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Cite as: [2013] UKUT 505 (AAC)

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PP v Basildon District Council (HB) [2013] UKUT 505 (AAC) (12 October 2013)

~Marriage, civil partnerships and living together~Living together as husband and wife or civil partners~~

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference SC919/11/01718, made on 10 July 2012 at Basildon, did not involve the making of an error on a point of law.

Reasons for Decision

1. This case raises the issue of the status of the ‘admirable signposts’ that are regularly used in ‘living together’ cases. In particular, it provides an opportunity to consider the relevance of the emotional aspects of a marriage and the extent to which they should be taken into account to balance the more concrete and observable aspects of a marriage relationship.

A. The local authority

2. For the sake of anonymity, I refer to the parties involved in this case as Mr P and Ms P. Although they share the same initial letter, their surnames are different.

3. On 6 January 2011, the local authority decided that Mr P had been living together with Ms P as husband and wife in the same household from 20 June 2005. In short, the authority relied on the fact that the parties had jointly purchased a property in 1999 and had continued sharing rental properties after their sale of that property.

4. In view of the amount of capital held by the parties, the authority decided that Mr P had not been entitled to housing benefit or council tax benefit. This led to decisions that he had been overpaid housing benefit by £23,105.25 for the inclusive period from 20 June 2005 to 9 January 2011 and been paid excess council tax benefit of £3,947.80 for the inclusive period from 20 June 2013 to 31 March 2011. The authority also decided that he was liable to repay those sums.

B. The legislation

5. The relevant legislation is found in sections 136 and 137 of the Social Security Contributions and Benefits Act 1992:

136 Income and capital

(1) When a person claiming an income-related benefit is a member of a family, the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of that person.

…

137 Interpretation of Part VII and supplementary provisions

(1) In this Part of this Act, unless the context otherwise requires-

…

‘couple’ means-

…

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

…

‘family’ means-

(a) a couple; …

C. The First-tier Tribunal

6. Mr P exercised his right of appeal to the First-tier Tribunal against the local authority’s decisions. His appeal was written by a firm of solicitors. In summary, their argument was that the parties had met in 1998, when both had recently separated from their partners. Ms P bought a property in 1999 and Mr P’s name was only added so that she could obtain a mortgage. The property was always seen as hers. He planned to go to New Zealand, but this did not happen. In 2003, Ms P said she wanted to sell in order to emigrate to Australia. Her plans fell through, but the property was sold. Thereafter, they shared rental properties on account of Mr P’s health. The proceeds of sale were put into a joint account to ensure double indemnity protection for her savings. The couple have been on holiday together but never as husband wife.

7. A welfare rights adviser provided a written submission for the tribunal. The adviser argued that they lived under the same roof and pooled resources to cover the bills. They were friends with an element of caring. They did not acknowledge they were a couple and there was no evidence that anyone saw them as such. They went on holiday together, but paid their own way.

8. Judge Turrell dismissed the appeal. He found that they had made a joint purchase shortly after meeting. There was no evidence to show that Ms P provided the whole of the deposit or that she protected her position by arranging for a declaration of trust. Similarly, she did not protect her position when the property was sold and the proceeds invested. When Mr P became dependent on benefits, Ms P paid the rent, although he represented that she was merely a guest. This was a pooling of resources such as a married couple might make, rather than a sharing of liabilities, such as acquaintances might organise if they shared a property. A holiday to Las Vegas was paid for initially by Ms P, with Mr P paying his share from his aunt’s Christmas gift. It was usual for a friend to provide extended credit in this way. Mr P said he depended on financial support from his aunt, which she always paid in cash. The judge found it improbable that an elderly lady would have such large sums that she could regularly pay substantial amounts to him in cash. He said that after her death, he lived on her legacy, but would not say how much it had been. There had been talk of other relationships, but none since Mr P claimed benefit.

9. The judge summed up in this paragraph:

The longevity of the relationship, the integration of finances, the failure of Miss P… to protect her alleged ownership of the capital, the ongoing willingness to subsidise the appellant are hallmarks of a friendship that goes far beyond the norm and gives the relationship the characteristic of that of a close and trusting married couple and not that of two friends sharing accommodation for mutual convenience.

