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Cite as: [2014] UKUT 427 (AAC)
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MN v London Borough of Hillingdon (HB) (Housing and council tax benefits : other) [2014] UKUT 427 (AAC) (18 September 2014)
IN THE UPPER TRIBUNAL Case No. CH/4417/2013
ADMINISTRATIVE APPEALS CHAMBER
Before Judge of the Upper Tribunal Miss E. Ovey
Decision: The decision of the First-tier Tribunal given on 19th August 2013 following a hearing on 9th August 2013 contained an error on a point of law. Accordingly, I allow the claimant’s appeal and I set aside the tribunal’s decision. In exercise of the power given by s.12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 I remit the case to the First-tier Tribunal.
REASONS FOR DECISION
1. This is an appeal by the claimant against the decision of the First-tier Tribunal given on 19th August 2013 by which the tribunal dismissed the claimant’s appeal against the decisions of the London Borough of Hillingdon made on 13th November 2012 that:
(1) the claimant was not entitled to housing benefit from 10th September 2012 (leading to the termination of the claimant’s existing housing benefit entitlement);
(2) the claimant was not entitled to council tax benefit in respect of a claim made on 12th September 2012.
2. In each case the decision was made on the ground that the claimant had capital exceeding the £16,000 limit: that is to say, the amount prescribed by regulation 43 of the Housing Benefit Regulations 2006, S.I. 2006 No. 213, and, at the material time, by regulation 33 of the Council Tax Benefit Regulations 2006, S.I. 2006 No. 215, for the purposes of section 134 of the Social Security Contributions and Benefits Act 1992. The effect of section 134 is that no person is entitled to an income-related benefit if his capital exceeds the prescribed amount.
3. The capital in question was the claimant’s interest in a property in Uxbridge (“the Property”). The District Valuer had valued the claimant’s interest at £109,000. It is agreed by the parties that at the material time the Property was owned by the claimant and his wife as beneficial joint tenants, with the consequence that if the Property came to be sold they would be entitled to the proceeds of sale in equal shares.
4. The claimant’s claim to housing benefit and council tax benefit related to a different property, a flat in Uxbridge which he occupied with his son. The Property was occupied by the claimant’s wife. It is agreed by the parties that the son has substantial disabilities and was receiving the highest rate of the care component and the higher rate of the mobility component of disability living allowance, together with income related employment and support allowance. The claimant says that his wife had been diagnosed as suffering from paranoid schizophrenia and although this may not be accepted by the local authority in so many words, it is not disputed, as I understand the position, that she had serious mental health problems. The Upper Tribunal was informed by the local authority on 2nd June 2014 that unhappily she died the previous week.
5. The very sad background to this case is that in August 2009, following a deterioration in the condition of the claimant’s wife, his son was classified as “vulnerable, at risk” by the social services department and it became necessary for the claimant and his son to move out of the Property, which had been the matrimonial home. This led the claimant to claim housing benefit and council tax benefit by a claim form received on 13th August 2009. The claim was supported by a letter dated 6th August 2009 from the son’s social worker which stated that the reason for the move was the wife’s mental health problems and continued:
“[The son] and his father … will need to make a claim for housing benefit, which I am sure they will be entitled to.
Their reason for moving out of the marital home are very exceptional circumstances and are not to be treated as a normal separation.
I fully support this application and I hope this application can be processed as soon as possible.”
6. The claim of course gave rise to the question what capital the claimant had. Schedule 6 of the Housing Benefit Regulations and Schedule 5 of the Council Tax Regulations both provided by paragraph 1 that the value of a claimant’s home was to be disregarded. The Property, however, had ceased to be the claimant’s home. It seems that the local authority instead took account of paragraph 4 of each Schedule, which provided that there should be disregarded:
“Any premises occupied in whole or in part –
(a) by a partner or relative of a single claimant or any member of the family as his home where the person has attained the qualifying age for state pension credit or is incapacitated;
(b) by the former partner of the claimant as his home, but this provision shall not apply where the former partner is a person from whom the claimant is estranged or divorced or with whom he had formed a civil partnership that has been dissolved.”
