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Neutral Citation Number:
Reported Number: R(IS)5/07
File Number: CIS 2661 2006
Judge/Commissioner: Judge D. Williams
Date Of Decision: 19/01/2007
Date Added: 20/02/2007
Main Category: Capital
Main Subcategory: Disregards: home and other premises
Secondary Category: Capital
Secondary Subcategory: Valuation
Notes: Capital – disregards: home – need to clarify whether former partners are estranged or separated, when estrangement occurred and if former partner a lone parent Capital – value of a joint tenant’s interest in a house – whether always half the net capital value – need to make full enquiry into relevant circumstances The claimant applied for income support, declaring that she owned the former matrimonial home with her husband, who still lived there. As she had no intention of selling the house or starting divorce proceedings, she relied on R(IS) 1/03 to assert that she should not be regarded as having any interest in the house for benefit purposes. The claim was nevertheless refused on the ground that she had capital worth half the net value of the house. She appealed and the Secretary of State submitted to the tribunal that none of the disregards of capital in Schedule 10 to the Income Support (General) Regulations 1987 applied. The tribunal upheld her appeal. The Secretary of State asked for the decision to be set aside but was instead granted permission to appeal. He argued before the Commissioner that the tribunal did not have the full facts before it so should not have decided as it did. Following a direction from the Commissioner to make a submission on R(IS) 1/03, the Secretary of State said that it was irrelevant. The claimant’s solicitors in response raised in addition the issue that the claimant might only have a future interest in the property and referred to R(IS) 1/97. Held, allowing the appeal, that: 1. the tribunal was wrong in law in failing to establish the full facts before deciding whether any of the disregards of capital in Schedule 10 applied, paragraphs 4, 5 and 25 being potentially relevant. The facts necessary to decide paragraphs 4 and 25 were whether the claimant was estranged from her husband, when the estrangement occurred and if her husband was a lone parent (paragraphs 18 and 33(1)); 2. the facts necessary to decide paragraph 5 were the arrangements concerning the husband’s continued occupation of the property. If they were of the kind considered in R(IS) 1/97 the claimant might have had no current interest in the property. R(IS) 1/03 excluded any additional rights she might have had were she to take matrimonial proceedings (paragraph 23 and 33(2) and (3)); 3. the Secretary of State was wrong in assuming the claimant had capital worth half the net value of the whole house and failed to establish whether the claimant held the property with her husband as a joint tenant or a tenant in common. Following Hourigan v Secretary of State for Work and Pensions [2002] EWCA Civ 1890, [2003] 1 WLR 608 (also reported as R(IS) 4/03), applying regulation 49, the claimant’s interest as a joint tenant to title to her “half” of the house should have been valued. The valuation should have been the current market value of the claimant’s “half” of the house sold at the date of the decision under appeal, with her husband in it as of right and not willing to buy her out or to sell, in conjunction with her, his “half” of the house (CIS/3197/2003 and R(JSA) 1/02 followed). If the claimant’s interest was as a tenant in common, Hourigan was directly relevant (paragraphs 24 to 31 and 33(4)). The Commissioner remitted the appeal to a differently constituted tribunal to decide on the facts.
Decision(s) to Download: R(IS)_5-07_bv amended.doc R(IS)_5-07_bv amended.doc