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[2008] UKSSCSC CIS_102_2008 (22 May 2008)

 


CIS/102/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Social Security Commissioner in outline

1. This appeal by the claimant succeeds. The decision of the Stockport North Tribunal on 17 September 2007 under file reference 944/07/01061 is erroneous in point of law. Accordingly I set aside the decision of the tribunal. I am not, however, in a position to resolve the matter myself. I therefore have no option but to send the case back for rehearing by a fresh tribunal. The new tribunal should have regard to the matters set out in summary at paragraph 47 below.

The background to this case

2. The central issue in this appeal is whether or not the claimant is entitled to assistance with her housing costs under the income support scheme. Some of the key facts in the case are not in dispute. The claimant is a lone parent and has been in receipt of income support since 1994. She has a son, C, aged 12 at the material time, who has Asperger's Syndrome. C receives the middle rate of the care component of disability living allowance (DLA). As a result the claimant receives carer's allowance and is entitled to the disabled child premium under the income support scheme.
3. The claimant lived in London with her son until 2004. They moved to the North West in the same year to live with the claimant's mother (the grandmother). In 2006 the claimant applied for a mortgage for just over £50,000 from a building society to help purchase a shared ownership property through a housing association.
4. The income support scheme contains rules to prevent existing claimants from taking on new mortgage liabilities and having those new costs met by benefits. These rules are contained in paragraph 4 of Schedule 3 to the Income Support (General) Regulations 1987 (SI 1987/1967). The general rule, as set out in paragraph 4(2), is that where a loan is taken out in a "relevant period" (a period in which the claimant is in receipt of income support or certain other benefits) then the housing costs due on that loan will not be met by the income support scheme. It is agreed in this case that the loan was taken out during a "relevant period".
5. However, there are various exceptions to this exclusionary rule. The only exception that is potentially relevant on the facts of the present case concerns paragraph 4(9). This relates to alternative accommodation, acquired by the claimant, which is more suited to the needs of a disabled person (who need not be the claimant) than the existing accommodation. There is no dispute in this case that C is a "disabled person" for the purposes of the rather narrow statutory definition of that term in paragraph 1(3) of Schedule 3.
6. So the key question is whether the circumstances of the case fall within the particular scope of paragraph 4(9), which provides as follows:

"(9) The condition specified in this sub-paragraph is that the loan was taken out, or an existing loan increased, to acquire alternative accommodation more suited to the special needs of a disabled person than the accommodation which was occupied before the acquisition by the claimant."

7. Paragraph 4(9) has been in force since 2 October 1995. It is the direct successor of the former paragraph 5A(8) of Schedule 3, first introduced on 2 May 1994 (the legislative history is explained by Mr Commissioner Jacobs in R(IS) 1/07 at paragraph 31).  The former paragraph 5(8A) read as follows:

"The conditions specified in this sub-paragraph are that the loan was taken out, or an existing loan increased, either-

(a) to make adaptations to an existing property to meet the special needs of a disabled person; or

(b) to acquire alternative accommodation more suited to the special needs of a disabled person than the accommodation which was occupied before the acquisition by the claimaint;

and in this sub-paragraph a disabled person is a person in respect of whom a disability premium, disabled child premium, higher pensioner premium or pensioner premium for persons aged 75 or over is included in his applicable amount or would be so included but for his failure to satisfy other conditions of entitlement to income support."

8. The differences between the old paragraph 5(8A) and the current paragraph 4(9) are essentially two fold. First, the reference in paragraph 5A(8)(a) to loans "to make adaptations to an existing property to meet the special needs of a disabled person" has been removed, presumably because it was regarded as a sub-set of, and necessarily included in, the broader terms of paragraph 5A(8)(b). Secondly, the definition of "disabled person" has been updated and moved to the present definition provisions in paragraph 1(3) of Schedule 3. However, the wording of paragraph 5A(8)(b) and the present paragraph 4(9) are the same in all material respects. The terminology of the former paragraph 5A(8)(a) still appears today in the different context of loans for repairs and improvements (see paragraph 16(2)(k) of Schedule 3).

