IN THE UPPER TRIBUNAL	Case No.  CIS/1316/2009
ADMINISTRATIVE APPEALS CHAMBER

Before Deputy Upper Tribunal Judge Mark

Decision:  The decision of the Leicester Appeal Tribunal dated 3 September 2008 is set aside and the matter is remitted to a new tribunal for determination in accordance with the directions given below.

REASONS FOR DECISION

1.	This is a supported appeal from a decision of the Leicester Appeal Tribunal given on 3 September 2008 confirming a decision of a decision maker issued on 7 July 2008 that housing costs were only payable as part of the claimant’s income support on £24,500 out of a loan £90,000.

2.	The claimant opted for a paper hearing, and the tribunal dealt with it on that basis having first certified that he was satisfied that it was proper to proceed to decide the appeal on the papers.

2.	The loan in question was for £90,624, of which £87,299.27 was outstanding excluding arrears as at 5 February 2008 (file p.3).  Arrears were £583.30 at that date, while the monthly instalments were £644.27 and the interest element £427.22 (p.4).  There had been a previous loan, from another lender, to buy the claimant’s home in July 1998.  The amount outstanding on that loan, which was paid off out of the remortgage, was £24,500.  The remortgage, which was on 29 August 2006, was to provide funds to build an extension and was to the claimant and her husband.  The fees associated with the re-mortgage are stated to have been £3349.  The amount said to have been spent on building the extension was £38,000.  No explanation was offered as to how the remainder of the advance, in excess of £24,000, was spent or what it was borrowed for.

3.	The claimant explained that the extension included an extra bedroom.  There had previously been three bedrooms and a fourth was added.  She and her husband had three children and a long term foster child, and needed more room.  She provided further information as to the extension by two letters.  She explained that she had had a very bad leg infection in 2005 and was in hospital for two weeks.  After her discharge the district nurse came for a further 12 weeks to change her bandages.  She weighed 22 stones and had really bad back pain, and a bad right leg, as a result of which she was unable to work.  She was also diabetic and had high blood pressure.  They had no toilet upstairs.  She would struggle to get to the toilet downstairs.  They had two medium sized bedrooms and a boxroom and proposed to make the boxroom bigger and provide an upstairs bathroom and toilet.  

4.	Unfortunately during the works, apparently in 2007, her husband left her and she was unable to pay for everything herself.  She therefore applied for income support and the issue which arose was as to the extent to which she was entitled to housing costs in respect of the loan.

5.	The decision maker had concluded that the claimant was not entitled to any additional housing costs in respect of the work done because she was not a disabled person since she was not in receipt of any qualifying benefits, and this decision was upheld by the tribunal on the same grounds.

6.	Paragraph 16 of Schedule 3 to the Income Support (General) Regulations, as it stood in March 2008, provides as follows:

“Loans for repairs and improvements to the dwelling occupied as the home
16.—(1) A loan qualifies under this paragraph where the loan was taken out,
with or without security, for the purpose of–
(a) carrying out repairs and improvements to the dwelling occupied as the
home;
(b) paying any service charge imposed to meet the cost of repairs and
improvements to the dwelling occupied as the home;
(c) paying off another loan to the extent that the other loan would have
qualified under head (a) or (b) of this sub-paragraph had the loan not
been paid off,
and the loan was used for that purpose, or is used for that purpose within 6
months of the date of receipt or such further period as may be reasonable in the
particular circumstances of the case.

(2) In sub-paragraph (1) “repairs and improvements” means any of the
following measures undertaken with a view to maintaining the fitness of the
dwelling for human habitation or, where the dwelling forms part of a building,
any part of the building containing that dwelling–
(a) provision of a fixed bath, shower, wash basin, sink or lavatory, and
necessary associated plumbing, including the provision of hot water not
connected to a central heating system;
(b) repairs to existing heating systems;
(c) damp proof measures;
(d) provision of ventilation and natural lighting;
(e) provision of drainage facilities;
(f) provision of facilities for preparing and cooking food;
(g) provision on insulation of the dwelling occupied as the home;
(h) provision of electric lighting and sockets;
(i) provision of storage facilities for fuel or refuse;
(j) repairs of unsafe structural defects;
(k) adapting a dwelling for the special needs of a disabled person; or
(l) provision of separate sleeping accommodation for children of different
sexes aged 10 or over  who are part of the same family as the claimant.