It certainly seems likely that the letter from the social worker was written with paragraph 4 in mind. In the event the claimant was awarded both housing benefit and council tax benefit from 17th August 2009, so the local authority was clearly satisfied at that stage that his capital (as calculated for the purpose of those benefits) did not exceed £16,000.
7. The full benefits history is not clear to me from the papers, but it is stated that the council tax award was later reduced to nil as a result of a discount following a decision that the claimant’s son was severely mentally impaired. I take it that that is why the decisions appealed against involve a termination of housing benefit and a refusal to award council tax benefit.
8. As time went on, the question whether the claimant and his wife were estranged within the meaning of paragraph 4 began to loom larger. Further consideration seems to have been prompted in particular by a renewal claim for discretionary housing benefit dated 27 March 2012 made by the claimant in which he referred to his wife as his ex-wife and said that the marriage had ended, and by what the claimant said in an interview with the local authority on 12 September 2012. It was accepted that the claimant and his wife were not in fact divorced, but the claimant said there was no prospect of their ever getting back together, they did not socialise and he did not consider they were a couple.
9. Following this interview, the local authority issued a decision notice terminating the claimant’s entitlement to housing benefit, but reinstated it the following day while the claim was reviewed. During the period of the review the local authority obtained the valuation from the District Valuer and took legal advice not only from the Borough Solicitor but also from counsel. The legal advice from both sources was that the claimant’s interest in the Property could not be disregarded. In the light of that advice and the valuation received, the decision to terminate the claimant’s entitlement to housing benefit by way of a supersession decision and to refuse his claim to council tax benefit was inevitable.
10. I pause to say that although there have been difficulties in the relationship between the local authority and the claimant, arising in large part from their different views as to the best interests of the claimant’s son, it seems to me from the papers before me that the local authority has made substantial efforts to find in the Regulations a legal basis for the award of the benefits to the claimant but has been unable to do so. It is very sad that the claimant’s undoubted commitment to his son has led, through no fault whatsoever of the claimant, to the present situation.
11. The appeal was heard by a single legally qualified chair and it is clear from his statement of reasons that he regarded the central issue as being whether the claimant was estranged from his wife for the purposes of paragraph 4(b). There was also some argument on paragraph 4(a), which had been raised by the claimant in a letter dated 1st December 2012. The tribunal decided that the claimant and his wife were estranged and that paragraph 4(a) did not apply.
12. In addition there was some brief argument before the tribunal on the question whether the claimant could rely on the Equality Act 2010, on the ground that both the claimant’s wife and his son were disabled and section 149 of that Act permits a local authority in some circumstances to treat disabled people more favourably than those who are not disabled. This point was also raised by the claimant in his letter dated 1st December 2012, but was not accepted by the local authority on the ground that there was no discretionary power to disregard the claimant’s interest in the Property. The tribunal’s statement of reasons did not deal with that point. As at present advised, however, it seems to me a clear answer to the section 149 point that the local authority was obliged to apply the Housing Benefit Regulations and the Council Tax Regulations according to their terms, which did not give a discretion of the kind that the claimant appears to have envisaged. This point has not been raised on appeal and I shall therefore say no more about it.
13. The claimant was able to obtain pro bono representation from solicitors and counsel in relation to the appeal and the grounds of appeal were settled by counsel. Permission to appeal was granted by the tribunal judge on 1st November 2013 on the ground that it was appropriate that the matter should be considered by the Upper Tribunal. On 19th March 2014 Judge Jupp directed the Secretary of State to indicate whether he wished to make a submission, but on 24th April 2014 the Secretary of State responded saying he did not wish to make a submission or to be joined.