The Department's decision on the claim for housing costs

9. The Department's decision-maker who made the initial decision refusing the claimant's application for help with her housing costs did so on the basis that none of the exemptions to the "relevant period" rule applied. The claimant asked for the matter to be looked at again. She stated that the new property was better suited as it enabled C to have his own bedroom and personal space, as well as allowing the grandmother (who now lived in a different property nearby) to share care of him.
10. A different decision maker looked at the claim again. She also decided that none of the exemptions applied. In relation to the paragraph 4(9) point, she noted that the mother had not explained how the "physical structure of the property is suited to the nature of the disability" (being Asperger's Syndrome). For reasons that will become self-evident, that approach was clearly to misunderstand the relevant law.

The claimant's appeal to the tribunal

11. The mother lodged an appeal against the decision to refuse her assistance with housing costs. A local welfare rights officer provided a written submission in support of the appeal (as well as representing the claimant at the tribunal hearing). That written submission identified a number of problems with the previous accommodation (a 3-bedroomed property owned by the grandmother). These were that: (i) the grandmother had moved out to care for her own mother and had let the house to the claimant, but a claim for housing benefit had been refused; (ii) the grandmother visited regularly and stayed two nights a week, sharing a double bed with C, then aged 11; (iii) the relationship between the claimant and the grandmother was not always harmonious, and was unsettling for C; (iv) the poor relationship between the claimant and the grandmother and the former's inability to pay rent led to the latter selling the house; (v) the grandmother's house was on a main road where it was not safe for C to play or cycle outside.
12. The representative's submission also identified a number of advantages associated with the new accommodation. These were that: (i) the house was on an estate, away from the main road; (ii) it was structurally similar to the previous accommodation, but there was no need for the grandmother to stay overnight as she lived elsewhere in the neighbourhood; (iii) both the claimant and C had their own private space; and (iv) C's overall condition had improved since moving house.
13. The claimant's appeal was heard at the Stockport North tribunal on 17 September 2007 and was heard by a single legally qualified member. The experienced chairman took a full note of evidence. Her decision was to disallow the claimant's appeal and to confirm the decision of the Secretary of State.
14. The chairman subsequently issued a detailed four page Statement of Reasons for her decision. This Statement records the material circumstances that were not in dispute, identifies the relevant law and carefully explains why she came to the conclusion that the case did not fall within the "disabled person" exception contained in paragraph 4(9).

The grounds of appeal to the Commissioner

15. Mr Commissioner Turnbull subsequently granted the claimant's application for leave (permission) to appeal. In summary, the claimant's representative principal ground of appeal is that in applying paragraph 4(9) the tribunal applied the wrong legal test. The representative makes four specific points in support of this contention.
16. The first is that the chairman concluded that the previous property was not intrinsically unsuitable to the special needs of C, whereas the representative argues that the proper test is whether the new property was more suitable to his needs.
17. The second point is that the tribunal placed great emphasis on the fact that the claimant's housing benefit claim for the old property had been refused and that this was a separate reason for the claimant acquiring alternative accommodation. The representative argues that that refusal contributed towards the unsuitability of the former accommodation, as the grandmother moved back in, so increasing friction in the household.
18. The third matter relates to the chairman's finding that the claimant's refusal to use the small third bedroom in the former property (as she could not set up her computer there) was selfish. Essentially the chairman had concluded that by deploying a different arrangement all three parties (the grandmother, the claimant and C) could each have had their own separate bedroom at the former property. The representative complains that this was a value judgment rather than a conclusion based on facts.
19. The fourth point is the representative's argument that the tribunal failed to explore properly the benefits of the new accommodation, as set out in the written submission to the tribunal.
20. The Secretary of State's representative does not support the claimant's appeal. He argues that the tribunal correctly understood and applied the relevant law and reached a decision on the evidence that it was entitled to do. The Secretary of State's representative notes that the case law in this area is limited but refers me to the decision of Mr Commissioner Mesher in CIS/14551/1996. This decision was also before the tribunal at first instance and indeed was cited in support of the claimant's case by her representative in his written submission. I note in passing also that the commentary on this Commissioner's decision contained in Volume II of the annotated Social Security Legislation 2007 (by P. Wood et al.) (at p.567) was quoted in full (and without attribution) in the decision-maker's submission to the tribunal. I must therefore start with CIS/14551/1996, which was dealing with the (for present purposes) identical wording of the former paragraph 5A(8).

