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Married couple now living in separate homes

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wr4
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Was wondering whether they class as couple for ESA purposes.. found the DMG Chapter 11 saying:

11053: To be members of the same household means that they live in the same house

Anyone have any experience with this?  Does it matter what terms they are still on?  Thanks a lot.

wr4
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I have found SW v SSWP (IS), [2011] UKUT 145 (AAC):
http://www.osscsc.gov.uk/Aspx/view.aspx?id=3252

Here the couple stated they were living apart, but it was found that they were not being truthful and therefore were part of the same household.  What if they were being truthful?  There were some good hints in this case but still looking more info if anybody has any..

Ros
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wr4
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@ros
Wow that is fantastic!  Thank you so much for your help..

wr4
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However… I have now found Santos v Santos (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1972/9.html), which notes that ‘house’ relates to something physical, but that ‘household’ has an abstract meaning.  It then goes on to describe ‘household’ as ‘a word which essentially refers to people held together by a particular kind of tie’.  This makes me less sure that the mere fact that they are living in different houses, means that they are living in a different household. 

In this particular case, the couple have separated as the man has gone to live with his ill mother.

wr4
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But then R(SB) 4/83 states: ‘a person who has, and lives in, his own separate home cannot reasonably be regarded as being a member of someone else’s household’.  Mmm.. this is very confusing..

Claire Hodgson
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wr4 - 05 March 2015 03:36 PM

But then R(SB) 4/83 states: ‘a person who has, and lives in, his own separate home cannot reasonably be regarded as being a member of someone else’s household’.  Mmm.. this is very confusing..

to be LTAHAW, they have to be in the same house.

i’ve won at UT on that, others have too ....

wr4
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@Claire Hodgson
Thanks, but I’m still not sure why..  does R(SB) 4/83 trump Santos so to speak then?

The ESA regulations define ‘couple’ as:
- a man and woman who are married to each other and are members of the same household
I would agree that if they are in different houses they are probably in different households.  But what if they still share finances, or the house is still in both their names?

In this particular case, I think I will concentrate more on the fact that he is now in the same household as his ill mother and cannot be in two households at once..  Still looking for more input though, preferably in the form of case law..

Peter Turville
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Can I suggest you are rather over egging this pudding. The principles and case law on L/T and membership of the same household is long established and should be well understood by a tribunal (even if not by a DWP/LA/HMRC decision maker - and a detailed attempt to education them will propably be a wasted effort).

A tribunal should concentrate on establishing the facts of your clients circumstances and arrangements so they can apply that information / evidence to the regs and case law. You don’t need to go back to ‘first principles’ of the legislation and case law and a tribunal will probably not thank you for doing so in written or oral submission.
I’m sure you have already considered CPAG p215, pp206 -208 outline the sort of facts to establish.

Brian JB
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The issue here is not “living together as husband and wife”, as they are already husband and wife. A couple who have been members of the same household remain so even when temporarily living away from each other. If the person who left does not intend to return, or the absence is likely to exceed 52 weeks (can be longer in “exceptional circumstances”), they are no longer treated as being members of the same household - see regulations 156(1), (2) and (3) of the ESA Regs

wr4
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@sovietleader
I thought that too but the case that ros provided seems to say otherwise (about housing benefit but pretty much the same):
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4185

It says they are not a couple unless living in the same household - but they are not in the same household as they live apart.  It is a really weird judgement that I can’t get my head around due to circular reference in my opinion.  If I follow the logic in that case I can’t think of any couples that ‘living apart temporarily’ would apply to?!

Brian JB
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I agree that the logic in that case seems to make nonsense of the provision. That said, I think the circusmtances in that case were fairly unusual. The decision is unreported, and I would take that to mean that the majority of Upper Tribunal judges would not agree that it is a correct interpretation. It seems to me that you have to look at the factual history of the relationship. Clearly, your clients were husband and wife living in the same house and household. At some point, one person left the house and started to live elsewhere in order to care for his mother (presumably his mother’s house).

What were his intentions at the time?  If he did not intend to return to the marital home, they are no longer a couple. If he did, how long was he likely to be away? If that absence was likely to exceed 52 weeks, they are not treated as members of the same household.

Where I would disgree with the Upper Tribunal Judge is in starting from the position at the date of claim. Although “couple” is defined, I do not see any reason why it only applies once a benefit claim is started. The two people WERE a couple within the terms of the legislation and yes, the law can treat them as members of the same household even if it may otherwise be considered that they were not. Otherwise, you would have the patently ridiculous situation where a husband goes to work abroad on a three month contract, his wife claims benefit as a single person, and they cannot be treated as members of the same household becuase when the claim is made, they are not actually in the same physical household - as you mention, the case law of Santos makes the point that “household” is not necessarily a physical concept.

Social security law has several examples of people being treated as if in a position they are not - treated as possessing income and capital they do not possess, for example. I think this provision just provides some degree of certainty as to how to deal with cases of temporary absence

 

wr4
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@sovietleader
Thank you very much for that.  I guess the man being away depends on how long his mother has been given to live - if more than 52 weeks - then I guess the married couple will be in different households.  What did you think about my argument that he is now in his mother’s household (you can’t be in two households at once) - or is it first come, first served as far as households go, so to speak?  In any case, that is really helpful and has given me something more to think about over the weekend..

Peter Turville
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Perhaps a key factor in your case (with the limited details available) is the circumstances in which the spouse has gone to live with his mother.

Is this because he has seperated from his wife and the marriage / relationship has broken down? In which case it is certainly very arguable that they are no longer a couple because they (a) live at a different address and, therefore (b) are no longer part of the same household.

Or, has he gone to live with his mother primarily to care for her, it is not practical for him to live at home most of the time (due to distance or 24/7 caring for example) but the marriage / relationship has not broken down? Does he, for example, return home when he can? If this is the senario then it may be much more difficult to argue that he is no longer part of the same household. Rather he is ‘living apart temporarily’ (only because of caring responsibilities) and remains part of the same household. In other words the senario is similar to the situation where a couple are ‘living apart temporarily’ due to one of them working away from home. Depending on the facts a couple could potentially be said to remain part of the same household even if the period of ‘living apart temporarily’ extends for years. It will depend on issues like whether the relationship itself has broken down.

Brian JB
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I broadly agree with Peter, with the addition that if there has not been a breakdown in the relationship (and the absent partner intends to return), he will not be treated as a member of his wife’s household if the absence is unlikely to exceed 52 weeks or, in exceptional circumstances, substantially exceed 52 weeks, even though he does intend to return. If he does not intend to return, he cannot be treated as a member of the same household as her.

Again with respect to Upper Tribunal Judge Levenson, the facts in R(SB) 4/83 were a mile apart from his case and this one - there, there was never a question of the two people, living in the same house, having been partners at all. I think to start with the physical situation of where people live, and work back, makes a lot less sense than to look at the relationship, ask what has happened, and take it from there

Va1der
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Resurrecting an old thread as the circumstances are similar. Can’t quite wrap my head around the finer points though.

I have a client who is planning on marrying their (same-sex) partner next year. They both have their own rented homes, separate children, and have no intention of living together. They state they’ll maintain separate financial arrangements.

This would be fairly unproblematic if they remained unmarried - does the marriage actually change anything?

They will have to report the change, and I can see two interpretations from DWP/council.
On the face of it they would clearly not be cohabiting, however it can also look like a single household split over two homes - depending on how ‘close’ the two parties seem (i.e. especially if they can’t convince DWP they will retain separate arrangements for finances etc).

Will there be s strong burden of proof on them as to why they won’t be forming a single household?