DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is given under section 14(8)(a)(i) of the Social Security Act 1998 and regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. It is:
I SET ASIDE the decision of the Hounslow appeal tribunal, held on 4 June 2004 under reference U/42/256/2004/00028, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, with the consent of the parties.
My DECISION is that the claimant's student loan income fell to be taken into account as income in the calculation of her entitlement to income support only from 6 October 2003. On and from that date, she was entitled to income support of £26.10 a week.
The appeal to the Commissioner
- This is an appeal to a Commissioner against the decision of the appeal tribunal. On giving directions on the appeal, I invited the Secretary of State to suggest any decision that I might substitute for that given by the appeal tribunal. The Secretary of State's representative has suggested a decision. The claimant has agreed that I may give that decision.
- As the decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. However, as the case may be of relevance to other claimants, I set out briefly the reasons for the decision.
- The issue was the date from which income from a student loan should be taken into account. Regulation 66A of the Income Support (General) Regulations 1987 provides that a student loan must be apportioned equally between the weeks of a period beginning with the first day of the first benefit week in September. The Secretary of State did this and took the income into account from that week thereby reducing the amount of the claimant's income support. The claimant objected that she did not become a student until the start of her course in October. She accepted that the amount of her loan had to be apportioned as required by regulation 66A, but argued that it could not be taken into account as her income until she became a student, which did not happen until the start of her course in October. The tribunal dismissed her appeal, but the Secretary of State has supported her appeal to the Commissioner.
- The Secretary of State's reasoning relies on two interrelated definitions in regulation 61(1). A student loan is defined as 'a loan towards a student's maintenance' pursuant to specified legislation. And a student is defined as 'a person … who is attending or understanding a course of study'.
- In view of those definitions, the Secretary of State's representative submitted that
'a student loan can only have an existence for the purposes of the Income Support (General) Regulations 1987 where it is for the maintenance of a student. Until the claimant starts to attend or undertaken the course of study, I submit that she is not a student. Until she is a student, whatever the point in its administrative path her student loan application has reached, it cannot meet the definition of student loan herein and so does not fall to be taken into account as income.'
Signed on original
on 9 December 2004 |
Edward Jacobs
Commissioner |
