RJCA/SH/RC/CW/2

THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CIS/1678/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER R J C ANGUS

1.	The decision of the Social Security Appeal Tribunal dated 30 September 1998 is erroneous in law.  I set that decision aside and, as empowered by section 14(8)(a)(ii) of the Social Security Act 1998, I give the decision which I consider the tribunal should have given which is:-

The claimant’s eligible housing costs for the purposes of the calculation of entitlement to Income Support include the interest on so much of the loans taken out by the claimant and her husband as was used within the period specified in paragraph 16(1) of schedule 3 to the Income Support (General) Regulations 1987 for the purpose of providing a third bedroom in their home.  The claimant’s entitlement to Income Support will be reassessed on that basis with further recourse to the tribunal in the event of disagreement as to the amount of benefit payable.

2.	The claimant appeals, with the leave of the chairman, against the tribunal’s dismissal of the claimant’s appeal against an adjudication officer’s decision that interest paid on loans taken out by the claimant and her husband to finance the provision of a third bedroom in their home were not eligible housing costs in terms of regulations 17(1)(e) and 18(1)(f) of the Income Support (General) Regulations 1987 as read with paragraph 16(1) and (2)(l) of Schedule 3 to those Regulations.

3.	I heard this appeal on 24 January 2000.  The claimant was present and represented by her father‑in‑law, to whom I shall refer as Mr C.  The Secretary of State, to whom the functions of the adjudication officer have been transferred by section 1(a) of the Social Security Act 1998, was represented by Mr L. Scoon of the Office of the Solicitor to the Secretary of State for Social Security.  I am grateful to both Mr C and Mr Scoon for their careful submissions. 

4.	The history of the case is not in dispute.  The claimant is a married woman with 3 children.  When she married in 1982 she and her husband bought a house with 2 bedrooms and a room which served as both a sitting room and a dining room.  The purchase was financed with a loan of £26,000 secured on the house.  The first child, a son, was born on 24 December 1984.  He has suffered from asthma since infancy.  When the claimant was pregnant with the second child, a daughter born on 1 April 1988, she and her husband decided that the children should not share a bedroom.  The Lloyd’s Bank loan of £26,000 was replaced in August 1987 with a loan of £45,000 from the Trustee Savings Bank and the additional funds thus acquired were used to extend the house to create a third bedroom and, I believe, for other purposes.  In November 1988 a second loan of £20,000, also secured on the house, was obtained from the Trustee Savings Bank to cover the further costs of the works on which the couple had embarked.  A third loan was obtained in September 1990 for the purpose, according to the adjudication officer’s submission to the tribunal, of consolidating the loans used for home improvements.  The interest on that loan, also according to the adjudication officer, had at the time of his decision been frozen by the Trustee Savings Bank since January 1997 but “charges” were being made by the bank in respect of that loan.

5.	In 1997 the family ran into financial difficulties and on 26 September of that year the claimant applied for an award of Income Support for herself and the three children, a second daughter having been born in August 1990.  At that date the claimant’s son was 12½ years old and her two daughters were both less than 10 years old.  In calculating the claimant’s entitlement to Income Support the adjudication officer excluded from the eligible housing costs the interest on so much of the loan secured on the claimant’s home as exceeded the initial borrowing of £26,000 because he did not consider that the works financed by the additional loan capital were repairs or improvements within the meaning of paragraph 16 of Schedule 3 to the General Regulations.  Copies of correspondence between the local office of the Benefits Agency and the claimant indicate that there were several items of work financed by the additional loans which the adjudication officer did not regard as being repairs or improvements within the meaning of paragraph 16.  However, according to a letter of 15 June 1998 (document 39 of the bundle) the major obstacle to allowing all of the housing costs for which the claimant was liable was the fact that in August 1987 when the borrowings were increased to £45,000 none of the three children had attained the age of 10 years.  That, in the adjudication officer’s view, meant that none of the borrowings could be said to have been for a purpose within the ambit of paragraph 16(2)(l) of Schedule 3 to the Income Support (General) Regulations.  On 15 June 1998 he issued a decision giving effect to that view.  On that date the claimant’s son was 13½ years of age and her first daughter was 10 years and 2 months.  

6.	The claimant appealed the adjudication officer’s decision to the tribunal arguing that the ages of the children which were relevant to paragraph 16(2)(l) of Schedule 3 were their ages at the date of claim, not their ages at the date on which the relevant loan was taken out when neither parent was a claimant, or anticipated being a claimant, for Income Support.  At the tribunal hearing it was argued for the claimant that at the date of claim without the extra bedroom which had been financed by the borrowings in question there would have been a contravention of the overcrowding provisions of the Housing Act 1985.

