CH/3747/2013

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Hearing and Decision

 

1. This appeal by the local authority (brought by permission of the First-tier Tribunal Judge given on 18^th June 2013) does not succeed. In accordance with the provisions of section 12 of the Tribunals, Courts and Enforcement Act 2007 I confirm the decision of the Social Entitlement Chamber of the First-tier Tribunal sitting in Nottingham and made on 6^th September 2012 (reference SC045/11/03383). This is to the effect that in respect of the claims for housing benefit and council tax benefit made on or about 28^th January 2011the claimant is to be treated as a single person. If it has not already done so, the appellant local authority is to implement the decision of the First-tier Tribunal as soon as is practicable.

 

2. I held an oral hearing of this appeal at Field House (London) on 17^th April 2014. The appellant local authority was represented by Mr Westwood, one of its senior officials (who is not legally qualified) accompanied by Ms Osei, a solicitor from the local authority. The respondent claimant, to whom I shall refer as “Craig”, attended in person and was represented by his (current and previous) domestic partner (as distinguished from business partner), to whom I shall refer as “Julie”, who is now a qualified solicitor but who was not yet qualified during the events to which this appeal relates. I am grateful to them all for their assistance.

 

Background and Procedure

 

3. The background facts are not really in dispute. Craig was born on 13^th December 1971. Craig and Julie had been domestic partners for about ten years before the events giving rise to this appeal. Throughout those events they remained (to use their words) “in a relationship” as “girl friend and boy friend”. In at least one document during the period under dispute they described themselves as partners but in my opinion little can be drawn from that description of at that stage. People do not necessarily give legally accurate descriptions of themselves (and even judges can be sloppy in their use of this particular concept, as is shown below) and the word “partner” is used in various ways in everyday language.

 

4. On 25^th September 2008 Craig and Julie entered into a tenancy agreement with a private landlord for a part furnished house on an assured shorthold tenancy of “number 14”, in the East Midlands. At that time Craig was employed and Julie was a student at a local law school. The utility bills were in Craig’s name. In June 2009 Julie moved to London to be employed full time as a salaried trainee solicitor (what used to be known as an “articled clerk”) by a firm of solicitors. It is well known that such traineeships last at least two years. She started living in London, where she had a tenancy jointly with three other women and was on the electoral roll, although she and Craig visited each other at weekends. Craig’s evidence (in a letter of 16^th March 2011 – page 50) was that:

 

“[Julie] and I [bear] no responsibility in relation to each other’s property. [She] pays council tax, rent and utility bills in London. At all times she is resident [in London] as confirmed by the electoral roll. She is in no way liable for any payments in relation to the property of [number 14]. [She] merely visits the property in the capacity as a visitor…”.

 

5. They did maintain a joint bank account, although in my opinion that fact by itself proves very little. Their evidence is that they did not keep belongings for each other and that they had separate domestic economies.

 

6. In due course Craig was made redundant and was awarded JSA. On 28^th January 2011 he claimed housing benefit and council tax benefit. On 17^th March 2011 the local authority refused to make any award on the basis that he was Julie’s partner, that their means had to be aggregated, and that on that basis he did not satisfy the financial criteria for entitlement to those benefits.

 

7. On 5^th April 2011 Craig appealed to the First-tier Tribunal against that decision (or those decisions) of the local authority. The First-tier Tribunal considered the matter on 6^th September 2012 and allowed Craig’s appeal. On 18^th June 2013 a First-tier Tribunal Judge gave the local authority permission to appeal against the decision of that tribunal. On 6^th January 2014, after consideration of written submissions, I directed that there be an oral hearing of the appeal.

 

8. What follows is mostly stated in respect of housing benefit but (at the relevant time) there were parallel provisions in relation to council tax benefit and the legal analysis in relation to the issues in this appeal is the same for both benefits.

