[2005] UKSSCSC CPC_3891_2004 (18 April 2005)

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is allowed. The decision of the York appeal tribunal dated 17 August 2004 is erroneous in point of law, as there was no decision before it against which an appeal could be made, and I set it aside. I substitute the decision that the appeal tribunal should have given (Social Security Act 1998, section 14(8)(a)(i)). The decision is that the appeal tribunal had no jurisdiction to hear the appeal purportedly before it, as no decision capable of appeal had been made, and I declare that no decision has as yet been made on the claim for pension credit from 6 October 2003. I deal in paragraph 17 below with where that leaves the case.

2.	This is a case concerning the definition of "unmarried couple" in section 17(1) of the State Pension Credit Act 2002 in terms of "a man and woman who are not married to each other but are living together as husband and wife". It displays at best a complete misunderstanding of the system of adjudication under the Social Security Act 1998 by the officers concerned and at worst a deliberate falsification of the facts in the submissions made to the appeal tribunal, although I think that the latter is the less likely possibility.

3.	I regret the lapse of time since the claimant's solicitor, Mr Derek Crossan, put in his observations on the appeal on 4 February 2005. Following his letter dated 6 April 2005, I asked the Commissioners' office not only to inform him that the case was at the top of the list of cases waiting for my determination (as was done in the letter dated 14 April 2005), but also to give him the opportunity to ask for copies of pages 1 to 89 of the papers (which he had said in his observations that he did not have). Unfortunately, the second part of those instructions was not carried out, but I am not now going to delay my decision any further. Pages 1 to 89 constituted the documents before the appeal tribunal of 17 August 2004 and the appeal tribunal's record of proceedings, decision notice and statement of reasons, plus the documents relating to the application for leave to appeal. Thus, all those documents should already have been available to Mr Crossan if they were not enclosed with the letter to him of 30 November 2004 as they should have been. I do not consider that the claimant's interests have been in any way prejudiced if Mr Crossan did not have the numbered pages 1 to 89.

4.	The appeal tribunal was concerned with the claim for pension credit received on 27 January 2004. The claim was in time for an award to be made from 6 October 2003. The claimant's date of birth was 14 March 1942. On the claim form he said that he lived rent-free at R Boarding Kennels in return for assistance with the work of the kennels. He declared capital of £5222.04 and stated that he did not have a partner. It appears that the Department already had some information that the claimant had ceased self-employment on selling a public house in 2002, so that a visit was carried out on 18 March 2004 to check the proceeds of sale and what had happened to the money. On the visit, an officer was informed by an employee of the owner of the kennels that the claimant and "his partner", the owner Mrs G, had had to go to America suddenly to deal with a family matter. A note was made for further investigation of whether they were business partners or partners in the sense of an unmarried couple. A further visit took place on 15 April 2004, when the claimant alone was interviewed. The question of capital was satisfactorily resolved and a record of the interview was made on a specific living together as husband and wife form.

5.	On considering that form, another officer on 22 May 2004 recorded a decision on a form CP3(LT) that the claimant and Mrs G had been living together as husband and wife since January 2002. A letter dated 2 June 2004 was sent to the claimant including the following:

	"I am writing to tell you that we have decided that you and [Mrs G] are living together as husband and wife. We have made this decision using the information you gave us on 15th April 2004.

	When two people live together as husband and wife, we work out their Pension Credit as if they are a married couple.

	Either you or [Mrs G] can make an application to pension Credit for both of you. If you need more information on how to make an application, please get in touch with us. Our address and phone number are at the top of this letter.

	We will work out how much money you can get from the information you give us. If your circumstances change it may affect the amount of Pension Credit you get. You would need to tell u about any changes in your circumstances."

The letter went on to say that the claimant could ask for an explanation and for the decision to be looked at again and that he had a right of appeal.

6.	The claimant did ask for an explanation and a reconsideration. A decision maker on 5 June 2004 declined to change the decision, said to have been that the claimant was living together as husband and wife with Mrs G. After receiving notification of that outcome, the claimant appealed.

7.	In section 3 of the Secretary of State's written submission to the appeal tribunal, the decision under appeal, dated 22 May 2004, was said to have been as follows:

	"[The claimant] and [Mrs G] are for the purposes of Pension Credit to be treated as an unmarried couple from 6/10/2003. From 6/10/2003 [the claimant] is not entitled to Pension Credit as a single person."