7.	The written notice of the tribunal’s decision is in the following terms:-

“The appeal is not allowed.  The decision issued on 15 June 1998 is confirmed. 

The interest on the sums charged as interest in respect of the loan for the extension does not fall within paragraph 16 to Schedule 3, the Tribunal feels as a matter of fact that the age of the children at the time the loan was taken out is the relevant factor.  We do not have a remit to consider Housing Act provisions.”.

8.	In a letter of 20 October 1998, which seems to have been received by the clerk to the tribunal on 23 October 1998, the claimant stated that she sought leave to appeal to a Social Security Commissioner against the tribunal’s decision.  The clerk, on 19 January 1999, wrote to the claimant explaining that an application for leave to appeal to a Commissioner required to be accompanied by a copy of the statement of the tribunal’s findings in fact and reasons for decision supplied in terms of regulation 23(3A)(b) and 3(c) of the Social Security (Adjudication) Regulations 1995.  The claimant’s letter had, therefore, been treated as a request to the chairman for such a statement but as the request had been made out with the 21 days time limit specified in regulation 23 compliance with it was a matter for the tribunal chairman’s discretion.  The claimant responded to that by agreeing that the notes issued to her with the notice of the tribunal’s decision on the day of the hearing mentioned the need for a copy of a regulation 23(3A)(b) statement but the tribunal clerk had told her that the handwritten notice of decision given to her at the hearing was sufficient.  The chairman decided not to issue a regulation 23(3A)(b) statement.  Her decision to that effect is recorded on document 50A of the bundle but is not dated.  On that document the chairman stated that she would grant leave to appeal to a Commissioner and asked for the necessary form.  She granted leave on 19 February 1999 on the form OSSC1 which is documents 52 to 57 of the bundle.  

9.	At the outset of my hearing I said that as the application to the tribunal chairman for leave to appeal was not accompanied by a copy of a regulation 23(3A)(b) statement the chairman had no jurisdiction to grant leave and that what is before me is, therefore, technically an application for leave to appeal rather than an appeal.  However, I had overlooked the fact that the chairman, in declining to issue a statement, indicated that she would grant the application for leave to appeal to a Commissioner when it was put to her on the proper form.  It seems to me, therefore, that the chairman regarded the notice of decision issued on the day of the hearing as including a sufficient statement of the tribunal’s findings in fact and reasons for decision to serve as a regulation 23(3A)(b) statement.  That is consistent with the claimant’s statement that she was assured by the tribunal clerk that the notice of decision was all that she required.  Therefore, despite what I said at the oral hearing, I have decided that what is before me is an appeal rather than an application for leave to appeal.  I notice that the adjudication officer, in her written submission of 12 August 1999, did not make any point as to the chairman’s jurisdiction and treated the case as being an appeal, not merely an application for leave to appeal.

10.	Regulation 17(e) of the Income Support (General) Regulations 1987 provides that the applicable amounts which, for the purposes of sections 124 and 135 of the Social Security Contributions and Benefits Act 1992, are attributable to a claimant for Income Support include mortgage interest payments or such other housing costs as are prescribed in Schedule 3 to those Regulations.  Paragraph 15 of Schedule 3 specifies as a qualifying loan for the purposes of the Regulations a loan taken out to defray monies applied for the purpose of acquiring an interest in the dwelling occupied as the claimant’s home or in paying off an other such loan.  

11.	Paragraph 16 of schedule 3 specifies as qualifying loans those taken out for repairs and improvements to the dwelling house occupied as the home.  That paragraph is in the following terms:-

	“	16.	(1)	A loan qualifies under this paragraph where the loan was taken out, with or without security, for the purpose of -

					(a)	carrying out repairs and improvements to the dwelling occupied as the home; 

					(b)	paying any service charge imposed to meet the cost of repairs and improvements to the dwelling occupied as the home; 

					(c)	paying off another loan to the extent that the other loan would have qualified under head (a) or (b) of this sub‑paragraph had the loan not been paid off, 

				and the loan was used for that purpose, or is used for that purpose within 6 months of the date of receipt or such further period as may be reasonable in the particular circumstances of the case.

