COHABITATION RULE (Hansard, 18 July 1974)

§ Miss Jo Richardson (Barking)

The cohabitation rule affects entitlement to both supplementary benefits and national insurance widows' benefits. Under the rule a woman who is separated or divorced or who is an unmarried parent or widow can be disqualified from benefits for herself and for her children if she is considered to be cohabiting with a man unless, in the case of certain supplementary benefits, there are exceptional circumstances.

The trouble is that there seems to be no generally accepted definition of cohabitation. The Ministry of Social Security Act 1966 refers to cohabiting as man and wife. The National Insurance Act calls it: cohabiting with a man as his wife. The Supplementary Benefits Commission has drawn up its own separate and different set of criteria. In another place the noble Lord who replied to the debate on 9th July expressed some surprise that there should be any confusion about the definition. It was, he believed, the state of two people living together and this did not depend on there being a sexual relationship between them. That might be acceptable were it not for the fact that there are so many complaints that the probings of the investigating officers seem to be centred on whether there is a sexual relationship.

There are two separate systems for the investigation of suspected cohabitation and for judging such cases. These cases, which affect widows' benefits but not supplementary benefits, are investigated by national insurance officers and judgment is given by the central pensions branch. Appeals go to the local tribunal and ultimately to a national insurance commissioner.

I shall give the House an example from first-hand experience. In April I attended as an observer a tribunal before a 844 national insurance commissioner. It was held in public and the Press was present. It concerned a lady who was a widow with a dependent child whose benefit had been withdrawn many months previously because a visiting officer suspected that she was cohabiting with a lodger. Many of the questions that she was asked at the tribunal, and which she had been asked during the previous investigations, were concerned not with establishing whether the lodger was maintaining her as a husband maintains a wife—he was not doing so—but with the time they went to bed, whether they slept together, whether the disposition of beds in the house would encourage that, whether their separate bedrooms were near to each other and, believe it or not, whether, because there were children present elsewhere in the house, they were copulating on the living-room floor. I found these questions highly distasteful and not relevant to the question of whether benefit paid to the lady was a proper expenditure of public money.

The woman concerned had waited eight months for her hearing to take place. The decision of the commissioner, which was given a few days ago, took more than nine weeks to be arrived at. I am horrified to find that the appeal has been dismissed. The commissioner said in his summing-up that the question could be investigated under three headings: first the personal relationship, which includes inquiry as to whether there is a sexual relationship between the two; secondly their financial relationship—in other words, to what extent the man supports the woman financially or they pool their resources; and thirdly their joint relationship in respect of the community—that is to say, whether they were regarded as a couple by people outside the home.

The commissioner found that there was no evidence under the second and third headings but he found that there was a personal relationship, which included the finding that there was a sexual relationship between them. He also said that he found the woman to be a reluctant witness whose evidence had to be dragged out of her". I thought she was very frank. I myself would have been much more reluctant to 845 answer some of the horribly personal questions that were put to her. Therefore, not only has she now no benefit, but she has to repay nearly £100 of benefit which she had during the period between her notifying the Department that the lodger was in her house and the time when the Department decided to investigate whether or not she was living with a man.

In May of this year a different commissioner upheld the appeal of a woman who admitted that she regularly slept three nights a week with the lodger and had had twins by him but had had no financial support from him. How can these two contrary decisions be reconciled?

We have a different procedure when a woman is drawing only supplementary benefit. In that case the investigation will be initiated by the local office. It will often be carried out by special investigators and it is subject to appeal to the local supplementary benefit appeal tribunal. If a woman is drawing both widow's benefit and supplementary benefit, the investigation is generally carried out by special investigators, but there are two adjudicators with the two different appeal systems. The outcome could be different in respect of the different benefits. It does not make sense.

I am especially concerned with the way in which the rule is being operated. Studies have been carried out showing that the types of situation classified as cohabitation by the commission's officers include, for example, women acting as landladies or housekeepers to elderly men, young people flat-sharing or temporarily putting up friends while looking for their own accommodation and women visited by platonic men-friends or boyfriends or ex-boy-friends.

I know that it is rightly the duty of the Supplementary Benefits Commission to protect public money. But it also has a duty to try to provide conditions for people to live decently and with dignity. Why must it automatically be assumed that people are lying and grabbing? Most people are not doing so, and most of those who draw benefit would prefer to earn a living. Many single parents, for example, would take jobs which would help to keep themselves and their children if it were not for the £2 disregards rule.

