Access funds may count as inome (Reg 65)
An LA cannot leave an award suspended indefinitely, there comes a point when a decision has to be made, and of course that decision will be appealable.
I would use the following from paragraph 18 of R(IS)4/02 to support the argument that the Council cannot take income that is not received into account unless there are specific deeming provisions allowing it.
18. I do take that view. That stems fundamentally from the general meaning of income within the income support legislation, in the light of the decision of the Court of Appeal in Leeves. I set this out in the following paragraphs of CIS/5479/1997 (where an overpayment of an occupational pension was being recovered by the Italian authorities by withholding the complete amount of monthly payments of the pension, possibly at the claimant's request):
"9. The starting point is that there is no general definition of "income" in the Income Support Regulations or the Social Security Contributions and Benefits Act 1992. Therefore, as was accepted by the Court of Appeal in Leeves, the term should be given its natural and ordinary meaning. I agree that the decision in Leeves has no direct application to the circumstances of the present case. The context of a student who had received a payment of grant, which was by regulations to be treated as income for the whole of a term, and who came under a certain obligation of immediate repayment after withdrawing from the course during that term, is different from that of the present case. However, there is some significance in the Court of Appeal's approach that in the ordinary meaning of the words and subject to specific provisions to the contrary, it was income which was received which counted in the Income Support Regulations. That confirms my view of the general context of the Regulations, which is that income to be taken into account is income which is actually paid to a claimant. Without going into any great detail, that is seen in the many references to "payments" of income (e.g. in regulation 29(2) on the period over which a payment is to be taken into account, regulation 31 on the date on which a payment is to be treated as paid, and the terms of regulation 42 on notional income, especially where income is due to be paid but has not been paid). There are some other provisions which are not entirely consistent with that approach, but that does not affect my view of the general context. I shall discuss regulation 40(3) specifically below.
10. It is plain that from some date prior to 5 April 1993 the claimant did not receive any actual payment of his Italian pension. However, is he to be regarded as having received payment because the amount of the pension that he would otherwise actually have received was diverted to reduce his debt to the Italian authorities for the previous overpayment? Or, to put it another way, is the reality of the situation that the claimant has been paid his Italian pension, but has expended the full amount of it on paying off the overpayment? It is usually the case that what income is spent on has no effect on the taking of the income into account as such for income support purposes. There is certainly a good deal of general force in such points, and some support in principle from cases on other areas of law, such as income tax. They could also be regarded as supported by decision CIS/212/1989. I have found this to be an extremely difficult issue, although one in which, as explained above, an oral hearing would not be likely to reduce the difficulty at all. I have eventually come down in favour of the claimant for the following reasons.
11. The first and main reason is that, although there is considerable general force in the points mentioned in paragraph 10, I conclude that the scheme of the Income Support Regulations rests on a more straightforward, and perhaps crude, approach to the receipt of income by claimants. If a claimant who has not actually received income is to be treated as having that income, that has to be achieved by a specific provision in the legislation. That is why, for instance, in addition to the regulations mentioned in paragraph 9 above, there has to be specific provision for circumstances in which payments are made to a third party in respect of a claimant or a member of the family. That does not mean that there are no controls over abuse of the system, as the provisions on notional income will be relevant, as discussed in paragraphs 14 and 15 below."
I went on to say that regulation 40(3) of the Income Support Regulations (providing in the case of British social security benefits that where there was a deduction by way of recovery the gross amount was to count as income) would have been unnecessary if the law had been against the claimant in CIS/5479/1997, and provided further support for the general scheme and context of the Regulations being as I had concluded. A new appeal tribunal was directed to consider any case put forward by the Secretary of State that the claimant was to be treated as notionally still having the income under the intentional deprivation rule"
The Commisioner also held that the general rule was supported by the Court of Appeal in Leeves and went on to hold at paragraph 20
"..It may be that Leeves dealt with different circumstances, but as stressed above, it is the general approach in Leeves which shows the structure and context of the income support scheme rather than the specific result on the facts."
I dont think LA's can ignore decisions of Commissioners, Upper Tribunals, or the Courts
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