Orders of the Day — Cohabitation

– in the House of Commons at 2:29 pm on 4th February 1983.

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Motion made, and Question proposed, That this House do now adjourn.—[Mr. Berry.]

Photo of Mr Roland Moyle Mr Roland Moyle , Lewisham East 2:41 pm, 4th February 1983

I wish to draw the attention of the House to the case of Mrs. Amy Peirce as it affects the cohabitation rule. I do so not in order that the Minister may move to resolve her troubles, because that option was removed at an early stage by the reference of Mrs. Peirce's case to an appeals tribunal under social security legislation which has decided against her. Indeed, even as we are debating the issue here this afternoon, it may be that her legal advisers are filing an appeal to the social security commissioners to take the matter further.

I want to use Mrs. Peirce's case to seek from the Minister an undertaking to consider it and use it as an opportunity to clarify the cohabitation rules so that in future people, particularly elderly people, might be protected from the harassment which the general vagueness of the regulations presently causes. I also do so because the case illustrates how one arm of the Department of Health and Social Security can be used to frustrate the Secretary of State's policy in respect of another arm—the National Health Service.

Whatever the outcome of an appeal to the social security commissioners, the regulations are not clearly enough drawn at the moment. They should so be drawn and perhaps drawn in a more liberal fashion.

To recapitulate the facts, Mrs. Peirce is a widow aged 63. Her husband died in 1974. For as long as she could Mrs. Peirce worked as a bakery manageress and gave up that job in 1979. By then it was clear that she was suffering from multiple handicaps in the shape of Parkinson's disease and osteoarthritis. Since 1979, those disabilities have caused her increasing pain and loss of mobility. The time came when it was difficult for her to look after herself. She now spends most of her time in a wheelchair and, as I discovered when I called on her recently, she can walk around the house only with the aid of a walking frame. She suffers considerable pain as a result of her disabilities.

Mr. Barnett, who is aged 74, and his wife were friends of the Peirces for many years. He is a widower and until about two years ago he was living in a room above a pub opposite Mrs. Peirce's house. They had what seemed to be a brilliant idea that was touched off by Mrs. Peirce's increasing infirmity and by the fact that there was an empty house next door to her, which was the subject of continual vandalism which caused her considerable anguish. She was not only helpless, but frightened.

The brilliant idea was that Mr. Barnett would leave his room over the pub and move in to Mrs. Peirce's house—she is an owner-occupier—and look after them both. All went well for two years before DHSS officials descended on them and decided that they had breached the Department's cohabitation rules. Mr. Barnett and Mrs Peirce were so innocent of any intent to defraud that they co-operated fully and freely with the officials and made all the necessary information available so that the officials could take their decision.

I understand that the cohabitation rule is that a single person living alone is entitled to one set of social security payments. If two single persons are living together—as man and wife, as the rules put it—they are not entitled to twice a single person's social security payments. The theory is that a number of overheads can be shared and, therefore, the social security payment is less than twice the amount to which a single person is entitled.

I have often come across people falling foul of the rule when they are living together, but pretending to live apart, and, thus, drawing twice the benefit to which one person would be entitled. The case that I am discussing concerns two people living apart, but pretending to live together—a reversal of the normal situation. There is no question of any sexual relationship between Mr. Barnett and Mrs. Peirce.

In another capacity the DHSS preaches the doctrine of care in the community. When I was the Minister for Health, I often made speeches in the House and outside about the importance of handicapped people being taken care of in the community rather than in institutions. We used to promote good neighbour schemes to encourage neighbours to do kindly acts for elderly and incapacitated people.

We always had to persuade people that we were not arguing that the NHS and social services should dodge their responsibilities and force their problems on to the shoulders of overworked relatives. We pointed out that there was a network of social services in the community which could be used to support elderly and handicapped people.

Nevertheless, the voluntary support of the elderly and the handicapped in their own homes is the best and most caring way of looking after them. I should have thought that the arrangement that Mr. Barnett and Mrs. Peirce entered into was an ideal example of what successive Ministers for Health have pressed for.

As a result of the arrangement falling foul of the cohabitation rules, Mrs. Peirce has now lost £15 a week in social security payments, or £780 a year, which is a substantial sum for an elderly couple reliant only on pensions for their income, supplemented by social security payments.

