HK-v-Department for Social Development (JSA) [2014] NICom 1

Decision No:  C7/13-14(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKER’S ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 21 January 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 21 January 2013 is in error of law.  The error of law will be described in greater detail below.

2.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings of fact are outlined below.

3.	The decision under appeal was dated 27 July 2012 when a decision-maker of the Department decided that the appellant did not have an entitlement to jobseeker’s allowance (JSA) from and including 8 June 2012.  The basis of that decision was that the appellant had a capital asset in excess of the prescribed capital limits for entitlement to JSA and that the capital could not be disregarded under the relevant capital disregard provisions.  As will be noted below, the decision-maker accepted that one parcel of the appellant’s land was capital which could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations in that the land amounted to the dwelling occupied as the appellant’s home applying the definition of the ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations to include ‘any agricultural land adjoining that dwelling’.  Implicitly, the decision-maker did not accept that the second parcel of land was capital which could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations in that the land did not amount to the dwelling occupied as the appellant’s home applying the definition of the ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations to include ‘any agricultural land adjoining that dwelling’.  I have found that the second parcel of land does amount to ‘agricultural land adjoining the dwelling’ occupied by the appellant as his home.  Accordingly I am satisfied that the capital disregard provided for in paragraph 1 of Schedule 7 to the 1996 Regulations applied.  Provided, therefore, that the appellant satisfies the other conditions of entitlement to JSA, he is entitled to that benefit from the date of claim which is 8 June 2012.

	Background

4.	The appellant made a claim to JSA from and including 8 June 2012 by way of a claim form to that benefit received in the Department on 13 June 2012.  On 27 July 2012, and following consideration of the issue of land which the appellant had stated on the claim form which he owned and, more particularly, the valuation of that land, a decision-maker of the Department decided that the appellant did not have an entitlement to JSA from and including 8 June 2012.  The basis of that decision was that the appellant had a capital asset in excess of the prescribed capital limits for entitlement to JSA and that the capital could not be disregarded under the relevant capital disregard provisions.  On 24 August 2012 an appeal against the decision dated 27 July 2012 was received in the Department.  On 4 September 2012, and following receipt of additional information concerning the valuation of the property, the decision dated 27 July 2012 was looked at again but was not changed.

5.	The appeal tribunal hearing took place on 21 January 2013.  The appellant was present.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal (although expressing sympathy with the appellant’s position) and confirmed the decision of the Department dated 27 July 2012.  On 11 April 2013 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service from Mrs Carty of the Law Centre (Northern Ireland) who was now representing the appellant.  On 18 April 2013 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

6.	On 30 April 2013 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 26 June 2013 written observations on the application for leave to appeal were requested from Decision Making Services (DMS) and these were received on 25 July 2013.  In these initial written observations, Mr Woods, for DMS, submitted that the decision of the appeal tribunal was in error of law in that the appeal tribunal ‘…either failed to make a decision in respect to whether it was reasonable to sell that land separately in accordance with regulation 1(2) of the Jobseeker’s Regulations (Northern Ireland) 1996 or failed to record the decision in its reasons.’  Nonetheless, Mr Woods also submitted that this error did not vitiate the decision of the appeal tribunal as it was not unreasonable for the land to be sold separately.

7.	Written observations were shared with the appellant and Mrs Carty on 8 August 2013.  On 6 September 2013 further submissions in reply were received from Mrs Carty which were shared with Mr Woods on 4 October 2013.

8.	On 11 October 2013 I granted leave to leave to appeal and, in so doing, gave as a reason that:

‘… an arguable issue arises as to whether the appeal tribunal properly applied the capital disregard provisions in the Jobseeker’s Allowance Regulations (Northern Ireland) 1996, as amended.’

9.	On 11 October 2013 I also directed that there should be an oral hearing of the appeal and that case summaries should be lodged by Mrs Carty and Mr Woods.  In her lodged case summary, Mrs Carty added a new ground which had not been raised in the application for leave to appeal.  That ground will be set out in more detail below.

