[2007] UKSSCSC CPC_683_2007 (17 May 2007)
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14 of the Social Security Act 1998:
The decision of the Eastbourne appeal tribunal under reference U/45/171/2006/00423, held on 22 August 2006, is not erroneous in point of law. 

REASONS
2.	This is an appeal by the claimant brought with the leave of a district chairman. The Secretary of State has not supported the appeal. Case management directions were given by Mr Commissioner Pacey, but the case has come before me for decision. 
The issue and how it arises
3.	The issue in this case is whether the claimant is estranged from his wife. If he is estranged, his share of the value of the former matrimonial home falls to be taken into account as part of his capital for the purposes of state pension credit. If he is not estranged, that share falls to be disregarded.
4.	The state pension credit was introduced by the State Pension Credit Act 2002. The guarantee credit is essentially an income-related benefit. However, a claimant’s capital may also be relevant. This is because section 15(2) provides: ‘Regulations may provide that a person’s capital shall be deemed to yield him income at a prescribed rate.’ Regulation 15(6)-(8) of the State Pension Credit Regulations 2002 is made under that authority. However, capital listed in Schedule V to those Regulations is disregarded. The relevant disregard is paragraph 4:
‘Any premises occupied in whole or in part-
…
(b)	by the former partner of the claimant as his home; but this provision shall not apply where the former partner is a person from whom the claimant is estranged or divorced …’
5.	‘Partner’ is defined in regulation 1(3) as ‘a member of a couple’. ‘Couple’ is defined in both section 17(1) and regulation 1(2). For present purposes, it includes:
‘(a)	a man and a woman who are married to each other and are members of the same household’.
The facts
6.	The underlying facts of the case are not in dispute. It is convenient to quote the tribunal’s findings.
‘[The claimant] who was aged 71 at the decision date has been living apart from his wife for 11 years. She remains in [the property], a freehold property registered in the name of [the claimant] and not subject to a mortgage. [The claimant] told the tribunal that the separation had occurred after his admitted affair with a younger woman after which his wife told him to leave. He has not returned, but no divorce or separation proceedings have been instituted.
‘In oral evidence [the claimant] said that the marriage had had its ups and downs and he had consulted a solicitor about divorce 20 years ago. He said that since the affair he had discussed the possibility of returning with his wife on several occasions but in his own words “I can tell by the look on her face that there is no way she can have me back”. Their son who lives near [his mother] has also raised the question and met with the same response.
‘[The wife] is in poor health and [the claimant] told the tribunal that he feels a sense of responsibility for her. In this connection he would never sell the former matrimonial home and added that he would not go back there as too much water had gone under the bridge. He has no knowledge of his wife’s financial position and has been told that this is none of his business.’
7.	The claimant’s representative has accepted that the property is worth £205,000 and that his share (valued under regulation 23) is worth £50,000. 
The decisions of the Secretary of State and the tribunal 
8.	The Secretary of State decided that the value of the capital represented by the claimant’s share in the property was not to be disregarded, because the couple were estranged. The tribunal confirmed this decision. It applied the reported decision of Mr Commissioner Rowland in R(IS) 5/05 and my decision in CH/0117/2005 and concluded:
‘Applying these principles to the facts of this appeal the tribunal finds that the circumstances of the separation 11 years ago following earlier consideration of a divorce and [the wife’s] consistent refusal to resume co-habitation which [the claimant] himself acknowledges to be no longer possible outweighs the sense of continued responsibility that he feels. The regular performance of transport and odd jobs for [his wife] cannot be considered to constitute in themselves a continuation of the marital relationship particular bearing in mind the comments made by [his wife] concerning finance and cohabitation.’
Did the tribunal go wrong in law?
9.	No, it did not. 
10.	The claimant and his wife were a couple until he moved out in that they were married and living in the same household. As such they were partners and are now former partners. They are not divorced. The issue is whether they are estranged. 
11.	One issue is whether there is any inconsistency between my decision in CH/0117/2005 and Mr Rowland’s decision in R(IS) 5/05. I do not consider that there is. I discussed Mr Rowland’s decision by its unreported number of CIS/1846/2004. In so far as there is any apparent difference, it is accounted for by the facts of the cases and the different emphasis we gave in explaining our decisions. I would put it like this: Mr Rowland was explaining how to travel from London, whereas I was explaining how to travel from Cardiff, but we were both giving directions to Swindon. Mrs Commissioner Jupp analysed a number of decisions on estrangement in CIS/4096/2005 and she put the same point in more conventional legal language: 
‘21.	Clearly, each Commissioner has approached the word “estranged” by giving it its ordinary meaning within the context before him or her, and some of the emphases appropriate for the individual case have been lifted to the status of general propositions.  There appears to be little divergence of principle between them.’
I respectfully agree with that statement. 
12.	The key issue raised by the claimant’s representative on the appeal is that the state of the couple’s continuing relations is inconsistent with their being estranged. The tribunal accepted the claimant’s continuing feelings of responsibility towards his wife. The representative has referred to further evidence not mentioned by the tribunal. I have taken that into account also, but I consider that the tribunal correctly analysed the significance of the evidence and correctly applied paragraph 4(b) of Schedule V. 
13.	It seems to me that the proper analysis of the relationship between the claimant and his wife is this. They remained married and have no plans to divorce. He would like to resume living with her, but she is opposed to this idea. The reality is that they will never resume living as husband and wife; the claimant accepts that. However, they are not hostile to each other on a personal level and he feels a continuing responsibility towards her. This leads him to help her when she cannot manage on account of her ill health. In other words, there is no emotional disharmony between the claimant and his wife as adults, but there is emotional disharmony between them as partners. That is a key distinction, because the language used in the legislation is attempting to identify those cases in which the relationship between the parties is such that it is appropriate for their finances to be treated separately for the purposes of benefit entitlement. Once the facts of the case are set out, they seem to me to allow of only one interpretation, which is that the couple are estranged.
14.	 In her final observations, the claimant’s representative has relied on CIS/2660/1998. That was a decision of Miss Commissioner Fellner, who sadly died last month. In the context of payments from the social fund in respect of funeral expenses, she wrote that:
‘10.	I further hold that although the legislative test is whether a person not in receipt of a qualifying benefit was estranged “from” the deceased, so that the matter is to be looked at from that person’s point of view rather than from the deceased’s, [my italics] the adjudication officer has some grounds for submitting that both sides should be looked at.  A young person may properly be held to be estranged from his parents where they have thrown him out, even though he may very much wish they had not.  Even if the tribunal did look at what the mother did for her sons I am not satisfied that this was an illegitimate consideration.’
That is undoubtedly correct as it follows from the wording of the legislation. It applies to state pension credit as much as to funeral expenses. The representative has presented that as authority that the issue is how the claimant feels about his relationship with his wife. I do not accept that Miss Fellner was saying that. Even if she was, it does not undermine the tribunal’s analysis in this case. From the claimant’s point of view, he and his wife are estranged as partners and as a couple. He accepts that. He may feel a responsibility towards her and he might hope that things could be different, but a person’s feelings cannot change objective facts.
Conclusion 
15.	I dismiss the appeal. 

Signed on original
on 17 May 2007	Edward Jacobs
Commissioner