			(2)	In sub‑paragraph (1) ‘repairs and improvements’ means any of the following measures undertaken with a view to maintaining the fitness of the dwelling for human habitation or, where the dwelling forms part of a building, any part of the building containing that dwelling - 

					(a)	provision of a fixed bath, shower, wash basin, sink or lavatory, and necessary associated plumbing, including the provision of hot water not connected to a central heating system;

					(b)	repairs to existing heating systems; 

					(c)	damp proof measures; 

					(d)	provision of ventilation and natural lighting; 

					(e)	provision of drainage facilities; 

					(f)	provision of facilities for preparing and cooking food; 

					(g)	provision of insulation of the dwelling occupied as the home; 

					(h)	provision of electric lighting and sockets;

					(i)	provision of storage facilities for fuel or refuse; 

					(j)	repairs of unsafe structural defects; 

					(k)	adapting a dwelling for the special needs of a disabled person; or

					(l)	provision of separate sleeping accommodation for children of different sexes aged 10 or over who are part of the same family as the claimant.  

			(3)	Where a loan is applied only in part for the purposes specified in sub‑paragraph (1), only that portion of the loan which is applied for that purpose shall qualify under this paragraph.”.

12.	Schedule 3 in its  current form, including paragraph 16 as quoted above, is a replacement schedule 3 which was enacted by regulation 2 of the Social Security (Income Support and Claims and Payments) Amendment Regulations 1995 as read with Schedule 1 to those Regulations.  The replacement schedule 3 came into force on 2 October 1995.  In the old schedule 3 the equivalent of paragraph 16 was paragraph 8.  Paragraph 8 contained a definition of “repairs and improvements” which included a list of measures for the improvement of a dwelling’s fitness for occupation.  The paragraph 16  definition restricts repairs and improvements to roughly the same qualifying measures for the improvement of fitness for occupation as paragraph 8 specified except that for the most part what now qualifies is the provision of a facility rather than the provision or improvement of a facility.  However, there are differences between the old and the new paragraphs which are relevant to this appeal.  Firstly in paragraph 8 of the old schedule there was no specific equivalent of items (k) and (l) of paragraph 16(2).  Those were covered by item (k) of the old paragraph 8(3) thus:-

“Other improvements which are reasonable in the circumstances.”.

Secondly, paragraph 16(2) has no “gather-up” item equivalent to the old 8(3)(k).

13.	In the letter of 23 October 1998 indicating that she was seeking leave to appeal against the tribunal’s decision the claimant argued that although the tense employed in legislation was normally of no importance, in a provision such as paragraph 16(2)(l) of the current Schedule 3 where there are references to two separate qualifying circumstances occurring at different dates it must be correct to apply two different tenses.  Therefore, in her view the present tense should apply to her son’s age at the time of the claim and the past tense should apply to the date at which the extension to the family home was built.  The interpretation of sub‑paragraph (2)(l) adopted by the Benefits Agency and the tribunal implied that it was acceptable that her son, who was 12 years old at the date of claim and 13 years old at the time of writing, should share a bedroom with his two younger sisters.  Although the boy was not in fact having to share with his sisters the adverse interpretation of (2)(l) denied to the claimant the assistance which she required to pay for an acceptable standard of accommodation for the three children.  That was anomalous because had she and her husband purchased at the time of their marriage a three bedroomed house with a higher mortgage the larger amount of mortgage interest would have been allowed at the date of claim as eligible housing costs.  The Agency’s and the Tribunal’s interpretation of sub‑paragraph (2)(l) was contrary to the intention of Parliament.  

14.	On the form OSSC1 the claimant again argues that as sub‑paragraph (2)(1) is in the present tense and refers to children who are members of the claimant’s family it must refer to the age of the children at the date of claim because until that date they are not the members of a claimant’s family.  The claimant argues further that the tribunal’s decision is “also contrary to natural justice.  This part of the Act is based upon an acceptance that a child of 10 or over should have a separate bedroom to siblings of the opposite sex.  The adjudication contradicts this acceptance.”.  

15.	In her written submission of 12 August 1999 the adjudication officer submitted that the tribunal’s interpretation of paragraph 16(2)(l) of Schedule 3 was correct and in accordance with Commissioner’s decision CIS/16936/96. The adjudication officer argued that the Commissioner makes it clear that the purpose of the loan must be determined “at the time of taking out the loan” and that as item (l) is couched in the present tense the children concerned must have been over 10 years of age at the time at which the loan was taken out.  The adjudication officer submitted also that although the tribunal had made insufficient findings in fact and given insufficient reasons for its decision I should dismiss the claimant’s appeal as nothing is to be gained by having the case reheard by another tribunal.

