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Neutral Citation Number:
Reported Number: R(IS)3/93
File Number: CIS 654 1991
Appellant:
Respondent:
Judge/Commissioner: Mr A.T. Hoolahan Q.C.
Date Of Decision: 08/07/1992
Date Added: 28/06/2002
Main Category: Capital
Main Subcategory: Income as capital
Secondary Category: Earnings and other income
Secondary Subcategory: Calculation: employed
Notes: Capital - earnings deposited in current account - whether income has become capital On 2 November 1990 the claimant applied for income support for his family. He was out of work but he declared as income child benefit, unemployment benefit and retirement occupational pension. He also declared his wife’s earnings; she was a supply teacher who was paid monthly in arrears but her earnings varied greatly and he intended that his wife’s income should be calculated over the period of a year. He further declared that monies deposited in three bank accounts totalled £8,063.85 as to date of claim and £7,944.99 on 8 November 1990, but contended that money in current account should not be treated as capital as it was constantly being used to pay for current expenses. The adjudication officer decided that income support was not payable as the claimant’s income (including tariff income) exceeded his applicable amount. On appeal a tribunal upheld the adjudication officer’s decision and the claimant appealed to the Commissioner. The Commissioner allowed the appeal. Held that: 1. a claim for income support was to be treated as being for an indefinite period (regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987); it was, therefore, an open-ended claim and the facts must, if the situation is fluid, be looked at week by week: observations in R(SB) 4/85 at paragraph 13 applied (para. 18); 2. the amount of the wife’s earnings must be calculated on a weekly basis (if necessary by reference to her contract of employment) and determined at the date when the claim was considered: (para. 13); 3. in order properly to determine the amount of the claimant’s wife’s earnings to be taken into account it was necessary to make findings of fact (if necessary by reference to the earner’s contract of employment) as to the following: (a) the amount of the earnings; (b) whether any sum fell to be disregarded under Schedule 8 to the Income Support (General) Regulations; (c) the period in respect of which the earnings were payable: regulation 29(2) of those regulations; (d) and the date that the earnings were due to be paid: regulation 31(1)(a) of those regulations, (para. 17); 4. income paid into a bank current account does not undergo the metamorphosis into capital for income support purposes until tax liabilities have been deducted and the period over which it falls to be attributed under regulation 29 of those regulations has elapsed; observations in R(SB) 2/83 at paragraph 6 and R(SB) 35/83 at paragraphs 4 and 5 applied (para. 22); 5. there is no provision in income support regulations similar to Supplementary Benefit (Resources) Regulations 6(1) to disregard capital sums earmarked to cover current living expenses (para. 24).
Decision(s) to Download: Is03_93.doc Is03_93.doc