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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_88_2008 (24 June 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_88_2008.html Cite as: [2008] UKSSCSC CIS_88_2008 |
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[2008] UKSSCSC CIS_88_2008 (24 June 2008)
The decision of the Cardiff appeal tribunal under reference 188/07/02792, held on 19 September 2007, is not erroneous in point of law.
History and background
The appeal to the Commissioner
How the problem arises for the claimant
'(1) A person in Great Britain is entitled to income support if-
…
(b) he has no income or his income does not exceed the applicable amount.'
'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'
'(4) The "relevant period" for the purposes of this paragraph is any period during which the person to whom the loan was made-
(a) is entitled to income support, or
(b) is living as a member of a family one of whom is entitled to income support,
together with any linked period, that is to say a period falling between two such periods of entitlement to income support.'
The arguments of the parties
• the legislation clearly envisages circumstances in which a period could become a relevant period retrospectively, for example if there was a gap of less than 26 weeks;
• the words 'is entitled' were not qualified and naturally referred to any period during which there was entitlement;
• in other areas of income support law, decisions can have retrospective effect.
Mr James adopted that analysis at the hearing.
Analysis
'11. The provisions of Schedule II have to be interpreted and applied in the context of the provisions for claiming a state pension credit and adjudicating in respect of claims. Like many benefits, a claim for state pension credit may be made in respect of a past period. The conditions of entitlement have to be applied to the circumstances obtaining at the time covered by the award. Any of the claimant's relevant circumstances may have changed during the period for which the claim is made. The decision on the claim must reflect the circumstances as obtaining at different times. That may be advantageous or disadvantageous to the claimant. Either way, the conditions of entitlement have to be applied to the circumstances obtaining at particular times within the period of the claim. They cannot be interpreted or applied differently on the random chance that they occurred or changed before the date when the claim was made. The provisions governing housing costs that may not be met are no different in this respect from any of the conditions of entitlement. The language in which they are drafted is no different, neither is their interpretation, nor is their application.'
The remedy for poor advice
Disposal
Signed on original on 24 June 2008 |
Edward Jacobs Commissioner |