My client is in receipt of Income support, she is unable to pay her mortgage and her husband is refusing. I understand that the income support will pay the interest only on her mortgage from 39 weeks as the mortgage was taken out post Oct 95. The property is currently worth £200,000 the mortgage is £135,000 and it is a 4 bed house in an expensive area. I realise that the income support aren't going to make their decision about how much of the mortgage they pay, whether it will be cut off at the £100,000 or whether they deem the house to be 'excessive' until a few weeks before the 39 weeks are up. Is there anything I can do to speed up the decision and is it likely on the facts to be excessive ??? (Client has three children two girls one boy.

The waiting period is reduced to 26 weeks if the client has claimed IS because she has been "abandoned" by a partner. The £100,000 limit is discretionary, so the client would have to argue for interest on the full mortgage to be met because, for instance, the family circumstances would make it undesireable to move house, e.g the children would have to change schools, the client needs to be near existing support from family or friends, it would be impossible to find alternative cheaper property in the area.

See CPAG p907

Are you sure that the £100,000 limit is discretionary? My understanding is that the £100,000 limit is imposed under para 11 of of Sch 3 of the IS Regs, which does not have any discretionary element (except that loans for disability adaptations are ignored). I believe that family circumstances can only be taken into account if the costs are considered excessive under para 13.

I think that the guidance on CPAG p907 on 'when no restriction should be made' only refer back to the previous paragraph headed 'excessive housing costs' on p906

In CIS/4320/2002 Commissioner Levenson held that the £100,000 'mortgage cap' on eligible IS housing costs is not unreasonable or irrational or ultra vires, and that there was no breach of Articles 8 and 14 of the Human Rights Act.