846 I realise that there is no easy solution to the problem of cohabitation, but an attempt must be made to change the present situation. There must be a more precise definition of the rule. The Fisher Comittee on Social Security Abuse recommended that the rule should be more precisely defined, and also suggested amending the statute in the direction of greater precision. The definition ought to centre on the question of financial support from the man and the pooling of household resources. Another element could be the stability of co-residence. Any definition, however, must be printed in widow's benefit and supplementary benefit order books so that women know their position. Very few of them are aware of their right to appeal. We must give greater publicity to this.

So long as there is a cohabitation rule, benefit should not be withdrawn until the case has been heard on appeal. The appeal tribunal, in the case of widows' and supplementary benefits, must be seen to be genuinely independent and, what is more important, consistent. We need reforms in the procedure for the investigation leading to withdrawal of benefit. Many reforms were recommended by the Fisher Committee but not all of them were accepted by the Government.

For example, the practice of snooping on claimants through their friends, their neighbours, their landlords, their rent collectors, their milkmen, at work, through their children and so on, must cease. That is an unwarranted intrusion into the privacy of the individual. We must give greater thought and care to the selection and training of visiting officers so that they are able to cope with the job without making claimants feel an object of charity, if not a criminal.

I should like to know whether we are to accept the recommendations of the Finer Committee which has done a magnificent job. Its report will become a "bible" for future legislation on one-parent families. It recommended that benefit should continue to be paid until the hearing of the tribunal and not withdrawn by the visiting officer on suspicion, sometimes vague, that a woman was cohabiting. This would seem to be a simple recommendation for the Government to accept and put into practice. It would not involve any extra expenditure 847 because the money is, in effect, already allocated for this purpose.

In 1973 over 1,100 widows' benefits were withdrawn. About 100 widows appealed to the local tribunal and about 40 were successful. Only two of the unsuccessful appellants appealed to the commissioner. Over 900 did not appeal. Why was this? I believe that in the great majority of cases they either did not know that they could appeal or they had neither the confidence nor the advice to do so. Why could not the Department of Health and Social Security give people in this position a list of the organisations which could help them? It does not have to advise them but it could at least supply them, for the price of a piece of paper, with a list of the organisations like the Child Poverty Action Group, Gingerbread and so on, which could give assistance, legal advice and representation.

In ordinary cases coming before the courts defendants are always made thoroughly aware of their right to legal aid. I do not see why we should not do the same here. We have heard that an inquiry is in progress at the Supplementary Benefits Commission into the operation of the cohabitation rule. I have heard that this is the second inquiry. I would like to know, if there was an earlier inquiry, why the result was not made public.

I hope that at least the report of the second inquiry will be made public when the Secretary of State receives it. It was said in another place that although the commission might consider taking written evidence from outside organisations during its investigations there would probably be no provision for oral evidence. Why not? Here is a golden opportunity. Many organisations with valid cases would be willing to give evidence. This inquiry covers only supplementary benefit.

Since we are also concerned about widows' benefits, Iask my hon. Friend the Under-Secretary whether the Department will consider an inquiry into the cohabitation rule as it affects national insurance. This is equally important. It is a tragedy, and my hon. Friend may well share this view that in many cases the standards of treatment of those in benefit have gradually deteriorated from what they were intended to be and what we 848 would like them to be. I hope my hon. Friend will be able to assure us that we can look forward to a considerable improvement. The poor law syndrome must be buried once and for all.

§ The Under-Secretary of State for Health and Social Security (Mr. Robert C. Brown)

I am grateful to my hon. Friend the Member for Barking (Miss Richardson) for raising this matter tonight. The cohabiation rule has been the subject of comment and concern on a number of grounds. It is appropriate that we should be discussing the matter at this time in view of the renewed attention drawn to it recently in the Finer Committee's report, to which my hon. Friend has referred, and elsewhere.

The justification for the cohabitation rule has always been quite simply that it would be unfair to put a couple who are cohabiting in a better position for benefit than a couple who are legally married.

It is the custom in this country to treat the family, consisting of man, wife and dependent children, as one financial unit, and the cohabitation rule has been regarded as a necessary consequence of all the other rules relating to benefits that reflect this principle.

The principle underlying the cohabitation rule is based on the existence of the stable family as the basic unit of our social structure. Supplementary benefit rules provide that the requirements and resources of the family unit should be assessed together. The same applies whether or not the couple concerned are married.

Successive Governments have considered it essential and right to treat married and cohabiting couples equally. If they were not treated alike, the cohabiting couple would be tat an immediate advantage because the woman could continue to receive supplementary benefit while the man was working. A married woman cannot do that. This would constitute a disincentive to marriage and to the consequent legitimation of children and would, no doubt, in itself arouse strong public criticism.

