UK Social Security and Child Support Commissioners' Decisions

[1993] UKSSCSC CIS_671_1992 (19 March 1993)

RAS/SH/l

Commissioner's File CIS/671/1992

SOCIAL SEC URITY ACT 1986

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SEC URITY APPEAL TRIBU NAL ON A

QUESTION O LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Name:

Social Security Appeal Tribunal:

Case No: C

[ORAL HEARING]

1. Mr now 80 years old, and his wife who is I think two years younger, both suffer from senile dementia. They are both incapable of managing their own affairs or of looking after themselves in their own home; nor is it possible for the family to provide the care and supervision which they both require. Mr was discharged from hospital following a stroke in April 1991 and he and his wife were then moved to a home for the mentally ill' 's Rest some at , where they. could be properly looked after. It is said that there are or were at the time 11 other very disturbed people in the Home. Now the extent of their senility is such that though Mr and Mrs have a sense of recognition of each other as familiars they do not comprehend that they are husband and wife. Nevertheless it was thought that, as there was a room for two available, it would be nice for the to have that room. So there they were put. No one else sleeps in the room but it appears that the others in the home wander in and out more or less as they please. The are each billed separately by the Home for the charges.
2. On 6 November 1991 Mr 's daughter-in-law who, because of his incapacity had beer. appointed by the Secretary of State to act on his behalf in matters of social security, made a claim for him for income support. Now section 22(5) of the Social Security Act 1986 provides that -

"(5) Where a person claiming an income-related benefit ,s a member of a family, the income and capital j of any member. of Ehat family shall except _n prescribed circumstances, be treated as the income and capital of that person."

' family" is, so far as relevant, defined by section 20 of the Actas "a married or unmarried couple". And "married couple" ' is defined, by the same section as meaning "a man and woman who are married to each other and are members of the same household".

An adjudication. officer turned down Mr 's claim because his capital resources when aggregated with those of his wife exceeded the prescribed maximum by about :.3,000. Mr appealed to the tribunal and won, the tribunal concluding that in the circumstances to which I have referred the Gilfillans were not "members of the same household" and therefore their resources did not fall to be aggregated. The adjudication officer now appeals to the Commissioner. At the hearing of the appeal. he was represented by Mr L Scoon of the Solicitor's Office, Departments of Health and Social Security. The claimant did not appear and was not represented.

3. It is appropriate at this point to refer to the findings of fact made by the tribunal and the reasons they gave for their decision. Their findings were:

"Mr. and Mrs. are both patients in 's Rest Home which caters for the elderly mentally ill. They share a room but have no furniture of their own and there is little or no privacy as in addition to staff other patients wander in and out at will. Also there is no normal basis of a household in terms that neither husband or wife have any control over their accommodation or affairs and neither do they have the relationship of man and wife in the normal conception of that description. They have between them capital of L11,000.00."

And the reasons they gave were -

"Claims have been made for Income Support on behalf of both Mr:. and Mrs. but this appeal relates to the claim of Mr. and its refusal on the grounds that M^r. and Mrs. as a married couple have between. them joint savings of -£11,0000.00 so that if they are members of the same household then they will come with-in the description and effect of Section 20(11) of the Social Security Act 1986. In support of this contention it is accented that the couple occ^upy the same room in the same Rest Home but that apart ' all other attributes of householders are miss'-::g. They occupy this particular accommodation. because they were placed there by their family, they are both mentally handicapped as a result of illness/age and have little or no control over their affairs, they have no exclusive rights of occupation of their accommodation and they do not run or control their living space. Sadly they do not even recognise each other as man and wife but Simply as another person who is familiar. They are not members of the. same or any other household."

There is no definition of " household" to the legislat_ion and whether or not persons who live in the same place do so as members of a household or the same household is very much a question of fact seeRLSB 4/83, Simons v Pizzey (1997) 2 ALL ER 432 an a London Borough of Hackney v Ezedinma ( 1981 ) 3 All ER 438. I should say that there are reported and unreported decisions on "household" both in relation to supplementary benefit and income support but while they consider whether persons are in their own or in someone else's household they do not, as it seems to me, throw much or any light on the essential meaning of that term. Simmons v. Pizzey (H.R.) does. That case concerned the Chiswick Women's Aid, a charity which provided a house of temporary refuge for battered women and their children. The occupants or the house lived communally, sleeping in dormitories and contributing to a common fund for food and other outgoings. The question, or at any rate one question, was whether the residents formed a ' single household' within the, meaning of section 58(l) of the Housing Act 1969. On that question Lord Hailsham, who gave the fullest speech on the point, said:

"Admittedly the expression 'household' is not given a statutory definition in the Housing Acts. The Oxford Dictionary gives: 'The inmates of a house collectively; an organised family, including- servants or attendants, dwelling in a house; a domestic establishment.' this gives some colour to the appellant's case. The trouble is that the first part of the definition would coyer the inmates of any house and deprive the section of any meaning at all. The Words and Phrases cites the opinions of Branson J and Clausen L J in English v. Western; the Australian Matrimonial Causes Act 1959, and the observations of Rand J in Wawanesa Insurance Co y. Bell and Bell and Calverlv v Gore District Mutual Fire Insurance Co. I do not find any of these references particularly helpful except to make clear to me that I would have supposed in any case that both the expression 'household' and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive.'

