Commissioner's file:	CIS/317/1994

Social Security Act 1986 

Social Security Administration Act 1992

Appeal from decision of Social Security appeal Tribunal on a question of law

Decision of the Social Security Commissioner 

1.	I allow the claimant's appeal against the decision of the social security appeal tribunal dated 17 December 1993 as that decision is erroneous in law and I set it aside.  I remit the case for re-hearing and re-determination, in accordance with the directions in this decision, to an entirely differently constituted social security appeal tribunal: Social Security Administration Act 1992 section 23. 

2.	This is an appeal to the Commissioner by the claimant, a woman born on 25 May 1967.  The appeal is against the unanimous decision of a Social Security Appeal Tribunal dated 17 December 1993 which dismissed the claimant's appeal from a decision of the Adjudication Officer issued on 6 August 1993 as follows,

“[The claimant] is not entitled to Income Support from 8 July 1993.  This is because she is deemed to be ‘living together’ with [Mr M] as husband and wife and [Mr M] is engaged in remunerative work.” 

That decision was given in response to the claimant's initial claim for income support.

3.	On the direction of another Commissioner, the appeal was the subject of an oral hearing on 13 July 1995 which took place before me.  The claimant was not present but was represented by Mr S Wright of the Free Representation Unit.  the adjudication officer was represented by Mr L Scoon of the Office of the Solicitor to the Department of Health and Social Security.  I am indebted to Mr Wright and Mr Scoon for their assistance to me at the hearing.

4.	The hearing in this case results from a direction of Commissioner Rice made on 15 February 1995 as follows,

“I am concerned with the question of where the burden of proof lies in cases where it is alleged that a claimant and a man to whom she is not married are living together as man and wife.  Where an award of Income Support has already been made, and it comes to light that from a specific date the claimant is living with someone as his wife, and a review is sought, the burden will clearly fall on the party seeking to review, i.e. the adjudication officer. But where no award has been made, and the ‘living together question’ becomes an issue, on the outcome of which entitlement to benefit would depend - and this would appear to be the case here - is the onus on the claimant to establish the negative proposition that she is not living with a man, to whom she is not married, as his wife?  For she has to show her earnings are sufficiently low to qualify for any benefit  and this involves the inclusion of any partner’s earnings.  She has therefore, it would seem to me,  to show that there are no earnings of anyone else to be included with her own on the basis that he is her ‘partner’.”

5.	This question arises from the fact that in their reasons for decision the tribunal said,

“the Tribunal found there was a certain conflict of evidence in the case .. all in all, the Tribunal found that [the claimant] had not discharged the burden of proof upon her to show that she was not living as a married couple with [Mr M] and accordingly felt they could not award her Income Support from the date of claim i.e. 8.7.93.”

6.	The claimant's grounds of application for leave state on this point,

“the Tribunal erred in that it misdirected itself upon the law namely: .. if the department maintains that the claimant is not entitled to Income Support under Section  124(1)(c) of the Social Security Contributions and Benefits Act 1992 due to being a member of an unmarried couple, the other member being engaged in remunerative work, it is upon the department to show on the balance of probabilities that the claimant is not entitled.  No legal or evidential burden lies upon the claimant to prove anything and yet the Tribunal decided the case .. on the basis that the claimant had not discharged the burden of proof upon her to show that she was not living as a married couple with [Mr M].  it is the claimant's contention that had the Tribunal properly directed itself it could not have come to the decision that it disclose.”

7.	I should say at this point that there was in my view evidence before the tribunal on which it could have come to the conclusion that it did.  Equally, however, I consider that the tribunal did err in law in stating the onus of proof in the way that it did.  To that extent I do not accept paragraph 16 of the adjudication officer’s written submission dated 6 July 1994 “.. that the tribunal did not err in law in placing the burden of proof on the claimant in this case”.  Nevertheless, I accept the statement in paragraph 16 by the adjudication officer that “.. R(SB) 12/83 and R(I) 1/71 (paragraph 11), that on a new claim, it is for the claimant to show on balance of probabilities that she satisfies the conditions for an award.”

8.	In a detailed written submission by Mr Wright, dated 11 July 1995, and amplified by him at the hearing before me, it is submitted that, on a true construction of the legislation i.e. sections 124(1), 134(1), 136(1) and 137(1) of the Social Security Contributions and Benefits Act 1992,the adjudication officer must show that a couple are living together as husband and wife and that it is wrong to place “the burden of proving a negative on the claimant” (paragraph 24 of Mr Wright’s submission referring to Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation Ltd [1942] A.C. 154 at pages 174, 194 and 202).  For the reasons given below, I do not accept that submission by Mr Wright.

