DECISION OF THE SOCIAL SECURITY COMMISSIONER

File no: CIS/5119/2001

1.	This is an appeal by the Claimant, brought with my leave, against a decision of the Newcastle-upon-Tyne Appeal Tribunal made on 11 October 2001. For the reasons set out below the Tribunal’s decision was in my judgment erroneous in law and I set it aside. In exercise of the power in s.14(8)(a)(i) of the Social Security Act 1998, however, I substitute the decision which the Tribunal ought in my judgment to have made. That is to vary the decision of the Secretary of State made on 6 June 2001 and to substitute the following decision:

	The Claimant’s application by letter dated 25 January 2001 for 
	supersession of the previous decision that he is not entitled to housing 
	costs in respect of the part of his loan attributable to provision of an 
	additional bedroom is refused. There are no grounds to supersede that 
	decision. That element of the loan continues not to qualify for housing 
	costs.

       In substance the Claimant’s appeal to me has therefore failed.

2(1)	In January 1991 the Claimant took out a home improvement loan of £17,400 
	for the purpose of building an extension consisting of a new kitchen and a 
	third bedroom. His children had been born in July 1984 and June 1988 and so 
	were then 6 and 3. On 29 November 1996 the Claimant made a fresh claim 
	for income support. The adjudication officer decided that no part of the 
	improvement loan qualified for housing costs under that fresh claim.

(2)	However, on 24 September 1997 a social security appeal tribunal (“the first tribunal”) allowed the Claimant’s appeal to the extent that the part of the loan attributable to the kitchen was held to qualify (but not the part relating to the additional bedroom). The first tribunal further decided that 60% of the loan related to the cost of the kitchen.

(3)	On 28 July 1999 Deputy Commissioner Cole dismissed the Claimant’s appeal in so far as it related to the bedroom. However, as regards the kitchen he referred the matter to a new tribunal so that further facts could be found on the questions (a) whether what had been done amounted to the “provision” of facilities for preparing and cooking food and if so (b) how much of the loan related to provision of those facilities.

(4)	On 27 January 2000 a new tribunal (“the second tribunal”) decided (a) that what had been done in respect of the kitchen did amount to “provision” of facilities for preparing and cooking food (so that the part of the loan attributable to the kitchen did qualify for housing costs) and (b) that 60% of the loan (i.e. £10,326) was attributable to the kitchen.

(5)	On 16 October 2000 Miss Commissioner Fellner allowed the Claimant’s appeal against the second tribunal’s decision and substituted a decision that the amount of the loan attributable to the kitchen was £14,101. It was accepted before her that the part of the loan attributable to the bedroom did not qualify and that the part attributable to the kitchen did, the only issue before her being as to the correctness of the second tribunal’s decision as to the amount of the loan which was attributable to the kitchen.

(6)	On 25 January 2001 the Claimant wrote stating, in the first paragraph of his letter:

		“Could I please have my housing costs reviewed in light of these three 
		commissioner decisions [CIS 14657/96, CIS 834/97, CIS 1678/99] and the 
		relative ages of my children being 16 and 12 at this moment in time to be 
		taken into consideration.”

(7)	On 6 June 2001 a letter was written to the Claimant by the Benefits Agency stating that it was in reply to “your letter asking for the commissioners decision dated 27 January 2000 to be reviewed.” The letter further stated: “I have looked at this decision and agree with the original outcome to allow £14,101 of your loan only.”

(8)	By the decision which is now under appeal to me the Tribunal (“the third tribunal”) dismissed the Claimant’s appeal against the decision of 6 June 2001. The Secretary of State does not support this appeal.

2.	The first tribunal’s decision, upheld by Deputy Commissioner Cole in that respect, was that the part of the loan attributable to the bedroom did not qualify for housing costs. That decision continues to bind the Claimant as regards his entitlement to income support pursuant to his existing award unless and until the decision is superseded. The question for the decision maker on 6 June 2001 and for the third tribunal was therefore whether there were any grounds for supersession.

3.	I accept that there is considerable difficulty in determining which, for this purpose, is the operative decision which would have to be superseded. I accept the Claimant’s submission that the relevant decision is not that of Miss Commissioner Fellner, because it had by then already been decided (and was not challenged before the second tribunal or before her) that the part of the loan attributable to the bedroom did not qualify. I think that, technically, the decision which would have to be superseded is the decision of Deputy Commissioner Cole of 28 July 1999, rather than the decision of the first tribunal on 24 September 1997. That is because, although Mr. Cole held that the first tribunal was right in relation to the part of its decision relating to the bedroom, he did hold that the first tribunal’s decision was erroneous in law in respect of the kitchen and therefore he in my judgment probably had no option but to set the whole decision aside. His decision therefore began, correctly, by stating: “I set aside the tribunal decision of 24 September 1997.” What he was in form doing, therefore, was to set aside the whole of the first tribunal’s decision (it not having been possible, in my judgment, to set aside only part of it) and to substitute a decision (a) that the bedroom costs did not qualify but (b) that the issues whether the kitchen costs qualified, and if so how much they were, should be remitted to a new tribunal. However, it would be unsatisfactory for me to rest my decision solely on the footing that the decision to be superseded was that of Mr. Cole, rather than that of the first tribunal, partly because the first tribunal’s decision notice and reasons are not before me, and they may have a bearing on which is the decision which would have to be superseded. I therefore propose to consider the matter on either footing.

