UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CIS_326_2006 (15 June 2006)

CIS/326/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. For the reasons given below, this appeal, which is brought with the leave of a chairman, is dismissed. No oral hearing has been sought, but I am satisfied that I can deal with the issues of law which arise without such a hearing.
2. The question which arose before the tribunal in this case is whether paragraph 8(3) of schedule 3 to the Income Support (General) Regulations 1987 applied to the claimant's claim for her housing costs to be met as part of her award of income support. That paragraph applies, subject to paragraph 8(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."
3. In this case, the housing costs are the interest payments on a loan made in August 2000 to the claimant and her husband to buy a house in Surrey. On 3 October 2000, the claimant's husband left her without any warning. At that time they were living in Spain, where he was working. Despite attempts on her part to achieve a reconciliation, they never lived together again. The husband provided some financial support, reluctantly, until September 2002, but has since refused to comply with orders made by the Spanish courts. Meanwhile the claimant continued to live in Spain, renting out the Surrey house. For a time she was employed, but in 2004 she had to give up her job because of ill health.
4. In August 2004, the claimant, having returned to England, began to live in the Surrey house with her children. She was not receiving any financial support from her husband, and she claimed income support, which she was awarded. The issue before the tribunal was whether the housing costs applicable to her during the first 39 weeks that she was receiving income support included the mortgage interest on the loan to purchase the Surrey house where she was living. This turned on whether, for the purposes of paragraph 8(3) of Schedule 3 to the Income Support (General) Regulations 1987, the claimant was claiming income support "because of … being abandoned by [her] partner".
5. It is plain that the claimant had been abandoned by her partner. He had left her in 2000 and after September 2002 she had ceased to receive any maintenance (voluntary or involuntary) from him for herself or their children, although it would appear that he had been ordered to do so by the Spanish court. If she had been living in the Surrey house at those times, had not been working, and had claimed income support in the autumn of 2002, when the maintenance had dried up, it appears clear to me that her claim would have been because she had been abandoned by her partner.
6. In fact, in the period between her abandonment and her claim for income support, the claimant had worked in Spain at least for 10 months during the academic year 2003-4. It was only at the end of the academic year that her contract was not renewed (file, p.32). She would also appear to have had the income from the letting of the Surrey house if and insofar as it was not needed to meet mortgage payments and other outgoings in respect of the house. She appears to have returned to England to claim income support after he contract of employment was not renewed because her understanding was that she could not claim social security benefits in Spain as she had not worked there for two years.
7. The tribunal disallowed the claimant's appeal from the decision of the decision maker that she could not be considered for help with mortgage costs until 17 May 2005. In the decision notice issued on 21 June 2005, the tribunal stated that the claimant had been physically abandoned by her husband on 3 October 2000, and financially abandoned with effect from September 2002. However the tribunal considered that it was not a case in which it would be proper to attribute the reason to making the claim to the abandonment rather than to the loss of her job due to her ill health, and the changes which that brought. In the statement of reasons, the tribunal explained again that the reason the claimant needed to claim benefit was the very direct reason that she had a good job in Spain which she had to give up due to ill health, which could not directly be laid at the door of her husband on the basis of the evidence before the tribunal.
8. The tribunal was referred to CIS/2790/1998, where it was said in paragraph 12 by Commissioner Mesher:

"In my view, no gloss or substitute should be produced for the actual words of paragraph 8(3). The drafting of paragraph 8(3) is very unsatisfactory as, by making the answer depend on notions of causation, it opens up an area where clear guidelines are notoriously absent. However, that does not justify substituting a different test."

9. Having considered the Social Security Advisory Committee Report on the amendments to the Income Support Regulations which produced Schedule 3, he commented at the end of paragraph 17 that that report threw no light on the interpretation of the test imposed by paragraph 8(3), "except that it does not support any interpretation which gives an unnaturally wide meaning to the ordinary English words used in paragraph 8(3)." He continued:

"The interpretation of paragraph 8(3)

18. I can clear some points out of the way. I shall refer only to cases of abandonment, not to the death of a partner. I have concluded above that the operation of paragraph 8(3) is not limited to the case where the mortgage in question was in existence when the claimant was abandoned by the partner. I agree with Mr Scoon that its operation is not excluded by the fact that there is some chain of events between the abandonment and the claim for income support. To put it another way, the abandonment need not be the sole cause of the claim for income support. Many circumstances need to be in place before a successful claim for income support can be made, such as income and capital being below the appropriate limits and the claimant not being engaged in full-time employment. Simply being abandoned by a partner cannot cause a claim for income support to be made unless it has some effect on one of the conditions of entitlement. At the other end of the spectrum, the test of paragraph 8(3) cannot be satisfied merely because at some point in the past the claimant has been abandoned by a partner. There must in my view at least be some causative link between the abandonment and the reason for making the claim for income support at the time that it was made. I am not sure that Mrs Smith would disagree with that as a general proposition, but I agree with her that there is no time-limit expressed in paragraph 8(3) and that each case must be looked at on its merits. I do not think that any particular time relationship between the abandonment and the claim can be read into the use of the phrase "being abandoned". By definition, the abandonment must have happened before (or at the very least have started before) the claim for the claim possibly to be because of being abandoned.

