THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CIS/2900/98  

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

Commissioner: C Fellner

CF									         CIS/2900/98

1.	This appeal, brought with leave of a Commissioner, fails.  The decision of the Social Security Appeal Tribunal on 26 3 98 was not erroneous in point of law, for the reasons given below.

2.	The appellant, born on 8 10 34, receives highest rate care component and higher rate mobility component of disability living allowance, following a serious operation in 1995.  He is still married to his wife, but the parties separated in 1993 and she obtained her own tenancy at another address, the appellant remaining in the former matrimonial home.  This is jointly owned by husband and wife, and the mortgage is also in joint names.  The furniture is jointly owned.  

3.	There was some limited contact between the parties during the separation, because of their daughter and grandchild.  This contact increased with the deterioration in the appellant’s health, and by early 1995 his wife visited on a daily basis. In May 1995, following discussions with social workers and doctors, the appellant’s wife gave up her tenancy and, after a brief stay with her daughter, moved back to the former matrimonial home, purely to provide care for her husband and allow him to remain at home.  She continues to do this.

4.	She performs all domestic tasks.  The appellant regards himself as responsible for the mortgage and household bills, the weekly shopping bill is shared.  

5.	The facts in the three preceding paragraphs were established by a visiting officer in 1995, but they have been agreed by the appellant (and his wife) for the purposes of the present appeal (page 51); only the interpretation of them by the adjudication officer and the tribunal is contested.

6.	The appellant receives incapacity benefit, a war pension and the disability living allowance mentioned above.  It seems that until April/May 1997 he also received income support.  His wife has a retirement pension, and continued to claim and be awarded income support in her own right after she moved back.  This was, according to the submissions to the tribunal, because the adjudication officer then concerned applied the tests in R(SB)35/85 applicable to an unmarried couple, which take into account the motivation for a domestic arrangement, eg where a person acts purely as a carer.  The appellant states that at the time his wife moved back, all concerned accepted that the couple lived separate lives.

7.	The appellant claimed income support on 23 9 97 with a view, his representative says, to obtaining severe disability premium.  Although, he mentioned his wife as his carer, he did not declare her as his partner (despite the note on the first page of the form which explains “partner” as “a person you are married to” or “a person you live with as if you were married to them”).  The adjudication officer determined that the appellant and his wife were a married couple under s137(1) of the Social Security Contributions and Benefits 1992 (“a man and a woman who are married to each other and are members of the same household”) and therefore a “family” (which means, inter alia, “a married...couple”), and therefore their income was to be aggregated under s136 and exceeded their “applicable amount” as a couple.  The appellant was not entitled to income support.  Severe disability premium (SDP) could not be paid as the appellant had a “partner” (under regulation 2(1) of the Income Support (General) Regulations, the other member of a “married couple”) who was not herself relevantly disabled (paragraph 13(2)(b) of Schedule 2 to the Regulations).

8.	There was an appeal formulated by a representative, who argued that the couple should not be treated as living together so as to disentitle the appellant to SDP through having a “partner”.  The appellant had no-one living in his household and his wife was receiving income support in her own right.  They jointly owned the property where they lived, and (I apprehend this is what the representative meant) the wife should be excepted from the definition of “non-dependant” under regulation 3(2B)(a)(i) of the Income Support Regulations, so that the appellant would not be excluded from SDP under paragraph 13(2)(a)(ii) of Schedule 2 to those regulations.

9.	When preparing the appeal submissions, the appeals officer asked the tribunal, in effect, to decide only whether or not the appellant and his wife were a “married couple” whose income and applicable amounts should be aggregated under ss135, 136 and 137 of the 1992 Act.  I am not clear why that should have been so, since the original adjudication officer had already trodden this path; but since a decision on this question would effectively determine the SDP question, the officer may simply have wished to save time.
10.	The appellant (by his wife who signed the form) originally requested an oral hearing.  However, by a fax dated 25 3 98 the representative stated that neither the appellant nor his wife would be attending, and would be content with a paper determination.  He himself apologised for not attending either, because of office commitments imposed on him by his management committee.  He enclosed a comprehensive submission, expanding what he had already said in the appeal letter and arguing that the decisions on unmarried couples were relevant to the present couple’s intentions.  He expressly agreed the facts as established in 1995, but made the bare assertion  that the parties “lived separately”.  No extra evidence as to actual domestic arrangements was offered. CIS/72/94 was cited to show that even a married couple could maintain separate households within the same house.  No copy of this unreported decision was supplied.