14. The grounds of appeal raised three issues:
(1) whether the tribunal erred in law in accepting the valuation evidence of the District Valuer;
(2) whether the tribunal erred in his interpretation of the word “estranged”;
(3) whether the two sets of Regulations indirectly discriminated against the claimant (there having been no consideration of objective justification).
15. I have come to the conclusion that this appeal succeeds on the first ground and, as I shall explain, the matter must therefore be remitted to the First-tier Tribunal. It will be open to the claimant at the rehearing to advance again his arguments on the interpretation of the word “estranged” and on discrimination and I shall therefore deal only briefly with those issues.
16. I should say also that the local authority asked for an oral hearing given the relative complexity of the arguments raised by the appeal. If I were dealing at length with the meaning of the word “estranged” and with the discrimination point, I might have been inclined to direct an oral hearing, but in view of the conclusion I have reached on the valuation point, I do not do so.
17. As respects the valuation evidence, the grounds of appeal made three points:
(1) the District Valuer adopted the wrong basis of assessment by valuing the Property and taking half its value as the value of the claimant’s interest. The District Valuer should have valued the claimant’s interest;
(2) in carrying out that valuation, the District Valuer ought to have taken into account, inter alia, the occupation of the claimant’s wife, the absence of evidence of her willingness to sell, the need to take proceedings against her to effect a sale and, in the case of a purchaser, to occupy the Property and her mental capacity. The District Valuer did not do so;
(3) proper valuation evidence ought to have been placed before the tribunal, but again that was not done.
It is submitted that the outcome was that there was no evidence, or no proper evidence, on which the tribunal could rely to reach his conclusion as to the amount of the claimant’s capital.
18. In response the local authority, which is also represented by counsel, pointed out that the valuation evidence was wholly unchallenged before the tribunal and submitted that:
(1) it was accepted that the correct approach was to value the claimant’s beneficial interest in the Property, not to value half of the whole beneficial interest, and that was what the District Valuer had done;
(2) it was clear from the face of the valuation that the District Valuer had taken account of the matters referred to by the claimant;
(3) proper valuation evidence, including the instructions to and qualifications of the District Valuer, was before the tribunal.
In effect it is said that this is a late challenge to the accuracy of the evidence masquerading as a point of law.
19. The claimant responded by contending, in summary, that it could not be seen how the particular factors identified in paragraph 17(2) above had been taken into account either by the District Valuer or the tribunal and that the evidential failings identified constituted an error of law.
20. It is convenient to note at this point that the claimant and the local authority are clearly right that what has to be valued is the claimant’s beneficial interest in the property and that that is to be done by considering the market value of that interest, not by valuing the whole property and dividing the result by two. That was established in Chief Adjudication Officer v. Palfrey R(IS) 26/95 and has been repeated many times since in relation to various provisions in similar terms applying to various income-related benefits. The provisions relevant to the present case, which are in the same terms so far as material as the provisions considered in earlier decisions, are regulations 47 (capital to be calculated at its current market or surrender value less costs of sale and encumbrances) and 51 (capital held by the claimant and another or others jointly to be treated as if each was entitled to the whole beneficial interest in an equal share) of the Housing Benefit Regulations and 37 and 41 (dealing with the same subject matter as regulations 47 and 51) of the Council Tax Benefit Regulations.
21. The tribunal dealt with the amount of the claimant’s capital, and thus with the valuation evidence, as follows:
“9. In my judgment, the legal framework, when traced through the various routes, comes to this: the [Property] is owned by [the claimant and his wife] as joint tenants. It has no or no substantial mortgage secured on it. The gross value of the property is estimated by [the claimant] at £200000.00. The District Valuer assessed [the claimant’s] half share at £109000.00 (before selling costs), giving a slightly higher gross value. The significance of the value of [the claimant’s] share is that it has a value greater than the statutory maximum that one can hold by way of capital … I have seen the figures totalling £101996.94 used by the Respondent to calculated the capital sum. I accept these figures as correct but even if the bank balances are wrong it is clear that there is sufficient value in [the Property] for [the claimant] to hold capital in excess of the prescribed amount.”
