Read v Chief Adjudication Officer

Permission to appeal from a Social Security Commissioner is confined to a point of law. Permission should be refused unless the proposed appeal has a real prospect of success. In a specialised and highly technical field, the Court of Appeal should approach second-tier appeals with appropriate caution.

Under the Income Support (General) Regulations 1987, a liability for payments on two dwellings is unavoidable if it cannot be, or could not have been, avoided. The benefits legislation is construed in context and according to its purpose. Housing costs are calculated by reference to the actual capital outstanding, and disputes about a lender’s application of benefit payments must ordinarily be pursued against the lender.

The applicant sought permission to bring three appeals against decisions of a Social Security Commissioner dated 20 November 2000. The Commissioner’s decisions arose from three appeals against decisions of a Social Security Appeal Tribunal dated 8 April 1998 concerning the applicant’s entitlement to income support and housing costs.

The proposed appeals concerned: whether mortgage payments on a former dwelling were unavoidable during a four-week period; whether benefit payments could properly be made directly to a mortgage lender; whether a payment period of 59 weeks and two days satisfied the relevant statutory requirements; how the applicant’s mortgage capital should be calculated; and whether a personal equity plan was relevant capital or had been charged to the lender.

1. Applications refused. The proposed appeals were limited to points of law under section 15 of the Social Security Act 1998. Permission under rule 52.3(6) of the Civil Procedure Rules 1998 required a real prospect of success. None of the three proposed appeals met that threshold.
2. The phrase “is unavoidable” in paragraph 4(6) of the Income Support (General) Regulations 1987 means that the liability cannot be, or could not have been, avoided. The tribunal was entitled to consider the applicant’s deliberate decision to retain the former property for letting and to conclude that the liability was not unavoidable.
3. The Secretary of State had a discretion under regulation 34 of the Social Security (Claims and Payments) Regulations 1987 to pay benefit to another person where necessary to protect the beneficiary’s interests. That discretion, subject to judicial review, substantially displaced the applicant’s challenge to the direct payment of mortgage interest. In any event, the arguments based on Schedule 9A were unsound: a period of 59 weeks and two days included a multiple of one week, and the requirement for payment at four-week intervals concerned the ordinary operation of benefit payments, not delayed payments resulting from administrative processing.
4. Housing costs were to be calculated by reference to the actual capital outstanding under paragraph 6(1)(a) of Schedule 3 to the Income Support (General) Regulations 1987. The benefits authorities were not required to investigate whether a mortgagee had misapplied a credit. Any claim that the lender had wrongly applied the payment had to be pursued against the lender.
5. The Commissioner had remitted the personal-equity-plan issue to a new tribunal for findings about the payments into the plan, any charge granted for valuable consideration, possible deprivation of capital, and the plan’s value. The applicant identified no arguable point of law requiring appellate intervention. Lady Justice Hale added that second-tier appeals in this specialised area required appropriate caution, referring to Cooke v Secretary of State for Social Security (25th April 2001).

Applications refused. A copy of the judgment was to be supplied to the applicant at public expense.

• Court of Appeal (Civil Division): Applications for permission to appeal from the Social Security Commissioner refused.
• Social Security Commissioner: Decisions dated 20 November 2000 on appeals from the Social Security Appeal Tribunal; permission to appeal refused.
• Social Security Appeal Tribunal: Three decisions dated 8 April 1998 concerning income support and housing costs.