Appeal By Dk Against The Secretary Of State For Work And Pensions
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lord Drummond Young,Lord Malcolm |
| Judgment Date | 08 November 2016 |
| Neutral Citation | [2016] CSIH 84 |
| Court | Court of Session |
| Date | 08 November 2016 |
| Published date | 08 November 2016 |
| Docket Number | XA115/15 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 84
XA115/15
Lord Drummond Young
Lord Malcolm
Lord McGhie
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the Appeal
by
DK
Appellant
against
THE SECRETARY OF STATE FOR WORK AND PENSIONS
in respect of a decision of the Upper Tribunal of 29 August 2014
relating to cases SC 100/13/07787 and SC 100/13/07784
Respondent
Appellant: Stalker; Aitken Nairn WS
Respondent: Komorowski; Office of the Advocate General
8 November 2016
Proceedings
[1] The appellant received income support payments in the period between 1999 and 2012. Her entitlement to those payments would be affected if she were living with a man as husband and wife during that period. In a decision dated 13 August 2012 the respondent decided that the appellant had been living together with a named man, GO, from 14 July 1999 onwards. The respondent further decided that from 14 July 1999 to 28 April 2004 and from 7 June 2004 to 19 July 2012 the appellant had no entitlement to income support as GO was in full-time employment. By a further decision made in December 2013 the respondent decided that overpayments of income support amounting to £45,770.34 had been made between 29 March 2002 and 19 July 2012, in that the respondent had misrepresented the material fact that she was living with a partner, GO. As a result it was decided that that sum was recoverable from the appellant.
[2] The appellant appealed against those decisions to the First‑tier Tribunal, which on 8 November 2013 refused both appeals; these were respectively numbered SC 100/13/07787 and SC 100/13/07784. She then appealed to the Upper Tribunal, which on 29 August 2014 also refused both appeals. The appellant’s ground of appeal was that she and GO were not living together as husband and wife during the period from 1999 to 2012; both the appellant and GO asserted that they did not have a sexual relationship and that GO was homosexual, and it was contended that this precluded any finding that they were living together as husband and wife. That argument was rejected by both the First‑tier and Upper Tribunals. The appellant has appealed against the decision of the Upper Tribunal to the court.
Legislation
[3] The question arising in the appeal depends on provisions of the Social Security Contributions and Benefits Act 1992. Part VII of that Act relates to income-related benefits. Within that Part, section 136(1) provides as follows:
“Where a person claiming an income-related benefit is a member of a family, the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of that person”.
Section 137(1) (as amended) sets out a number of definitions that are relevant to the construction of section 136; these apply unless the context otherwise requires. The word “couple” is defined as meaning “a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances”. The definition of the word “family” includes a couple. As already indicated, the critical question in the present case is whether, in terms of the foregoing provisions, the appellant and GO were living together as husband and wife during the period from July 1999 to July 2012.
Decision of the First-tier Tribunal
[4] The First‑tier Tribunal heard evidence from witnesses, who included the appellant and GO, and found it to be established that the appellant had made a claim to income support with effect from 14 July 1999; that she and GO were living together as an unmarried couple from at least that date; and that GO was in full-time employment from 14 July 1999 to 28 April 2004 and again from 7 June 2004 to 19 July 2012. The Tribunal records that by 26 July 1988 the appellant had described GO as her “boyfriend”, and that GO had acknowledged on 16 December 1997 that the appellant was his partner. The parties went on holiday together on several occasions. When they booked holidays they booked them together, making use of tokens that required this to be done; this procedure was to their financial advantage. Motor vehicles were insured on several occasions, and in at least one case the appellant was the policyholder and GO was the named driver. GO was also recorded as being the “policyholder’s partner”. The appellant also arranged a loan in her name because GO could not obtain credit. GO attended family functions. On one occasion he advised his employers that the appellant was his partner and that she was his emergency contact and next of kin. Subsequently, when he changed his employment, this was altered to another person.
