R(IS) 2/01

Mr. H. Levenson	CIS/1581/1998
6.3.00 	
Housing costs - partner’s behaviour caused claimant to leave the matrimonial home - whether amounts to “abandonment”
The claimant and her husband lived in the matrimonial home, which was purchased with a joint mortgage.  As a result of the husband’s violent behaviour the claimant and her daughter left the matrimonial home. Her husband remained until he moved out on the 27 February 1997. Thereafter the claimant and her daughter returned to the matrimonial home and her husband continued to pay the mortgage until May 1997 when he indicated no further payments would be made. The claimant successfully applied for income support and sought housing costs.  Applying the 39 week waiting period applicable to “new housing costs”, the adjudication officer determined that the claimant was not entitled to housing costs until 21 November 1997.  The claimant appealed contending that she had been abandoned and sought to qualify for earlier payment under the special exception prescribed in paragraph 8(3)(b) of Schedule 3 to the Income Support (General) Regulations 1987. Allowing the appeal, the tribunal found that the claimant had been abandoned as her husband’s behaviour amounted to constructive desertion.  The adjudication officer appealed to the Commissioner.
Held, dismissing the appeal, that:
1.	the claimant had been “constructively abandoned” by her partner  within the meaning of abandonment in paragraph 8(3)(b) of Schedule 3 to the Income Support (General) Regulations 1987;
2.	as it  had been stated in CIS/5177/1997 (*58/98) that the word “abandoned” could be construed in a similar way to “deserted” there was no reason why it should not encompass the concept of constructive abandonment;
3.	where a partner’s behaviour left a claimant with little reasonable option but to leave the matrimonial home this amounted to constructive abandonment.
CIS/5177/1997 (*58/98) was distinguished on its facts. 

