I would love some help with an appeal scenario that goes as follows -:

Client claiming IS as sick single person from sept 2003 to early January through whole period DWP were issuing counterpayments because they were incapable ? of making payments into bank a/c or issue a book ?
Then it transpires they (dwp) had lost all the relevant info and needed client to complete a another A1 form before they " could build her claim up and put her on the computer " by now client was in hospital with very severe mental health issues eg self harm,suicidal ideation and agoraphobia.
Anyway client completes new A1 and informs dwp that her ex husband (1st cousin) who she had been estranged from for the previous 6 years (met at fathers funeral just prior to hospital) had moved in a week earlier in anticipation of her discharge to care for her because she could n't care for herself as her illness was paralysing her ability to function eg cook her meals and encourage her to eat,remind her to take medication, supervision etc etc.
Client stressed that he was purely a carer first and foremost (they don't share a bedroom etc) (not her partner), who happened to be her husband in the eyes of the law ie they were not divorced.However as she had n't received a payment for several weeks she entered his details on the partners section all the while making it clear that he was a carer and she was only doing in the assumption they would be treated as a couple regardless.
Anyway DWP decided which ever permutation that there was no eligibilty for IS, so hence the appeal and also made a new claim for IS as a couple again stressing he was her carer but because of society perceptions and having no money she was claiming as a couple reluctantly.
He has had no discernible income for the previous 6 years and lived hand to mouth (He is illiterate and has a criminal record and as a result and felt excluded from the job market and benefits) staying with relatives doing odd jobs. Then she is subsequently awarded DLA high care/ low mob in mid feb and he now claims CA so there was a six week period when he has no income and she is ineffect supporting him financially ie paying for food.
IS - cohabitation appeal has anyone any ideas,thoughts,observations,similar cases,case law etc they would like to share.

andy

Andy,

You say that the couple are (were?) estranged but not divorced. It is, therefore, a waste of time and effort to go down the road of tring to show they are not cohabiting - that route is for unmarried couples. The law (SS Conts & Bens Act, s.137) defines 'married couple' as 'a man and a woman who are married to each other and are members of the same household.' So that's the key point: are they members of the same household?

There's an excellent commentary to this definition in 'Wood' - Vol. 2 of Social Security Legislation. This quotes plenty of case law on the subject, incidentally.

Jim

Thanks Jim your a marvel

You will probably find some mileage in CIS87/1993 , a case where the arrangement was that of someone moving in to act as a carer.

See also R(SB)35/85 (which was cited in CIS87/1993.) In R(SB)35/85 it was held that living in the same household for the purposes of care, companionship and mutual convenience would not of itself constitute living together as husband and wife. The relationship must be looked at as a whole before such a conclusion could be made

Having read your post more thoroughly, (and Jims points), you will not be able to rely on R(SB)35/85 as your clients are still married.

I think you will be able to argue that they are maintaining seperate households. The word “household” is not a term of art and is not defined in the legislation, but the Commisioner gave some fairly detailed guidance as to the matters to be taken into account in CIS671/1992.

Thanks Stainsby i'll checkout CIS671/1992

I am dealing with a similar case for a lady who seperated from her husband 6 years ago, she was recently diagnosed with cancer and is undergoing radiotherapy. Her estranged husband agreed to move back in for the duration of her treatment and has claimed Carers Allowance. I found the commentary in Vol. 2 of the Social Security Legislation very useful and argued at appeal that they were not members of the same household. Unfortuntely the tribunal did not see beyond the fact that they were married and I am now in the process of an appeal to the Commisioners.

I would be interested to hear the outcome of your case.

Catrina - best of luck to you and to Andy in you respective cases. Remember that you can't make too much of an issue of why the estranged spouse moved into the house, nor (to any great extent) that they have separate bedrooms. On the latter point, to give an example, a daughter could live in her mother's house and have her own bedroom, obviously enough, but if she didn't arrange her day-to-day living, cleaning, laundry, shopping, cooking, eating, etc, separately from mum, she'd be a non-dependant member of mum's household.

The danger for your cases will be if (for practical reasons) the spouse doing the caring does in fact pool resources in the way described above. Generally speaking, the carer should be trying to live separately as far as his caring duties will allow.

Jim

You could put a novel spin on a Northern Ireland Deciision R1/91(IS)

In that decission the couple were neither estrnged nor separated but the husband had left Nothern Ireland to work in England and did not intend to return.

The Commissioner held absence lasting more than 52 weeks would of itself mean they were no longer members of the same household.

My argument would be that a temporary return after a period substantially more than 52 weeks would not be enough to re-establish the couple as members of the same household

Good plan if one or both husbands in these cases have retained accommodation elsewhere - that would count as home until they'd been absent from it for 52 weeks ! I don't think it would wash if either or both husbands have given up any other accommodation they had, though.

Jim

Jim, Stainsby and Catrina Thanks for all your advice and suggestions,
1. Because of poverty they pool resources and he is illiterate and dependent on her to read and explain any written stuff to him and likewise he relies on her to write stuff on his behalf and as a consequence it would suggest to a tribunal that there is interdependence on each other,got any counterarguments.

2. Husband has had a itinerant existence living on the margins not working or claimed benefits or having a fixed address, living a hand to mouth staying at relatives homes and doing odd jobs in return, so there is no retained accommodation elsewhere.

CIS/671/1992 definition of household in this instance is a tricky one to argue consistently and coherently because there is a suggestion of an aggregation of resources in this case.
So what do you think ?

Andy

Argue that the relationship needs to to viewed as a whole and no one "signpost" is crucial.

The Commissioner quotes from Lord Hailsham in Simmons v Pizzey
"the expression 'household' and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive."

Stress that your clients pooling of resources is limited and does not amount to the setting up of a joint household and the establishment is more like that of a house in multple occupation such asp eg where students pool resources in halls of residence or student digs

Stainsby your first sentence " Argue that the relationship needs to be viewed as a whole and no one etc etc has cleared the impasse in my brain which is not to say i'm becoming any more lucid but it's helped with the lateral processes.
for the umpteenth time thanks

Hi Jim, Stainsby, and Catrina, just to update on the above, appeal hearing was held couple of days ago and clients appeal was allowed.
So once again thanks for all the help and advice it was really instrumental in getting the client a little bit of social justice.

see ya andy

Good show. Undoubtedly, the skill and application shown by the rep in this case was the crucial factor !

Jim