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Neutral Citation Number:
Reported Number: R(IS)14/93
File Number: CIS 18 1990
Appellant:
Respondent:
Judge/Commissioner: Dr D. G. Rice
Date Of Decision: 04/09/1992
Date Added: 28/06/2002
Main Category: Commissioners' procedure and practice
Main Subcategory: Commissioners' practice
Secondary Category:
Secondary Subcategory:
Notes: Notional capital - deprivation of capital before income support was introduced - whether deprivation capable of being “for the purposes of securing entitlement to income support” In November 1987 the claimant received £38,777.45 from the sale of the matrimonial home. On 19 November 1987 he deposited £28,000 in his bank. He withdrew various sums including £8,000 on 30 November 1987 and £18,500 on 3 December 1987. On 21 December 1987 his account was overdrawn. On 16 December 1987 he claimed supplementary benefit. On 15 March 1988 the adjudication officer disallowed the claim. On 1 February 1989 the social security appeal tribunal dismissed his appeal on the basis that he possessed actual capital in excess of the prescribed limit of £3,000. They did not believe the claimant’s statement that he had paid £18,500 to his creditors. On 13 February 1989 he claimed income support. On 20 March 1989 the adjudication officer disallowed the claim on the basis that he possessed actual capital in excess of the prescribed limit of £6,000. On appeal the tribunal found that the claimant had not actual capital and intimated that they wished to consider the difficult question whether the claimant had notional capital under regulation 51(1). They refused the adjudication officer’s application for an adjournment. They decided by majority that he had deprived himself of a considerable capital sum for the purposes of obtaining supplementary benefit but found unanimously that that did not affect his claim for income support. On appeal the adjudication officer conceded in his written submission to the Commissioner that the claimant, at the relevant time, had no actual capital. Held that: 1. the Commissioner has inquisitorial jurisdiction and has to consider every point relevant to the issue, whether put forward by the parties or not and he was not bound by any concession made by either party (para. 7); 2. the adjudication officer was expected to deal with the question whether or not the claimant had actual capital in excess of the prescribed limit. When the tribunal concluded that he had not, an extremely difficult point of law (whether he had any notional capital) arose. In those circumstances the adjudication officer should have been given an adjournment to consider his arguments on the issue (para. 8); 3. it is puzzling why it was that regulation 51(1) was not drafted with the words “supplementary benefit or” between the words “to” and “income support”. Without such express words there is a strong case for saying that the legislature never intended regulation 51(1) to embrace the deprivation for the purposes of securing entitlement to supplementary benefit (para. 13); 4. regulation 51(1) was not a new provision. It came into existence with the income support legislation which conferred benefits, and the regulation posed a restriction on such benefits. This was not a case where, after income support had come with its concomitant benefits into operation, the regulation was subsequently brought into existence operating in response to events which had previously taken place (Yew Bon Tew v. Kenderaan Bas Mara (PC) [1983] AC considered) (paras. 15-16); 5. there is nothing to prevent regulation 51(1) operating retrospectively if its provisions are relevant to the facts in question. At the time the claimant divested himself of the property income support did not exist. It is difficult to see how a person could deprive himself of property for the purposes of obtaining income support, if such benefit at that time was non-existent (Secretary of State for Social Security and Another v. Tunnicliffe [1991] 2 ALL ER 712 followed [R(G) 4/91]; unreported decision CIS/259/1990 not followed) (paras. 15-16); 6. when the claimant divested himself of capital in November/December 1987 he simply could not have done it with the intention of obtaining income support because that was a benefit which, not withstanding that the Royal Assent had been given to the Social Security Act 1986, at that time still did not exist. Nor could it be said that the description “income support” only meant the means tested benefit which previously went under the name “supplementary benefit”. Although the income support scheme and the supplementary benefit scheme have characteristics in common, including means testing, they are in no sense identical. The benefits are differently calculated and the income scheme was drafted afresh as a wholly new scheme (para. 16).
Decision(s) to Download: IS14_93.doc IS14_93.doc