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[1999] UKSSCSC CIS_2210_1998 (25 March 1999)

R(IS) 12/99

Mr. R. J. C. Angus CIS/2210/1998
25.3.99

Housing costs-husband committed to prison – whether wife "being abandoned"

When her husband was sentenced to a term of imprisonment the claimant bought a smaller house on which she secured a loan. The claimant's claim for income support was rejected because the adjudication officer decided that no housing costs could be included in her applicable amount because she had not met the 39 week qualifying period under paragraph 8(1) of Schedule 3 to the Income Support (General) Regulations 1987. She appealed to a social security appeal tribunal, contending that she was claiming income support because of being abandoned by her husband and that therefore paragraph 8(3) applied so that she was entitled to include 50% of her housing costs in her applicable amount after 8 weeks and 100% after 26 weeks. The tribunal dismissed her appeal and she appealed to the Commissioner.

Held, dismissing the appeal, that:

"abandoned" in paragraph 8(3) meant the deliberate withdrawal by the partner of his society and financial support from the claimant and, accordingly, the separation forced on the claimant's husband by imprisonment and any consequent failure on his part to support the claimant was not abandonment.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Social Security Appeal Tribunal dated 26 June 1997 is not erroneous in law.

The claimant appeals, with the leave of the chairman, against the tribunal's decision that the claimant's mortgage repayments would not be eligible housing costs for the purposes of the calculation of her entitlement to income support until 3 June 1997.

The claimant is a married woman with two children. On 15 August 1996 her husband, who was self-employed and with whom she and the children had been living, was sentenced to 3 years imprisonment and immediately committed to prison. Prior to sentence and committal he had been on unconditional bail.

The claimant and her husband had owned a house on which was secured a loan of £90,000. That house was sold and on 28 August 1996 the claimant purchased a new house for £96,000 against which was secured a loan of £63,000 taken out by the claimant in her own name and partly secured by collateral security put up by her mother-in-law. After her husband's imprisonment the claimant applied for income support. I do not know the date of the application but benefit was claimed from 9 September 1996. The adjudication officer refused the application on the grounds that the repayments on the loan could not be included in the claimant's applicable amounts until 3 June 1997 because the mortgage was taken out after 2 October 1995 and a 39 week qualifying period applied.

The claimant appealed that decision to the Social Security Appeal Tribunal. The tribunal considered, correctly, that the only issue in the appeal was whether or not the claimant could be said, for the purposes of paragraph 8(3) of Schedule 3 to the Income Support (General) Regulations 1987, to have been abandoned by her husband when he was committed to prison. The tribunal's reasoning includes the following passage:

"The tribunal carefully considered all the arguments placed before it by the Presenting Officer and [the claimant's] representative. We preferred the arguments of the Presenting Officer and the Adjudication Officer that the term abandoned was not appropriate to the facts of this case. The tribunal's understanding of the word "abandon" was its ordinary everyday meaning which could be synonymous with the term forsaken. We agreed with the Adjudication Officer that this did not apply in this case. In our view [the husband] had not abandoned his wife in that his separation from her was not of his choosing. We were also aware that it was accepted that the separation of [the claimant and her husband] was of a temporary nature.

The term "abandoned" has only been interpreted in Social Security law by the Court of Appeal when considering the case of Clarke and Faul. That case overturned a Commissioner's Decision which accepted that abandonment could mean temporary abandonment. We accept that the context of that decision was not in any way similar to the context of this decision however we consider that the temporary nature of the separation was a factor that needed to be considered.

Where there is no definition of a word within the Statute, the ordinary everyday meaning of the word is to be used. As already stated the tribunal was satisfied that the circumstances in which [the claimant] found herself would not in normal parlance be described as abandonment. Even temporary abandonment. We were therefore not able to accept the very able arguments put on her behalf by [the claimant's representative].".

The cases to which the tribunal refers are those of The Chief Adjudication Officer and another v. Clarke and the same appellants v. Faul decided in the Court of Appeal on 14 February 1995 and reported in the Times Law Reports on 22 February 1995.