22. The figure £101,996.94 is explained in paragraph F21 of the local authority’s submission to the tribunal. It is the total of the amounts in three bank accounts held by the claimant in 2007 (hence the tribunal’s recognition that the figures might be wrong) and the claimant’s interest in the Property valued at £109,000 less the 10% selling costs provided for by regulation 47 of the Housing Benefit Regulations and regulation 37 of the Council Tax Benefit Regulations.
23. It follows that in my view the tribunal clearly accepted without question the accuracy of the District Valuer’s valuation. That is not surprising, since its accuracy was not challenged by the claimant, but I must consider first whether there is any substance in the criticisms now made of that valuation and then, if there is, whether there was an error of law on the part of the tribunal. I add that it is also not surprising that the claimant did not challenge the accuracy of the valuation, given that he was not represented before the tribunal and that the District Valuer’s valuation was reasonably close to what he would have expected to receive if the Property had been sold and he had received his half share of the proceeds of sale.
24. I turn to the material relating to the valuation. On 26th September 2012 the local authority wrote to the District Valuer enclosing forms LA1 and LA2 and a copy of the Land Registry entries relating to the Property and stating that it appeared there was no mortgage on the Property. Form LA1 is not clearly identified in the papers, but I assume it to be the form dated 19th September 2012 signed by the claimant giving information about the Property and authorising it to be valued. Form LA2 is in effect a form giving instructions for the valuation of the Property. The local authority rightly completed it by requesting a valuation of the market value of the claimant’s share in the Property, in accordance with Part 2. The claimant’s share was said to be 50%.
25. The District Valuer returned the completed form LA2 on 8th October 2012, the completed form being her report. From the covering letter it can be seen that she has the qualification M.R.I.C.S., that she is an R.I.C.S. Registered Valuer and that she is employed by the Valuation Office Agency in the District Valuer Services section in Wimbledon. Unfortunately she completed the report by putting the figure of £109,000 in Part 1 of the form and leaving Part 2 blank.
26. This error was noticed by the local authority and on 24th October 2012 the person dealing with the matter wrote to the District Valuer asking her to “complete the tick boxes and valuation in part two”. The District Valuer did so by stating a value of £220,000 in Part 1 as the value of the Property, repeating that value in Part 2 and stating a value of £109,000 immediately after the following paragraphs:
“actual undivided share (common ownership) after considering encumbrances
· Using the information on form LA1
· Taking into account the above factors relevant to the case
· Using my professional judgment to reach a balanced valuation figure”.
27. The “above factors” must, I think, be the factors shown in boxes A to K, all of which the District Valuer has ticked as matters which she has considered. Those boxes include the following:
“B. If the other owners would agree to the sale of the asset as a whole
C. If the other owners would be willing and able to buy the share
D. The occupation of the property by other owners and whether they would be willing to vacate it
E. Where the other owners would not buy the share or agree to the sale of the asset as a whole or are not prepared to vacate the property
○ the attitude of the courts – whether they would order the sale of property as a whole, as a partition, or some other order
○ the length of time a purchaser may have to wait before obtaining an order for possession of the asset, ie the share
○ the potential legal costs of a buyer
N.B. The valuer should consider the relevant facts and not assume an order will be granted
F. The rights of occupation of the other owners
J. Sales of similar share interests in property the comparables used to value the share element being
○ VOA database
○ sales information
○ land registry list
○ estate agents particulars
○ other – please state
K. That there is
○ no market for the share
○ a market for the share
○ VOA database
at or in
○ auctions
○ private treaty
○ other – please state.”
There are no marks in any of the white circles in the boxes.
