Living together - tactics for appeal

Hi all

This is an entitlement and overpayment appeal on income support top up to IB then means tested elements of ESA on conversion. Due to be heard tomorrow.

Client was in “husband/ wife relationship”, separated due to his drinking - her health deteriorated from 2008 ( on HRM plus HRC and ESA support group ), he provides care (though working f/t so no CA), stays over 2/3 nights a week, alot of the care is of an intimate nature so she would rather have it from him, they go on holiday together (otherwise she would not have a holiday - she is a wheelchair user), he takes her out to socialise. No Children.

I have 2 questions -

1. in her IUC her argument is that, although she knew she had to declare a “partner” she did not regard them as partners as he was her carer.

Is this a case where you could argue, even if the Tribunal decides that their relationship was more akin to that of a couple, that any overpayment is not recoverable as she did not fail to disclose or misrepresent material facts? The conclusion from the facts may be that, on balance, they were a “couple”, but what about the facts themselves?

Has anyone tried this argument with success?

2. The housing benefit entitlement/ overpayment appeal was heard first, rather unusually, last October before I got involved due to rent arrears and threat of eviction - and was lost. We have the decision plus SOR. In the SOR the Judge says this is an interesting and complex appeal, and finely balanced - but goes on to find that all the elements of a “couple” relationship were present apart from a sexual relationship. We have had to send this to the IS appeal as they asked for anything to do with the HB side, so it will be before the Judge for the IS hearing.

I know that, as a general rule, one Tribunal is not bound by another and different Tribunals can come to different decisions on the same facts ( as can DM’s) and there is nothing inherently wrong about that.

My question is - in the HB appeal the Judge made certain findings of fact - can the IS appeal regard these as persuasive?

All thoughts gratefully received…...

On your first question;

Have not thought this through completely, but on the face of it, I think the argument could possibly run*. The different rules for HB overpayment and recovery (i.e. all o/ps recoverable unless caused by official error) would stuff that argument once the ‘fact’ was found that they were/are a couple. But it could potentially work for the IS appeal on the basis that you cannot fail to disclose or misrepresent a fact that you are unaware of…..to some extent, the SoR for the HB appeal might be of some assistance (but see below) if the judge there held that the case was finely balanced. If it was finely balanced then it would logically follow that there wasn’t a clear cut ‘fact’ for her to disclose.

That said, I’d be arguing that the HB tribunal’s findings of fact are not persuasive for the IS appeal because of a) the very different statutory criteria for HB o/p recovery and b) the fact that appellant was unrepresented in the HB appeal. And in law they are two entirely separate appeals - the IS tribunal has to make its own findings of fact. It might put particular findings of fact from the HB appeal to your client and ask her (and you) for reasons/explanations as to why these should not be followed in the IS appeal, but so long as you’re given fair opportunity to address those points and the IS tribunal does not simply adopt them as fact from the outset, there’s not necessarily a problem with this.

As to the appeal itself, it’s established caselaw that a person cannot be a member of two households at the same time (R (SB) 8/85) and that if two people have two different addresses where they normally live, they cannot share the same household (R (SB) 4/83). Maybe I’m preaching to the choir with this, but I’d be looking in some detail at what his living arrangements were on those nights he wasn’t staying over - i.e. did he have his own home elsewhere where he was paying rent/mortgage and utility bills? What address did his employer have? Where were his wage slips sent? Where did his bank send his statements? At what address was he on the elctoral roll, assuming he was registered?

If those facts go your way, I think you’ve got a very strong case - and I don’t think it then particularly matters that many of the factors that would point to their being a couple are present in the case. Those facts might be deteminative if he had no other address/home/household, but if you were able to establish his having a separate home/address then I think the appeal would have to be allowed.

* would be interested to know how the conflicting tribunal decisions would be resolved if she wins the IS appeal. Should this happen, there will be no IS/ESA overpayment and she will then be entitled to IS/ESA for the whole of the period in issue. And from that it will follow that she was also automatically entitled to HB for the whole of the period…..

