(R (Hook) v Social Security Commissioner and Secretary of State for Work and Pensions) CIS 1757 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 03 July 2007 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Capital |
| Docket Number | CIS 1757 2006 |
| Appellant | (R (Hook) v Social Security Commissioner and Secretary of State for Work and Pensions) |
R(IS) 7/07
(R (Hook) v Social Security Commissioner and Secretary of State
for Work and Pensions [2007] EWHC 1705 (Admin))
|
Mr E Jacobs Commissioner 29 November 2006
HC (Nicholas Blake QC) 3 July 2007 |
CIS/1757/2006 CIS/1807/2006 CH/1822/2006 |
Capital – deprivation – capital disposed of by person who later became claimant’s partner – whether to be treated as claimant’s notional capital
Human rights – capital disposed of by person who later became claimant’s partner – whether counting as notional capital of disabled claimant in breach of Article 8 of the Convention
The claimant was severely disabled and in need of substantial care. In March 2005 Ms H came to live with him as his partner and carer. His awards of income support and housing benefit were terminated on the ground that his partner had deprived herself of substantial capital before coming to live with him with the intention of securing future benefits for herself and the claimant and that the capital fell to be treated as his notional capital under regulation 51 of the Income Support (General) Regulations and equivalent housing benefit legislation. The claimant appealed to a tribunal, arguing that Ms H’s purpose in disposing of the capital had not been to secure entitlement to benefit, and that the notional capital rule could not apply to deprivation by a future family member. The tribunal dismissed the appeal, finding that Ms H’s account of her reasons for disposing of her capital was not credible and that the notional capital rule did apply to deprivations made by someone who only later becomes the claimant’s partner. The claimant applied for leave to appeal to a Commissioner. Before the Commissioner it was additionally argued that to apply the notional capital rule in the claimant’s circumstances was harsh and irrational or in breach of Article 8 of the European Convention on Human Rights (right to respect for family life). The Commissioner refused leave to appeal, holding that the tribunal had adequately explained why it did not accept Ms H’s evidence and confirming that the notional capital rule did apply by virtue of regulation 23(1) (and equivalent housing benefit legislation), which provides for references to “claimant” to be construed as references to the claimant’s partner for the purposes of calculating income and capital. The relevant regulations were authorised by section 136 of the Social Security Contributions and Benefits Act and their effect was in principle neither oppressive nor irrational as they fulfilled an anti-avoidance function in a proportionate way. He assumed, without deciding, that Article 8(1) did apply, but held that any interference with family life was justified in terms of Article 8(2) as necessary in the interests of the economic well-being of the country in fulfilling that anti-avoidance function. He further held that, even if there were a violation of Article 8, it was not within his power to remedy it. The claimant applied to the Administrative Court for judicial review of the Commissioner’s refusal of leave. Before the Administrative Court it was accepted that the only real issue upon which it was sought to quash the Commissioner’s refusal of leave was his consideration of human rights questions.
Held, by the Administrative Court, dismissing the application, that:
1. having regard to the fact that this was a review of a specialist expert tribunal in the field of detailed social security regulation concerning entitlement to public funds, the test to be applied to avoid unnecessary expense and to achieve the desirable aim of finality was that a very substantial point of law was required (Connolly [1986] 1 WLR 421 and R (Sinclair Gardens) v The Lands Tribunal [2005] EWCA Civ 1305, [2006] 3 All ER 650 followed) (paragraphs 4 to 6);
2. while circumstances could arise where positive obligations are engaged to require the state to provide a disabled person with housing, and to abstain from interference in important aspects of his private and family life, the issues in such matters are fact-specific and depend upon careful factual evaluation of the impact of the decision in question on the individual, and cannot be dealt with in schematic ways by references to the Human Rights Act in written grounds without developing the argument as to how it is suggested that human rights are engaged or infringed in the particular case, or at least how the approach to determination of that question should be developed (Marzari v Italy (1999) 28 EHRR CD175 followed) (paragraph 35);
3. if the Commissioner had concluded that the application of the regime to the claimant had been a violation of his Article 8 rights, there were a number of remedies open to him, including that of declaring the regulations void (paragraphs 42 to 45);
4. the Commissioner’s reasons for considering it necessary in the interests of the economic well-being of the country to deny benefit in this case were adequate in the absence of more developed argument, relying particularly upon the impact on the claimant as a disabled person, and the points raised were not sufficiently substantial to meet the test for grant of relief (paragraphs 52 and 53).
DETERMINATIONS OF THE SOCIAL SECURITY COMMISSIONER
1. I refuse the claimant leave to appeal against the decisions of the Ashford appeal tribunal given on 6 February 2006 under references U/45/174/2005/00860, 00861 and 01031.
The issues
2. I have to decide two issues. Both concern the actions and motivations of the lady who is now the claimant’s partner. I shall refer to her as Ms H. First, did the tribunal go wrong in law in deciding that in disposing of her capital Ms H acted with the significant operative purpose of securing entitlement to income support? Second, does the notional capital rule apply to deprivations made by someone who only later becomes the claimant’s partner?
3. I raised another issue before the hearing. This was dealt with by the Secretary of State’s representative in paragraphs 10 and 11 of her written submission. This was not the subject of argument at the oral hearing and I need not mention it further.
The oral hearing
4. The applications for leave to appeal in these cases were referred to me and I directed that they be decided at an oral hearing. I held the hearing in the Commissioners’ court in London on 25 October 2006. The claimant and Ms H attended. Their solicitors, Kingfords, had secured legal services funding for representation only a few days before the hearing. Fortunately, they were able to instruct Mr Desmond Rutledge, of Counsel, in time for the hearing. The Secretary of State was represented by Miss Lisa Busch, also of Counsel. I am grateful to both Counsel for their interesting and helpful arguments. The local authority informed the Commissioners’ office that it would not be represented at the hearing and would rely on the submissions of the Secretary of State. Following the hearing, I received further written submissions from Mr Rutledge and, in reply, from Miss Busch.
The income support claims
5. The claimant was receiving income support when, on 22 December 2003, he telephoned his local social security office and asked how his benefit would be affected if his girlfriend (Ms H) were to move in as his partner on 2 January 2004. He was advised that her entitlement to a jobseeker's allowance would cease and that the value of her house would be taken into account as capital. On the following day, he rang again and said that Ms H would not be moving in with him.
6. Ms H later commented on the claimant’s enquiry:
“… please note at that time I had no intention of coming down to Kent and living as a carer in his house since we were merely good friends and being a carer to him was a huge commitment. I also had my own commitments in London where I was living at the time. Our friendship was re-established and we became closer since January this year [2005] but I only decided to move down to Kent in March this year.”
7. On 17 March 2005, the claimant submitted a claim for income support. This claim is the subject of CIS/1807/2006. He claimed on behalf of himself and Ms H, declaring only £700 capital. There was no mention of Ms H’s house. Ms H explained that she had been employed for three years and had been made redundant in December 2002. She had then received what she called unemployment benefit (actually jobseeker's allowance) until February 2004. She had had to sell her home to clear her outstanding debts in May 2004. Her only income from February 2004 had been the proceeds of sale and she no longer had any savings.
8. Ms H received £151, 907.69 from the sale of her house. I do not need to deal with every item of expenditure. It is sufficient to mention that she paid...
To continue reading
Request your trial