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[1998] UKSSCSC CIS_4935_1997 (12 February 1998)

R(IS) 1/99

Mr. J. P. Powell CIS/4935/1997
12.2.98

Aggregation - married couple living in residential care - whether "members of the same household"

The five claimants lived in the same residential care homes as their respective spouses. The adjudication officers decided that each was a member of the same household as his or her spouse so that their capital and income fell to be aggregated. Tribunals allowed their appeals. The adjudication officers appealed to the Commissioner.

Held, dismissing the appeals, that:

there cannot be a "household" unless there is a domestic establishment (paragraph 13);

a domestic establishment involves a group of two or more persons living together as a unit where that group enjoys a reasonable level of independence and self-sufficiency (paragraph 14):

whether this test is satisfied is a matter for the common sense of the appeal tribunal; facts which may be of the greatest assistance in one case may be of little or no help in another (paragraph 17):

the tribunals did not err in law in their approaches to the cases before them (paragraphs 19 to 24).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the adjudication officer, with the leave of the chairman, against the decision of the social appeal tribunal given on 27 June 1997.

For the reasons set out in the Appendix to this decision, that decision is not erroneous in point of law and accordingly this appeal fails.

Date: 12 February 1998 (signed) Mr. J. P. Powell
Commissioner

APPENDIX

This appendix is common to five appeals, each of which involves a claim to income support by one member of a married couple where both husband and wife live together in a retirement home. Appeals numbered CIS/4934/1997 and CIS/4935/1997 are linked because the claimants are, respectively, husband and wife. Likewise appeals numbered CIS/5232/1997 and CIS/5237/1997 where the claimants are also, respectively, husband and wife. These four appeals were heard together by the Oxford social security appeal tribunal on 27 June 1997. Appeal numbered CIS/3767/1997 is an appeal by a husband. His wife's appeal is still at an early stage and is not before me. The husband's appeal was heard by the Oxford social security appeal tribunal on 31 July 1996.

All five appeals were the subject of an oral hearing before me on 6 February 1998. In each case the adjudication officer was represented by Mr. Leo Scoon of the Office of the Solicitor to the Departments of Health and Social Security while the claimants were represented by Mr. Peter Turville from Oxfordshire Welfare Rights. I am grateful to both Mr. Scoon and Mr. Turville for their careful submissions.

The Issue

In each of these appeals the issue is whether the relevant married couple fall within the definition of "married couple" in section 137(1) of the Social Security Contributions and Benefits Act 1992. If they do their capital and income has to be aggregated for the purposes of determining their claims to income support. If that married couple does not fall within the statutory definition, their capital and income does not have to be aggregated - something which works to their advantage. The statutory definition is as follows.

"married couple" means a man and a woman who are married to each other and are members of the same household;"

In each of these appeals the claimant is undoubtedly married to his or her spouse. That being so, the issue is whether that claimant and his spouse "are members of the same household". The statute could have defined "married couple" in other ways. For example, it could have defined them as a man and a woman who are married to each other and who are living together or who are not living separate lives. Instead, it used the words I have quoted. Those words involve a consideration of what is meant by "household".

It is convenient to construe the statutory definition before turning to the facts of the individual appeals. I begin by saying that there is a great range of both types of accommodation and services that are provided for the elderly and infirm. For example, in his written submissions, Mr. Turville accepted, rightly in my view, that a married couple who occupied their own flat in what is sometimes called "sheltered accommodation" - that is, separate self-contained accommodation but with a warden or nurse to keep an eye on the occupants - are members of the same household. At the other extreme, I fail to see how an elderly and infirm married couple, who are bed-ridden and unable to care for themselves, can be categorised as a household because they occupy adjoining beds in a double room in a hospital or nursing home. I do not think such a couple can be called a household even if they, being still in possession of their mental facilities, can be got out of bed by the nurses and placed side by side in chairs so that they can talk, watch television together or play games like chess or scrabble.

