[2007] UKSSCSC CIS_4156_2006 (11 May 2007) 

CIS/4156/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 
The Commissioner’s decision

1.	This appeal succeeds.  The decision of the Derby appeal tribunal sitting on 23 August 2006 is erroneous in point of law.  Accordingly I must set it aside.  But this is not the end of the matter. I am not in a position to decide the merits or otherwise of the claimant’s appeal from the original decision of the Secretary of State.  It follows that I have no option but to send this appeal back for rehearing by a fresh tribunal in Derby.  I give directions for that rehearing at paragraph 39 below.  These directions apply both to the Tribunals Service and to the Department for Work and Pensions.

The need for a rehearing by a new tribunal

2.	It is important to be clear as to the limits of my decision.  It means that although the claimant’s appeal to the Commissioner succeeds, the claimant’s appeal to the tribunal has to be reheard.  The new tribunal may find in the claimant’s favour and allow her appeal against the Secretary of State’s decision.  Alternatively, depending on the view it takes of the facts, that new tribunal may end up coming effectively to the same decision as the previous tribunal.  There are questions of fact and judgement in this case which are for the tribunal to determine. So the mere fact that this appeal to the Commissioner succeeds is no guarantee that the claimant will ultimately succeed at the rehearing of her original appeal.

The background to this appeal

3.	This appeal (CIS 4156 2006) is one of a pair of appeals to the Commissioner (the other being under file reference CIS 4227 2006) in respect of two appeals that were sensibly heard together by the Derby tribunal.  This decision is the lead appeal and, so far as is relevant, its reasoning also applies to CIS 4227 2006.

4.	The short question in this appeal is whether the appeal tribunal was right to conclude that the appellant and Mr W were living together as husband and wife as from 1 January 1998 (“the living together decision”).  The short question in the joined appeal is whether the alleged consequential overpayment of income support in the sum of £24,083.30 is recoverable from the appellant (“the overpayment decision”).

5.	The appellant is a lady now aged 58.  A number of matters are not in dispute.  In particular, the appellant and Mr W have known each other for over 30 years.  They lived together as cohabitants between 1975 and 1983.  Mr W stayed intermittently with the appellant between 1995 and 1997.  In 1997 Mr W moved in permanently to the appellant’s house (a different property to the one they had jointly occupied between 1975 and 1983).  Mr W has been in full-time employment throughout this period while the appellant has been receiving income support. In September 2005 the appellant bought her house from the local authority, under the “right to buy” scheme, using funds supplied by Mr W.

6.	Given this broad outline of the circumstances, it is perhaps not surprising that the Secretary of State concluded that the appellant and Mr W were living together as husband and wife and that the overpayment of benefit was recoverable.  The prospects of success for an appeal to a tribunal might reasonably be regarded as not promising on this set of facts.  However, this case is a good example of the factual and legal difficulties inherent in some “living together” appeals.

7.	In this decision I start by setting out a brief chronology of these proceedings.  I then explain why I have found the appeal tribunal’s decision to be wrong in law, even though I would emphasise that the decision that it reached was arguably open to it on the evidence in the case.  I conclude with directions for the new tribunal which will have to rehear the original appeal against the Secretary of State’s decision.

The Secretary of State’s decision

8.	For present purposes this matter began when the local authority informed the Department for Work and Pensions that Mr W had funded the appellant’s purchase of her council house.  The appellant was then interviewed at length by officers of the Department and the Council on 28 February 2006 (pp.7-29).  One of the Department’s officials then decided on 30 March 2006 that the appellant and Mr W had been living together as husband and wife since (at the latest) 1 January 1998 and that as a result the appellant was not entitled to income support from that date as Mr W was in remunerative full-time work (pp.30-31).  A different official later decided that there had been an overpayment of income support totalling £24,083.30, which was found to be recoverable from the appellant (p.32).

9.	The appellant lodged an appeal against the living together decision, asserting that she had no partner but was living in the same property as her ex-partner, with whom she was “good friends” (p.34).  Another official then reconsidered both decisions but concluded that in substance both should remain the same (although there was a technical change to the wording of the overpayment decision – see p.37).

10.	That official’s reasoning was as follows: “Looking at the circumstances as a whole I am satisfied that their relationship is more akin to a couple living together than to friends or carers.  How many carers would purchase a property for the person they are caring for?  The mutual support and trust displayed by this action is more akin to a couple than to carers or friends.”

