Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow both of the appeals by the appellant.

 

The combined decision of the First-tier Tribunal (FTT) dated 16 March 2010 under file references 069/08/00903 and 069/08/00904 involves an error on a point of law.  The First-tier Tribunal’s combined decision is set aside.

 

FTT reference 069/08/00903

 

The Upper Tribunal is not in a position to re-make the decision on the appeal by the claimant against the decisions of the Secretary of State dated 30 November 2007 and 11 December 2007.  It therefore follows that the claimant’s appeal against those two decisions by the Secretary of State is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions listed further below. 

 

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

FTT reference 069/08/00904

 

The Upper Tribunal is in a position to re-make the decision on the appeal by the claimant against the decision of the Secretary of State dated 30 March 2008.  The decision that the First-tier Tribunal should have made is as follows.  The Upper Tribunal re-makes the decision accordingly.

 

The claimant’s appeal against the decision of the Secretary of State dated 30 March 2008 is allowed.  The claim for income support was made on 28 February 2008 but the claimant has shown continuous good cause for the failure to claim earlier.  The claimant was not living with her husband in the same household at the material time and is entitled to income support as from 28 November 2007. 

 

This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

DIRECTIONS

 

The following directions apply to the re-hearing of the appeal under FTT reference 069/08/00903:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new First-tier Tribunal should not involve either tribunal judge who sat on the tribunal considering this appeal on 3 March 2009 or on 16 March 2010.

 

(3) The new First-tier Tribunal should consider the matters analysed at paragraphs 43-48 below.

 

(4) A District Tribunal Judge should consider the file for any further listing directions for the re-hearing and should give consideration to the issue mentioned at paragraph 49 below.

 

(5) The new First-tier Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different ultimate outcome to the previous tribunal.

 

 

These Directions may be supplemented by further directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

What this appeal is about

 

1. The Guardian newspaper recently ran a major story about “Benefit fraud: spies in the welfare war” (1 February 2011). The newspaper’s headline explained that “the government is getting tough on benefit fraud and its investigators are busy gathering evidence. We join one surveillance team as they observe their suspects.”

 

2. This case is the result of such inquiries being made by Department for Work and Pensions (DWP) investigators, even though in fact the surveillance evidence was not the major plank of the DWP case. The claimant has been in receipt of income support for many years as a single parent.  In lay terms the DWP later formed the view that she was actually living with her husband all along (at least when he was not in prison).  This case shows just how difficult such cases can be in terms of evaluating the conflicting evidence and coming to a clear and sustainable decision one way or the other.

 

3. This case is not, therefore, a “living together” case in the sense of being about whether a man and a woman who are not married to each other are in fact living together as husband and wife.  There is no dispute that at the time in question the couple were married to each other.  In legal terms the issue rather was whether or not they were “members of the same household” and so a couple for the purposes of the legislation governing income support.

 

What the Upper Tribunal has decided and what it has not decided

 

4. The First-tier Tribunal was in effect dealing with two appeals.  One related to a past period; the issue was whether the claimant was properly entitled to benefit throughout that period and, if not, whether the substantial overpayment was recoverable from her.  The second appeal concerned a fresh claim for income support following the “suspension” and subsequent withdrawal of her payments of income support.  The tribunal sensibly dealt with both appeals together at the same hearing and issued a single Statement of Reasons (although, equally sensibly, separate Decision Notices, albeit the file reference numbers for the decisions appear to have been transposed).

 

5. I have concluded, for the reasons that follow, that the tribunal’s decisions on both appeals involve an error of law.  For that reason I have decided that the decisions must be set aside. However, the Upper Tribunal’s disposal of the two appeals is different.

 

6. On the appeal relating to entitlement for the past period, and the substantial overpayment, I do not agree with the Secretary of State’s representative, who argues that I am in a position to re-make the decision to the same effect as the tribunal.  I also do not agree with the claimant’s representative who argues for an oral hearing of that issue before the Upper Tribunal.  The appeal needs to be re-heard by a fresh First-tier Tribunal in Liverpool, which is far better placed, in all senses of the term, to resolve the factual issues in dispute.