 

The Principal Relevant Provisions

 

9. Entitlement to housing benefit was created by section 130 (and to council tax benefit by section 131) of the Social Security Contributions and Benefits Act 1992 and the details are dealt with in that Act and in various regulations. It is a means tested benefit which works by comparing relevant income and capital with relevant financial commitments.

 

10. Section 136(1) of the Act provides that:

 

136(1) Where 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.

 

11. Section 123(1) defines “income-related benefit” so as to include both housing benefit and council tax benefit. Section 137(1) defines family as including “a couple”, and (at the relevant time) further defines couple as meaning:

 

“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.

 

12. For the purposes of this appeal it is only the meaning in (b) that is relevant, and this definition is essentially repeated in regulation 2(1) of The Housing Benefit Regulations 2006 and regulation 2(1) of The Council Tax Benefit Regulations 2006. I observe at this point that this definition of “couple” is the only meaning of “couple” for the purposes of entitlement, and that the word “household” does not appear in (b) or (d) although it does appear in (a) and (c). I am not aware of, and was not referred to, any statutory definition of the word “household” for these purposes.

 

13. Regulation 2(1) also defines “partner” as meaning “where a claimant is a member of couple, the other member of that couple” or “where a claimant is polygamously married to two or more members of his household, any such member”. These are the only meanings of “partner” for the purposes of the regulations.

 

“Living Together As Husband and Wife”

 

14. 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”.

 

15. 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”.

 

16. 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. However, it has never really been doubted that a man and woman who are not married to each other cannot be living together as husband and wife unless they are at least together in the same household.

 

“Household”

 

17. There are and have been over the years various means-tested benefits with different schemes and different conditions of entitlement. Where matters are not spelt out specifically in legislation or regulations but have fallen to be determined by tribunals, Commissioners and courts, a body of law has developed in support of the explicit provisions. Accordingly, the following reported decisions of Social Security Commissioners on entitlement to supplementary benefit and the calculation of requirements are relevant.

 

18. In R(SB) 13/82 it was necessary to decide who were members of the same household. Mr Commissioner Rice said (paragraph 11):

 

“Considerable attention has been given in this case to whether or not the four friends living at 13 Clifton Park Road are living as members of one household. They may well have been doing so originally, but at the time the claimant had made his claim … 13 Clifton Park Road had become divided into several different households. Since the clamant acquired his lease, he has his own separate household and he cannot, at least in the absence of the most unusual circumstances, be a member simultaneously of any other household … It is immaterial whether he has to make any contributions to one of the other three occupants in discharge of his responsibility for a quarter of the common expenditure because that person is not a member of the claimant’s household, nor is the claimant a member of anyone else’s household.”

 

19. In R(SB) 4/83 Mr Commissioner J. Mitchell pointed out (in paragraph 19) that in the absence of any legal definition the terms “household” and “member of the same household” had no technical meaning and fell to be given their ordinary everyday meaning. Their application is primarily a question of fact. He added:

 

“In these circumstances it is undesirable that I should here attempt my own definitions – and I do not do so.  … I say this, however: a person who has, and lives in, his own separate home cannot reasonably be regarded as being a member of someone else’s household”.

 

20. R(SB) 30/83 concerned a claimant whose fiancée, a student, lived with him during the university vacations but rented her own accommodation near the university during term time. Mr Commissioner Edwards-Jones upheld a finding that they were an unmarried couple throughout both term time and vacations on the basis that temporary absences such as for employment or higher education could be ignored. Other comments in that decision on the meaning of “home” cannot really assist in considering the meaning of “household” – which is a different concept.

