UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CH_117_2005 (20 April 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under paragraph 8 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. It is:

The decision of the Colchester appeal tribunal under reference U/42/132/2004/01155, held on 27 October 2004, is not erroneous in point of law.

What the case is about

2. The issue in this case is whether the value of the claimant's interest in the home that she previously shared with her partner may be disregarded under paragraph 4(b) of Schedule 5 to the Housing Benefit (General) Regulations 1987. This disregards capital represented by

'4. Any premises occupied in whole or in part-

…

(b) by the former partner of the claimant as his home; but this provision shall not apply where the former partner is a person from whom the claimant is estranged or divorced.'

The claimant argues that she is separated from her former partner, but that they are not estranged.

How the case comes before me

3. The claimant's local authority decided on 2 August 2004 that the capital represented by the premises could not be disregarded under paragraph 4(b) from August 2003, when the couple separated. The claimant exercised her right of appeal to an appeal tribunal, but the tribunal dismissed her appeal. The Chief Commissioner gave the claimant leave to appeal and invited the Secretary of State to join the proceedings. The Secretary of State accepted the invitation. Neither the local authority nor the Secretary of State has supported the appeal. However, the claimant, by her representative, continues to maintain that, although she and her former partner are separated, they are not estranged.
4. The Chief Commissioner transferred the case to me for decision. Almost immediately, I received another submission from the local authority, taking issue with some matters of fact in the observations of the claimant's representative. I directed that the local authority's comments be issued to the other parties. I have not sought their views on them, because they have not affected my decision on the case.

The circumstances of the case

5. The tribunal had the claimant's evidence to a previous tribunal together with the evidence provided for this case. It also had the summary of the claimant's case by her representative. Piecing it all together produces this account.
6. The claimant was living with her partner and their two children in a property they had purchased in 1990. She left with the children in August 2003. They closed their joint bank account. At the time of their separation, her partner was undertaking work on the property, which was progressing only slowly. As a result, she and her partner shared a bedroom with her daughter, while her son slept on the landing. She has given various accounts of why she left. She told the previous tribunal that she was in an abusive relationship and that she left because she had had enough, could no longer cope and did not want to continue to expose her children to a negative environment. She told the tribunal in this case that she had left because of domestic violence. However, she has also provided a detailed and very personal account of her background and how this has affected her relationships, in which she acknowledges her own contribution to the separation. Elsewhere she has said that she left because of the children's sleeping arrangements.
7. In October 2003, she agreed to a remortgage to allow funds to be raised for the building work to be completed with a view to sale. She and her partner signed a separation agreement on 19 April 2004. It recorded that the partners had been separated since August 2003 and provided for the sale of the property and allocation of the proceeds between them.
8. She described her relationship with her partner as having broken down and said that they no longer regarded themselves as a couple. However, she retained the keys to the property and they remained in contact (for example, to discuss the sale of the property), while he had access to the children. There is evidence that the claimant may at some point have done some cooking or laundry for her former partner. She finds that she and her partner get on better now that they are apart. She retains the relationship in part because she needs to belong and would otherwise be completely on her own. She would like them to become a family again and the children miss their father.
9. In his observations on this appeal, her representative has written that the couple now have a relationship and that there is no emotional disharmony. They became close again once they were removed from the stress of living with children in a property that was subject to building work. However, the claimant has accepted that their previous problems have also recurred.

Analysis

10. The word 'estranged' is not defined in the legislation. It must bear its ordinary meaning in its context. See the comments of Lord Reid in Brutus v Cozens [[1973] AC 854 at 861, and Lord Hoffmann's analysis of them in Secretary of State for Work and Pensions v Moyna, reported as R(DLA) 7/03, at paragraphs 23 to 25.
11. The relevant context of estrangement is this. It is linked with divorce as one of the exceptions to an indefinite disregard of the capital represented by premises. The disregard is conditional on the claimant's partner still occupying the premises, at least in part. The policy behind the disregard is clearly to reflect the reality that a couple may, despite their physical separation, remain a unit for the purposes of assessment of entitlement to benefit.
12. It is not appropriate for a Commissioner to provide a definition of the ordinary meaning of a word. However, it is appropriate to give guidance to tribunals on how that word has to be applied and to deal with the parties' arguments. The claimant has emphasised that she and her former partner now get on better than when they were a couple. She has emphasised their amicability despite their separation. I accept that a couple's mental attitude to each other may be a relevant factor in deciding whether they are estranged. It may even be decisive in the context of the circumstances as a whole. However, mere good relations alone is not sufficient to show that a couple are not estranged.
13. The claimant's representative has referred to my decision in CIS/4843/2002, where I dealt with the equivalent provision to paragraph 4(b) in the Income Support (General) Regulations 1987. I said there that estrangement was different from separation. I stand by that. But that does not mean that the fact of separation is irrelevant to whether or not there has been an estrangement. It is a factor that cannot be ignored. And it certainly does not mean that a continuing emotional relationship between the parties is necessarily sufficient to prevent estrangement.
14. The representative has also referred to the decision of Mr Commissioner Rice in R(SB) 2/87, which was concerned with whether a child was estranged from a local authority who had care of the child. Mr Rice decided that estrangement had no application to a local authority, saying (at paragraph 8):

'Nor is it a proper use of language to regard a local authority as being capable of being the object or instrument of estrangement, with its connotation of emotional disharmony'

The context of that case was very different from this and Mr Rice was not, as I said in CIS/4843/2002, defining estrangement. In CIS/1846/2004, Mr Commissioner Rowland was concerned with the income support equivalent of paragraph 4(b). He agreed with Mr Commissioner Rice (paragraph 12). With respect, I consider that it is a mistake to assume that emotional disharmony must necessarily be a feature of estrangement. Take the case of an unmarried couple who decide that their relationship as a couple has no future and who decide to separate and seek new relationships. They may remain the best of friends throughout the whole process, but they would surely be estranged for the purposes of housing benefit or income support.

