England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY
COMMISSIONER
(Mr Mark Rowland)
CIS/2816/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th May 2005

Lord Justice Keene:

1. This appeal from Social Security Commissioner Rowland raises a short point about the way in which income support is calculated in certain cases. In order to arrive at the figure for the income support to which a person is entitled, one has to calculate "the applicable amount": section 124(4) of the Social Security Contributions and Benefit Act 1992. The calculation is to be done in the way set out in the Income Support (General) Regulations 1987, Regulation 17(1). In essence a number of items are added together, one of those items being housing costs determined in accordance with Schedule 3. The whole of Schedule 3 was replaced in 1995 by new wording inserted by the Social Security (Income Support and Claims and Payments) Amendment Regulations 1995. This introduced a new regime for such housing costs within income support.
2. However, various forms of transitional protection were provided. One such form relates to "existing housing costs", which are distinguished from "new housing costs", the latter being housing costs arising under an agreement entered into after 1 October 1995. The importance of the distinction is that there is a much shorter waiting period before housing costs are paid when one is dealing with existing housing costs. But certain housing costs which would otherwise fall within the definition of new housing costs are treated under Schedule 3 as though they were existing housing costs. That is provided by paragraph 8(4) of the Schedule.
3. It is unnecessary to set out in full all the cases covered by this deeming provision in paragraph 8(4): they are specified in paragraph 8(2) and 8(3). By paragraph 8(2)(b), one of them is a claimant who at the time the claim is made

"is detained in custody pending trial or sentenced upon conviction."

Paragraph 8(3) applies

"where a person claims income support because of –

(a) the death of a partner; or

(b) being abandoned by his partner,

and where the person's family includes a child."

4. This present case is concerned with the meaning of the word "abandoned" in paragraph 8(3)(b).
5. The facts are not complicated. The respondent was a married woman with four children aged, at the time of her claim for income support, between 23 months and 10 years. She, her husband and the children were living together in a house subject to a mortgage taken out in 1999. On 30 November 2001 her husband, a teacher, was arrested on suspicion of sexual offences against children. He was subsequently charged with five such offences, the complainants including his nieces though none of his own children. He was granted bail pending trial, but subject to conditions restricting his contact with children under 14 and requiring him to live and sleep at a stated address, which was not the matrimonial home.
6. On 13 March 2002 he entered pleas of guilty and was remanded in custody. He was sentenced the following month to five years imprisonment. In the meantime, on 11 February 2002, the respondent had claimed income support. On her claim form she stated that her husband was "expecting custodial sentence". She began divorce proceedings in August or September 2002 and was divorced in January 2003.
7. The appellant in these proceedings, the Secretary of State, decided that the respondent was not entitled to have her housing costs included in her applicable amount for the purpose of calculating entitlement to income support because they were new housing costs, she had not been abandoned so as to fall within paragraph 8(3)(b) and so she could not be treated as having been entitled to housing costs for thirty nine weeks. The decision-maker within the Department of Work and Pensions expressly relied on a decision of a Commissioner in which it was held that a woman separated from her husband by the latter's imprisonment had not been "abandoned" for the purposes of paragraph 8(3)(b). The respondent appealed to an appeal tribunal contending that she had been so abandoned within the meaning of that provision. She told the tribunal that, had she found out before the police did that her husband was committing offences against children, she would have excluded him from their home, or she would have left with the children, because she would have feared for the safety of the children.
8. The appeal tribunal appears to have accepted her statement to that effect, but it ruled against her. Relying on the decision referred to by the Secretary of State, one by Commissioner Angus in March 1999 reference R(IS)12/99, the tribunal held that abandonment required a deliberate withdrawal by the spouse of his society and financial support from the claimant. Here the police had removed the need for her to leave or to force him to leave. Therefore there was neither an abandonment nor a constructive abandonment.
9. She appealed to the Social Security Commissioner, who allowed her appeal. The Secretary of State now appeals against that decision. Commissioner Rowland's reasoning can be seen from the following passages:

"8. ... The feature of the present case which Mr Barber is right to say distinguishes it from R(IS) 12/99 is the nature of the offences, because they inevitably made it impossible for the claimant's husband to live with her and the children and, moreover, were extremely likely to make her regard it as intolerable to live with him again. I can see no difference between a woman compelled to leave a partner because of his violence and a woman compelled to leave her partner (or to require him to leave her) because it is not safe for him to live in the same household as her children. In both cases, the behaviour of the partner has caused the separation and he may be regarded as being guilty of constructive desertion. …

9. Ms Clapham supports the tribunal's view that the present case is distinguishable from R(IS) 2/01 because the claimant in the present case was not in fact compelled to leave her husband or to require him to leave the matrimonial home as the court's order protected her and the children without her having to take those steps. I do not accept that that is a material distinction.

