CIS/2599/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Chester appeal tribunal dated 9 April 2002 and I substitute my own decision, which is that the claimant was not living as a member of an unmarried couple when she claimed income support from 25 October 2001.  I leave to the Secretary of State the determination of other questions arising on the claim.

REASONS

2.	The claimant is divorced.  She lives with her daughter.  In June 2001, she moved into the home of a man whom she describes as a friend of her family.  The accommodation was offered rent-free.  In October, she claimed income support and the claim was treated as made on 25 October 2001.  She gave an explanation for how she had come to be living where she was without paying any rent and she said that she and the man in whose accommodation she was living had separate bedrooms.  A decision-maker decided that he and she were living together as husband and wife and so had to be assessed jointly.  As he was working full-time, neither of them was entitled to income support.  The claimant appealed and the tribunal dismissed her appeal.  She now appeals with my leave.

3.	When I granted leave to appeal, I drew attention to my decision in CIS/87/93 in which I said –

“it does seem to me that there must be strong alternative grounds for holding a relationship to be akin to that of a husband and wife when there has never been a sexual relationship, because the absence of such a relationship in the past does suggest that the parties may be living together for reasons other than a particularly strong personal relationship.”

Consequently, I held in that case that, as the question whether or not there had been a sexual relationship was an important consideration, it was inappropriate for the Department’s officers to be instructed not to ask questions about it when they had a duty to investigate a claim.  On granting leave in the present case, I observed that the documents in this case showed that the instruction was still in force and that the evidence that the claimant and her friend had separate bedrooms seemed to have been regarded as irrelevant.  I also asked whether, on the facts relied upon by the Secretary of State, there was anything that suggested that the claimant and her friend were living together as husband and wife, rather than just living together in the same household.

4.	In an otherwise very full and helpful response, the Secretary of State’s representative has skirted round the question of the instruction not to ask a claimant whether he or she has ever had a sexual relationship with a suspected partner.

5.	However, she concedes that the tribunal’s decision is erroneous in point of law.  She does so firstly on the ground that the tribunal found them to be a “married couple” when they were clearly not married.  That seems to me to be a slip of the pen and I consider it likely that the tribunal meant to find them to be an “unmarried couple” as that term is defined in section 137(1) of the Social Security Contributions and Benefits Act 1992.  However, I accept the further submission that the tribunal did err in law because, like the Secretary of State’s decision-maker, he did not address the question whether the claimant had ever had any sexual relationship with the man in whose house she was living and whether, if not, there was any reason to regard the claimant and her friend as living together as husband and wife rather than as friends.  I also accept the criticism of the tribunal’s finding that the claimant was untruthful.  That finding was made because she said she barely knew the man, despite the fact that she had described him as an old family friend.  As the Secretary of State’s representative submits, “it is perfectly possible for someone to be termed a family friend whilst not being a friend of each and every member of the family”.

6.	The Secretary of State’s representative concedes that there was nothing in the evidence before the tribunal to rebut the claimant’s account of her arrangement and relationship with her friend and she therefore concedes that the claimant was not in fact living as a member of an unmarried couple.  She refers to CIS/443/98 in which it was said that the “admirable signposts” listed in R(SB) 17/81 must be considered, as they were in the present case, but that there was more to living together as husband and wife than those “cold, observable facts”.  As Mr Commissioner Jacobs went on to say –

“It is only when the external aspects of the relationship are viewed in the context of the more emotional and less tangible side of the relationship that their proper significance can be determined.”

7.	I accept the Secretary of State’s concessions.  They are reasonable, even though it might be arguable that an alternative view could be taken of the evidence.  In the light of the concessions I can substitute my own decision for that of the tribunal.

(signed)	MARK ROWLAND
Commissioner
19 November 2002