21. In R(SB) 8/85 a man lived with his wife every weekend and with a different, unmarried, woman and her child during the week. Mr Commissioner J. Mitchell referred to R(SB) 13/82 (see above) and stated (paragraph 12):

 

“In that case a categorical ruling [on simultaneous membership of more than one household] was not called for. In the case now before me it is. I have come to the firm conclusion that, although the point is nowhere explicitly dealt with, the legislation as a whole indicates that it is the clear intention of the legislature that a given person, at a given time, cannot be a member of more then one household. The identification of the assessment unit is fundamentally linked to the concept of membership of a household … It is obvious that if a person could be simultaneous a member of more than one household (and, accordingly, of more than one assessment unit), that person might well qualify for more than one award … or more than one claimant might be entitled to have him treated as a dependent. And it is equally obvious, in my view, that the legislation contemplates no such thing”.

 

22. I was also referred to the Chancery Division decision in Churchill v Roach [2002] EWHC 3230 (Ch) which concerned a claim under the Inheritance (Provision for Family and Dependants) Act 1975. That decision is is of limited value in the present case because it refers to a totally different statutory scheme which is not really concerned with means-tested entitlement, it turns on its own facts and decisions of single judges sitting in the Chancery Division are not binding on the Upper Tribunal. It can also be seen as providing support for each party in the case before me. However, insofar as it might shed light on the everyday meaning of household I note the following comment of JJ Judge Norris:

 

“It is perfectly possible to have one household and two properties. But what does seem to me to be the case is that there were two separate establishments with two separate domestic economies. There was, of course, a degree of sharing when the two met at weekends, and some of those weekends were long. But that does not mean that they lived in one household”.

 

Regulation 21

 

23. Mr Westwood placed a great deal of reliance on the provisions of regulation 21 of The Housing Benefit Regulations 2006 (and a parallel provision in regulation 11 of The Council Tax Benefit Regulations 2006). Insofar as is relevant regulation 21 provides:

 

21(1) Subject to paragraph (2) …, the claimant and any partner … shall be treated as members of the same household notwithstanding that any of them is temporarily living away from the other members of his family,

 

(2) Paragraph (1) shall not apply to a person who is living away from the other members of his family where –

(a) that person does not intend to resume living with the other members of his family; or

(b) his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of his absence) and the absence is unlikely to be substantially more than 52 weeks.

 

24. Mr Westwood argued that regulation 21 recognises that there are situations where a claimant and partner are living away from each other and yet remain in the same household and that since Julie and Craig spent the weekends together there was no absence by Julie that was likely to exceed 52 weeks, and therefore they remained members of the same household, which was spread over both properties (in London and the East Midlands).

 

25.That is to read the regulation in a kind of reverse way. Regulation 21 does not even begin to apply unless there is a partner and (in the absence of polygamy) there cannot be a partner unless there is a couple (as these terms are defined by regulation 2(1)). As seen above, if people are in different households they cannot be a couple, and regulation 21 cannot turn them into a couple. Regulation 21 is about how long the status of being in the same household lasts, but only once it has been established that people are in fact in the same household. If two people are not a couple, regulation 21 is irrelevant.

 

The First-tier Tribunal and Conclusions

 

26. The First-tier Tribunal was confused in its analysis (and some of the dates it gave were clearly wrong). In paragraph 3 of its statement of reasons it said,

 

“Although [Craig and Julie] are a couple, the … case law led the Tribunal to conclude that they were not living in the same household and therefore their income should not be aggregated”.

 

As has been explained above, if they were not living in the same household, they were not a couple for these purposes.

 

27. The First-tier Tribunal also considered regulation 21 and the length of Julie’s absence from Craig but, as has also been explained above, this was not relevant in view of its main finding in paragraph 6 in which it concluded that:

 

“The couple had two separate homes and each stopped with the other at weekends when possible. [Craig and Julie] were separately liable for their own accommodation and had completely separate living arrangements so cannot be members of the same household”.

 

28. This was a conclusion that it was not only entitled to reach but, on the evidence, almost bound to reach and for this and the above reasons, notwithstanding the tribunal’s mistakes, this appeal by the local authority does not succeed.

 

 

 

H. Levenson

Judge of the Upper Tribunal

24th April 2014