16.	The passages from CIS/16936/1996 on which the adjudication officer relied in that submission are the following:-

	“	8.	A question raised by the claimant’s solicitors in detailed written submissions dated 14 August 1997 is at what date does one ascertain whether the children were ‘aged 10 or over’?  Those solicitors submit in effect that one can legitimately for this purpose look to the future.  If the purpose of the loan was to provide separate sleeping accommodation for children of different sexes it would not matter, they submit, that at the date, e.g. of the loan or of the claim for Income Support, those children were not yet aged 10 or over, if in fact it was envisaged that the claimant would go on living in the house and that the children would eventually become aged 10 or over.  That submission is supported also by a statement of the general consideration of it being better for a claimant and less expensive to improve an existing house than buy a new one where the whole of the mortgage to buy the new one would be normally allowable for housing costs.  

		9.	I take this point, but I must construe the Regulations as they are.  In my view the claimant’s Solicitors’ submissions are not correct in law and I cannot accept them.  The relevant provisions of paragraph 16 of the new Schedule 3 to the 1987 Regulations read as follows, 

		“...........”.

		10.	It is clear from the way in which that paragraph is structured that one must determine the question of whether or not a particular work constitutes allowable ‘repairs and improvements’ ---------at the time of taking out the loan and its purpose must be determined then.  That means in my judgment that at the time of taking out the loan the children of different sexes must already be aged 10 or over.  The provision of sub‑paragraph (1) of paragraph 16(2) is clearly in the present tense.”.

17.	The claimant’s response to the adjudication officer’s submission was to say that while she could not argue with the Commissioner’s analysis of the grammatical structure of paragraph 16 of the Schedule she did not think that it was in the spirit of the [Social Security Contributions and Benefits] Act.  The intention of Parliament was to provide for children aged 10 or over to have bedrooms separate from their siblings of the opposite sex.  She repeated her argument that the reference to the claimant’s family indicated that the relevant age is the age of the child at the date of claim.  

18.	At the commencement of my oral hearing Mr C produced a written submission on behalf of the claimant in which he argued that paragraph 16 of the current Schedule 3 had been brought about by a grammatical tidying up of the corresponding paragraph in the old schedule.  If a change in meaning had been intended that was devious.  He felt sure that the vast majority of the Members of Parliament were unaware of the consequences of the change, whether or not it was intended, and that it had not been Parliament’s intention to create a double standard for children of 10 years old and over depending on whether they had attained that age when the relevant loan was taken out or at a later date.  None of the other works itemised in paragraph 16(2) are the subject of a time qualification in addition to the six months limit imposed by sub‑paragraph (1) on the use of the loan.  Further, perilling qualification on the age of the children at the time when the loan was taken out imposes a retrospective penalty on financial arrangements which are quite often made by families years before a claim for Income Support is contemplated and, in this particular case, years before the relevant legislation was passed.  

19.	Mr C’s oral submissions amounted to a very clear amplification of his written submission and a helpful resume of the facts of the case neither of which I need repeat here other than to record that Mr C asked if the Commissioner could not enquire as to what Parliament’s intention had been in approving the 1995 replacement of the then Schedule 3 with the current one.

20.	In response to Mr C’s, submissions, Mr Scoon said that what was in issue was a short point of interpretation.  Paragraph 16(2)(l) had to be interpreted and applied with 3 factors in mind:-

	“(1)	The use of the words ‘who are part of the same family as the claimant’,

		(2)	The paragraph 16(1) provision that the loan must be used within 6 months of receipt or such further period as may be reasonable in the particular circumstances of the case

		and

		(3)	Paragraph 10 of CIS/16936/1996 in which the Commissioner says that it is clear from the way in which [paragraph 16] is structured that one must determine the question of whether or not the particular work constitutes allowable ‘repairs and improvements’ at the time of taking out the loan and that its purpose must be determined then.

Mr Scoon accepted that the claimant’s was a hard case and that under different circumstances she would have been allowed the interest on the loans for the extension as eligible housing costs.  However, he submitted, she falls outside of the ambit of paragraph 16.