10.	The oral hearing took place on 20 November 2013.  The appellant was present and was represented by Mrs Carty.  The Department was represented by Mr Woods.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	The relevant legislative background

11.	Article 15(1) of the Jobseekers (Northern Ireland) Order 1995, (‘the 1995 Order’) as amended, provides that:

‘15 (1) No person shall be entitled to an income-based jobseeker’s allowance if his capital, or a prescribed part of it, exceeds the prescribed amount.’

12.	Article 14(1) of the 1995 Order provides that:

‘14.—(1) In relation to a claim for a jobseeker’s allowance, the income and capital of a person shall be calculated or estimated in such manner as may be prescribed.’

13.	Regulations 107 and 108 of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996, as amended, (‘the 1996 Regulations’) provide that:

‘107.- For the purposes of Article 15(1) and (2A) of the Order (no entitlement to an income-based jobseeker’s allowance if capital exceeds a prescribed amount), the prescribed amount is £16,000.

Calculation of capital

108.—(1) Subject to paragraph (2), the capital of a claimant to be taken into account shall be the whole of his capital calculated in accordance with this Part and any income treated as capital under regulation 110.

(2) There shall be disregarded from the calculation of a claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 7.’

14.	In paragraph 1 of Schedule 7 to the 1996 Regulations it is provided that the following shall be considered to be capital which is to be disregarded for the purposes of regulation 108(2):

‘The dwelling occupied as the home …’

15.	In regulation 1(2) of the 1996 Regulations, ‘dwelling occupied as the home’ is defined as:

… ‘the dwelling together with any garage, garden and outbuildings normally occupied by the claimant as his home, including any part thereof not so occupied which it is impracticable or unreasonable to sell separately, together with—

(a)  any agricultural land adjoining that dwelling, and

(b)  any land not adjoining that dwelling which it is impracticable or unreasonable to sell separately;’

16.	In paragraph 11(1) of Schedule 7 to the 1996 Regulations it is provided that the following shall be considered to be capital which is to be disregarded for the purposes of regulation 108(2):

‘… The assets of any business owned in whole or in part by the claimant and for the purposes of which he is engaged as a self-employed earner or, if he has ceased to be so engaged, for such period as may be reasonable in the circumstances to allow for disposal of any such asset.’

	The submissions of the parties

17.	In the original application for leave to appeal which was before the LQPM, Mrs Carty submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal failed to consider whether, for the purposes of the capital disregard provided for in paragraph 1 of Schedule 7 to the 1996 Regulations, it was reasonable for the land adjoining the appellant’s property to be sold.  Mrs Carty submitted that:

‘… a determination of whether it is reasonable for the land to be sold will go beyond the consideration of whether there was any legal bar on the sale.  In the circumstances of this case the access to the land is through a farmyard owned by (the claimant’s) sister who would not be agreeable to the granting of access.’ 

18.	Mrs Carty also submitted that given the factual circumstances in which the appellant came to own the property and his strongly held view as to the future disposal of that property it would not be reasonable for the land to be sold separately.  Mrs Carty submitted that, in the alternative, the appeal tribunal erred in reaching its decision without seeing evidence from Land and Property Services of comparable transactions and, in particular, transactions where there was disputed access to a relative small parcel of land.

19.	In the further application for leave to appeal which was received in the Office of the Social Security Commissioners, Mrs Carty repeated the arguments which are set out above and added that the Department had failed to draw the provisions of regulation 1 of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 to the attention of the appeal tribunal.  She also submitted that the appeal tribunal had made no reference to regulation 1 although the appellant’s original grounds of appeal had raised issues as to the reasonableness and practicability of sale.  Finally, Mrs Carty added an alternative argument that the reasons for the decision of the appeal tribunal were inadequate in respect of the potential application of regulation 1 in tandem to paragraph 1 of Schedule 7 to the 1996 Regulations.

