Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CF/1195/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The Decision:  The appellant wins her appeal. 

The decision of the First-tier Tribunal dated 30 March 2011 and made under reference SC001/10/02952 involves an error on a point of law.  The tribunal’s decision is SET ASIDE and RE-MADE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

The overpayment of Child Benefit amounting to £150.20 is not recoverable in law from the appellant.

The appellant’s request for an oral hearing is refused in the circumstances.

REASONS FOR DECISION

1       The appellant brought this appeal with my permission.  The grounds upon which I gave permission were different from those upon which she appealed.  For the reasons I gave in the Notice of Determination, the grounds identified by the appellant did not raise any arguable errors of law.

2       The facts of this appeal, which relate to a 16 ½ year old girl who went off to live with her boyfriend for what proved to be a short time after a row with her mother, are very special.  This decision does not mean that a young couple are not, or cannot be taken to be, living together as if they were spouses for the purposes of Child Benefit or, indeed, any other benefits where a similar ‘living together’ issue arises. 

3       The appellant was in receipt of Child Benefit for her 16 ½ year old daughter.  Following a major rift with her mother, the daughter left home and, as her mother put it, went to live with her ‘boyfriend’ or ‘so-called boyfriend’.  This was on 5 November 2008. The mother did not let the respondent know about this change of circumstance until 2 February 2009.  By 28 February 2009, the daughter was living with her father, who does not live with the mother. Shortly before the daughter went to live with her father, he wrote to the respondent to confirm that that his daughter lived with her ‘partner’, who was not himself in full time education or training, and that his daughter had last gone to school in October 2008. 

4       The respondent raised an overpayment for £150.20 for the period 10 November 2009 to 4 January 2009 on the basis that the appellant was not entitled to Child Benefit for that period.  This was because regulation 12(1) and (2) of the Child Benefit (General) Regulations 2006 provides that

(1) Child Benefit is not payable to any person (‘the claimant’) in respect of a qualifying young person for any week in which the qualifying young person is living with another –

                                               (a)     as if they were spouses, or

                                               (b)     as a member of a cohabiting same-sex couple,

unless paragraph (2) applies.

The person with whom the qualifying young person is living is referred to in paragraph (2) as ‘the cohabitee’. 

(2)  This paragraph applies if –

(a) the cohabitee is receiving relevant education or approved training and

(b)     the claimant is not the cohabitee.

5       The respondent took the view that the daughter was living with her boyfriend as if they were spouses.  The tribunal dealt with the appeal on the papers and issued a brief, combined decision notice and Statement of Reasons.  It took the view that the daughter was living with another person as his spouse but did not explain why it came to this conclusion.  It also found that the appellant failed to disclose that her daughter had left home and was living with her partner.

6       The issue I raised in giving permission to appeal was whether the tribunal erred in law by failing to make any findings or give any explanation of the basis on which it found that the daughter was living with her boyfriend as his spouse.  In their response to the appeal, the respondent submitted that, in circumstances like these, it would be difficult for them to determine when a relationship had become akin to marriage, or whether enough of the ‘usual signposts’ pointing towards such a relationship, such as stability, public acknowledgement and so on, were shown.  They therefore assume that the couple are cohabiting from the outset. The tribunal made the same simple assumption.  It is not right to substitute assumption for analysis

7 I have come to the conclusion that the tribunal did err in law in all the circumstances.  It cannot be assumed without more, as the respondent and the tribunal did, that a person who moves in with a boyfriend/girlfriend/same-sex friend is living with them as if they were spouses from the outset, or at all.  The burden of proof is on the respondent to prove that this element of their case, on balance of probability, if that is the basis upon which they are seeking to deny or remove entitlement.

8 The pair must be living together as if they were spouses.  In my view, living together as if spouses is no different from living together as husband and wife or as partners or cohabitees in a same-sex couple.   Living together as husband and wife has been explored in well-known case law which describes a collection of attributes commonly found, as a matter of common experience, in couples living together as if married.  Reciting the cases individually would do little to illuminate what is, at the end of the day, a relationship which cannot be exhaustively or strictly defined. 

9 On the other hand, it is of some help to recall attributes which are normally present where people live together as if they were married.  They are often called ‘signposts’ and include sharing a household, stability of the relationship, financial support (rather than simple sharing of bills), intimacy, sharing a social and home life, raising children together, and being seen as a couple by the neighbours.  They all add to a picture.  Not all of them need to be present to support a conclusion that the couple lives together as if they were spouses, while others may emerge as society changes.  It is possible, though unlikely, that a tribunal could decide that a couple was living together as if they were spouses even if none of these were present, though it might take a good deal of explaining to justify that conclusion. 

10 The tribunal must consider the evidence, even if it is scant.  Neither the parent nor the respondent in a case such as this may be able to tell the tribunal much about the child’s living arrangements.  Outward appearance may be all that there is to go on.  If, on the face of it, it looks like the couple are living together as if they are married and there is nothing to detract from this, common sense and experience will probably lead the tribunal to the robust conclusion that that is the case. 

11. If there is evidence pointing the other way, however, the tribunal must deal with it.  Where two people are in a relationship before they move in together, it may well be easy for tribunal to conclude that they are living together as spouses (or, cohabiting as a same sex couple).  But as the learned authors of Volume II of Social Security Legislation Volume II, 2011/12 (Sweet and Maxwell) point out in their discussion of unmarried partners [paragraph 2.22(2)], living together as husband and wife clearly implies more than an occasional or very brief association.  There may be cases where the nature of relationship is not clear from the outset, so that it may be right not to regard the couple as living together as husband and wife until it is apparent that a stable relationship has been formed. 

12. I agree in principle.  Alarm bells should ring where, as here, a young person barely out of childhood leaves home in a huff and runs off to live with a boyfriend.  These circumstances have the hallmark of pique rather than of relationship.  It is hardly surprising that the appellant’s daughter left her boyfriend almost as quickly as she joined him.  I refer to this circumstance – which pre-dates the respondent’s decision – to emphasise how immature, evanescent and unlike a relationship akin to marriage this episode was likely to have been from the outset.

13. In my view, it would be wrong to dignify the circumstances in which the appellant’s daughter and her boyfriend lived together with the words ‘living together as husband and wife’.  I have accordingly decided to substitute my own decision and allow the appeal without remitting it for a further hearing.  It would be disproportionate to do so, in view of the very small sum involved. 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 9 December 2011