CIS 5177/97

The Social Security and Child Support Commissioner
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 [ORAL HEARING]

1. My decision is that the decision of the social security appeal tribunal given on 2 July 1997 on this claimant's housing costs for income support was erroneous in point of law. I set it aside and for the reasons given below exercise the power under section 23(7)(a) Social Security Administration Act 1992 to substitute my own decision, which is that the claimant was not entitled to housing costs as part of her income support for the first 39 weeks of her income support claim, treated as made on 1 December 1996, in respect of her mortgage interest as this interest counts as "new housing costs" for the purposes of para 8 Schedule 3 Income Support (General) Regulations 1987 SI No. 1967. 

2. I held an oral hearing of this appeal which had been directed at the claimant's request. She appeared by Tina Greenley of the South Gloucester Citizens' Advice Bureau and the adjudication officer appeared by Mary Teresa Deignan of Counsel, instructed by the solicitor to the Department of Social Security. I am grateful to them both for their submissions on the single, not altogether easy, point at issue in the case, which is what is meant by a person being "abandoned" by his or her partner as that expression is used in paragraph 8(3) of Schedule 3.
3. The facts are not in dispute, and are set out clearly in the record of the tribunal's proceedings and decision of 2 July 1997 at pages 59-62. The claimant and her husband had lived together for twelve years and were married for seven years, having three children at that time aged nine, six and three. For a number of years their relationship was not good but it deteriorated particularly after the birth of their youngest child and became worse for the six months before the claimant's husband left the matrimonial home. During that period of six months their only contact comprised argumentative shouting, and the claimant's husband paid the repayments on their joint mortgage but very little else; he gave her no housekeeping money and there was no joint bank account. She worked three days a week and out of this paid for the household food and the children's requirements, sleeping during this period in the children's bedroom. 

4. Eventually she consulted a solicitor who wrote to her husband on about 22 November 1996. The letter outlined the breakdown of their relationship and stated that she was intending to start divorce proceedings, that it was likely a court would transfer the property to her because of the children and that it would be in the best interests of the children if he were to leave the property. A reply dated 28 November was received from his solicitor stating that he would leave and would go to live with his parents; the letter also dealt with the valuation of the house. 

5. The claimant's husband did leave the house shortly after that letter was written. As soon as he left, he ceased paying anything for her or the children and made no further mortgage payments. She claimed income support on 2 December 1996 and it was awarded from 1 December 1996. She has since divorced him on the grounds of cruelty and the suit was not defended. 

6. The mortgage referred to is detailed briefly at page 50-51: it was taken out on 2 April 1996 with the Bank of Ireland in the joint names of the claimant and her former husband. The capital balance outstanding at the material time was £39,877, all for the purchase of the matrimonial home and all secured on it. 
7. In her income support claim dated 2 December 1996 at pages 10ff. the claimant explained that her husband had walked out and gone to his parents, that she had had to give up work to look after the children and was left with all the responsibility of the bills and the mortgage with no money to meet them. She was duly and quite rightly awarded income support; and the only question is whether this should include assistance with the mortgage interest payments for the first 39 weeks of her claim. 

8. This question arises because under the altered provisions of Sch. 3 to the income support regulations about housing costs in effect from 2 October 1995, there is a difference of treatment between "new housing costs", as defined, and "existing housing costs". New housing costs are the costs attributable to mortgage arrangements entered into after 1 October 1995, when people were in general to be expected to know about the new less generous regulations and make their own provision by private insurance or otherwise to cover the initial period of a claim. Existing housing costs, to which a more generous treatment applies, are broadly those mortgage obligations to which people were already committed at 1 October 1995, with certain special additions. 

9. The material difference in this case is that if the mortgage interest payments for which this claimant is liable as joint mortgagor on her home can be treated as "existing housing costs" she will be entitled to have them included in her income support from eight weeks after the start of her claim; if not, then they have to count as "new housing costs" for which the waiting period is a continuous period of 39 weeks. It is common ground that the tribunal's decision of 2 July 1997 was erroneous on either footing, as they overlooked the eight-week delay applicable under the regulations even for existing housing costs and purported to determine that she was entitled to receive housing costs immediately from the date of her claim.

10. The real question for me to determine is whether the tribunal also erred more fundamentally in holding that the claimant's mortgage interest should be treated as existing housing costs under Sch. 3. As the mortgage was not taken out until 2 April 1996 and is therefore "new" under the main definition in paragraph 1(2) this depends on whether she is taken out of the normal 39-week deferment under para 8(1) by the special provision in para 8(3):
  
" (3) This sub-paragraph applies subject to sub-paragraph (5) 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." 
Where sub-paragraph (3) applies, the person's housing costs, even though "new" by virtue of having been first incurred after 1 October 1995, are to be met as though they were existing housing costs, subject to a cut-off under sub-para (5) if the person should again become one of a couple. 

11. There is no dispute that this claimant's family includes her three children and that she is herself liable to the bank for the housing costs. Nor is there any doubt that she claimed income support because of the separation between her and her husband in circumstances where she was left totally unprovided for. The one question at issue is whether these circumstances amounted to her being "abandoned" by him for the purposes of para 8(3).