The decision of Mr Commissioner Mesher in CIS/14551/1996

21. At paragraph 12 of CIS/14551/1996 Mr Commissioner Mesher set out four propositions on the interpretation of what is now paragraph 4(9):

"12. Some propositions are I think clear. First, the fact that the new accommodation is more suited to the special needs of the disabled person need only be one of the reasons for the acquisition. It does not have to be the sole or predominant reason. Second, the new accommodation only has to be more suited: there is no test of whether or not it was reasonable to acquire the new accommodation. Third, the special needs of the disabled person must be needs stemming from the person's disability. That follows from the force of the word "special". "Disabled person" is given quite a wide definition in sub-paragraph (8), including those who are suffering disablements and incapacities which are not permanent (or even, for the over-75s, who have no disability at all apart from the effects of age). I consider that the person's overall mental and physical condition must be taken into account, not merely whatever condition it is that in the circumstances triggers the application of the definition. However, only needs stemming from something which amounts to a specific disease or bodily or mental disablement, i.e. of a kind identified by medical science, or from the effects of ageing for the over-75s, can be special needs of the disabled person. Fourth, within those limits (and any others discussed below), the application of sub-paragraph (8) is a matter of fact for adjudication officers and appeal tribunals. Wide words are used in the sub-paragraph and the adjudicating authorities must apply them to the circumstances as they find them, rather than some legal gloss imposed by Commissioners' decisions."

22. I agree with those observations with the single reservation as to the scope of the expression "disabled person". It is arguable that for people of working age the definition is potentially rather limiting, as it is tied into other ways in which the social security system recognises disability – for example by receipt of the disability premium in the income support scheme. So it is quite possible for an individual to be a disabled person in the lay sense of that term but not to be a disabled person for the purposes of Schedule 3.
23. On the facts of CIS/14551/1996 itself, Mr Commissioner Mesher allowed the claimant's appeal and sent the matter back for rehearing by a fresh tribunal. The reason for that decision was that the Commissioner was persuaded, on balance, that the original tribunal had erred by failing to consider the potential application of what is now paragraph 4(9) on the basis of the claimant's evidence. The appeal to the Commissioner in that case was resisted by the Secretary of State's representative, who argued that the move had been for financial reasons and that there was nothing to indicate that there was anything in the physical nature or qualities of the new accommodation which made it more suitable to the claimant's special needs as a disabled person.
24. In giving guidance to the new tribunal on the significance of financial matters, Mr Commissioner Mesher reasoned as follows, responding in part to submissions put to him on behalf of the appellant by Mr Forsdick:

"13. Difficulty does, however, arise when considering financial factors. Some of the difficulty is removed, as Mr Forsdick recognised, by the application of the third point in paragraph 12 above. Many income support claimants will be under financial stress, which is a cause of anxiety and turmoil. If the claimant concerned happens to be a disabled person, that cannot transform a "trading down" for the sole reason of reducing overall mortgage interest liabilities into something within sub-paragraph (8). It must also be the case that financial factors cannot be ignored, as in practice it will often be difficult to disentangle such factors from the circumstances as a whole. For instance, one can use an example raised during the oral hearing, of a disabled person who cannot afford to heat their accommodation adequately, although it could be heated adequately by someone with enough money. If the person's physical and mental condition is such that there is a special need for heating, I do not think that it would be doubted that smaller or more compact accommodation which costs less to heat to an adequate level is more suited to the disabled person's special needs. Similarly, one can adapt the facts of Commissioner's decision CIS/7273/1995, where the claimant moved to be near her son who could look after her. If the reason why the son could not look after the claimant in their existing accommodation was that he could not afford the traveling expenses, I do not think that that would prevent the application of sub-paragraph (8).

14. Where does the relevance of financial factors stop? Can it extend to bring the pure circumstance of an alleviation of financial stress alleviating mental stress within the scope of sub-paragraph (8)? Mr Forsdick submitted that it could extend that far if the adjudicating authority was satisfied as a matter of fact of a direct link between the characteristics of the new accommodation, including its price, and the special needs of the disabled person. That submission cannot be accepted in its entirety. Without seeking to draw any definite legal lines, I think that two particular considerations point in that direction. First, the question to be asked is whether the accommodation itself is more suited to the special needs of the disabled person, not whether the terms of the acquisition of the new accommodation make the circumstances as a whole more suited to those special needs. The relevant characteristics of the new accommodation could possibly include its running costs, but not the price that had to be paid for it or the size of the loan which had to be taken out. Second, part of the means by which in the present case the claimant expected to be relieved of financial stress (and thereby of mental stress) was by all of the loan interest on his new home being met as an income support housing cost. To allow such an expectation to work in favour of the removal of a restriction on the meeting of all the interest, through the operation of sub-paragraph (8), would be wrong. It would introduce an undesirable circularity of reasoning. Such expectations should not be taken into account."