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	This appeal by the adjudication officer (subsequently taken over by the Secretary of State) does not succeed.  I confirm the decision made by the social security appeal tribunal on 7 November 1997.  This is to the effect that in respect of her claim for income support treated as having been made on 21 February 1997 the claimant is entitled to housing costs on the basis that she claimed income support because she had been abandoned by her partner within the meaning of paragraph 8(3)(b) of Schedule 3 to the Income Support (General) Regulations 1987.  I remit the matter to the Secretary of State for the calculation and payment of actual entitlement to income support on this basis.
2.	The appeal has arisen because the provisions of Schedule 3 were amended with effect from 2 October 1995. Costs attributable to mortgage arrangements entered into after 1 October 1995 are defined as “new housing costs” in respect of which there is a waiting period of 39 weeks before they can be taken into account for the purposes of income support. Where costs are attributable to mortgage arrangements entered into before 2 October 1995 they are referred to as “existing housing costs” with a relatively brief waiting period before they can be taken into account for the purposes of income support. Where the 39 week waiting period would otherwise apply, paragraph 8(3) provides a special exception whereby the costs can be treated as “existing housing costs”.  Paragraph 8(3) provides as follows:
“8(3)  This sub-paragraph applies subject to sub-paragraph (5) where a person claims income support because of-
(a)	the death of a partner; or
(b)	being abandoned by his partner,
and where the person’s family includes a child.”
Paragraph 8(5) states that paragraph 8(3) shall cease to apply to a person who subsequently becomes one of a couple. There is no evidence in the present case that the claimant subsequently became one of a couple within the relevant period.
3.	These provisions were considered by Mr. Commissioner Howell in CIS/5177/1997 (*58/98). In that case a married couple lived together in the matrimonial home, but the relationship broke down and solicitors for the two parties agreed that the claimant’s husband would leave the matrimonial home and go to live with his parents.  He did so, the claimant claimed income support, and the issue arose as to whether she had been abandoned by her husband within the meaning of paragraph 8(3)(b).  The tribunal had taken the view that her husband had abandoned the claimant six months before the claim for income support by abrogating his financial responsibilities and being cruel to the claimant and her children.  The Commissioner decided that it is not right to read “abandoned” in this context as including a situation where a person in fact goes on living in the household and taking some part in its operation (albeit it minimal).  He also decided that “abandoned” in this context should be construed in a similar way to “deserted” and that the claimant’s husband could not be said to have abandoned her “if as happened here she has willingly suggested that he go and the actual separation is by agreement.”  Although I have found the Commissioner’s decision to be helpful in understanding the background to and structure of the relevant provisions, I do not accept (as has been argued by the Secretary of State in the case before me) that the Commissioner’s decision states anything other than as I have indicated above.
4.	In the case before me the claimant was born in 1970 and lived with her husband in the matrimonial home.  They had a daughter who was born on 
9 September 1995.  The matrimonial home belonged both to the claimant and her husband and was being purchased with the assistance of a joint mortgage of £59,000 taken out on 19 August 1996.  At the date of the claim for income support the current balance outstanding exceeded £56,000.  (At one point in the papers the mortgage is referred to as having been taken out in 1986.  This is a typing error.)  On 11 February 1997 the claimant left her husband and, taking their daughter, went to live rent free in a house owned by her sister and brother in law.  On 21 February 1997 the claimant husband’s moved out of the matrimonial home and on the following day the claimant and her daughter moved back into it.  The claimant’s husband continued to pay the mortgage until May 1997, when he indicated that he would no longer pay it.  The Secretary of State will have to ascertain the precise date from when the husband’s payments stopped meeting the cost of the mortgage.  The tribunal found:
“There being nothing to contradict the evidence of the claimant in this respect, and nothing to make that evidence inherently improbable, the tribunal accepted the claimant’s evidence that she had been driven out of the common home by her husband’s violence, did not return to the common home until her husband had left it, and received no financial support from him following this separation (save to the extent that he paid the mortgage until May).”
These findings have not been challenged at any stage in these proceedings (although the husband might have challenged them in related matrimonial proceedings) and I adopt them for the purposes of my decision.
5.	As I have indicated, the claimant made a claim for income support and this was awarded with effect from 21 February 1997.  However, applying the 39 week rule, the adjudication officer decided that the claimant was not entitled to housing costs until 21 November 1997.  On 20 June 1997 the claimant appealed to the social security appeal tribunal against the decision of the adjudication officer.  The tribunal allowed the appeal. On the basis of the findings of fact to which I have referred above, the tribunal took the view that although the claimant had not been abandoned in the sense that she had been left behind, because it was she who actually left the home initially, the situation was one of constructive desertion:
 “In the tribunal’s view, this is a classic case of a wife being abandoned by her husband in the sense of his behaviour amounting to construction desertion involving her complete withdrawal from a normal marriage state and from his financial responsibilities towards the child and herself”.
6.	On 1 March 1998 the chairman refused the adjudication officer leave to appeal to the social security Commissioner against the decision of the tribunal.  However, leave was granted by Mr. Commissioner Rowland on 9 September 1998.
7.	The adjudication officer argues that a person who leaves another person cannot be regarded as abandoned by that person.  Abandonment involves something being given up or left behind.  In CIS/5177/1997 (*58/98) the Commissioner had stated that the word “abandoned” involves a once and for all departure by the claimant’s partner not only from his responsibilities but also physically from the scene.  “Abandoned” is a stronger word than “deserted” and does not extend to any concept of “constructive desertion”.  If the provision was intended to cover all types of desertion the word “deserted” would have been used instead of the word “abandoned”.  It was conceded that the Commissioner had said that “abandoned” could be construed in a similar way to “deserted”. The adjudication officer also rejected the argument put forward on behalf of the claimant that the meaning of “abandonment” extends to any concept of “financial abandonment”. It is not necessary for me to express any final opinion on this latter point, although I am inclined to agree with the adjudication officer. 
8.	However, if the word “abandoned” should be construed in a similar way to “deserted” then I see no reason why the concept of “abandonment” cannot and does not include the concept of “constructive abandonment”.  It is always better to use the words set out in the legislation, rather than synonyms, but I am sure that what the tribunal really had in mind was a concept of constructive abandonment.  The “constructive” concept is well established and widespread throughout all areas of law.  Not only family law, but also trusts, employment law and even criminal law.  In the present context, if a partner’s behaviour (in this case the husband’s) is such as to leave the claimant with little reasonable option but to leave the matrimonial home, then there has been a constructive abandonment and this means that the claimant has been abandoned within the meaning of paragraph 8(3)(b). No doubt strong and compelling evidence would be required, but in the present case the tribunal was clearly satisfied as to the existence and credibility of such evidence. Unlike the facts in Mr. Commissioner Howell’s case, in the present case I am not saying that abandonment can take place while the parties still live in the same household, or that abandonment can take place as a result of an agreement negotiated by solicitors.  However, in the case such as the one before me I do not see why a partner with a child should be left in any worse position in terms of income support because her violent partner has left her with no reasonable option but to leave, than a woman whose partner just ups and leaves.
9.	For the above reasons this appeal by the adjudication officer does not succeed.

Date: 6 March 2000	          (signed) Mr. H. Levenson
	Commissioner