Commissioner's File: CIS/719/1994

SOCIAL SECURITY ACT 1986 
SOCIAL SECURITY ADMINISTRATION ACT 1992 
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Social Security Appeal Tribunal: Sheffield
 
1. I dismiss the adjudication officer's appeal against the decision of the Sheffield social security appeal tribunal dated 27 July 1994. 

2. At the oral hearing of this appeal, the adjudication officer was represented by Mr Anthony Prosser of Counsel, instructed by the Solicitor to the Departments of Social Security and Health. The claimant did not appear and was not represented but I had the advantage of written submissions made on his behalf by        Citizens Advice Bureau and Messrs. John Howell and Co., solicitors of Sheffield. 

3. The appeal turns on the construction of paragraph 4 of Schedule 3 to the Income Support (General) Regulations 1987 which provides:- 

"4.- (1) Subject to the following provisions of this paragraph, a person shall be treated as occupying as his home the dwelling normally occupied as his home by himself or, if he is a member of a family, by himself and his family and he shall not be treated as occupying any other dwelling as his home. 
(2) In determining whether a dwelling is the dwelling normally occupied as the claimant's home for the purposes of sub-paragraph (1) regard shall be had to any other dwelling occupied by the claimant or by him and his family whether or not that dwelling is in Great Britain.
(3) Subject to sub-paragraph (4) where a single claimant or a lone parent is a student or is on a training course and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he occupies for the purpose of attending his course of study or his training course or, as the case may be, the dwelling which he occupies when not attending his course, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make payments. 
(4) A full-time student shall not be treated as occupying a dwelling as his home for any week of absence from it, other than an absence occasioned by the need to enter hospital for treatment, outside the period of study, if the main purpose of his occupation during the period of study would be to facilitate attendance on his course. 
(5) Where a claimant has been required to move into temporary accommodation by reason of essential repairs being carried out to the dwelling normally occupied as his home and he is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case analogous payments) in respect of either (but not both) the dwelling normally occupied or the temporary accommodation, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make payments. 
(6) Where a person is liable to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only - 
(a) where he has left and remains absent from the former dwelling occupied as the home through fear of violence in that dwelling or by a former member of his family and it is reasonable that housing costs should be met in respect of both his former dwelling and his present dwelling occupied as the home; or 
(b) in the case of a couple or a member of a polygamous marriage where a partner is a student or is on a training course and it is unavoidable that he or they should occupy two separate dwellings and reasonable that housing costs should be met in respect of both dwellings; 
(c) in the case where a person has moved into a new dwelling occupied as the home, except where sub-paragraph (5) applies, for a period not exceeding four benefit weeks if his liability to make payments in respect of two dwellings is unavoidable. 
(7) Where - 
(a) a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and 
(b) had claimed income support before moving in and either that claim has not yet been determined or it has been determined but an amount has not been included under this Schedule and if the claim has been refused a further claim has been made within four weeks of the date on which the claimant moved into the new dwelling occupied as the home; and 
(c) the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and - 
(i) that delay was necessary in order to adapt the dwelling to meet the disablement needs of the claimant or any member of his family; or 
(ii) the move was delayed pending the outcome of an application under Part III of the Act for a social fund payment to meet a need arising out of the move or in connection with setting up the home in the dwelling and either a member of the claimant's family is aged five or under or the claimant's applicable amount includes a premium under paragraph 9, 9A, 10, 11, 13 or 14 of Schedule 2; or 
(iii)the person became liable to make payments in respect of the dwelling while he was a patient or in residential accommodation, he shall be treated as occupying the dwelling as his home for any period not exceeding four weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments. 
(8) A person shall be treated as occupying a dwelling as his home for a period not exceeding 52 weeks while he is temporarily absent therefrom only if -
(a) he intends to return to occupy the dwelling as his home; and 
(b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and 
(c) the period of absence is unlikely to exceed 52 weeks, or, in exceptional circumstances, (for example where the person is in hospital or otherwise has no control over the length of his absence) is unlikely substantially to exceed that period. 
(9) In this paragraph - 
(a) "patient" means a person who is undergoing medical or other treatment as an in-patient in any hospital or similar institution;
(b) "residential accommodation" means accommodation - 
(i) provided under sections 21 to 24 and 26 of the National Assistance Act 1948(a) (provision of accommodation); or 
(ii) provided under section 21(1) of, and paragraph 1 or 2 of Schedule 8 to, the National Health Service Act 1977(b) (prevention, care and after-care) where board is available to the claimant; or 
(iii)provided under section 59 of the Social Work (Scotland) Act 1968(c) (provision of residential and other establishments) where board is available to the claimant; or 
(iv) which is a residential care home within the meaning of that expression in regulation 19(3) (persons in residential care or nursing homes) other than sub-paragraph (b) of that definition; or 
(v) which is a nursing home; 
(c) "training course" means such a course as is referred to in sub-paragraph (c) of the definition of training allowance in regulation 2(1) (interpretation)." 
It will be seen that sub-paragraph (1) provides a general rule for determining when a person shall, or shall not, be treated as occupying a dwelling as a home, but it is made subject to the succeeding sub-paragraphs. Sub-paragraph (2) is of general applications in those cases to which sub-paragraph (1) applies. Sub-paragraph (9) contains definitions of relevance only to sub-paragraphs (3), (6)(b) and (7)(c)(iii). The remaining sub-paragraphs, (3) to (8), provide specific rules for specific situations and, where they apply, they supplant sub-paragraph (1). The question arising in this case is concerned with the extent to which those sub-paragraphs may overlap in the absence of specific words indicating that one sub-paragraph is subject to another. 

