EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Mackay of Drumadoon Lady Smith	[2010] CSIH 7 XA140/08 OPINION OF THE COURT delivered by LORD REED in the Appeal by JANET TONER-BOYD Appellant; against SECRETARY OF STATE FOR WORK AND PENSIONS Respondents: _______

Act: Party

Alt: Bartos; Solicitor to the Advocate General for Scotland

3 February 2010

[1] This is an appeal under section 15 of the Social Security Act 1998 against a decision of a Deputy Social Security Commissioner. The appeal concerns the appellant's application for bereavement benefit following the death of the late William Boyd. Such benefit is payable only to a spouse of the deceased, under section 36 of the Social Security Contributions and Benefits Act 1992. The appellant's application was refused by the Secretary of State on the ground that she was not married to Mr Boyd. The appellant appealed against that decision to the Appeal Tribunal under section 12 of the 1998 Act. Her appeal was refused, for reasons which were explained in a written decision. She then appealed against that decision to the Deputy Commissioner under section 14. Such an appeal lies only on the ground that the decision of the tribunal was erroneous in point of law. The Deputy Commissioner found no error of law and refused the appeal. The appellant now appeals against that decision to this court, having been granted leave to do so by the Deputy Commissioner. An appeal to this court lies only on a question of law.

[2] The material facts, as found by the tribunal, are as follows. The appellant began living with Mr Boyd in 1978, at which time he was married to another woman. He was divorced from his wife in 1979. He and the appellant were free to marry each other after that date. They lived together until his death in May 2006. They never went through any civil or religious form of marriage. The appellant continued to be known as Miss Janet Love Toner. That was the name she used in her dealings with official agencies, her MSP, her solicitor and her bank, and in her application for bereavement benefit. Some correspondence sent to Mr Boyd and herself was addressed to Mr and Mrs Boyd. She and Mr Boyd discussed marriage as recently as November 2005. They wore wedding rings for about 15 years. Mr Boyd left his estate to the appellant. The appellant's close family knew that she and Mr Boyd were not married.

[3] In its discussion of the evidence, the tribunal also noted the appellant's evidence that she and Mr Boyd had discussed marriage on a number of occasions but had never got around to it, and that they had intended to go through a wedding ceremony. The tribunal noted also that the appellant had produced a letter from her sister which stated that Mr Boyd said, in relation to the appellant, that "One day she would make an honest man of him". The tribunal observed that that is a phrase used to refer to the marriage of an unmarried couple. The tribunal found that both the appellant's family and Mr Boyd's family knew that they were not married. In that regard, the tribunal referred to a letter from her sister which the appellant had produced, which stated that family members such as cousins, aunts and uncles knew that they were not married. The tribunal also stated that it accepted the appellant's evidence, in a signed statement, that her work colleagues, and Mr Boyd's, knew that they were not married. The tribunal did not accept contrary evidence given by the appellant at the hearing. It accepted that some colleagues might have thought that they were married, referring in that regard to letters from two work colleagues which the appellant had produced, but concluded that "those who knew them well, their closer friends and work colleagues, clearly did know that they were not married". The tribunal also noted that there was no evidence that the appellant and Mr Boyd told people that they were married. It noted that, in her signed statement, the appellant said that Mr Boyd was keen to be married but that she did not think it was necessary.

[4] The tribunal held that the appellant had failed to establish that she and Mr Boyd were married by cohabitation with habit and repute. The legal requirements of such a marriage were not satisfied. The appellant had not established that she and Mr Boyd had been holding themselves out to be married. Nor had she established that they were generally perceived to be married. Nor had she established that they regarded themselves as being married. In relation to the last point, their intention to marry at some time in the future was regarded as significant.

[5] On appeal, the Deputy Commissioner found no error of law. He noted that the approach to the law adopted by the tribunal was in accordance with the decision of the court in Vosilius v Vosilius 2000 SCCR 679. He noted that there was evidence to support the tribunal's finding that the appellant and her husband were not generally reputed to be married, and that the tribunal was entitled to reject the contrary evidence given by the appellant. He also noted that in Mackenzie v Scott 1980 SLT (Notes) 9 and Walker v Walker 1998 SLT 1133 the court had regarded the fact that the parties had contemplated marriage in the future as a significant factor.

[6] In presenting her appeal, the appellant took issue with the conclusions which the tribunal reached as to the facts. She criticised the tribunal for attaching undue weight to certain evidence (in particular, the signed statement) and insufficient weight to other evidence. It is important however to understand that the assessment of the evidence, and deciding what facts the evidence established, were the responsibility of the tribunal, not of this court. As we have explained, the powers conferred on the court by Parliament in relation to a matter of this kind are confined to questions of law. The appellant also criticised the tribunal for failing to have regard to some of the letters which she had submitted from persons who had thought that she and Mr Boyd were married. It is true that the tribunal's decision does not refer specifically to all of the letters which the appellant submitted. The tribunal however accepted that some work colleagues and other persons had thought that the appellant and Mr Boyd were married. The tribunal appears therefore to have considered the letters from which that conclusion could be drawn, and accepted that evidence.

[7] It has been said that whether a couple have cohabited with the necessary repute is essentially a question of fact: Kamperman v MacIver 1994 SLT 763. The evidence must establish that the parties are generally reputed to be husband and wife: Ackerman v Logan's Executors 2002 SLT 37. The tribunal concluded that that was not established. That conclusion was supported by the tribunal's findings in fact. In particular, the tribunal found that the parties' close relatives, friends and colleagues did not regard the couple as married. In those circumstances, the appeal was bound to be refused. It is not suggested that there was no evidence to support that finding. The fact that other evidence might have supported a different conclusion does not mean that the tribunal erred in law.

[8] The evidence must also support the inference that the parties have given their tacit consent to be married to each other. In that regard, evidence that a couple who are living together intend to marry at a future date is relevant, as the Deputy Commissioner noted, since it may be inconsistent with any inference that they consider themselves to be married already. The appellant criticised the tribunal for attaching undue weight to one item of evidence bearing on this issue, namely a statement which she had signed. She argued that all that should be taken from the evidence was that she and Mr Boyd had spoken of formalising a marriage they already had. The tribunal however considered the appellant's evidence to that effect, and did not accept it. It was for the tribunal to assess the evidence and decide the inferences which should reasonably be drawn from it: as we have explained, that is not the function of this court. It cannot be said that there was no basis on which the tribunal could reasonably have formed the view which it did: as the Deputy Commissioner noted, the tribunal's conclusion was supported by passages in letters from the appellant's sister and son, by her own signed statement and by her oral evidence. This issue was not in any event of critical importance to the tribunal's decision, which was bound to be against the appellant once it had concluded that she and Mr Boyd were not generally considered to be married.

[9] In the circumstances, we cannot detect any error of law in the decision of the Deputy Commissioner. The appeal must therefore be refused.