimant’s deceased husband and was frozen between the date of his death and the date when probate was granted. The claimant was his sole beneficiary under the will. The Commissioner accepted the submissions of the Secretary of State (paragraph 9):
‘The Secretary of State now submits that from the date of the claimant’s husband’s death to the date on which probate of his will was granted, although her rights under the will might have a market value, because they could be borrowed against, in the light of the freezing of the bank account her rights should be treated as having a value of nil.. I accept that reasoning ….’
14.	The facts of that case are similar to the case before me in that they involve a frozen bank account. However, the account was not a joint account and the case involved the administration of an estate.
15.	I have discussed with the Commissioner the legal principle that he applied and the reasoning on which his decision was based. With respect to him, I have not been able to identify a rule or principle of law that supports the conclusion he reached. I do not understand how a bank account can both have a value but have no value. The claimant had an asset, even pending the grant of probate. If she was seen as a residual legatee, she had no beneficial interest in the funds in the account, but she had a chose in action that could be invoked to ensure the proper administration of the estate: Commissioner for Stamp Duties v Livingston [1964] 3 All England Law Reports 692. If she was seen as a specific legatee, she was the beneficial owner in equity of the funds in the account from the moment of her husband’s death, subject to its use to pay debts: CIS/0256/1998, paragraph 27. (The decision in that case was confirmed on appeal by the Court of Appeal in Wilkinson v Chief Adjudication Officer on 24th March 2000.)
A suggested approach
16.	I suggest the following approach. In summary it is this. The starting point is the ownership, apart from the freeze or other dispute, during the period with which the tribunal is concerned. If the claimant is entitled in possession to any share in the asset, regulation 52 is applied. The claimant is treated as having an equal share in the whole beneficial asset. That share has to be valued. That valuation will take account of the freeze or dispute. There is no general rule that property which is frozen or the subject of a dispute is disregarded or taken to have  no value. This approach generates a number of questions for a tribunal to consider in this case.
17.	First, are the funds in the account part of the claimant’s capital? The account is in her name and that of her husband. So, in law it is part of her capital. Despite that, she would not be the beneficial owner if she holds the funds in the account on trust for her husband alone. Determining that point involves (a) an investigation into the source of the funds in the account and (b) the terms on which they were deposited as between husband and wife, as well as (c) a consideration of the presumption of advancement. The burden is on the claimant to show that she has no beneficial interest in the funds in the account. If she can do that, the funds are not part of her capital for income support purposes. If she cannot, the funds are part of her capital.
18.	Second, if the funds are part of the claimant’s capital: does regulation 52 apply? It only applies if the claimant is beneficially entitled in possession. A claimant may have an interest which is not in possession: for example, an interest as a residuary legatee in an unadministered estate. The claimant’s representative argues that the claimant’s share in the account is not a beneficial interest ‘in possession’. She relies on the dictionary definition of ‘in possession’. I reject that argument. An interest in possession is a legal concept. Its meaning is not to be found in an ordinary dictionary. It means that the interest must be immediate, not in remainder or reversion.
19.	Third, what is the value of the claimant’s share? If regulation 52 applies, the claimant is treated as having a half share. The value is the value of that notional share, not the value of her actual interest. The value of her notional half share is not the value of the whole asset divided by two. It is the value of the notional share as an interest separate from her husband’s. 
20.	Fourth, if the claimant alleges that the asset is frozen so as to deny access, there is an obvious risk of misrepresentation or collusion in cases like this. So, the tribunal must answer this question: is the asset really frozen? There is no doubt that the building society has imposed a requirement that any withdrawal must be signed by the claimant and her husband. The letter from the building society puts that beyond doubt. However, is the husband really unwilling to agree to any withdrawal? For practical purposes, the question is whether the claimant could withdraw the comparatively small sum that would take her over the income support capital threshold. Would her husband really refuse to co-operate? Has he been asked? In other words, is this case any different from that of a joint account in which the parties have imposed for themselves the need for joint signatures? After all, the account is frozen for the claimant’s husband him as it is for her.
21.	Fifth, if the asset is frozen, what affect does that have on the value of the claimant’s notional share? For the purposes of answering this question, circumstances not obtaining in the period between the date of claim and the date of decision must be ignored under section 12(8)(b) of the Social Security Act 1998. A risk that is present in that period may be taken into account, although it may not materialise, if at all, until later: see R(DLA) 2 and 3/01. 
22.	If there is no risk of separation or divorce proceedings, the value of that share may be affected by the cost of legal action to obtain access to the funds in the account, including the possibility of the statutory charge for legal services funding. The claimant might seek: (a) an action under section 17 of the Married Women’s Property Act 1882; (b) a declaration of her interest in the account; (c) an injunction against the husband to allow access to the funds. No doubt, there are other possibilities. 
23.	The value will no doubt also be affected by risk of separation or divorce proceedings being commenced before the application for the order can be determined. If the parties are involved in separation or divorce proceedings, the value will be affected by the risk that the court will exercise its extensive powers to re-distribute the asset to her husband. The likelihood of this will vary according to the nature of the property. A wife with children may be unlikely to lose a share in the matrimonial home, but free capital may be transferred to the husband to allow him to set up a home for himself. 
24.	The valuation of the claimant’s share in the bank account may be made easier by two factors. First, the tribunal is only concerned with the value between the date of the claim and the date of the decision refusing it. Second, the tribunal is not concerned with the precise value. It is only concerned with whether the minimum value of the claimant’s notional half share is sufficient to take the total value of her capital over the income support capital threshold. 
25.	The valuation issues in cases like this are complex. Unless the tribunal has relevant experience, it must act only on evidence, not on speculation, assumption or guess work. If the tribunal has relevant experience, it must put it to the claimant and her representative so that they may respond to it. 
How the tribunal dealt with the case
26.	The tribunal dealt with the argument that the case was governed by CIS/298/1999. It held that as there was no dispute about the ownership of the funds in the account, that case did not apply. That was correct. However, the tribunal did not go on to deal with the other issues that I have identified. In that, the tribunal went wrong in law. I make no criticism of the tribunal for not coming to terms with the complexities of this case. Its decision is, nonetheless, wrong in law and must be set aside. A rehearing is necessary in order to investigate and determine those issues. 
The matrimonial home
27.	The Secretary of State has submitted that the tribunal also went wrong in law in its valuation of the matrimonial home. I am not sure that, in view of the determination at page 21, the value of the matrimonial home is an issue in the period between the date of claim and the date of the refusal of the claim. I direct the Secretary of State to make a submission to the tribunal on this issue before the rehearing. 

Signed on original	Edward Jacobs
Commissioner
9th July 2002