Upper Tribunal (Administrative Appeals Chamber)

Before:  Upper Tribunal Judge Rowland

Decision:  The claimant’s appeals are allowed.  The decisions of the First-tier Tribunal dated 19 October 2010 are set aside and the cases are remitted to a different judge of the First-tier Tribunal for reconsideration.

REASONS FOR DECISION

1. These are appeals from decisions of the First-tier Tribunal to the effect, first, that the claimant was not entitled to income support from 29 October 2009 and, secondly, that £1,408.22 income support was overpaid in respect of the period from 29 October 2009 to 7 December 2009 and was recoverable from the claimant.  Obviously, the second decision will fall if the first does.  The claimant appeals with the assistance of Williscroft & Co., solicitors of Bradford, and the appeals are supported by the Secretary of State.

2. The claimant has been thrice “married” and has seven children, three of whom were adults at the material time and the other four of whom were children of her third “husband”.  Her account is that she “married” him in a Muslim religious ceremony.  I am not entirely sure whether the ceremony took place in England or Germany but she says that he had been living in Germany and, although she expected him to settle in England, he did not do so and continued to live in Germany, visiting her every couple of months.  She further says that, except when she herself was away in Saudi Arabia, he did not stay in her home, although some of the visits clearly resulted in the birth of children.  It appears that he had always been in bad health and I am told that, sadly, he has recently died.

3. The issue for the First-tier Tribunal was whether, during a period from the end of October 2009 until early December 2009, the claimant and her “husband” were a “couple” within the meaning given to that word by both section 137(1) of the Social Security Contributions and Benefits Act 1992 and regulation 2(1) of the Income Support (General) Regulations 1987 (SI 1987/1967) because, if they were, the claimant was not entitled to income support as a single parent and no other ground for entitlement has been suggested (see section 124(1)(e) of the 1992 Act and regulation 4ZA of, and Schedule 1B to, the 1987 Regulations).  A man and a woman are a “couple” if they are –

“(a) a man and a woman who are married to each other and are members of the same household;

 (b) a man and  woman who are not married to each other but are living together as husband and wife”.

4. It is well established that “living together” means living in the same household (R(SB) 17/81).  The legislation does not contemplate a person living in two separate households at the same time, because it would not work in those circumstances.  Regulation 16 of the 1987 Regulations provides that a person does not cease to be a member of a household while temporarily absent from it (except when abroad in circumstances such that regulation 4 does not apply) and the implication appears at first sight to be that the person is not treated as joining another household while temporarily absent from the first one.  That might suggest that, where there are two possible households of which a person might be a member, one should ask which is the main household.  However, in R(SB) 8/85, and perhaps even more clearly in CIS/11304/1995, it has been accepted that a person may live for alternate periods of time first in one household and then in another.  Although those decisions were given under earlier legislation, I do not see why the same approach cannot be taken under the current legislation in the relatively rare cases where it can be said that the person concerned is normally an established member of two households.

5. In any event, it is common ground that in this case the First-tier Tribunal’s statement of reasons is inadequate.  It described the claimant’s account as implausible but then said: “This inconsistency caused the tribunal to doubt her evidence”.  Although it was entitled to find that the account was improbable, it is not clear to me why the account was inconsistent.  The only explanation given in the statement of reasons appears in paragraph 9, where the First-tier Tribunal says –

“In the written submission from Williscroft, they say this:

‘We are further instructed that although [her “husband”] "married” [the claimant] by way of religious ceremony years ago, he moved back to Germany soon after due to some difficulties.’

[The claimant] told the Tribunal that [her “husband”] had lived in Germany from a time before they married.  The Tribunal put this apparent inconsistency to her but she simply said that he did not like living in the UK.  This was not a satisfactory explanation for the inconsistency.  The Tribunal concluded that the evidence showed that [the claimant] and [her “husband”] were married and living in the same household.”

I am at a loss to understand why the First-tier Tribunal regarded the two statements cited to be inconsistent.  Moreover, the statement of reasons does not adequately record the findings of fact upon which the decision was made so as to show why the claimant’s submissions were rejected.  It seems to me that the inadequacy of the findings may be a consequence of the First-tier Tribunal not making made much effort to question the claimant about the facts so as to give her an opportunity to provide further detail of such matters as, for instance, her “husband’s” address in Germany..

6. The First-tier Tribunal also did not deal with the claimant’s submission that her marriage to her third “husband” was not recognised as valid in the United Kingdom.  As the Secretary of State submits, that was relevant because, if the marriage was not recognised as valid, the claimant and her “husband” were not “married” and the First-tier Tribunal had to consider whether, if the claimant’s “husband” and she were living in the same household, they were doing so “as husband and wife” at the material time.  It was not necessary for the First-tier Tribunal to consider whether the marriage was recognised as valid if it was satisfied that they were in any event “living together as husband and wife”, but it reached no conclusion to that effect and such findings of fact and reasoning as it did record were insufficient to support such a conclusion. The mere existence of children from the relationship, while relevant, was not determinative of the question whether they were “living together as husband and wife” at the relevant time (see R(SB) 35/85). 

7. For these reasons, I am satisfied that the First-tier Tribunal’s decisions were erroneous in point of law and I therefore allow these appeals and set the decisions aside.  The cases must now be heard by a different judge of the First-tier Tribunal.

Mark Rowland

18 August 2011