CIS/1638/2012

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision

 

1. This appeal by the claimant, brought with my permission given on 27^th November 2012, succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Social Entitlement Chamber of the First-tier Tribunal sitting at Birmingham on 2^nd August 2011 (reference 024/10/14837). I substitute my own decision. This is to the effect that the claimant was not a member of a couple from 5^th December 2005.

 

2. I refer to the Secretary of State any questions relating to calculation of entitlement to income support or any other benefit or allowance and any payment of arrears on this basis.

 

3. I have made a similar but separate decision in the associated case of CH/2902/2012.

 

The Relevant Legislative Framework

 

4. Entitlement to income support is created by section 124 of the Social Security Contributions and Benefits Act 1992 (as amended with effect from 5^th December 2005). That section sets out a number of conditions of entitlement. One of those conditions is set out in section 124(1)(c):

 

124(1) A person in Great Britain is entitled to income support if –

(a)   …

(b)  …

(c)   [s]he is not engaged in remunerative work and, if [s]he is a member of a couple, the other member is not so engaged

(d)  …

 

Section 137(1) of that Act defines “couple” as follows:

 

137 (1) …

“couple” means –

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

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

(c)   two people of the same sex who are civil partners of each other and are members of the same household; or

(d)  two people of the same sex who are not civil partners of each other but are living together as if they were civil partners otherwise than in prescribed circumstances;

 

5. The same definition appears in regulation 2(1) of the Income Support (General) Regulations 1987 (as amended). “Civil partners” clearly refers to two people who have entered into a civil partnership under the provisions of the Civil Partnership Act 2004.

 

6. Section 137(1A) of the 1992 Act further provides that:

 

137(1A) … two people of the same sex are to be regarded as living together as if they were civil partners if, but only if they would be regarded as living together as husband and wife were they instead two people of the opposite sex.

 

7. The meaning of living together as husband and wife is not further defined in the legislation or regulations. As I discuss further below, this last provision is particularly difficult to apply. Among other matters it requires an act of imagining that two people who are of the same sex are in fact of opposites sexes.

 

Background and Procedure

 

8. The claimant is a woman who was born on 10^th January 1955. She was married but her husband died in 1976. She was entitled to income support from 25^th November 2002 on the basis that she was incapable of work. There is no dispute as to that. From July 2000 the claimant owned her own home jointly (as tenants in common) with another woman, Ms R, whom she had known since the early 1990s and who appears, at the relevant times, to have been employed as a civil servant. They had a joint mortgage and made repayments from a joint account. They both lived in the house. On most relevant documents the claimant described Ms R as a friend and carer. In one document from 2005 they described each other as partners but stated that their marital status was “single”. In my opinion little can be drawn from their description of each other as partners at that stage – they were certainly partners in ownership of the house and the mortgage liability but non-lawyers do not necessarily give legally accurate descriptions of themselves and the word ”partner” is used in various ways in everyday language.

 

9. The relevant provisions of the Civil Partnership Act 2004 came into effect on 5^th December 2005. On 16^th February 2010 and 6^th April 2010 the claimant was interviewed by the Secretary of State’s officials (see pages 102 to 171 of the Upper Tribunal file). As often happens, the interviewers asked a number of valueless (in the sense of eliciting useful evidence) hypothetical questions, and speculative questions about what the claimant might think other people might think. Other questions referred to a previous long term relationship. The claimant stated that she was financially independent of Ms R except for having a joint mortgage and that “it’s purely a business arrangement” (page 109). The claimant was asked whether she would consider “yourself to be a partnership or a couple” (page 110), to which she replied (page 111):

 

“No, not at all. I’ve never been in a relationship with [Ms R] and I’ve not had an intimate relationship or otherwise since my husband died in 1976. I’ve been a widow all that time and [Ms R] is more of a friend and companion than a partner and always has been”.

 

10. The claimant said that she and Ms R had a joint bank account, to which they both contributed, for the purposes of paying the mortgage and bills. The claimant also had a separate account into which her benefit was paid.

 

11. On 6^th May 2010 Ms R was interviewed (pages 172 to 209). Amongst other matters she said (page 176):

 

“… we share a property, we don’t share a life. We don’t cook for each other, we don’t wash for each other. I don’t have a keeper. I’m more or less independent and she is too”.

 

Ms R added that over the previous few years she had become more of a carer as the claimant’s health had deteriorated.

 

12. On 28^th May 2010 the Secretary of State decided that as from 5^th December 2005 the claimant and Ms R were living together “as civil partners” and as Ms R was in remunerative work, the claimant was no longer entitled to income support as from that date. That decision only makes sense if the phrase “as civil partners” is read: “as if they were civil partners”, because they were not in fact civil partners.