The decision of the appeal tribunal

11.	Both appeals were heard together by the appeal tribunal on 23 August 2006 at a hearing that lasted 1 hour 23 minutes.  The chairman took a commendably full note of evidence (pp.45-54).  Very sensibly he decided to ask Mr W to wait outside whilst he heard the appellant’s evidence so as to ensure that their oral evidence was genuinely independent of each other.  Both appeals were disallowed and the Secretary of State’s decisions confirmed in a decision notice issued on 25 August 2006 (p.55), which gave summary reasons.  The chairman issued a fuller statement of reasons on 14 September 2006 (pp.57-58).

12.	In summary, the tribunal’s decision on the living together question was that it was “more likely than not [that] the appellant had lived as husband and wife with [Mr W] throughout the relevant period and as such was not entitled to income support from 1/1/98, since when they conceded that [Mr W] had been in remunerative employment”.

A summary of the arguments on the appeal to the Commissioner

13.	The appellant, assisted by the Citizens Advice Bureau, which also represented her at the tribunal hearing, argues that the tribunal erred in law.  Although they are not itemised as such, there are essentially three main planks to this argument.  First, it is said that the lack of any sexual relationship at the material time means that the appellant cannot have been in a relationship akin to husband and wife since 1997.  Secondly, it is argued that the relationship was and is one of mutual support, being more similar to brother and sister than husband and wife.  Thirdly, it is said that the tribunal should have looked at the totality of the relationship, rather than using the signposts as a checklist (pp.60-61). Initially a District Chairman refused leave to appeal (pp.67-68).  Mrs Commissioner Jupp subsequently granted leave to appeal (p.74).

14.	The Secretary of State’s representative does not support this appeal (pp.97-98).  In short, her view is that the tribunal was entitled on the evidence to reach the decision it did, namely that the relationship between the appellant and Mr W was akin to that of many married couples who had been in a relationship for some years.

The relevance of a sexual relationship to a living together decision

15.	The appellant’s first ground of appeal is that as she was not in a sexual relationship with Mr W at the material time then she cannot be said to be living together with him as husband and wife.  The tribunal found as a fact – which is not in dispute – that the parties had lived together as husband and wife between 1975 and 1983.  The tribunal also found that Mr W “sleeps separately in a bedroom on the top floor of the house”.  The tribunal gave its reasons in this respect as follows:

“Whilst they both, independently, suggested that sleeping together is an essential part of such a relationship, it is not.  [Mr W] told me that the fact that they don’t now sleep together is the only difference from the relationship they had had when they previously lived together between 1975 and 1983.  [The appellant] told me that she had ‘not had much sexual feeling’ since a hysterectomy in 1987.”

16.	The importance (or otherwise) of a sexual relationship between two individuals in living together decisions has been the subject of some discussion in the case law.  The early authorities were reviewed by Mr Commissioner Rowland in CIS 087 1993, also reported in the Family Law Reports as Re J (income support: cohabitation) at [1995] 1 F.L.R. 660, where he stated 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 particularly strong personal relationship” (at para. 12, emphasis in the original).

17.	The appellant’s representative relies on this authority in the grounds of appeal.  In this respect, however, I am not convinced that CIS 087 1993 necessarily assists the appellant, for the very reason that in the present case there was an admitted sexual relationship between the parties between 1975 and 1983.  So obviously this is not a situation in which “there has never been a sexual relationship”.

18.	In my view the law on this point is accurately summarised in the commentary in Social Security Legislation 2006, Vol I: Non means tested benefits at p.79 where it states that the current departmental guidance on living together

“is correct in asserting that the absence of a sexual relationship at any particular time does not prove that the parties are not cohabiting – a ‘common law marriage’ may evolve into a state of abstinence from sexual relations just as easily as a marriage may, and the parties will not thereby cease to live together as man and wife…  It should be repeated that the question is whether the parties’ relationship sufficiently approximates to marriage, and in that the possibility of, or a history of, a sexual relationship is important.”

19.	The tribunal was accordingly right to say that a finding of a sexual relationship was not an essential prerequisite for a conclusion that a couple were living together as husband and wife.  It is, however, an important part of such a relationship: see the commentary in Social Security Legislation 2006, vol II: Income Support (etc) at p 216.  The tribunal referred to Mr W’s statement that in all other respects their relationship was the same as when they had been cohabiting and the appellant’s statement as to her loss of libido.  These factors clearly persuaded the tribunal that the absence of a sexual relationship since 1997 was not fatal to making a finding that they were living together as husband and wife since that date.