Subsequent decisions of the Commissioner on the scope of paragraph 4(9)

25. In CIS/16250/1996 the claimant and his wife, who were both physically disabled and had very restricted mobility, had moved house from Cornwall to Somerset. Mr Commissioner Levenson compared and contrasted the two properties in the following terms (at paragraphs 4 and 6). First, he described their previous property:

"The house in Cornwall had a flight of about 17 steep stairs internally and the claimant and his wife had to go on all fours to climb the stairs. There were also steps to the front door and to the back door and between some of the rooms. There was no downstairs toilet. There were three large bedrooms, an upstairs bathroom and toilet, and a kitchen/diner, living room, sun room and porch downstairs. Nobody lived in the accommodation apart from the claimant and his wife. The house was over 9 miles from the GP and approximately 45 miles from the nearest hospital. They have four sons, none of whom lived within easy reach of the house in Cornwall."

26. In contrast, according to the Commissioner,

"The new house in Somerset has only one step to the front door, has eight shallower steps internally with a banister rail each side, has a downstairs toilet, is much smaller and easier to maintain with one large and two small bedrooms and a bathroom upstairs and a small kitchen, living room and toilet downstairs. The new house is within minutes of both the doctor and the nearest hospital, and within 15 to 20 minutes travelling time of each of the four sons. There is a shower. The claimant has a driving licence but is physically unable to drive. He had a stroke in 1995. His wife has numbness on the left side of her body. Between moving house and the date of the final tribunal hearing the claimant visited the hospital in Somerset between 25 and 30 times."

27. In CIS/16250/1996 Mr Commissioner Levenson allowed the appeal because the majority of the tribunal had asked itself the wrong question, namely whether the house in Somerset had been specially adapted for the claimant. The Commissioner preferred the approach of the minority member, who took the view that the new accommodation was more suitable than the house in Cornwall, "both in respect of the house itself and its location and the circumstances generally". At paragraph 9 of CIS/16250/1996 Mr Commissioner Levenson identified the central question in that appeal as follows:

"9. The key issue is what is meant by the phrase "the special needs of a disabled person". Since the description "a disabled person" states nothing about the nature of the disability, and since the word "special" is used, the regulation can only be referring to the special needs of a particular disabled person, special in the sense that they are special to that person and arise from that particular person's disability. In this case the special needs were to have a house with easier access internally and externally, one in which it was easier to move around and had both upstairs and downstairs toilet facilities, one which was close to medical attention, and one which was within reasonable reach of such members of the family (or any other person) as were willing and able to provide assistance as appropriate. In all of these respects it is quite clear that the accommodation in Somerset was more suited to the special needs of the claimant than had been the accommodation in Cornwall."

28. With respect, this is a very helpful analysis. In particular, I agree with the Commissioner's observation that "the regulation can only be referring to the special needs of a particular disabled person, special in the sense that they are special to that person and arise from that particular person's disability". It also requires the tribunal to engage in a "before and after" comparison (as the Commissioner explicitly did in that case). This is inherent in the statutory requirement that the alternative accommodation be "more suited to the special needs of a disabled person than the accommodation which was occupied before". This entitled the minority member of the tribunal and the Commissioner in CIS/16250/1996 to have regard to the impact of the claimant's (and his partner's) special needs on (i) access to the property; (ii) circulation within and use of the property; (iii) ready access to local hospital services; and (iv) proximity to family members who provided care and support. These are all matters that might properly fall within the ambit of regulation 4(9). This approach is also consistent with the illustration given by Mr Commissioner Mesher at the end of paragraph 13 of his decision in CIS/14551/1996.
29. Clearly, building works such as putting in a stairlift and an external ramp and making bathroom modifications amount to "adapting a dwelling for the special needs of a disabled person" might well make a property "more suited". They certainly fall within paragraph 16(2)(k) of Schedule 3, which deals with loans for repairs and improvements (see e.g. Deputy Commissioner Mark's decision in CIS/1480/2005). But as CIS/16250/1996 demonstrates, that is not the test that applies under paragraph 4(9) of Schedule 3. Equally clearly, in CIS/3382/2006 and CIS/3383/2006, where a claimant with chronic fatigue syndrome moved to a house which suffered from severe damp, and required major structural work to be carried out before it was fit for habitation, a tribunal was entitled to conclude that the test in paragraph 4(9) had not been met. According to Mr Commissioner Howell QC (at paragraph 25):

"the crucial findings that the new house was not in fact more suitable for the claimant's needs as a disabled person than the one he was already occupying, and that the real purpose of the move had been to acquire accommodation to suit the broader needs of the household rather than his disability specifically, seem to me altogether proper and reasonable on the facts. The evidence here showed that so far from being more suited to the claimant's needs as a disabled person than where he was living before, the new house was in fact impossible for him to live in at all: his token attempt to move in there having hurriedly to be abandoned on medical advice because it was damaging to his health."