 

7. For the avoidance of doubt I should make it clear that I have come to no conclusion on whether or not the claimant was indeed a member of the same household as her husband at all material times, or even some of the material times, during that past period covered by the first appeal.  She may have been.  She may not have been.  The new First-tier Tribunal must decide that for itself.  The fact that the claimant has already lost before two tribunals suggests that she may face a difficult task in persuading the new tribunal that her appeal should succeed.  However, she may yet succeed.  But she must recognise that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication of the likely outcome of the re-hearing before a new First-tier Tribunal.

 

8. The appeal relating to the fresh claim can be disposed of differently. The Secretary of State’s representative argues that the Upper Tribunal is in a position to make its own decision on that appeal, namely that the claimant is entitled to income support.  I agree and re-make the tribunal’s decision accordingly, as set out above, albeit in slightly different terms to that advocated by the Secretary of State’s representative.

 

9. The Upper Tribunal’s substantive and re-made decision on the second appeal should also not be taken as any indication either way as to which way the new First-tier Tribunal may decide the first appeal at the re-hearing.  That is entirely a matter for the new tribunal.

 

The original claim for income support and the DWP investigation

 

10. The claimant married her husband in 1988.  They have two children, a daughter born in 1989 and a son in 1992.  Her husband is the father of both children.  The claimant also has an older daughter (her husband’s step-daughter), who was born in 1981.  The claimant was awarded income support as a single parent with effect from 14 November 1991.  She moved to her present address in 2000.  The claimant’s case, in essence, is that she was deserted by her husband in 1991, before their son was born, and that they had never been reconciled, albeit that they had not divorced.  For example, in a 2003 Income Support A2 review form she explained that “I am a single parent who lives alone with my children”.

 

11. At some point in 2007 the DWP received an allegation that the claimant was in fact living with her husband, who was in full-time work. They carried out an investigation.  This included surveillance of her address, as well as inquiries of the police, DVLA, credit agencies, banks, telephone companies, employers and HMRC.  These latter enquiries were mostly directed to establishing whether the husband could be linked to the claimant’s address.

 

12. On 14 September 2007 the police reported by letter to the DWP that the claimant’s husband was known to be violent and was thought (in 2003 at least) to possess firearms.  The police also reported that he had appeared in court on four occasions between 2004 and 2005, when he had given the claimant’s address as his address on each occasion. I simply make the observation that a person with a known criminal record might well give a plausible address to the criminal justice authorities, even if it is not his actual address, for the very reason that he does not wish to be too readily traced. However, it is right to say that he was also arrested at the claimant’s address on a burglary charge in 2006.

 

13. On 18 October 2007 the police, accompanied by DWP officers, executed a search warrant at the claimant’s address in respect of suspected benefit fraud.  When the police arrived, the only person present was the claimant’s then 17 year old daughter.  It appears that she rang her father, who returned from work within 10-15 minutes while the search was under way.  The claimant herself was not present at the property; indeed, it appears that she was on a week’s holiday in Spain.

 

14. During the search the police seized various items such as holiday receipts, family photographs and letters written to the claimant by her husband from prison in 2003.  Her husband was interviewed under caution later the same day.  He said that he had separated from his wife in 1991 and was of no fixed abode.  The claimant was herself interviewed some weeks later under caution and with a solicitor present.  The claimant replied “no comment” to all the questions put to her by the investigators.  She was later charged with offences of benefit fraud.  It is only right to say that the Crown Prosecution Service (CPS) subsequently decided to offer no evidence against her on those charges.  It appears, and I put it no higher than that, that this may be because a police log had been found which appeared to support the claimant’s case that she had been the victim of domestic abuse.

