IN THE UPPER TRIBUNAL			Case Nos 	CIS/2074/2008
ADMINISTRATIVE APPEALS CHAMBER			CIS/2466/2008
									CH/2463/2008

								[2008] UKUT 8 (AAC)

Before UPPER TRIBUNAL JUDGE WARD 

Decision:  The appeal is allowed.  The decisions of the appeal tribunal sitting in Hull on 21 February 2008 involved the making of an error on a point of law and are set aside. The cases are referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 13 of the Reasons. 

REASONS FOR DECISION

1.	These appeals were made to the Social Security Commissioners with leave of Mr Commissioner Pacey.  By virtue of the Tribunals, Courts and Enforcement Act 2007 and orders made thereunder (in particular paragraph 2 of Schedule 4 of The Transfer of Tribunal Functions Order 2008), the appeals continue (subject as there provided) on and after 3 November 2008 as proceedings before the Upper Tribunal.

2.	The substantive decision under appeal is the tribunal’s decision that Mrs Jackson was living together with Mr John Tripp as an unmarried couple from 31 December 2003 and that the previous award of income support was correctly superseded from that date.  From this decision flow the decisions in respect of the two overpayment cases, one for income support and one for housing benefit and council tax benefit.  Because of this, the local authority (in its capacity as administering authority for housing benefit) has adopted a neutral position in relation to the appeal which concerns it.  The Secretary of State does not support the appeal.

3.	Mrs Jackson’s representative, Mr Green of the local authority’s welfare rights service, makes a number of criticisms are directed at section 10 of the tribunal’s statement of reasons, where the tribunal addresses, in varying manner and degree, the “admirable signposts” discussed in R(SB)17/81.  (I interpolate that there are eleven un-numbered paragraphs within section 10 of the statement and the task of the present tribunal is made easier where paragraphs in statements of reasons are numbered consecutively.) 

4.	In R(G)3/71 it had been held:

“ it is generally accepted that the question whether a woman is cohabiting with a man as his wife, within the meaning of the statute, requires an examination of three main matters: (1) their relationship in relation to sex: (2) their relationship in relation to money: and (3) their general relationship.  Although all three are as a rule relevant, no single one of them is necessarily conclusive.”

5.	In R(SB)17/81 Mr Commissioner Rice confirmed that the legal test in relation to living together as an unmarried couple for widow’s benefit (the context of R(G)3/71) and supplementary benefit were the same . (The point is equally applicable to income support.)  He examined the “admirable signposts” and concluded that they were consistent with the test in R(G)3/71.

6.	In CIS/087/1993 Mr Commissioner Rowland referred to the comparison conducted by the Commissioner in R(SB) 17/81 before observing:

“In my view the “admirable signposts” place a wholly inadequate emphasis on the significance of the parties’ “general relationship”. Indeed, it is arguable that it is the parties’ “general relationship” that is of paramount importance and that their sexual relationship and their financial relationship are only relevant for the light they throw upon the general relationship.”

7.	Mr Commissioner Rowland goes on to refer to CIS/443/98, where it was held that the “admirable signposts” must be considered, but that there was more to living together as husband and wife than those “cold, observable facts”, citing with approval the observations of Mr Commissioner Jacobs that:

“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.”

8.	In CIS/2599/2002, Mr Commissioner Rowland drew attention to another aspect of the decision in CIS/087/1993, in which he 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.”
	
9.	The Secretary of State on this point argues:
a.	In looking at what is a question of “compound fact”, the tribunal did consider the factors as a composite whole and did mention the issue of a sexual relationship even though they conceded no questions had been asked about this and no evidence was volunteered.  I disagree.  Other than reciting that the factor formed one of the “admirable signposts”, the tribunal avoided the topic.  Even without asking questions or information being volunteered, there was material known to it (such as the categorisation of the relationship as “common law” on the finance application form) from which the tribunal might or might not have seen fit to draw inferences on this point, but it did not appear to have considered the topic.
b.	The issue of a sexual relationship is only part of the overall consideration of the general relationship and a great many marriages exist without there being a sexual relationship.  In my judgement this argument is relevant to the subsequent weighing up of the information, derived both from following the “admirable signposts” and otherwise, in order to reach the view of the relationship as a whole required by the authorities cited elsewhere in these Reasons, rather than as to whether the possible existence of a sexual relationship needs to be explored in the first place.  Indeed the Secretary of State appears to accept this: “the Department would accept that it was a consideration but not necessarily an important consideration.”
c.	In CIS/2599/2002 Mr Commissioner Rowland stated that questions “may” have to be asked not that they “must” be asked.  I do not regard this as a point of substance.  In my view, the wording is concerned with ensuring that a particular “admirable signpost” could be addressed.  It would not have been appropriate to lay down a hard and fast rule applicable to every case: for instance, even if information had not been volunteered, other information might have become available from which a tribunal could draw inferences on the point, without the need to ask questions.  However, in the present case, the tribunal did not address the point by another route and so this is a case where the possible need to ask questions implicit in use of the word “may” became an actual need.