(3) Where a loan is applied only in part for the purposes specified in sub-paragraph
(1), only that portion of the loan which is applied for that purpose
shall qualify under this paragraph.”

7.	It is plain that a dwelling is fit for human habitation as a matter of ordinary English if able bodied persons can live there without a problem, even if it is not adapted for the special needs of a disabled person.  It is also plain that it is fit for human habitation in that sense even if it does not provide separate sleeping accommodation for children of different sexes who are part of the claimant’s family.  It is clear therefore that in the context of this provision, and to make sense of paragraph 16(2)(k) and (l), maintaining the fitness of the home for human habitation means so maintaining it for human habitation by the claimant and her family living there.  Further, if the expression has that meaning in relation to (k) and (l), it must also have the same meaning in relation to the remainder of paragraph 16(2), including sub-paragraph 2(a).

8.	Further, paragraph 1(3) of Schedule 3 provides that for the purposes of that Schedule a disabled person includes a person in respect of whom a disability premium is included in her applicable amount.  As the representative of the Secretary of State has pointed out on this appeal, the condition for payment of the disability premium is satisfied if a claimant is treated as incapable of work under the incapacity for work regulations and has been so incapable or treated as incapable for a continuous period of 364 days, for which purpose any two or more periods of incapacity separated by a break of not more than 56 days shall be treated as one continuous period (see Schedule 2, paragraph 12(1)(b), to the Income Support (General) Regulations 1987).  As is further pointed out, although there are time limits on claiming incapacity benefit, there are no time limits on a decision that a person has been incapacitated.

9.	It was clear to the tribunal that the health problems described by the claimant since 2005, if established, could lead to a finding that she was incapable of work or that she was to be treated as incapable of work from that time.  Further, even if she was not incapable of work, the provision of the upstairs bathroom could, in all the circumstances, be regarded as undertaken with a view to maintaining the fitness of the house for human habitation within the meaning of that expression as used in paragraph 16 of Schedule 3.  This could be the case, for example, if the claimant had recently become incapacitated, and was likely to remain so indefinitely, but had not yet satisfied the 364 days requirement.  The ages and sex of her children could also lead to the conclusion that the sleeping accommodation was insufficient for them, particularly bearing in mind that one of the two available bedrooms was a boxroom.  

10.	All these matters appear to me to have required investigation by the tribunal and appropriate findings of fact.  They were not matters which the claimant could be expected to have appreciated, and it was not therefore a case in which the tribunal ought properly to have proceeded without an adjournment to give the claimant an opportunity to appear to give evidence or to put in further written evidence, possibly in response to written questions framed by the tribunal.  In addition, the tribunal was in error of law in failing to address these issues in coming to its conclusion.

11.	The claimant should obtain help to address the points raised above and should seek to adduce further written evidence on these issues and to attend the next tribunal hearing which I am directing.  She may also wish to check her figures as to the cost of the extension and to provide a breakdown so far as she is able, as well as explaining what became of the further £24,000+ of the loan for which she has not so far accounted.  At present, even if she is successful, the most that she could receive housing costs in respect of would be the balance of the original loan plus all or part of the extension costs proved by her, plus a proportion of the related expenses, but not the additional £24,000+ for which she has not accounted.  It may be that she has no arguable case for the inclusion of this further amount in her claim, but if she has a case she must explain what the money was used for.

12.	The appeal is therefore allowed, and I make the decision set out above.

(signed) Michael Mark
Deputy Upper Tribunal Judge

6 October 2009