12. The tribunal held that they did. The reasons for their conclusion are again shortly and clearly stated on page 62:
  
"To be entitled to housing costs from the date of the claim it is necessary for [the claimant] to establish that she claimed income support because of being abandoned by her partner. 
The tribunal found that [the husband] abandoned his wife some six months before her claim by abrogating his financial responsibilities and being cruel to her and the children. As a result of his conduct [she] sought legal advice and this eventually culminated in her solicitor's letter and [his] leaving the matrimonial home and ceasing to make the mortgage payments. It follows that her claim for income support resulted from [his] abandonment although this had taken place some months previously."
13. Against that decision the adjudication officer appealed on the two grounds that the tribunal were in any event mistaken in awarding housing costs during the first eight weeks of entitlement (as is agreed) and (as is not agreed) they had erred in law in the meaning they gave to the word "abandoned". On the adjudication officer's behalf Miss Deignan developed and amplified this second ground with two main submissions: first that the tribunal had been wrong in saying that the claimant's husband had "abandoned" her while he still remained in the household even though failing to meet his financial and other responsibilities to herself and the children. Secondly he did not "abandon" her in the relevant sense even when he actually left, because the notion of abandonment connotes a unilateral act. Here it was not disputed on the evidence that the claimant's husband had only left the house after it had been agreed between solicitors that he would, the suggestion having originated on her side and therefore having her consent. 

14. On behalf of the claimant Ms Greenley argued that it was significant that the language of para 8(3) referred to abandonment in relation to a person's partner, and not as previous provisions of Sch. 3 had done to a person leaving the dwelling occupied as the matrimonial home. What should be looked at was the substance of what took place: the withdrawal of financial support was a most important factor, and it would be right to infer that the intention of para 8(3) was to afford protection for people (of course predominantly women) left on their own with responsibility for children when a partner abandons the relationship. This was undoubtedly the reality of what had happened here.

15. She also relied on the report of the Social Security Advisory Committee on the changes to these regulations (Cm 2905, June 1995): in particular para 41 where the Committee prefaced its recommendations on what became para 8(3) by saying "It seems to us to be essential that the partner who has been left to cope alone with children and bringing up children, should not face the possibility of repossession of the house as well for lack of the state safety net." In my judgment this is a case where it is proper for me to have regard to what is said in that report, and in the related statement by the Secretary of State, for assistance in determining the proper meaning and intendment of "abandoned" in para 8(3); and I did not understand Miss Deignan to dissent from that. 

16. Having carefully considered both arguments on what is essentially a short point of construction of a single word, I have concluded that the tribunal and Ms Greenley were not correct in reading it as meaning ceasing to play any meaningful part in the relationship with a partner or ceasing to contribute in a financial sense. I do not think it is right to read "abandoned" in this context as the tribunal did as including a situation where a person in fact goes on living in the household (and taking some part in its operation, albeit minimal, as the claimant's husband apparently did in what must have been a miserable six months for them all by continuing to make mortgage payments and do some looking after of the children while the claimant was continuing to go out to work). It seems to me that Miss Deignan is right in arguing that "abandoned" in para 8(3) involves a once-for-all departure by the claimant's partner not only from his responsibilities but also physically from the scene.

17. Furthermore I acccept that the claimant's husband cannot be said to have "abandoned her" if as happened here she has willingly suggested that he go and the actual separation is by agreement. In my judgment the notion of abandonment for this purpose has to be understood in a similar way to that of desertion by a husband or a wife. Thus the two principal elements needed are physical separation and an absence of consent to it on the part of the deserted or abandoned spouse: see Rayden and Jackson on Divorce, 17th Edition paras 8.33, 8.34; Pratt v Pratt, [1939] AC 417. The whole essence of "desertion" is that the separation is against the will and wish of the deserted spouse, and there can be no "desertion" if there is any acquiescence in the separation: Thompson v Thompson, (1965) SLT 343.

18. I am strengthened in this conclusion by consideration of the actual terms of the Social Security Advisory Committee recommendation in para 41 of the report (from which it appears that their "minimum recommendation" would not in fact have covered this claimant because she was a new borrower and the mortgage was not in the sole name of her husband) and also by the statement by the Secretary of State in para 13(7) ibid where after commenting that "We do not believe it is reasonable to expect the taxpayer to fund a couple's separation...." the statement concludes: 
  
"However, we do recognise that, as yet, separation is not an insurable event. We therefore propose to introduce an easement for those claimants whose claim resulted from desertion and the claimant has care of children. [sic] In these circumstances new borrowers will be treated as existing borrowers."
That appears to me to support the conclusion I had reached by reference to the language itself and the authorities cited, that "abandoned" in para 8(3) should be construed in a similar way to "deserted". 

19. It must in my judgment follow that the agreement recorded in the solicitors' correspondence, under which the claimant's husband departed from the house with the consent or acquiescence of the claimant herself, precludes the circumstances here amounting to an "abandonment" for the purposes of para 8(3). That may seem a hard result for a claimant coping as best she could with a very difficult and unpleasant family situation but I have to give effect to the provisions as laid down in the legislation, and it is for the legislators and not me to determine where the lines should be drawn. 
20. For those reasons, I have concluded that this appeal by the adjudication officer must be allowed and the decision set out in paragraph 1 above substituted.
(Signed)

P L Howell
Commissioner 

20 July 1998