10. It seems to me to be important to consider what the position would have been if the court had not imposed the bail condition. If, as has been presumed, the court imposed a residence condition at an address away from the claimant's husband's home at the request of the prosecution in order to protect his children, it is reasonable to infer that the local child protection agencies would have taken action to remove the children from the claimant's care had she contemplated allowing her husband to live with her. It is quite plain from her evidence to the tribunal that she would not have allowed her children to be put at risk or to be taken from her and therefore she would have been compelled either to leave the matrimonial home or take steps to have her husband excluded from it. Thus, her husband's behaviour would have amounted to constructive desertion."

10. That reasoning is challenged by the Secretary of State. On his behalf Mr Chamberlain accepts, as have a number of decisions by Commissioners, that "abandonment" in paragraph 8(3)(b) can be seen as having the same meaning as "desertion" in matrimonial law. He refers to the purpose of that provision as being, in terms being used by the Secretary of State when responding to the Social Security Advisory Committee in 1995, to

"introduce an easement for those claimants whose claim resulted from desertion and the claimant has care of children."

The term "easement" in that passage was evidently not being used in its narrow real property sense but as a synonym for alleviation or relief.

11. It was initially submitted by Mr Chamberlain that the provision requires a deliberate withdrawal by a partner of both his society and his financial support, in the sense that the withdrawal has to be voluntary. However, in the course of argument, the thrust of the case being put forward by the Secretary of State has shifted somewhat. The emphasis now is on whether abandonment had been established at the date when the claim for income support was made. Mr Chamberlain contends that, if what is relied on by a claimant is constructive abandonment, then such a claimant has to show unreasonable behaviour by the other party and an intention on the claimant's part to treat the relationship as at an end. Otherwise the relationship may continue, despite the other party's violence or unreasonable behaviour. He criticises both the appeal tribunal and the Commissioner for not making a finding of fact as to when the respondent formed the intention to treat the relationship as being at an end because of her husband's conduct towards children.
12. Our attention is draw to the claim form itself, where the respondent answered the question "is this separation temporary?" by ticking the box marked "yes", and then commented that her husband was "expecting a custodial sentence". Mr Chamberlain also relies on another answer given by the respondent when interviewed about her claim on 21 February 2002. After recording that she expected that her husband would go to gaol, the interview sheet has a typed question: "does the partner intend to return to the family home in the future?" The answer recorded is "yes". It is therefore submitted that the Commissioner could not properly find that the respondent had been abandoned at the date of her claim, because she was not intending to treat the relationship as at an end.
13. It is also argued that the Commissioner failed to adopt the correct approach towards causation. Under paragraph 8(3)(b), the claim for income support must be "because of … being abandoned by his (her) partner". Here, the husband may have stopped financial support because of losing his job as a result of his arrest and the claim for income support may derive from that rather than from any abandonment by him of his wife. The Commissioner, submits Mr Chamberlain, was wrong to consider the hypothetical situation if the bail condition had not been imposed. He should have considered the actual position and the factual cause of the claim.
14. Mr Chamberlain concedes that the Secretary of State did not advance arguments along either of these lines before the appeal tribunal or the Commissioner, where the submission made was simply that the bail conditions and subsequent imprisonment could not form the basis of an abandonment of the respondent. For this reason the Secretary of State in this appeal does not ask, even if he is successful, for this matter to be remitted so that fresh findings of fact can be made. It is accepted that this court has the power to do what the Commissioner could do, including drawing inferences of fact from the evidence. But the appeal is brought so as to obtain guidance from this court on the correct approach to be adopted as a matter of law.
15. For the respondent Mr Stagg submits first that, just as one can have constructive desertion, so one can have construction abandonment. He relies on a decision of Commissioner Levenson, R(IS) 2/01, to that effect and on the decision in Sickert v. Sickert [1899] P 272, a case of constructive desertion where Gorell Barnes J said (page 282):

"In most cases of desertion the guilty party actually leaves the other but it is not always or necessarily the guilty party who leaves the matrimonial home. In my opinion, the party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion. There is no substantial difference between the case of a husband who intends to put an end to the state of cohabitation, and does so by leaving his wife, and that of a husband who with the like intent obliges his wife to separate from him."

