Secretary of State for Work & Pensions v W

For income support, abandoned in paragraph 8(3)(b) of Schedule 3 to the Income Support (General) Regulations 1987 bears the matrimonial-law meaning of deserted and includes constructive abandonment. Physical separation may result from imprisonment or a bail condition. It need not be voluntary, but separation alone is insufficient. The relevant intention is that of the abandoning partner. It may be inferred from conduct which the partner knew, or must have known, would probably end cohabitation, even if the other spouse had not formed that intention and the partner expressed a wish to return. Abandonment need not be the sole cause of an income-support claim, but must have a causative link to it when made.

W, a married woman with four children, lived in a mortgaged home with her husband. Her husband was arrested and charged with sexual offences against children. Bail required him to live elsewhere; he later pleaded guilty and was imprisoned. W claimed income support before his imprisonment.

The Secretary of State treated the mortgage costs as new housing costs and rejected reliance on paragraph 8(3)(b) of Schedule 3, concluding that W had not been abandoned. An appeal tribunal, relying on R(IS) 12/99, dismissed her appeal. The Social Security Commissioner, Mr Mark Rowland, allowed it in CIS/2816/2003. The Secretary of State appealed on the meaning of abandonment, the relevance of intention and timing, and causation.

Appeal dismissed. Lord Justice Keene gave the judgment. Lord Justice Scott Baker and Lord Justice Thomas agreed, making the decision unanimous.

1. Meaning of abandonment. The word abandoned in paragraph 8(3)(b) of Schedule 3 to the Income Support (General) Regulations 1987 was intended to bear the same meaning as deserted in matrimonial law. It includes constructive abandonment. A claimant with children may be effectively forced from the home by violence or other unacceptable conduct, or may refuse to admit the partner because of that conduct. The reasoning in Sickert v. Sickert [1899] P 272 applied, and the decision in R(IS) 2/01 was clearly right (paras 19-20).
2. Elements of desertion. Desertion requires physical separation and an intention on the part of the deserting partner to bring cohabitation to an end. Beeken v. Beeken [1948] P 302 and Ingram v. Ingram [1956] P 390 showed that imprisonment or other compulsory separation may satisfy the physical-separation element. Imprisonment alone is insufficient because the necessary intention must still be established. The court disapproved any suggestion in R(IS) 12/99 that involuntary imprisonment cannot constitute the required separation (paras 20-21).
3. Intention and timing. The relevant intention is that of the abandoning partner, not the alleged deserted spouse. It may be inferred from conduct which the partner knew, or must have known, would probably cause the other to leave, even where he expressed a wish to continue the relationship. Lang v. Lang [1955] AC 402 supported that approach. By the date of W’s claim, physical separation existed and her husband’s intention to end the relationship could be inferred from his admitted conduct; W did not have to show that she regarded the relationship as at an end (paras 22-27).
4. Causation. Abandonment need not be the sole cause of a claim. There must be at least some causal link between the abandonment and the reason for claiming income support, and the abandonment must have occurred, or begun, before the claim. Tribunals should adopt a robust, common-sense approach and avoid fine distinctions between the abandonment and the conduct producing it. The approach in CIS/2790/1998 was accepted (paras 28-29).

The appeal was dismissed. An anonymity order was made under section 39(1) of the Children and Young Persons Act 1933 and CPR 39.24. The appellant was ordered to pay W’s costs, publicly funded costs were to be assessed, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and refused permission to appeal to the House of Lords.
2. Social Security Commissioner: Mr Mark Rowland allowed W’s appeal from the tribunal and held that the circumstances could amount to constructive abandonment in CIS/2816/2003.
3. Appeal tribunal: dismissed W’s appeal, relying on R(IS) 12/99 and treating abandonment as requiring deliberate withdrawal of society and financial support.