It is odd that if Mr. Barnett had been Mrs. or Miss Barnett, Mrs. Peirce could have carried on drawing her £780 a year. Also, the DHSS has saved £780 on its social security budget. But what happens if Mr. Barnett decides that to allow Mrs. Peirce to resume the payment of £15 a week to her he will retire across the street again and live in his pub room and not have the same close relationship with Mrs. Peirce that he has had up to now? She will then draw the £780 from the DHSS, but the London borough of Lewisham social services department stands at risk of being heavily involved in substantial payments.

Mrs. Peirce would probably have to be visited seven days a week for at least one meal a day by meals on wheels. In the borough each meal brought to an elderly person in a van costs £1·17, which works out for the whole year at £425·88. It is then almost inevitable that Mrs. Peirce would have to be helped by the home help service to get the household duties performed. An hour's visit by a home help costs the borough £2·92. Supposing that she had the minimal commitment of a home help for two hours a week—I do not think she could get by on less—it would cost the borough £303·64.

It may also be thought desirable for a community nurse to visit for at least an hour a week. That is £3·99 an hour, plus—I have not been able to calculate this—London weighting. A sum in excess of £4 a week could be expended on a district nurse, which would cost the health authority at least £207 a year.

As a result of Mr. Barnett leaving Mrs. Peirce because of the Department's enthusiasm for extracting the full £780 a year from Mrs. Peirce, the London borough of Lewisham and the health authority would be paying out £937 in extra services, as well as having to return the £780 supplementary benefit that it removed from her. That is only the minimal cost. It may be thought desirable to take Mrs. Peirce out of her home six days a week to an occupational or physiotherapy centre by ambulance to give her therapy and a meal at the centre. She is in an advanced state of handicap and disability. If that happened, it would cost the borough £2,444 a year.

Finally, because of Mr. Barnett's absence, Mrs. Peirce may deteriorate, being on her own, and become introverted. We all know that that leads to an acceleration of mental and physical handicap. It may be felt that the borough should remove her and put her in part 3 accommodation. That decision would cost the borough £5,705 a year.

Not only would we have these substantial extra costs, admittedly borne on budgets other than that of the DHSS, but as a result of those expenditures by the borough the risk is increased that it would be visited by the Secretary of State for the Environment and penalised for overspending its targets. Indeed, the policies of Gradgrind, as practised by the DHSS on social security in this case and in many similar ones, are leading to the economics of lunacy. The public budget which the Government are so anxious to cut would be substantially greater as a result of the regulations being followed with an intelligent application of the cohabitation rules.

We need clarification of the regulations so that the Mrs. Peirces of this world are not wracked by uncertainty as Mrs. Peirce has been since last August and may well, as a result of an appeal to the social security commissioners, be for weeks to come. I am informed by Mrs. Peirce's legal advisers that if they do not get a favourable decision they will consider taking the matter on appeal to the High Court. They believe that they have a sufficiently good case in view of the vagueness of the regulations and the various obiter dicta by judges in cases involving the regulations.

The present position is out of tune with modern thinking. A recent study on the family produced a report "Families in the Future" which states: Less than half the people over 65 now believe it is morally wrong for couples to live together"— that is, to live together outside matrimony.

As a minimum, the Government should restrict the cohabitation rules to couples below retirement age as an incentive to the elderly to team up and look after each other, thus extending care in the community. I know that that is the aim of the present Secretary of State, as it was of the Labour Secretary of State. The present position is indefensible. The Minister cannot do anything for Mrs. Amy Peirce, but he could do something for the Mrs. Amy Peirces to come.

Photo of Mr Tony Newton Mr Tony Newton , Braintree 2:58 pm, 4th February 1983

I am grateful to the right hon. Member for Lewisham, East (Mr. Moyle) for raising the case because it has caused a good deal of concern. I understand the reasons for bringing it to the House. Although what I say will not be tremendously comforting, I genuinely regret the obvious distress caused to Mrs. Peirce.

The right hon. Gentleman fairly outlined the course of events. I do not want to go over the same ground, although my information is slightly different from his. For example, I understand that Mrs. Peirce claimed benefit in 1978, not 1979 and that the amount of supplementary pension in payments was £13·26 rather than £15. Those are relatively small matters.

I confirm that on 28 July 1982 a review visit was made to Mrs. Peirce who reported that Mr. Barnett was living in the house. Her supplementary pension was then reduced from £13·26 to £8·29 to take account of the fact that a non-householder was living with her.

That is totally separate from the issue of living together. A non-dependant living with her, as could be argued was the case at that stage—that was before the living together decision was taken—automatically meant a deduction from her benefit. That would have happened whether or not a decision was subsequently made about them living together as husband and wife. There has been some exaggeration about the consequences of the living together decision upon the benefit payable to Mrs. Peirce.