Given those two extremes, one can envisage a complex providing different forms of care for the elderly or infirm persons. A recently retired couple might, in the first instance, have their own flat and enjoy a high degree of independence. They would clearly constitute a household. As they aged, they might come to rely more and more on the provision of common services. For example, meals in a communal dining room. As time passed, they might move out of their flat into other accommodation where higher levels of, first, care and then nursing were provided. Finally, they might end by being fully nursed in a double room in a hospital wing. By that time there would be no question that they no longer constituted a household. At what point in their progression from one stage to another would they cease to be a household and how is that point to be identified?

The law

It is common ground that the legislation does not define "household". It is also, I think, common ground that the mere fact that two people share a room does not automatically, and of itself, mean that those persons are a household - even when they are married to each other. Of course, the sharing of a room will normally be a factor which must be taken into consideration and will often be a highly significant one. Further, Mr. Scoon, who appeared for the adjudication officer in all five appeals, did not seek to argue that in cases like the present the residential home or nursing home should be regarded as the household of which the relevant married couple are members. Instead, he submitted that what has to be considered is whether the particular married couple and their particular situation within the home amounted to a household. I accept that submission. The appeals before me involve cases where a home provides rooms and other facilities in return for substantial payments. I am not dealing with the case where someone takes a paying guest into his home or where a group of people set up a "self-help" arrangement. Those are different situations about which I make no comment.

Only a small number of decisions were cited to me and of these only three provide real assistance. The first of these is the decision of the House of Lords in Simmons v Pizzey [1979] AC 37. That case concerned a refuge for women who had been abused by their partners, and the children of such women, which Mrs. Erin Pizzey set up in a house in Chiswick High Road. The local authority gave a direction under section 19(1) of the Housing Act 1961, limiting the number of occupants of the house to 36. However, the refuge declined to turn away women who were in need and this figure was often greatly exceeded. The local authority brought a prosecution under section 19(10) of the Housing Act 1961. The facts are, therefore, far removed from those I am concerned with. However, the direction which had been made depended, by virtue of section 58(1) of the Housing Act 1969, on the house being one which was "occupied by persons who do not form a single household". The defence was that, notwithstanding the large number of persons present in the house, in fact 75 on the relevant date, those persons formed a single household.

That argument was rejected by all members of the House of Lords. As with the Social Security Contributions and Benefits Act 1992, the Housing Acts did not contain a definition of "household" and Lord Hailsham of Marylebone, with whom Lords Wilberforce, Fraser and Keith agreed, considered the normal meaning of "household". Since his remarks are in general terms they are both relevant and helpful. However, before quoting them, it is interesting to read what Viscount Dilhorne, the only other member of the House of Lords who gave a speech of any length, said. What he says underpins what Lord Hailsham says and explains the factual background. At page 55, letter F, Viscount Dilhorne said this.

"The only question considered by the justices was whether the occupants of the house on January 14, 1976, were persons who did not form a single household. The case stated does not reveal how many permanent residents there were in the house but that on January 14 there were 75 persons residing there. The justices held that as the occupants made collective decisions in regard to the running of the house, had no "permanently set room or accommodation and slept wherever there was a place and that the children of a particular family may not sleep together with a parent", the 75 persons formed a single household. I do not think that these findings, considered together or individually, sufficed to warrant the conclusion that the constantly changing residents formed a single household. The Chiswick Women's Aid provided the house really as a hostel for temporary accommodation of ill treated women and their children and it would be inapt to describe the occupants as members of a single household as it would be so to describe the occupants of a hostel. In my opinion the only conclusion to which on the evidence before them the magistrates could properly have come to was that the house was occupied by persons who did not form a single household."

Lord Hailsham, on page 59 at letter C, dealt with the meaning of "household" as follows.