Married?

I ask as you use the word separated.

In my experience it is quite unusual for this sort of O/P to be heard after the HB case, in almost all of those that I have dealt with the IS o/p takes the lead and the HB simply follows suit. Were HB at the IUC?

Ideally you would want both appeals heard together because the aggregation issue affects both benefits in exactly the same way.  But this is the third case I have heard about in the last week where the HB appeal went first and the DWP appeal is still pending.  I think this may be a consequence of delay at the MR stage (there is no MR in HB).

If the claimant now wins (and as others have said the HB appeal documents and decision are obviously relevant evidence but they don’t predetermine the outcome of the IS/ESA appeal at all), the Council is currently stuck with a Tribunal decision that it has no power to revise.  You would therefore have to hope that the HB decision would be set aside on the grounds of a procedural irregularity (I would argue that separate listing of two appeals on the same issue is such an irregularity).  The Council could make a superseding decision going forward from a certain point but they won’t be able to change the Tribunal outcome from its original date without the further say-so of the Tribunal.  Sounds crazy but that’s how it is I think.

The “certain point” from which the Council could supersede is just too tortuous to explore all the possibilities here.  Did you say the appeal spans the IS-ESA conversion date?  If so I would say the reinstatement of ESA(ir) on appeal allows the Council to make a superseding decision with effect from that date under HB/CTB D&A Reg 14.  Proper messy though - better the Tribunal sets the decision aside and remakes it in the claimant’s favour.

Many thanks for the input!

Past Caring -absolutely on the HB the recoverability is different. My argument on the IS overpayment was going to be - ok, even if you (the Judge) decide that they were a “couple” then the non entitlement decision is correct, but it does not necessarily mean recoverability, as the decision that they are a “couple” is not a fact, it is an outcome decision based on the facts, hence did she fail to disclose/ misrepresent any facts?

John - never married.

Pete C - the lead agency were the DWP, HB just followed the IS/ESA decisions. It goes back to 2008, IS top up to IB first then EDP and SDP when converted to ESA

The only problem that I see with set-aside for procedural error is the potential for the argument that the two tribunal decisions are of equal weight and neither takes precedence over the other. So yes, the HB decision is set-aside (quite properly) for procedural error, but it then follows that the IS/ESA tribunal decision also has to be set-aside for precisely the same reasons - with an entirely new hearing of both appeals.

A simpler method (though it would require an amenable LA) would be that the authority exercises its discretion not to recover in light of the IS/ESA tribunal decision. As the HB tribunal was October 2014, you’d still have time to request this whilst leaving the set-aside option open in the event of a knock back…..

PCLC - am again probably telling you stuff you’ve already thought about - but did they (by their own statement) at any point LTAHAW? If so, at what point did this end?

Thank you Past Caring and HB Anorak for the possible conundrums if we win tomorrow, but I don’t really want to get into set asides of previous tribunal decision (not even sure I can) and thankfully we have a very helpful LA so possibly we could sort something out.

I would be happy to lose the entitlement issue but win on non recoverability of overpayment as its £15,000 odd.

Past Caring - they ended their couple relationship in 2003. The IUC is one of the best I have seen, she is completely straight but consistently says she did not think she had to declare him as SHE did not view themselves as a couple.

So - when the couple relationship ended, he moved out? If that’s right - how good is the evidence (or how good could it be) of him moving out?

He goes but still stays 2/3 nights with her and sofa surfing elsewhere. We cannot definitely prove he was elsewhere apart from one period in 2009/10 when he has his own tenancy for a year. The overpayment was reduced in the submission ( but not the MR) to take account of this. Also there are still financial connections, eg insurance, bank statements for him, TV licence for him at her address from 2003 - the usual stuff!