28. The form LA1 informed the District Valuer, inter alia, that the claimant was not taking steps to dispose of the Property or his interest in it, that there were no proceedings about the disposal of the Property on divorce, that the Property was occupied by the claimant’s “estranged wife” who had paranoid schizophrenia, that the claimant had had to move out for the safety of their son, that the claimant’s wife had lived at the Property since 1982, that the Property was jointly owned by the claimant and his wife, that it had been bought as a home, that it was used as a home, that the claimant’s wife would not be willing and able to buy the claimant’s share or to sell the Property as a whole, that there were no agreements about selling if one of the joint owners wanted to sell and that there were no court orders which could affect the way the Property was sold. (The form also said that the claimant was not a joint tenant or a tenant in common, but in that respect it seems that the claimant was probably misled by the legal terminology, since it is accepted that if the Property were sold he would be entitled to a half share in the net proceeds of sale and the Land Registry copy entries (which show that the claimant and his wife have been the registered proprietors of the Property since 21st December 1982) do not contain the restriction which would then have been included if they held as beneficial tenants in common. The current understanding that they were beneficial joint tenants is in my view borne out by the Land Registry entries.)
29. There is no further material to show how the District Valuer arrived at her valuation. The position is therefore that the claimant’s share has been valued at an amount which represents half the valuation of the Property as a whole (£110,000) less a deduction of just under 1%. That is the case although:
(1) the claimant’s wife, as a beneficial joint tenant, was entitled to occupy the whole of the Property;
(2) the claimant’s view was that she would not agree to the sale of the Property and would not be willing and able to buy the claimant’s share;
(3) she was occupying the Property as her home and had done so since 1982;
(4) she was suffering from paranoid schizophrenia;
(5) there were no proceedings on foot brought by the claimant to obtain possession of the Property or to restrict his wife’s rights of occupation;
(6) there was no evidence of any legal advice on the question whether and if so when the claimant might be able to obtain any such order, presumably as a result of an application under the Trust of Land and Appointment of Trustees Act 1996;
(7) a fortiori there was no evidence of any legal advice on the question whether, if the claimant did make such an application, the claimant’s wife or a litigation friend acting on her behalf might bring proceedings under the Matrimonial Causes Act 1973 seeking, inter alia, a property adjustment order in her favour and what her prospects of success on such an application might be;
(8) there was no indication what comparables might have been used in arriving at the valuation of the share;
(9) the District Valuer did not state whether or not there was a market for the share.
30. A similar situation existed in R(JSA) 1/02, which was concerned with the value of a husband’s share in the matrimonial home for the purposes of determining his capital and thus his entitlement to income-based jobseeker’s allowance. The valuation was provided by a person from the valuation office who had been asked to give the market value of the claimant’s share in the property, said to be one half. The valuer valued the property as a whole at £30,000, the mathematical deemed share at £15,000 and the claimant’s undivided half share as £9,200. It is clear from the case report that the valuer had in front of her a form raising matters very similar to those set out in paragraph 26 above, which she said she had taken into account. There were no reasons for the valuer’s conclusions and no statement explaining how she had dealt with those various matters. Mr. Deputy Commissioner Mark said:
“10. I find it impossible to see how the valuer could have arrived at the figure of £9,200, or indeed any other figure, as representing the value of the claimant’s interest and I can also find no basis for the figure in the decision of the tribunal. It is not enough for the tribunal to accept the opinion of a valuer as to the value of an interest in property, even where the valuer is shown to be an expert, without some reasons being given for adopting the value put forward. I can find nothing in the tribunal’s statement of reasons to indicate any basis for the value put by the tribunal on the property or the claimant’s share in it…
11. It therefore appears to me that the tribunal erred in law in coming to its decision, and its decision must be set aside. In coming to this conclusion, I have found helpful the observations of the Commissioner in CIS/191/1994 … [who] pointed out that where the home is of modest value, and none of that value could be realised by a claimant or any person acquiring his interest for a lengthy, and possibly unascertainable period, it is unlikely that anybody would be prepared to pay very much for the interest, and it may have little or no value. He was there basing his observations on the effects of s.30 of the Law of Property Act 1925. The matter would now be dealt with under s.14 of the Trusts of Land and Appointment of Trustees Act 1996, but similar considerations would still apply.
