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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2008] UKUT 8 (AAC) (05 November 2008) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2008/8.html Cite as: [2008] UKUT 8 (AAC) |
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IN THE UPPER TRIBUNAL
IN THE UPPER TRIBUNAL Case Nos CIS/2074/2008
ADMINISTRATIVE APPEALS CHAMBER CIS/2466/2008
CH/2463/2008
[2008] UKUT 8 (AAC)
Before UPPER TRIBUNAL JUDGE WARD
Decision: The appeal is allowed. The decisions of the appeal tribunal sitting in Hull on 21 February 2008 involved the making of an error on a point of law and are set aside. The cases are referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 13 of the Reasons.
" it is generally accepted that the question whether a woman is cohabiting with a man as his wife, within the meaning of the statute, requires an examination of three main matters: (1) their relationship in relation to sex: (2) their relationship in relation to money: and (3) their general relationship. Although all three are as a rule relevant, no single one of them is necessarily conclusive."
"In my view the "admirable signposts" place a wholly inadequate emphasis on the significance of the parties' "general relationship". Indeed, it is arguable that it is the parties' "general relationship" that is of paramount importance and that their sexual relationship and their financial relationship are only relevant for the light they throw upon the general relationship."
"it is only when the external aspects of the relationship are viewed in the context of the more emotional and less tangible side of the relationship that their proper significance can be determined."
"it does seem to me that there must be strong alternative grounds for holding a relationship to be akin to that of a husband and wife when there has never been a sexual relationship, because the absence of such a relationship in the past does suggest that the parties may be living together for reasons other than a particularly strong personal relationship."
a. In looking at what is a question of "compound fact", the tribunal did consider the factors as a composite whole and did mention the issue of a sexual relationship even though they conceded no questions had been asked about this and no evidence was volunteered. I disagree. Other than reciting that the factor formed one of the "admirable signposts", the tribunal avoided the topic. Even without asking questions or information being volunteered, there was material known to it (such as the categorisation of the relationship as "common law" on the finance application form) from which the tribunal might or might not have seen fit to draw inferences on this point, but it did not appear to have considered the topic.
b. The issue of a sexual relationship is only part of the overall consideration of the general relationship and a great many marriages exist without there being a sexual relationship. In my judgement this argument is relevant to the subsequent weighing up of the information, derived both from following the "admirable signposts" and otherwise, in order to reach the view of the relationship as a whole required by the authorities cited elsewhere in these Reasons, rather than as to whether the possible existence of a sexual relationship needs to be explored in the first place. Indeed the Secretary of State appears to accept this: "the Department would accept that it was a consideration but not necessarily an important consideration."
c. In CIS/2599/2002 Mr Commissioner Rowland stated that questions "may" have to be asked not that they "must" be asked. I do not regard this as a point of substance. In my view, the wording is concerned with ensuring that a particular "admirable signpost" could be addressed. It would not have been appropriate to lay down a hard and fast rule applicable to every case: for instance, even if information had not been volunteered, other information might have become available from which a tribunal could draw inferences on the point, without the need to ask questions. However, in the present case, the tribunal did not address the point by another route and so this is a case where the possible need to ask questions implicit in use of the word "may" became an actual need.
C.G. Ward
Judge of the Upper Tribunal
5 November 2008