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The Civil Partnership Act 2004, Benefits and Couple Status

John Eames looks at the impact the Civil Partnership Act will have in redefining the notion of a "couple" for means-tested welfare benefits and tax credits purposes.

By John Eames, Express Training Associates

Practitioners will be very familiar by now with the existence of the Civil Partnership Act 2004 [1] ("CPA"), its Royal Assent on 18 November last year and its main implementation date (5 December 2005). Not surprisingly, most of the Act's provisions govern the new rights and responsibilities conferred on same-sex couples who register as civil partners. Less predictably, the Act creates some significant changes in status for same-sex couples who do not become civil partners – notably from a social security angle. This article looks at the impact the Act will have in redefining the notion of a "couple" for means-tested welfare benefits and tax credits purposes.

Why is this important?
The tactical relevance in social security cases of knowing how to define "couple" is typically that your client will want to argue that s/he is single and not a member of a couple. His or her benefits position will nearly always be better as a single person. There are two common reasons for this, illustrated by the following opposite-sex scenarios:

Disqualified from benefit: Client A is married with children, but separating and seeking a divorce. She and her husband still live in the same property but have separated out their households within their home. Stereotypically, he is in full-time, well-paid work; she is not. She needs to claim income support and child tax credit as she is fairly sure that she will be the main childcarer. If they are treated as a couple then she cannot get any income support (she is disqualified by her husband's full-time work as well as by their aggregated joint income, ie his sizeable earnings). As a member of the couple she is also ineligible for child tax credit if the joint income exceeds £58,000pa.

Less benefit: Client B is not married but lives with a female friend. Both are in their 30s, unemployed and claiming income-based jobseeker's allowance. If seen as a couple they are entitled to £86.20 per week between them; if regarded as two single people they will receive £56.20 per week each.

In either case, one will hope to argue – depending on the facts – that the client is single. That starting point will be no different for same-sex couples from 5 December.

Before 5 December 2005: the existing position
Until now, these arguments have been confined to alleged couples of opposite sexes. Same-sex couples have not until now been recognised by the social security system [2]. So before 5 December the argument would not arise for same-sex couples in similar scenarios: no matter how close and permanent their couple relationship is, the benefits system treats them as two single people. That is about to change.

As shown by the two examples above, we should recall that existing legislation in social security and tax credits recognises two different types of opposite-sex couple, married and unmarried.

In relation to means-tested benefits (income support, income-based jobseeker's allowance, pension credit, housing benefit, council tax benefit), section 137(1) of the Social Security Contributions and Benefits Act 1992 ("SSCBA") defines couples as follows:

"married couple" means a man and a woman who are married to each other and are members of the same household, or
"unmarried couple" means a man and a woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.

In relation to tax credits [3], the definition of unmarried couple is almost the same as the one above -

"unmarried couple" means a man and a woman who are not a married couple but are living together as husband and wife

- but with tax credits there is a different approach to defining a married couple:

"married couple" means a man and a woman who are married to each other and are neither

(a) separated under a court order nor
(b) separated in circumstances in which the separation is likely to be permanent.

The issues raised when trying to interpret these three definitions will be considered below. But initially we should examine the new versions of the definitions which aim to match, in a same-sex context, both the married and unmarried definitions of couple.

Definitions of same-sex couple
The government's policy intention [4] was

"that civil partners should be treated as a single family unit for income-related benefits purposes. In addition, where appropriate, unregistered cohabiting same-sex couples should also be assessed as a single family unit as is the case for unmarried cohabiting opposite-sex couples. The Government will ensure that this matter is handled sensitively.

Treating same-sex couples (whether registered or unregistered), in the same way as opposite-sex couples (whether married or unmarried) in relation to income-related benefits is the best way to ensure fairness in this area and ensure that a same-sex couple who wish to register a civil partnership would not be financially worse off than they would be if they chose not to register their partnership."