 

The Secretary of State’s decisions under appeal to the First-tier Tribunal

 

15. On 30 November 2007 a decision maker acting for the Secretary of State made a supersession decision (“the entitlement decision”).  The decision maker decided that the claimant and her husband were a married couple who had been maintaining a common household since at least 2000 when she moved to her present address.  As result the decision maker stated that she was superseding the decision dated 18 April 2000 awarding benefit from 14 April 2000 (along with all other specified intervening decisions) on the basis that those decisions were given in ignorance of, or based on a mistake as to, a material fact.  She further decided that the claimant was not entitled to income support from 14 April 2000 until 25 August 2003 and again from 5 December 2003.  The gap in the non-entitlement decision reflected the fact that the claimant’s husband had been in prison during the latter part of 2003.

 

16. On 11 December 2007 a different decision maker decided that as a result of that entitlement decision, the claimant had been overpaid income support amounting to £53,331.47 (“the overpayment decision”).  The period in question did not go back to 2000 but only to 7 March 2003 (subject again to the gap when the claimant’s husband was in prison).  The most likely explanation for the start date being in 2003, and not 2000, concerns the availability of proof of payment of benefit.  If the Secretary of State elects not to press for recovery of the overpayment relating to the whole period covered by a retrospective revision or supersession decision, that is really his business.  The period covered by the recoverable overpayment ended on 18 October 2007.  The reason for the choice of that date was presumably that the DWP had suspended payment of benefit in the immediate aftermath of the raid on the claimant’s home.  The choice of that date did not necessarily imply any acceptance by the DWP that the claimant and her husband were no longer members of a common household from that time.

 

17. On 28 February 2008 the claimant made a fresh claim for income support.  She stated on her claim form that she wished to opt out of child maintenance: “because my former husband has been very violent towards me and I have suffered 2 nervous breakdowns as a result of his actions”.  Her representative, a specialist welfare rights advisor, explained that the claimant had not lived with her husband for many years but that he had subjected her to repeated violence and threatening behaviour over that period, which had led to police involvement.  The representative further explained that the husband used the claimant’s address as a postal address but did not live there.

 

18. On 31 March 2008 a decision maker refused to backdate the 28 February 2008 claim and decided that the claimant was not entitled to income support as she was still maintaining a common household with her husband (“the fresh claim decision”).

 

19. The claimant appealed against all three decisions.

 

The first hearing of the appeals by the First-tier Tribunal

 

20. The claimant’s case was treated as two separate appeals.  The first appeal, under First-tier Tribunal (FTT) reference 069/08/00903, comprised the appeals against the Secretary of State’s entitlement and overpayment decisions for the past period.  The second appeal, under FTT reference 069/08/00904, was against the fresh claim decision.  There was a further and consequential housing benefit appeal which is not the subject of the present proceedings.

 

21. The First-tier Tribunal initially heard the claimant’s joined appeals on 3 March 2009 (“Tribunal 1”). That tribunal’s decision is not currently under appeal.  The claimant attended with her younger daughter and her representative, as did a presenting officer.  Tribunal 1 dismissed both appeals and confirmed the three income support decisions by the Secretary of State.  Tribunal 1 issued an extremely comprehensive Statement of Reasons.  The tribunal made detailed findings of fact and provided extensive reasons for its conclusions. The tribunal’s view, in short, was that the claimant and her husband had shared a common household throughout, were not estranged and had gone on holiday together. The claimant’s evidence was said to be not credible.  The tribunal noted, in particular, that despite the claimant’s allegations of domestic violence the police had no record of any call outs.