The housing costs which can be included in a claimant's applicable amounts for the purposes of calculating income support are specified in Schedule 3 to the Income Support (General) Regulations 1987. The Schedule makes a distinction between existing housing costs and new housing costs. Existing housing costs are those which arise under are agreement entered into before 2 October 1995 or under a replacement agreement entered into after 1 October 1995 by the parties to the original agreement in respect of the same property and in respect of a loan of the same or a smaller amount.

Paragraph 8(1)(a) of the Schedule provides that, subject to the other provisions of the Schedule, new housing costs are to be taken into account when a claimant has been entitled to income support for a continuous period of 39 weeks or more. Sub-paragraph (4) of paragraph 3 provides that in the case of a claimant to whom sub-paragraph (3) applies any new housing costs should be met as though they were existing housing costs to which paragraph 6 applies. The practical effect of that provision is that new housing costs which are treated as existing housing costs are taken into account to the extent of 50% after the claimant has been entitled to benefit for 8 weeks and to the extent of 100% after entitlement of 26 weeks.

Paragraph 3 is in the following terms:

"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.".

Sub-paragraph (5) provides that sub-paragraph (3) shall cease to apply to a person who subsequently becomes one of a couple.

The claimant's grounds for appealing the tribunal's decision are in essence that the tribunal had misinterpreted the expression "being abandoned by his partner" as used in paragraph 8(3) of the Schedule. Applying the ordinary meaning of words and having regard to the purposes of the legislation the claimant was abandoned by her husband when he was committed to prison and had to leave the claimant to fend for herself and children. In the context of sub-paragraph (3) the abandonment does not need to be permanent. The cases of Clarke and Faul referred to by the tribunal were not in point. They, in dealing with the definition of a student, decided that the abandonment of his educational course which would put an end to a claimant's status as a student requires to be a permanent and not merely temporary abandonment.

The adjudication officer now concerned, in his submission of 20 August 1998, argues that the tribunal's decision is not erroneous. He cites Commissioners decision CIS/5177/1997 and the definitions of "abandoned" in the Collins English dictionary, Chambers' dictionary, and the Shorter Oxford dictionary as all showing that abandonment involves on the part of the abandoned a deliberate election to depart permanently from the person abandoned.

I heard the appeal on 7 December 1998. The claimant attended the hearing and was represented by Mr. Forsdick of Counsel. The adjudication officer was represented by Mr. Scoon of the Office of the Solicitor to the Secretary of State for Social Security. I am grateful to both Mr. Forsdick and Mr. Scoon for their helpful submissions. In advance of the hearing Mr. Forsdick submitted skeleton arguments together with copies of the authorities which he intended to cite. Those I have added to the papers as documents 69 to 97.

Mr. Forsdick said that the effect of the claimant's move to a smaller house burdened with a smaller mortgage in anticipation of her husband's conviction and imprisonment had been to reduce her housing costs. The agreement for the loan secured on the first house pre-dated 2 October 1995 and the repayments thereon would have qualified as existing housing costs when she eventually claimed benefit. Further had her husband been in custody awaiting trial or pending sentence after conviction he could have made a claim for the new housing costs in respect of the new house which new costs would, by virtue of paragraph 8(2)(b) and (4) of the schedule, have been treated as existing housing costs. It could hardly be the intention of the legislation that, in the circumstances of the claimant and her husband, the husband should be better off than the claimant. It was clear from an examination of paragraph 8(3) that the intention is to protect people who have been forced to move house by factors outside of their own control, such as the death of a partner. While the claimant's husband was in prison she was in exactly the same financial position as a widow, without any support from her husband, left without a breadwinner, forced on to income support and effectively forced to move house to reduce liabilities by reason of an event entirely out of her control.

There was, said Mr. Forsdick, no direct case law on the interpretation of "abandon" as used in paragraph 8(3). The divorce law concept of desertion was not relevant. At the date of the husband's committal to prison and at the date of claim it was not possible to say that the separation would be permanent but in the operation of the income support legislation decisions are made in accordance with the circumstances prevailing at the date of claim and changes in circumstances are dealt with as they arise on a week by week basis. Of the dictionary definitions cited in the statement of grounds of appeal the most apposite in the claimant's case was "left without help". That was her situation at the date of claim irrespective of any intention on the part of the husband or of any prospect that he would return to her on release from prison. It was artificial to say that the wife of a prisoner had not been abandoned when he went into prison. The relevant consideration for the interpretation of paragraph 8(3) is the impact of the imprisonment on the claimant.