16. A number of other matrimonial cases are relied on by the respondent to establish that the separation element in desertion may result from a period of compulsory detention (Beeken v. Beeken [1948] P 302) and that criminal conduct on the part of a partner may amount to constructive desertion if it "strikes at the roots of the matrimonial relationship": Ingram v. Ingram [1956] P 390 at 408, 412. Mr Stagg submits that the question which needs to be asked is summarised in Griffiths v. Griffiths [1964] 1 WLR 1483 at 1486 – 1487 as follows:

"Was the husband guilty of such grave and weighty misconduct that he must have known that his wife, if she acted like any reasonable woman in her position, would in all probability withdraw permanently from cohabitation?"

17. It is contended that, in considering the issue of abandonment, as with desertion, one looks at the intention of the deserting party rather than at that of the deserted party. What is required is physical separation plus an intention on the part of the deserting party to end the relationship. Such an intention may be inferred, and will readily be inferred in cases of constructive abandonment/desertion: see Lang v. Lang [1955] AC 402. The attitude of the deserted party is not a necessary ingredient. In the present cases the behaviour of the husband towards children was such that, despite his apparent wish to return home in due course as noted on the claim form, he must have accepted that the relationship could not be resumed. That was what the Commissioner was in essence saying when examining what would have happened if there had been no bail condition of residence.
18. Finally it is submitted that the root cause of the claim for income support was the husband's criminal conduct, which involved abominable behaviour towards children, and which directly caused the break-up of the relationship. Indeed, says Mr Stagg, it struck at the root of the matrimonial relationship itself, so leading to the claim for income support. One cannot sensibly distinguish in terms of causation between the husband's conduct, leading to his arrest, and the abandonment of his wife. The whole combination of events gave rise to the claim for income support.
19. For my part, I accept that the term "abandoned" was intended to bear the same meaning as "deserted" has in matrimonial law as between married couples. It may be that the word "abandoned" was regarded as more appropriate in the Regulations when dealing with situations involving unmarried couples as well as husbands and wives. Furthermore, it must be right that the provision in paragraph 8(3)(b) of Schedule 3 was intended to cover cases of "constructive abandonment", that is to say where a claimant plus child or children is effectively forced out of the home by the violence or other unacceptable conduct of his or her partner. There is, in such a case, just as much an abandonment as if the violent partner had left the claimant. The same is true if, as a result of such conduct, the innocent partner refuses to allow the other into the home. Whether that is seen as abandonment or constructive abandonment is of little consequence. The same reasoning which the courts applied in Sickert v. Sickert in matrimonial cases applies with as much force to the situation with which we are now dealing. I regard the decision to this effect by Commissioner Levenson in R(IS) 2/01 to be clearly right.
20. Desertion in matrimonial law requires both physical separation and an intent on the part of the deserting party to desert the other. The cases cited by Mr Stagg, Beeken v. Beeken and Ingram v. Ingram, establish that the physical separation element can be achieved by imprisonment or other forms of compulsory separation, but in such cases there still has to be an intention to desert. Indeed it is clear from the authorities that there will be desertion from, and only from, the time when that intention is formed or can be inferred: see Beeken, page 310 and Ingram, page 410. Imprisonment alone is not enough, and the decision reached by Commissioner Angus in R(IS) 12/99 can be understood on that basis. There was, it seems, no intention on the part of the husband sentenced to imprisonment in that case to abandon his wife and constructive abandonment was not advanced as an argument. Indeed, there is no suggestion in the report that the husband's conviction was for an offence which in itself could be seen as having any effect on the relationship with his wife and on the future of that relationship.
21. Where I do part company with Commissioner Angus in that case is with the suggestion that imprisonment, because it was not itself a voluntary act of separation, could not provide the necessary element of separation which was required. No authority is cited in that decision for any such proposition and it is contrary to the authorities to which I have just referred. Moreover, it would seem to produce a most peculiar end result. I earlier set out paragraph 8(2)(b), whereby a husband in custody awaiting trial or pending sentence after conviction can have new housing costs treated as existing housing costs for income support purposes. It would seem absurd to allow relief in such cases but to refuse it to a wife automatically when a husband is serving a custodial sentence. In my judgment imprisonment can constitute the necessary element of separation for abandonment as can a bail condition, but that by itself will not suffice.
22. The element of intention is also required. If there is an intention on the part of the offender to abandon his or her partner, then that will be sufficient. As it is put in Rayden and Jackson on Divorce and Family Matters 17^th edition, paragraph 8.33,

