Mon 09-Feb-09 08:13 AM by Kevin D

For transparency, I have my "clmt" hat on for this case (I am formally assisting the clmt's rep).

I have seen many posts and citations relating to "living together" which have been very useful and informative. However, does anyone have experience or knowledge of any "living together" CDs / case law / UT decisions etc where the abusive nature of a relationship has been a factor taken into account?

In the case in question, the clmt has "admitted" living together in an IUC. However, based on the facts known so far, consideration is being given to arguing that what the clmt has admitted to does NOT amount to "living together" in the context of being a couple for benefit(s) purposes. There are numerous reasons for this (not least of which is the "partner" may well normally live elsewhere), but one further factor is being strongly explored, as follows.

The nature of the "relationship" appears to be extremely abusive, both physically and psychologically. In this context, the argument being considered on behalf of the clmt is the nature of abuse renders the relationship as being wholly inconsistent with the term "...living together as husband and wife...". Issues being considered include "duress" and "capacity".

For example, courtesy of Derek Stainsby, I am aware of CIS/671/1992 in which a couple, both with dementia, were considered not to be partners as they did not have the capacity to form a household.

Ideally, I am looking for further arguments and/or authority(ies) which would add weight to the argument(s) relating to duress and/or capacity and/or coercion in the context of an abusive relationship and how that may, or may not, affect whether or not two people are a "couple" as defined within s.137 SSCBA 1992.

Suggestions welcome.

Kevin, I know you are aware that LTAHAW decisions are based largely on domestic, financial, social arragements, together with the existence or not of alternative addresses.

Another key factor used by DWP DMs' is the Stability of a relationship i.e. a volatile and unstable relationship is less likely to be "LT". If your case has some coercion and abuse to prevent the alleged partner leaving then this will go some way to showing it is unstable. Evidence to back this up helps e.g. Social Sevices, Police, Doctor, Housing, Womens Aid, involvement.

But the fact it is abusive, on its own, is not sufficient to prove there is no "LT" as Im sure you're well aware. I don't know as specific CDs though. If the abuse has been long term, it will be difficult to show it is not a stable relationship, contradictory though this may seem. There are probably lots of long term abusive relationships out there, which are stable and enduring in their own perverse way.

The so called admirable signposts in R(SB)17/81 are not to be taken as a tickbox, the general relationship of the parties must be considered (see CIS/87/1993)

This was again emphasised in CP/8001/1995. In that case the claimant was a widow who had taken in a lodger. They gradually became friends and although they did not pool resources, she had the right to draw chaques on his bank acount. They did not have a sexual relationship, but they sometimes went halves on a twin bedded room in a hotel

The Comissioner held that they were not living together as husband and wife.

The intentions of the parties and the reasons theyare living together may be the deciding factors and this is supported in CIS/87/1993. You may well be able to argue that your client has nowhere else to go but nontherless they are estranged even though they live under the same roof

kevin, i'm not aware of any commissioners' decisions on this issue. generally speaking, i think it is a difficult argument, because the purpose of the admiral signposts is ultimately to arrive at a decision as to whether the relationship in question is in fact equivalent to a husband/wife relationship. the difficulty as we know, is that there isn't such a beast as a standard marriage yada yada... but the fact is that domestic violence and abuse is as much a feature in some married relationships as it may be in the case of unmarried couples...i think it would be difficult to argue therefore that the abusive and unhappy nature of this relationship _of itself_ distinguishes it from being an L/T. having said that, don't let me put you off if you have a ground-breaking case... 'duress' sounds like a significant and unusual feature...
but the 'address elsewhere ' may be a more straightforward route...

with regard to the 'admission' in the IUC however, i would expect it to be refutable in such circumstances...i gather she lost her appeal...did the tribunal base the decision on the admission?

now that your client is being advised, might she consider seeking an injunction...?

Tue 10-Feb-09 09:19 PM by Kevin D

Thanks for the responses so far.

I agree that the abuse won't normally be enough in itself, but this is a particular nasty and unpleasant case which *may* mean this aspect can be argued on the facts as a whole. Consideration is certainly being given to whether or not the argument can be made.

There are many factors in this case which lead to a substantial doubt as to whether the clmt was LT with the alleged "partner" - irrespective of the abuse aspect. "Stability" is one factor that will certainly be at issue. Based on the evidence and information available so far, it seems the clmt's idea of LTAHAW may be very substantially different from the reality - hence the possibility of being able to reasonably and properly argue that the "admission" during the IUC does not mean the clmt was, in fact, LT.

There are also administrative issues arising out of the case. For example, the failure of the relevant benefit offices to consider whether or not there would have been entitlement even if there was a partner. No attempt has (apparently) been made to establish the income of the alleged partner and, in turn, no underlying entitlement has even been considered, let alone properly decided. And, all too unsurprisingly, the reason given for ending benefit has no basis in law (a variation of: "You're IS has ended, so benefit must end").

In short, so many of the classic shortcomings regularly aired in these forums (& so often robustly criticised in CDs / UTDs) appear to be evident in this case.

If IS was withdrawn following a supposed supersession, the burden of proof is on the DM (see R(I)/1/71)

Its also the case that a LTAHW determination of itself is not sufficient to provide the grounds for a superseding decision ending IS (see CIS/4434/2004)

The end of a passporting benefit is similarly insuficient to end entitlement to HB/CTB (CH/3736/2006), so you do have ammunition to undermine the DWP and LA's cases on procedural grounds.

You can then go on to build your case on the facts (estrangement etc)

One CD specifically dealing with an abusisive relationship is CIS/072/1994. I think you could find it particularly useful because at para 5 Mr Commisioner Rowland says:

"...A joint household is shown by the way people actually live,
coupled with the necessary attitude of mind (i.e-, an acceptance”
by at least one party that the marriage is in truth at an end – .
see Santos v. Santos <1972> Fam 247), but it does not depend on
their legal liabilities. The respective legal liabilities of the
parties may throw some light on their attitude of mind but that
depends on the extent to which there are alternative explanations
for the existence of joint (or separate) liabilities. Where a
relationship has only recently broken down, I do not consider
that the failure of the parties to sort out their legal
liabilities is of greatsignificance, particularly when, as here,
there is clear evidence that the claimant was taking active steps
to try and ensure that she and her husband had separate housing."

The copy on rightsnet at present has a page missing , but I have emailed a complete copy for (re) publication

That's terrific - much appreciated.

thanks to stainsby .... here's the CD

http://www.rightsnet.org.uk/pdfs/CIS_72_1994.pdf

Fri 29-May-09 07:35 AM by Kevin D

*update* - courtesy of the witness I assisted.

The criminal case has recently been heard in Court. As there is an appeal to Tribunal outstanding, a request was made to adjourn the criminal proceedings. Bullet point summary as follows:

1) request for adjournment refused

2) DWP/LA offered a plea-bargain of "...plead guilty and we will accept sentencing on the basis of no loss to public funds..." (alleged total o/p originally £9,000 approx)

3) DWP refused (and I do mean refused) to provide evidence relating to alleged income of alleged partner

4) clmt accepted plea-bargain (contrary to legal advice and only because she was terrified of the whole proceedings).

5) sentence: conditional discharge plus costs.

6) if the Tribunal appeal is successful, an application *may* be made to quash the criminal conviction.


Thanks to all who contributed - it was appreciated.