20.	In his initial written observations on the application for leave to appeal, Mr Woods accepted that the appeal tribunal, in the statement of reasons for its decision, had not made any specific reference to regulation 1 but had noted, in general terms, that the capital disregards in Schedule 7 to the 1996 Regulations had been considered.  In relation to the specific submission as to whether it was reasonable to expect the relevant land to be sold, Mr Woods made reference to the decision of Mrs Commissioner Brown in C9/99(IS).  In that case, the Commissioner, in considering parallel provisions in the Income Support (General) Regulations (Northern Ireland) 1987 (‘the 1987 Regulations’) had stated, at paragraph 17:

‘The question then arises as to what can be taken into consideration in determining whether it would be impracticable or unreasonable to sell separately land not adjoining the dwelling.  The statute does not limit the matters which can be considered but the standard of reasonableness is an objective one, it is what a reasonable man would consider would be impracticable or unreasonable to sell separately.  It also appears to me that where it is shown that the claimant possesses land which is not part of the "dwelling" including any garage, garden and outbuildings normally occupied by the claimant as his home and is not agricultural land adjoining that dwelling, it is up to the claimant to show that it would be impracticable or unreasonable to sell it separately.’

21.	Mr Woods also noted that the then Chief Commissioner had observed, at paragraph 17 of his decision in C10/03-04(IS):

‘When considering reasonableness all relevant factors are capable of being taken into account, including the viability of farmlands if the lands further away from the home were separated in ownership from the lands adjoining the home.’

22.	Mr Woods submitted that the appeal tribunal had not made a decision as to:

‘… whether it was unreasonable or not for (the claimant) to sell the land separately in accordance with regulation 1(2) of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996, or if it did has failed to record so in their statement of reasons.

I submit that the decision maker for the Department did not consider the issue of reasonableness in relation to regulation 1(2) either or draw the tribunal’s attention to that provision and as such did not assist the tribunal in this matter.’

23.	Despite this concession, Mr Woods submitted that the accepted error did not vitiate the overall decision of the appeal tribunal.  This was because the circumstances put forward by the appellant and his representative did not ‘… show that it is unreasonable for the land to be sold separately.’  Mr Woods submitted that a reasonable person would not consider it reasonable that a person who inherited a considerable capital asset would rely on a means-tested benefit for financial support.  He submitted that if the appellant sold the land not immediately adjoining his dwelling he would have a means to support himself, would not have to rely on the public purse and would still retain the land adjoining his dwelling to pass on to the next generation of his family.

24.	In her written observations in reply, Mrs Carty welcomed the concession made by Mr Woods but submitted that the identified error was material and that the issue of ‘reasonableness’ would have to be addressed at a further hearing.  Mrs Carty also submitted that the issue of practicability of sale also had to be considered.

25.	As was noted above, in her lodged case summary, Mrs Carty added a new ground which had not been raised in the application for leave to appeal.  That additional ground was as follows:

‘The tribunal has erred in failing to consider regulation 1(a) of the Jobseeker’s Allowance Regulation (NI) 1996 in relation to para 1 Schedule 7 of the Jobseeker’s Allowance Regulations (NI) 1996.

The definition of “adjoining” is important to this appeal.  I have not been able to identify case law on this issue other than C9/99 (IS).  I note that Commissioner Brown recorded at para 17 of that decision that she had not been directly addressed on the construction of regulation 2 and that her views as stated were “tentative.”  She went on to state the opinion that “adjoining” should be given the meaning of “being next to” and that land separated by a laneway would not be considered to be “adjoining.”
It is submitted that while “adjoining” may be interpreted as “being next to,” a reasonable person would consider land separated only by a laneway but being directly in front of a dwelling as being “adjoining” within the definition of “being next to.”  If this argument is accepted then the land would fall to be disregarded under para 1 of Schedule 7 as agricultural land adjoining the dwelling house.’

26.	Mrs Carty also expanded on her earlier submitted ground that the appeal tribunal had erred in adopting the valuation of the valuer without further enquiry.  She made reference to the decision of the then Chief Commissioner in C23/02-03(IS) and, more particularly, paragraph 18, where the Chief Commissioner stated:

‘… Any proper valuation requires a consideration of all those matters referred to and, in the circumstances, I doubt whether any Tribunal could come to a proper decision without taking into account those matters set out by Mr Deputy Commissioner Mark in Great Britain decision R(JSA)1/02, at paragraph 13 and, in addition, not only evidence of the valuer’s expertise in relation to such valuation but also evidence of relevant comparators.’