19. It seems to me that it is not right to go any further than that. Within those limits, which are no more than spelling out some obvious points, the question is one of fact and judgment whether in the ordinary meaning of the words the making of the claim was because of being abandoned by a partner. To attempt to put the question in other words risks distorting the statutory test. For that reason, I prefer not to use phrases like "effective cause" or to ask what precipitated the claim. One must always come back to the actual words of the statutory test."

10. In Secretary of State for Work and Pensions v. W, reported as R(IS) 9/05, the Court of Appeal approved Commissioner Mesher's approach and stated at paragraph 29 that the approach on causation should be a robust, commonsense one.
11. The tribunal found that, while Commissioner Mesher made it clear that abandonment need not be the sole cause for making the claim, it had to be a material part of, and not simply incidental to, the chain of events giving rise to the claim. (statement of reasons, paragraph 7). The claimant had given evidence that she worked even before the break up of her marriage, and she had a good job which she had had to give up due to ill health. It was the loss of income when she had to give up her job which led to her seeking income support, and the tribunal therefore found that abandonment was not the cause of her making the claim.
12. I agree with the submissions of the secretary of state on this appeal that, on the basis of those findings alone, the tribunal followed the approach of Commissioner Mesher, and made a decision that was reasonable on the facts. But for certain other observations to which I shall turn, there would be no doubt, therefore, that the tribunal did not err in law. That is not to say that just because a claimant obtains work for a short time, a subsequent claim for income support may not be because of her abandonment. Even in the present case, it may have been possible for a tribunal to conclude that in reality the claimant was claiming income support because her husband had abandoned her.
13. The claimant's representative has laid stress on the comments of the tribunal in paragraph 7 of the statement of reasons that if the claimant had been a lady who could prove that once she married she gave up work and never had any intention of working again, it might well be the case that the reason for her having to make the claim was due to abandonment by her husband and the ceasing of his financial support.
14. I do not follow this reasoning. The intentions of the lady on marriage appear to me to be wholly irrelevant. What is relevant is whether the lady sought and obtained work following the break up of her marriage, whatever her previous intentions. If she did not do so, whether or not she intended to work in due course, a claim for income support as a result of the loss of financial support from her husband is on its face likely to be a claim because he has abandoned her.
15. However, the comments in paragraph 7 of the tribunal's findings in its statement of reasons, which are rightly criticised by the claimant's representative, are not the reason for the decision in this case. The reasoning in this case is simply that the claimant had worked, and had claimed income support because ill health had forced her to give up her job. It is plain that at some point this approach has to prevail. To take an extreme case, suppose that the claimant had worked for 10 years in her job before ill health had forced her to give it up. It seems improbable that at that stage she could be said to be claiming income support because she had been abandoned by her husband. While this is a more borderline case, I consider that the same view of the facts could properly be taken by the tribunal.
16. Criticism is also made by the claimant's representative of the passage in paragraph 6 of the tribunal's findings in the statement of reasons that "To my mind 'cause' in this context means direct cause. There must be a direct causative link and not some fanciful train of events." Reliance is placed on what was said by Commissioner Mesher that such words risked distorting the statutory test. There is indeed such a risk, but I am not satisfied that there has been any such distortion in the present case. I do not consider that the reference to 'direct cause' in the statement of reasons is doing any more than saying that at some point the connection between the abandonment and the claim ceases to be such that the claim can properly be said to be because of the abandonment.
17. The question is whether the claimant claimed income support "because of" being abandoned. In one sense she did. Had she not been abandoned, she would not have claimed income support when she became ill and could not work. That would be so whether she became ill 1, 2 or 20 years after being abandoned. There comes a time at which it is no longer sensible, due to the intervention of other events, to say that the claimant is claiming income support because of her being abandoned. There is no clear measure of when that time is, and there is room for a divergence of views in borderline cases. Provided, as here, the finding of fact on this question by the tribunal is one that it could properly make, and it gives good reasons for its decision, that finding cannot be overturned on appeal.
18. The claim is therefore dismissed.

(signed on the original) Michael Mark

Deputy Commissioner

15 June 2006