D. The Upper Tribunal

10. I gave Mr P permission to appeal to the Upper Tribunal, saying:

the tribunal focused on the indicators of an emotional relationship (husband and wife) and a financial one (household) rather than the so-called signposts. This case may provide a convenient chance to decide whether that should now be the correct approach given the variety of arrangements that now obtain between partners who are living together in a permanent relationship. Are those signposts any longer of much relevance, if they are so often equivocal?

11. I held an oral hearing of the appeal. Mr P attended and spoke on his own behalf. Ms Alison Lambert of counsel appeared for the local authority. I am grateful to them both for their arguments.

E. Mr P’s arguments

12. Mr P took me through the history of his relationship with Ms P. Much of what he said was already in evidence, but he also added information to support his argument that Judge Turrell has misunderstood the evidence and misinterpreted the individual and overall significance of his findings. I cannot take that additional evidence into account. The Upper Tribunal has to decide whether the First-tier Tribunal made an error of law on the evidence that was before the First-tier Tribunal. It is not permissible for the Upper Tribunal to take account of other evidence, whether or not it was in existence at the time of the hearing before the First-tier Tribunal.

13. Mr P identified the flaw in his own argument when he said that Judge Turrell could have looked at the facts differently. That is true, but it does not help Mr P to show that the judge made an error of law. Looking just at the evidence that was before the judge, Mr P did not say that the judge had got the facts wrong. He argued that they could be explained differently, sometimes with the benefit of additional information. That does not show an error of law. Whether a man and a woman are living in the same household or as husband and wife depends on an analysis of the overall significance of a number of facts individually and collectively. No single fact is decisive. In many cases, there is no right or wrong answer. Different decision-makers can, quite properly, form different judgments on the same underlying facts. This limits the circumstances in which there can be an error of law, as Lord Hoffmann explained in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929:

20. In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803, 815–816. … In my opinion the commissioner was right to say that whether or not he would have arrived at the same conclusion, the decision of the tribunal disclosed no error of law.

…

25. … There is a good deal of high authority for saying that the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact: see, for example, Edwards v Bairstow [1956] AC 14 and O’Kelly v Trusthouse Forte plc [1984] QB 90. What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment.

14. I accept Mr P’s argument that a different judge could have come to a different decision. But the issue for me is whether Judge Turrell was entitled to come to the decision that he did. Mr P did not present any argument to show that the judge was not entitled to make his decision.

F. The local authority’s argument

15. Ms Lambert argued that there was no error of law in the tribunal’s decision. The judge had been entitled to make the decision he did and to identify the nature of the relationship through the evidence available to him. In particular, he was entitled and right to refer to the emotional and financial aspects, and not limit himself to the usual signposts. That conclusion is supported by the authorities that she cited. I refer to them in my analysis below. I accept this argument, as I will now explain.

G. Analysis

16. The traditional starting point for an analysis of whether two people are living together as husband and wife has long been Crake v Supplementary Benefits Commission [1982] 1 All ER 498. Woolf J was there concerned with an equivalent definition to that contained in section 137. He made a number of points relevant to this case. First: being a member of the same household is not enough to show that the members are also living as husband and wife (at 502):

… 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 they are not there because they are living together as man and wife, then … they are not two persons living together as husband and wife.

Second: the stage of the relationship is a relevant factor (page 502):

Once one has established the relationship to exist then it is much easier to show that it continues, and it may well be that although many of the features of living together between husband and wife have ceased, perhaps because of advancing years or for other reasons, the paragraph will still continue to apply.