15. I do, though, broadly agree with Mr Rowland when he says (paragraph 12):

'The question will be whether the parties have – to use Mrs Everett's expression – ceased to consider themselves to be a couple and not whether, despite that, they continue to maintain friendly relations.'

I emphasise two points. First, that is not, and does not purport to be, a definition. It is 'a question'. In other words, it is a focus for inquiry and consideration in the course of determining whether partners are estranged. Second, Mr Rowland emphasised how the parties considered themselves. That emphasis may be explained by the context of his remarks. How the parties consider themselves is no doubt relevant, but it is also relevant whether their opinion is objectively sustainable.

The Secretary of State's arguments

16. Although the interpretation of paragraph 4(b) is covered briefly in the local authority's observations, the detailed arguments on this issue have been made by the Secretary of State and the claimant's representative. I have already dealt with the representative's arguments. I now deal with those of the Secretary of State.

Mental attitude

17. In response to the claimant's emphasis on mental attitude, the Secretary of State's representative has made two points, one linguistic and the other practical. The linguistic point is that paragraph 4(b) equates divorce and estrangement. Accordingly, whether or not the partners are estranged can only be established by reference to factors, which like a divorce, 'can be tied down to a particular date'. This means that estrangement cannot be interpreted as a state of mind. The practical point is that 'a test for amicability of separation' would create 'insuperable' problems in decision-making. I do not accept those arguments for three reasons.
18. First, paragraph 4(b) links estrangement and divorce, but it does not equate them. It could not do that, because they are essentially different in their nature. Divorce is a legal procedure which affects the status of the parties from the date of the decree absolute. Estrangement is not a legal procedure; nor does it create a status. It is rather a state of affairs.
19. Second, in determining whether that state of affairs exists, it may be necessary, depending on the circumstances, to take account of the attitudes of the partners to each other. It is inherent in the nature of estrangement that there may be uncertainty in the precise date when it occurs and that determining the issue may require an investigation into the states of mind of the partners.
20. Third, divorce has no application to unmarried couples, but for married couples estrangement and divorce are not mutually exclusive. It is likely, although not inevitable, that partners who are divorced are also estranged. It is also likely, although again not inevitable, that partners will be estranged before they are divorced. So, even for married couples who later divorce, the uncertainty inherent in estrangement may still arise.

Necessity

21. The Secretary of State has also argued that the purpose of the disregard is to cover those who are 'unavoidably separated'. I consider that that is too restrictive. Paragraph 4(b) certainly covers those who find themselves obliged by circumstances beyond their control to live apart. For example, one partner may be ordered by a court to live apart from the other because of allegations of abuse of their children. But the language is sufficient to cover those who live apart as a matter of choice without becoming estranged. For example a partner may go to care for an elderly relative. The partners would not, on its ordinary meaning, be estranged merely by virtue of their separation in those circumstances.
22. The only test to apply is that set by the language of the legislation. Bearing that in mind, I would suggest that a couple are not estranged for so long as the only aspect of their relationship that has changed is their physical separation. To put it another way, they are not estranged if the couple retain all the indicia of partners apart from physical presence in the same household.

The tribunal's decision and reasoning

23. I can see no way in which the tribunal misdirected itself in law. It is true that the chairman did not expressly record that he had applied the normal meaning of the word in its context, but it is clear that that is what he was doing.
24. It is also true that the chairman did not provide any detailed analysis of evidence or of the arguments put on behalf of the representative. What he did was to recite the evidence in which the claimant admitted that her relationship had broken down and her explanation of why they had remained good friends.
25. The chairman could have provided a fuller analysis of the case and a more detailed explanation. However, the test I have to apply is whether the tribunal's reasons are adequate. They do not have to be perfect. In this case, I consider that the chairman's reasons are adequate. On the evidence, he could only come to the conclusion that the claimant and her former partner were estranged. They were living separately. On any of the claimant's explanations for the separation, their relationship had floundered. She admitted this. They maintained contact, on account of the property and the children if no other reasons. They then found that, isolated from the immediate cause of the breakdown, they could get on and begin to re-establish a relationship. However, signs of their former problems began to recur. So although they were able to remain on good terms and re-establish a relationship, that was only possible because of the separation.
26. In my opinion, the only analysis that the evidence supports is this. The claimant and her partner were living together in a relationship that became very unhappy. The claimant left with her children. She remained in contact with her former partner and on civilised terms with him. Nonetheless they were estranged from each other. Their relationship improved with time and their separation, but they still signed the separation deed in April 2004. Even by the date of the decision in August 2004, they had not ceased to be estranged within the meaning of paragraph 4(b).

Valuation

27. Before the tribunal and on appeal to the Commissioner, the claimant's representative has raised the issue of the valuation of the property. I cannot see how this arises for decision. The property is on the market. There is evidence of its minimum value in the amount of the remortgage that was raised in 2003. That takes it way beyond any value that could be significant for this case. In those circumstances, I consider that the valuation does not arise as an issue.

Disposal

28. I dismiss the appeal.

Signed on original on 20 April 2005

Edward Jacobs Commissioner