"... The test of multiple occupation is whether the house was, at the material times, "occupied by persons who do not form a single household" (see Housing Act 1969, section 58 and Schedule 8) and as I interpret Bracegirdle v Oxley the question which must be posed on this point is whether on the facts proved any reasonable bench of magistrates, properly directing themselves, could have come to the conclusion that the prosecution had failed to prove that the actual residents in December 1975 and January 1976 did not form a single household. Admittedly the expression "household" is not given a statutory definition in the Housing Acts. The Oxford English Dictionary, vol. 5 (1901), p. 421, 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 cover the inmates of any house and deprive the section of any meaning at all. [Lord Hailsham then referred to certain reported decisions of which he said] I do not find any of these references particularly helpful except to make clear to me what 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.

In this case I am driven by at least three factors to place what happened in 369, Chiswick High Road outside the limits of what can be conceivably called a single household. The first is the mere size. There comes a point at which all differences of degree become differences of kind. Neither 36 nor 75 is a number which in the suburbs of London as they exist at the present time can ordinarily and reasonably be regarded as a single household. The second factor is the fluctuating character of the resident population both as regards the fact of fluctuation and the extent of it. The residents were coming and going in the words of Lord Widgery CJ "each day or each week". The first of the Canadian cases cited above does attempt a definition which, I think rightly, implies something more durable and more intimate than the fortuitous relationship between the unhappy inmates of number 369 at the material times. The third consideration is the fact that I cannot regard a temporary place of refuge for fortuitous arrivals as ordinarily forming a household at all. ... I do not think that every community consisting of temporary migrants housed under a single roof reasonably organised constitutes or can constitute a single household. I do not think this is necessarily true of a hostel, a monastery, or a school, but certainly not of a temporary haven in a storm."

I derive particular assistance from two passages. First, the dictionary definition to which Lord Hailsham referred, especially the references to "and organised family" and to "a domestic establishment". Secondly, his comment that "both the expression 'household' and membership of it are questions of fact and degree, there being no certain indicia the presence or absence of which is by itself conclusive".

The other decisions which I find helpful are both decisions of Mr. Commissioner Sanders. In decision CIS/671/1992 (starred as 15/1993) the learned Commissioner was faced with a case where a husband and wife, aged 80 and 78, were both suffering from senile dementia. They occupied a double room in a home for the mentally ill but, as the Commissioner put it, "the extent of their senility [was] such that though [they] have a sense of recognition of each other as familiars they do not comprehend that they are husband and wife". Not surprisingly, Mr. Commissioner Sanders declined to disturb the tribunal's decision that these two old persons were not members of the same household. In decision CIS/081/1993, the husband was in his early 80s and the wife in her late 80s. The husband had had a stroke and required more care than his wife was able to give him. She herself was in poor health and needed looking after. They spent some time together in a residential home but the husband's requirements became too great and he was moved to a nursing home. Some two years later, following a further deterioration in her own health, the wife joined him there. However, they occupied different rooms because the wife's condition required this and because the husband had become demanding and very difficult. They did little together in the home. They sometimes sat together in the sitting room but often without any communication. Sometimes, but not often, they eat together in the dining room. Neither was able to do anything for the other. Occasionally, one would visit the other's room. The facts found paint a sad picture of two old people in an advanced stage of decrepitude. Again, not surprisingly, the Commissioner decided that the husband and wife were not members of the same household.

The facts in those two decisions are striking. Mr. Turville submits that, for my purposes, what is important is not the two sets of facts with which Mr. Commissioner Sanders had to deal but the reasons which led him to decide the appeals in the way in which he did. I agree with Mr. Turville. In my judgment, the ratio of decision CIS/671/1992 is contained in the first part of paragraph 4 of the decision. In the preceding paragraph, the Commissioner had quoted Lord Hailsham's remarks on the meaning of "household". He then said:

"4. It seems to me from the dictionary definition of "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 organisation. As was said in Santos v Santos [1972] 2 All ER 247 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 essence of "household" that there is something which can be identified as a domestic establishment. In CSB/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."

