Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/595/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant: Mr Darren Green (Welfare Rights Officer)

Hull Community Legal Advice Centre

For the Respondent: Mr Hugh James, Solicitor

Decision: The appeal is dismissed.  The decision of the First‑tier Tribunal sitting at Hull on 15 November 2010 under case number 950/10/01914 did not involve the making of an error of law. 

REASONS FOR DECISION

1. The claimant appealed against a decision dated 9 July 2010 that as a result of an earlier decision dated 22 April 2010 an overpayment of income support had been made to her from 9 June 2006 to 19 November 2009 (both dates included) amounting to £29,842.54 and that on 9 June 2006 or as soon as practicable thereafter she had failed to disclose the material fact that she was no longer a single parent and that the income support overpaid in consequence was recoverable from her.  Although she had not appealed against the decision dated 22 April 2010 (on entitlement), her appeal against the overpayment decision was taken as an appeal on entitlement also and proceeded accordingly before the First‑tier Tribunal and Upper Tribunal. 

2. I gave permission to appeal in this case, to allow matters to be fully explored in view of the substantial sum involved, and directed an oral hearing.  I indicated a number of matters that on an initial view were concerning me in relation to the contentions put forward on the claimant’s behalf.  I am grateful to both Mr Green and to Mr James for engaging with those points in the course of their submissions at the oral hearing. 

3. It is common ground that the claimant and Mr H, with whom the Department alleges she was living as a couple at the material time, have three children together, born in 2003, 2005 and 2008. 

4. There was significant evidence linking Mr H to addresses at which the claimant lived, in totality covering the entire alleged overpayment period.  This included bank statements and applications for credit (which were verified against Mr H’s driving licence) and for store catalogues or on‑line facilities.  For periods during the overpayment period, Mr H paid the Sky subscription at the claimant’s address, the phone bill, the TV licence and the car insurance, on which the claimant was named as a named driver. 

5. Away from financial matters, the NHS had Mr H recorded at the same address as the claimant for GP purposes and the claimant had given Mr H’s name, at her address, to the children’s school.  When the second child had been born, Mr H had appeared on the birth certificate but at a different address.  When the third child was born he appeared on the certificate at the same address as the claimant. 

6. The claimant and Mr H were only 16 when their first child was born.  It is not in dispute that at that time they lived apart.  The claimant says that she had to resort to the Child Support Agency to get maintenance before the second child was born, but this proved unsuccessful.  Her case was that until 2008 Mr H was not around.  He had worked away for a year, stayed variously with his mother and with friends and merely used her address as a postal address.  The children had been born as the result of him taking advantage of her.  In 2008 he started to be around more and, as the claimant’s mother had become unwell by then, he began to play a more prominent role in caring for the children, finally moving back in, the claimant alleged, on 20 November 2009. 

7. The tribunal made findings of fact as to these various matters (although some of what at first glance appears under the heading of “Facts” are descriptions of matters of evidence which was evidently not accepted.)  In the statement of reasons the judge referred to their acceptance of the joint parentage of the three children.  He decided that Mr H was living with the claimant from June 2006.  The judge indicated he did not accept their evidence that they were using the claimant’s address for convenience, pointing out that the youngest child was conceived during the period in question.  The claimant knew that Mr H had been giving her address as his address from 2006 onwards and again following a change of address in 2008.  The one document which referred to him being at a different address during the relevant period also showed the claimant (wrongly) as being at that other address and so was intrinsically unreliable.  He referred to the documents from the NHS and the various financial documents as reinforcing the fact that they were living together and rejects the argument that Mr H only moved in in November 2009 which, the tribunal points out, was after the claimant had had a second interview under caution. The judge rejects accounts provided as to where else Mr H had been living on the grounds of their vagueness and their inconsistency with a number of the documents.

8. Mr Green, for the claimant, submits that the tribunal erred in law because of its failure to deal properly with the so‑called “admirable signposts” (see R(SB)17/81).  As developed in argument, he does not allege that it is an error of law to fail to refer to them as such.  However, the matters covered by them are part of the process of reaching a decision on whether two people are living together as husband and wife and thus a failure to address those matters may lead to insufficient findings or to a failure to give sufficient reasons.

9. That said, he does accept that the tribunal dealt with financial support in relation to the phone bill and the Sky subscription; with children; and with the existence of a sexual relationship.  However particularly when it comes to stability and how the parties are viewed by the public, the tribunal did not do enough.

10. Mr James counters this by saying that there is no obligation to address the admirable signposts in every case.  In the present case it would have been a futile exercise.  The claimant’s case was that she and Mr H had not been living together.  Once the tribunal had found against them on that point (and it was not, and realistically could not be, suggested that the tribunal had erred in law in reaching that conclusion given the wealth of evidence) then, given that they had three children together, there was in effect a very strong presumption that they were living together as husband and wife.  In the present case no explanation had been advanced for any alternative basis on which they were living together.  The claimant had been represented before the First‑tier Tribunal.  In the circumstances it was not necessary to pay lip‑service to the admirable signposts.  What mattered was whether the tribunal had sufficiently addressed the central question, namely whether they were “a man and woman who are not married to each other but are living together as husband and wife” (see limb (b) of the definition of “couple” in regulation 2 of the Income Support (General) Regulations 1987/1967.)  I agree that the tribunal’s conclusion that the claimant and Mr H were living together is not open to challenge in a jurisdiction limited to appeal on a point of law and indeed Mr Green has not sought to do so. 