21.	Mr Scoon did not think that it could be said that the 1995 amendment regulations’ replacement of paragraph 8 of the old Schedule 3 with paragraph 16 in the current schedule 3 could be regarded as retrospective legislation in its application to the claimant.  The new form of the General Regulations, including schedule 3, operated from 2 October 1995 and the question was whether or not the claimant qualified under those new regulations when she made her claim in 1997.  On the grounds that it might just possibly assist the claimant’s case, Mr Scoon referred me to Commissioner’s decision CIS/1050/1998.  The issue in that case was whether or not a tribunal had been correct to find that a repair fell within the terms of item (c) of paragraph 16(2) which specifies “damp proof measures” as one of the categories of works which constitute repairs and improvements for the purposes of the General Regulations.  That decision, he said, was not directly in point whereas CIS/16936/1996 is and is, therefore, the more relevant guidance.  However, CIS/1050/1998 might be helpful to the claimant in that in paragraph 6 the Commissioner says that a liberal construction of paragraph 16 is appropriate in deciding whether or not the works in question come within the ambit of sub‑paragraph (2).

23.	I have to reject the contention that there has been a breach of the rules of natural justice in this case.  The rules of natural justice are the principles of fairness, impartiality and lack of bias which apply to the conduct of judicial and some other decision‑making processes and there has been no suggestion in this case that either the adjudication officer or the tribunal breached any of those principles.  I do not think there is any concept of natural justice in relation to Parliament’s enactment of legislation or its approval of subordinate legislation made by Government Ministers such as the Income Support (General) Regulations and the 1995 Amendment Regulations which enacted the new Schedule 3.  Subordinate legislation can be declared by the Courts or, in the case of social security legislation, by a Social Security Commissioner to be void by reason of being out with the powers of the government minister making it if it has a retrospective effect which is not authorised by the primary legislation under which it was made.  Mr C has argued that in this case the 1995 Amendment Regulations have a retrospective effect on the claimant but I agree with Mr Scoon that there is no retrospection in this case.  The regulations could only be regarded as retrospective if they had the effect of removing from the claimant some right which had accrued to her before the date of the enactment.  In this case that has not happened.  As Mr C himself argues, his daughter-in-law was not a claimant for benefit until some two years after the enactment of the amendment regulations.  

24.	As I have noted above, Mr C argued that the effect of paragraph 16(2)(l) of Schedule 3 must be contrary to what Parliament intended and in the course of his oral submissions he asked if a Commissioner could not ascertain the intention of Parliament.  The answer to Mr C’s question is that there are occasionally cases in which because of ambiguity in the language of legislation it is appropriate for the Courts or the Commissioners to look at the record of statements made in Parliament to ascertain the intention of Parliament.  I doubt if there would be any such record to which I could refer in this case.  The 1995 Amendment Regulations were subject to negative resolution Parliamentary procedure.  Under that procedure there would be no discussion of the regulations in Parliament unless after they had been made and laid before Parliament a Member or Members moved motions to the effect that the regulations should be revoked.  I am not aware that there was any such motion and consequent discussion in this case.  

25.	However, where there is a difficulty about the interpretation of regulations which have been made by a minister, a Social Security Commissioner may look at the relevant report by the Social Security Advisory Committee to ascertain the policy which the regulation in question is intended to implement.  I accept that there is a difficulty about the interpretation of paragraph 16(2)(l).  In that view I am supported by the Commissioner who decided CIS/14657/1996.  That decision deals with, among other things, the same question as to what is the date at which children should have attained 10 years of age to bring works of improvement within the ambit of item (l) and includes the following paragraphs:-

“18.	Paragraph 16(2)(l) had no counterpart in the old Schedule 3 and I do not find it easy from the wording to understand the principle it is intended to implement.  A purely literal interpretation of para 16(2) is in my judgment impossible as although the opening part of sub‑paragraph refers only to measures ‘undertaken with a view to maintaining the fitness of the dwelling for human habitation’, the list that follows makes it plain that numerous measures are to be allowable even though they go beyond what is required to render or keep a dwelling fit for human habitation in the well established meaning of that expression under the housing legislation.”

and 

	“	22.	In this context the tribunal were right in my judgment to hold that the reference to ‘separate sleeping accommodation for children of different sexes aged 10 or over’ in para 16(2)(l) should be read somewhat broadly.  Bearing in mind the requirements of the housing legislation and the perverse results which a literal construction could produce, para 16(2)(l) should I think be taken as satisfied by a loan incurred for the purpose of providing any child who is part of the same family as the claimant with a separate bedroom once he or she is aged 10 or over so that he or she does not have to share with anyone of the opposite sex, except that boys must put up with sharing with other male members of the family over that age and girls with other females, and any of them may have to put up with sharing with one or more younger ones who for the time being are still aged under 10.”.

