Orders of the Day — Cohabitation

Part of the debate – in the House of Commons at 2:58 pm on 4th February 1983.

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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.