Meaning of ‘former partner from whom you are not estranged’

We have a client who is a British national returning from Thailand, in receipt of income-related JSA.  However, a tariff income has been applied because he owns a property (value about £11,000) in Thailand.  His wife is a Thai national and she is residing in the marital home in Thailand.  Our client is unable to work in Thailand and has returned to the UK to find work; he is currently staying with his parents.  He would like to remain in the UK and for his wife to join him once he has found work and a home, however he is finding it hard to live on the reduced income.  He is not intending to sell the home in Thailand.
We have appealed the decision not to disregard the home as capital and put forward the argument that as they are not living in the same household, they are not treated as a couple and the home should be disregarded as it is occupied by his former partner from whom he is not estranged.  The example used by the DMG is where one member of a couple goes into residential care.  In their submission, the DM has not addressed this argument at all.
Has anyone ever tried using this argument in a case such as this?

Why are you defining the wife as a ‘former partner’?

It seems to be the only argument we can pursue.  Any premises occupied by a partner is disregarded as capital where they are aged 60 or incapacitated - neither of which apply in this case.  Similarly the provision for ‘former partner’ does not apply if they are estranged or divorced, so the meaning of ‘former partner’ seems very loose/vague.  We are seeking to argue that they are temporarily separated, albeit geographically, and as they are not living together in the same household, they are not treated as being a couple - in the same way that when a married partner moves into residential care, they are living separately but remain married and are not considered to be estranged.

If you argue that they are only temporary absent from one another and intend to resume living together without further qualification then they will be treated as still members of the same household as each other under reg 78 of the JSA Regs.  However, have a look at CIS/13805/1996.

This concerned a woman in the UK whose husband was in Pakistan waiting for permission to enter the UK. She made it clear when claiming IS that she and her husband were temporarily apart, would be sharing a household upon him entering the UK, or if permission was refused then she would return to Pakistan.

The commissioner decided that the intention to resume living together under 16(2)(a) of the IS Regs (reg78(2)(a) of the JSA Regs is in the same terms) must be an unqualified one and not contingent on an outside event such as being granted permission to enter.  Therefore they were not members of the same household and that she could claim IS as a single person.

If a similar situation exists in your case you should be able to claim former partner status as they are not members of the same household and they are clearly not estranged.

This looks really useful, thank you.