 

The police domestic violence reports

 

22. The first tribunal’s final comment, noted immediately above, referred to an observation by the income support decision maker in a note dated 31 March 2008 that “before the [2007] investigation, an enquiry was made to the Police and they have no trace of any abuse to [the claimant] from [her husband] or a domestic dispute at [the post-2000 address]”.  However, this statement needs to be treated with some care.  The DWP’s original enquiry to the police does not appear to be on the tribunal file.  The police’s reply, summarised at paragraph 12 above, started as follows:

 

“With regards to your request, I have researched police systems, for any evidence to indicate that the above named may be living together, with a view of assisting you in progressing your Fraud Investigation Case.  I am able to provide you with the following information…”

 

23. The terms of that reply strongly suggest that the scope of the DWP’s enquiry was limited.  The enquiry was about whether the police held evidence to suggest that the claimant and her husband were living together; to that end the police provided details of various occasions on which the claimant’s husband had given his address to the authorities as being her address.  There is no evidence at all that the police were asked specifically about any reports of domestic violence involving the couple.

 

24. However, a different decision maker’s reconsideration decision dated 3 July 2008 repeated that “there is no record of any police action as a result of [the husband’s] alleged violence and [he] has been arrested at her address on more than one occasion”.  Before Tribunal 1’s hearing, however, the claimant’s representative had asked the DWP to obtain from the police a list of the calls made by the claimant to the police about her husband’s violent conduct.  It seems that no action was taken on that request by the DWP.

 

25. The claimant’s representative eventually managed, after some persistence, to secure from the DWP’s Prosecution Division a copy of a police letter to the DWP dated 6 May 2009 (and so written two months after Tribunal 1’s hearing). The opening passage of this letter read as follows:

 

“With regards to your request, I have researched for incidents of domestic violence reported by [the claimant] since 1 January 2003, with a view of assisting you in assessing her claim.  I am able to provide you with the following information…”

 

26. In other words, after Tribunal 1’s hearing in March 2009, and following pressure from the claimant’s representative, the DWP had finally asked the police the question which they implied had been asked before the joint DWP-police raid in 2007.

 

27. The police letter of 6 May 2009 showed that in fact the police had been called by the claimant on 11 separate occasions between 17 March 2008 and 12 March 2009 in connections with incidents of alleged domestic violence.  In an application to set aside Tribunal 1’s decision, the claimant’s representative argued that the claimant had actually made many more calls prior to that date, but his understanding was that the police had at some stage changed their database system which “may explain why no records could be found prior to March 2008”.

 

28. The District Tribunal Judge who had held the first hearing then very fairly set aside her own decision.  She accepted that the police reports might have been relevant and it was in the interests of justice to have a fresh hearing.

 

The second hearing of the appeals by the First-tier Tribunal

 

29. The claimant’s appeal was relisted before a new tribunal (Tribunal 2), which sat on 16 March 2010. The claimant again attended with her younger daughter and her representative, but this time there was no presenting officer.  The (voluminous) documentary evidence was for the most part essentially the same as that which was before Tribunal 1.  The only real difference was that Tribunal 2 had sight of two further documents, both relating to the domestic violence issue.

 

30. The first was the police letter dated 6 May 2009 detailing the nature of the incidents between 2008 and 2009.  The second was a copy of the claimant’s subject access report obtained under section 7 of the Date Protection Act 1998.  This latter report recorded a summary of the various incidents in 2008 and 2009; however, it also reported two other incidents in 2001 and 2002, when the claimant had called the police to her address.  The subject category on both those earlier occasions was “minor disorder” and the recorded outcome, at least for the 2002 episode, was “all quiet on arrival”.  There appeared to be no record of any calls between August 2002 and April 2008.  However, it is also right to note that two incidents in March 2008, referred to in detail in the police letter of 6 May 2009, for some reason do not appear on the data access report.  There must, therefore, be at least a question mark as to whether either document is a full and complete record of all such incidents and reports.

 

31. Be that as it may, Tribunal 2 came to the same conclusion as Tribunal 1.  The second tribunal dismissed both appeals and confirmed all three of the Secretary of State’s decisions.  The tribunal judge issued a Statement of Reasons.  On the domestic violence issue she (i) accepted that the relationship was turbulent and the situation had been difficult; (ii) pointed out that the fact that the claimant’s husband may have been violent, and may have stayed at other addresses temporarily, did not mean that they were living apart; and (iii) concluded that in making its decision Tribunal 2 had taken into account the police reports that had not been before Tribunal 1.

