Whether a lack of evidence of a sexual relationship is determinative when assessing if two people live together as husband and wife

Friday 3 February 2017

DK v The Secretary of State for Work and Pensions [2016] ScotCS CSIH_84, 8 November 2016

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DK v The Secretary of State for Work and Pensions [2016] ScotCS CSIH_84, 8 November 2016

In DK v The Secretary of State for Work and Pensions [2016] ScotCS CSIH_84 (Lords Drummond Young, Malcolm and McGhie) the Court of Session considered an appellant who received Income Support until 2012 when the DWP decided that she had been living together with a named man from July 1999. An overpayment in excess of £45,000 was found to be recoverable from the appellant.

The First-tier Tribunal (FtT) considered evidence from the alleged partner to the effect that he was a homosexual and that there was no sexual relationship between himself and the appellant, and that his actions could be explained by his reticence to acknowledge or publicise his homosexuality in view of the nature of the industry in which he worked, and also due to a history of mental health problems and alcoholism. The FtT dismissed the appeal concluding that “the parties had consistently over a period of years created a picture of being partners which was to their financial advantage”. The Upper Tribunal (UT) rejected the appellant’s appeal on the basis that the FtT had been entitled to reach that conclusion on the facts that it set out in its decision.

HELD: Appeal dismissed. The Court said that while a FtT must give some explanation as to why it has reached a conclusion that a particular couple are LTAHAW, nothing in Crake v Supplementary Benefits Commission [1982] 1 All ER 498 indicated that the conclusion needed to be based on anything other than an assessment of the evidence as a totality. Indeed, the reliance on the factors set out as “signposts” was a strong indication that what is required is an appraisal of the totality of the evidence, treating each of these factors as no more than that, and certainly not as determinative. The sexuality of the alleged partner could not be determinative of that question. Nor could the existence or otherwise of a sexual relationship. These were no more than factors that may be relevant to the critical question.

COMMENT: the focus on the living arrangements between the man and the woman in preference to the emotional nature of the relationship appears to mark a major shift in judicial thinking on this topic; see for example, CIS/4156/2006: which held that simply compiling a list of domestic activities shared by the parties would not be enough to determine the outcome of a living together case. The decision maker must have regard to the overriding importance of the general relationship when investigating and interpreting the domestic facts.

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