I have a perverted love of this sort of case. My personal approach is that it’s one of the scenarios where I pre-empt and throw everything into a written sub which tackles every single issue in the case law on cohabitation and would also address every single aspect of the HB v IS recovery. Have often found that doing so means the case ends either in the tribunal waiting room with a clerk coming out to say you’ve won, or, a quick invite in from a judge to confirm from the appellant that key facts are as I’ve stated and then Bob’s your uncle (as long as he’s not cohabiting either).

Hear what you’re saying about the IUC but emphasising what she thought was and is of limited relevance. More relevant to look at separate households; financial arrangements; cooking arrangements; food storage; sleeping arrangements; whereabouts of possessions; sexual relationship and how they appear to others in public. Always good to clock things like photos in the lounge; whether post is directed to her address; if he has a key and so on. I’ve always found statements from family and neighbours to be very useful in these circs. Nothing tortuous. Just a side of handwritten A5. 

The one occasion I’ve had HB listed before IS etc. I was rep. on the former and was able to get it postponed. I think discretion to not recover is a strong option with some LAs but very often they’re insufficiently bright to realise that they’re generally stuck with the original appeal decision and will happily go along with the new tribunal decision.

@ pclc - Sure, but the 2009/10 tenancy is a pretty big piece of corrobarative evidence. The DWP are proposing that they were a couple immediately prior to the commencement of that tenancy - not whilst it subsisted - and then again immediately it finished? It’s rubbish and any sensible judge will know that is not how many people live their lives - unfortunately, they live with the sort of blurred edges and the kind of historic financial entanglements that really ought to be resolved but never are that you’ve got in this case.

Another angle (which again I’m sure you’ve thought of) - it doesn’t sound like the kind of intimate personal care that he provides is required only on those nights he stays over. Who provides this at other times?

@ Mike - I love ‘em too.

I have a beaut next week where they were married, he comes and goes, finally goes late 2010 (but still comes round to see their kids) she hopes they’ll get back together so allows him to have all kinds of correspondence sent to her address, he goes off to university (away from London) September 2011, but comes back once every 3 months or so and stays over a few nights (this even in the long summer holidays). At some point in the 3 year degree course they ‘get back together’ but this does not increase his presence there to any degree. Immediately the course finishes he moves back in with her - 3 days later fraud investigators and police raid the property, arrest them both and seize a whole load of evidence. Significant bits of the evidence they retain and do not disclose - even to the entitlement and overpayment decision maker. Amongst which are the divorce papers confirming she petitioned for divorce April 2011 and has decree absolute granted September 2012!! (i.e. during the same period when they are allegedly LTAHAW).

The problem with his tenancy is that it could indicate that they were in a couple relationship for longer than 2003 which then breaks down in 2009/10 and then resumes afterwards - so it could cut both ways…...

Sure, but you’ve got a client who comes across as credible and reliable and has maintained the same position throughout, whilst being entirely forthcoming at the IUC. Her account/explanation is likely to come across as one consistent with the evidence.

What abou the care point?

Apologies if this has already been said.

You have to challenge the HB Tribunal decision if possible. The first question at the IS Tribunal could be on this point. If this is successful then both can be heard together on a properly presented and argued case.

You report the Judge in the WSOR said it was ‘finally balanced.’ This could suggest avenues. Also you report ‘Pete C - the lead agency were the DWP, HB just followed the IS/ESA decisions.’

HB have to make their own findings of fact to see if they have grounds to supersede the original decision. They appear not to have done this. If there are no grounds from HB to supersede then arguably there can be no decision that can supersede. There was of course the ending of Income Support claim that was a change of circumstances but this could give you grounds to challenge the decision as in itself this is not enough to end the claim.

You need to gather evidence for the arguments related to entitlement-IE they are single and there is no overpayment on the practicalities of their daily living but also motives for their actions. IE the alleged partners health and care needs.

Also do not buy into the argument that just because the alleged partner canot be traced elsewhere means they must be at your clients address.

You need to gather evidence for the arguments related to any potential recoverability and Maybe the WSOR could be of use if even the Judge thought the decision ‘finally balanced.’