R(IS) 17/93

Mr. D. G. Rice 	CIS/220/1992 
4.1.93
Applicable amount - claimant’s partner remanded on bail with a condition of residence in a bail hostel - whether “detained in custody” and whether intending to return to the dwelling occupied as the home
The claimant made a claim for benefit on the basis that her husband, who was in remunerative work, was not living at home as he was remanded on bail in a bail hostel. The adjudication officer decided that the claimant and her husband were a married couple under paragraph 1 of regulation 16 of the Income Support (General) Regulations 1987 As her husband was in remunerative work income support was not payable. The tribunal found that the conditions of the husband’s bail excluded him from being a member of the claimant’s household under paragraph (3)(b) of regulation 16 of the Income Support (General) Regulations 1987. The claimant was entitled to income support as a single claimant as the conditions of her husband’s bail were such that he was to be treated as detained in custody pending trial. The adjudication officer appealed to the Commissioner.
Held that:
1.	bail is a legal alternative to custody. Terms under which bail is given will vary. Sometimes there will be no restriction, more likely sureties will be needed. Additional conditions may be imposed including staying at a bail hostel or avoiding certain places. Bail will leave a person with their liberty (para. 6);
2.	where one of a couple leaves the dwelling occupied as the home it should be assessed whether that person intends to return to occupy the dwelling and, if so, whether the absence is likely to exceed 52 weeks. This assessment needs to include all the evidence available and take into account conclusions that can be drawn from that evidence (paras. 7 and 9).
On appeal the Commissioner set aside the decision of the tribunal and replaced it with his own.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is that the decision of the social security appeal tribunal given on 19 March 1991 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide that the claimant was entitled to income support on 27 August 1990.
2.	This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 19 March 1991. In view of the complexity of the matter, I directed an oral hearing. At that hearing the claimant, who was present, was represented by Mrs. Megan Curtis, a welfare rights benefit advisor with the Dorset County Council, whilst the adjudication officer appeared by Mr. J. Polland of CAS.
3.	On 27 August 1990 the claimant applied for income support. On her claim form she stated that her husband had been arrested on 8 June 1990, and was living in a bail hostel in Bournemouth pending trial. On 14 September 1990 the claimant called at the Weymouth office, and stated that she and her husband were still a couple, but that her husband was obliged to live at the hostel as a condition of his bail. He was currently working over 24 hours a week. On 18 September 1990 the adjudication officer disallowed the claim on the ground that the claimant’s partner was engaged in remunerative work (see section 20(3)(c) of the Social Security Act 1986, now section 124(1)(c) of the Social Security Contributions and Benefits Act  1976).
4.	In due course, the claimant appealed to the tribunal, and it was accepted that the claimant’s husband was at the date of claim engaged in remunerative work, and so long as she remained his partner, there could be no question of her being entitled to income support. But did she continue to be his partner, whilst he was living in the bail hostel? The crucial regulation was regulation 16 of the Income Support (General) Regulations 1987. This regulation, so far as is material to this appeal, reads as follows:
“16.‑ 	(1)	Subject to paragraphs (2) to (5), the claimant and any partner … shall be treated as members of the same household notwithstanding that any of them is absent from the dwelling occupied as his home.
(2)	Paragraph (1) shall not apply in respect of any person referred to therein who is not treated as occupying a dwelling as his home because he fails to satisfy the conditions in sub-paragraph (8) of paragraph 4 of Schedule 3 (housing costs) ....

