CIS/2816/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Southend-on-Sea appeal tribunal dated 29 January 2003 and I substitute my own decision which is that, on her claim for income support made on 11 February 2002, the claimant is entitled to have her housing costs met as though they were “existing housing costs”.

REASONS

2.	This appeal raises a short point on the construction of the words “being abandoned” in paragraph 8(3)(b) of Schedule 3 to the Income Support (General) Regulations 1987, as substituted by the Social Security (Income Support and Claims and Payments) Amendment Regulations 1995.  I have been greatly assisted by the written submissions made on the claimant’s behalf by Mr Alan Barber, a welfare rights advisor employed by Martin Nossel & Co, solicitors of Basildon, and by Ms Sue Clapham on behalf of the Secretary of State.  Both representatives have indicated that they do not seek an oral hearing.

3.	The whole of Schedule 3 to the 1987 Regulations was replaced in the substitution made by the 1995 Regulations.  This had the effect of establishing a new regime for the payment of housing costs through income support, but transitional protection was given to “existing housing costs”, as opposed to “new housing costs”.  By paragraph 1(2), “new housing costs” are “housing costs arising under an agreement entered into after 1st October 1995 other than an agreement referred to in the definition of ‘existing housing costs’”.  One important distinction between the treatment of existing housing costs and new housing costs is that, where neither the claimant nor his or her partner is over the age of 60, existing housing costs are usually met in part after eight weeks of entitlement (or deemed entitlement) to income support and in full after twenty-six weeks (see paragraph 6(1)), whereas new housing costs are not usually met at all until after thirty-nine weeks of entitlement (or deemed entitlement), from when they are met in full (see paragraph 8(1)).  However, paragraphs 8(2) and (4) provide:

“(2)	This sub-paragraph applies to a claimant who at the time the claim is made –
(a)	…;
(b)	is detained in custody pending trial or sentence upon conviction; or
(c)	…

(3)	This sub-paragraph applies …. where a person claims income support because of –
(a)	…; or
(b)	being abandoned by his partner,
and where the person’s family includes a child.

(4)	In the case of a claimant to whom sub-paragraph (2) or (3) applies, any new housing costs shall be met as though they were existing housing costs and paragraph 6 applied to them.”

Thus, in cases falling within paragraph 8(2) or (3), housing costs are calculated as though they were existing housing costs, even though they would otherwise be treated as new housing costs because they arise under an agreement entered into after 1 October 1995.

4.	The facts of the present case are not in dispute.  The claimant, her husband and their four children were living together in a house subject to a mortgage taken out in 1999.  On 30 November 2001, the claimant’s husband was arrested in connection with offences against children.  At the time of her claim on 11 February 2002, he was on bail, subject to a condition of residence at an address that was not his home.  He was expecting a custodial sentence.  As a result of the nature of the offences, he and the claimant became estranged, although it appears that at the date of the claim he was still expecting to return home in the future.  On 13 March 2002, he was convicted on his pleas of guilty and was remanded in custody before being sentenced in the following month to five years’ imprisonment.  The claimant started divorce proceedings in August or September 2002 and was divorced on 22 January 2003.

5.	The Secretary of State decided that the claimant was not entitled to have her housing costs included in her applicable amount for the purpose of calculating entitlement to income support because they were new housing costs, she had not been abandoned so as to fall within paragraph 8(3)(b) and she could not be treated as having been entitled to income support for thirty-nine weeks.  The decision-maker expressly relied on R(IS) 12/99 in which it was held that a woman separated from her husband by the latter’s imprisonment had not been “abandoned” for the purposes of paragraph 8(3)(b).  The claimant appealed, relying on R(IS) 2/01, in which it was held that a woman compelled to leave the matrimonial home through the violent behaviour of her husband had been abandoned.  She told the tribunal that, had she found out before the police that her husband was committing offences against children, she would have excluded him from their home, or would herself have left with the children, because she would have feared for the safety of the children.  The tribunal dismissed the appeal, relying on R(IS) 12/99 and distinguishing R(IS) 2/01.  The claimant now appeals with the leave of a full-time chairman.  The Secretary of State opposes the appeal.

