THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSG/648/2007

DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1.	I refuse the appeal. I hold that the tribunal did not err in law.

Background

2.	The claimant applied for Bereavement Benefit on the death of her partner of 28 years. In order to qualify for benefit the claimant had to establish a marriage by cohabitation and repute. The decision maker held that the claimant had not established a marriage by cohabitation and repute.

Tribunal 

3.	The tribunal, consisting only of a legal chairman, determined on 31 May 2007 that the claimant had not established a marriage by co-habitation and repute and on request issued a Statement of Reasons.

Appeal to the Commissioner

4.	The claimant was given leave to appeal to the Commissioners.

Delay in issuing decision

5.	There is some criticism in the application for leave appeal to the Commissioner that the chairman did not issue a decision on the day of the hearing, but issued the decision some 8 weeks later. It is said that “Such a lengthy delay must mean that there is a real risk that there has been a breach of the right to a fair trial as given the lack of a clear record of proceedings the Chairman can only have been relying on what must have been by that time an imperfect recollection of what had been said on the day.”

6.	While it is preferable that a decision should be issued on the day, I can well understand in a complex case like the present where a good deal of conflicting evidence had to be considered that a Chairman might well want to take a case away for consideration. This is the norm in most courts and in the Court of Session +/- 3 months is considered the norm for the issue of a decision which a judge has taken away for consideration. Some case taken even longer for the decision to be issued. In these circumstances I reject this criticism, although it might weigh if it can be shown that the Chairman’s assessment of the evidence in the Statement of Reasons was not vouched by the evidence in the file. The Statement of Reasons appears to be a full and detailed consideration of the evidence.

The law

7.	Section 36 of the Social Security Contributions and Benefits Act 1992 provides:

“(1) a person whose spouse dies on or after the appointed day shall be entitled to a bereavement benefit if – [certain conditions are met] 
(2) A bereavement payment shall not be payable to a person if that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse’s death.”

Marriage by co-habitation and repute

8.	The Secretary of State has set out the law applicable to the establishment of marriage by cohabitation and repute in his submissions under reference to CSG/361/20002, CSG/681/2003 [a decision of mine], CSG/194/2004 and CSG/561/2006. I refer in particular to the test set out in paragraph 10 of CSG/361/2002 – 

“10.	The case goes before a freshly constituted tribunal.  It was submitted by Mr Brodie, and not disputed by Miss Macdonald, that the best guidance for the freshly constituted tribunal as to what was required of them was contained in the recent case of Vosilius v Vosilius 2000 SCCR 679.  At page 681 the requirements were, for the purposes of the case he was deciding, identified by the Lord Ordinary as follows:-

‘The requirements are:
(a)	that there must be cohabitation (see Clive, paragraph 05.028);
(b)	that the cohabitation must be as husband and wife (paragraph 05.029);
(c)	that the cohabitation must be in Scotland (paragraph 05.030);
(d)	that the cohabitation must be for a sufficient time (paragraph 05.031);
(e)	that the parties must be reputed to be husband and wife (paragraph 05.032);
(f)	the repute must be sufficiently general (paragraph 05.033); and
(g)	that the parties must be free to marry each other (paragraph 05.036).

In addition, if these requirements are satisfied, two further matters require to be considered, namely (i) whether the presumption of tacit consent which in that event arises has been rebutted, and (ii) at what date the marriage should be declared to have taken place.’

The only caveat to these requirements set out by Mr Brodie were first that it was not necessary for the tribunal to identify a date for the marriage.  That was necessary in his submission as far as the Court was concerned by virtue of s.21 the Marriage (in Scotland) Act 1987.  However, for social security purposes provided the claimant was married at the date of death of the deceased, that was all which was sufficient for the purposes of entitlement to benefit.  With that proposition I agree.  Secondly, in relation to what is said in (e) and (f), the reputation must be in relation to the community in which they live as a whole.  I accept that submission.  I direct the freshly constituted tribunal to make findings in respect of the requirements raised by the Lord Ordinary in Vosilius in the context of what was said by the Tribunal of Commissioners in paragraph 6 of RG2/82 quoted above and with the caveats expressed by Mr Brodie.”

9.	In the present case the critical issues to be established are (e) and (f), but more particularly whether the presumption of tacit consent which arises from cohabitation and repute has been rebutted.