 

The grounds of the appeal to the Upper Tribunal

 

32. The claimant’s representative has set out detailed grounds of appeal.  I gave the claimant permission to appeal against the tribunal’s decision in relation to the entitlement and overpayment issues in these terms:

 

“2. I am giving permission to appeal with some reservations, given that issues of credibility are fundamentally questions of fact for the First-tier Tribunal (FTT) to determine, as are matters of evidential weight, and given that the case has already been dealt with by two separate tribunals.  However, the following points at least are arguable.

 

3. It is arguable that the First-tier Tribunal’s decision on the income support entitlement and overpayment appeal may err in law in respect of its reasoning. Paragraphs 5-10 of the Statement of Reasons do appear to narrate the evidence, rather than make findings of fact, and paragraph 11 seems to be a conclusion based on first impressions rather than analysis.  That said, I appreciate there are necessarily difficulties in dealing with cases where the evidence relates to past periods and is incomplete or unreliable.  It is also, of course, the case that the parties’ relationship may have been different at different times.  But did the tribunal make sufficient findings with reasons for the crucial issue as to whether the parties shared a common household and at all material times?

 

4. That said, the tribunal have rehearsed the points relied upon by the Department.  But has the tribunal done enough to address the counter points being made on behalf of the applicant by her representative? On the face of it the reasoning of the previous tribunal on 3 March 2009 (and subsequently set aside) is much more cogent, although I accept that that does not necessarily mean of itself that the later tribunal’s reasoning is inadequate.  However, the previous tribunal based its findings on a conclusion that the applicant was an unreliable witness.  The present tribunal clearly accepted her evidence in some respects – so why perhaps was it accepted in some parts but not in other parts?

 

5. As matters stand I remain to be persuaded by several of the points made by the applicant’s representative.  Given the different legal tests and standard of proof, the fate of the criminal proceedings, while possibly of interest, can hardly be decisive in a social security appeal.  The weight to be attached to the employer’s evidence as to the husband’s address must be a matter for the First-tier Tribunal to assess.  Such records are often not checked or updated and so may carry little weight.  The failure of a presenting officer to attend, despite directions, does not necessarily undermine a tribunal’s decision.”

 

33. In relation to the other appeal, relating to the new claim decision, I gave permission in these terms:

 

“3. The applicant’s representative understandably does not separate out his grounds of appeal as regards the two applications.  However, so far as the new claim appeal is concerned, the grounds appear to be that the tribunal is said to have made insufficient findings of fact and/or failed to provide adequate reasons.  In particular, it is argued that the tribunal have failed to explain why income support was not payable from 28 February 2008 but then was reinstated by the Secretary of State as from about 23 March 2009.  It is also said that the tribunal failed to deal with the evidence of violent conduct by the applicant’s husband and its impact on her.

 

4. In this context has the tribunal done enough to explain what it made of the evidence in the police report dated 6 May 2009, referring to several incidents between March and June 2008?  Is paragraph 9 of the Statement of Reasons an adequate way of dealing with this evidence?  The new claim was not decided until the end of March 2008 and so the tribunal could have taken the incidents of both 17 and 22 March 2008 into account.  Plainly, and regrettably, violence is a fact of life in some relationships – but did the tribunal address the representative’s point that the March 2008 police reports showed the applicant had genuinely closed the door on her husband, whatever the past history?”

 

The proceedings before the Upper Tribunal

 

34. The Secretary of State’s representative, Ms A. Ramsey, in two careful written submissions supports the appeal, at least in one sense.  She argues that the First-tier Tribunal made an error of law for the reasons explored below. In short she says that, notwithstanding those errors, the tribunal reached the only decision it could do in relation to the appeal against the entitlement and overpayment decisions relating to the past period.  She invites me to substitute my own decision to the same effect as that made by the tribunal.  However, on the fresh claim she invites me to substitute my own decision that the claimant is entitled to income support from 28 February 2008 on the basis that “the domestic establishment they once had no longer exists at the date of claim”.