10.	There are two ways by which one can approach the point, but both of them lead to the conclusion that the tribunal erred in law: either, because they failed to consider the issue of whether a sexual relationship existed, thereby failing to consider, as they should have done, a potentially relevant “admirable signpost”, or because they failed to apply the test in R(G)3/71, at very least in order to determine what significance any sexual aspect might have for the categorisation of the general relationship and to allow them to bear in mind (if they proved to be applicable) the observations in CIS/2599/2002.

11.	This is in my view not the only error of law in the decision. Although not expressly raised by Mr Green, it is not correct to say, as the tribunal’s statement of reasons does, that there is “no evidence other than the anonymous letter as to how the couple are regarded by other people.”  There was evidence – from Mrs A Jackson, Mrs P Jackson’s daughter- in-law – that “She has only met Mr Tripp a couple of times. Mr Tripp is more of a friend of Mrs Jackson’s son, Sammy, in her opinion.” The tribunal appears to have overlooked this evidence.  Further, had it engaged with it adequately, a reasonable tribunal in my view would have realised that there was more, in the exercise of its inquisitorial jurisdiction, that it needed to know.  Examples include: to which of Mrs P Jackson’s sons is Mrs A Jackson married?  For how long has she known Mrs P Jackson?  In what circumstances and how often does she see Mrs P Jackson?  How often and for how long is Mr Tripp away fishing (and so, even if he did live with Mrs P Jackson, would not be there to be seen by her daughter-in-law?)  If Mrs A Jackson visits Mrs P Jackson’s house, is there evidence of Mr Tripp’s belongings?  What were the two circumstances in which she did meet Mr Tripp? On the basis of what evidence does Mrs A Jackson hold her opinion that Mr Tripp is more of a friend of Sammy?

12.	As I have found the decision to contain errors of law, that is sufficient to dispose of the appeal.  However, I record that I do not accept the other criticisms made by Mr Green of the original appeal tribunal’s decision as well-founded.  

13.	The new tribunal must conduct a full re-hearing.  It will need to consider whether Mrs Jackson and Mr Tripp are living together at all.  If they are, in determining whether they are doing so as an unmarried couple for income support purposes, it will need to consider the relevance of each of the “admirable signposts”.  This will include a need to address by questioning and inference from other known facts the question of whether there is or has been a sexual relationship.  Such questioning generally need not be unduly intrusive and should as a minimum give Mrs Jackson the chance to indicate whether she has never had a sexual relationship with Mr Tripp (so as to fall within the wording quoted in paragraph 8 of these Reasons).  The tribunal will also need to ensure that any available evidence regarding how Mrs Jackson and Mr Tripp are viewed by third parties is adequately explored and to take the results into account, along with matters raised by consideration of the other “admirable signposts” and indeed of any other relevant matter to enable the parties’ relationship (understood in the light of the authorities cited in these Reasons) to be determined.

14.	The decisions in CIS/2466/2008 and CH/2463/2008 are based on a premise of a lawful decision in CIS/2074/2008.  As the latter decision has been set aside for errors in law, the other two decisions are likewise tainted by those errors and are set aside and must be reheard by the new tribunal. 

15.	The decision on the rehearing is entirely a matter for the new tribunal. The fact that the present appeal has succeeded on a point of law should not in any way be taken as an indicator of the final outcome.  

C.G. Ward
Judge of the Upper Tribunal
5 November 2008