Thus considerations of fairness as between same-sex and opposite-sex couples produce an adverse effect for same-sex unregistered couples, and widen the Civil Partnership Act's scope to well beyond the civil partnership concept. In order to achieve this "fairness", the Civil Partnership Act [5] slightly re-organises the handling of couple definitions for social security purposes, creating a 4-part definition for "couple", labelling the existing opposite-sex ones in SSCBA s137(1) as (a) and (b) and inserting two new definitions:

"(c) two people of the same sex who are civil partners of each other and are members of the same household, or

(d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners."

Since the notion of "living together as if […] civil partners" is not one that can be understood with reference to any existing legal or practical concepts – civil partners have not existed before in the UK jurisdictions – definition (d) gets a further gloss in a new [6] subsection 1A in s137:

"For the purposes of this paragraph, two adults of the same sex are to be regarded as living together in the same household as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two adults of the opposite sex."

In addition, the Civil Partnership Act amends [7] the Tax Credits Act in order to define civil partner couples as [8]:

"Two people of the same sex who are civil partners of each other and are neither

(a) separated under a court order nor
(b) separated in circumstances in which the separation is likely to be permanent".

As with opposite-sex unmarried couples, the tax credits legislation in respect of same-sex non-civil-partners follows the social security definition, now even more closely than before. Thus all three new definitions follow very closely the existing, opposite-sex definitions.

Clearly then, legislators have gone out of their way to head off the risk that caselaw on couple status should develop two separate lines of jurisprudence, one for opposite-sex couples and another in same-sex cases. In practice, arguments that different standards should apply for judging couple status, depending on one's sexuality, could nevertheless undermine this intention, producing interesting discrimination issues.

Declaring couple status: what same-sex couples should do
From 5 December, any client who is both

needs to declare the information about their couple status to the DWP, the local authority and/or the HMRC Tax Credits Office. Although there is no change of circumstances for such couples who don't register as civil partners, the official view is that the legal change from 5 December is deemed to be a change requiring notification, though this seems to be explicitly prescribed as such only so far as Tax Credits are concerned.

In relation to means-tested benefits, DWP have stated that they will be lenient in recovering benefit overpayments arising as a result of failure to disclose the couple status immediately after 5 December, provided there is no suspicion of fraudulent intent. There appears to be no intention to claw back overpayments dating from before the point at which people could reasonably be expected to realise that these rules now apply to them [9]. Nevertheless, claimants will be expected to report that they are part of a couple as soon as possible, and at the latest by their first benefit review after the implementation date. Information strategies are in place on the part of both DWP and DTI in order to raise awareness. Clients should be advised to make such notification on 5 December or as soon as possible thereafter, and should not rely on such leniency, which is in any case ill-defined.

In Housing Benefit and Council Tax Benefit cases, local authorities are required by new regulations [10] to treat same-sex couples as such only from such time as they declare their couple status or the local authority becomes aware of such status.

As for Tax Credits, HMRC are saying that a declaration of couple status can be made during the window 5 December 2005 to 5 April 2006 without incurring any penalty, even though legislation would permit the Revenue to impose a £300 penalty for non-disclosure after 4 March 2006 in such cases. Nevertheless, same-sex couples living together as if civil partners are deemed from 5 December to have had a change of circumstances, triggering a duty to notify [11]. Unlike in the benefits system, any overpayment of tax credits resulting from late disclosure is always recoverable, usually after the year-end reconciliation process.

Arguing for single status in alleged same-sex couple cases
Here we look at how practitioners may need to argue the case for their client's single status. The three new same-sex scenarios are considered, but inevitably the only caselaw and practice we have to rely on relates to the existing three opposite-sex definitions of couple.

1. Civil partners but not living in the same household
The argument that whilst your client is a civil partner s/he is nevertheless not living in the same household as the other civil partner is clearly less likely to arise in the early months of the Act's implementation, as it pre-supposes on the whole that a civil partnership has been registered and has now broken down.

It is important to examine whether one partner has moved out, and if so how convincingly and permanently. But if s/he has clearly moved out, then his/her household is elsewhere; this is favourable to your client's case, since a person cannot have two households simultaneously [12]. A number of authorities [13] hold that a dwelling – house, flat or whatever – may contain more than one different households. Arguably these may even overlap in terms of physical space. "Household" means "people held together by a particular kind of tie" [14]. Thus, in arguing that your client and his/her civil partner do not share a household any more, regard must be had to the breakdown of such "ties", and a case made for there being two different households under the same roof.

