Terms & Conditions

[emmadring]

Thought I would raise this issue as I have seen a few cases recently where this prolem occurs.

The first was where we had a married couple who had been separated for 12 years. He had moved back into the home because he had nowhere else to go, but they were adamant that they were not ‘together’ and should not be treated as a couple. Husband on JSA.

The second concerns another married couple, separated for a year. The husband is forbidden by court order from entering the upstairs or the dining room of the house, and is apparently living in the garden shed. Wife is on IS.

In both cases the husband uses facilities such as water etc. No rent is paid to the wife.

I believe both claimants in that they really are not living ‘as a couple’, however they are still legally married. The problem comes when you have to determine how the husband should be treated for the purposes of benefit.

As I understand it, the husband cannot be a separate household because he does not pay any rent. The wife’s legal interest (exclusive possession etc) cannot co-exist with the notion that another person is on the premises but occupying a separate household. Also I htink there is a likelihood of some degree of financial support between the couples, and definite sharing of some facilities (e.g. bathroom, kitchen).

therefore the husband must be a partner or a non-dep on the wife’s claim.

Reg.2 ‘partner’ = member of a married couple who share a household.

Reg.3 ‘non-dependant’ = a person who is not a member of the clmts family etc. who normally resides with the clmt.

Both married couples insist that they are not living as partners – they are separated and live separate lives. But he cannot be a non-dep because (as pointed out inCH/2267/2005) this would mean that the husband ‘normally resides’ with the wife but yet they do not share a household (otherwise thay are a married couple).

In thes two cases we have had to conclude that the married couple are ‘partners’. Of course, they are actually better off this way in terms of benefits. But I can’t help but feel it is quite an unsatisfactory situation. Surely this situation cannot be too rare given property prices (especially in Sussex), but there seems to be no way out of the conclusion that the couple are partners, even when they are living separate lives (at least as far as is possible when residing in the same property). The only way out seems to be if there is a separate legal interest carved out for the husband (a sub-tenancy etc). But in these cases the husband cannot afford to pay rent or even pay for services he is using.

Sorry for the long post! Have been thinking about this one for a while!

[Anonymous]

Hi there,

Thought I’d post a reply having had a certain amount of involvement in the CD you quote!

First off I don’t agree with your analysis of the effect of another person in the dwelling on the wife’s legal interest. ‘Exclusive possession’ is a term of art pertaining to land law, it does not mean that the wife must be the only person present in a dwelling to be said to have ‘exclusive possession’.

Exclusive possession means that the wife’s legal interest i.e. the estate that she holds (be it freehold or leasehold) confers on her the capacity to control the premises and exclude all others should she choose to exercise that right. If the husband and wife co-own the property or are joint-tenants then they have exclusive possession against the world, although neither one can exclude the other from any part of the property.

If the husband is not a co-owner of the property or a joint-tenant then he is a licensee – a person whom the wife is allowing to occupy her dwelling at her permission (a guest if you like) – which can be withdrawn at any time.

My view is that, in any case, this issue is not relevant to the question of whether or not to treat the husbands as non-dependants.

I’m of the opinion that the circumstances you have described are precisely the kind of arrangement that deputy commissioner Poynter would have considered to allow the husband to be treated as a non-dependant in CH/2267/2005. Essentially the gist of the decision is that in the absence of evidence to show that a married couple are maintaining seperate households – they must be treated as partners.

To put it another way I understand Poynter to be saying that there is a prima facie inference that a husband and wife who reside together are partners. This inference must be rebutted by evidence that showing that they maintain seperate households before a local authority may conclude that one party is a non-dependant and not a partner.

I don’t think that you need to show that the husband is paying rent in order to conclude that he is maintaining a seperate household – would this not make him a lodger rather than a non-dependant in any case?

Sharing of facilities is also consistent with being a non-dependant – see paragraph 46 of Poynter’s decision.

Poynter suggests that evidence will be required to show that the parties are maintaining seperate finances in order to conclude that they are non-dependants – I think this is where you need to focus your investigations. I would also suggest that other factors – such as the court order against one of the husbands and the length of the seperation between the other couple – could also be considered relevant evidence supporting the conclusion that they are maintaining seperate households.

Hope this is of assistance.

[emmadring]

I agree with your analysis of the decision – prima facie a married couple residing together are partners.

As I read the decision I thought that Commissioner Poynter was saying that for the husband to be treated as a non-dep, he would have to be ‘normally residing’ (i.e. sharing more than a bathroom, kitchen and common areas – such as a living room) but yet not a member of the household, and that this would be difficult to prove despite the tests being dirfferent because of the obvious overlap.

So the claimant and husband are in a catch 22 because they do not consider themselves to be ‘partners’ as they maintain separate households, but yet husband cannot be a non-dep because if they are in separate households chances are the husband is not ‘normally residing’.

I think in these cases there is likely to be a degree of financial support. Although the [b:4e0b1710ca]finances[/b:4e0b1710ca] are separate in that bank accounts are not shared etc, in both cases husband contributes nothing to rent and bills or expenses – so there is support in that claimant is paying for husband’s use of facilities.

I take your point about the exclusive possession matter. I did at first think it was dubious when discussing it in the office earlier, but I was talked round!

[Anonymous]

Can i resurrect this rather ancient thread and pose a slightly different question?

Claimant jointly rents a 2 bedroom property with his ex-partner and their child. Ex-partner is in receipt of CHB and tax credits for the child. She is not claiming HB.

The claimant does not have exclusive use of ANY rooms – he sleeps on the sofa.

From what i can gather (correct me if i’m wrong!!!), the lack of exclusive rooms does not affect him getting the shared room rate of LHA, (HB Reg 13D(1)(a)(ii) applies) but what i am struggling with is whether we would/ could class them as having a separate household?

The DWP are happy to pay him JSA as a single person, so they have accepted they are not a couple – but could we make a separate decision bearing in mind the household arrangements? Does the fact that the tenancy is both of their names preclude the possibility of them sharing a common household?

Have i answered my own question!?!

[Kevin D]

“Does the fact that the tenancy is both of their names preclude the possibility of them sharing a common household?”

No.

“Household” goes beyond the physical. Based on the info given, it seems to be a straight forward case of joint tenants who happen to have previously been partners.

As to the apportionment of the full liability, over to you (but I can’t see 50/50 being appropriate!).

[Anonymous]

Thanks Kevin, much obliged as always!

[Author]

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