And he concluded, by reference to three factors in particular, gnat the residents in the Refuge were not a 'single household'. those factors were the size of the group, the fact that the group was ever changing as those seeking refuge came and went, and the fact that the home was a temporary place Of refuge for what lord Hailsham described as 'fortuitous arrivals".

It seems to me from, tine dictionary definition o_ ' "household" referred to in the Pizzey case and indeed as a matter of what might be said to be obvious, that something more than mere presence in a place is necessary before those present can be said to constitute a household; there must be, I should have thought some collectivity some communality, some organization. As was said in Santos v Santos (1972) 2 AIIER247 at 255 "household" is ".... a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated . . . . " . Furthermore, it appears to be of the of essence of "household" that there is something which can be identified as a domestic establishment. In CSS/463/1986 it was said (para 10) "It is a question of fact in each case which turns on the evidence concerning the domestic establishment maintained the test is sociality not structive". So one might have a domestic establishment in for example a hotel or boarding house – but there must be a domestic establishment.

With these points in mind, I would take the view that the tribunal cannot be criticised let alone said to be wrong in law for concluding that the ' mere presence in the same room in the Home in circumstances where they did nothing for themselves, or for each other or collectively, did not turn them into a household of their own. But did all the residents of the home, patients and staff, constitute a household such that it could be said that the were members of that same household? I repeat that that is a question of fact and the tribunal concluded, admittedly without going into the matter in depth, that the were not, in the circumstances, either members of their own or some other household. Now Pizzey made it clear that there maybe circumstances where a group of people living together in a house do not do so as members of a household. There, as I have said, the indicators were said to be the numbers, the fluctuating nature of the 'population' and its impermanence. In the present case all those factors might be said to be present at least to some degree.

4. It has to be remembered that the context in which one is enquiring whether the were "members of the same household" is that of income support. Presumably aggregation of the resources of the members of a "family" is required upon the principle that a family of two or three or more manages on fewer resources than those same persons would if each lived alone; two, it is always said, can live cheaper than one! Now none of that, as it, seems to me, applies in the case of the resident of 's Home each of whom pays, on a purely commercial basis, the charges levied by the Home. As I have said, the are billed separately. And it seems to me that it would be a matter of some injustice if in those circumstances the were to be treated less advantageously, in relation to income support, than the other residents. The context in which "household, has to be given meaning does not, it seems to me, drive one to the conclusion that the tribunal's conclusion on the point must be wrong.
5. In the adjudication officer s written submissions reliance is placed on regulation 16 of the income Support (General) Regulations 1987 and I have considered whether it has any bearing on the matter.
This regulation, presumably made pursuant to the power in section 20(12)(k) of the 1986 Act to make regulations as to circumstances in which persons are to be treated as being or not being members of the same household, provides, by paragraph (:), that a claimant and his or her partner are to be treated as members of the same household even though one of them is absent from the dwelling occupied as his home. But that is not to be the case where the circumstances are any of those in paragraphs 2 or 3. So that if for example one of them is "permanently in residential care home" (see paragraph (2) (e)) - to take the mesa nearly relevant kind of case - he does not fall to be counted as of the household in which he previously had his home. The same is true where one or other or all are detained in a National Health Service Hospital or in custody. So paragraphs (2) and (3) provide the circumstances where a person who is "absent from the dwelling occupied as his home" is not to be treated, under paragraph 1, as a member of the household. That does not however, as it seems to me, say anything with regard to whether persons who, like the are no longer in their own home, are in some other household. Accordingly, regulation 16 would not appear to be relevant to the question in issue in this case.
6. It seems to me, having regard to the matters to which I have referred above, that Mr Scoop has not shown that the tribunal's conclusion that the at the material time were not members of the same household was perverse or unreasonable. It was a question of fact for the tribunal and I have no reason to interfere with their decision on the point. Accordingly the adjudication officer's appeal does not succeed. That is not to say that a married couple living in an institution are never to be regarded as members of any or the same household. It depends entirely on the facts.

(Signed) R A Sanders Commissioner

Dated: 19 March 1993