Third: the Supplementary Benefits Commission had provided guidance on the issue (page 505):

… there is a supplementary benefits handbook which sets out guidance to claimants, and that, very conveniently, has a paragraph (para 21, p 17) dealing with the problem as to when couples should be treated as living together as husband and wife, and it sets out no doubt what the tribunal were referring to as the criteria. What they are, in fact, are admirable signposts to help a tribunal, or indeed the commission, to come to a decision whether in fact the parties should be regarded as being within the words 'living together as husband and wife'. They are: whether they are members of the same household; then there is a reference to stability; then there is a question of financial support; then there is the question of sexual relationship; the question of children; and public acknowledgment. Without setting out that part of the handbook in full in this judgment, it appears to me that the approach indicated in that handbook cannot be faulted.

These guidelines regularly form the structure for submissions to tribunals by both decision-makers and representatives. They are also often used as the structure for the tribunals’ decisions.

17. Woolf J’s first and second point are as relevant today as when he made them. The guidelines that he referred to are also relevant. But there are problems that arise from the guidelines themselves and from their application to the evidence.

18. As to the guidelines themselves, they focus on the concrete and observable facts like the parties’ financial arrangements and whether they have children. That may realistically reflect the evidence that will be available, especially in a context where at least one of the parties is receiving benefit and may wish to conceal the true nature of their living arrangements. Moreover, they are nearly always equivocal, individually and collectively. Experience shows that there is little, however apparently damning, for which an explanation cannot be provided by a wily claimant or, for that matter, an honest one.

19. Even when taken at face value, the significance of the evidence provided by these guidelines always has to be assessed by reference to the stage of development of the parties’ relationship – how and why they came to be where they were at the time in issue - as Woolf J acknowledged. More importantly, the guidelines have only ever been evidence of a relationship. And there is more to a relationship of husband and wife than what they show.

20. Coming now to the application of the guidelines, there are at least three problems in practice. The law requires a comparison with how a husband and wife would arrange their affairs. Those arrangements vary. Some marriages may be very stable, others volatile with parties splitting up and coming back together. The nature of the couple’s work may mean they are separated for long periods; some even maintain their own homes. Some have large families; others are childless, whether by choice or otherwise. There is an infinite variety of financial arrangements that are possible. Even public acknowledgement of their union may be limited with the couple maintaining their own separate identities for professional or personal reasons.

21. Add to this the wide variety of arrangements under which people may chose to share accommodation and the contrast between those who are married and those who are not becomes even more blurred. The particular form that the arrangements may take – who pays which bills, whether there is a joint account, who is shown on the utility bill – may owe as much to convenience or chance as to the nature of the underlying relationship between the parties.

22. Finally, there is the limited nature of the evidence. The parties may have an interest in concealing their true relationship. They may have organised their affairs, or tried to organise them, to present a different picture from reality. And they may fail to disclose or misrepresent the true facts when questioned. The tribunal is limited to making its decision on the information that the Department has been able to discover and the parties have disclosed.

23. The issue of whether parties are living as husband and wife arises in other areas of law. The courts, while referring to factors similar to those listed by Woolf J, have recognised the emotional element to a marriage. The leading authority is Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304 and [2001] 1 AC 27. The case concerned the application of the Rent Act 1977 to a gay couple. However, the judges in both the Court of Appeal and the House of Lords commented on the emotional aspects of a marriage or a family relationship; for present purposes they can be considered as equivalent.

24. In the Court of Appeal, Waite LJ said of the couple (page 318):

If endurance, stability, interdependence and devotion were the sole hallmarks of family membership, there could be no doubt about this case at all. Mr. Fitzpatrick and Mr. Thompson lived together for a longer period than many marriages endure these days. They were devoted and faithful, giving each other mutual help and support in a life which shared many of the highest qualities to be found in heterosexual attachments, married or unmarried.

He contrasted this with (also page 318):

Friends of long standing, widowers or spinsters for example, who share accommodation in old age without any sexual element in their relationship, but who often give and receive much the same kind of devoted care …

Ward LJ quoted from Canadian authority in which the judge had referred to (page 332):

… lasting, caring, mutually supportive relationships with economic interdependence …

And later he referred to (page 338):

… love, nurturing, fidelity, durability, emotional and economic interdependence - to name but some and no means all of the hallmarks of a relationship between a husband and his wife.

25. In the House of Lords, Lord Slynn referred to (page 38):

… a degree of mutual interdependence, of the sharing of lives, of caring and love, of commitment and support.

