PLH                                                                             Commissioner's File:  CIS 2056/02

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:	Leicester 
Tribunal case ref:	U/42/038/2001/01161
Tribunal date:	4 January 2002
Reasons issued:	8 February 2002

1.	This appeal by the Secretary of State is allowed, as in my judgment there were clear errors of law in the decision of the Leicester tribunal chairman sitting alone on 4 January 2002, when he decided that the claimant’s allowable housing costs for the purposes of the income support claims she made in the year 2000 should include the mortgage interest on aggregate borrowings of £55,000 made by her and her former husband under three separate loan arrangements to purchase, repair and improve the house in which she and the children still live.  The chairman’s decision (not helped by some rather sweeping submissions by the welfare rights officer acting for the claimant, or by the Secretary of State’s failure to be represented at all at the appeal hearing) unfortunately omitted to make sufficient findings of fact on the nature and purpose of the repairs and improvements in question, instead purporting to determine the entire case in favour of the claimant by reference to some widely stated principles on human rights, though so far as I can see those had very little bearing on the actual facts at issue.  
2.	I set the decision aside, and exercise the power in section 14(8)(a) Social Security Act 1998 to give instead the decision I am satisfied the tribunal ought to have given on the facts it did find and the evidence on those it left undetermined.  This is that the claimant was entitled to have her income support housing costs calculated under Schedule 3, Income Support (General) Regulations 1987 SI 1967, at the 50% rate from 31 May 2000 and at the 100% rate from 4 October 2000, on the following amounts she and her former husband had borrowed on mortgage from the Halifax Bank:
(1) £37,000 (not in dispute) for the original purchase of the house; plus
(2)	 £8,000 (also now not in dispute) further advance on 30 July 1992, for the extension of the house and related works to provide separate sleeping accommodation and facilities for the claimant’s youngest son who suffered from kidney problems: the tribunal chairman found this £8,000 was used to adapt the dwelling for the special needs of a disabled person and was allowable under paragraph 16(2)(k) of Schedule 3, and on this appeal the Secretary of State does not seek to challenge that; plus
(3)	 £4,861 (but no more) out of the further advances totalling £10,000 borrowed from 28 March 1994 onwards: that is the £3,611 already allowed by the Secretary of State in the decision of 21 November 2000 under appeal, plus a further £1,250 which on the evidence before the tribunal I am satisfied ought also to have been allowed, the evidence being insufficient to show a right to any more.
3.	According the findings of the tribunal the claimant and her then husband bought the property, at that time a bungalow with only one bedroom, with the aid of a joint mortgage from the Halifax in 1990.  At that time they had three young boys and their fourth son, who unfortunately suffered from kidney and urinary problems since his early months, was born in March 1991.  In 1992 they extended the property with the aid of the first of their further loans from the Halifax, for £8,000, to provide additional bedrooms for the children and in particular to cope with the additional needs to which their youngest son’s condition gave rise.  As noted above the tribunal chairman expressly found that this loan, and the improvements for which it was used, all fell within paragraph 16(2)(k) by which a loan qualifies for income support housing costs if used to adapt a dwelling for special needs of a disabled person, and that is now accepted in the Secretary of State’s submission on this appeal at pages 89-93, paragraph 15.  
4.	Finally in 1994 the claimant and her husband had further repairs and improvements carried out with the aid of another £10,000 advanced to them by the Halifax.  The only issue on this appeal, which arises from the income support claim she made on 5 April 2000 after the marriage ended and she was left as a single parent looking after the children, is how much of that final tranche of borrowing should have been treated by the tribunal chairman as “qualifying” for mortgage interest support under paragraph 16 of Schedule 3, in addition to the original £37,000 and the further £8,000.
5.	The claimant was not able to give proper details in her claim of what the £10,000 advanced in 1994 had been spent on; and the only available evidence is from departmental records of what they were told about this by the claimant’s former husband in 1995, when he was making his own separate claim for income support (and when, it is important to understand, the allowable housing costs under Schedule 3 were more generous than they are now).  
6.	From the available details, the work carried out in 1994 seems to have to consisted of quite a number of different items including some structural repairs, insulation and double glazing, together with various finishing-off works such as additional plastering and woodwork, provision of new bathroom and kitchen equipment, and laying carpets and other floor coverings, to a better standard than had been possible on the available money when the main extension work was done two years before.  