 

35. The claimant’s representative, Mr M. Summers, highlights the conflicts in the evidence and the explanations provided by the claimant.  He puts his central argument thus:

 

“Our argument all along is that [the claimant’s husband] was only ever present for four reasons – the first being to see his children (which is a perfectly acceptable reason, and does not in any way imply living with [the claimant]).  The second was to cause harassment and engage in disorderly conduct (which has been established from the police evidence). The third was because he was effectively of no fixed abode and from time to time would try and obtain a place to sleep.  And the fourth because (and often under the influence of alcohol) he was remorseful and tried to force his way back into the household that he previously lived.  All of these (as we have always maintained) are indicate of a broken and failed relationship – beyond recovery.”

 

36. He argues for an oral hearing before the Upper Tribunal as the only way to resolve the appeal.  I reject that application for the reason set out at paragraph 6 above.  I now turn to explain why the tribunal erred in law.

 

The entitlement and overpayment appeal

 

Why the tribunal erred in law

 

37. The tribunal judge certainly asked herself the right question.  At paragraph 4 of the Statement of Reasons she noted that a “couple” is defined to include a man and a woman who are married to each other and who are members of the same household (Social Security Contributions and Benefits Act 1992, section 137(1)).  She also referred to Social Security Commissioner’s decision R(SB) 4/83, which holds that the concept of household is a matter of commonsense and common experience.

 

38. The Secretary of State’s representative helpfully refers to the decision of Deputy Commissioner White in CJSA/1321/2007, in which the Deputy Commissioner listed various relevant considerations (at paragraph 24):

 

“In considering whether the appellant and his wife live in the same household, the new tribunal must consider all the circumstances of this case, including the evidence of independent financial arrangements. Matters which should be considered in coming to a common sense and realistic conclusion overall commonly include:

·        the circumstances in which the appellant and his wife came to be living in the same house;

·        payment for the accommodation made by the appellant;

·        arrangements for the storage and cooking of food;

·        separate eating arrangements;

·        domestic arrangements such as cooking, cleaning, gardening, and bits of household maintenance;

·        the financial arrangements;

·        evidence of family life.”

 

39. The difficulty with the Statement of Reasons, as intimated in the grant of permission to appeal and as agreed by the Secretary of State’s representative, is that the tribunal described the evidence relied on by the DWP to reach its decision but failed to make specific findings of fact based on that evidence.  The tribunal also failed to explain why it accepted or rejected some of that evidence or indeed specifically to find that the couple were members of the same household at all material times. 

 

The Upper Tribunal’s decision

 

40. The tribunal’s decision involves an error of law for those reasons and accordingly is set aside.

 

41. I acknowledge the force of the submission by the Secretary of State’s representative that there is strong evidence to suggest that the claimant and her husband were sharing a common household throughout the period in question.  However, while there is strong evidence, it is not in my view compelling evidence.  There is equally some merit in the counter-arguments which the claimant’s representative has assiduously marshalled.  In particular there is a real degree of uncertainty on the current evidence about the period over which the incidents of harassment and domestic violence occurred.

 

42. In those circumstances I do not think it would be appropriate for the Upper Tribunal to re-make the tribunal’s decision so as to arrive at the same outcome.  A new tribunal will need to hold a re-hearing of the appeal against the entitlement and overpayment decisions.

 

Directions and guidance to the new tribunal

 

43. The tribunal that re-hears this aspect of the appeal should follow the Directions listed at the outset of this decision by the Upper Tribunal.  In particular it should make careful findings of fact on the issues identified at paragraph 38 above.  It may well find it helpful to address the main issues identified by the claimant’s representative in his detailed four-page submission dated 2 December 2008.