If arguing that your client no longer shares a household with the civil partner, even though both still live under the same roof, you can suggest some practical measures. The case will be stronger if they

Most of these points are borrowed from existing practice in adjudicating on married couple cases. Can it be argued that any different factors should apply in civil partnership cases? In other words is there anything fundamentally different about sharing a household in a civil partnership as compared with a marriage? Only time will tell whether any such arguments will be brought. But it is uncontroversial to say that the "culture" of civil partner households may evolve differently to the historically ingrained "culture" of marriage.

Evidence that one of the civil partners is seeking legal advice about a dissolution should carry a lot of weight. A letter from you will very often swing such a case decisively in the client's favour.

Such separation of households will typically be investigated by a DWP visiting officer, or may be asked about in writing. If there is a home visit from the DWP, it can be important to seek the other civil partner's co-operation in corroborating these facts, should s/he be at home at the time of the visit. Alternatively, if s/he is likely to be unco-operative, the visit should be arranged when s/he is out.

DWP Guidance [15] suggests that there are two separate households where a (former) couple are estranged, continue to live in the same house, do not financially support each other or share domestic and social activities, and one partner is reluctant to leave, until a satisfactory financial agreement has been reached with the other partner.

2. Civil partners but separated
This is the line you must take in a tax credits case. Remember that "separated" means either

The existence or otherwise of a court order should be easy to determine objectively, although queries have been raised as to whether a court order other than a separation order would qualify (eg an injunction against one partner). The second limb about permanence is harder to establish. Deriving from tax legislation, the phrase permits scrutiny of the civil partners' intention, but can be problematic where one partner wishes to separate and the other does not. The HMRC guidance is that it is sufficient for one member of the couple to intend to separate, even if he or she has not told the other spouse or civil partner about it. If HMRC is satisfied that 'there was at the time an intention on the part of one or both of them to [remain] apart permanently', it should satisfy the "permanence" test, which is after all prospective and not amenable to testing by the duration so far of separation. As with means-tested benefits, the fact that one civil partner has sought legal advice on a possible dissolution of the civil partnership is good evidence of an intention to separate permanently.

3. Not civil partners but living together as if civil partners
Remember that the Civil Partnership Act tells us that we must define this legally new concept by going back to the living together as husband and wife test after all:

"…two adults of the same sex are to be regarded as living together in the same household as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two adults of the opposite sex".

Time will tell how problematic or otherwise it will be to apply this definition. At first sight, the need to pretend that one member of a same-sex couple has temporarily switched gender seems an inelegant approach that at worst could cause offence. However, the DWP is committed to the sensitive handling of this issue. But there is no escaping the fact that in each case of alleged same-sex cohabitation, the decision-maker must first determine the "living together as husband and wife" definition whilst speculating on what the relationship would be like if it were an opposite-sex one. Such speculation might prove almost impossible to undertake with any accuracy; but there may be some chance of success with an argument along the lines of "if we were heterosexual this would not look like a husband-and-wife type of relationship".

Note that there is no overt reference to whether those allegedly living together as if civil partners are actually gay or lesbian. Yet the question must surely arise; if not, assigning couple status would surely be inappropriate. So it may be that the exercise in imagining two men, or two women, living together to be a man and a woman living together is an implicit way of asking the un-askable question about sexuality. Faced with an adverse living-together decision, two men might put the matter to rest simply by asserting "we are not gay" (if that is the case). The position must be helped by that added emphasis lent by the words "but only if". Decision-makers are surely intended to feel circumscribed by this limitation, and to refrain from casting the net too wide when deciding who might be a member of a same-sex couple.

Living together as husband and wife – and hence living together as if civil partners – is determined by reference to the infamous six factors described by Woolf J [16] as "an admirable signpost". Despite the legislation's strong adherence to the traditional "living together as husband and wife" test, and the very clear steer given to decision-makers that they must be totally even-handed, it is entirely possible that for same-sex couples different standards will develop as to the application of these "signposts":

Members of the same household
Similar considerations apply here as for the household concept for married couples and civil partners (see above), though here it perhaps carries proportionally slightly less weight; in other words, if decided adversely for your client, s/he can still fall back upon the other five factors to rescue the case. But if decided in her/his favour (ie that there is no shared household) it ought to be determinative and the other factors should drop away as irrelevant.