7.	Of these items, the Secretary of State’s officer in the decision of 21 November 2000 under appeal was satisfied that eight were fully allowable under the new Schedule 3 provisions then in force and applicable: these (for such matters as wall insulation, making the stairs safe, remedial plasterwork and brickwork) totalled £3,611, as itemised in the supplementary submission to the tribunal on page 46.  However the remaining five claimed (for floor coverings, finishing of woodwork, bathroom and kitchen equipment and fitting out a utility/washroom, totalling £6,825), were held not allowable because:  
“…the amounts for the bathroom and kitchen would not be allowable because these were already in the property and the amounts for the utility room, floor covering and finishing of woodwork are not covered by paragraph 16.”  
8.	The information in the department’s records from the claim in respect of these same amounts made by the claimant’s ex-husband in 1995 showed that the “woodwork” item of £475 was for the provision of new skirting boards and architraves and an airing cupboard; the other items for the bathroom and kitchen equipment, floor coverings and utility room were explained by him in a phone call (pages 53-54) as follows:  
“When he originally had the bathroom moved upstairs, the original old sink and bath were put in as they couldn’t afford new ones, the walls were just left plastered.  The £1,800 has been spent on a new bathroom suite and tiles.  The £2,600 was spent on a new sink and worktops as when the kitchen was altered they could not afford the new sink and units, have managed with the old sink and a couple of old units that were not suitable.  The £750 for supplying and fitting utility/washroom was spent to put in a toilet/shower room, hand basin and plumbing for the washing machine.  This was done because their son … only has one kidney that works and they needed additional washing and toilet facilities.  The £1,200 floor covering includes carpets, the kitchen and utility room had no floor covering, just solid concrete floors.  About £500 of this amount was spent on stone tiles for the kitchen and utility room.”
9.	Instead of going through the disputed items in a systematic way and making findings on which fell within those that could qualify under paragraph 16 of Schedule 3 as “repairs and improvements” for income support housing costs, the tribunal chairman was persuaded by the arguments of the claimant’s representative to adopt a much broader approach, which he explained in his statement of reasons issued to the parties on 8 February 2002 (pages 75-77) as follows, after recording the finding already noted above that the £8,000 loan was fully allowable under paragraph 16(2)(k): 
“Having regard to the remaining £10,000 I have considered what is reasonable for a family comprising 2 adults and 4 growing children, albeit all of the same sex.  My attention was drawn by the representative to the provisions of article 8 of the European Convention of Human Rights, which was of course incorporated into the law of the United Kingdom by virtue of the Human Rights Act 1998.  I have considered the provisions regarding private and family life, and the proviso that there should be no interference with such by a public authority [except] such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime for the projection of health or morals or for the protection of rights and freedoms of others.  In my judgment it is reasonable in the present age for a family of 2 adults with 4 growing boys, one of whom has a significant health problem, that there should be reasonable accommodation by the standards of our age.  Having regard to what is accepted as reasonable in an advanced western economy and society, it is my judgment that this should encompass the provision, for example, of 3 bedrooms to accommodate 4 boys of differing ages in the interests of family privacy, health and hygiene, and allowing them to conduct a reasonable life having regard to their social needs and the need for separate accommodation within the family dwelling to enable them to pursue their studies and separate social interests.  It is accordingly on this latter point that the remaining £10,000 of mortgage was considered to qualify for mortgage interest assistance.  It was for the foregoing facts and reasons that the appeal was allowed in full.”
10.	It is against the latter part of that decision, allowing the whole of the £10,000 borrowed in 1994 to count for income support housing costs without regard to whether any or all of it fell within any particular provision of paragraph 16, that the Secretary of State now appeals on the grounds set out in the submissions on his behalf by Mr Martin on 25 April 2002 and Mr McClure on 18 October 2002 at pages 89-93, 107.  These found in particular on the submission that no identifiable breach of the provisions of Article 8 of the Convention (right to respect for family life) has been shown in the way paragraph 16 allows certain basic items of loan expenditure to qualify for the purposes of income support housing costs but not others.  They rely on the Commissioner’s decision in case CIS 2276/01 as demonstrating that Article 8, even if theoretically “engaged” in this context, is not even arguably infringed just because the income support scheme limits allowable housing costs to certain items, and does not provide yet more public assistance for the cost of whatever home improvements people have chosen to carry out.