20.	In the light of the evidence as a whole, however, I am not persuaded that these reasons were sufficient to justify the conclusion that the parties were indeed living together as husband and wife.  True, on the face of it the tribunal’s reasons would support a finding that this was a relationship which, as the commentary suggests, had “evolved into a state of abstinence”.  But there are two difficulties with this approach in this case.

21.	First, the tribunal failed to make any detailed findings as to the nature of the parties’ relationship in the 15-year period between 1983 (when the admitted previous cohabitation ceased) and 1998.  The tribunal simply found that Mr W had “stayed the odd night with the appellant” after his aunt died in 1994 and for a fortnight after the appellant had been admitted to hospital in 1995, followed by “occasional nights” until 1997, but without any reference to the capacity in which he stayed.  In the absence of such findings, it is impossible to tell whether a previous sexual relationship evolved into one of abstinence or whether the parties embarked on an entirely different type of relationship after a gap of over a decade.

22.	Secondly, the tribunal has not adequately explained why it relied on two factors that supported its view that the absence of a sexual relationship was not significant, but ignored other evidence that would have led to a different conclusion.  The appellant’s oral evidence appears to have been that since their cohabitation ended in 1983 “we never slept together except once in 1986” (p.47), i.e. more than 10 years before Mr W moved in with her permanently.  The appellant’s evidence was also that “he’s been out with a few other females but he’s not brought them back as far as I’m aware.  I told him to be discreet as it’s right above my bedroom” (p.49).  If an accurate account, and it does not appear to have been put to Mr W, the only relationship this is akin to is a so-called open marriage.  Adultery and a lack of faithfulness between partners may be facts of married and unmarried life, and the statutory expression “living together as husband and wife” may be an elastic term, but I do not think that it can be stretched that far.  In my view the tribunal’s failure to advert to the appellant’s evidence undermines its reasoning.  Moreover, Mr W’s statement that the tribunal relied upon – “Only difference from how we were before is that we don’t sleep together” (p.53) was prefaced by the comment “It’s more like friends. When we were married (?) we slept together”, which puts a rather different complexion on the comment of his which was relied upon by the tribunal.

23.	On the first ground of appeal I therefore do not find that the appellant’s argument is fully made out.  A finding that there was a sexual relationship at the material time is not an essential stepping-stone to a finding that two people were living together as husband and wife.  It is, however, an important feature of such a relationship and this tribunal did not explain why it had discounted other highly relevant evidence on this point.  To that extent it erred in law.
	
The role of the statutory checklist and the totality of the relationship

24.	The second and third grounds of appeal can be taken together.  These are that the relationship between the appellant and Mr W was and is one of mutual support, being more similar to one of brother and sister than husband and wife, and that the tribunal should have looked at the totality of the relationship, rather than using the signposts as a checklist.

25.	In this context the appellant’s representative relies upon the earlier case of CP 8001 1995.  In that decision Mr Commissioner Howell QC accurately observed that

“merely to live together in the same household, taking meals together and sharing household expenses, does not prove that the people doing it are doing so as husband and wife even though these are factors that are normally present in a normal marriage relationship” (para. 15).

26.	Mr Commissioner Howell QC went on to elaborate on this point as follows at paragraphs 16 and 17 of his decision:

“16. In expressing the test as it does the legislation presents adjudication officers and tribunals with one of the most difficult problems of definition there could be, since it involves investigating and analysing the nature of a human relationship between two people and this is inevitably a complex and sensitive thing. An adjudication officer or tribunal faced with such a problem is unlikely to achieve a satisfactory result by simply regarding the task as ticking off items on a checklist, without also standing back and asking itself whether having looked at all the detailed evidence about individual aspects of the claimant’s living arrangements in the case before them, the relationship between her and the man she is alleged to be living with can fairly and justly be described in normal parlance as that of two people living together in the manner of husband and wife. 

17. This necessarily involves taking into account that there may be a number of perfectly viable alternative ways in which people live together in the same household but without doing so as husband and wife; for example grown-up students nowadays frequently will share a household and living expenses, but the arrangement does not become one of “living together as husband and wife” if the house happens to contain occupants of both sexes. And there must be many households where adult brothers and sisters live together, or retired people live together as friends, whose occupants would be rightly horrified if someone were to describe their relationship as cohabitation. It all depends on the facts of the individual case, and a true relationship of cohabitation is probably easier to recognise when one comes across it than to define exhaustively in the abstract.”

