CIS 375 1992
| Jurisdiction | UK Non-devolved |
| Judge | V.G.H. Hallett |
| Judgment Date | 17 November 1992 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 375 1992 |
| Subject Matter | Income support and state pension credit |
R(IS) 10/93
Mr. V. G. H. Hallett CIS/375/1992
17.11.92
Housing costs - home larger than required by claimant and his family - whether inability to sell the home and a consequent inability to buy an alternative home is relevant to the “availability” of suitable alternative accommodation
The claimant, a married man with two dependant children, bought his house for £175,000 in 1988 with the assistance of a mortgage of £65,000. Income support was awarded from 4 October 1990 and on 16 July 1991 the adjudication officer decided that the claimant’s housing costs would be nil from 4 October 1991 because
(1) the home was larger than is required by the claimant and his family; and
(2) it is reasonable to expect the claimant and his family to obtain alternative accommodation
(3) the housing costs are regarded as excessive
The claimant appealed to a social security appeal tribunal which allowed the appeal. The tribunal’s reasons for allowing the appeal were:
“although there are homes for sale in his area, they are not in practical terms available to the claimant since, despite all his best efforts, he cannot sell his home, and therefore he does not have the resources to purchase a new home.”
The tribunal decided that the claimant’s inability to sell his home was a “relevant factor” under paragraph 10(7) of Schedule 3 to the Income Support (General) Regulations 1987. They further decided that the Department may review the decision at a later date when there is an upturn in the housing market. The adjudication officer appealed to a social security Commissioner.
Held that:
1. the inability of the claimant to obtain suitable accommodation which is on offer is a relevant factor. That factor is subjective because it must include consideration of the personal circumstances of the claimant and his family (para. 12);
2. the question of whether it is not reasonable to expect the claimant and his family to seek alternative cheaper accommodation, having regard to the “relevant factors” is just as much a question of fact as the question of reasonableness. In so concluding the Commissioner confirmed the principle, set out in R(SB) 8/88, that the decisions of social security appeal tribunals on questions of fact should not be disturbed unless there is some demonstrable error of law (para. 14).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Decision
1. This adjudication officer’s appeal fails. My decision is that the decision of the social security appeal tribunal dated 30 September 1991 is not erroneous in law.
Representation
2. I held an oral hearing of this appeal. The adjudication officer was represented by Mr. J. Polland of Central Adjudication Services, Leeds. The claimant was represented by Ms. M. Jalali of Avon and Bristol Community Law Centre.
Nature of the appeal
3. The questions of law arising in this appeal are:
(1) whether a claimant’s inability to sell his dwelling due to the state of the housing market is a “relevant factor” in terms of paragraph 10(7) of Schedule 3 to the Income Support (General) Regulations 1987, and
(2) whether a reasonable tribunal, properly instructed as to the law could have given the decision that the appeal tribunal did.
The relevant law
4. Sub‑paragraphs (5) and (7) of Schedule 3 to the Income Support (General) Regulations 1987 (as amended) provide:
“(5) Where, having regard to the relevant factors, it is not reasonable to expect the claimant and his family to seek alternative cheaper accommodation, no restrictions shall be made under sub‑paragraph (3)
.............
(7) In sub‑paragraph (5) “the relevant factors” are -
(a) the availability of suitable accommodation and the level of housing costs in the area; and
(b) the circumstances of the family including in particular the age and state of health of its members, the employment prospects of the claimant and, where a change in accommodation is likely to result in a change of school, the effect on the education...
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