27.	Mrs Carty added that in the instant case the evidence from the valuer contained certain general statements but without evidence to support them.

	The further submissions at the oral hearing of the appeal

28.	At the oral hearing of the appeal, Mr Woods indicated that following receipt of the case summary prepared by Mrs Carty, with the added ground submitting that it was arguable that the land at issue was, for the purposes of the definition of ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations, ‘agricultural land adjoining that dwelling’, he had undertaken some further research on the further ground.  That research had identified a further decision of Mrs Commissioner Brown in C16/02-03(IS).  At paragraphs 21 to 23 of her decision, the Commissioner stated:

‘21.	Mr Morgan has sought to convince me that any land which is included in the same parcel of land as the farmhouse has to be considered as “adjoining” land.  I reject his argument.  The Department’s argument that “adjoining” must be given its ordinary meaning of being next to the dwelling does seem to me to have much more substance.  Mr. Morgan may well be correct in his submission that the land under the roadway which bisected his lands was owned by the claimant.  I do not think that is conclusive.  I stated in decision C9/99(IS) that my views on the construction of regulation 2 were somewhat tentative but I could see no reason why adjoining should not be given its ordinary meaning of being next to.  I also stated that the dwelling occupied as the home could therefore include agricultural land next to the dwelling but it did not appear to me that land separated from the dwelling by a public road or by a laneway and boundary hedges could be said to be adjoining the dwelling.  As I mentioned above these views were expressed tentatively and were not central to the decision.  I now give my more concluded views.  I consider that the word “adjoining” is used in its ordinary meaning.  It is therefore simply to be applied by the Tribunal and unless such application is outside reasonable bounds, it will not be in error of law.  Title is not determinative of whether a piece of land adjoins a dwelling.  It would be ludicrous if it was.  Very large expanses of land could be held under the one title and as one parcel of land.  Quite obviously parts of that land would not adjoin the dwelling occupied as the home.  The question of whether or not land is adjoining is to be determined by physical proximity not by ownership.

22.	It should, perhaps, be remembered that what is being looked at here are assets for purposes of Income Support (a benefit designed to assist those with very inadequate financial resources).  Had the claimant continued to farm the land the farmland could have of course have been excluded as being the assets of his business.  That was not, however, the case and, a claim for Income Support having been made, it must be decided whether the claimant had capital which would exclude him from it.  I can see no reason why, simply because land was all bought as one parcel or under one title the existence of areas of land should be excluded from capital to be taken into account.  The law relating to Income Support makes no such provision.  Had the legislature so wished it could easily have done so.  It did not.

23.	In this case of course I am not dealing with a huge farm but nonetheless the principle of title not being determinative of whether land is adjoining or not obviously applies.  It appears to me that in considering whether or not land adjoins the dwelling the distance of that part of the land from the dwelling, the existence of physical boundaries such as roads, laneways, hedges, etc are all factors which may be taken into consideration.  Depending on the positioning of the dwelling and other factors – width of land or road, boundary hedges, etc, they may be relevant to whether land does or does not adjoin the dwelling.’

29.	Mrs Carty submitted that in considering whether the capital disregard in paragraph 1 to Schedule 7 of the 1996 Regulations has the potential to apply in the instant case, regard should be had to the principles set out by Mrs Commissioner Brown in C16/02-03(IS).  This was because the disregard in paragraph 1 to Schedule 7 was for the ‘dwelling occupied as the home’ and the Commissioner had given clear guidance on aspects of the definition of ‘dwelling occupied as the home’ as set out in regulation 1(2) of the 1996 Regulations.  More particularly, the Commissioner had given clear guidance on the meaning of ‘adjoining’ in the phrase ‘any agricultural land adjoining that dwelling’ which was an inclusive part of the definition of ‘dwelling occupied as the home’.