26.	Therefore, since the intended effect of paragraph 16(2)(l) in all the circumstances which can arise is not clear from the text of the provision itself,  I have looked at Command Paper 2905 in which is published the Social Security Advisory Committee’s report to Parliament on its consideration of the draft of the 1995 Amendment Regulations.  That paper includes also the Secretary of State’s statement to Parliament made in compliance with section 174(2) of the Social Security Administration Act 1992, as to how those regulations give effect to the Committee’s recommendations and, where appropriate, the reasons for the regulations not having given effect to any such recommendation.  Appendix 2 to the Command paper is a copy of the memorandum submitted to the Committee by the Secretary of State with the draft regulations.

27.	In paragraph 16 of the memorandum (page 36 of the Command Paper) it is stated:-

“The Government further proposes that loans for improvements so that children of different sexes over the age of 10 should have separate sleeping arrangements, and provision for loans to adapt premises to meet the needs of a disabled person, should continue to be met.”.

On page 7 of the Command Paper it is recorded that the Advisory Committee’s recommendations included:-

	“	(12)	That the list of repairs and improvements in the existing Schedule 3 is maintained as the minimum acceptable provision.”.

The Secretary of State’s response to that recommendation is recorded as including the following paragraph:-

“The memorandum on the proposals outlined that there would be a provision in the Regulations to allow a home to be adapted to meet the needs of the disabled and for provision of separate sleeping arrangements for children of different sexes aged 10 or over.  These have been included [in the 1995 Amendment Regulations as made by the Secretary of State and laid before Parliament] as specific provisions.”.

28.	I read those passages from the Command Paper, particularly paragraph 16 of the Secretary of State’s memorandum, as indicating that in 1995 the Secretary of State intended that the Amendment Regulations would leave the eligibility as housing costs of interest paid on a loan which had been obtained with a view to providing separate sleeping accommodation for children of different sexes over the age of 10 as it was under paragraph 8(3)(k) of the pre‑1995 version of the Schedule 3.  The effect of that provision was that interest on a loan which was taken out for the purpose of creating accommodation which at the date of any claim for Income Support was being used to provide separate sleeping accommodation for 10 year old children of different sexes would have been an eligible housing cost irrespective of the original purpose of the extra accommodation, irrespective of the ages of the children when the loan was taken out and irrespective of whether or not the borrower was a claimant for a Income Support when the loan was taken out.  Therefore, a literal interpretation of paragraph 16(2)(l) of the Schedule in its current version represents a limitation on the eligibility of housing costs which is not consistent with the ministerial policy evidenced by the Command Paper.  It is, therefore, necessary to adopt a purposive approach to the interpretation of paragraph 16(2)(l) and interpret it in such a way as gives effect to the stated policy behind it insofar as that can be done without ignoring a clear enactment to the contrary.  

29.	Turning first to the adjudication officer’s argument that the tribunal’s interpretation of paragraph 16(2)(l) is supported by Commissioner’s decision CIS/16936/1996, I have to say that I do not agree because that decision is not exactly in point.  The facts of that case were that the children in question were under the age of 10 when the loan was taken out and were still 3 years and 4 years, respectively, under that age when the adjudication officer made his decision.  The argument put to the Commissioner was that despite the children not having attained the age of 10 at the date of claim the loan in question still came within the ambit of the paragraph if it was in fact envisaged that the claimant would go on living in the extended house and that the children would eventually attain the age of 10.  The facts of this case are different because the claimant’s son had already reached the age of 10 at the date of claim and one daughter had reached that age at the date of the adjudication officer’s decision on 15 June 1998.  Also the argument put to the tribunal in this case was not that the paragraph applied even if the children had not reached the relevant age at the date of claim.  On the contrary, the argument put to both the tribunal, and to me is that as the oldest child had attained age 10 at the date of claim the grammatical structure of paragraph 16 and the logic of the Income Support Scheme is that sub-paragraph (2)(l) applies.  

30.	Except for two points which I shall explain later the claimant’s argument is, to my mind, sound and supported by CIS/14657/96 to which I have already referred.  In paragraph 23 of that decision the Commissioner states:-

“Moreover the condition that a loan must have been taken out ‘for the purpose of’ the improvements within paragraph 16(2)(l) is in my judgment wide enough to permit a tribunal to be satisfied on the facts and evidence before it that a loan falls within head (l) if incurred to provide children of each sex with a separate bedroom, in circumstances where only one is actually over 10 at the date the borrowing or the building work takes place, but another of the opposite sex is going to be attaining that age within a year or so.  This was evidently the view taken by the tribunal on the facts of the present case and I do not think it at all unreasonable for them to have accepted as within the purpose for which the loan was taken out and the money used something that barring some terrible accident was bound to happen in the reasonably near future.  I can find no error of law in their reaching such a conclusion on the evidence before them; nor in my judgment is it inconsistent with the wording of paragraph 16(2)(l), as a reference to ‘children aged 10 or over’ is apt in such a case to include children aged 10 or over at the date of the claim and then requiring (mandatory) separate sleeping accommodation, when the loan had been taken out for the express purpose of providing exactly that.”.