However, the last paragraph of the submission was as follows:

	"I respectfully submit to the tribunal that the primary question under appeal is that of the living together question and not the consequential entitlement or payment question. Upon determination of the appeal by the Tribunal the Decision Maker will consider the effect of the decision upon payment and adjust payment accordingly."

8.	The claimant and Mrs G attended the hearing on 17 August 2004 and gave detailed evidence. The appeal tribunal disallowed the appeal and confirmed the decision issued on 22 May 2004. The statement of reasons described the appeal as being against the decision of that date that the claimant was not entitled to pension credit as a single person from 6 October 2003. I do not, as things turn out, need to set out why the appeal tribunal concluded that the claimant and Mrs G were living together as husband and wife.

9.	The claimant now appeals against that decision with my leave. The application challenged the appeal tribunal's conclusions of fact and the inferences drawn from them. When granting leave I said this:

	"It is arguable that the appeal tribunal erred in law by not applying the proper test as to living together as husband and wife, or by not giving reasons that showed that the proper test had been applied, in that it took no account of the factor of the presence or absence of a sexual relationship and also seemed not to focus on the claimant's and [Mrs G's] general relationship, rather than the particular sign-posts that it identified. In addition, did the appeal tribunal give an adequate explanation of why its finding about [Mrs G's] purchase of a caravan for the claimant to use if his bedroom was needed for a guest was a factor pointing towards a living together as husband and wife rather than against?"

I also directed the Secretary of State to comment in his submission on whether the form of decision recorded on the form CPC(LT) and notified in the letter of 2 June 2004 was a proper and complete one and on whether an "outcome" decision was to be implied, so that there was a decision capable of being appealed.

10.	The submission dated 7 December 2004 on behalf of the Secretary of State supported the appeal, on the basis that the appeal tribunal had not adequately explained the operation of all the proper factors, including that there had never been a sexual relationship and that there was a credible explanation of the sharing of a household other than that the claimant and Mrs G were living together as husband and wife. It was suggested that I should substitute the decision that there was insufficient evidence that the claimant was living together as husband and wife with Mrs G. It was also submitted that it was not clear whether the letter of 2 June 2004 was notification of an outcome decision or merely of a determination, but that it did imply an outcome decision. As noted above, Mr Crossan made observations on behalf of the claimant on 4 February 2005.

11.	There is obviously much to be said for simply accepting the Secretary of State's submission, which would have the practical outcome of giving the claimant entitlement to pension credit. However, I cannot ignore the fundamental flaws in the approach taken by the decision makers acting on behalf of the Secretary of State, especially as the approach seems to be one taken generally, not a one-off aberration in the present case. The nature of those flaws prevents me from making doing what was suggested in the submission of 7 December 2004.

12.	The underlying reasoning is explained in my decision in appeal CIS/1720/2004, signed on 7 January 2005, after the submission on behalf of the Secretary of State was made in the present case. I shall ensure that a copy of that decision is sent with the present decision to the claimant and Mr Crossan. There were a number of complications in CIS/1720/2004, but the essential principle was set out in paragraph 13:

	"I agree with the Secretary of State's submission of 17 November 2004 that there was no decision before the appeal tribunal that was capable of being appealed. If a decision had actually been made in the form described in the letter of 26 March 2003 ... or in the Secretary of State's written submission to the appeal tribunal, that could have been accepted as in substance a supersession decision on the ground of relevant change of circumstances, with the superseding decision being that the claimant was not entitled to income support from and including 8 April 2002. The deficiencies of an absence of any express mention of powers of supersession or of any explanation of why not being a lone parent meant that the claimant could not be entitled to income support would not have affected the substance. There would, in the current jargon, have been an "outcome decision" affecting entitlement to benefit that was capable of appeal under section 12(1) of the Social Security Act 1998. But the documents clearly show that no such decision was ever made with effect from 8 April 2002. The "decision" of 20 March 2003 on page 81 [that the income support claimant in that case was living as husband and wife with Mr A] merely determined one question, one building block, that would have been necessary along with the determination of other questions for a decision altering entitlement from 8 April 2002 to have been made. It was not a decision within the meaning of section 12(1) and therefore was not capable of being appealed."

