UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CH_3777_2007 (07 October 2008)

PLH Commissioner's File: CH 3777/07

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This appeal by the housing benefit authority, the London Borough of Sutton, succeeds. The tribunal which heard the case at Sutton on 8 June 2007 (Mrs E Harty, chairman, sitting alone) misdirected itself in law on the meaning of the word "estranged" in paragraphs 4(b) and 25 of Schedule 6 Housing Benefit Regulations SI 2006 No. 213, and consequently erred in holding that for the purposes of the claimant's housing benefit claim of 21 December 2006 for the rented flat she was then occupying, the value of her joint interest in the former matrimonial home still occupied by her husband after their separation could be disregarded indefinitely under paragraph 4(b).

I set the decision aside and in exercise of the power in paragraph 8(5)(a) Schedule 7, Child Support, Pensions and Social Security Act 2000 substitute the decision I am satisfied the tribunal ought to have given on the facts and evidence before it, namely that the claimant's interest in the former matrimonial home fell to be disregarded (under paragraph 25) only for the period of the first 26 weeks after she ceased to occupy it: and accordingly the Council's original decision of 7 February 2007 to that effect was correct and is confirmed. I decline the Council's request for an oral hearing as I have concluded the case in its favour on the written submissions.

The claimant is a lady now aged 37, married with two children, both boys. According to the facts found by the tribunal and recorded in its decision and statement of reasons at pages 67, 69 to 70, she and her husband were separated at the time of her claim for housing benefit on 21 December 2006. This claim was made in respect of the rented flat she had gone to live in separately with the two boys. (The evidence shows she had taken a 12-month lease from 7 December 2006 at a monthly rental of £925: pages 43-47). At the same time she remained joint owner of the former matrimonial home, of which her husband continued in sole occupation after the separation. She was still living in the same area because of the children, and she and her husband had come to an arrangement "around the children". Both parents attended school meetings, met at football matches and when they dropped off their sons, and they talked on the telephone every other day about their children's arrangements. The claimant was hopeful that she might get back together with her husband and their separation might not be permanent.

The Council's decision on the claim was that her entitlement to housing benefit had to be limited to the first 26 weeks from the date of the separation, because after that the value of her interest in the former matrimonial home fell to be taken into account as capital under regulation 44 of the Housing Benefit regulations already cited, pursuant to paragraph 25 of Schedule 6, which prescribes as "Capital to be disregarded":

"25.- (1) Where a claimant has ceased to occupy what was formerly the dwelling occupied as the home following his estrangement or divorce from, or dissolution of his civil partnership with, his former partner, that dwelling for a period of 26 weeks from the date on which he ceased to occupy that dwelling or, where the dwelling is occupied as the home by the former partner who is a lone parent, for so long as it is so occupied."

(There is no argument that the claimant's husband counts as a "lone parent" for this purpose, as although the children continue to visit him, their main home is with their mother and she gets the child benefit for them.)

The claimant appealed against that decision on the ground that the capital value should be disregarded, not just for the limited period under paragraph 25, but indefinitely under paragraph 4(b) of Schedule 6, as:

"4. Any premises occupied in whole or in part –

(a) ...

(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 or with whom he had formed a civil partnership that has been dissolved."

Her contention is that because she and her husband are not divorced and continue to communicate on amicable terms about the children, they are not "estranged or divorced" even though they are separated: she her clearly stated grounds of appeal to the tribunal in her letter dated 13 February 2007 at page 59, reiterated in this appeal. This succeeded before the tribunal, which reversed the Council's decision.

In her statement of reasons for allowing the claimant's appeal (at pages 69-70) the tribunal chairman recorded that:

"I accepted [the claimant's] evidence and find that she is amicably separated from her husband under an arrangement between them, they are still on speaking terms and she is not cut off from him even though she no longer lives with him. I therefore considered that the house … should be disregarded in the calculation of her capital for so long as her husband continues to live there and they remain amicably separated and not estranged or divorced. As I understand it, this provision has the happy consequence of encouraging ex-partners (and so parents) to remain on good terms even after their separation."

The Council appeals on the ground that this conclusion is inconsistent with authority, unfortunately not cited to the tribunal, showing that "estranged" in this context is not simply a matter of whether a couple who have separated remain on good terms with one another, but depends on more substantive questions on the reasons why they are living apart; and in particular whether the normal relationship between them as a couple is continuing or had broken down: see the decisions in cases CH 0117/05, R(IS) 5/05.

I accept that this case is within the principles laid down in those authorities, and the well formulated submissions on behalf of the Council by Mr A Williams of its Legal Services department at pages 100 to 103 are in my judgment correct. Without attempting an exhaustive definition, the word "estranged" in this context implies no more than that the reason for the two people concerned no longer living together as a couple in the same household is that the relationship between them has broken down. It is not a necessary, or for that matter a sufficient, requirement to come within the term that dealings and communications between the two of them should be acrimonious.

Nor do I accept the argument that "estranged" requires an element of disharmony because otherwise it adds nothing to the reference to a "former partner" in paragraphs 4(b) and 25. There are occasions when two people in a continuing relationship may have to cease living together as a couple in the same household and so count for this purpose as "former partners" without there being any question of any estrangement between them: for example where one of them has to go into a residential care home, as in R(IS) 3/96: compare R(IS) 5/05 paragraphs 9 to 11.

The claimant's arguments on the appeal simply reiterate those she made to the tribunal and do not address the authorities or the points dealt with above. In my judgment the interpretation placed by the tribunal on "estranged" in these provisions was clearly mistaken and the only reasonable conclusion on the facts outlined above was that the claimant and her husband were living separately because they were for the time being estranged from one another, notwithstanding the claimant's hope that their estrangement might not prove permanent and they might one day be reconciled and resume living together as a normal couple. Accordingly I allow the Council's appeal and substitute my own decision in the terms set out above.

(Signed)

P L Howell

Commissioner

7 October 2008