4.	On either footing the only grounds for supersession which might possibly be applicable are (1) that there has been a relevant  change of circumstances since the decision was made (Reg. 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”) or (2) that the decision was made in ignorance or, or was based on a mistake as to, some material fact (Reg. 6(2)(c) of the 1999 Regulations). The ground of error of law (Reg. 6(2)(b)(i)) cannot on any view apply because it only applies to decisions of the Secretary of State, not to decisions of appeal tribunals or Commissioners.

5.	If the decision which requires to be superseded was that of Mr. Cole, it is in my judgment clear that no ground for supersession applied. The ground relied upon by the Claimant is change of circumstances, the change being that his children have both attained the age of 10. But that had happened by the date of Mr. Cole’s decision. I emphasise that the change must, under the terms of Reg. 6(2)(a), be one which has occurred “since the decision” was made, and that means since the decision which is sought to be superseded (which is why it can be important to identify the decision to be superseded). Nor can Mr. Cole’s decision be said to have been based on a mistake of fact: Mr. Cole was well aware that the Claimant’s children were then both 10. If the decision which requires to be superseded is that of Mr. Cole, the Claimant’s argument is in reality that, in the light of (in particular) the decision of Mr. Commissioner Angus in CIS/1678/1999, Mr. Cole’s decision was wrong in law. But that is not a ground for supersession of a Commissioner’s decision.

6.	If, on the other hand, the decision which requires to be superseded was that of the first tribunal, the Claimant can at least argue that there has been a relevant change of circumstances since that decision was made in that the Claimant’s younger child did not attain the age of 10 until 1998. However, that was only a “relevant” change of circumstances if the law is that the fact of one or more children attaining the age of 10 can cause a loan to become a qualifying loan for housing costs under para. 16 of Schedule 3 to the Income Support (General) Regulations 1987 when previously it was not. In my judgment that is not the law. 

7.	Under para. 16 of Schedule 3 to the Income Support (General) Regulations 1987

	“ (1) A loan qualifies under this paragraph where the loan was taken out ….for the 
	         purpose of  -

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

(2)	In sub-paragraph (1) “repairs and improvements” means any of the following measures ……..

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

8.	The Claimant relies on the decision of Mr. Commissioner Angus in CIS/1678/1999 (decided on 8 March 2000, well after Mr. Cole’s decision). Mr Commissioner Angus held that if the two children of different sexes are over the age of 10 by the date of claim (or decision on the claim) the loan qualifies, whether or not they were (or were shortly to become) 10 at the date when the loan was taken out. If that were correct, I think that the Claimant would be correct in saying that, on the footing that the decision to be superseded is that of the first tribunal, rather than that of Mr. Cole, there has been a relevant change of circumstances since the first tribunal’s decision. However, I regret that I must disagree with that part of Mr. Commissioner Angus’ decision. It in my judgment conflicts with the decision of Mr. Commissioner Howell in CIS/14657/1996. He held that para. 16(2)(l) applies only where at the time of taking out the loan two children of different sexes are already or are within a year or so to become 10. It conflicts even more clearly with the decision of that same Commissioner in CIS/2711/97, to which the Secretary of State has referred me, and which was not referred to by Mr. Commissioner Angus in his decision. Mr. Commissioner Howell set out his reasoning very clearly in paras. 9 to 12 of CIS/2711/97. In para. 9 he said:

	“However, the testing of the purpose of the loan and whether the conditions in para. 
	16 are satisfied has in my judgment to be done by reference to the circumstances of 
	the children and the family as they stood at the time the loan was taken out and the 
	money used in carrying out the repairs and improvements. It is this time that has to 
	be looked at, not any later date when a claim for income support happens to be 
	made: still less some yet later week during the continuation of the claim when for 
	example a child who was under ten at the start of it attains that age.”

9.	I find the reasoning of Mr. Commissioner Howell in paras. 10 and 11, namely that the liabilities are fixed at the date when the loan is taken out, and that that necessarily places the focus on the nature and purpose of the original liability at the time it was taken out rather than any later date, utterly convincing. Further, Mr. Commissioner Angus’ primary reasons for reaching a contrary view were the much wider terms of the previous legislation and the extracts which he cited in his para. 27 from Command Paper 2905 and the Secretary of State’s response to it. However, with respect, I do not regard those extracts as indicating, and certainly not with sufficient clarity, that the new legislation would be intended to have the effect which Mr. Commissioner Angus attributed to it rather than that which Mr. Commissioner Howell has done. Indeed, those extracts seem to me to be entirely neutral on this question. It is true that under the previous legislation (which contained the wide words “other improvements which are reasonable in the circumstances”) it mattered not how old the children were when the loan was taken out. But the extracts cited from the Command Paper and the Secretary of State’s response do not in my judgment justify construing the much more limited terms of the new legislation in the way in which Mr. Commissioner Angus did. 

10.	The decision of the third tribunal – i.e. the decision under appeal to me – was not based on quite the above reasoning. Further, it purported to uphold the decision maker’s decision, which appears to have regarded Miss Commissioner Fellner’s decision as the one which needed to be superseded (which I have held not to be the case). It is for those reasons that I set aside the third tribunal’s decision. But, by my decision in para. 1 above, I am substituting a decision to the same effect.

                    (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                              28 May 2002