27.	Putting to one side the issue of the relevance or otherwise of a past or present sexual relationship, the tribunal in this case relied on a number of factors in reaching it decision.  For example, the tribunal found the following facts, namely that Mr W had assisted the appellant financially, had done DIY, bought furniture and shared bills 50:50, trusting her to tell him what his contribution is.  He had helped her physically as her medical condition had required.  Although he slept in a separate bedroom, he also used the kitchen, toilet and lounge.  Mr W’s work commitments and their different interests meant that they were not together continuously when in the house.  They went out socially and Mr W “occasionally” went shopping with the appellant. The fact that they did not watch TV together or always eat their meals together was accounted for by their different interests and was not inconsistent with living together as husband and wife.  The appellant helped him with his paperwork and cooked for him.

28.	The mutual financial support between the parties was understandably also seen by the tribunal as a relevant factor.   The tribunal noted that Mr W had never paid any rent but had provided the funds for the appellant to exercise her right to buy.  In its reasons, the tribunal referred to the stability of the relationship since 1997 and the mutual support, which was “much more than simply mutual carers”, echoing the decision on reconsideration.  To this extent the tribunal also appears to have accepted the presenting officer’s submission to the effect that Mr W’s investment in the purchase of the property was “striking… It’s a financial commitment + more friendship than a caring relationship.  Not been a significant diversion from the old relationship other than sexual point of view” (p.54).

29.	However, the tribunal does not explain why the counter argument by the appellant was rejected.  The appellant had herself explained about the outcome of the ending of the cohabitation in 1983.  She also added, in connection with Mr W’s funding of the right to buy “I was a bit shocked when he did. Was he making up for what happened before” (p.49).  Mr W’s own evidence was “I spent £50,000 re the house as it was through me that [?] lost the first house” (p.52).  The appellant’s representative observed that Mr W “may have more feelings for her than vice versa” (p. 54).

30.	There is no doubt that the factors referred to by the tribunal might all be relied upon to reach a conclusion that the parties were living together as husband and wife.  However, the tribunal also received evidence that might well have pointed to a different conclusion.  The tribunal failed to explain whether this evidence was dismissed as unreliable or, alternatively, whether it was accepted but was outweighed by the contrary indications referred to in the previous paragraph.

31.	A number of examples will suffice.  The appellant’s evidence about the ending of the cohabitation in 1983 was as follows: “Mr W was increasingly violent [because of?] drink  we split up.  My decision. I couldn’t take any more. The house we were buying together was sold. We’d only been in it 5 years  I only got a couple of hundred pounds, as Mr W did, and I moved into council accommodation.”  Following the split “He asked me out for odd meal. Pictures etc. I refused to let him move in saying I couldn’t trust him.  Aunt died Nov 1994.  He started stopping odd night with me.  Feb 1995 I was in hospital 3 weeks with massive asthma attack. He came and looked after cats.  He stayed a fortnight to avoid me going into convalescent home. He then stayed occasional nights until ’97.  He said he couldn’t stick his cousin who he’d been staying with.  I said he could move in but just as friends. I said he could have the top of 3 floors” (p.47).  This was corroborated by Mr W’s later evidence that at the time in question “she didn’t want to start a relationship” (p.52). There are a number of other contra-indicators in the appellant’s evidence, for example her statement that “Mr W never helped me with showering” (p.48). This appears to be supported by the Social Services assessment, conducted in June 2006, which stated “Daughter has been helping with showering in the past but not an ideal situation” (p. 43). The appellant also explained that Mr W drank a lot of orange juice that he paid for separately and she ate lots of crisps, which she paid for herself.  Moreover “It’s only if I’m really poorly he’ll go shopping with me, running me in the van to Sainsbury’s”. This evidence, if accepted, was hardly consistent with a relationship akin to that of husband and wife.

32.	The tribunal stated it had “carefully considered and weighed all the evidence”.  However, it is hard to resist the impression that the tribunal has overwhelmingly selected those findings from the evidence that supported the conclusion that the parties were living together as husband and wife.  There is little reference to the contra-indicators and, where they are mentioned (e.g. the absence of a sexual relationship at the material time) their significance is underplayed.  I am acutely conscious that the tribunal had the opportunity denied to me of hearing the relevant individuals give evidence at first hand. I note also that the appellant had not always been frank in her dealings with the Department.  I also accept that it is certainly not the role of the Commissioner to impose his or her own construction on the facts when the tribunal has come to a decision which it was entitled to do on the evidence.

33.	So the Commissioner’s role is to decide whether the tribunal has erred in law, and not to decide whether or not I would have reached the same decision on the evidence.  In this respect I am satisfied that the appellant’s combined second and third grounds of appeal are also made out.   In my judgment the tribunal erred in law by relying too heavily on the checklist of indicators.  As a result, it failed to explain why no weight was given to other factors which, as I have explained, might have led to a contrary conclusion.