11.	I agree with the Secretary of State that the extreme position the tribunal chairman was apparently persuaded to adopt (namely that it did not matter whether a particular cost was within paragraph 16(2) or not: Article 8 required and gave him the jurisdiction to award housing costs, not even though not provided at all for anyone in paragraph 16, as long as he was satisfied the amounts were reasonable and a family was involved) must be unsustainable.  I agree with the Commissioner in the case cited that it is extremely doubtful whether Article 8 can be relied on to create a positive right to a social security benefit, or more accurately an increased level of that benefit, when there is no provision of it for anyone under the legislation.  But in any event I can see no arguable infringement of the principle of respect for family life in this particular context, in the mere fact that a state provides public assistance for limited classes of expenditure on people’s houses only, not the full amount that an individual with or without a family may have chosen to expend to improve the standard of his or their accommodation.  
12.	The only argument put forward in the submissions of the claimant’s representative relies on the proposition that it would be contrary to Article 8 for a person not to be fully supported in providing separate sleeping accommodation for each of their children, whether of the same sex as one another or not: pages 107-8, 113.  That seems to me a completely misconceived argument on this appeal, since the expenditure now in dispute was not that in 1992 for the provision of extra bedrooms at all, but the further work in 1994 to upgrade the kitchen and bathroom equipment, floor coverings etc., elsewhere in the property to a generally newer and higher standard.  The argument for extending the scope of the “sleeping accommodation” head under paragraph 16(2)(l) by reference to Article 8 is one I for my part find hard to follow, but in any case it is completely irrelevant here, as the whole of that expenditure has already been allowed by the tribunal chairman’s undisputed decision that the 1992 loan of £8,000 all fell within paragraph 16(2)(k) by virtue of the special needs of the claimant’s youngest son.
13.	I therefore allow the Secretary of State’s appeal on the main issue of principle, and as on that basis the tribunal’s failure to make specific findings on the parts of the £10,000 loan in dispute leaves the decision incapable of standing, I have to set it aside and determine how to dispose of the case.  Since all the evidence that is likely to be available about this expenditure is already in the papers I can see no useful purpose in remitting the case to be reheard by a further tribunal and it seems to me the most expedient course is to do the best I can to give a final decision on the present material, despite its rather scant nature.  
14.	On the basis of the 1995 information given by the claimant’s ex-husband (which seems to have been accepted by the department as factually accurate, and I have no reason to doubt) it seems to me that out of the £6,825 not allowed by the Secretary of State a further £1,250 ought to have been accepted by the tribunal chairman as qualifying under paragraph 16 of Schedule 3 in addition to the £3,611 already agreed.  That comes from the £750 for supplying and fitting out the utility/washroom because of the youngest son’s special needs, which I allow for consistency for same reason as the chairman allowed the bedroom extension under paragraph 16(2)(k), plus the £500 for the tiled flooring to cover the bare concrete in that room and the kitchen, in my view necessarily incidental to the provision of the utility room itself and the facilities for preparing and cooking food and thus also allowable under paragraph 16(2)(f) and (k).  
15.	However as the passage quoted above from what the ex-husband told the department in 1995 shows the £1,800 for a new bathroom suite and tiles, and £2,600 for new sink and units in the kitchen, were spent to upgrade existing equipment which though less satisfactory was still functional; and so in my view were outside the basic level of provision that is all that paragraph 16(2) allows, even on the practical and non-literal approach to its wording that has to be in my view to be adopted in this context:  see cases CIS 14657/96, CIS 2655/97.  The balance of £700 spent on new carpets, and the £475 for new woodwork, were for general work to upgrade the finish of the property but not shown by the evidence to relate to any of the heads listed under paragraph 16(2), and consequently must also be disallowed.
16.	For those reasons, I set aside the decision of the tribunal and substitute that set out above.

(Signed)
P L Howell
Commissioner
31 January 2003