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Neutral Citation Number:
Reported Number: R(IS)7/07
File Number: CIS 1757 2006
Appellant: (R (Hook) v Social Security Commissioner and Secretary of State for Work and Pensions)
Judge/Commissioner: Judge E. Jacobs
Date Of Decision: 03/07/2007
Date Added: 08/12/2006
Main Category: Capital
Main Subcategory: Notional Capital: deprivation
Secondary Category:
Secondary Subcategory:
Notes: 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).
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