13.	In CIS/1720/2004, the representative of the Secretary of State before the Commissioner had investigated with the local office concerned whether any other decision had been made apart from those recorded in the documents before the appeal tribunal and received the answer no. In the present case, the representative of the Secretary of State did not carry out such an investigation, but submitted that the letter of 2 June 2004 implied that an outcome decision, ie a decision that the claimant was not entitled to pension credit, had been made. I cannot agree. I have no doubt, from the nature of the "decision" recorded on 22 May 2004 (pages 31 and 32) and what was notified on 2 June 2004 (when the letter made no reference to any actual decision on the claim for pension credit) and from the scope of what was looked at in the "reconsideration" of 5 June 2004, that the only decision made was that recorded on pages 31 and 32. I have no doubt that the Secretary of State's written submission to the appeal tribunal was wrong to state that a decision had been made that the claimant was not entitled to pension credit, whether as a single person or otherwise, from 6 October 2003. It was in my view simply assumed that that consequence would follow from a determination that the claimant and Mrs G were living together as husband and wife. But there is no room for assumptions of that sort in the formal system of decision-making. Every person who makes a claim for benefit is entitled to a decision as to whether or not the claim is successful for the period covered by the claim. No such decision was ever given on the claim for pension credit in the present case. There is also no room for the making up of decisions that were not actually made and reproducing such fictitious decisions in official submissions, even if that is the result of confused thinking rather than bad faith.

14.	I should mention two further examples of confused official thinking. The first is that, if a decision had actually been made in terms of the claimant not being entitled to pension credit as a single person from 6 October 2003, that would have been an inept and defective form of decision. A person's claim for a pension credit is not defeated simply because the person is one of a married or unmarried couple. The partner's income and capital must be taken into account in deciding whether the person claiming is entitled to pension credit and the amount of the standard minimum guarantee is higher for a couple than for a person without a partner. Thus, a proper and full decision on a claim for pension credit where the claimant has a partner must involve a decision as to entitlement after assessing their joint income and capital and other circumstances. A decision that a person is not entitled to pension credit as a single person is not a full and proper decision on the claim. It would no doubt be an appealable decision, as the substance would be a disallowance of the claim, but on appeal an appeal tribunal would have to consider the full and proper decision to be made.

15.	The second example is the final paragraph of the Secretary of State's written submission to the appeal tribunal (see paragraph 7 above). Having wrongly sought to give the impression earlier in the submission that an entitlement decision (even if not a full and proper one) had been given on the claim, there was then a reversion to the line often taken before the coming into operation of the procedures under the Social Security Act 1998, that in an appeal against a living together as husband and wife decision an appeal tribunal could not consider the question of whether the claimant was entitled to benefit as the result of the decision made on the question directly under appeal. That line was probably wrong on the pre-Social Security Act 1998 law, but could only have any force when appeals could be brought against decisions on questions arising under claims as well as against decisions on claims. Now, as was authoritatively decided some years ago, under section 12(1) of the Social Security Act 1998 there can only, unless there is some specific legislative extension, be an appeal against an outcome decision that decides entitlement, not against the mere determination of what used to be called a question (Commissioner's decision CIB/2338/2000, followed and adopted many times since, in particular in paragraph 55(1) of Tribunal of Commissioners' decision R(IB) 2/04).

16.	For the reason given above, the appeal tribunal of 17 August 2004 had no jurisdiction to make any substantive decision, as there was no appeal properly before it. All it could properly have done was declare that to be the legal position. It erred in law by purporting to make a decision, more fundamentally than in its approach to living together as husband and wife. In paragraph 1 above I have therefore set aside its decision and substituted what should have been done.

17.	The upshot for the claimant is this. No decision has been made as to whether or not he is entitled to pension credit on his claim from 6 October 2003. The Secretary of State must now make that decision, after carrying out whatever further investigations, if any, as are considered necessary. I have no power to give any directions to the Secretary of State about that matter, but it does seem to me that the cogent views about the effect of the current evidence expressed in the submission of 7 December 2004 should be given the appropriate weight. Once the Secretary of State makes the decision on entitlement, the claimant will of course have a fresh right of appeal if he is dissatisfied with the outcome.

	(Signed)        J Mesher
	Commissioner

	Date:    18 April 2005