Pension Credit & estranged couples

Hello just wondered if anyone had any thoughts on this case please. The client receives SP of about £90 a week, lives in house with his wife who works and receives her pension but they are totally estranged, he does not have a clue what she earns etc, apparantly he pays all the bills and his wife contributes nothing. The only reason he has not gone down the divorce route as yet is that he is afraid of losing out in terms of house sale and general financial matters but he has acknowledged that he does not want to carry on like this for rest of his life. To me he seems extremely genuine (his misery and resentment seem real enough!!)
Client put in claim for PC and due to his circumstances received home visit from pension service officer who, according to client, advised that he was satisfied about the situation and that he did not anticipate a problem with PC claim. Client was v surprised therefore when he got a decision letter advising him that he was not entitled to PC due to him not being single, client has appealed decision. 
I’ve read up in the CPAG book and it seems that as they are still married and in same household the chances of succesful appeal do not seem too promising?
I was thinking in terms of submission the only thing that i can really do is state the facts according to client and reasons why he has not moved out etc and then after that it is really down to what the Tribunal think when he has his hearing; like i said he does come across as v genuine so that is definitely in his favour.
Any thought as to if this is the right approach or if anyone has any other ideas or have had a similar case greatly appreciated!

House is not the same as household.  Indicators of sharing a common household are do they sleep together, share bills and pool resources, eat together, spend time in each other’s company more than is necessary, how are they seen by others?  This list is illustrative not exhaustive.

You have to take all the indices of what it means to be sharing a common household and rebut them one by one.  However the situation has to be looked at as a whole.  Even if some indices remain that does not in itself found a common household.  The indices are things that a tribunal should apply its mind to and are not hurdles for the claimant to get over.

So in terms of a submision do you think it would just be a case of explaining the facts as to why they are still in same household and explaining that they live totally seperate lives and giving examples of this (as apparantly agreed by the pension officer who visited client) Your reply gave me the idea of maybe asking for a statement from their (adult) daughter? And then its obviously up to Tribunal to decide on his credibility; due to the nature of case i was thinking caselaw may not be necessary? (If it is do you know any?!)

Case law is not necessary.  This is well established law.  Just explain all the facts clearly and get witness statements (or better, get witnesses to attend any hearing).  And yes, credibility is massively important.

I had a similar case (except the benefit was Income Support and the spouse had moved back in, so it was a supersession rather tha n a new claim). At appeal JCP simply argued that they had to be a couple as they were married and lvigin in the same house. The chair asked if I had any caselaw, I didn’t and just said that the regulations made it clear that they had to share a household rather than just a house.

Sadly this wasn’t accepted by the chair and I had to appeal to the Commissioners/Upper Tribunal. Decision was to remit to a new hearing which was successful (the presenting officer had to admit that they had established no case). The UT decision also made clear that the onus was on JCP to show they were living as a couple.

OK great, thats really really helpful; thank you both very much indeed and have a good day!

SJT

You say “do you think it would just be a case of explaining the facts as to why they are still in same household”, but isn’t it the case that you have to argue they don’t live in the same household - they are 2 separate households living in the same house?

I wonder whether you could quote Seeand’s UT case in support, if you can get the case number.

i’m not sure it’s that helpful, but i can email a copy of the decision if you like?

Hi Derek, thats a very good point, yes thats exactly what i need to be arguing!
I won’t take the UT decision at this point in time Seand but thank you for the offer. I have seen client since enquiring about this case and he can get witness statement from his daughter; i think this, plus the fact he is attending in person and is v credible will make a strong case. Thanks again for all the advice and have a good day everyone.