 

13. On 27^th August 2010 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State. The First-tier Tribunal considered the matter on 2^nd August 2011. The claimant attended but was not represented. The tribunal confirmed the decision that had been made by the Secretary of State. On 27^th March 2012 the First-tier Tribunal Judge refused the claimant permission to appeal against the decision of that tribunal. The claimant now appeals by my permission given on 27^th November 2012. When giving permission I said:

 

“It is arguable that if two people of the same gender have not entered into a civil partnership and maintain that they are not living together as civil partners, it requires a high degree of proof to establish that they are so living together.”

 

14. On 20^th March 2013 I directed further submissions in the associated housing benefit case. As a result of that and other matters it is now nearly four years since the decision of the Secretary of State that is under appeal. This is regrettable.

The First-tier Tribunal

 

15. The First-tier Tribunal did not accept the claimant’s evidence to the effect that she and Ms R were not a couple. The reasons given for this included that Ms R gave minimal care, that the purported separation of households under the same roof lacked credibility, that there was a degree of financial interdependence which went far beyond friendship and “is difficult to explain other than in terms of a very close emotional relationship”, that “neither denies that their previous relationships with other persons were same sex relationships”. I observe at this point that the claimant at least had previously been married to a man. The First-tier Tribunal did not accept that the claimant was telling the truth when she said that she did not know whether Ms R was in a relationship with any other person.

 

16. In a written submission of 31^st January 2013 the Secretary of State supported the appeal to the Upper Tribunal and suggested that the appeal be remitted for hearing by a differently constituted First-tier Tribunal. The Secretary of State accepted the indication that I had given that a high degree of proof was required and doubted that such a high degree of proof had been shown. The tribunal had failed to give adequate reasons for not accepting the claimant’s explanations as to why she and Ms R were living in the same house.

 

The Same Sex Marriage Complication

 

17. On further reflection after the receipt of the Secretary of State’s decision it seemed to me that there were also other issues. On 20^th March 2013 my further Directions included the following:

 

“Further to the matters raised previously, it seems to me that the introduction of the concept of same sex marriage (whether or not, and in whatever form, the Bill currently before parliament passes into law) raises new difficulties. It seems that there is a legal difference between the concepts of marriage and of civil partnership (possibly including the relevance of consummation and of a sexual relationship generally). If that is so, it is difficult to see how the content of the regulations defining “living together as civil partners” can work unless the two people involved are in fact civil partners or are claiming to be such.”

 

The Marriage (Same Sex Couples) Act 2013 has now been passed, receiving the Royal Assent on 17^th July 2013.

 

18. The Secretary of State responded, not unreasonably, that at the time of the decision under appeal in this case the law did not make provision for same sex marriages and what became the 2013 Act could not affect the position. I accept this, but the point I was making was a conceptual one, that generally the law does not treat (same sex) marriage and civil partnership as being alike, and that this raises difficulties in applying the provisions of section 137(1A) of the 1992 Act.

“As If They Were Civil Partners”

 

19. I agree with the analsis of the authors of Social Security Legislation 2013/2014 Volume 11 (Sweet and Maxwell), who include two Judges of the Upper Tribunal and a District Judge of the First-tier Tribunal. They comment (page 218):

 

“It is not immediately clear what the new concept of two people “living together as if they were civil partners entails. Centuries of case law has established what the nature of a marriage is with the result that there is some chance of being able to say when an unmarried heterosexual relationship resembles marriage. By contrast there is no established model of what is involved in a civil partnership. Any two people can register a civil partnership as long as they are of age, of the same sex, not within the prohibited degrees of relationship and not already married or in another civil partnership. There is no requirement that the relationship should be consummated (as there is for marriage). There is therefore a much wider variety of relationships that could be registered as civil partnerships and it is therefore more difficult to say whether any particular informal relationship resembles a civil partnership.  … the definition is only concerned with … those relationships that in some way a heterosexual relationship or cohabitation [and] requires the decision maker … to conduct a thought experiment …”.

 

“Living Together As Husband and Wife”

 

20. Although the concept of an unmarried couple living together as husband and wife has been long established in social security law, it has also proved elusive and difficult to apply. The traditional starting point is the decision of Mr Justice Woolf in Crake v Supplementary Benefits Commission [1982] 1 All ER 498. 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”.

 

21. 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”.

 

22. He referred (page 505) 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'. 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”.