I read the Commissioner as saying there that there cannot be a household unless there is a domestic establishment. I do so for two reasons. First, because the passage refers back to the dictionary definition quoted by Lord Hailsham which included the words "a domestic establishment". Secondly, because of what the Commissioner said in the later decision CIS/081/1993. In that decision, after recounting the facts, the Commissioner, in paragraph 5, quoted at length from his earlier decision. Then, at the end of paragraph 5, he said:

"I take the view, applying what was said in that case, that on the facts as I have found them, [the husband and wife in decision CIS/081/1993] do not have a domestic establishment in the nursing home: there is nothing that can be identified as a "household" in the sense to which I have referred. ..."

I respectfully agree with the learned Commissioner's view that an essential attribute of a "household" is a domestic establishment.

How then does one determine whether a domestic establishment, and thus a household, exists? Given that what one is looking at is the situation of the husband and wife within the retirement or nursing home rather than the home itself which, as Mr. Turville pointed out, will usually be run on commercial lines? In my judgment, what is meant is a group of two or more persons living together as a unit where that group enjoys a reasonable level of independence and self sufficiency. For example, subject to the pressures of work, schooling and other commitments, it will be for the group to decide how the day, and perhaps more obviously, the weekends are to be structured. They will decide, possibly by default, at what time the different members of the group get up, go to bed, have their meals or engage in other activities. Such decisions will often be taken by particular members of the group but they will be taken within the group rather than imposed from outside. The group will be able to decide how the accommodation in which they live is to be arranged. For example, which rooms will be used for different purposes. They will be able to decide who comes to stay with them and for how long. As a general rule, they will have exclusive occupation of their accommodation or, at least, they will be able to insist that other people do not enter that accommodation without permission. They will usually be able to decide on matters of decoration and furnishing. They will almost always have at least some facilities for preparing food and making tea coffee and other hot drinks. I emphasise that these are only examples.

The other side of all these freedoms is that responsibility for running the household rests with the group. As a general rule, if the members fail to discharge those responsibilities, no one else will do so. If they fail to keep the property in which they live wind and watertight they must put up with cold and damp conditions. If they do not replace domestic appliances when necessary they must do without such appliances. If they do not buy enough food, they must either go hungry or go out for a meal.

I have deliberately used the words "reasonable level of independence and self sufficiency". The circumstances of different households will vary widely. Those who occupy a large freehold house set in its own grounds will enjoy a greatly superior level of independence and facilities to those living in poor rented accommodation. For example, the occupants of the latter will usually be unable to decorate their accommodation without the landlord's permission. If the accommodation is furnished they will be under an obligation to take care of the furniture. Some of the facilities provided, for example, cooking, may be limited or shared. Even where people own the freehold of their house or have a long lease, they may be subject to restrictions. For example, where they live in a block of flats or on an estate with a management company which controls matters such as external decorations. Again, individual circumstances will differ. An elderly couple living in their own flat or house may depend on others to provide them with cooked meals. Nevertheless, no one would suggest that they were no longer a household.

However, if the degree of independence and self-sufficiency falls below a certain level, there is no longer a domestic establishment and therefore no longer a household. Since circumstances vary so widely, the point at which a married couple no longer enjoy a sufficient level of independence and self-sufficiency must be a matter for the common sense of the tribunal which hears the appeal. In approaching the matter, tribunals should bear in mind Lord Hailsham's words that the expression "household" and membership of it are questions of fact and degree and that there are no certain indicia the presence or absence of which is by itself conclusive. They should look at all the facts in a commonsensical and realistic way. Facts which may be of the greatest significance in one case may be of little or no help in another. For example, that fact that a married couple in a home may be billed separately says very little in itself. The reasons for separate billing and the surrounding circumstances will be more revealing. Separate bills may be a matter of administrative convenience for the home or may have been requested by the couple although paid out of the same bank account.

I now apply those principles to the five appeals which are before me.