Mr. Forsdick argued that CIS/5177/1997 was not in point. It had decided that there could be no abandonment while the husband was in the marital home or when the husband left at the instigation of the wife. That was a consensual separation and quite different from the case where neither the husband nor wife had any influence on the decision which separated them. If one looked at paragraph 17 of CIS/5177/1997 it will be seen that the Commissioner regarded physical separation and an absence of consent to it on the part of the deserted or abandoned spouse as the two essential factors of abandonment which were missing in that case: but those factors are present in this claimant's case.

Mr. Scoon said that the facts of the case were not in dispute. Words used in legislation had to be read in context. "Abandoned" can be construed as final but not always. In the cases of Clarke and Faul the Court of Appeal accepted that "abandoned" could be "not final". In the context of paragraph 8(3) death is permanent and, he submitted, abandonment is also permanent. A prisoner returns on the completion of his sentence. Therefore there is no permanence in his separation from his wife. For there to be abandonment in the sense of paragraph 8(3) there had to be an intention on the part of the abandoner. The adjudication officer was correct in arguing that the abandonment must be permanent. In this case the husband would have preferred to remain with his family but had no choice as to whether he did that or go to prison. Similarly, a kidnapped husband would not be abandoning his spouse because he had no choice in the matter. The words used in paragraph 8(3) are clear and specific. The draftsman could have gone wider if he had wanted to. He referred me to paragraph 16 of CIS/5177/1997 where the Commissioner accepts that "abandoned" as used in paragraph 8(3) involves a once and for all departure by the claimant's partner not only from his responsibilities but also physically from the scene. That is what the draftsman of the income support regulations had in mind, departure from both responsibility and the scene. He referred to Pinner v. Everett [1969] 3 All ER (HL) at page 258. There Lord Reid said:—

"In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of the word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning.".

I agree with Mr. Scoon that the correct approach to the question of interpretation which arises in this appeal is to follow the dictum of Lord Reid and apply to the word "abandoned" the meaning which is its natural or ordinary meaning in the context of the income support legislation. In the Pinner case the House of Lords was dealing with the interpretation of a statute - the Road Safety Act 1967 - hence Lord Reid's reference to the context in the statute. In this case paragraph 8(3) is one provision in a statutory instrument which instrument together with the relevant enabling act, the Social Security Contributions and Benefits Act 1992, sets out the legislative scheme for entitlement to income support. The legislative context within which "abandoned" is to be interpreted is, therefore, that scheme. Put broadly, the scheme provides for the alimentation or partial alimentation of people who have no means of support or means which are inadequate to provide for themselves and their families. The scheme makes provision both for those whose impecuniosity is the result of long-standing circumstances and those who have experienced some sudden loss of the means of support.

As part of the scheme sub-paragraphs (3) and (4) of paragraph 8 together have the effect of relaxing the restrictions on the eligibility of housing costs for the benefit of claimants with children who have become impecunious as the result of the death of a partner or a partner's abandonment of a family. What connotation does "abandoned" have in the context of the legislative scheme? Obviously it covers the case of the man who, having hitherto lived with and made financial provision for his partner and their children, deliberately, and of choice permanently departs from them and withdraws all financial support; but is it, as Mr. Scoon argues, restricted to that or does it, as Mr. Forsdick argues, include a temporary separation and withdrawal of support forced upon the departing spouse by some agency which has control of him but over which he has no influence?

In arguing that, given the statutory context, paragraph 8(3) refers to the intentional action of a party who has a choice in the matter, Mr. Scoon relied on CIS/5177/1997, particularly paragraphs 16 and 17 in which the Commissioner says:

"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 [the claimant's representative] 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 house (and taking some part in its operation, albeit minimal, as the claimant's husband apparently did in what must have been a miserable 6 months for them all by continuing to make mortgage payments and do some looking after the children while the claimant was continuing to go out to work). It seems to me that Miss Daignon is right in arguing that "abandoned" in paragraph 8(3) involves a once for all departure by the claimant's partner not only from his responsibilities but also physically from the scene.

Furthermore I accept 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 principle 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, 17 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.