[5] GO explained these actings to the Tribunal on the basis of reticence to acknowledge or publicize his homosexuality in view of the nature of the industry where he worked, and also to a history of mental health problems and alcoholism. The Tribunal noted that it was satisfied that the parties had consistently over a period of years created a picture of being partners which was to their financial advantage in different spheres. It did not consider as credible that the appellant knew nothing of the insurance arrangements, as on at least one of the occasions she was the policyholder and insured. She certainly knew about the holiday arrangements and financial assistance that she gave to GO. The Tribunal rejected the explanation for the various statements made by GO over the years. It could not accept that what appeared to be a consistent course of conduct over many years could simply be explained or excused on the basis suggested, namely mental health issues, alcoholism and a reticence to acknowledge his homosexuality publicly. At the time GO was in a responsible job and it was not reasonable to assume that he did not understand what he was saying. While the picture presented by the parties over a period of years might have had as its intention their financial advantage, the Tribunal was satisfied that it also portrayed a picture of the parties’ living together as husband and wife, and the respondent was entitled to rely on this.
[6] Furthermore, the First tier Tribunal held in relation to the appeal SC 100/13/07784, relating to the alleged overpayment, that the respondent was entitled to recover such an overpayment. It was satisfied that the appellant knew of a material fact and misrepresented that material fact. The calculation made on behalf of the respondent was accepted by the Tribunal.
Upper Tribunal
[7] The appellant appealed to the upper tribunal on the ground that there had been no evidence available to the First‑tier Tribunal relating to any sexual relationship between the parties or any child of their alleged union. Nor was there evidence regarding any local public acknowledgment of any such relationship notwithstanding the inquiries said to have been carried out by investigating officers. In all the circumstances it was submitted that there was insufficient evidence to enable the Tribunal to conclude that the appellant and GO were living together as a couple or as husband and wife.
[8] The Upper Tribunal rejected the appeal. After recording the parties’ submissions and the material parts of the decision of the First‑tier Tribunal, it stated that it could be seen from the latter decision that the Tribunal reached their conclusion having regard to a number of factors which included the assertion as to GO’s homosexuality. Every “living together” case depended upon an analysis of the evidence in the particular case, and a range of different factors could be relevant to the question of whether the couple were living together as husband and wife. Evidence of a sexual or an emotional relationship is not essential, although these were factors that would be material to determination of the issue. An assertion by the appellant and GO that he is homosexual did not necessarily exclude the conclusion reached by the First‑tier Tribunal. The Tribunal had had regard to a number of factors, and drew the conclusion that the picture presented by the parties and in particular the appellant over a period of years was of the parties’ living together as husband and wife.
[9] The First‑tier Tribunal had been entitled to reach that conclusion on the factors that it set out in its decision. The Tribunal had had regard to the assertions by both the appellant and GO as to GO’s sexuality, but other factors had to be weighed. Although the appellant had argued that weight should not have been placed on some of those factors, the Upper Tribunal was not prepared to hold that the First‑tier Tribunal was not entitled to rely on them. The factors relied on demonstrated the attitude of the appellant and GO towards their relationship at various times and in specific circumstances. It was open to the First‑tier Tribunal to rely on those factors in reaching their conclusion, and to reject the explanation for such evidence that had been given at a later date. It could not be said that the Tribunal had erred in law because they took a different view of the explanation for a particular adminicle of evidence from that advanced by the appellant. Every “living together” case depended on an analysis of the evidence. The Tribunal’s statement of reasons, when read as a whole, indicated that they had taken into account and found aspects of marriage in the evidence presented to them. There was no basis for interference with their decision.
Contentions for appellant
[10] For the appellant, it was contended that the Upper Tribunal erred in law in holding that the First-tier Tribunal had been entitled to conclude that the appellant and GO had been living together as husband and wife during the period from 1999 to 2012. In what has been taken as the leading case on this question, the decision of Woolf J in Crake v Supplementary Benefits Commission, [1982] 1 All ER 498, it was stated that the existence or non-existence of a sexual relationship...
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