	Why was the decision of the appeal tribunal in error of law?

30.	In the statement of reasons for its decision, the appeal tribunal has recorded:

‘What then is the law when someone with land makes an application for Jobseeker’s Allowance (Income Based)? The Decision Maker sets out the entitlement and capital rules at Section 5 of the submission under the JSA Order 1995 and Regulations 1996.  What can be disregarded as capital is contained in Schedule 7 of the 1996 Regulations which is attached to the submissions.  Having considered the Appellant’s submissions and arguments, I am satisfied that he has not provided grounds for disregard of his land as capital under said Schedule 7.’

31.	I am wholly satisfied that the appeal tribunal has correctly identified that if, for the purposes of entitlement to JSA, a claimant’s capital is to be disregarded under regulation 108(2) of the 1996 Regulations, then it has to be shown that one of the capital disregards in Schedule 7 to the 1996 Regulations has to apply.  As to whether one of the capital disregards did apply, the appeal tribunal’s focus was driven by the submission prepared by the appeals writer for the appeal tribunal hearing.  That submission, in turn, made very general submissions on the potential applicability of the disregards in Schedule 7 without focusing on specific and discrete disregards which had the potential to apply.  The submission, for example, did not make an explicit reference to the fact that the decision-maker, in deciding the capital issue, had actually disregarded certain of the capital assets of the appellant, namely a certain parcel of the land which he owned.  It seems to me that the appeal submission could have been more definite about the nature of the land which the appellant owned, its precise location, its physical relationship to the appellant’s dwelling and the reasons why a reasonably significant parcel of that land had been disregarded under the Schedule 7 capital disregard rules.

32.	Although it is nowhere explicitly stated in the appeal submission, it is clear that the decision-maker decided that one parcel of the appellant’s land was capital which could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations in that the land amounted to the dwelling occupied as the appellant’s home applying the definition of the ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations to include ‘any agricultural land adjoining that dwelling’.  One clue to that is the document at Tab No 7 of the original appeal submission which is a copy of the request by the decision-maker for a valuation of the appellant’s capital assets from Land and Property Services.  The request is limited to one parcel of the appellant’s land.

33.	It seems to me that if there had been a specific reference in the appeal submission to an actual disregard of the appellant’s land as capital under paragraph 1 to Schedule 7 to the 1996 Regulations and an explanation that the disregard was on the basis of the extended definition of the dwelling occupied as the home as including any agricultural land adjoining that dwelling, then the appeal tribunal might have concentrated on whether the outstanding parcel of land could be disregarded as capital on the same basis.  That is not, however, to negate the appeal tribunal’s own inquisitorial role in exploring all of the issues which had the potential to apply in the appeal.

34.	The failure of the appeal tribunal to explore whether the second parcel of the appellant’s property could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations, by considering the extended definition of that disregard, as set out in regulation 1(2) of the 1996 Regulations, in parallel with the capital disregard of the first parcel of land which formed an integral part of the decision under appeal renders the decision of the appeal tribunal as being in error of law.

	The proper approach to the meaning of ‘agricultural land adjoining’ in the definition of ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations

35.	The proper approach is as set out by Mrs Commissioner Brown in C16/02-03(IS).  In that decision, the Commissioner made it clear that the views which she had expressed in C9/99(IS) were tentative.  More particularly, the Commissioner singled out the statement which she had made that ‘… it did not appear to me that land separated from the dwelling by a public road or by a laneway and boundary hedges could be said to be adjoining the dwelling’.  It seems to me that her qualification of that statement as ‘tentative’ means that it cannot be regarded as a statement of the law.

36.	What are the guiding principles?  Firstly, the word ‘adjoining’ is to be given its ordinary meaning.’  Secondly, it is to be simply applied by appeal tribunals and appeal tribunals will not err in law unless that application is outside reasonable bounds.  Thirdly, title cannot be determinative of whether a piece of land adjoins a dwelling; the determinative factor is physical proximity not ownership.  Fourthly, the following factors are all relevant – the distance of any part of land from the dwelling; the existence of physical boundaries such as roads, laneways, hedges etc; the positioning of the dwelling in relationship to the dwelling and other physical factors including width of land or road, and nature of dividing features such as roads, lanes or hedges.