 

44. The tribunal should take particular care in making findings about the period over which there were incidents of domestic violence.  If the tribunal takes the view that the documentary evidence on file is broadly accurate – namely that the police were involved in two such incidents in 2001 and 2002 and then again repeatedly from March 2008 – then that may well indicate that the couple were maintaining a common household throughout the relevant period (at least until late 2007 in any event).  However, it is by no means conclusive.  The tribunal must consider all the relevant evidence in the light of all the factors that go to the issue of sharing a common household.

 

45. So, for example, the tribunal will need to make findings about holidays.  Do the photos seized by the DWP indicate shared and happy family holidays?  Or does the tribunal believe the claimant’s account of the reason for her accompanying her husband on holiday (namely that on one occasion, while under the influence of alcohol, he had managed to lose their disabled son when abroad)? These issues may not be straightforward.  The tribunal might note that the receipt for the Ryanair flights booked in 2005 gives a contact address for the husband which is different from the claimant’s.  The tribunal might also note that the claimant was on holiday without her husband at the time of the police raid in 2007.

 

46. Likewise the tribunal will need to decide what weight to attach to the letters sent by the claimant’s husband when he was in prison.  Do they show, as the DWP argue, that the couple were sharing a common household because of the nature of some of the issues being discussed (e.g. advice about works on the property?). Or, as the claimant’s representative argues, do they demonstrate the manipulative nature of the claimant’s husband?  I simply observe that the representative’s point that all the letters were from the claimant’s husband to her, rather than vice versa, may not carry much weight, as it is plain from the letters that this was a two-way correspondence  (e.g. “I got your letter…”).  However, the evaluation of such evidence is a matter for the new tribunal.

 

47. Having considered all relevant matters, and made appropriate findings of fact, the tribunal should then be in a position to reach a decision on the composite issue of whether or not the claimant and her husband were sharing a common household.  As noted above, a substantial gap in the incidence of domestic violence reports might suggest that they were, but it is not conclusive.  Equally, if the tribunal find that the incidents of harassment and domestic violence were more common throughout the relevant period than is suggested by the police reports, that factor alone does not necessarily mean that the couple were not sharing a common household.  The sad reality is that domestic violence in a shared household is a common feature of many people’s lives.

 

48. It may help the tribunal to think of the question in the following way.  Having made findings of fact, does the overall picture emerge of a couple who were living at the same address and going on family holidays together, albeit living together in a turbulent relationship punctuated by bouts of domestic violence and occasional temporary separations?  Or rather does the overall picture emerge of a lone parent living with her children and harassed by her violent and manipulative ex-partner, a man who led a nomadic lifestyle but repeatedly came round to see his children, to collect his post and, often drunk, to be a nuisance?  It is possible, of course, that both versions may be accurate, albeit at different periods.

 

49. There is extensive documentary evidence in the tribunal file which now runs to over 450 pages.  I am therefore reluctant to make any direction suggesting that yet further paperwork be added to the bundle.  However, a District Tribunal Judge will in due course be making listing directions for the re-hearing.  It may be that the judge would wish to consider whether the claimant should be asked for her consent to release her GP medical records.  The original tribunal in 2009 had accepted the claimant’s evidence that she had had mental health problems “including a breakdown 2.5-3 years ago” (i.e. in or around 2006).  The GP records may potentially cast some light both on the nature of the claimant’s relationship with her husband and the claims of long-term domestic violence.

 

The fresh claim appeal

 

Why the tribunal erred in law

 

50. The tribunal dealt with the second appeal, relating to the fresh claim with effect from 28 February 2008, in summary fashion.  There were no detailed findings of fact with regard to the position from February 2008.  The tribunal’s reasons simply read as follows:

 

“14. The tribunal next considered the new claim of Income Support from 28^th February 2008.  There is no further persuasive evidence to suggest any change in the living arrangements of the appellant and her husband.

 

15. In making their decisions, the tribunal took into account the documents relating to Police reports which were not before the previous tribunal.”