As can be seen from that quotation CIS/5177/1997 dealt with the case of a married couple whose relationship had broken down but, notwithstanding which breakdown, the husband continued to live in the household and provide some financial support until he moved out at the behest of the wife. I agreed with Mr. Forsdick that the ratio of that decision does not, or least does not wholly, support Mr. Scoon in this case where the husband's departure was certainly not at the instigation of the wife. Indeed, as Mr. Forsdick said, the two principal elements identified by the Commissioner as being essential to abandonment are both present in this claimant's case.

My view is that the word "abandoned" is used in ordinary language to describe the actions of both those people who have a choice in what they do and those who do not and to describe both temporary and permanent departures or relinquishments. It all depends on the context. Therefore on a purely literal approach to the interpretation of paragraph 8(3) the claimant could be said to have been abandoned by her husband for the duration of his prison sentence, assuming that she was left with no recourse to his resources. However, I do not think that I am entitled to rely on the purely literal approach in order to arrive at what "abandoned" means in the context of the income support legislative scheme. That is because I have heard a considerable amount of closely reasoned argument for and against the wide and literal interpretation of "abandoned" which could bring the claimant within the scope of paragraph 8(3). In those circumstances there is sufficient doubt about the correct interpretation of the provision to require me to follow the practice adopted in R(G)3/58, R(M)1/83 R(SB)6/86 and CIS/5177/1997 and look at the relevant report of the Social Security Advisory Committee to ascertain what is the "mischief" which paragraph 8(3) is intended to remedy.

Schedule 3 to the Income Support (General) Regulations was inserted in those regulations by the Social Security (Income Support and Claims and Payments) Amendment Regulations 1995. Those regulations were the subject of consultation between the Secretary of State for Social Security and the Social Security Advisory Committee which is recorded in that Committee's report and the Secretary of State's statement under, respectively, subsection (1) and subsection (2) of section 174 of the Social Security Act 1992 (both published in Command paper 2905 of June 1995). As originally drafted the 1995 Amendment Regulations discontinued the "Deserted Partner Rule" whereby a claimant for income support was given help with mortgage interest payments which she required to make as the result of her separation from a spouse or partner who could not or would not continue to pay the interest after the separation. Two reasons for the proposed discontinuance of the rule are discussed in the consultation papers. One was the risk of loans incurred for purposes other than house purchase being financed by income support. The other was the intention that people should be required to insure against the risk of inability to meet housing costs during the first months of unemployment, sickness or separation from a spouse.

The Advisory Committee recommended that the rule be retained for claimants who having been deserted and left with children are obliged to take over interest payments on loans secured on the family home to avoid eviction. The response to that recommendation stated that existing borrowers should not be exempt from their responsibilities simply by reason of a separation but it included the following paragraph:

"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. In those circumstances new borrowers will be treated as existing borrowers.".

I am satisfied, therefore, that sub-paragraph (3)(b) has been included in paragraph 8 of schedule 3 to the General Regulations to deal with two mischiefs. The first is the hardship likely to be suffered by a parent and child when a deserting spouse or partner discontinues payment of the interest on a loan secured on the family home. The second is the possibility of abuse of the pre-October 1995 deserted partners rule enacted in paragraph 7(9)(c) of Schedule 3, as then in force, which applied when a claimant who had been a member of a married or unmarried couple ceased to be such a member. The new provision deals with both mischiefs by retaining the deserted partner rule but restricting it to cases where the claimant's spouse or partner has died or has abandoned her. In the light of the Advisory Committee's report and the Secretary of State's statement "abandoned" in sub-paragraph (3) refers, in my view, to what would be desertion in the case of a married couple i.e. the offender's deliberate withdrawal of both his society and his financial support from the spouse. I assume that the word abandoned has been used because "desert" and "desertion" are terms of art in relation to marriage law which are not apposite in the case of an unmarried couple where there are none of the incidents of status or contractual right conferred by a formal marriage. My conclusion is, therefore, that in this case the separation from the claimant forced upon the claimant's husband by imprisonment and any consequent failure on his part to support the claimant and their children was not abandonment within the meaning of paragraph 8(3).

For the foregoing reasons the claimant's appeal fails and my decision is in paragraph 1 above.

Date: 25 March 1999 (signed) Mr. R. J. C. Angus

Commissioner