	My further findings in fact

37.	Attached to the original appeal submission, as Tab No 3, was a copy of a map of certain lands.  The map was originally obtained from the Department of Agricultural Development for Northern Ireland.  The map delineates certain land as being in the ownership of the appellant and gives the appellant’s address as including his home dwelling-place and land set out across 11 separate fields and numbered as such.  The land identified on the map as fields numbered 1-5 was the parcel of land, referred to above, which the decision-maker decided was capital which could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations in that the land amounted to the dwelling occupied as the appellant’s home applying the definition of the ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations to include ‘any agricultural land adjoining that dwelling’.

38.	The copy of the map at Tab No 7 has subsequently been annotated in two ways.  Firstly, the boundary of the appellant’s entire parcel of land has been highlighted to set it out from the remaining countryside.  Secondly, descriptions and minor drawings have been added to the copy of the map.

39.	At the oral hearing of the appeal I heard evidence from the appellant.  I found him to be an honest and credible witness and I accept his evidence in its entirety and adopt the following aspects of that evidence as factual.

40.	The appellant is the owner of 23 acres of land in a rural part of Northern Ireland.  He inherited that parcel of land from his father in 1998.  His sister also owns a 23 acre parcel of lands which is proximate to the parcel owned by the appellant.  Both parcels of land have been in the ownership of the appellant’s family for nine generations.  The appellant regards himself as a custodian of his 23 acres for future generations of his family.

41.	The appellant’s 23 acres are divided into two parcels of land separated by a lane.  I shall return to the lane below.  On the map which is at Tab No 7 the first parcel of land, which was the parcel of land which the decision-maker considered was capital which could be disregarded, consists of five fields, numbered as one to five.  The second parcel of land, separated from the first by the lane, consists of six fields, numbered as six to 11.

42.	The lane which divides the two parcels of land is what the appellant describes as a gravel ‘dirt track’ lane which is neither tarmacked nor cemented.  It is 0.7 of a mile in length and is the only means of access from a small public country road to the appellant’s property and that of his sister and brother.  The lane is akin to a private drive in an ordinary residential property.  The public would not have routine access to it and no-one would have a requirement to travel along the lane unless they had business on the property of the appellant, his brother or his sister.  The lane is bordered by hedgerow which requires maintenance.  Despite hedgerow maintenance, the lane is narrow and, in places, is difficult to pass in an ordinary car.  Two cars meeting in opposite directions on the lane could not pass each other.  The lane is impassable for modern farm machinery.  The lane terminates at the property of the appellant’s sister.

43.	As was noted above, the appellant’s sister owns a further 23 acres of land which adjoins that of the appellant and on which she has her home, which was the original family home, together with a number of typical farm outbuildings.  The appellant’s brother has a dwelling in field number four but in the same cluster of buildings consisting of the sister’s home and the outbuildings.  The appellant’s home is in field five.  As was noted above, field five is in a parcel together with fields one to four.  Accordingly, one can see why the decision-maker considered field five, and fields one to four, as amounting to agricultural land adjoining the appellant’s dwelling which could be disregarded under the extended definition of ‘dwelling occupied as the home’.

44.	The appellant described the 11 fields individually, as follows, which description I accept.  Fields one, two and three amount to overgrown bogland.  Fields four and five are arable fields capable of being worked.  Two-thirds or three-quarters of field six is arable with the rest a hill.  Fields seven and nine are steep hills.  Field eight is a bog meadow.  Field ten is a steep hill.  Field 11 is a disused railway line.  While fields four, five, six and ten border the lane there is no access to them from the lane.  The only access is through the farmyard on his sister’s property.  It would not be possible to devise access to fields six and ten from the lane because of their low-lying nature.

