[2006] UKSSCSC CCS_2332_2006 (22 November 2006)

CCS/2332/2006

DECISION OF THE CHILD SUPPORT COMMISSIONER
  
1.	This is an appeal by the mother (Mrs. R), brought with my permission, against a decision of the Liverpool Appeal Tribunal made on 7 March 2006. For the reasons set out below that decision was in my judgment erroneous in law and I set it aside. In exercise of the power in section 24(3)(b) of the Child Support Act 1991 I make the further finding of fact set out in paragraph 11 below and substitute the following decision for that of the Tribunal: 

Mr. R’s appeal against the decision of the Secretary of State made on 20 August       2004 is dismissed. 

2.	In my previous decision made on 14 December 2005, in which I set aside a previous appeal tribunal’s decision and remitted the matter for redetermination by a new appeal tribunal, I set out the background to this case. 

3.	By the decision now under appeal to me the Tribunal, after a rehearing attended by both Mr. R and Mrs. R, found that Mrs. R did not during October 1999 become a member of Mr R’s household (in which the two children clearly lived) and so allowed Mr. R’s appeal against the Secretary of State’s decision of 20 August 2004 and set that decision aside. 

4.	Mrs. R gave evidence to the Tribunal that at the beginning of October 1999, two days after returning from a holiday which Mr and Mrs. R and the children had taken together in Cyprus in September 1999, she moved back into the home in which Mr. R and the children were living, and that they lived as a family in all respects. She moved all her clothes and personal possessions back into the home. She shared looking after the children and doing normal domestic duties, and they shared household bills. She said in her evidence: “I believed it was for ever.” Mrs. R had previously been living with her mother. 

5.	Mr. R’s evidence, on the other hand, was that Mrs. R did not move into the home after the Cyprus holiday. (He reiterates that in his submission in this appeal, stating: “she never once stayed overnight, She never once cared for the children or cooked a meal or did the weekly shopping or took the children to school or the doctors”.)

6.	The Tribunal accepted Mrs. R’s evidence. It said: 

“It is accepted that Mrs. R moved into the home for a four week period. A “reconciliation” was attempted. On document 9, there is evidence of a phone call from Mr. R to the effect that he and Mrs. R were “reconciled” as from 1 October 1999, and on 28 October 1999 that Mrs. R had left the home. It is unlikely that Mr R would make such phone calls unless Mrs. R had moved in. 

The Tribunal accepted that both Mr and Mrs. R shared domestic duties. Mrs. R’s evidence is accepted.”

7.	However, the Tribunal gave the following reasons for its conclusion that Mrs. R did not become a member of Mr. R’s household: 

“8.	It is necessary to consider what “living in the same household” means. In R(F) 2/81 it was held that living in the same household involves more than a mere transitory presence and involves a settled course of daily living (para 12). The relationship between the parties must be considered, more than the connection with the property – South Northampton DC v Power [1987] 3 All ER 831 at 833. In R(IS) 1/99 it was stated that the essential attribute of the household is the existence of a domestic establishment. 

13.	However, there are significant factors which indicate that the “reconciliation” was transitory. First, the reconciliation in the home lasted only four weeks at the most, and it is likely that towards the end of the period attempts at maintaining a relationship were probably failing. Second, at the beginning of the family holiday in Cyprus, just prior to Mrs. R moving into the home, there was a significant argument. (Neither party alleged that the arrangement to go on holiday was more than an arrangement of convenience, no doubt for the sake of the children.) Thirdly, there had been two previous attempts at reconciliations in 1999, each lasting only two weeks. Both had failed. Fourthly, although a joint bank account was opened, no money was ever paid in. 

14.	Taking into account all the facts, the tribunal accepted that “a reconciliation” was no more than an attempt to form a household. The relationship’s unstable background, the length of time of the reconciliation, and the lack of settled domestic or financial arrangements indicated a mere transitory arrangement.” 

8.	I respectfully adopt what Mr. Commissioner Mesher said in para. 14 of R(CS) 8/99:

“The notion of living in a household implies more than a mere transitory presence, as in a friend or relative making a short visit. A person living in the same household as another person is part of that household and so a member of it. Membership of a household is essentially a factual matter, looking to the current arrangements of the domestic establishment. I reject the submissions on behalf of the Secretary of State and the child support officer in so far as they suggested that some particular degree of settled intention about future arrangements or stability of arrangements over a past period was necessary. All that is necessary is that the person is presently living in the household on more than a transitory basis.” 