6.	The central part of the tribunal’s reasoning was –

“8.	However, the tribunal considered – in line with the decision in R(IS) 12/99 – that [the claimant’s husband’s] separation from his then family was under order of law and did not mean either that he would be abdicating responsibility to his wife and children, or that the Appellant had constructively abandoned him.  He had not deliberately withdrawn his society and financial support from the Appellant.  Nor did the tribunal accept that he facts of this case were similar to the facts in R(IS) 2/01, in which case the claimant had had little option than to leave the matrimonial family home because of her partner’s violence.  On the contrary, [the claimant] did not have to take any step to ‘abandon’ (constructively or otherwise) her husband, for her own and the children’s safety, as the police and the courts took sufficient action to appropriately remove a need for her to take such a step.  The tribunal also noted document 51 in the papers, which showed that the Appellant then stated, on 21/2/02, as part of her IS claim that [her husband] did intend to return to the family home in the future.”

7.	Mr Barber distinguishes the present case from R(IS) 12/99 on the ground that the nature of the offences required the separation in this case whereas in R(IS) 12/99 the claimant’s husband had been on unconditional bail until sentenced.  Ms Clapham submits that R(IS) 12/99 is not distinguishable because, until the police arrested the claimant’s husband, the claimant had no reason to suspect that he was committing offences and so would neither have considered leaving the family home or requested him to leave.  

8.	I agree with the tribunal that the fact that the claimant’s husband was required by a court to live away from her address did not of itself mean that he had abandoned her.  That follows from R(IS) 12/99 and also from paragraph 8(2)(b), which would be unnecessary if a remand in custody was equivalent to abandonment.  The feature of the present case which Mr Barber is right to say distinguishes it from R(IS) 12/99 is the nature of the offences, because they inevitably made it impossible for the claimant’s husband to live with her and the children and, moreover, were extremely likely to make her regard it as intolerable to live with him again.  I can see no difference between a woman compelled to leave a partner because of his violence and a woman compelled to leave a partner (or to require him to leave her) because it is not safe for him to live in the same household as her children.  In both cases, the behaviour of the partner has caused the separation and he may be regarded as being guilty of constructive desertion.  Thus the present case is similar to R(IS) 2/01. The answer to Ms Clapham’s argument is that it leads only to the conclusion that the claimant had not been abandoned until her husband’s arrest.  The question for the tribunal, however, was whether she had been abandoned after his arrest.  

9.	Ms Clapham supports the tribunal’s view that the present case is distinguishable from R(IS) 2/01 because the claimant in the present case was not in fact compelled to leave her husband or to require him to leave the matrimonial home as the court’s order protected her and the children without her having to take those steps.  I do not accept that that is a material distinction.  

10.	It seems to me to be important to consider what the position would have been if the court had not imposed the bail condition.  If, as has been presumed, the court imposed a residence condition at an address away from the claimant’s husband’s home at the request of the prosecution in order to protect his children, it is reasonable to infer that the local child protection agencies would have taken action to remove the children from the claimant’s care had she contemplated allowing her husband to live with her.  It is quite plain from her evidence to the tribunal that she would not have allowed her children to be put at risk or to be taken from her and therefore she would have been compelled either to leave the matrimonial home or to take steps to have her husband excluded from it.  Thus, her husband’s behaviour would have amounted to constructive desertion.

11.	In my judgment, the tribunal erred in holding that there could not be constructive desertion merely because the claimant was relieved of the necessity of taking action by the order of the court.  The question that should have been asked is whether the husband’s behaviour had made the separation essential irrespective of the order of the court.

12.	I can substitute my own decision for that of the tribunal.  I accept that the claimant’s husband may, at the date of the claim, have expected to return home in the future.  There is no evidence that she expected him to return home, but her position may have been equivocal.  It is not difficult to imagine how reluctant the claimant must have been to accept her husband’s guilt before she became aware of the evidence against him.  However, if, as I have held, it is relevant to consider what the position would have been in the absence of the court order, it must be borne in mind that the claimant would have been confronted with the child protection agencies’ case and would have needed to come to terms with the position more quickly than she did.  She would, in effect, have been placed in the same position as she would have been in had she found out about the offences before the police did.  I have no reason to doubt that she would have taken the action that she told the tribunal she would have taken had she made the discovery.  Either she would have obliged her husband to leave the matrimonial home or she herself would have left.  One or other of those courses of action would have been forced upon her

13.	In my judgment, therefore, the claimant had, at the date of her claim, been abandoned by her husband for the purposes of paragraph 8(3)(b) of Schedule 3 to the 1987 Regulations and she was entitled, by virtue of paragraph 8(4), to have her housing costs treated as though they were existing housing costs.

	(Signed)	MARK ROWLAND
		Commissioner
		23 March 2004