10.	Whether or not the Chairman was right on the question of repute, I am of the opinion that the marriage could not be established by cohabitation and repute, because of the clear evidence given by the claimant of plans to marry in the future. The Secretary of State highlights most of this evidence:

Page 32 – “[The deceased] was always keen to get married for all of our relationship but I felt it was not necessary.2”
Page 51 & 56 – statement by sister – “As far as I knew they planned to marry when [he] retired” – “I know they discussed marriage on several occasions but never got round to setting the date.”
Page 54 – the son stated “My late father always wanted to marry and asked my mother on a few occasions but they never got round to this”
Page 64 – “Surely you’re not suggesting that such close relatives would not know that we were not married, especially as we spoke to them with regard to plans of getting married.”

11.	In Roberts v Walker 1998 SLT 1133 at 1136/7 the Lord Ordinary refused declarator of marriage, in part, because “latterly marriage in the future was contemplated”. In Mackenzie v Scott 1980 SLT (Notes) 9 the Lord Ordinary’s decision was influenced by the fact that the parties contemplated getting married in the future. Similarly in CSG/561/2006 the Commissioner commented at paragraph 22 that “Intention to marry in the future is patently a very important factor that tends to rebut a presumption that the partners already considered themselves to be married.

12.	Against that background I consider that the Chairman was entitled to hold that marriage had not been established because of the future intention to marry. This future intention rebuts the presumption that arises from cohabitation and repute. Finding (vi) is that “The [claimant] and her late partner discussed marriage as recently as the last holiday together before his death.” – this is born out by the claimant’s letter at page 140 where she wrote “It was always out intention to be married, and we were planning for this on our next holiday together.” In paragraph 7 the Chairman says:

“As far as their own situation is concerned, the evidence from the appellant was that they had discussed marriage on a number of occasions but had never got round to it.  They were on holiday together in November 2005 and marriage was discussed again at that time and it was intended that they would go through a wedding ceremony.  The implication of this is clearly that the appellant and her late partner did not perceive themselves as a married couple but perceived themselves as a couple living together as husband and wife and it was noted that at document 52 which was the statement by [the appellant’s sister], that she stated that the appellant’s late husband would introduce her as his ‘other half’ and state that ‘One day she would make an honest man of him’.  This is a phrase often used by unmarried couples when referring to getting married.  I am satisfied that despite wearing wedding rings, which is more of a social convention than evidence of considering themselves married, that the appellant and her husband have taken no steps to marry despite the fact that they had talked about it and were free to marry.  They clearly were happy to continue as they were as an unmarried couple living together.”

13.	It is for the Chairman to assess the evidence and reach a conclusion on that evidence. I cannot interfere with that assessment unless it can be said that no chairman properly instructed could have reached that decision on the evidence before him. Even if I was inclined to reach a different conclusion, which I am not in the present case, I could not interfere with the Chairman’s conclusion. I therefore hold that the Chairman was entitled to reach the conclusion that he did in paragraph 7 that the future intention to marry rebutted any presumption of tacit consent. I note the explanation given in the grounds of appeal at paragraph 7 and understand that this was explained to the Chairman as well – see page 193. Clearly the Chairman has rejected this explanation and that was a conclusion he was entitled to reach on the evidence before him, particularly as he saw and heard the claimant give evidence.

14.	With regard to cohabitation and repute, similarly it was for the Chairman to assess the evidence before him particularly where there was contradictory evidence from the claimant – see paragraph 8 where he refers to the statement in document 35 that “Our work colleagues knew the situation that we lived together and that we were a couple. They knew I was not married” and that this was contrary to the oral evidence given by the claimant. It was for the Chairman to make a judgement as to which evidence to accept and I cannot interfere with that judgement unless it was a judgement that was so unreasonable that no Chairman could have reached that decision. I consider that the Chairman has clearly considered all the considerable volume of evidence before him and has reached a conclusion he was entitled to reach.

15.	For these reasons I refuse the appeal holding that the tribunal did not err in law in applying the law as it presently stands. It is not for me to opine on whether or not section 36 is compatible with convention rights [see section 4 of the Human Rights Act 1998] where Article 14 of the convention provides that the enjoyment of convention rights “shall be secured without discrimination on any ground such as … status”. Many benefits are subject to a question of whether or not a couple are “living together as man and wife”, marriage not being an issue, but payment of bereavement benefit is dependent on marriage.

					(signed)
	Sir Crispin Agnew of Lochnaw Bt QC
	Deputy Commissioner
	Date: 22 January 2007