12. It may also be the case, and I do not need to deal with the question, that the practicability of transferring the interest to a purchaser may be affected by the powers of the court to make orders affecting the claimant’s interest in the course of matrimonial proceedings.”
The Deputy Commissioner went on to set out what was required to constitute proper valuation evidence and what should be done if not all the information was available. In the latter case, the report should state what information was missing and what assumptions had been made. He concluded:
“15. In the present case, for the reasons which I have given, the valuation evidence is so unsatisfactory as to be worthless. The only evidence of value of the property is the evidence that £12,000 was paid in 1988 … There is also no evidence of any half interest being sold where the wife and a child remain on the premises, so that a purchaser would not be able to realize any benefit from his investment for an uncertain period, or as to the basis of calculation of the price in such circumstances.
16. I conclude that there is no evidence upon which any tribunal would be entitled to rely that the capital of the claimant exceeded £8,000 …”
31. Another example of a case in which the value of the share of one of two co-owners had to be determined can be found in R(IS) 5/07. In that case, the wife had left the property and the husband remained in occupation. He was not willing to sell or to buy his wife’s share and there were no divorce proceedings on foot. The Secretary of State had assumed that the wife had capital worth half the net value of the whole house. Mr. Commissioner Williams made clear that what was required to be valued was the wife’s “half” of the house:
“with her husband in it as of right and not willing to buy [his wife] out or to sell either his ‘half’ or the house as a whole (so not in the current market or cooperating with it, and acting as an encumbrance in practical if not legal terms) and with no litigation in prospect to enforce any rights against the husband.”
The Commissioner, in saying this, expressed himself as adopting the views expressed by Mr. Commissioner Jacobs in CH/3197/2003 and CH/1953/2003, which he regarded as being fully in line with R(IS) 1/02.
32. I find support in those decisions for the conclusion I should have reached in any event, namely, that the evidence before the tribunal was wholly inadequate to support a finding that the value of the claimant’s interest in the Property was £109,000. There was no evidence of a market for an interest subject to the practical encumbrances referred to in paragraph 29 above and no evidence of any comparables, whether established by the market or on any other basis. As a matter of common sense, it seems unlikely in the extreme that a purchaser would pay just under half the vacant possession value of a property for a half interest which would not enable him to occupy the Property without first obtaining some form of court order against a defendant suffering from paranoid schizophrenia who was in occupation of a former matrimonial home, bought for the purpose of being a home, and who might be entitled to a property adjustment order. If the tribunal wished to find as a fact that the value of the claimant’s interest was £109,000, it was incumbent on the tribunal to give adequate reasons for a finding which was so far from inherently probable.
33. It is not an answer for the local authority to say that the District Valuer had the relevant information and ticked the boxes to confirm that she had taken the various factors into account, especially when she did not complete information about comparables and the existence or otherwise of a market. In the absence of any reasons which explained how she had taken those factors into account, and in the absence of any indication that she had legal advice on the Trusts of Land and Appointment of Trustees Act and the Matrimonial Causes Act or was otherwise able to assess the likely approach of the courts, it is, to my mind, impossible to understand on what basis she could have reached the conclusion that their effect was so minimal. The cases mentioned above differ in some of their detail from the present case, but it is clear that in all of them the court took the view that the value of an interest subject to such practical encumbrances was likely to be small.
34. As to whether the decision involved an error of law by the tribunal, it will be observed that in R(IS) 1/02 the Deputy Commissioner identified both a failure to give adequate reasons and an absence of evidence on which the tribunal would be entitled to rely in making a finding as to the value of the claimant’s interest. Both a failure to give adequate reasons and an absence of any or any sufficient evidence to support a finding of fact (making the finding perverse or irrational) are well-recognised errors of law: see, for example, R.(Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982. In the light of what I have said above, I conclude that both those errors existed in the present case.