"In its essence desertion is the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse." (emphasis added)

23. It will be observed that it is the intention on the part of the deserting party which is relevant. At paragraph 8.34 the same work states:

"To establish the fact of desertion there must be two elements present on the side of the deserting spouse, namely the factum, ie the physical separation, and the animus deserendi, ie the intention to bring cohabitation permanently to an end; and two elements present on the side of the deserted spouse, namely absence of consent and absence of conduct reasonably causing the deserting spouse to form his intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife will probably not tolerate, and which no ordinary woman would tolerate, and then she leaves , he has deserted her whatever his desire or intention may have been."

24. In such a case his "intention" to bring the relationship to an end is in fact attributed to him. In Lang v. Lang the Privy Council held that where a husband's conduct towards his wife was such that a reasonable man would know, and that the husband must have known, that in all probability it would result in the departure of the wife from the matrimonial home, that, in the absence of rebutting evidence, was sufficient proof of an intention on his part to disrupt the home, and the fact that he nevertheless desired or requested her to stay did not rebut the intention to be inferred from his acts – that he intended to drive her out – and he was guilty of constructive desertion.
25. I therefore do not accept the Secretary of State's submission that the party alleging that he or she has been abandoned has to show that he or she regards the relationship as at an end. It is not her mental state which is relevant. What is relevant is either direct evidence of an intention on the part of the abandoning party to end the relationship or evidence from which that intention can be inferred. That is why the Commissioner in the present case was right to have regard to the nature of the offences committed by the respondent's husband. They were offences which "no ordinary woman would tolerate" and which entitles one to infer that he cannot have intended the relationship to continue. The case bears some similarity to Ingram v. Ingram, where the wife had been convicted of treasonable conduct and where Sachs J said at pages 411–412:

"The fact that she had incurred that conviction was, however, relied on as also being a ground upon which she was guilty of constructive desertion. That her conduct in incurring the conviction would, if it became known, render a joint life with him in the matrimonial home at Portsmouth impracticable, was something which in my view was not merely obvious but was something which, as above indicated, was well appreciated by her."

26. The reality was that the respondent's husband in the present case could not be allowed back into the matrimonial home, given the offences which he was admitting. The wife could not realistically have let that happen, since she had four children aged 10 or under, and the local authority would not have allowed that to happen. That in essence was what the Commissioner was saying in the passage which the Secretary of State now criticises as hypothetical.
27. This was the situation by the time the claim form for income support was submitted. The husband had acknowledged his guilt, at least to his wife, and was expecting a prison sentence for his offences. I therefore conclude that the timing point advanced by the Secretary of State is not a sound one. The physical separation existed by then and this was a case where the husband's intention to end the relationship could and should be inferred.
28. As for the argument about causation, I would deprecate tribunals drawing too fine a distinction in cases such as this about what it is which "causes" a claim for income support to be made. In argument Mr Chamberlain accepted the approach which is set out in paragraph 18 of the decision by Commissioner Mescher in CIS/2790/1998 on this topic, where it was said:

"The abandonment need not be the sole cause of the claim for income support. … There must in my view at least be some causative link between the abandonment and the reason for making the claim for income support at the time that it was made. … By definition, the abandonment must have happened before (or at the very least have started before) the claim for the claim possibly to be because of being abandoned."

29. I agree with that. The approach on causation should be a robust, common-sense one, which in a case such as this does not seek too readily to distinguish between the abandonment of the respondent and the conduct of the other party which is the basis of the abandonment. Those claiming income support are unlikely to regard such a distinction as a real one and tribunals would also find this a difficult and complex exercise. I cannot see that there is any legal flaw in the Commissioner's decision in this respect.
30. It follows that, for the reasons set out, I would dismiss this appeal.

Lord Justice Scott Baker:

31. I agree.

Lord Justice Thomas:

32. I also agree.

ORDER: Appeal dismissed; agreed order to this extent: that there be an order under section 39 (1) of the Children and Young Persons Act 1933 and CPR 39.24, that the respondent, her children and her former husband should not be identified; that the appellant pay the respondent's costs to be the subject of detailed assessment if not agreed; that there should be an assessment of the respondent's publicly funded cost; permission to appeal to the House of Lords is refused.

(Order does not form part of approved judgment)