[2007] UKSSCSC CIS_1915_2007 (30 October 2007)

CIS/1915/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  This is a supported appeal by a claimant with the leave of a tribunal chairman from a decision of the Colchester Appeal Tribunal given on 9 November 2006 dismissing the appeal of the claimant from a decision of a decision maker dated 4 July 2006 that the claimant was not entitled to income support from 4 July 2006 because her capital exceeded the prescribed level.  For the reasons given below, the appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the decision maker and finding that the claimant’s capital did not exceed the prescribed level on 4 July 2006 so that no grounds for superseding the then existing award of income support had been established.  I remit to the secretary of state the calculation of the outstanding income support to which the claimant is entitled as a result of this decision.

2.	  The claimant is or was married.  She lived with her husband and children in the matrimonial home, which she owned jointly with her husband.  The marriage was an arranged one.  On 24 May 2005, she left the matrimonial home with her children.  Her husband continued to live there.  In November 2005, she applied for and was awarded income support.  The matrimonial home was valued at £199,000, with a mortgage of just under £48,000, so that there was equity of about £151,000.  The claimant started divorce proceedings, but came under family pressure to return to her husband in the matrimonial home.  She did not want to do so, fearing that her husband would be violent as, she asserted, he had been in the past, but as at 3 July 2006, because of the family pressure, she was considering whether to go back.

3.	  Until that time, the value of the claimant’s interest in the matrimonial home had been disregarded because the decision maker had considered that the claimant was taking reasonable steps to gain her share of the property by bringing divorce proceedings, but on 4 July 2006 the decision maker decided that the disregard could no longer apply because the claimant had stopped taking steps to obtain her share of the property.  The decision maker valued that share at £75,500 less 10 per cent selling expenses, arriving at a valuation of £67,950.

4.	  In her appeal notice dated 12 July 2006, the claimant stated that she had fled an arranged marriage and domestic violence.  She had started divorce proceedings but family pressure had led her to postpone her divorce.  She did not want to return to her husband but at that time did not feel strong enough to stand up to her family.  She was hoping that a meeting of professionals arranged for August, with some of her family attending, would help her family to understand that she was unable to return to her husband and that she could proceed with her divorce.  She provided a letter from Colchester Primary Care Trust referring to a meeting to be held on 14 August 2006, which referred to potential child protection risks should she return with her children to the marital home.

5.	  By a letter dated 5 September 2006, the claimant stated that a meeting was held, attended by her parents and health professionals, that the child protection risks were explained to her family by the professionals, but were ignored by them.  They still wanted her to return to her husband.  As a result a further meeting had been arranged with her family, domestic violence police and a child protection officer.  She stated that she could not commence divorce proceedings until after that meeting as her family knew where she lived and would come round and hassle her.  If she did not have any success at that further meeting, she would have to run away again and then start divorce proceedings.

6.	  By a further letter dated 21 September 2006, the claimant wrote that she was arranging to be rehoused as she was still getting a lot of pressure from her family to return to her husband.  Once she had moved, she would restart her divorce proceedings, but at that time she was very scared of her family.  

7.	  On 3 October 2006, the decision of the decision maker was reviewed but not revised.

8.	  By letter dated 16 October 2006, the claimant wrote again, explaining that she had moved and changed her name, and would be hiding away from her family while her divorce went through, which she would be starting soon.  She was very offended by a statement in the decision notice of 3 October that she did not feel strong enough to stand up to her family, and explained that she came from an Asian cultured background, that she had three children to look after, that her family could end up killing her, and that she was very weak and on anti-depressants and sleeping tablets.  

9.	  The claimant had asked for a paper hearing, and the tribunal concluded that the appeal could be decided on such a hearing.  It found that the claimant had, at the date of the decision, a share in the matrimonial home worth £67,950, and that she had put the divorce on hold on 3 July 2006, so that the capital had to be taken into account from that date.  In essence, the tribunal accepted the claimant’s evidence, but decided that the regulations had been correctly applied in determining her relevant capital.

10.	In my judgment, the tribunal erred in law both in its calculation of the value of the claimant’s share in the matrimonial home and in failing to disregard that capital.

11.	Under regulation 49 of the Income Support (General) Regulations 1987, capital which a claimant possesses in the United Kingdom is to be valued 

“(a) except in a case to which sub-paragraph (b) applies, at its current marker or surrender value, less-
(i)	where there would be expenses attributable to sale, 10 per cent; and
(ii)	the amount of any incumbrance secured on it.”