Stability of the relationship
It is sometimes hard to know what precisely is meant by the word "stability" – one can legitimately read it as meaning long-term or alternatively as suggesting 'harmonious' in some way. The key is to argue whatever nuance suits the case best: in a relationship that has lasted a long time one might be saying that it is so unsettled and stormy that the stability factor is not satisfied; alternatively a noticeably harmonious relationship that nevertheless began only recently could equally be argued to fall outside the definition of 'stable'.

Financial support
This is a problematic test, because traditionally the DWP have tried to argue both corners: substantial support means they are a couple; whilst lack of support also means that they are a couple because theirs is not solely a financial relationship. On the whole, though, a lack of financial support is marginally advantageous when arguing for single status.

Sexual relationship
DWP sensitivity to accusations of intrusiveness has led to decision-makers being reluctant to even ask about this. Where your client does not have a sexual relationship with the alleged partner (and especially if s/he never has had) then this information should be volunteered, and must go into the whole equation. But the existence of a sexual relationship, in opposite-sex cases, important though it is to the couple concept, has never been absolutely determinative, and it should remain open to same-sex alleged partners to argue that despite occasional sex they are not a couple.

Given that it is impossible [17] for a child to be biologically the offspring of both members of a same-sex couple, this factor must surely be reduced in impact in same-sex cases, since traditionally in opposite-sex cases it has tended to work most adversely where any children are of both members of the alleged couple. Nevertheless, in the light of changes in adoption law, the existence of a child adopted by both members of an alleged same-sex couple will be a factor suggesting couple status.

Public acknowledgement
This vague and subjective test may be even harder to apply in same-sex cases than in opposite-sex ones. What is "normal" for couples to do by way of showing that they are a couple, is difficult to identify, and in a still homophobic society it may be said that a greater reticence is necessary for many same-sex couples than for opposite-sex couples. This could have an adverse effect on adjudication in same-sex cases.

Temporary separations
Notwithstanding the SSCBA definitions of married and unmarried couples, Regulation 16 of the Income Support regulations [18] deems there still to be a couple even though one member is "temporarily living away from the other members of his family". This can apply in both married and unmarried scenarios. Situations where one has moved out and the other – your client – remains in the former joint home not quite knowing what will happen next can be caught by this, where DWP decide to invoke it adversely. Framed in terms of exceptions, the Regulation 16 deeming will however not bite where

In the tax credits legislation, it is necessary in the case of married couples to show that any separation is "likely to be permanent", but there is no formal deeming provision.

Other benefits issues
This article has tried to focus on the most contentious area where the CPA impacts on benefits and tax credits law. There are many other consequential issues, for example:

[2] except in the area of statutory paternity pay and statutory adoption pay, which from April 2003 became payable to partners in same-sex couples.
[3] Tax Credits Act 2002 s3(5) and 3(6)
[4] Civil partnership: a framework for the legal recognition of same-sex couples June 2003
[5] CPA section 254; and Schedule 24
[6] inserted by CPA Sch 24(46)
[7] CPA Sch 24(144)
[8] new subsection 5A of s3, Tax Credits Act 2002
[9] according to
[10] Civil Partnership (Pensions, Social Security and Child Support) (Consequential, etc. Provisions) Order 2005 SI 2005 no 2877
[11] Tax Credits Notification of Changes of Circumstances (Civil Partnership) (Transitional Provisions) Order 2005 SI 2005 No 828
[12] R(SB) 8/85, CIS 11304/1995
[13] R(SB 13/82, R(SB) 4/83, CSB 463/1986
[14] Santos v Santos [1972] 2 All ER 246
[15] DMG para 22015
[16] Crake v Supplementary Benefits Commission, Butterworth v Supplementary Benefits Commission, [1982] 1 All ER 498
[17] except in cases where one has had a gender change
[18] Regulation 16(1) to 16(3), IS (General) Regulations 1987