MA v Secretary of State for Work and Pensions (ESA)

Whether married people are members of the same household is a factual question determined by ordinary meaning, common sense and the reality of their domestic life. Separate sleeping, eating and financial arrangements do not necessarily create separate households. Significant shared domestic life, cooperation in raising a child and pooling or sharing expenditure may show one household.

A benefit award cannot be changed merely because the decision-maker now considers the original decision wrong. The Secretary of State must establish a statutory ground for revision or supersession. A joint remortgage did not itself amount to a relevant change of circumstances where it would not have altered the analysis of the parties’ household arrangements.

The claimant appealed, with permission, against the First-tier Tribunal’s dismissal of his appeal from a decision removing his income-related employment and support allowance. The Secretary of State contended that, although the claimant and his wife said that they had separated while remaining in the same flat for their son’s sake, they were members of the same household and his wife’s remunerative work prevented entitlement.

The Upper Tribunal reheard the claimant’s evidence. It had to determine both whether the couple formed one household in September 2014 and whether a lawful ground existed to revise or supersede the earlier award of benefit.

1. The appeal was allowed on an interim basis. The First-tier Tribunal’s decision was set aside for error of law. Its reasons did not make sufficiently detailed and precise findings about the parties’ domestic routine, despite the detailed evidence, and did not state whether it accepted the claimant’s account of the extent of their separation.

2. The Upper Tribunal remade the household finding. “Household” has its ordinary meaning and is assessed realistically on the particular facts. The claimant and his wife were members of the same household. Although they were estranged and maintained separate rooms, food, bank accounts and much separate expenditure, their life in the flat involved significant interaction and shared domestic routine arising from their joint care of their son.

3. Their cooperation over the child was not confined to arrangements that would arise between parents living in separate homes. They shared responsibility for his welfare and expenses, and their wish to avoid exposing him to their estrangement meant that it was unrealistic to accept that they kept their lives as physically separate as claimed. Common sense and reality supported the conclusion that the claimant, his wife and their son comprised one household.

4. That finding did not itself establish that the Secretary of State could lawfully remove the earlier award of income-related ESA. A prior award cannot be changed simply because it is now thought to have been wrong. The January 2014 transfer of an interest in the flat and joint remortgage was not a change of circumstances justifying supersession, since it would not have altered the result if there had previously been two households.

5. The Secretary of State bore the burden of establishing another ground for revision or supersession, such as mistake or ignorance of a primary material fact, or official error. The available evidence did not show what information had been obtained when the award was made in 2009 or 2010. Further evidence and submissions were therefore directed before the Upper Tribunal could finally remake the benefit decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the claimant’s appeal on an interim basis, set aside the First-tier Tribunal decision for error of law, made findings on the household issue, and directed further evidence before finally remaking the decision: [2016] UKUT 262 (AAC).
• First-tier Tribunal: sitting at Sutton on 21 May 2015, dismissed the claimant’s appeal against the removal of income-related ESA.