The visiting officer was told that Mr. Barnett had been living there for two years. Following this visit and an interview with Mrs. Peirce and Mr. Barnett, Mrs. Peirce was asked to send back her order book for adjustment—after encashment on 9 August 1982—and was subsequently issued with an order book for retirement pension plus attendance allowance only. She was informed that it was considered that she and Mr. Barnett were living together as husband and wife. It was explained that it was open to Mr. Barnett to claim supplementary pension for them both.

The decision to withdraw Mrs. Peirce's supplementary pension was made by the supplementary benefit officer on the grounds that, on the information supplied by Mrs. Peirce and Mr. Barnett, they were living as husband and wife in that Mr. Barnett performed the duties that a husband would in the circumstances of the household. Mr. Barnett does the shopping, prepares the food for them both to eat together, does the washing and decorating and they both spend the greater part of their leisure time together. Mr. Barnett had bought the washing machine and the TV was in his name. The relationship appeared to be a stable one and the benefit officer concluded that Mrs. Peirce had no entitlement to a supplementary pension in her own right. I am sorry about the distress that that decision caused.

Let me explain, however, that the decision was made by the independent adjudicating authorities. They apply the law guided by the case law available to them. In the first place a decision is made by an independent supplementary benefit officer, with guidance from the chief supplementary benefit officer. A claimant who is dissatisfied with this decision has a right of appeal to a supplementary benefit appeal tribunal, as Mrs. Peirce has. That is a right Mrs. Peirce exercised. There is then a right of appeal with leave on a point of law to the social security commissioners. The right hon. Gentleman said that that is being considered at the moment. As a Minister, I could not have overturned the supplementary benefit officer's decision. Neither can I interfere or overturn the decision of the tribunal or any decision that might be made in the future by the commissioners. There is very little more that I can usefully say about the case, but it may be helpful if I provide some explanation of the law and the procedure on these matters.

First, I want to make it quite clear that the reference in law to "cohabitation" was removed in 1977. It was felt that the word had acquired a pejorative meaning and its use tended to perpetuate the mistaken idea that the rule was intended to be a punishment for misconduct. I must make it absolutely clear that nothing of this nature is implied or intended in Mrs. Peirce's case or any other case affected by this law.

The law now refers to two persons who are a married or unmarried couple. An unmarried couple is interpreted in section 34 of the Supplementary Benefits Act 1976 as two persons living together as husband and wife. That is the term introduced to replace the old term "cohabitation".

The term "living together as husband and wife" is an exact description of the provision. It is important to recognise that unmarried couples should be treated in the same way—no better and no worse—as married couples. The needs and income of married couples are aggregated and benefit is paid only if their combined income is below supplementary benefit standard. This is a way of treating couples as a unit and is one of the basic principles of the supplementary benefit scheme. To do otherwise would, for example, allow every housewife in the country not in work to claim benefit for herself, regardless of the income of her husband. Successive Governments have taken the view that it would be wrong and unfair to married couples to treat unmarried couples in a completely different and more favourable way.

That the "living as husband and wife" rule is necessary, as I believe it to be under present circumstances, does not mean that it is easy to apply. It is the application of it that we are talking about. The term is not defined in the Act or in the regulations. It would be extremely difficult to define. The difficulty is that there is no universally accepted single pattern of married life by which to judge whether a couple are living together as if they were married. As I am sure the right hon. Gentleman knows, the supplementary benefits commission, before it was wound up, gave a great deal of attention to this difficulty. It laid down criteria to be taken into account when deciding a "living together" question, and those criteria are well established and well known. They are set out in full in the supplementary benefit handbook. They have been given explicit approval by a High Court judge and confirmed by social security commissioners. There are six criteria which cover being members of the same household — the stability of the relationship, financial support, sexual relationship, children, and whether there is public acknowledgement of the relationship.

Although all the criteria may be relevant, no single one of them is conclusive. Thus, it does not follow that because a man and woman are members of the same household they are living together as husband and wife. Nor does a lack of public acknowledgment mean that they are not—they may wish to avoid public recognition of their relationship. Whether or not there has been any financial support by one or the other is also not conclusive. Where each has had a separate income they may, like some married couples, not have pooled their resources. There is no single way by which the issue can be decided in every case, so it is inevitable that there will be cases in which, whatever decision is taken, it will be arguable.