30. The distinction between the broader test contained in paragraph 4(9) and the narrower test in paragraph 16(2)(k) of Schedule 3 was highlighted recently in R(IS) 1/07. This also involved a claimant with chronic fatigue syndrome, who in this case had been advised that he would benefit from a programme of graduated exercise. He therefore obtained ten pieces of exercise equipment (presumably substantial in size) and moreover managed to purchase a larger house, with a mortgage of £484,000, to accommodate this equipment (spread over four rooms). Mr Commissioner Jacobs noted that the loan could not qualify under paragraph 16(2)(k): "He did not adapt the dwelling for his special needs. All he did was to select a property that was large enough to house his exercise equipment" (paragraph 14).
31. In the particular circumstances of that case, it seems that the Secretary of State conceded that the claimant fell within either paragraph 4(9) or the exception contained in paragraph 4(8), relating to persons who buy property while in receipt of housing benefit. The tribunal in that case doubted whether paragraph 4(9) applied, but the Commissioner did not need to resolve the point, given the Secretary of State's concession. The Commissioner dismissed the claimant's appeal on other grounds, ruling that the paragraph 4(8) and (9) (and allied) exceptions did not enable the claimant to avoid the statutory cap of £100,000 on the maximum amount of a loan eligible for assistance.
32. Finally, there may be issues of timing involved under paragraph 4(9). Mr Commissioner Goodman in R(IS) 20/98 (at paragraph 18) makes it clear that the "disabled person" definition must be met at the date that the loan was taken out and is not affected by a later change in circumstances. On a separate timing point, in CIS/3295/2003 the claimant moved into the property in question over a year before she actually acquired ownership of it. However, Mr Commissioner Williams ruled that this was not a bar to invoking paragraph 4(9):

"20. There are no time limits in subparagraph (9) and in particular no requirement of immediacy linking the time of acquisition, the time the loan is taken out, and the time the claimant moves. It will depend entirely on the circumstances. What the subparagraph requires for it to apply in this case is:

(a) that alternative accommodation is acquired,

(b) that the acquired accommodation is more suited to the special needs of a disabled person than the accommodation occupied by that person before the acquisition, and

(c) that the loan is taken out to enable the accommodation to be acquired."

The Secretary of State's submissions in the present appeal to the Commissioner

33. The Secretary of State's representative argues that it cannot have been intended that purely incremental or peripheral benefits accruing to the disabled person should be regarded as within the scope of the exception. He suggests that being nearer friends would benefit any disabled person and that paragraph 4(9) should not be interpreted so as effectively to exempt disabled people from the relevant period rule. He also argues that problems with relatives or neighbours are issues of a social nature, and not relevant to the suitability of the accommodation. He adds that there must be a specific feature of the new property that alleviates the medical condition that the disabled person suffers from. In his submission a better general environment, even if therapeutic, cannot make the accommodation itself (rather than the neighbourhood) more suited to the disabled person's special needs.
34. In the light of the review of the Commissioners' case law above, I do not accept the overall thrust of these submissions on behalf of the Secretary of State's representative. In my view they impose too narrow a construction on paragraph 4(9). They fail to have sufficient regard to the propositions set out by Mr Commissioner Mesher in paragraph 12 of CIS/14551/1996 and applied by Mr Commissioner Levenson in CIS/16250/1996, especially at paragraph 9. It is essential to focus on the legislative test, namely whether the loan has been taken out "to acquire alternative accommodation more suited to the special needs of a disabled person than the accommodation which was occupied before the acquisition by the claimant".
35. It is easy to see how this can encompass the physical suitability and lay-out of a property where a disabled person has certain special physical needs. But whether the person in question has special needs relating to their physical or mental well-bring (or both), the language of paragraph 4(9) may, in appropriate cases, include e.g. ready access to local health services and proximity to family members. So, depending on a person's special needs, social factors may be relevant.
36. For example, a disabled person (Mr A) with severe depression and anxiety may sell property X and purchase property Y in order to move away from an unpleasant neighbour (Mrs B) who has waged an unremitting campaign of harassment and anti-social behaviour against Mr A for years and years which neither the police nor the courts have been able to control. On such facts a tribunal might well conclude that Mr A's move falls within paragraph 4(9) even if in all other respects the physical accommodation provided by property X is identical to property Y.
37. The Secretary of State's representative implies that such a scenario cannot fall within paragraph 4(9). But that approach is to place an unwarranted fetter on the words of paragraph 4(9). It also creates a very real risk of giving preferential treatment to those with special needs of a physical nature as opposed to those whose special needs are related to mental health issues.