35. In saying this, I have sympathy for the tribunal, whose attention was plainly focused on the difficult issue of the true construction of the word “estranged” in the circumstances of the present case (an issue which is logically anterior to the valuation issue, since it deals with the question whether the claimant’s interest needs to be valued at all), and who was not presented with a challenge to the valuation. Nevertheless, paragraph 9 of the statement of reasons does involve a finding of fact as to the valuation, in relation to which the tribunal was in error.
36. Having reached that conclusion, I do not need to address the points about the instructions given to the District Valuer and the District Valuer’s qualifications and I shall not do so.
37. I have considered whether the evidence is sufficient to show that the claimant must at least have had capital in excess of £16,000, in which case my view of the valuation evidence would not be material to the outcome of the appeal. I do not find it possible, however, to come to any conclusion about the value of the claimant’s interest in the Property, except that its seems to me very likely that its current market value at 12th September 2012 would have been small. The evidence of the claimant’s bank accounts is so out of date that that does not assist.
38. It follows that I must remit the matter for a further hearing in the light of such additional evidence of value as the parties may wish to bring. The local authority may, however, wish to consider whether it wants to maintain its contention as to the claimant’s capital in all the circumstances, particularly as the situation has now changed for the future very substantially as a result of the death of the claimant’s wife.
39. I turn now to the question whether the claimant’s wife was a person from whom he was estranged at 12th September 2012. The word “estranged” is not defined in the Housing Benefit Regulations but was defined by regulation 2(5) of the Council Tax Benefit Regulations as follows:
“For the purposes of these Regulations, two persons shall be taken to be estranged only if their estrangement constitutes a breakdown of the relationship between them.”
The local authority submits that the tribunal applied that test in relation to housing benefit as well as council tax benefit and was right to do so, having regard to the decisions on the meaning of “estranged” in relation to housing benefit.
40. I accept that submission and do not accede to the claimant’s submission that “estranged” should be construed ejusdem generis with divorce or dissolution, given that both sets of Regulations clearly envisage that married persons or civil partners may be estranged although the marriage has not been ended by divorce or the civil partnership by dissolution. The tribunal must decide on the facts of each case whether there has been a breakdown in the relationship which formerly held them together.
41. It is, however, correct, in my view, that, as the tribunal said, there has to be more to it than the simple fact of living apart. Regulation 4(b) specifies a disregard which can only apply if the persons concerned are living apart and then disapplies the disregard if they are also estranged or divorced or if there has been a dissolution of their civil partnership. The concept of a breakdown in the relationship implies that something has changed between them other than the fact that they are no longer living in the same place, for which there might be a variety of reasons. It follows that in looking at the facts as a whole, the tribunal will be concerned with what has changed in the relationship.
42. In the present case the tribunal will have to consider whether the relationship has broken down bearing in mind that there is evidence that the mental illness of the claimant’s wife had affected the nature of the relationship between them for a considerable time prior to 2009, when the claimant moved out of the Property and that it was not because of increased difficulties in the relationship that the claimant moved out. This seems to me capable of constituting evidence that the illness of the claimant’s wife had not led to the breakdown of the relationship by 2009, although the nature of the relationship might have been different from that of a conventional matrimonial relationship and although in the case of another married couple the mental illness of one party might understandably lead to the breakdown of the relationship. Equally, the tribunal will have to consider any developments after 2009, and in particular the way in which the claimant described his wife in 2012 in order to determine whether the relationship had broken down by September 2012.
43. Finally, I come to the discrimination issue. Although I think I understand the outline of the case the claimant is seeking to make, I sympathise with the submission of the local authority to the effect that it would benefit from greater particularity. The claimant will have the opportunity at the rehearing to advance this argument with greater detail if he decides to do so, bearing in mind what I have already said about the meaning of “estranged.”
44. For the reasons given above, I allow the appeal and remit the case to the First-tier Tribunal for reconsideration.
(Signed) E. Ovey
Judge of the Upper Tribunal
(Dated) 18th September 2014