Because many of the criticisms of our procedures tend to be rather sensationalist and concentrated on a single issue, I must stress that a decision does not necessarily imply that a couple have or are thought to have a sexual relationship. Some married couples do not have a sexual relationship. Equally, where a couple have such a relationship it does not by itself mean that they are necessarily living together as a married couple. Current guidance issued by the chief supplementary benefit officer is that representations by a couple that they have never had a sexual relationship is a factor to be taken into account but not necessarily a deciding factor. The absence of a sexual relationship may be a strong indication that a man and woman are not living together as husband and wife in some cases but not others. For example, it would be so when a relationship had begun at an age and in circumstances in which a sexual relationship would be an expected part of married life, but people may re-marry later, perhaps after being widowed, without any expectation of such a relationship. Thus an unmarried couple may begin to live together as husband and wife later in life in the same way. In such cases the absence of a sexual relationship is not a crucial factor.

The supplementary benefit handbook says that if a couple have never had a sexual relationship it is most unlikely that they should be regarded as living together as husband and wife". But this does not mean that is ruled out. The absence of a sexual relationship is one fact to be taken into account when considering all the facts. I think that the supplementary benefit handbook may be slightly misleading in seeming to give such weight to the absence of a sexual relationship and I have asked that this be looked at for the next edition.

The right hon. Gentleman strongly emphasised the very reasonable point about care in the commuity, and the desirability of encouraging supportive care and assistance of the kind that Mr. Barnett provides for Mrs. Peirce. As a Minister concerned with the personal social services as well as with the social security system, I realise that both this Government and the Labour Government have sought to advance the aim of care in the community. In return, however, I hope that the right hon. Gentleman will recognise that merely importing that element into the arguments surrounding Mr. Peirce does not avoid the fundamental problem of deciding how best the law on payment of benefit should be made fair as between those who are married and those who are not married but may be regarded as living together as husband and wife.

All the right hon. Gentleman's arguments in relation to that aspect of the matter would surely apply just as much to a married couple in which the husband cared for the wife, as it is suggested that Mr. Barnett cares for Mrs. Peirce. Thus, the problem of equity in the benefit system is in no way disposed of by the argument about care in the community. If we took the course that the right hon. Gentleman suggests, the unmarried couple living together as husband and wife would enjoy a higher level of benefit in identical circumstances than a married couple in identical circumstances. In other words, if Mrs. Peirce and Mr. Barnett lived next door to an exactly comparable Mr. and Mrs. Barnett, the unmarried couple would receive a higher level of benefit than the couple living next door in exactly the same circumstances. I believe that that is ultimately impossible to justify in terms of equity within the benefit system.

Photo of Mr Roland Moyle Mr Roland Moyle , Lewisham East

Will the Minister comment on a situation in which a Miss or Mrs. Barnett moved in with Mrs. Peirce and the "fairness" that would arise from that?

Photo of Mr Tony Newton Mr Tony Newton , Braintree

I shall comment to the extent that I recognise that there would be a potential inequity in that instance. This is a problem that can be solved completely, with the avoidance of any anomaly within the social security system, only if we move away from the basis of treating married couples as a single unit. I do not know what the right hon. Gentleman's views are on that, or what view the Labour Administration would have taken had the same suggestion been put to them. Whatever view we take in principle, the practicalities and financial consequences of moving to a position in which all married couples are paid benefit—for example, the retirement pension, the supplementary pension or any other benefits that might be touched upon—as if they are two single people are very great. In my view that is not a practical option at present.

I am not pretending that there are not possible anomalies and inequities of a kind other than those that I have put before the House. However, for what I take to be good and sufficient reasons, one of the concerns of the benefit system is to be fair as between married couples living together and couples living together who are not married. I find it difficult to see a solution to the problem that the right hon. Gentleman has brought before the House along the lines that he has suggested.

I shall reflect further on what the right hon. Gentleman has said this afternoon. However, on the judgment that I have been able to make in thinking about the case, including my thinking while he was speaking, I am not in any sense optimistic that we can find an answer to the difficulty that has arisen in this case by means of the change in the regulations which he has suggested.

I hope that the right hon. Gentleman will recognise that I have genuinely examined the case as sympathetically as possible, given the constraints on my scope for action as a Minister. I have tried genuinely to advance the broad case for the regulations as they stand. I hope that he will recognise that there is a real problem to which there is no easy answer.

The Question having been proposed after half-past Two o'clock and the debate having continued for half an hour, MR. DEPUTY SPEAKER: adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at eleven minutes past Three o'clock.