IN THE UPPER TRIBUNAL                                        Appeal No.  CIS/2127/2010
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The appeal against the First-tier Tribunal’s decision heard under reference 024/08/09737 on 7/12/09 is DISMISSED.  

The decision of the First-tier Tribunal did not involve the making of a material error of law.

REASONS FOR DECISION

1	This is an appeal against the First-tier Tribunal’s decision of 7/12/09 which confirmed the Secretary of State’s decision of 2/5/08 that the appellant was not entitled to Income Support for the periods 12/2/02 – 8/6/02, 27/8/02 – 23/4/02, 4/8/03 to 11/7/04, 16/8/04 – 5/4/07, 6/4/07 to 14/6/07, and 15/8/07 – 31/3/08, and only entitled to a reduced rate of Income Support for the period 15/5/07 – 14/8/07.  This was because she and her husband, who was in remunerative employment for the first six periods and in receipt of Incapacity Benefit in the final period, were members of the same household.   

2	The appeal was brought with my permission and is supported by the Secretary of State on the ground given by the appellant that the tribunal failed to give adequate reasons for finding that she and her husband were members of the same household.  I have come to the conclusion, however, that there has not been any material error of law.

3	The sole issue under appeal to the Upper Tribunal is whether the tribunal dealt with this issue of membership of a household correctly.  If the appellant and her husband were members of the same household for the purposes of claiming Income Support, the appellant had been claiming wrongly as a single person. 

4	The facts were that the appellant had been claiming Income Support as a single person for a number of years before it came to the attention of the Department, through an allegedly ostensibly separated many years earlier, was living with her during the periods identified above.  On investigation, the Secretary of State decided that the appellant and her husband were indeed members of the same household and revised the appellant’s entitlement accordingly.  

5	Where a husband and wife are members of the same household, they are a married couple and also member of a family under the definitions in section 137(1) of the Social Security Contributions and Benefits Act 1992 (the Act).  A member of a married couple is not entitled to Income Support if her partner is engaged, as in this case, in remunerative work:  section 124(1)(c) of the Act.  There is an exception to this rule in section 124(1)(e) where a member of the couple is also a prescribed person under Schedule 1B to the Income Support (General) Regulations (the Regulations).  The appellant was a prescribed person for the period 15/5/07 – 14/8/07 because her husband was entitled to Incapacity Benefit during that time.  However, under section 136 of the Act, the income and capital of a family member must be aggregated with those of the claimant of an income-related benefit.  Since the husband had income which had to be taken into account under the calculation system in chapter II of the Regulations, his income had to be aggregated with the appellant’s, who was accordingly entitled to a reduced amount of Income Support in the final period covered by the decision. 

6	The Secretary of State submitted a wealth of evidence to the tribunal including (but by no means limited to) the following: 

(i)	the husband used the appellant’s address for official purposes, 
(ii)	(ii) the wife completed important forms for the husband (despite claiming at the interview under caution that his affairs were none of her business), 
(iii)	she did not indicate on various important forms that his marital status was separated, 
(iv)	she gave his address as hers without indicating that it was only a ‘care of’ address,
(v)	her husband had a key to her house ‘just in case she knocked herself out while coming down the stairs (p69, at line 197), 
(vi)	he was decorating a room for her (p69, at line 203), 
(vii)	she acted on his behalf on at least one occasion in relation to an employment problem in which she revealed a close knowledge of his affairs (despite denying that his affairs were none of her business), 
(viii)	she had never changed the name on a utility bill from his to hers; 
(ix)	there was no credible evidence that the husband had any other address than the appellant’s.  
(x)	They would accompany one another to hospital appointments sometimes;
(xi)	The husband helped care for the appellant, including helping her in and out of the bath, when she was unwell.  
(xii)	He spent a very substantial amount of time at her house.  

Nevertheless, they both asserted that, despite the technical subsistence of the marriage, it was no more than an empty formality and that the marriage had been over since they separated many years ago.  They were adamant that the husband did not live in the same premises as the wife and that the only reason he came to her house was to collect his mail (although he claimed to have other addresses) and, latterly, in order to help her look after their disabled grandchild.  The husband was, in other words, no more than a regular visitor who did not live with the appellant in any sense, let alone in the same household. 

7	The tribunal decisively rejected the appellant’s assertions and those of her husband and family (except that of their son Mark, which I deal with later).  It concluded that the appellant and her husband lived together as members of the same household.  The tribunal was technically right in rejecting submissions by both the Secretary of State and appellant’s representative that the ‘admirable signposts of living together as husband and wife’ in R(SB)17/81 were applicable.  The correct test under section 137 of the Act is simply whether the married couple lived in the same household.  I deal with this briefly in paragraph 11.  

8	‘Household’ is an ordinary word for there is no legislative definition, but case law has endowed it with certain characteristics to distinguish it from a situation where parties merely occupy the same house.  Whether a household exists is ‘is a question of fact and degree, there being no certain indicia the presence or absence of which is by itself conclusive’:  Simmons v Pizzey [1979] AC 37, House of Lords, per Lord Hailsham [59].  At the end of the day, the question of whether people are part of the same household must be decided as a matter of common sense and common experience:  R(SB)4/83 [19].  

9	The basic characteristics of a household are identified in authoritative case law:  A household as a unit bound together by a ‘particular tie’ that the mere physical separation of the parties does not necessarily negate:  Santos v Santos [1972] 2 All ER 246 [255].  There must be something which amounts to a domestic establishment, which involves a group of two or more persons living as a unit where that group enjoys a reasonable level of independence and self sufficiency:  (R(IS)1/99 (file no. CIS/4935/1997 [21]); CIS/671/1992 [4].  

