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Neutral Citation Number:
Reported Number:	R(H)2/09
File Number:	CH 51 2008
Appellant:
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	25/09/2008
Date Added:	06/10/2008
Main Category:	Earnings and other income
Main Subcategory:	Other income and payments
Secondary Category:	Housing and council tax benefits
Secondary Subcategory:	other
Notes:	Earnings and other income – whether reduction in incapacity benefit because of receipt of occupational pension is “any deduction by way of recovery” Housing and council tax benefit – whether “gross income” means incapacity benefit actually received after reduction by virtue of section 30DD of the SSCBA 1992 or the notional full rate The claimant was in receipt of an occupational pension and incapacity benefit reduced from the full rate to take into account the occupational pension in accordance with section 30DD of the Social Security Contributions and Benefits Act 1992 (the 1992 Act). In dealing with his claim for council tax benefit the local authority had taken into account the amount of incapacity benefit actually paid, but on 22 May 2007 reassessed his entitlement back to April 2004 using the standard rate of incapacity benefit payable rather than the actual amount paid to the claimant following the section 30DD reduction, relying on regulation 30(5) of the Council Tax Benefit Regulations which provides that “where payment of any benefit … is subject to any deduction by way of recovery the amount to be taken into account … shall be the gross amount payable”. The claimant appealed to a tribunal which agreed with the local authority’s interpretation of the regulation and upheld the decision. A District Chairman granted the claimant leave to appeal to a Commissioner. Held, allowing the appeal, that: 1. regulation 30(5) did not apply on the facts of the case. The claimant’s incapacity benefit was not “subject to any deduction by way of recovery” but subject to a reduction by virtue of the operation of section 30DD of the 1992 Act: no amount was being “recovered” from his benefit entitlement (paragraph 16); 2. the correct approach was to assess the claimant’s income based on (a) his gross occupational pension payments (see R(IB) 3/05), (b) the actual rate of incapacity benefit in payment after any reduction under section 30DD and (c) any other relevant income. The Deputy Commissioner set aside the decision of the tribunal, substituted his own decision as above and directed the local authority to recalculate the claimant’s entitlement accordingly.
Decision(s) to Download:	R(H) 2-09 bv.doc