The long-held view that there is need of a cohabitation rule received support in the report of the Committee on One-Parent Families, the Finer Committee, 849 which devoted considerable attention to the rule. I will say more about that later.

The committee clearly had reservations about it and in its report said that it would have liked to have recommended its abolition if it could have found a reasonable and viable basis for doing so. I think that many people would feel the same as the committee on that point. In the end, however, the Committee concluded that a cohabitation rule should be retained because of what it gave as the overwhelming argument in its favour—that it could not be right to treat unmarried women who had the support of a partner both as if they had no such support and better than if they were married.

The necessity of having a cohabitation rule has been accepted for many years and has been further acknowledged as recently as this report by the Finer Committee. Nevertheless we all recognise that this is a most difficult area in the administration of both contributory and non-contributory benefits and one which gives rise to many problems.

As my right hon. Friend the Secretary of State announced recently, a review of the operation of the rule as it affects supplementary benefit is now being carried out by the Supplementary Benefits Commission, and my right hon. Friend has asked the Commission to include in its consideration the question whether any change is desirable in the relevant provisions of the Act governing supplementary benefit and to report to her on its findings. I am sure that in the course of its review the commission will take full account of all the points that have been raised in the debate this evening. In fact is it absolutely certain that the Commission will do so, because only this afternoon I was talking to the chairman, Lord Collison, about this matter.

I turn now to some of the more specific point made by my hon. Friend tonight. The first concerned snooping. I do not think that any hon. Members and certainly many people outside, like the idea of snooping. If, however, the cohabitation rule is to be administered and equity as between married couples and cohabiting couples is to be maintained, inquiries have to be made where it is thought that cohabitation is being concealed. An interview with the woman 850 or the couple may be sufficient, but officers often have to go further since a straightforward question to the claimant may lead only to a denial. There is no way of avoiding these inquiries, which are sometimes understandably resented, but the Department does its best by way of instruction and training to ensure that the investigating staff do their job as tactfully and discreetly as possible consistent with their duty to prevent abuse of public funds.

I should like to refer to some of the recommendations of the Fisher Committee. Its key recommendation in connection with the cohabitation rule was that though the measures employed to detect cohabitation and fictitious desertion should be as little intrusive and involve as little offence to the feelings of beneficiaries as was consistent with efficiency, the Department should not turn a blind eye to suspected abuse because the people suspected of committing it were in a situation which attracted sympathy. That recommendation has been accepted by the Supplementary Benefits Commission and most of the other recommendations the committee made about the administration of the cohabitation rule have either been accepted or are under close consideration.

I shall now deal with some of the recommendations that have been accepted. One recommendation was that the same principles of adjudication should be observed in dealing with cases of suspected cohabitation by recipients of widows' benefit and supplementary benefit respectively. This recommendation has been accepted. The committee recommended that regional offices should maintain a careful and continuous oversight of the methods used by special investigators. The commission has accepted this recommendation. Another recommendation was that order books should not be withdrawn on the spot by the inspector or special investigator. This has also been accepted.

Other recommendations which the commission is closely studying include the following: that the wording of the various statutes relating to cohabitation should be brought into line; that adjudication procedures for widows benefit and supplementary benefit should be brought into line; that when benefit is withdrawn the claimant should be given a signed 851 document stating the meaning of cohabitation and the grounds of the decision to withdraw benefit; and that when a claimant appeals, urgent need payments to cover the period up to the appeal should be made more readily. I am sure that in the review which the commission is making there will be a great deal of deliberation on these matters and I would hope that there might be some decisions to which my hon. Friend can look forward.

The Finer Committee on One-Parent Families, to which my hon. Friend has referred, concluded that the cohabitation rule is necessary because unmarried women who have the support of a partner would otherwise be treated both as if they had no such support and better than if they were married, which could not be right.

The committee made two recommendations on the administration of the rule. The first was that before benefit is withdrawn on grounds of cohabitation from a claimant in receipt of weekly payments of supplementary benefit, she should be 852 given a written statement of the alleged facts and that if she denies any of them the case should go to the appeal tribunal, benefit being continued in the meantime. The second recommendation was that where benefit is withdrawn because of cohabitation but the cahabitee is not supporting dependent children of the claimant of whom he is not the father, the exceptional needs payment for the children which the commission is now prepared to pay for four weeks should be continued for three months.

Those recommendations will be carefully considered by the Supplementary Benefits Commission during its review of the operation of the cohabitation rule.

In case I have missed any of the points that my hon. Friend made I shall certainly look closely at what she said in what I thought was an excellent and moving speech, and write to her about them.