9.	Mr Wright cited a passage at page 25 of the 1994 edition of Mesher and Wood on “Income Related Benefits: The Legislation” as follows,

“what these points come to [the criteria for determining whether a couple are living together as husband and wife] is that the so called ‘objective facts’ of a relationship may be capable of being interpreted either way.  This, then, leaves the authority in difficulty, although it is clear that the burden of proof, since the rule operates as a disqualification, is on the DSS.” (my underlining).

10.	However, although living together as husband and wife does operate as a disqualification for widow’s benefit (Social Security Contributions and Benefits Act 1992 section 38(3)(c)), it does not in my view so operate for income support.  What is involved here is the whole gamut of facts leading to the question of whether a particular claimant is entitled to Income Support by reason of his or her financial position and if so its amount.  It should be borne in mind that regulation 7(1) of the Social Security (Claims and Payments) Regulations 1987 provides.

“7(1) every person who makes a claim for benefit shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of it, as may be required by the Secretary of State and shall do so within one month of being required to do so within one month of being required to do so or such longer period as the Secretary of State may consider reasonable.” (my underlining).

11.	As much of the detailed information necessary to determine whether the criteria for establishing whether or not there is a husband and wife relationship between the claimant and another person is naturally within the knowledge of the claimant, it is my view that it is up to the claimant to provide that information under regulation 7(1).  I consider that to speak of “onus of proof” may well be misleading.  A question of where an onus of proof lies normally arises only where it is not possible to obtain all the facts and ultimately the matter has to be resolved by asking where the onus of proof lies.  But there is no intrinsic reason why all the relevant facts of a relationship between a man and a woman should not be ascertained.  I do not consider therefore that the question of onus of proof really arises in these cases.  Naturally where it is apparent (as it was here from the claim form) that a woman claimant is living in the same household as a man, the Secretary of State could perfectly reasonably ask for detailed information from the claimant as to the circumstances of that relationship in order to satisfy himself whether or not the woman and the man were living together as husband and wife.  A failure by the claimant to supply that information could lead to an adverse inference being drawn.

12.	The criteria for the relationship have been set out in a number of cases, e.g. R(SB) 17/81 and R(SB) 35/85 (which was not cited to the original tribunal in this case), and the new tribunal will need to have regard to them.  The claimant and Mr M, if he is willing to do so, should give evidence to the new tribunal and the tribunal should then make its findings of fact on that evidence.  It should not impose some kind of onus of proof on the claimant to show a negative, namely that she was or is not living as husband and wife with Mr M.  the tribunal should simply look at the evidence objectively and come to its conclusion.  Equally, however, the duty is upon the claimant to provide all necessary information to the Secretary of State in order for the claim properly to be determined. The new tribunal will need to make findings of fact on the criteria in the above cited cases.  If they conclude that the claimant is or was at any material time living in a husband and wife relationship with Mr M, then they will need to ascertain whether Mr M’s earnings were such as to preclude entitlement to Income Support under section 124(1)(c) of the Social Security Contributions and Benefits Act 1992 and regulation 5 of the Income Support (General) Regulations  1987 S.I. 1987 No. 1967.

13.	The new tribunal will also need to have regard to the guidance given by Mr Justice Woolf in Crake v. Supplementary Benefits Commission [1982] 1 All E.R.498 at pages 501D - 502F-H, cited to me by Mr Scoon at the hearing.  In the latter passage Woolf J. said as follows,

“.. what Parliament had in mind was no more than what I have indicated earlier in my judgement, namely that where a couple living together as husband and wife, they shall not be in any different position whether they are married or not; and once one has established a relationship between the couple which is properly regarded as one between husband and wife in fact, then the aggregation etc. of the earnings of the man and woman applies, and of course thereafter it will continue to apply until that relationship ceases. 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 [aggregation etc.] will still continue to apply.  This would be the position even though [an adjudication authority] would have come to a different conclusion as to whether [aggregation etc.] applied, if at the outset all that existed was that state of affairs.”

14.	In the present case there had been a time when the claimant had undoubtedly been living in a husband and wife relationship with Mr M.  if thereafter all that occurred were changes in their relationship which could be characteristic of changes in the relationship of a married couple without the marriage being regarded as having come to an end, then the tribunal may wish to find that even at the date of claim in this case the claimant was still living in a husband and wife relationship with Mr M.  but I reiterate that there is no question of onus being upon the claimant to show that she was not continuing to live in such a relationship.  The tribunal must simply look at all the facts (including the fact that at one time the claimant and Mr M had a husband and wife relationship) and then come to their own conclusion on the totality of that evidence.

(signed)	M.J. Goodman
Commissioner

(Date)	27 September 1995