11.	The tribunal proceeded with the hearing (entirely properly in view of the statement that no-one would be attending and the parties would be content with a paper determination), and recorded that the appellant agreed the facts found but contended for a different interpretation.  It found that the parties were a married couple who jointly owned the property subject to a mortgage which they paid jointly, that they shared household expenses and that the appellant’s wife did the household chores.  It found there was no evidence that the parties had set up separate households, and that there was only one household.  It decided, in accordance with the appeals officer’s amended submission, that the parties were a “Married Couple” whose income and applicable amounts were to be aggregated.   

12.	In the appeal, the appellant reiterated that his wife had moved back only because he “needed a carer in the home”; other agencies had accepted that he and his wife were living separate lives.  The representative criticised the tribunal for not making findings of fact about the parties’ intentions, or about their sexual relationship, the nature and stability of their relationship, or how they shared household expenses.  It was contended that the only factor relied on was that of marriage, and that relevant authorities on unmarried couples had been ignored, as well as CIS/72/94 about a married couple maintaining separate households in the same house.

13.	The adjudication officer now concerned with this appeal does not support it.  He submits that since the parties are married, the only way they could escape the definition of a “married couple” would be if they were not part of the same household.  The tribunal found there was no evidence that separate households had been set up, and this was consistent with the evidence of the wife having moved back to care for her husband.  While this purpose could be significant in the case of an unmarried couple, it was not relevant in the case of a married couple.  He distinguished CIS/72/94 on the ground that it concerned an estranged couple who lived separate lives in the same house and had effectively severed the tie between them, which was in the present appeal being maintained by the caring which was taking place.  

14.	The representative argued, in effect, that neither the tribunal nor the adjudication officer now concerned had adequately taken into account the significance, as mentioned in CIS/72/94, of the parties’ “attitude of mind”, ie an acceptance by at least one party that the marriage was at an end, and that the tribunal had paid undue attention to the legal liabilities under the joint mortgage.  The appellant’s wife’s attitude of mind was consistent with that of a nurse or home carer, not a wife.  

15.	The adjudication officer responded that “attitude of mind” as used in CIS/72/94 was not decisive of whether or not there were two households, as this would make the test for a married couple the same as for an unmarried couple.  Estrangement could be suggestive of separate households, but in the present case the fact of caring outweighed the parties “attitude of mind”.

16.	The representative’s reply, to which the adjudication officer made no further comment, asserted that “the definition of ‘same household’ is based on a couple’s ‘attitude of mind’ which is a phrase wide enough to include a carer-invalid relationship”, and this “crucial” attitude had not been considered by the tribunal.

17.	I admire the representative’s persistence and ingenuity, but my conclusion is that the tribunal did not err in its approach to the case, nor in its dealing with the evidence.  First of all, the only tests in determining whether a man and a woman constitute a “married couple” under s137(1) are (a) whether they are married, and (b) whether they are members of the same household.    Here the parties are undoubtedly still married.  The only question is whether they are members of the same household.

18.	I agree with the adjudication officer that the cases on unmarried couples (such as R(SB)35/85), where the parties’ intentions in starting to live together are crucial, are not relevant to a couple who are married.  The same applies to the questions about sexual relationship, stability, and sharing of expenses on which the representative criticises the tribunal for failing to make findings of fact (how it was supposed to explore them in a hearing in absence by consent and without any evidence other than the agreed facts already in the papers he does not explain.  Nor does he explain, in the light of his submissions based on CIS/72/94 that there can be separate households even where a husband is maintaining his wife, what difference it would have made if the tribunal had expressly found that the appellant was paying a greater share of expenses).  It is also worth noting that the unmarried couple cases were ones where the existence of a shared household was not in dispute.  In Robson v Secretary of State for Social Services [1982] 3 FLR 232 Webster J said there were three situations to be considered when a couple are living as members of the same household: they may be living together being husband and wife, they may be living together as husband and wife, or they may be living together other than as husband and wife.  Where the two persons living together are not husband and wife, the other possibilities had to be considered, the implication being that where they are living together being husband and wife, no further inquiry is necessary.

