hello everybody
don't know about you good citizens but i've had a lot of cohabiting decisions made against cl. recently, and some of them have been based on the flimsiest of arguments, but this one is a tad more tricky and if anyone has any thoughts on the matter they would be greatly appreciated.

cl. circs ...

she / partner from 01/03/07 opened joint bank account 1997 after he separated from his wife.
this bank account was opened because her then friend did not want his ex-wife to be aware of all of his financial transactions.
this account has been used by both parties.
partner from 01/03/07 has stated on loan applications that he has resided at cl. address for 10 years.
they have taken out joint loans to :
pay off his debts.
purchase several cars.
go on holiday together.
he has taken out loans solely at her address.

cl. is stating that prior to 01/03/07 the person in question was : living in camper van at various locations but there is no evidence to support this, ie : receipts from camp-sites etc.
occasionally sleeping at hers but slept on the sofa.
not keeping any personal belongings at cl.
not in her company / vicinity for sometimes months on end.
her friend since they were young.

i feel the case against cl. is circumstantial and feel that they were not cohabiting but, all the evidence is that they were and cl. cannot provide evidence of the person being resident elsewhere.
this only came to light after cl. informed them that her partner had moved in on 01/03/07, and the local authority were informed by a third party that cl. partner had been living there for 9 years.

help ! ! !

any suggestions on how i can go about appealing this cohabiting decision ?

thanx all, and hope everybody's tickityboo ...

pete

Whilst the evidence is somewhat circumstancial, never the less there is a lot of it, and little to the contrary.....
I would be suprised if they haven't talked to the neighbours by now - besides which a number of loan companies have been sufficiently convinced by credit rating reports based on that address to make not just one, but numerous loans, no doubt at least some of them in joint names? Are these secured or unsecured loans? I ask because one doesn't normally allow a friend to secure a loan on your property....

I suspect you may have an uphill struggle with this one Pete.....

Don’t forget that the burden of proof here is on the Department. They have to have evidence and cannot just make unsubstantiated allegations based on gossip and supposition.

Does the Department have any concrete evidence that they were sleeping together, sharing bills, pooling finances, co-mingling belongings, eating together. In other words all the things that usually connote what it is to live as a couple.

Without evidence then the client doesn’t have to prove a thing. Credible denial and a plausible account of his living arrangements are all he requires unless actual evidence is produced.

I did a child support appeal once where we had a shed load of circumstantial evidence that the absent parent had diverted income. I argued that although the evidence was circumstantial there was so much of it that it was compelling. The Chair, who I could tell was sympathetic, didn’t agree. He said that circumstantial evidence, even a lot of it, where there was credible rebuttal, was still just that: circumstantial. We lost, as we could not prove the truth of our allegations.

I wouldn’t give up just yet if I were you.

you buggers !

that's why i posted the q. because it is a tricky one but enjoyable.
i was 50 / 50 as to whether to proceed with this one and i think i will contact the solicitor who attended the i.u.c to see what other evidence, if any, they had against the cl. re : her then not partner being resident at the property other than the financial implications.

will try to let you know how this turns out and thanx for both of your input on this one.

pete

We successfully appealed and HB/IS OP decision with hundreds of pages of circumstantial evidence partly because the other person had used our client's address to obtain credit and for all sorts of purposes, but his fabricated dates of how long he had lived there didn't match up - he clearly made it up as he went along. Oh, and he was indeed the father of three of ehr children but she'd only slept with him at his place. I think what won the case for her was that he had done 18 months for drug dealing and the Chairman, a hardened old Crown Court Rumpole type, took the line "of course he lied about his address - there'll be lots of people out there who would ahve loved to know where he lived."

Not saying that your client's partner's a drug dealer mind you - but it's amazing what you can find in all the Experian stuff they fling at you when you get to appeal level.

Not sure the burden of proof thing is so useful nowadays. CIB/1509/2004 cites CIS/427/1991 to say the burden of proof is not relevant to an appeal unless (i) no relevant evidence is available, or (ii) the evidence is so easily balanced that it is impossible to decide where the balance of probabilities lies.

If the client is verbally credible, there is all that case law about tribunals etc being permitted to believe claimants, in the absence of co-orboration (let me know if you want it).

Regarding the bank statements, case law on notional capital (Mesher refers) confirms joint bank accounts can simply be vehicles of convenience. There is even a recent tax credits case where the commissioner concludes that a joint bank account still held by former partners, need not imply couple status (I realise your case is not about a former couple, but anyway).

Good luck

Steve

Hi Steve, could you give me details of the recent tax credit commissioner's decision about jouint accounts still held by former partners need not imply couple status?

I have a case where couple were claiming jointly for tax credits, split up 2006, Clt informed TCO and claimed as being single. They are still living in same house but live seperately. Overpayment decision based partly on couple still having joint bank accounts (and carping on about utility bills some still in her mane some still in his).

Deborah

Hi Deborah,

The decision is CTC/1630/2005 (now R(TC) 2/06). However, having looked at it again, I see I have misremembered it a bit. Here is a clip from para 21 of the decision...

'21.Further, given the findings of fact as to the financial problems which had been created by the claimant’s husband, I do not find it surprising that, as between a couple who plainly wanted to keep on good terms for the sake of the children, the husband’s wages continued to be paid into the claimant’s bank account to ensure that the family finances were properly taken care of...'

Not quite what you want re a joint account, but I think it might still be useful, because it refers to pooled resources. In fact, from about para 13 onwards, the abovementioned decision is almost a 'cracking read'. We have used it quite alot. Here is the link with the download option:

http://www.osscsc.gov.uk/aspx/view.aspx?id=1952

Sorry if it turns out to be less useful than you wanted.

Steve

Thank you John, yes from para 13 onwards is a cracking read. Some bits and pieces in it I can use.

Deborah

thankyou all

just advising the cl. prior to her tribunal 15/02/08 so will let you know the outcome next week sometime ? ? ?

have a good weekend and chuckle lots !

pete

hello all

cl. lost appeal at tribunal but i have now requsted written statement of reasons ...

when i have received this i may prod your brains on this one once again ?

hope all good ...

pete