4. The facts of the case are not in dispute. The claimant lived in a house at                 . That house was declared unfit for human habitation in 1989 and the claimant moved into rented accommodation until repairs could be carried out. These took an inordinate amount of time but, as the tribunal found, the delays "were not of his making". He claimed income support from 22 December 1992. It is unnecessary for me to deal with the procedural history of the claim. Suffice it to say that, before the tribunal, it was accepted that the claimant had housing costs within paragraph 1 of Schedule 3 to the 1987 Regulations in respect of                 in the form of interest on a loan taken out to purchase the leasehold of the property, interest on two loans for home improvements and ground rent. The tribunal took the view that the claimant was entitled to income support on the basis that his applicable amount should include housing costs in respect of            . They reached that conclusion on the ground that the claimant's circumstances fell within paragraph 4(5) of Schedule 3 to the 1987 Regulations and they rejected an argument by the adjudication officer that paragraph 4(8) had the effect that the claimant could not be treated as occupying            because his absence had exceeded 52 weeks before the date of claim. The adjudication officer now concerned with the case appeals against the tribunal's decision with the leave of the tribunal chairman. She does not challenge the tribunal's decision in respect of paragraph 4(5) but renews the argument as to the effect of paragraph 4(8). 

5. Mr Prosser therefore submitted that sub-paragraph (5) of paragraph 4 was subject to a limitation imposed by sub- paragraph (8) so that a person might be treated as occupying a home from which he had had temporarily to leave due to repairs, only for the first 52 weeks of his absence. In CIS/042/94, the Commissioner was prepared to assume, without argument, that the two sub-paragraphs were not linked in that way. However, in CIS/252/94, the question was considered at greater length by a different Commissioner who said, at paragraph 13:- 
"I think the absence of an express indication of the standard kind or at all in the provisions of sub- paragraph (5) or sub-paragraph (8) or elsewhere excluding, limiting or any way qualifying the application of sub-paragraph (8) to sub-paragraph (5) is significant. I consider it becomes extremely significant when superimposed upon that is the further fact, which, for myself, I would regard as a telling indication of intent, that the draftsman in seeking to exclude sub-paragraph (5) from the ambit of sub-paragraph (6) did so, as one would expect, by using clear words to that effect, namely the expression in sub-paragraph (6)(c) ‘except where sub-paragraph (5) applies’. Consequently, it has to be assumed that if the draftsman's intention was that sub-paragraph (8) should also not apply to sub-paragraph (5), he would likewise have said so. Such conclusion, in my view, is further strengthened by the fact that the provisions under consideration are sub-paragraphs of the same paragraph and, prima facie, of a piece."
The facts of that case were indistinguishable from the facts of the present case and Mr Prosser naturally relied upon the Commissioner's decision that housing costs could be claimed under sub-paragraph (5) only for 52 weeks. 