19.	The present appeal therefore turned on whether or not the husband and wife were members of the same household.  As Mr Commissioner Rowland said in CIS/72/94, this depends very much on the particular circumstances of the case. The extent to which assistance can be derived from other decisions varies according to the degree of similarity between the facts behind those decisions and the facts of the case under consideration.  The Commissioner said “A joint household is shown by the way people actually live, coupled with the necessary attitude of mind (ie an acceptance by at least one party that the marriage in truth is at an end - see Santos v Santos [1972] Fam 247)”.  It is therefore plain that the facts of people’s daily living arrangements are at least as important as their “attitude of mind”.  In the present case, the agreed facts set out in paragraphs 2-4 above were sufficient, in my view, to discharge the adjudication officer’s initial burden of proving a shared household and to shift to the appellant the burden of proving otherwise.  And so far as objective facts of daily living arrangements were concerned, apart from the bare assertion that the parties lived separately and maintained separate households under the same roof, none were brought to the tribunal’s attention (nor have they been brought to mine).  Against this, there was the appellant’s assertion that his wife moved back because he “needed a carer in the home”.  Further, receiving the highest rate of DLA care component means that the appellant must reasonably require frequent attention throughout the day in connection with his bodily functions and/or continual supervision throughout the day in order to avoid substantial danger to him or to others, and by night he must reasonably require prolonged or repeated attention in connection with his bodily functions and/or someone to be awake for prolonged periods or at frequent intervals for the purpose of watching over him in order to avoid substantial danger to him or to others (Social Security Contributions and Benefits Act 1992, s72(1)(b)(i) and (ii) and (c)(i) and (ii)).  This does not support the assertion of separate households in the objective sense.  

20.	In CIS/72/94, on the other hand, the only thing the wife was still doing for the husband was wash his shirts (in order to stop him running up electricity bills by using the washing machine for one shirt).  He did his own catering, took the rest of his washing home to his mother, and sometimes at least contributed nothing to household expenses.  The wife was doing everything she could to obtain separate accommodation for herself and the children.    

21.	The present tribunal expressly found there was no evidence of separate households having been set up, and so far as objective facts are concerned, it was entitled so to find.  The Commissioner in CIS/72/94 warned against placing too much weight on joint legal liabilities, a factor which the tribunal did emphasise; but he said such liabilities might throw some light on the parties’ attitudes and stressed that on the facts of his appeal the relationship had only recently broken down and the appellant was taking active steps to secure separate housing.  In the present case, the parties had done nothing to sort out their respective liabilities even after 3 years separation.     

22.	How much weight should be given to “attitude of mind” in determining whether there are separate households?.  The Commissioner in CIS/72/94 cited Santos v Santos to support his reference to attitude of mind.  This was an early decision on the new “living apart” grounds introduced by the Divorce Reform Act 1969.  The Court of Appeal said that since people might live apart for all sorts of reasons, like career or imprisonment, without the marriage being over, some mental element of recognition by at least one of the parties that it was over was to be looked for.  Where there were concrete indications of such a mental element (a letter, cohabitation with a third party, reduction or cessation of visits to a spouse in prison), only minimal direct evidence of attitude of mind would be needed; but where proof of attitude of mind depended entirely on the petitioner’s direct evidence it might be undesirable to accept it automatically without checking for indications that her conduct might be consistent with a continuing recognition of the marriage.  What this case was saying was that in interpreting the new provisions, judges should not accept the fact of living apart at as sufficient without assuring themselves that at least one of the parties recognised the marriage to be at an end, but that where evidence of this depended entirely on what the petitioner said, they should scrutinise the surrounding circumstances for any indication that what she was saying might not be supported by other facts.     

23.	In CIS/72/94 the evidence relating to the 3 weeks actually in issue was such as to lead the Commissioner to allow the appellant’s stated belief that the marriage was at an end, coupled with conduct which supported it, to outweigh the relatively slight objective evidence of a shared household.  Other cases where married couples were not found to be members of the same household have concerned couples living in residential care homes, occupying separate rooms or, even though occupying the same room, both suffering from senile dementia such that they did not realise they were husband and wife.  In each case the decision was said to be one for the common sense of the tribunal.  Clearly it cannot be said that attitude of mind is the only, nor even a major, deciding factor.

24.	That being so, I do not consider the tribunal in the present case erred in law in not expressly finding the reason for the wife’s return to have been for caring purposes only.  The record of proceedings showed that it had taken account of the representative’s written submission; but it did not find it persuasive, and nor do I.  The available objective facts pointed to a shared household which was likely to continue while the appellant needed a high level of care, and the parties’ subjective view that the wife’s position was more like that of a professional carer was not found to outweigh those facts.	 	
25.	I realise that this decision bears hardly on a wife who has not troubled, perhaps because it seemed an unnecessary waste of time and money, to get a divorce and then returns home to care for the man to whom she is still married but for whom she may feel no more than would a professional carer.  However, the definition of “married couple” with all it entails can be escaped from only if it is shown on objective facts, as well as subjective attitude, that separate households have been set up.  I agree with the adjudication officer now concerned that if attitude of mind were the only or even the main test of being members of the same household, the position of a married couple, however closely intertwined their domestic arrangements might in fact be, would be no different from that of an unmarried couple.  Parliament has not chosen so to provide.           

						(signed)	Christine Fellner
								Commissioner

								23 June 1999