 

51. I agree with the Secretary of State’s representative, who argues that the tribunal erred by failing to make any clear findings on the significance of the incidents identified in the police letter of 6 May 2009 (referred to at paragraphs 25 and 27 above) for the state of the couple’s relationship.

 

52. As also noted above, two of those incidents were in March 2008, before the date of the fresh claim decision under appeal.  They therefore needed to be considered by the tribunal.  Those police entries read as follows:

 

“[The claimant’s husband] was arrested on 17 March 2008 at [the claimant’s address] for assault.  Officers were called to the address by [the claimant] reporting that her husband had beaten her up and smashed the house up.  He was charged with assault but those charges were later dismissed at court.  Whilst he was on bail pending the trial he was given bail conditions not to communicate or interfere with [the claimant] and not to enter [the road in which she lived], save on one occasion to collect belongings in the company of a police officer.”

 

[The claimant] was arrested on 22 March 2008 at 02.50 hours at [the claimant’s address] for breaching his bail conditions.  Officers attended the address after a report of a male trying to get in through the rear of the premises.  Police attended and [the claimant’s husband] was found to be the offender and he had bail conditions not to be near the address.”

 

53. As the Secretary of State’s representative argues, the tribunal should have considered whether this evidence indicated that the claimant had decided to “close the door” on her husband with the result that they were no longer members of the same household as from 28 February 2008. 

 

The Upper Tribunal’s decision

 

54. The tribunal’s failure to address that point amounts to an error of law.  As a result I set aside the tribunal’s decision on that aspect of the appeal.  I find that there is sufficient evidence available on file for me to re-make that decision. The position is slightly complicated by the fact that the claimant’s appeal against the decision dated 30 March 2008 was not simply an appeal against the refusal of benefit from the date of claim (28 February 2008).  It was also an appeal against the Secretary of State’s refusal to backdate that claim for three months to take effect from 28 November 2007.

 

55. The claimant’s representative argues that the she fulfils the requirements of regulation 19(5) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) in that she was disabled, she was caring for her son who is disabled, and it was not reasonably practicable for her to obtain assistance from another person to make a claim, given the domestic violence to which she had been subject. On the balance of probabilities I find that the statutory criteria are met.  The claimant plainly falls within both regulation 19(5)(b) and (c).  On the balance of probability I find that she was suffering from the corrosive effects of domestic violence at least from the latter months of 2007, following her return from holiday and the police raid on her home.  Given that she was subject to an ongoing major criminal investigation for possible benefit fraud offences, I think it most unlikely that they were sharing a common household after the police raid in October 2007, whatever the position was before.  I am on balance satisfied, given the entirety of the evidence on file, that she could not reasonably have been expected to seek assistance with her benefit claim immediately from a third party.

 

56. My conclusion therefore is that the claimant and her husband were not members of the same household as from (at least) 28 November 2007 and that her claim for income support, where the first contact was made on 28 February 2008, can be backdated to that date.  The claimant is accordingly entitled to income support from 28 November 2007, there being no suggestion that there was any other ground which would mean that she was not so qualified.  I note that in recent years, putting to one side the shared household issue, she may well have been eligible for income support on account of her disability rather than her status as a lone parent. I also note that the DWP itself made an award of income support on a further fresh claim but only with effect from 23 March 2009.

 

Conclusion

 

57. For the reasons explained above, the Upper Tribunal allows the claimant’s appeal against both decisions as involving an error of law (Tribunals, Courts and Enforcement Act 2007, section 12). 

 

58. The decision of the First-tier Tribunal under FTT reference 069/08/00903 relating to the appeals against the Secretary of State’s entitlement and overpayment decisions is set aside.  There will have to be a third hearing of those issues, subject to the Directions listed above.

 

59. The decision of the First-tier Tribunal under FTT reference 069/08/00904 relating to the appeal against the Secretary of State’s decision on the fresh claim for income support is set aside.  The Upper Tribunal re-makes that decision in the terms set out above.

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 16 February 2011 Judge of the Upper Tribunal