10	These propositions do not take things much further and have therefore been supplemented by guidance on factors which may be relevant in determining whether a married couple are members of a household.  In CJSA/1321/07 [24] Deputy Commissioner White (as he then was) emphasised that, while all of circumstances of a case had to be considered in deciding whether a household existed, seven matters were commonly associated with a household and should therefore be explored by tribunals in coming to a common sense and realistic conclusion.  With some minor rewording, they are: 

(i)	the circumstances in which the appellant and spouse came to be living in the same house; 
(ii)	payment for the accommodation made by the appellant/spouse; 
(iii)	arrangements for the storage and cooking of food; 
(iv)	separate eating arrangements; 
(v)	domestic arrangements such as cooking, cleaning, gardening and bits of household maintenance; 
(vi)	financial arrangements and 
(vii)	evidence of family life.  

11. There are similarities between these matters and those relating to unmarried couples set out in R(SB)17/81.  For both, it is necessary to show as a starting point that they live in the same household. The domestic arrangements in the home are therefore as relevant to married as unmarried couples, as is the absence of any other home in which the allegedly ‘non-resident’ party normally lives.  Arrangements regarding financial support are also plainly relevant.  Other factors, such as stability, sexual relationship, children and public acknowledgment may have little or no role to play where there is a subsisting marriage.  

12. It is, however, necessary for tribunals to appreciate that there are matters or signposts which may be relevant in deciding whether a married couple’s living arrangements import the existence of a household.  But they are not writ in stone.  They may need to be adapted or, indeed, abandoned where common sense and experience dictates.  

13	In deciding whether these matters need to be explored in the decision, it is important to focus on the case the appellant is putting to the tribunal, and to bear in mind that the cases from which the matters to be considered emerged involved claimants and their spouses who were either living in the same premises but were said to be estranged, or living in different rooms in the same residential home (and in one case, in the same room) but suffering from senile dementia to the extent they no longer recognised each other as husband and wife.  In these circumstances, it was plainly necessary for a tribunal to make careful findings if they were to find that the particular tie or domestic establishment which were the hallmark of a household. 

14. In the appeal before me, the facts were quite different.  The parties were not saying that they lived separate existences or at daggers drawn in the same house.  Their assertion was that they did not live together at all.  Once the tribunal rejected their evidence as an elaborate fabrication, there was nothing left except a married couple who were not telling the truth about living together in a domestic establishment tied by the bonds of marriage and family, at the very least.  In other words, they were a household.  There was nothing material in the evidence (apart from denials which were rejected either expressly or by necessary implication) that would lead the tribunal to think otherwise.   

15. In other words, once the Tribunal had found to be untrue the assertion by the appellant as to why she was entitled to the relevant benefits, namely, that she was not living in the same household as was her husband, the appellant’s appeal had to fail.  The tribunal was not required to Tribunal to engage with an alternative scenario which was never part of the appellant’s case and for which there was no other evidential basis. 

16. As it happens, and as can be seen from paragraph 6 above, there was some evidence before the tribunal that, had it been necessary to apply the matters/signposts discussed earlier, would have pointed towards the existence of a household.  

17. I accept that the tribunal could have made it clearer that membership of a household was different from merely living in the same house.  This lapse was, however, immaterial in the circumstances.  Once the foundation of the appellant’s case was rejected, as it was for cogent reasons, the conclusion that the appellant and her husband were members of a household was inescapable.

18. The representative also made several specific points in his submission that the tribunal failed to give adequate reasons for its decision:  (i) the tribunal did not mention the appellant’s and her husband’s oral evidence, (ii) it did not say why it preferred the Secretary of State’s evidence and unjustly gave it more weight; (iii) it appeared to have accepted evidence that the husband stayed with his brother, Mark, on two to three nights per week, and with his daughter two nights per week on a regular basis to look after her disabled child.  The representative therefore found it difficult to understand how the tribunal could accept this evidence but still find that there was a household. 

19. Points (i) and (ii) can be taken together:  The husband’s evidence was that he lived elsewhere.  The tribunal dealt with this in the final paragraph of the first page of the Statement of Reasons.  The wife’s oral evidence was brief and comprised an admission that she had failed to report a material change of circumstance to the local authority timeously and thereby incurred an overpayment (of housing benefit, I expect) and a denial of any relationship with her husband.  This evidence did not assist her credibility and did not raise the alternative scenario that she and her husband were, indeed, living together in some way.  A tribunal does not have to deal with every item of evidence, and certainly did not need to deal with evidence of this sort in light of the way the case was presented to it.  The reasons why the tribunal preferred the Secretary of State’s evidence are patently obvious from the Statement of Reasons.

20. The tribunal dealt with Mark’s evidence at length.  It was a flat denial of the husband’s assertion that he was Mark’s lodger.  Indeed, Mark confirmed that the husband did not even keep any of his belonging at Mark’s home, apart from a change of clothes.  This undermined the husband’s evidence that he lived at another address still further.  Although the tribunal accepted Mark’s evidence as credible, it seems to me that it taken as further evidence that the husband’s assertions were unreliable.  As regards the daughter’s evidence, the tribunal concluded that her father’s staying with her a couple of nights per week to help her look after her child ‘hardly amounted to ‘living with her’.  Physical separation does not necessarily negate membership of a household:  Santos v Santos.  A person may be away from home without affecting the existence of a household for any number of reasons, for example, s/he may be posted abroad, in prison, in the army or looking after relative.  To the extent that the tribunal accepted that the husband might stay away from the household, it did no more than find that his absences did not affect his membership of the appellant’s household.

21.  The appeal is accordingly dismissed.

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		24 March 2011