 

23. There have been many decisions by Social Security Commissioners and by this chamber of the Upper Tribunal (which incorporated and replaced the Commissioners) seeking to explain and apply this approach. Some of them have been referred to in the papers produced for this present case. A number of decisions have warned against what has been called a “checklist approach”. For example, in CP/8001/1995 Mr Commissioner Howell QC said (paragraph 17):

 

“17. … there may be a number of perfectly viable alternative ways in which people live together in the same household but without doing so as husband and wife … there must be many households where … retired people live together as friends, whose occupants would be rightly horrified if someone were to describe their relationship as cohabitation …”.

 

24. Personally, I have never been convinced that the “signpost” of financial support is very helpful. If people live in the same household, or just in the same home, there is almost bound to be a degree of financial interdependence. If there have been problems in claiming or obtaining a means tested benefit there is almost bound to be a degree of financial support.

 

25. If the people involved deny that there is (or ever has been) a sexual relationship (or that there has ever been a regular or sustained sexual relationship) then (in the absence of evidence to the contrary) it might not be possible to say that they are living together as husband and wife, given the importance of the issue to the concept of (heterosexual) marriage and in matrimonial law. There is also the question of what amounts to a sexual relationship. While non-consummation is an issue in heterosexual marriage, it is not so in civil partnerships.

 

26. While most heterosexual couples of the appropriate age have children in common, very few same sex couples do (although it is possible through adoption, artificial insemination and so on).

 

27. Thus, the value of the question of children and of a sexual relationship as signposts is considerably reduced in many cases of same sex couples .

 

28. The issue has very recently been considered by Upper Tribunal Judge Jacobs in PP v Basildon District Council [2013] UKUT 505 (AAC), CH/4086/2012, issued o 29^th October 2013. He pointed out that there are problems generally with the signposts:

 

“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.”

29. Judge Jacobs surveyed a number of cases in other areas of law, in particular those of the House of Lords in Fitzpatrick v Stirling Housing Association Ltd [2001] 1 AC 27 and Ghaidan v Godin-Mendaoza [2004] 2 AC 557, and concluded that (paragraph 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.”

30. A similar approach was taken by the Court of Appeal in Amicus Horizon Ltd v The Estate of Miss Judy Mabbott (Deceased) and Another [2012] EWCA Civ 895.

31. I do not dissent from what Judge Jacobs said. However, the very fact that a party denies that there is an emotional relationship in itself severely undermines the notion that there is such a relationship and in my opinion it would require very strong evidence indeed (and more than just disbelieving the claimant or witness) to displace that denial.

Public Acknowledgement

 

32. Baynes v Hedger and Others [2008] EWCH 1587 (Ch) concerned a claim under the Inheritance (Family and Dependants Act) 1975. The question arose as to whether two women could be said to have been living together as civil partners without their relationship having been registered as such under the 2004 Act. It was not disputed that this was possible for these purposes but Mr Justice Lewison held, on the basis of a survey of authorities, that the relationship must be openly and unequivocally displayed to the outside world. I acknowledge that this was in a slightly different statutory context but it is his reason for so holding that is particularly important. The reasons was because “both a marriage and a civil partnership are publicly acknowledged relationships” (paragraph 125). On the facts of that case the judge found that (paragraph 150):

 

“150 … But in any event the true nature of the relationship between Margot and Mary was unacknowledged, and indeed hidden. Some close members of the family knew of their relationship and other people guessed. But there were many people, including many who knew Mary well, who had no inkling. It seems to me that it is not possible to establish that two persons have lived together as civil partners unless their relationship is an acknowledged one …”.

 

 

 

 

Conclusions

 

33. It seems to me that in cases involving a suggestion that a couple are living together as if they were husband and wife or as though they were civil partners the current state of the law is that a committed emotional loving relationship must be established and publicly acknowledged. The traditional signposts might be able to help establish these matters but Mr Justice Lewison’s reasoning is key on the question of statutory construction.  An unacknowledged relationship cannot be the equivalent of marriage or a registered civil partnership which are, in their very nature, public acknowledgement of an emotional relationship. In the case of same sex relationships, for the reasons that I have discussed above, some of the traditional signposts are of less assistance. It is for those alleging that two people are a couple within the meaning of section 137(1) to prove that there is a publicly acknowledged committed emotional loving relationship.

 

34. On the facts of the present case, the Secretary of State has accepted that the decision of the First-tier Tribunal was in error of law for the reasons given above. On the evidence I can see no reasonable possibility that the Secretary of State can show the kind of relationship that is needed to be shown to support the original decision. For this and the above reasons this appeal by the claimant succeeds.

 

 

H. Levenson

Judge of the Upper Tribunal

17^th January 2014