31.	I think it possible that if the Commissioner who wrote the decision CIS/16936/1996 had been asked to consider a case in which the facts were either as in this case or as in CIS/14657/96 he would have come to the same conclusion as did the Commissioner in the latter case and would not have expressed the view that the applicability of paragraph 16(2)(l) is determined by the age of the children at the date on which the loan was taken out. I have to say, but with great respect to the learned Commissioner, that I do not agree that the grammatical structure of the paragraph requires such an interpretation.  Firstly, had it been intended that the effect of paragraph 16, should be more restrictive than the policy stated in the memorandum to the Advisory Committee that intention could have been met with the necessary clarity by the draftsman’s employing the same past tense in sub-paragraph (2)(l) as he employed in the opening words of sub‑paragraph (1).  Secondly, given what is known to be the policy behind the inclusion of item (l) in paragraph 16, given the use of the present tense in that item and given the anomalies which arise if the CIS/16936/96 interpretation is applied in all cases, I am of the view that it is the children’s age at the date of claim or at the date of the adjudication officer’s decision on the claim, if they were not 10 years old at the earlier date, which is relevant.  For that reason, therefore, I have decided that the tribunal’s decision is erroneous in law and has to be set aside.

32.	The claimant’s written submissions and Mr C’s oral arguments are all to the effect that as the claimant’s son was over the age of 10 at the date of claim paragraph 16 was satisfied.  That is not correct.  I can see why a 10 year old or his parents would not want him to be sharing with 8 or 9 year olds of the opposite sex but the wording of 16(2)(1) is, I think, unambiguous in providing that there must be at least two children aged 10 and those two must be of different sexes.  That is also the view of Commissioner Howell in CIS/14657/96 (see his paragraph 22 quoted in paragraph 25 above).   In this case, therefore, the terms of 16(2)(l) were satisfied as regards the children’s age on 1 April 1998, that is after the date of claim, and that should have been reflected in the adjudication officer’s decision of 15 June 1998 and in the tribunal’s decision.

33.	Apart from the age of the children, the other criterion which has to be satisfied for the claimant’s housing costs to be eligible under item (l) is the purpose for which the relevant loan was taken out.  At first sight it would seem that on the facts of this case that criterion is a major stumbling block for the claimant.  Considered in isolation, the evidence constituted by the early correspondence in the appeal file including the letter of appeal, would indicate that the claimant’s and her husband’s purpose in extending their house was not to provide separate accommodation for children of different sexes.  They had at the time of taking out the loan only one child with a second child expected and according to what is said in that correspondence the purpose of the second bedroom was to prevent either child disturbing the other’s sleep.  I may be reading too much into the correspondence but I have the impression that the couple were particularly concerned about this because their son’s sleep was disturbed by asthmatic attacks.  It was therefore desirable that he should not be disturbed additionally by the new baby and that, in turn, the baby should not be disturbed by him when he was suffering one of his attacks.  On that evidence it could not be said that the purpose in taking out the loan was to make provision for the separation of the sexes  

34.	Could the claimant be assisted out of that difficulty by the reasoning of the Deputy Commissioner Mitchell who decided CIS/1050/1998 which Mr Scoon very fairly drew to my attention?  On that Commissioner’s reasoning even if the original purpose of the accommodation financed by the loan in question was not the separation of children of different sexes aged 10, by the date of the adjudication officer’s decision that was the effect of the extra accommodation and paragraph 16(2)(1) was satisfied.  That result would be consistent with the policy revealed by the Command Paper from which I have quoted.  

