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	UK Social Security and Child Support Commissioners' Decisions
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[2002] UKSSCSC CIS_781_2002 (09 July 2002)

 
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 Bournemouth appeal tribunal, held on 8^th October 2001 under reference U/03/185/2001/00589, 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 appeal tribunal must investigate and determine the claimant's eligible housing costs. In particular, it must investigate the issues set out in paragraphs 11 to 14 of the Secretary of State's submission on pages 39 and 40 of the papers. I direct the tribunal that the costs of the central heating system are not eligible.

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 the leave of a district chairman of tribunal.
6. I directed an oral hearing of this appeal. It was held before me in London on 8^th July 2002. The claimant did not attend, but was represented by Mr D Ward of her local CAB. The Secretary of State was represented by Miss R Topping of the Office of the Solicitor to the Department for Work and Pensions.

The issues

7. This appeal concerns the claimant's housing eligible costs under paragraph 16(2) of Schedule 3 to the Income Support (General) Regulations 1987.
8. The Secretary of State and the claimant are agreed that the tribunal went wrong in law by failing to investigate sufficiently thoroughly the possible heads under which some costs might be eligible. Those possibilities are set out in paragraphs 11 to 14 of the Secretary of State's written submission on pages 39 and 40. I need do no more than draw the attention of the tribunal at the rehearing to those paragraphs.
9. I need only deal with the issue on which I directed an oral hearing: the cost of the claimant's central heating system.
10. When the claimant bought her home, it had two storage radiators. She replaced them with a boiler and 10 radiators. Mr Ward principally argued that the cost was an eligible housing costs as 'repairs to existing heating systems' (head (b)). He also argued, albeit briefly, that the cost was eligible as 'damp proof measures' (head (c)).

Head (c)

11. I can deal with this argument as briefly as it was made. One of the functions of a heating system is to dry damp that penetrates the home. Head (c) covers measures that prevent damp penetration. It does not include measures to counteract the damp when it has penetrated into the home.

Head (b)

12. Mr Ward's argument concentrated on the concept of a heating system rather than on its component parts. He emphasised its function. Any step necessary to restore a system to its proper function involved a repair. He distinguished a repair from an improvement, relying on comments in landlord and tenant cases where the distinction was drawn.
13. I put to Mr Ward that his argument came to this. If I take a written-off Mini into a garage and come out with a Mondeo, I have repaired my system of automotive transport. He responded that this was what his argument would prove.
14. I reject Mr Ward's argument. I do so by reference to the wording of head (b) in isolation and by comparison of the wording with other heads.

The language of head (b)

15. Head (b) refers to 'repairs'. There is in principle a clear distinction between; (a) providing a heating system where none existed before; (b) repairing an existing heating system; (c) improving a system; and (d) replacing a system.
16. 1. (a) is clearly not covered by the present legislation. Mr Ward did not argue otherwise.
17. 2. (b) involves changing a part of the system that does not work or putting it back into working order. A repair may have as an incidental effect an improvement in the system.
18. 3. (c) may involve the extension of the system or the replacement of some parts of the system to make it more efficient, effective or modern. An improvement may result from a repair, but an improvement does not necessarily involve a repair. If the system is working properly before the improvement, there will be no repair.
19. 4. (d) may be undertaken for two reasons. It may be done in order to obtain a more efficient, effective and modern system. Or it may be done because the existing system is in such a poor state that it can no longer be repaired. At the extreme of this latter possibility, the system is in such a state that for all practical purposes, there is no heating system at all. At that point, there is no useful distinction between (a) and (d).
20. There will be difficult cases to classify. In some cases, it may be difficult to tell whether a repair was really necessary or was an improvement in disguise. In other cases, there may have been such extensive repairs that the result is an almost new system. These, however, do not affect the distinctions that exist in principle. Nor do they affect the way that the tribunal should approach the case. Repair is a word in regular use. It does not need to be defined for a tribunal, although I have tried to capture the essence of it in (b). The tribunal simply has to make findings of fact on what has been done and then determine as a matter of fact whether what has been done is a repair to an existing system.

The language of head (b) compared to other heads

21. Head (b) refers to 'repairs', as does head (j). Most of the other heads refer to 'provision'. Given that contrast, it is impossible to argue that the provision of a system where none existed involves a repair. However, as my analysis has shown, if a system is effectively defunct, its replacement is indistinguishable from the provision of a new system. Mr Ward's argument involves giving the system a metaphysical existence despite its failure to fulfil its function. That part of his argument was in conflict with his emphasis on function. Once a heating system ceases to function, it is no longer a 'heating system'. It may or may not be a system. But it is no longer a heating system.

The facts of this case

22. Applying my analysis to the facts of this case, there can only be one decision that is open to anyone familiar with the proper use of language. Before the claimant undertook the work, there were two storage radiators. They were either not working or they were not effective at heating and drying her home. The existing system was defective. It might have been possible to repair it. The claimant did not do that. It might have been possible to repair and, in addition, to improve the system. The claimant did not do that. What the claimant did was to install a completely brand new central heating system consisting of a boiler and 10 radiators. There is only one possible analysis of that. It was a replacement system.

Rationality

23. I have considered whether this produces a result that is irrational. If an interpretation produces an irrational result, that casts doubt on its correctness. I put to Miss Topping that her argument produced the result that the cost of running repairs was an eligible housing costs, but when the system was beyond repair, the replacement cost was not. So, when the claimant most needed financial assistance, it was not available. She accepted that that was the result of her argument. It was, she said, unfortunate, but the proper interpretation.
24. I have concluded that the interpretation is not irrational. The law refuses financial assistance as of right to a claimant who does not have a heating system but who wants to provide one. It gives that assistance as of right to allow the costs of repairs to an existing system, but draws the line at replacement. It ensures that the claimant is able to make running repairs to a system, so that it can be maintained so long as it is viable. However, once the system is beyond repair, it is indistinguishable from the provision of a system where none existed before. At that point, assistance is no longer available as of right. It leaves the claimant to apply for a discretionary and repayable budgeting loan from the social fund. Given that the provision or replacement of a system is likely to cost considerably more than repairing a system, that is a rational disposition of limited public funds.

Authorities

25. Mr Ward relied on the decision of Mr Commissioner Howell in CJSA/7070/1999, paragraph 9. That paragraph contains a brief reference to the replacement of defective storage heaters as an eligible housing cost. The decision does not disclose the information necessary to show whether the Commissioner's comments are consistent with my analysis. It would be surprising if they were inconsistent, but if they are, there is nothing to show it. The remarks are of no authoritative value and I am sure they were not intended to be.
26. Mr Ward also relied on a distinction between repairs and improvements drawn in landlord and tenant cases. Miss Topping argued that the context of those cases was different from Schedule 3 to the Income Support (General) Regulations 1987. I accept Miss Topping's argument. The distinction is drawn to separate the responsibilities of the landlord from those of the tenant. I do not find remarks in that context helpful in interpreting social security legislation.

Signed on original

Edward Jacobs Commissioner 9th July 2002