PLH                                                                             Commissioner's File:  CIS 1501/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Income Support
Appeal Tribunal:	Birmingham 
Tribunal case ref:	U/04/024/2001/04711
Tribunal date:	22 October 2001
Reasons issued:	17 January 2002

1.	My decision is that the decision of the Birmingham appeal tribunal sitting on 
22 October 2001 to refuse the claimant any deduction for the purposes of her income support from the income she received for accommodating two students in her home was incorrect in law and I set it aside.  As I am invited to do by the very well-expressed and helpful written submission by Mr J Westerman on behalf of the Secretary of State dated 21 May 2002 at pages 89-92, I substitute the decision I am satisfied the tribunal should have given on the evidence before them and the findings they themselves made. This is that the claimant’s income from the two students staying in her house should have been subject to the deduction (or “disregard”) specified in paragraph 19 schedule 9, Income Support (General) Regulations 1987 SI No. 1967, of £13.25 a week each, that is £4 in respect of their occupation and £9.25 at the relevant time (£9.40 from 8 April 2002) for heating which was included in what they received for the £50 per week they each paid.
2.	The facts are recorded with admirable clarity in the tribunal’s statement of reasons sent to the parties on 17 January 2002, at pages 62-63 of the appeal file.  As there explained:
	“The appellant was in receipt of income support.  On 9 January 2001 the appellant notified the Benefits Agency that she had taken two students into her home for the period 6 January 2001 to 15 April 2001.  The students were to pay the appellant £50 per week each for room only.  The arrangement was purely oral: there was no written agreement.  On 2 February 2001 the appellant wrote to the Benefits Agency to say that she supplied unlimited tea, coffee, sugar, milk, toast, jam and cereal for the students to prepare their own breakfasts.  The students supplied and cooked all their other meals.  The appellant said that the students did not sub-let from her, they all lived as a family.”  
3.	On that basis the tribunal recorded first a finding that the students were not persons who “normally resided” with the claimant, since the arrangement was for a fixed period and therefore a transitory arrangement.  That finding is not in dispute on the appeal.  Its effect is that there can be no disregarding of the weekly money the claimant received from her students under paragraph 18 of schedule 9 since that is limited to contributions towards accommodation costs made by persons normally resident with the claimant.
4.	Nor does there appear to be any substantial ground of dispute over the tribunal’s second finding, which is that the facts did not establish that the appellant was providing “board and lodging accommodation” for her students so as to qualify for the disregard of £20 a week or more of income from that source under paragraph 20.  Although anybody with experience of how much students can eat will be impressed by the generosity of the claimant providing unlimited quantities of tea, coffee, sugar, milk, toast, jam and cereal at no extra charge, it is plain that what she was doing was providing the materials for the students to cater for themselves, rather than cooking or providing them with meals herself on a regular basis so as to constitute “board” for the purposes of paragraph 20.  I can see no ground for disturbing the tribunal’s finding on that question either.
5.	That however leaves the tribunal’s third finding which is conceded by the Secretary of State to have been incorrect, that there could be no disregard either under the provisions of paragraph 19 for a relatively small part of the amounts paid under a contractual liability to make payments in respect of the occupation of her dwelling by the students.  The stated ground for this was that although as recorded by the tribunal as a fact there was an arrangement between her and the students that they would pay her £50 a week each for the accommodation they got, this arrangement was purely oral and there was no written agreement.  
6.	In my judgment the appellant’s representative was plainly right in arguing, and the Secretary of State’s submission equally right in conceding, that the tribunal’s conclusion on this issue appears to involve a complete non sequitur.  The mere fact that the arrangement, which was quite obviously something agreed between the claimant and the students, had not been reduced to a formal written document did not of course prevent it being an agreement between them, binding on normal contractual principles and giving rise to just as good a contractual liability in English law as any other concluded by offer and acceptance in the usual way.  I am for my part unable to see how given their own findings of fact, the tribunal could without misdirecting themselves as to the law have concluded as they did that “the arrangement between the appellant and the students did not place a contractual liability on the students to make payments to the appellant”. On the contrary, it seems to me it must have done exactly that.  
7.	Accordingly, as invited in the Secretary of State’s written submission and not opposed by the claimant’s representative in the reply observations dated 19 June 2002, I substitute the decision set out above that the claimant is entitled to have the total of the two prescribed amounts for occupation and heating disregarded under paragraph 19 of schedule 9.  
8.	The appeal is allowed and my decision substituted accordingly.

(Signed)
P L Howell
Commissioner
12 July 2002