UK Social Security and Child Support Commissioners' Decisions

[1994] UKSSCSC CIS_508_1992 (04 February 1994)

Commissioner's File: CIS/508/1992

SOCIAL SECURITY ACT 1986

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Name:

Social Security Appeal Tribunal:

Case No:

1. My decision is that the decision of 6 February 1992 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide that the claimant is entitled to income support as from 26 September 1991.
2. This is an appeal by the claimant, brought with leave of the tribunal chairman, against the decision of the social security appeal tribunal of 6 February 1992.
3. On 26 September 1991 the claimant applied for income support. However, on 27 September 1991 the adjudication officer rejected the claim on the basis that the claimant was a member of a married couple, who was temporarily absent from the matrimonial home, and her partner in Pakistan was in full-time employment. In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.
4. Section 20(3)(c) of the Social Security Act 1986 [now Section 124(1)(c) of the Social Security Contributions and Benefits Act 1992] stated that a person in Great Britain was entitled to income support if he was not engaged in remunerative work, and should he be a member of a married or unmarried couple, the other member was not so engaged. Regulation 5(1) of the Income Support (General) Regulations 1987 [S.I. 1987 No 1967] in the form it then was provided that, for the purposes of section 20(3)(c) of the Act, remunerative work was work in which a person was engaged for not less than on average 24 hours [now 16 hours] a week for which payment was made. The claimant informed an officer of the Department that her husband, who was still in Pakistan, but who hoped to come to this country if his
application so to do was accepted, "worked 4 hours as a tailor from home, his normal hours were 9-4 five days a week. He would work longer if the work demanded it". Accordingly, the evidence clearly established that at the date of claim the claimant's husband was engaged in remunerative work, and if the claimant and her husband were at that date a married couple, the claimant clearly had no title to income support.
5. Accordingly, the real issue in this case was whether or not at the date of claim the claimant and her husband were a married couple. The definition of a married couple, as contained in section 20(11) of the Social Security Act 1986 [now section 137 (1)(c) of the Social Security Contributions and Benefits Act 1992], read as follows:

"A man and woman who are married to each other and are members of the same household."

In the present case, the claimant was married, and accordingly the only outstanding issue was whether or not she and her husband were in the same household. Manifestly, at the date of claim, and the position appears to have remained the same continuously up to the date of the hearing by the tribunal, the claimant was not physically a member of the same household as her husband. He was in Pakistan; she was in England. However, that was not the end of the matter. For regulation 16(1) of the Income Support (General) Regulations 1987 provides that a claimant and partner shall be treated as members of the same household, notwithstanding that either of them is absent from the dwelling occupied as the home. Regulation 16(1) is, however, subject to sub-paragraphs (2) to (5), and sub-paragraph (2) provides that sub-paragraph (1) shall not apply to a person who does not satisfy the conditions in paragraph 4(8) of Schedule 3 to the Regulations. And paragraph 4(8) provides as follows:

"A person shall be treated as occupying a dwelling as his home for a period not exceeding 52 weeks while he is temporarily absent therefrom only if -

(a) he intends to return to occupy the dwelling as his home, and

6. The adjudication officer decided that, in the present case, there was no such intention on the part of the claimant, and this was the view taken also by the tribunal. The ascertainment of a person's intention is often extremely difficult. However, in this case the claimant had set out the position with a commendable frankness. In a statement made on 25 September 1991 she said as follows:-

" I returned to the United Kingdom on 17/9/91. There is no matrimonial breakdown. I received a letter stating that I had a solicitor's appointment 1.10.91 with Mr Glazier of United Kingdom Immigration Advisory Service with regard to obtaining British Citizenship for my husband. I am hoping this will be heard in the next few months. If my husband is not granted permission to enter United Kingdom I will return to Pakistan."

It is clear from the foregoing that at the date of claim, and again there appears to have been no change during the succeeding period up to the date of the hearing before the tribunal, the claimant intended not to return to Pakistan if her husband was successful in his application, but did so intend if he was not. What is the effect of such an intention in the alternative?

7. The opening words of paragraph 4(8) would seem to suggest that a person should be treated as occupying a dwelling, whilst temporarily absent therefrom, only in restricted circumstances, and those circumstances are thereafter specified. One of them is that the person concerned "intends to return to occupy the dwelling as his home". Unless there is such an intention, the deeming provision will not apply. Looked at this way, the intention must, in my judgment, be without any form of qualification. In other words, it is-not enough for the person concerned to have a contingent intention i.e. an intention dependent upon the outcome of an event. There must be an intention to return, come what may. But in the present case there was no such unqualified intention. Accordingly, I do not consider that the claimant has satisfied one of the crucial conditions for her being treated as occupying a dwelling as her home whilst temporarily absent therefrom, and as a result I am persuaded that, at the date of claim and subsequently up to the date of the tribunal hearing, the claimant was not one of a married couple. She was not therefore caught by section 20(3)(c), and in consequence was entitled to income support.
8. Manifestly, in reaching the contrary conclusion the tribunal have erred in point of law, and I must set aside their decision. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision. For the reasons given above, I am satisfied that as from the date of claim the claimant was entitled to income support.
9. My decision is as set out in paragraph 1.

(Signed) D.G. Rice Commissioner

(Date) 4 February 1994