And (page 39):

… a stable, loving and caring relationship which is not intended to be merely temporary and where the couple live together broadly as if they were married …

Lord Clyde went into more detail (page 51):

It seems to me that essentially the bond must be one of love and affection, not of a casual or transitory nature, but in a relationship which is permanent or at least intended to be so. As a result of that personal attachment to each other, other characteristics will follow, such as a readiness to support each other emotionally and financially, to care for and look after the other in times of need, and to provide a companionship in which mutual interests and activities can be shared and enjoyed together. It would be difficult to establish such a bond unless the couple were living together in the same house. It would also be difficult to establish it without an active sexual relationship between them or at least the potentiality of such a relationship. If they have or are caring for children whom they regard as their own they would make the family designation more immediately obvious, but the existence of children is not a necessary element. Each case will require to depend eventually upon its own facts.

26. In Ghaidan v Godin-Mendoza [2004] 2 AC 557, Lord Millett in a dissenting speech said (paragraph 92):

The expression ‘living together as man and wife’ or ‘as husband and wife’ is in general use and well understood. It does not mean living together as lovers whether of the same or the opposite sex. It connotes persons who have openly set up home together as man and wife. While other factors may be significant where the question arises between the parties themselves, in a context such as the present it must depend largely if not exclusively on outward appearances. It cannot depend on the relationship being a happy, or long lasting, or stable one. … This is, of course, not to say that they must hold themselves out as husband and wife: couples who live together as husband and wife rarely do so. It means only that they must appear to the outside world as if they were husband and wife.

27. In Nutting v Southern Housing Group Ltd [2005] HLR 25, the recorder had identified as two of the relevant tests for ‘living with the tenant as his or her wife or husband’ under section 17 of the Housing Act 1988:

(b) Is the relationship an emotional one of mutual lifetime commitment rather than simply one of convenience, friendship, companionship or the living together of lovers?

(c) Is the relationship one which has been presented to the outside world openly and unequivocally so that society considers it to be of permanent intent — the words “till death us do part” being apposite?

On appeal, Evans-Lombe J accepted these tests as ‘entirely adequate’ to describe a marriage relationship (paragraph 17).

28. The test that has to be applied is set out in section 137. Decision-makers and tribunals have to identify the nature of the living arrangements and relationship between the parties in order to compare them with living together as husband and wife.

29. The guidelines summarised by Woolf J remain relevant to that test, but they are not exhaustive. They are relevant both for what they show in themselves and for what they show of the nature and degree of the emotional attachment between the parties. This attachment must almost always be a matter for inference rather than direct evidence. But it is possible to learn much by asking the right question and undertaking a perceptive analysis of the evidence, as Judge Turrell did. Approaching the evidence in this way may help reduce the extent to which the evidence of the guidelines is equivocal in a particular case.

30. Tribunals (and decision-makers) should not limit themselves to those guidelines and what can be learnt from them. They should identify any relevant features of the emotional relationship between the parties such as those set out in the authorities above.

31. Those cases must be interpreted with care. Appropriate allowance must be made for the different statutory contexts. In social security law, the emphasis is on the protection of public funds in a context where the parties may have an incentive to conceal their true relationship. That legal and factual context reduces the importance attached by Lord Millett and Evans-Lombe J to openness and outward appearances and by the latter to the element of permanence.

32. Ultimately, every ‘living together’ case depends upon an analysis of the evidence in the particular case. It is time that that analysis recognised the importance of the emotional aspect of a marriage. This does not replace the other aspects of marriage; rather, it adds a perspective and depth to the analysis. Doing so, does not resolve all of the problems that I have identified with the guidelines and their application. No doubt, the evidence on the parties attachment can be as equivocal as, and probably more difficult to obtain than, the evidence that is generally available. But the law requires a comparison with the standard of a married couple and that standard can only be properly applied if all aspects of marriage are taken into account, so far as the evidence allows.

Signed on original
on 12 October 2013

Edward Jacobs
Upper Tribunal Judge