35.	However, the flaw in that approach is that it is contrary to the specific terms of paragraph 16.  Sub-paragraph (1) of paragraph 16 specifies that the loan must have been for one of 3 specific purposes.  The relevant purpose in this case is “repairs and improvements”.  Sub-paragraph (2) defines “repairs and improvements” as being certain specific “measures” undertaken with a view to maintaining the fitness of the dwelling [occupied as the claimant’s home] for human habitation.  One of the specified measures is the “provision of separate sleeping accommodation for children of different sexes aged 10 or over.  It seems to me that despite what the Command Paper indicates to be the ministerial policy on this matter sub-paragraphs (1)(a) and (2)(l) read together have the effect of restricting the ambit of (l) to accommodation which was, at the time at which the loan in question was taken out, intended to afford a 10 year old sleeping accommodation separate from other 10 year olds of the opposite sex so that the fitness of the dwelling for human habitation would be maintained.  The provision of some amenity accommodation, such as a study or dining room, which by the date of claim is being used as a bedroom would not come within (2)(l) even although it would have been a qualifying measure under the old paragraph 8(3)(k) if it was a reasonable improvement in the circumstances at the time it was undertaken.  I do not think, therefore, that CIS/1050/1998 assists the claimant in this appeal if the separation of the sexes was no part of her purpose in providing the extra bedroom.  To this extent I agree with the author of CIS/14657/96.

36.	Nevertheless, I do not think that the claim is defeated on the matter of purpose.  Bearing in mind the policy behind the inclusion of item (l) in paragraph 16(2) and the view shared by Commissioner Howell (in CIS/14657/96), Deputy Commissioner Mitchell and myself that a broad approach should be taken to the interpretation of paragraph 16 I do not think that, for paragraph 16(2)(l) to apply, provision of separate accommodation for children of different sexes needs to have been the sole or even the main purpose in taking out the loan which financed the provision of the additional sleeping accommodation.  I think it would be enough that it was one of two or more purposes.  

37.	It is highly improbable that when a couple embark on the extension of their house to provide sleeping accommodation for their child or children and for other children which they intend to have that they will not automatically give some thought to the fact that the completed family might be of different sexes and that, therefore, there will eventually require to be a separation of the sexes.  In this particular case the tribunal chairman’s record of proceedings includes a note of an exchange between the claimant and the presenting officer in which the latter remarked that at the time of taking out the loan the claimant was pregnant but would not know that she was going to have a daughter .  The claimant’s answer to that was that she knew that she was going to have a daughter because she had been scanned.  I am, therefore, satisfied that in fact when the claimant and her husband took out the loan in question although the immediate need for an additional bedroom which they had in mind was to avoid either child disturbing the other’s sleep it must also have been in their minds that the day would come when their son and the expected daughter would require separate sleeping accommodation.  In that factual situation Commissioner Howell’s reasoning applies and the loan was for the purpose of, among other things, meeting a foreseeable and inevitable future need which had arisen by the date of, in this case, the adjudication officer’s decision.  

38.	It might be argued that in the foregoing paragraph I am reading too much into Commissioner Howell’s decision.  In the case with which he was concerned there was a much shorter time between the taking out of the loan and the date of claim by which the children had attained age 10 but, again having in mind the Minister’s stated policy and the anomalies which would arise from a stricter interpretation of the provision, I think that the timescale does not matter.  The claimant comes within the broad category of those who are intended to be assisted with their housing costs by the Income Support Scheme in that at the date of the adjudication officer’s decision her family included children of different sexes of an age at which they required separate sleeping accommodation and the provision of that accommodation had been financed by a loan for the interest on which the claimant is liable.

39.	The adjudication officer’s reasons for restricting the claimant’s eligible housing costs to the initial loan of £26,000 were, according to his written submission to the tribunal, not limited to the fact that the children were all under age 10 when the loans in question were taken out.  There seem to have been questions as to whether all of the money raised by the additional loans had been used for the provision of the additional bedroom, when the work was carried out, the amount of the interest or other charges which the claimant was required to meet in respect of the money which had been borrowed, and the nature of those other charges.  Those questions were not determined by the tribunal because they were rendered irrelevant by its decision on the question of the children’s age.  I have, therefore, decided the points of  interpretation which were in issue in this appeal and have left it to the Secretary of State to reassess entitlement in the light of my interpretation of paragraph 16.  For that reassessment he will require the information the lack of which the adjudication officer mentions in paragraph (3) of Box 4 of his submission to the tribunal.  The claimant should supply that information.  If the resultant assessment is disputed the claimant can appeal again to a tribunal.  However, in the event of the claimant wishing to make such an appeal she will have to be alert to the fact that by virtue of the Social Security Act 1998 the Social Security Appeal Tribunal has been replaced by a unified tribunal and that there are new procedure regulations with which appellants have to comply.  

40.	For the foregoing reasons the claimant’s appeal succeeds and my decision is in paragraph 1 above.

					(Signed)	R J C Angus
							Commissioner

					(Date)	8 March 2000