Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CIS 2104 2012 

ADMINISTRATIVE APPEALS CHAMBER

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 The appellant (G) is appealing against a decision of the First-tier Tribunal sitting at Stoke on Trent on 10 01 2012 under reference SC 049 11 02097. The decision was that G and another person were living together as wife and husband from 29 01 2007 to 24 02 2011. This case, on unusual facts, raises the question whether the two were, during all or part of the relevant period, members of the same household.  The unusual facts, which only apply during part of the relevant period for this appeal, are related to the severe disablement of a young child of G and the partner, for which the child received what appears on the papers to be the highest rate of disability living allowance payable and G receives carer’s allowance for the child. Evidence suggests that the partner is unable or unwilling to stay in the same accommodation as the child when working because of the combined effects of the child’s disablement and the size of the accommodation in which the child and G (and other children) live. It is also clear that G had a significant personal weekly income from the combined benefits of allowances and benefits for herself, the disabled child and her other children.  

2 The First-tier Tribunal decided that the decision maker acting for the Secretary of State was right in deciding that G was living with a named individual as husband and wife from 29 01 2007. As a result it was also decided that there had been an overpayment of income support to the appellant of £9,689.65 for the period from 6 02 2007 to 10 02 2011. Further, all but a small amount of that sum was recoverable from G as she had failed to disclose that she was living with her partner.

3 The decision whether G and her partner were living together as husband and wife was subject to thorough investigation by officials working for the Department for Work and Pensions and the local council from which other benefits were claimed. As a result of those investigations formal decisions were taken on 23 02 2011 that they were living together as husband and wife and on 17 03 2011 about the overpayment. [I refer to the other individual as “partner” in this case because that is what they have called each other in documents in the evidence before the First-tier Tribunal.]

4 The statutory question was whether G and her partner were or were not living together as husband and wife for all or part of the period in question. The relevant law is in sections 136 and 137 of the Social Security Contributions and Benefits Act 1992. The test is in the definition of “couple” in section 137(1). Were G and her partner:

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

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

The same definitions are to be found in Regulation 2(1) of the income Support (General) Regulations and regulation 2(1) of the Housing Benefit Regulations 2006. No issue has been raised about any prescribed circumstances here.

5 To be living together as husband and wife, the couple have to meet the household test. If that is met, then the “as” test arises.  As G’s representatives in the appeal to the First-tier Tribunal recognised, the question here is whether G and her partner were members of the same household. That is essentially a question of fact. It has regularly come before the Upper Tribunal and, before it, the Social Security Commissioners. The approach taken to the terms, which have been used by Parliament for several decades, has been consistent. It was clearly stated in R(SB) 4/83, a decision taken 30 years ago. It is that the phrase “member of the same household” is to be given its ordinary, everyday meaning. It was not and is not a technical term. There was not, and is not, any further definition of “members of the same household” in legislation.

6 Did this First-tier Tribunal err in law in deciding that G and her partner were, on the evidence, members of the same household? The formal submission in the papers for the Secretary of State referred to another decision, that of R(SB) 17/81. That laid down the six well known markers of a living together relationship. As part of that, the first marker is stated as follows (at paragraph [7] of that decision): 

“(a) members of the same household. The man must be living in the same household as the woman and will usually have no other home where he normally lives. This implies that the couple live together wholly, apart from absences necessary for the man’s employment, visit to relatives, etc.”

This is taken from the former Supplementary Benefits Handbook. The guidance was first published in these terms in 1976. What R(SB) 17/81 does not emphasise (but the Handbook  did) is that this test must be met separately from the other five tests laid down in that same paragraph apply, though some (such as stability) may assist in deciding if this test is met. There must be a common household. That test, as emphasised in R(SB) 4/83, is to be judged on common experience. Social changes since 1976 make it important that the underlying approach to the test, as made clear in R(SB) 4/83, be emphasised. What does common experience suggest now, not then?

7 I raise that point because G’s representative based an argument on the language used in R(SB) 17/81: were the couple living together wholly ...? The submission was that they were not wholly living together, and a reason was given that is clearly present in the evidence. One of the children prevented the partner sleeping, and he needed his sleep because of his job. So when working he slept elsewhere. The representative raised two grounds of appeal. The first was that the tribunal judge declined to take much oral evidence either form the appellant or from the Department for Work and Pensions officers present at the hearing. Reliance was placed on the written evidence. The other ground was the approach taken by the tribunal to the written evidence. There was, it is submitted, an absence of evidence of a common household budget, and no clear decision about a common household. The judge, it is submitted, conflated the question of living together with the specific issue of the existence of a common household and had used the former to decide the latter.

8 I agree with the second ground. But I do not agree entirely with its formulation. In modern circumstances the reference in R(SB) 17/81 to “wholly” may be overstating matters. It is possible for someone on a particular set of facts to be ordinarily resident in two places at the same time. It may be similarly possible that an individual shares a household with someone while also maintaining or being part of another household elsewhere. I can see nothing in law to prevent someone having two households. Indeed, the 2011 Census records 1.57 million people in England and Wales as having two addresses. “Normally” or “ordinarily” may be better terms than “wholly” to catch the unusual fact situations as well as the usual fact situations. And it may be on the evidence in this case that there is a common household for part of the time but not all the time. Throughout, of course, the test is that of probabilities. 

9 That point calls into question why the First-tier Tribunal did not seek to clarify the first issue (that of the common household) with oral evidence. This is an extremely important decision for those directly concerned. This was a joint Department for Work and Pensions and council investigation. Several benefits and a considerable amount of public funds – or the funds of the couple - are clearly at stake. The “living together” cases are often cases where a couple are asserting – and sometimes pretending - that despite the fact that they share a household they are not living together. This case may be something of the reverse of that. No account seems to have been taken of the unusual aspect of the case, and it must be reheard.

10 I must warn the appellant that the ground of appeal on which I have granted permission applies only to part of the period covered by the decision under appeal. It will be for the new tribunal to consider the whole period again, It is entitled to look at the same evidence as that before the first tribunal and may come to the same decision as that tribunal for all or at least part of the period under appeal.

David Williams

Upper Tribunal Judge

18 12 2012

[Signed on the original on the date stated]