The Rent Act jurisprudence on "suitable alternative accommodation"

38. The approach taken by the Commissioners on the proper construction of paragraph 4(9) is broadly consistent with that taken by the courts, which have taken a fairly liberal view of the meaning of "suitable alternative accommodation" in the context of the Rent Acts. The statutory test there is rather different; in part, it is whether an alternative property is "reasonably suitable… to the needs of the tenant and his family as regards extent and character". The context and policy considerations are not identical. However, it is noteworthy that in that context suitability is not confined to the physical character of the property itself. It includes maters related to the local environment (see Redspring v Francis [1973] 1 WLR 134: elderly tenant living in quiet road with access to garden; alternative flat on busy road with no garden, and near a fish-and-chip shop and a pub, not suitable). As estate agents and lifestyle programmes repeatedly assert, it is all about "location, location, location".
39. It is also true that the Court of Appeal has held that the Rent Act test does not extend to the tenant's proximity to his friends and cultural and religious interests, e.g. his mosque (Siddiqui v Rashid [1980] 1 WLR 1018), but it is clear that the Court there placed great emphasis on the word "character" in the statutory definition under the Rent Acts (see the judgment of Stephenson L.J. at p.1023E). In contrast, the test under paragraph 4(9) does not refer to the character of the accommodation – it simply asks whether it is "more suited to the special needs of a disabled person". Thus Mr Commissioner Mesher in CIS/14551/1996 (at paragraph 11) was not prepared to accept the Secretary of State's submission that there had to be something about the physical character or quality of the new accommodation that made it more suited to the special needs of the disabled person. Equally in CIS/16250/1996 Mr Commissioner Levenson was entitled to take into account the wider social considerations pertaining to the claimant's special needs as well as those relating to the physical structure of the property.

The application of the principles from the Commissioners' case law to the present case

40. How does this apply in the present case? At the outset I recognise that, in the proper application of paragraph 4(9), "there must be a measure of flexibility and factual judgment in whether a particular loan or property meets that description" (as Mr Commissioner Howell QC stated in CIS/3382/2006 and CIS/3383/2006 at paragraph 25). I acknowledge that the tribunal chairman had the advantage of seeing and hearing the claimant at first hand. I also acknowledge that the chairman went to considerable lengths to set out the facts carefully as she found them and to explain her reasoning. On balance, however, the claimant's representative has persuaded me that the tribunal's decision discloses an error of law. I say this for two reasons.
41. The first reason relates to Mr Commissioner Mesher's initial proposition in CIS/14551/1996 (at paragraph 12), namely that "the fact that the new accommodation is more suited to the special needs of the disabled person need only be one of the reasons for the acquisition. It does not have to be the sole or predominant reason." In the present case the chairman concluded that the reason for the acquisition of the new property was not to acquire alternative accommodation more suited to C's needs. In one passage she stated that the reason was because the mother had been refused housing benefit on the purported tenancy of the grandmother's house.
42. In the concluding paragraph 19 of the Statement of Reasons, the chairman quoted the mother's own words at the hearing: "At the end of the day, my mother just wanted to sell her house so I had to move out". The chairman reiterated that the reason for the purchase was therefore not to acquire accommodation more suited to C's needs but rather to facilitate the grandmother's wish to sell the old property. The difficulty with this approach is the leap from the finding that the financial circumstances of the mother and the grandmother were a key factor in forcing the sale of the old property to the assumption that the mother's purchase of the new property was not in part at least "to acquire alternative accommodation more suited to the special needs" of C. As Mr Commissioner Mesher noted, the latter motive does "not have to be the sole or predominant reason".
43. The second matter relates to Mr Commissioner Mesher's second proposition as set out in CIS/14551/1996 at paragraph 12, namely that "the new accommodation only has to be more suited: there is no test of whether or not it was reasonable to acquire the new accommodation". In the penultimate paragraph 18 of the chairman's Statement of Reasons, she concludes that the unsuitability of the grandmother's property "arose entirely from the way in which the accommodation was used" which in turn was "down to [the claimant's] selfishness". The chairman found that the grandmother could have had the main bedroom, C the second bedroom and the claimant the third or box room. However, "it was only [the mother's] selfishness in wanting to have her computer set up in her bedroom that prevented this. She could just as well have set her computer up in the lounge". The chairman continued by concluding that "it would have been more reasonable" when the grandmother moved out for C to have the main bedroom and the grandmother the box room when she returned to stay occasionally.
44. The basis for the chairman's finding of the mother's selfishness is not entirely clear. In her evidence at the hearing the mother stated that she could not use the box room as she was a student and the room was not big enough to have both a bed and a computer set up in there. As she was studying on a college course, it is not immediately obvious that she could have the computer set up in the lounge, where there would doubtless be other distractions (e.g. television and conversation) when she was trying to study. The point does not appear to have been put to the claimant in those terms. Be that as it may, in my judgment the real problem is that the chairman was applying an overriding test of reasonableness to the determination of the paragraph 4(9) question, to the exclusion of the proper statutory question, which was whether the new property was "more suited" to C's special needs, comparing the old and new accommodation.