CIS/4934/1997 and CIS/4935/1997

The husband and wife involved in these two appeals are now aged 86 and 80. They still have their mental faculties and the husband, who is a clergyman, was still taking the occasional church service when the claims were made in 1996. The wife, however, suffers from deafness and arthritis. They occupy a double room at St John's Home in Oxford. This is a residential home for 38 residents set in substantial grounds. It was originally run by the Sisters of the Society of All Saints who are an Anglican religious community. It is now run by a charity but the Sisters live in part of the building which houses St John's Home and they continue to be involved with the home in various ways. St John's Home is essentially a residential home but some nursing is provided for residents who come to need this after entering. All rooms have an emergency call system. Although run by a charity, the fees are substantial. In 1996, the husband and the wife were each paying £270 per week. Included in that sum were all meals and a full laundry service.

The claimants occupy a double room furnished with their own furniture and their own television set. They have their own telephone. They also have a kettle which enables them to make themselves hot drinks although these are obtainable from the staff. They have a toaster, which they use in the morning, although breakfast will be brought to their room if required. All main meals are taken in the communal dining room. With one exception, and save when ill, the claimants are able to wash, dress themselves and attend to their other bodily functions. Each of them does, however, require assistance from the staff when getting into and out of a bath. They spend much of their time together in a manner which one would expect of the parties to a long, and no doubt successful, marriage. Their reasons for entering St John's Home were that it was becoming difficult to cope on their own.

The adjudication officer decided that the claimants were members of the same household and, in dealing with their claims to income support, aggregated their capital and income. The claimants appealed. The tribunal which sat on 27 June 1997, referred to decisions CIS/671/1992 and CIS/081/1993. Applying those two decisions, they decided that neither claimant was a member of the same household and allowed the appeal. In giving their reasons, the tribunal referred to the fact that the claimants were in a home because they could not organise their own affairs or had only a limited capacity to do so. The payments which they made to the home - they are billed separately - were for the purpose of paying someone else to undertake the organisation of their domestic and personal activities on a commercial basis - by which, I think and given that the home is run by a charity, they meant for reward. In my judgment, the tribunal correctly applied the two decisions referred to and did not fall into error. It is clear that the claimants no longer enjoyed the necessary level of independence and self-sufficiency.

CIS/5232/1997 and CIS/5237/1997

In these two appeals, the claimant husband and wife are aged 75 and 74. They have occupied a double room at St John's Home since July 1992. They are in possession of their mental faculties and the husband, who again is a clergyman, still has a chaplaincy. The wife, however, has been disabled for many years, and requires a lot of help. They do not have a kettle and toaster and I am not sure whether their room contains their own furniture. That apart, the circumstances in which they reside at St John's Home are broadly similar to those of the previous claimants. Again, the adjudication officer decided that they were members of the same household. Their appeal against the adjudication officer's decisions was heard at the same time as the previous two appeals and the tribunal allowed the appeals for the same reasons. Again, in my judgment the tribunal approached these appeals correctly and did not fall into error.

CIS/3767/1997

The claimant in this appeal is aged 84. He cared for his wife at home until he was taken ill in May 1995, and had to go into hospital. While he was there, arrangements had to be made for the care of his wife. He returned home to see whether he could cope but it became apparent that he could not. On 24 August 1995, his wife went to live at Langston Priory Residential Home. On 11 October 1995, he was assessed as being in need of residential care and on 16 October 1995, he joined his wife in Langston Priory Residential Home. They shared a double room and the claimant still took care of his wife. The fees charged were substantial - about £200 each. On 9 January 1996, the adjudication officer decided that the claimant and his wife were members of the same household. The claimant's appeal against that decision was heard on 31 July 1996, and was successful.

The tribunal's findings of fact are not as full as in the other four cases but it does include findings that they had separate placement contracts requiring different rates of fees, that they occupied the same room, that the furniture in the room did not belong to either of them, that all meals were taken communally and that laundry was done for them by the home. The tribunal applied CIS/671/1992 and decided that the claimant and his wife had not been members of the same household since 24 August 1995. I see nothing wrong with that decision.

I understand that on 5 February 1997, the claimant and his wife moved to another residential home. Nothing relating to the new home is before me and I know nothing about the circumstances in which the claimant and his wife are living there. However, if the situation there of the claimant and his wife is similar to their situation at the Langston Priory Residential Home, the same principles will apply.