11. In Crake and Butterworth v Supplementary Benefits Commission  [1982] 1 All ER 498, Mr Justice Woolf refers at 505g to “admirable signposts to help a tribunal…to come to a decision whether in fact the parties should be regarded as being within the words “living together as husband and wife.”  The question arose because, as he held at 502c-d:

“It is not sufficient, to establish that a man and woman are living together as husband and wife, to show that they are living in the same household.  If there is the fact that they are living together in the same household, that may raise the question whether they are living together as man and wife, and, indeed, in many circumstances may be strong evidence to show that they are living together as man and wife; but in each case it is necessary to go on and ascertain, in so far as this is possible, the manner in which and why they are living together in the same household; and if there is an explanation which indicates that there not there because they are living together as man and wife, then they would not fall within [the relevant statutory definition]; they are not two persons living together as husband and wife.”

12. From the tribunal’s reasons, it is clear that it did, indeed, set great store by the large and varied amount of evidence which it considered indicated that they were living together in the same household at the material time.  As Crake and Butterworth makes clear, that cannot be an end of the matter.  But this was a case in which, in effect, the tribunal concluded, consistently with Crake and Butterworth, that it did indeed provide strong evidence to show that they were living together as man and wife.  Given the relationship over a period of time which had resulted in the birth of three children and that the tribunal found that the couple had been living together (and giving out their address at the same property) from before the third child’s conception, that was an approach the tribunal was fully entitled to take.

13. The “admirable signposts” may well have a role to play in difficult cases of categorisation, though even then, it is appropriate to guard against too ready a reliance on concrete observable factors of a relationship alone: see CIS/17028/1996 and CIS/87/1993.  Illustrations of such alternative explanations for tribunals to consider are provided by Crake, where the claimant claimed to be the housekeeper of the man concerned, and by Butterworth, where the man was said to have moved in to help the claimant while she was unwell, while in R(SB)35/85, the claimant continued to provide care for the man, as she had previously done when both of them had lived in the same household as her late brother.  In the present case, however, there was, as Mr James submitted, no alterative explanation provided.

14. The admirable signposts are another way of looking at the same question as is addressed by considering the parties’ general, financial and sexual relationship (see R(SB)17/81 at para 11.)  However useful they may be, it is in my view wrong to elevate them to a requirement to be considered in every case.  The question in each case is whether the tribunal was entitled to reach the conclusions it did on the evidence before it.

15. As Mr Commissioner Jacobs (as he then was) noted in CIS/17028/1996 at para 24:

“The question [i.e. of whether two people are living together as husband and wife] is one of fact and degree. This means that there is an element of judgment involved in deciding whether a particular combination of facts involve the parties living as husband and wife. Often it will be possible for different persons to reach different judgments when applying the correct test to the same facts. Commissioners recognise this. They do not embark upon the exercise of deciding what decision they would have reached on the same facts: see the judgment of Lord Widgery, the Chief Justice, in Global Plant Ltd. v. Secretary of State for Health and Social Security [1971] 3 All England Law Reports 385 at page 393.”

16.  In the absence of any alternative explanation, it is wholly unsurprising (and certainly not challengeable given the limited role of the Upper Tribunal, as the successor to the Commissioners) that the First-tier Tribunal concluded that the living together (as it found), coupled with a sexual relationship over a prolonged period resulting in three children and financial links evidenced through the taking out by Mr H of the Sky subscription and TV licence for the claimant's address, pointed to the relationship being one of living together as husband and wife.  That conclusion was open to the tribunal on the facts found.

17. The tribunal might have found further facts on the evidence before it, but had it done so, it would not have made any difference.  It could have found, for instance, that Mr H opened a Next account but it was the claimant who was perceived by Next as the customer, and it could have found  that the deposit on the insurance was paid by the claimant but subsequent instalments by Mr H.  Both findings would only have tended to reinforce its conclusion that the financial aspect of the relationship indicated a relationship of an unmarried couple.  It might have found as a fact that Mr H cared for the children when the claimant had to care for her mother, who had become unwell, but this would have tended to indicate a degree of support and public recognition within the extended family.  The facts found by the tribunal might have been insufficient if there were others to be derived from the evidence given which pointed in a different direction, but there were not.

18. Nor did the tribunal did not need to spell out its reasons more fully.  It is clear why the claimant lost.  The Upper Tribunal can see whether or not an error of law arose.  The reasons are not in all respects ideal, but they are sufficient.  As in my view the tribunal was entitled to reach the conclusion it did without the need to address the matters covered by the “admirable signposts”, it follows that it cannot be an unlawful; deficiency in the tribunal’s reasoning to fail to go through the signposts point by point.  Had it chosen to spell its reasons out more, however, including in terms of the “admirable signposts”, it might have observed, based on the findings which it did in fact make, that the extended period of living together and the sexual relationship provided an indication of stability;  the question of children was self-evident; there were some indications found by the tribunal of Mr H participating in the financial life of the household, via payment of insurance, phone bills, the Sky subscription and the TV licence; and there was a degree of public acknowledgement in the giving for Mr H of the same address as the claimant to the GP and the school.  This however would have been a recitation of factors which, having got as far as it did for the reasons it gave, was not required of it in the absence of any other explanation being put forward. 

19. It has not been disputed that the claimant needed to report if a partner moved in with her and that she did not do so.  Nor has any challenge been made to the amount of the overpayment.

C G Ward

Judge of the Upper Tribunal

1 November 2011