9.	I doubt whether it is possible to define the significance, in relation to the question whether two or more persons are members of the same household, of the duration or intended duration of their relationship any more precisely than Mr. Commissioner Mesher there did. All will depend on the particular circumstances. The intended duration may, I think, be more significant than the actual duration. For example, if two persons move into a home together, intending to live as husband and wife indefinitely, they will normally, it seems to me, become members of the same household immediately because a domestic establishment is likely to have been formed immediately. That would be so even if, in the event, they only lived together for, say, a week, because (for example) one of them died, or they subsequently decided to separate. The position would be likely to be different in the case of two persons who only intended ever to live together for a week. That is at least partly because it is unlikely that, if the intended period of living together was so short, they would set up anything amounting to a domestic establishment. But it is also because the word “household” does in my judgment carry some connotation of stability and duration, even if that is very difficult to define as a matter of degree. It is not possible even to say that persons must intend to live together for any particular time in order to become members of the same household. 

10.	 In accepting Mrs. R’s evidence the Tribunal was in my view also accepting her evidence (recorded in the Record of Proceedings) that she believed that “it was for ever” (although the Tribunal did not refer to that aspect of her evidence). The Tribunal’s reasons for finding that Mrs. R did not become a member of Mr. H’s household were in effect (1) that there must have been substantial uncertainty about whether the reconciliation would in fact last very long, given the facts of (a) the original breakdown in the relationship (b) the two previous attempted reconciliations which had lasted only about two weeks each and (c) the significant argument at the beginning of the Cyprus holiday (2) that things must have been going wrong at any rate towards the end of the one month period (3) that in the event Mr. R only lived with Mrs. R for about a month and (4) that the fact that no money was paid into the joint bank account indicated a lack of “settled domestic or financial arrangements.” 

11.	In my judgment, however, in agreement with the submission of the Secretary of State supporting this appeal, the facts relied upon by the Tribunal for its conclusion (which I summarised in paragraph 10 above) were not capable, either individually or collectively, of leading to that conclusion, given the other facts which it found in accepting Mrs. R’s evidence. As I have said, the mere fact that they lived together for only about a month is of no significance; a new household can be formed immediately. The fact that there was substantial uncertainty whether the relationship would endure seems to me to be of no significance if the parties’ hope at the time was that it be indefinite and if they in fact set up a domestic establishment on the footing that it would be indefinite. As to the Tribunal’s reliance on the fact that no money was paid into the joint bank account as indicating a lack of “settled domestic or financial arrangements”, the Tribunal accepted that they shared a domestic routine, and that they shared the bills. I do not think that the fact that no money was paid into the joint bank account justified the inference that there was a lack of settled domestic arrangements. Although the Tribunal was justified in inferring that their financial arrangements had not fully developed, in that arrangements for actual use of the joint account had not been put in place, it does not seem to me that that justified a finding that they had not become members of the same household. In my judgment the only reasonable conclusion, given the Tribunal’s acceptance of Mrs R’s evidence, was that they were a family again, and members of the same household, from the moment when Mrs. R moved back in, and I so find.  

12.	I think that some assistance is to be gained by asking from what date it would properly have been considered that Mrs. R had joined the household if the reconciliation had in fact proved permanent. It seems to me that the conclusion would have had to be that she joined the household immediately on moving in. A domestic routine may well be evolving continuously, as may financial arrangements.  A finding that they only became members of the same household at some subsequent time, when the domestic and financial arrangements reached some particular stage of development, would I think have been perverse. 

13.	In paragraphs 9 and 18 of my previous decision I drew attention to the unfortunate consequences which a finding that Mr. and Mrs. R did become members of the same household would involve. (I note that my reference, in the eighth line of para. 18, to the decision of 8 November 2004 should have been a reference to the decision of 8 November 1999). I do not think that I can comment further on those points, and in particular on the possibility of entitlement of Mr. R to compensation. 

	(signed on the original)	Charles Turnbull
		Commissioner
		22 November 2006