[2006] NISSCSC C1_05_06(JSA) (21 June 2006)

Decision No:  C1/05-06(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKEERS ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 22 April 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the tribunal chairman, by the Department against a decision dated 22 April 2005 of an appeal tribunal sitting at Newry.  That tribunal had allowed the claimant’s appeal against a Departmental decision and decided that he was entitled to an appropriate amount of housing costs as part of his jobseeker’s allowance (JSA) from 4 November 2003.  My decision is given in the penultimate paragraph.

2.	The background facts to the case are not in dispute.  The claimant at the time of the claim for housing costs and at the date of decision by the Department on 25 March 2004 was a married man aged 46 years who lived with his wife and their 7 children in owner occupied accommodation.  The claimant was in receipt of JSA from 30 November 2001 for himself and his family.  The family’s former accommodation was one bedroom size and was not subject to a loan.  The claimant decided to build another property on the same site.  He was given a grant to do so and, this grant not being large enough to cover the building costs he took out a building society loan and applied for a housing cost element in his JSA to cover the costs associated with this loan.  The Department refused, its grounds for refusing being that pursuant to Schedule 2 paragraph 4(4) to the Jobseekers Allowance Regulations (Northern Ireland) 1996, the loan being incurred during a “relevant period”, housing costs would not be met unless certain specified conditions were satisfied.  The Department was of the view that none of the specified conditions were satisfied.  It appears that at the hearing before the tribunal the claimant’s representative, Mr Brady, indicated that the loan had indeed been incurred in the “relevant period”.  The loan having been incurred when the claimant was in receipt of JSA, Mr Brady’s concession appears to be a proper one.

3.	The tribunal having decided in the claimant’s favour, the Department appealed.  It was represented, initially by Mr Crilly and later by Mr Gough of its Decision Making Services branch.  Its grounds of appeal were that the tribunal had erred in considering that a loan commitment could be increased when there was no loan in place in the first instance.  In the Department’s submissions the tribunal had therefore erred in concluding that the claimant satisfied the conditions in sub-paragraph (10) of paragraph 4 to the above Schedule.

4.	A further ground was that the tribunal had erred in considering that the claimant satisfied sub-paragraph 10(b) to the said paragraph 4.  The Department submitted that the tribunal had found that:

“… For practical purposes the old house at […] must have been much too small and rudimentary adequately and decently to accommodate 7 children and 2 adults.  [The claimant’s wife] described how the family had lived in no.21 for over 4 years and during that time the older children had to be driven to their grandmother’s house in Dundalk for baths and showers.  The old house was so obviously unfit for the family in so many ways that the lack of privacy for the older children was in reality only one of the reasons for building the new house.  It is difficult or impossible at this stage clearly to separate out the motives for moving because the real issue for the [claimant and his family] was not whether a move was necessary, since the answer was obvious, but how that move could be effected. …”

5.	The Department submitted that to satisfy the conditions specified in sub-paragraph 10(b) the change of dwelling had to be made “solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged 10 or over who belong to the same family as the claimant.”   It submitted that on the tribunal’s own findings this was not the sole reason.  In support of this submission the Department referred to decision R(IS) 5/01 where at paragraph 17 the Commissioner stated:

“However, I shall not go into all the difficulties, because in my view the appeal tribunal did not err in law in concluding that the claimant did not come within paragraph 5A(9)(b) [the income support equivalent of paragraph 4(10)(b)].  The basis for its conclusion was that the main reason for moving from the old home was to acquire more roomy accommodation generally.  That was a finding which it was entitled to make on the evidence and was one which meant that the change of home was not solely by reason of the need to provide separate accommodation for children of different sexes, within the proper interpretation of paragraph 5A(9)(b).”
6.	The Department submitted that the tribunal’s reasoning clearly indicated its view that the claimant’s reason for moving from the old home was to acquire more roomy accommodation generally.  It therefore submitted that the tribunal had erred when it determined that sub-paragraph (10)(b) was applicable in this case.

7.	I held a hearing of the appeal.  Mr Gough attended.  The claimant and his wife attended.  Mr Brady was nominated as their representative but was unable to attend.  I asked the claimant if he was happy that I proceed in Mr Brady’s absence and warned him that if I did so the decision would be final.  He stated that he was happy that I proceed.  I decided to do so as the facts of the case were not in dispute and as the claimant had had an opportunity to make written comments and put forward observations and submissions though, despite a Direction from me, none were made.  The claimant and his wife had little to say at hearing other than to reiterate the inadequacy of their previous accommodation.

8.	I do consider that the tribunal erred in law in deciding that the conditions of sub-paragraph (10)(a) were satisfied.

9.	Sub-paragraph (10) reads as follows: 

	“(10)	The conditions specified in this sub-paragraph are that –

(a)  the loan commitment increased in consequence of the disposal of the dwelling occupied as the home and the acquisition of an alternative such dwelling; and

(b)  the change of dwelling was made solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged 10 or over who are part of the same family as the claimant.”

10.	The claimant’s evidence to the tribunal was that the old house on the site of which the new house was built was knocked down in order that he could get a grant from the Northern Ireland Housing Executive.  I am dubious that this amounts to “disposal” within the meaning of paragraph 10(a) as I consider it likely that the old home included the land on which the former house sat.  The new house having been built on part of this site (the site is half an acre) and no part of this site having been sold it seems to me difficult to find that the old home has been disposed of.  However even if it could be considered that the former home had been disposed of I would still be of the view that the tribunal had erred in considering that the conditions of sub-paragraph 10(a) were satisfied.  This is because, a loan commitment cannot increase where the said loan is a new loan and no previous loan existed.  In my view for paragraph 10(a) to assist there must have been a previous loan which has been increased for the reasons and in the circumstances set out in that sub-paragraph.

