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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2003] UKSSCSC CIS_4843_2002 (15 January 2003) URL: http://www.bailii.org/uk/cases/UKSSCSC/2003/CIS_4843_2002.html Cite as: [2003] UKSSCSC CIS_4843_2002

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[2003] UKSSCSC CIS_4843_2002 (15 January 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. 1. The decision of the Oxford appeal tribunal under reference U/04/048/2002/00701, held on 18^th July 2002, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.

The tribunal must first investigate and determine whether the claimant and her husband were estranged. If they were not, the disregard in paragraph 4(b) of Schedule 10 to the Income Support (General) Regulations 1987 applies and no other question arises. 'Estranged' bears its normal meaning. The Secretary of State cites R(SB) 2/87. The Commissioner there made some comments on the nature of estrangement in paragraph 8. However, he was not defining the word. And, anyway, any definition by a Commissioner of an ordinary word would not be binding.

If they were, the disregard does not apply. The tribunal must then investigate and determine by reference to valuation evidence the value of the claimant's interest in the dwelling.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State supports the appeal.

The issue

6. This case concerns an alleged overpayment of income support. The key issue is whether the claimant had capital in excess of the permitted threshold. The capital in question is the former matrimonial home. Two questions arise.
7. The first question is whether the value of her interest in the former home may be disregarded under paragraph 4(b) of Schedule 10 to the Income Support (General) Regulations 1987. This disregards capital represented by

'4. Any premises occupied in whole or in part by-

(b) the former partner of a claimant as his home, but this provision shall not apply where the former partner is a person from whom the claimant is estranged or divorced.'

8. The premises were, at the relevant time, occupied by the claimant's husband. She was separated from him, but they were not divorced. So, she was entitled to the disregard, unless she and her husband were estranged. The tribunal found that they were estranged. At the least, the tribunal failed to explain why it made that finding. At worst, it equated separation and estrangement.
9. The claimant has asked why she is not a relative of her husband. If she is, the disregard in paragraph 4(a) applies. 'Relative' is defined in regulation 2(1). It incorporates the definition of 'close relative'. Neither definition makes the claimant's husband her relative for the purposes of this provision.
10. The other question only arises if the disregard does not apply. It is: what is the value of the claimant's interest? The value would be affected by a number of factors. I mention three. One was the state of the property. Another was the fact that the couple were, I believe, in the process of getting divorced. That meant that the interests of the parties were potentially under the control of the court and liable to be divided differently from their consensual ownership. Last, the sale of the claimant's interest with her husband still in residence would depend on the willingness of the court to order sale. That would affect not only the value of her interest as something she could sell, but also as something on which she could raise money. The state of her husband's mental health reduced the likelihood of such an order being made. Clearly, the second and last points interrelate.

Summary

11. I allow the appeal and direct a rehearing.

Signed on original

Edward Jacobs Commissioner 15th January 2003