The Commissioner's decision in this appeal

45. I therefore conclude that the tribunal erred in law. I must accordingly set aside the decision of the Stockport North appeal tribunal dated 17 September 2007 under file reference 944/07/01061. I am not in a position to determine the matter for myself. I therefore send the case back for rehearing by a differently constituted tribunal (Social Security Act 1998, section 14(8)(b)).
46. The new tribunal must consider afresh the mother's appeal against the decision of the Secretary of State dated 7 January 2007 disallowing her claim for housing costs. In doing so the tribunal must consider whether the mortgage was taken out "to acquire alternative accommodation more suited to the special needs of a disabled person [the claimant's son C] than the accommodation which was occupied before the acquisition by the claimant".
47. In applying paragraph 4(9) of Schedule 3 to the Income Support (General) Regulations 1987, and based on the Commissioners' case law, the new tribunal should have regard to the following considerations (although the first two points do not appear to be contentious in the present case):

(1) the disabled person must meet the statutory definition of that term at the date the loan was taken out (R(IS) 20/98);

(2) there is no requirement of immediacy linking the time the loan is taken out, the time of acquisition and the time of moving in (CIS/3295/2003);

(3) the fact that the new accommodation is more suited to the special needs of the disabled person need only be one of the reasons for the acquisition – it does not have to be the sole or predominant reason (CIS/14551/1996);

(4) the new accommodation only has to be more suited: there is no test of whether or not it was reasonable to acquire the new accommodation (CIS/14551/1996);

(5) the special needs of the disabled person must be needs stemming from the person's disability (CIS/14551/1996);

(6) the statutory test is not whether the new property has been specially adapted in a structural sense (CIS/16250/1996);

(7) although structural modifications may be relevant in appropriate cases, the statutory test may also include consideration of wider social issues, such as better access to local health care services or closer proximity to family members providing care and support (CIS/14551/1996 and CIS/16250/1996);

(8) within the above limits, the application of paragraph 4(9) is ultimately a matter of fact for decision makers and appeal tribunals (CIS/14551/1996 and CIS/3383/2006). As Mr Commissioner Mesher emphasised at paragraph 12 of CIS/14551/1996, "wide words are used in the sub-paragraph and the adjudicating authorities must apply them to the circumstances as they find them, rather than some legal gloss imposed by Commissioners' decisions".

48. Finally, I remind the new tribunal that in the event that it concludes that paragraph 4(9) does apply, and the claimant gains the benefit of the exception from the rule in paragraph 4(2), one further matter will need to be resolved. The usual rule for assistance with housing costs relating to new mortgages is that there is a 39-week waiting period (paragraph 8(2)). However, certain carers are subject to a shorter waiting period (paragraph 8(2)(a)). In this event the new tribunal will need to make a decision on that point too.

(signed on the original) N J Wikeley

Deputy Commissioner

22 May 2008