NA v Secretary of State for Work and Pensions

In Crake and Butterworth v Supplementary Benefits Commission [1982] 1 All ER 498, Mr Justice Woolf refers at 505g to “admirable signposts to help a tribunal…to come to a decision whether in fact the parties should be regarded as being within the words “living together as husband and wife.” The question arose because, as he held at 502c-d:

From the tribunal’s reasons, it is clear that it did, indeed, set great store by the large and varied amount of evidence which it considered indicated that they were living together in the same household at the material time. As Crake and Butterworth makes clear, that cannot be an end of the matter. But this was a case in which, in effect, the tribunal concluded, consistently with Crake and Butterworth , that it did indeed provide strong evidence to show that they were living together as man and wife. Given the relationship over a period of time which had resulted in the birth of three children and that the tribunal found that the couple had been living together (and giving out their address at the same property) from before the third child’s conception, that was an approach the tribunal was fully entitled to take.

The “admirable signposts” may well have a role to play in difficult cases of categorisation, though even then, it is appropriate to guard against too ready a reliance on concrete observable factors of a relationship alone: see CIS/17028/1996 and CIS/87/1993. Illustrations of such alternative explanations for tribunals to consider are provided by Crake , where the claimant claimed to be the housekeeper of the man concerned, and by Butterworth , where the man was said to have moved in to help the claimant while she was unwell, while in R(SB)35/85, the claimant continued to provide care for the man, as she had previously done when both of them had lived in the same household as her late brother. In the present case, however, there was, as Mr James submitted, no alterative explanation provided.

The admirable signposts are another way of looking at the same question as is addressed by considering the parties’ general, financial and sexual relationship (see R(SB)17/81 at para 11.) However useful they may be, it is in my view wrong to elevate them to a requirement to be considered in every case. The question in each case is whether the tribunal was entitled to reach the conclusions it did on the evidence before it.

As Mr Commissioner Jacobs (as he then was) noted in CIS/17028/1996 at para 24:

In the absence of any alternative explanation, it is wholly unsurprising (and certainly not challengeable given the limited role of the Upper Tribunal, as the successor to the Commissioners) that the First-tier Tribunal concluded that the living together (as it found), coupled with a sexual relationship over a prolonged period resulting in three children and financial links evidenced through the taking out by Mr H of the Sky subscription and TV licence for the claimant's address, pointed to the relationship being one of living together as husband and wife. That conclusion was open to the tribunal on the facts found.

The tribunal might have found further facts on the evidence before it, but had it done so, it would not have made any difference. It could have found, for instance, that Mr H opened a Next account but it was the claimant who was perceived by Next as the customer, and it could have found that the deposit on the insurance was paid by the claimant but subsequent instalments by Mr H. Both findings would only have tended to reinforce its conclusion that the financial aspect of the relationship indicated a relationship of an unmarried couple. It might have found as a fact that Mr H cared for the children when the claimant had to care for her mother, who had become unwell, but this would have tended to indicate a degree of support and public recognition within the extended family. The facts found by the tribunal might have been insufficient if there were others to be derived from the evidence given which pointed in a different direction, but there were not.

Nor did the tribunal did not need to spell out its reasons more fully. It is clear why the claimant lost. The Upper Tribunal can see whether or not an error of law arose. The reasons are not in all respects ideal, but they are sufficient. As in my view the tribunal was entitled to reach the conclusion it did without the need to address the matters covered by the “admirable signposts”, it follows that it cannot be an unlawful; deficiency in the tribunal’s reasoning to fail to go through the signposts point by point. Had it chosen to spell its reasons out more, however, including in terms of the “admirable signposts”, it might have observed, based on the findings which it did in fact make, that the extended period of living together and the sexual relationship provided an indication of stability; the question of children was self-evident; there were some indications found by the tribunal of Mr H participating in the financial life of the household, via payment of insurance, phone bills, the Sky subscription and the TV licence; and there was a degree of public acknowledgement in the giving for Mr H of the same address as the claimant to the GP and the school. This however would have been a recitation of factors which, having got as far as it did for the reasons it gave, was not required of it in the absence of any other explanation being put forward.

It has not been disputed that the claimant needed to report if a partner moved in with her and that she did not do so. Nor has any challenge been made to the amount of the overpayment.

November 2011