	My decision

45.	Applying the principles in C16/02-03(IS) to the further facts which I have found above, I have no hesitation in deciding that the second parcel of land, consisting of fields six to 11 on the map at Tab No 7, is agricultural land adjoining the appellant’s dwelling occupied as his home.  As was noted above, the decision-maker accepted that the parcel of land consisting of fields one to five should be accepted as agricultural land adjoining the dwelling occupied by the appellant as his home.  On first principles, and as was acknowledged by Mr Woods at the oral hearing of the appeal, it would appear incongruous that fields number two and three should be accepted as adjoining the appellant’s dwelling while fields number six and ten, where they are physically closer in proximity to the appellant’s home should not.  In any event, having been given a thorough description of the layout of the two parcels of land, the positioning of the appellant’s home in relationship to those parcels of land, and the nature of the boundary between them, the realistic conclusion is the second parcel of land is also adjoining the dwelling occupied by the appellant as his home.  I accept that the lane which divides the two parcels of land is akin to a private driveway in an ordinary residential property such as might divide two gardens.  It is narrow and does not amount to a discrete physical boundary.  The second parcel of land is wholly proximate to the appellant’s home.

46.	The decision under appeal was dated 27 July 2012 when a decision-maker of the Department decided that the appellant did not have an entitlement to JSA from and including 8 June 2012.  The basis of that decision was that the appellant had a capital asset in excess of the prescribed capital limits for entitlement to JSA and that the capital could not be disregarded under the relevant capital disregard provisions.  As was noted above, the decision-maker accepted that one parcel of the appellant’s land was capital which could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations in that the land amounted to the dwelling occupied as the appellant’s home applying the definition of the ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations to include ‘any agricultural land adjoining that dwelling’.  Implicitly, the decision-maker did not accept that the second parcel of land was capital which could be disregarded under paragraph 1 of Schedule 7 to the 1996 Regulations in that the land did not amount to the dwelling occupied as the appellant’s home applying the definition of the ‘dwelling occupied as the home’ in regulation 1(2) of the 1996 Regulations to include ‘any agricultural land adjoining that dwelling’.  I have found that the second parcel of land does amount to ‘agricultural land adjoining the dwelling’ occupied by the appellant as his home.  Accordingly I am satisfied that the capital disregard provided for in paragraph 1 of Schedule 7 to the 1996 regulations applied.  Provided, therefore, that the appellant satisfies the other conditions of entitlement to JSA, he is entitled to that benefit from the date of claim which is 8 June 2012.

	Two further issues arising

47.	During the course of his oral evidence given at the appeal hearing, the appellant indicated that from July 2013 he had begun working those parts of his land which he had described as falling into the ‘arable’ category.  More specifically the appellant indicated that, although it had not been easy due to accessibility issues for farm machinery, he had grown and cut a crop of hay which he had retained and intended to sell.  Having heard this evidence, Mr Woods conceded that the capital disregard provided for in paragraph 11 of Schedule 7 to the 1996 Regulations had the potential to apply from July 2013.  Mrs Carty indicated that consideration might be given to the making of a further claim to JSA from that date based on the potential application of that disregard.  That is, of course, a matter for the appellant acting with the advice of Mrs Carty.

48.	I would add that if I am wrong that the capital disregard in paragraph 1 of Schedule 7 to the 1996 Regulations through the extended definition of ‘dwelling occupied as the home’ provided for in sub-paragraph (a) of that definition in regulation 1(2) of the 1996 Regulations applies, I would have considered that the capital disregard also applied to the second parcel of land through the extended definition provided for in sub-paragraph (b).  In my view if the second parcel was not adjoining the dwelling occupied by the appellant as his home, it would, in my view, be impracticable or unreasonable to sell that parcel of land separately from the first parcel.  As described by the appellant, there are clear problems with access to the second parcel of land, such access only being viable through the property of the appellant’s sister via a lane private to the appellant, his brother and sister.  That, in itself, renders any such separate sale as being wholly impracticable.

(signed):  K Mullan

Chief Commissioner

22 January 2014