The importance of intention in why the parties are living together

34.	Indeed, the tribunal’s over-reliance on the checklist approach meant it failed adequately to address the more fundamental question identified by Mr Commissioner Howell QC in CP 8001 1995.  That question is this – why were the two parties living together?  This must be answered in relation to the relevant period from 1997, although obviously in the light of the fact that there had been a previous cohabiting relationship between 1975 and 1983.    In Robson v Secretary of State for Social Services [1982] 3 F.L.R. 232 Webster J observed that:

“usually the intention of the parties is either unascertainable, or, if ascertainable, is not to be regarded as reliable.  But if it is established to the satisfaction of the tribunal that the two persons concerned did not intend to live together as husband and wife and still do not intend to do so, in my judgment it would be a very strong case indeed sufficient to justify a decision that they are, or ought to be treated as if they are, husband and wife” (at p.236).

35.	In my judgment the tribunal in this case failed to deal with the question of the parties’ intentions.  This was because the appellant’s evidence as to the circumstances in which she and Mr W came to share the same house again was not adequately dealt with by the tribunal.  The tribunal should have examined those circumstances more closely, and indeed whether matters had changed at all during the period since 1997.

36.	As Mr Commissioner Howell QC noted in CP/8001/1995 “investigating and analysing the nature of a human relationship between two people … is inevitably a complex and sensitive thing.”  There is some helpful guidance in the commentary in Social Security Legislation 2006, vol I: Non means tested benefits at p.80 where a number of particularly problematic types of possible living together cases are discussed.  One of these is identified in the following terms:

“The ex-husband and wife who move back together …. A couple may divorce and then after some time agree to share the former matrimonial home, or some other home, again.  This may be on the basis of a landlady-lodger arrangement, or simply as house-sharers.  Most of the criteria will be satisfied.  It is suggested that in such a case it may be proper to test the re-created relationship as if they had not formerly been married (e.g in relation to the sexual relationship).  This may depend on the length of time that they have lived apart, and their age, especially if they are both caring for a child of the family in the home.”

37.	This scenario is very like the one in the instant case, with the main exception being that the appellant and Mr W were former cohabitants rather than former spouses.  They also co-resided in a property other than the former quasi-matrimonial home and there were no children involved.  But I return to the point that the parties’ intentions are important in understanding whether they constituted two persons “living together as husband and wife” or “two persons living together not as husband and wife”.  The tribunal with the task of hearing the fresh appeal will have to decide whether the appellant and Mr W were, in the period from 1997, living together (1) as husband and wife; (2) as landlady and lodger or (3), insofar as it may be different from (2), as house sharers.

The Commissioner’s decision recapped

38.	In summary, I allow this appeal.  The decision of the Derby appeal tribunal sitting on 23 August 2006 is erroneous in point of law.  I must therefore set it aside under section 14(8) of the Social Security Act 1998.  I am not in a position to decide the merits or otherwise of the claimant’s appeal from the original decision of the Secretary of State.  It follows that I have no option but to send this appeal back for rehearing by a fresh tribunal in Derby (section 14(8)(b) of the 1998 Act).

Directions to the new tribunal and the Department
	
39.	In doing so I make the following directions to the new tribunal.  These are subject to any further directions issued by a District Chairman as to listing and other arrangements:

Directions to the Tribunals Service

(1)	The new hearing of the appeal should be heard before a different legally qualified panel member, being a District Chairman or other nominated chairman.
(2)	The new tribunal should be provided with a complete set of the present appeal bundle, which should therefore include copies of Commissioners’ decisions R(SB) 35/85, CP 8001 1995 and CIS 087 1993.
(3)	The new tribunal should consider and make findings as to the intentions of the appellant and Mr W at all material times when reaching its decision on whether they were living together as husband and wife.
(4)	The new tribunal should consider and make findings as to all the material facts which are relevant to the checklist in the light of those intentions.
(5)	The new tribunal should also bear in mind that the burden of proof is on the Secretary of State on the balance of probabilities to establish that there were grounds for superseding the award of income support to the appellant.

Directions to the Department for Work and Pensions

(6)	The Department should produce copies of all income support claim forms or review forms completed by the appellant since 1997 which it has in its possession.
(7)	The Department should send a presenting officer to attend the rehearing, as it is to be commended for doing so at the first hearing.

  

	(signed on the original)		N J Wikeley
			Deputy Commissioner

								11 May 2007