12.	The tribunal has committed the all too common error of valuing the claimant’s interest as half the value of the property less the amount needed to discharge the mortgage.  The question which it ought to have asked is at to the price which somebody would have paid on the open market on 4 July 2006 to purchase that interest from her (See the decision of the Court of Appeal in CAO v. Palfrey, R(IS)26/95).  It is self-evident that that would have been significantly less than £67,950, although it may still have been well in excess of the prescribed level, but there is no valuation evidence on the point and it is unnecessary for me to deal further with that question, as, for the reasons given below, I am satisfied that the whole value of that interest ought to be disregarded in any event.

13.	Under regulation 46(2) of the Income Support (General) Regulations 1987, capital specified in Schedule 10 to those Regulations is to be disregarded.  The tribunal has failed properly to consider what provision in Schedule 10 covers the case of a joint owner of a property in the claimant’s situation and how it should be applied to this claimant.  All that the tribunal has stated in the statement of reasons is that the claimant’s situation had altered and it was not established that the claimant would proceed with her divorce and the sale of her share of the matrimonial home;  and that the claimant had not indicated the ground under Schedule 10 on which she was relying to extend the disregard of her capital.

14.	The secretary of state has contended on this appeal that the relevant disregard is paragraph 26 of Schedule 10.  This relates to 

“Any premises where the claimant is taking reasonable steps to dispose of those premises, for a period of 26 weeks from the date on which he first took such steps, or such longer period as is reasonable in the circumstances to enable him to dispose of those premises.”
	
15.	For this purpose, the secretary of state appears to be proceeding on the basis that the claimant has an undivided share in the matrimonial home, which constitutes premises.  Those premises are to be disregarded, and therefore the claimant’s undivided share in the premises is to be disregarded, for a reasonable period, provided that the claimant is taking reasonable steps to dispose of them.  The only practical way of disposing of the premises in the context of the break up of the marriage, and with a husband who will not co-operate, is through matrimonial proceedings. 

16.	That also appears to be the basis on which the decision makers approached the matter, and it appears to me to be a sensible practical interpretation of paragraph 26.  The decision makers appear to have considered that if the claimant did not proceed with the divorce proceedings even temporarily, paragraph 26 would no longer assist her, as she was no longer taking reasonable steps to dispose of the premises through those proceedings.

17.	On this appeal, the secretary of state has submitted that a more flexible approach should be taken to the question of reasonableness, so that if there is a break in the divorce proceedings, whether to see if a reconciliation could be achieved, or because of family pressures or threats of violence if they are proceeded with, all the factors need to be looked at to determine whether the claimant is taking reasonable steps in relation to the proposed divorce.

18.	In my judgment, the secretary of state is right that in considering the reasonableness of the period taken by the claimant to secure a divorce and the resulting disposal of the premises, including any temporary suspension of such action, it is necessary to look at all the facts, including the pressures that were brought on this claimant.  The tribunal failed to approach the matter in this way, and on this account also it was in error of law.

19.	I therefore set aside the decision of the tribunal.

20.	It appears to me that this is a case in which I can substitute my own decision.  The claimant had requested a paper hearing before the tribunal and there is nothing in her evidence to cast doubt on her credibility.  She has now put in further evidence as to the problems which she faced.  I do not need to set out the details, but it is apparent from her witness statement dated 11 September 2007, taken together with the evidence that was before the tribunal, that it was very reasonable for her to put her divorce proceedings on hold until she had moved to another address where she was safe from attack, and until the severe family and emotional problems from which she was suffering had been at least partially resolved.

21.	I am therefore satisfied that at 4 July 2006, the steps taken by the claimant temporarily to suspend her divorce proceedings until she had moved to a new address and changed her name to secure her safety did not mean that she was no longer taking reasonable steps to dispose of the premises through divorce proceedings.  She was taking such steps by moving home and putting herself in a position where she could safely proceed.

22.	In the circumstances, it is unnecessary to consider the arguments addressed by the representatives of the claimant as to the effect of Articles 8 and 14 of the European Convention on Human Rights on the construction of the Income Support Regulations, and as to the applicability of paragraph 4(b) of Schedule 10 to those Regulations to the facts of this case.

23.	The appeal is allowed and I give the decision set out in paragraph 1 above.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		30 October 2007