hi
i have a client who i have represented before on an overpayment case. basically this client had an overpayment for a period when he and his friend were living together in a house but not as husband and wife. They basically had seperate households. We won the overpayment appeal which was looking at that particular period. Now a month after that successful appeal hearing the client and friend got married, which he states was a marriage of convenience. They had to get married as the friends ex-partner was violent and was harrassing the family and kids. The wifes daughter is basically under witness protection. So, client confirms that had no option but to get married. Friend, (now wife) also has mental health and disability issues. So client is also carer. However, clients argument is that why should he not get income support as a single person just because he is amrried to her but it not having a relationship, as he is gay! Does anyone have any suggestions because i have spoke to teh DWP and they have stated that there is no living together decision here because even though they are not living together as husband and wife they are husband and wife???
Confused or what! i definately feels that we should have some sort of argument because even though they are married they do most things seperately. Client has now moved out but does the same things as before, but the DWP have given benefit from november 2006. Client wants the benefits as a single peron from march 2006 - november 2006.

any suggestions or caselaw that anyone has come across?

thanks

The matter still revolves around households and couples.

You should start with the interpretations and definitions. couple means a man and woman who are married to each other AND are members of the same household.

Sounds like a tough argument but not unwinnable.

The only difference seems to be the marriage, if they were still maintaining the seperate households as before I would have thought this would strengthen your case.

Hello, not sure if this will help, but by getting married there is a relevant change in their situation I think.

When they were not married, the caselaw considers, for example, the 6 signposts the DWP always state are relevant to determining what is cohabitation (such as living in the same household, children, how they are viewed in public, etc.) Also of importance though can be the intentions behind the parties being in the same house eg being in same household as easier to care for her. Were the full written reasons for the overpayment decision issued? It might help to know these.

However, when they got married the legislative basis for the DWP's decision changes to simply: are they members of the same household?

This can include issues such as separate eating arrangements, no evidence of family life (see CPAG p754). But I think this is different to the former situation of cohabitation and I think is slightly easier for the DWP to prove as to prove it requires less justification. By this I mean a tribunal may not be able to take in to account all the circumstances of the case if all that needs to be shown is are they living in the same household (eg the carer relationship might not be relevant now they are married).

Also, I may be missing something, but I cant see why a violent ex-partner and daughter on a witness protection scheme, for all that that is a terrible siutation to be in, means they had to marry each other? I am not sure, however, that, whatever the reasons for the marriage, a tribunal could consider this as relevant, when the question they will ask is are they living in the same household. I can still see them asking why they got married though. If it can help towards showing they dont live in the same household, then it may be relevant. The focus of the arguments I think will need to be on showing a separate household.

Why I mention all of this is that I have tried an argument for a married couple where they had separated but she moved back in to help him due to his disability, but this notion of caring rather than a loving relationship failed at tribunal and at Commissioners because it was said such things are not important - only, do they share a household?

I must end by saying though that your case does not have the same facts as the one I had and the terms are not defined in the legislation, so obviously you can try and argue what you want. Good luck

That's my understanding too. The fact that they moved together to facilitate caring suggests that they were in the smae houshold. Separation under the same roof, which is well known to family lawyers, means maintaining completely separate households in a way which is inconsistent with caring to any significant degree.

It doesn't emerge from the facts whose house it is/was before the marriage; if the carer's, was any HB/CTB in payment and if so was there a non-dependant deduction? If there was then that means he was a member of her household.