(3)	Paragraph (1) shall not apply in respect of any member of a couple …  where-
....
(b)	one, [or] both … of them are detained in custody pending trial or sentence upon conviction or whilst serving a sentence imposed by a court.”
Sub‑paragraph (8), of paragraph 4 of Schedule 3 reads as follows:
“A person shall be treated as occupying a dwelling as his home for a period not exceeding 52 weeks while he is temporarily absent therefrom only if -
(a)	he intends to return to occupy the dwelling as his home; and
(b)	… and
(c)	the period of absence is unlikely to exceed 52 weeks, or, in exceptional circumstances, (for example where the person is in hospital or otherwise has no control over the length of his absence) is unlikely substantially to exceed that period.”
5. 	In the event, the tribunal allowed the appeal. They appear to have allowed it from 8 June 1990 although the claim was only made from 27 August 1990 and there was no application for backdating. Accordingly, on that point the tribunal erred in point of law. However, more serious, the tribunal regarded the claimant’s husband as being “detained in custody pending trial” within regulation 16(3)(b). Therefore, regulation 16(1) did not apply and in consequence there was no need to treat the claimant’s husband as being a member of her household. In consequence, as the claimant’s husband was absent from home and could not be regarded as a member of the household, the claimant and her husband ceased to be a “married couple” within the definition contained in section 137 of the Social Security Contributions and Benefits Act 1992, and the claimant, no longer having a partner, was free to claim benefit as an independent person in her own right. Of course this view depended upon the claimant’s husband being “detained in custody pending trial”. The tribunal took the view that the requirement that he live in the bail hostel was tantamount to custody. However, I reject that interpretation.
6.	It is well established that bail is an alternative to custody. A person, who is charged with an offence and is due to stand trial, will either be kept in custody or released on bail. The terms of his bail will vary from case to case. Sometimes there will be no restriction, and he will be expected to appear for trial at the appointed time. More likely, he will be required to find sureties for his due attendance and sometimes additional conditions will be imposed, such as reporting to the police station at specified intervals of time, or avoiding certain places and certain persons, and sometimes there will be an obligation to live in a bail hostel. In the present case this last condition was imposed. The claimant was required to live at the bail hostel, although by day he was free to carry on his employment. He was, however, I am told, forbidden to enter the town of Weymouth. The tribunal considered that the restriction imposed by the obligation to reside in the bail hostel was equivalent to custody. I reject that view. The claimant had been granted bail, which was the legal alternative to being held in custody, and although there were restrictions on his absolute freedom, he was still basically at liberty, and in particular was free to carry on his normal employment. To suggest that he was in effect “in custody” is to do violence to the normal meaning of the words. Accordingly, in construing regulation 16(3)(b) in the way the tribunal did, they erred in point of law, and I must necessarily set aside their decision on this ground also.
7.	But that is not the end of the matter. The tribunal also erred in a less obvious way. The adjudication officer should have considered whether regulation 16(2) applied. He should have assessed whether the claimant intended to return to occupy the dwelling as his home within paragraph 8(a) of Schedule 3 and, if he did, whether the period of absence was likely to exceed 52 weeks. Moreover, the tribunal too failed to consider these matters, and on that count also they erred in point of law.
8. 	I follows from what has been said above that I must set aside the tribunal’s decision as being erroneous in point of law. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision.
9.	I had the benefit of certain oral evidence from the claimant at the hearing before me. Apparently, the claimant’s husband had been charged with the rape of his 15 year old step‑daughter on four counts, but that the charge had been reduced to a lesser one, albeit involving the sexual abuse of the girl. Seemingly, her husband had admitted the offence, and because of its nature he was required, not only to reside in a bail hostel, but not go to the town of Weymouth where the claimant was living. I was also told that he was sentenced on 14 January 1991 to imprisonment for two years, and was released in May 1992. Now, having regard to the nature of the offence, to which the claimant was willing to plead guilty, and the probable sentence, it could be said that the claimant’s husband was likely to be absent from the home for a period in excess of 52 weeks. But if that was too speculative, I am satisfied on the claimant’s evidence that the claimant’s husband had no intention ever of returning to the home. Regulation 16(1) did not therefore apply, and as a result the claimant’s husband had ceased to be her partner. She was then free to claim income support in her own right.
10.	Accordingly my decision is as set out in paragraph 1. 

Date: 4 January 1993 	(signed) Mr. D. G. Rice	Commissioner