11.	Paragraph 4(1) and (2) provide that subject to certain exceptions no amount may be met in respect of loans incurred during the relevant period.  The only exception which has been mentioned and the only one which appears to me to be relevant is that in sub-paragraph 10.  The purpose of that sub-paragraph appears to be to permit housing benefit to be paid in circumstances where a loan commitment is increased during the relevant period in the circumstances and for the purpose set out in that sub-paragraph.

12.	Mr Gough has submitted, in my view correctly, that the use of the words “the loan commitment increased” in paragraph 4(10)(a) reflects the legislature’s intention in the Regulations to restrict entitlement to housing costs to situations where a loan commitment was previously in place.  Mr Gough also submits that, had the legislature wished to indicate otherwise, it could have used the phraseology which it used in the preceding sub-paragraph (9).  In that sub-paragraph, which relates to the special needs of disabled people, a condition specified is:

	“… that the loan was taken out, or an existing loan increased …”

	I consider that Mr Gough is correct in his submission that had the legislature wished to provide for the payment of housing costs in connection with a loan where no loan previously existed it would have used the same phraseology as was used in sub-paragraph (9).  The difference in phraseology is reflective of different intentions.

13.	I consider that the word “increased” should be given its ordinary everyday meaning.  There is nothing in the context to indicate otherwise.  As Mr Gough submits the word “increase” is defined in the New Shorter Oxford English Dictionary, Oxford University Press 1993 as:

“Make or become greater in size, amount, duration, or degree; enlarge, extend, intensify.”

	All of these imply that there has been something in existence in the first place which has become greater.  The use of the word “increase” indicates that something must already be there to begin with to be increased.  The use of the phrase “the loan commitment” also refers to an existing commitment.  In this case, there being no such existing loan commitment to be increased, in my view the tribunal was not entitled to conclude that there had been an increase in the loan commitment.  I set its decision aside as in error of law for that reason.

14.	The conditions in clauses (a) and (b) of sub-paragraph 10 are cumulative.  In other words they must both be met before the exception in that sub-paragraph can apply.  I have concluded that one of those conditions (sub-paragraph 10(a)) was not met and that strictly makes it unnecessary for me to consider whether the other condition was met.  However, it may be of assistance for future tribunals if I offer some, albeit unconcluded, views on the matter.  Mr Gough based his submission in part on decision R(IS) 5/01.  The tribunal also considered that decision.  It correctly drew therefrom the principle that in applying the relevant condition it was necessary to look primarily at the reason for moving.  The Commissioner’s decision in R(IS) 5/01 was appealed to the Court of Appeal in England and Wales as Saleem v Secretary of State for Social Security [2001] EWCA Civ 69.  At paragraph 19 thereof Mr Justice Creswell stated:

“In my view the Commissioner’s construction of the sub-paragraph was correct.  The relevant question was whether the change of dwelling was made solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged ten or over.  It was necessary to focus on the reason for the change of home.  If the operative reason for the change was not the need to provide separate sleeping accommodation for children of different sexes of ten or over, the condition would not be met.  Warwick Road and Fernley Road contain the same number of bedrooms.  The appeal tribunal found that “the reason was mainly to provide more adequate i.e. roomy accommodation”.  As the Commissioner said, that was a finding which the appeal tribunal was entitled to make on the evidence, with the result that the condition was not met. Each case will turn on its own facts.  If the sole or exclusive reason for a change of home is the need to provide separate sleeping accommodation for children of different sexes aged 10 or over, the condition would be met even if the new home selected incidentally carried other benefits for the family.”

15.	It is worth mentioning that the facts in R(IS) 5/01 were that the claimant had moved from a three bedroom accommodation to another three bedroom dwelling house.  The tribunal’s conclusion was that he had moved to provide more roomy accommodation for the children of either sex.  The tribunal in that case stated:

“… the change of dwelling must be made “solely” by reason of a need to provide separate sleeping accommodation for children of different sexes.  In this case that was not the sole reason, the reason was mainly to provide more adequate i.e. roomy accommodation.”

16.	In considering cases of this nature it is clear from the Saleem case that the focus should be on the reason for leaving the former home.  Reason must, I think, also be given its ordinary meaning of “cause or motive” (Collins English Dictionary 1999).  It therefore seems that the sole reason for moving must be the need to provide the relevant separate sleeping accommodation.  Provided that is so there may be other reasons why a particular alternative dwelling is selected and the existence of such other reasons need not prevent clause (b) of paragraph 10 being satisfied.

17.	I have decided that this is a case where I can give the decision which the tribunal should have given.  This is that the claimant was not from and including 4 November 2003 entitled to housing costs as part of his JSA.  This is because he did not satisfy sub-paragraph 10(a) and none of the other exceptions set out in sub-paragraph 7 to 11 of paragraph 4 of Schedule 2 above applied.

18.	I note that the tribunal queried how a recipient of JSA could obtain a mortgage and the claimant stated he had told untruths to the building society.  I am dubious that a lender would simply accept a statement of employment/earnings without some verification from the employer or by way of accounts or copy tax returns.  It may therefore be that the Department would wish to investigate the claimant’s entitlement to JSA at the relevant time.  That is, however, a matter for the Department.

(signed):  M F Brown

Commissioner

21 June 2006