6. I agree with the Commissioner who decided CIS/252/94 to the extent that I accept that the lack of any express words in sub-paragraph (5) excluding, limiting or any way qualifying the application of sub-paragraph (8) shows that the latter sub-paragraph potentially has some application to those who fall within sub-paragraph (5). However, in my view, it does not follow that sub-paragraph (8) limits sub-paragraph (5) any more than, say, sub-paragraph (5) limits sub-paragraph (3) or, for that matter, sub-paragraph (5) limits sub-paragraph (8). 

7. The question whether, and to what extent, sub-paragraph (8) contains words of general limitation, so as to prevent a person from being treated as occupying a dwelling as his home when he would otherwise be treated as occupying it as his home by virtue of sub-paragraph (5), must be answered by looking closely at the language of sub-paragraph (8) itself. In particular, one must look at the opening words:- 
"A person shall be treated as occupying a dwelling as his home for a period not exceeding 52 weeks while he is temporarily absent therefrom only if - …" 
At first sight, that provision is concerned with determining that a class of person shall be treated as occupying a dwelling as a home, rather than determining that a class of person shall not be treated as occupying a dwelling as a home. 

8. On the other hand, the word "only" is certainly capable of implying a general limitation. However, seems to me that the difficulty facing the adjudication officer is that the word "only" does not obviously relate to the phrase "for a period not exceeding 52 weeks". In my view, the adjudication officer's argument would involve rewriting the opening words of sub-paragraph (8) to read:- 
"A person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom, only for a period not exceeding 52 weeks and if - …" 
It is open to a Commissioner to give a statutory instrument a non-literal construction in order to avoid absurdity, but only so as to give effect to the clear intention of the legislature where that can be divined otherwise than by looking merely at the words of the particular provision under scrutiny. In this case, neither of the two constructions advanced by the parties results in absurdity and it is by no means clear that the legislature intended that there should be a 52 week limit on the period for which a person might be able to receive assistance with housing costs by virtue of sub-paragraph (5). I therefore reject the adjudication officer's construction of sub-paragraph (8). 
9. What, then, is the effect of sub-paragraph (8)? So my view, the most obvious construction that sub-paragraph (8) is that advanced on behalf of the claimant which is that it provides a basis upon which a person shall be treated as occupying a dwelling as a home while temporarily absent from it, as an alternative to the bases provided by the other sub-paragraphs. That would more obviously be correct if the word "only" were omitted from the opening words of the sub-paragraph. However, the use of the word "only" may be due to the draftsman's concern that sub-paragraph (8), which otherwise would apply to the first 52 weeks of any temporary absence not covered by the other sub-paragraphs, should be clearly seen to be limited by the further conditions (a), (b) and (c). In any event, I prefer to adopt a construction of sub-paragraph (8) which may render that word superfluous, rather than a construction that involves a substantial rewriting of the sub-paragraph. I therefore find myself unable to agree with the Commissioner who decided CIS/252/94. 

10. It follows that I agree with the approach taken by the tribunal in this case. Once they had found that the claimant was to be treated as occupying          as his home by virtue of sub-paragraph (5), they were right to regard the fact that he had been absent from that home for more than 52 weeks, so that sub-paragraph (8) could not apply to his case, as irrelevant. Accordingly, the adjudication officer's appeal fails.
 
(Signed) M Rowland
Commissioner

(Date) 15 August 1995