COHABITATION RULE

HL Deb 09 July 1974 vol 353 cc502-42

4.49 p.m.

LORD GARDINER rose to ask Her Majesty's Government whether they have considered the cohabitation rule and its administration in the light of the report of the Child Poverty Action Group. The noble and learned Lord said: My Lords, when I read the report of the Child Poverty Action Group on the cohabitation rule, I was deeply disturbed and I wrote for information to Sir Keith Joseph, to the Council on Tribunals and to the Lord Chancellor's Advisory Committee on Legal Aid and, being fortunate enough to draw a place in the ballot for a short Wednesday debate, I put down this Question in the form of a Motion on February 20. Then came the General Election and as soon as the present Government were elected I wrote to the Minister. I of course understood why she was too busy to see me, but I was courteously received by the Minister of State, who gave me a lot of his time and who asked me not to put down a Question again until the Finer Committee had reported. He told me that the Finer Committee were dealing with the matter and that if I put down a Question all he would be able 10 say was that could not say anything until the publication of the Committee's Report.

I have never discovered why, considering that the Finer Report was presented to the preceding Government in November last year, it has taken so long to publish it, but there it is. I should like at once to pay every compliment that I can to the Finer Committee. A good many people—including myself on one occasion—have criticised the Finer Committee for taking such a long time, but the Report is a magnificent document and whatever happens it will be the leading authority in this field for many years to come. Its primary recommendation, of course—for a guaranteed maintenance allowance—is a thing that is going to cost a good deal of money, and one can understand if this Government feel unable to commit themselves to that, and in ordinary law reform experience I suppose in any case it will be about three years before that is accepted. But, as I have said, the Report is a mine of information. We now know that there are 620,000 one-parent families looking after over 1 million children. There are 430,000 lone wives who are responsible for 720,000 children whose fathers are still alive.

What is a cohabitation rule, and why do we have to have one? It depends on a very tiny piece of legislation which is subparagraph (1) of paragraph 3 of the Second Schedule to the Ministry of Social Security Act 1966, which says: Where a husband and wife are members of the same household their requirements and resources shall be aggregated and shall be treated as the husbands,"—

typical— and similarly, unless there are exceptional circumstances, as regards two persons cohabiting as man and wife.

And in relation to a widow's pension the National Insurance Act 1965 says much the same, except that it uses the expression in relation to a woman cohabiting with a man as his wife ".

It is debatable whether there ought to be such a rule at all. The justification for the rule is said to be that if it were not so an unmarried woman living with a man would be in a better position, particularly tax-wise, than a married one. I have never been sure myself whether this is a convincing answer because in every other respect the unmarried woman is in a worse financial position. Mr. Tony Lynes, in an article in New Society in December 1971, said: A married woman has a legal right to maintenance during her husband's life, and right of inheritance on his death. Their children are born legitimate. His national insurance contributions entitle her to a maternity grant on the birth of each of her children, a retirement pension at the age of 60 and widows' benefit if he dies before her. These are valuable and are, to most women, important rights. Cohabitation is, by comparison, an extremely insecure situation, especially in the early stages when the question of cutting off the woman's benefit is likely to arise. It is far from self-evident that a woman who has been living with a man for a short time with no intention of marriage on either side ought in equity to be regarded as his dependant, or that she ought not to receive more support from the social security system than a married woman.

But there is this quite separate reason. If an unmarried mother is receiving an adequate income from her father who can afford it, should the taxpayer have to put his hands in his pockets to provide supplementary benefits for her? Of course not. The real basis of that is that she is being maintained by a man. It may be an uncle. Whether she is having sexual relations with her uncle, was, I should have thought, completely irrelevant. Either he is providing her with an income or he is not. However, there it is.

The first difficulty is that there is no definition of what "cohabiting as man and wife" means. The Supplementary Benefits Commission in their Handbook

put it like this—this is what they inform the claimant of: The question that has to be decided—and this is not always understood—is whether or not an unmarried couple are in fact living together as man and wife, or in the language of the Act, cohabiting. In most cases the couple wish to be regarded as married, and there is no difficulty. But in some cases the man and woman will deny that they are cohabiting. The Commission then have a duty to decide whether they are or not.

In those last two sentences the word "cohabiting" ought to be what it is in the Act, "cohabiting as man and wife". Then they say: There is no simple answer. The decision has to be reached after weighing up a combination of facts, e.g. Is there a common home? Is there a pooled household fund? Do the couple have children? What are the regular sleeping arrangements? Does the woman use the man's name and are the couple acknowledged publicly as man and wife? And so on. The answer to any one question is not necessarily conclusive by itself. Nor need the answer to any one question be more significant, taken by itself, than the answer to another. In each case all the facts have to be regarded as a whole in reaching a decision. And it should be emphasised that the decision depends solely on whether it appears that the couple are living as man and wife in the full sense of the term, not on any moral considerations or on whether a man and woman have slept together on occasions.

I think that that puts the position fairly, but the difficulty is that the Commission have two codes. One is called the "A" code which is for their ordinary officials and the other is the "AX" code which arc their instructions to their investigating officials, the ones who are sometimes called "the snoopers". And as the booklet says on page 14: The approach taken in the ' AX ' code is very different. There is no question of following the official ' combination of facts ' approach and of carefully weighing up all the facts of the situation ".

These are the officials who actually have the power to decide and do, in fact, decide whether to take a woman's book away and leave her destitute. The booklet continues: Indeed the whole question of establishing whether cohabitation exists or not is virtually ignored. Instead, all the criteria carefully elaborated by the Commission are collapsed into the one overriding criterion of whether there is a man living in the same accommodation as the woman. There is no mention of the stipulation made by the Supplementary Benefits Commission in their official report, of the necessity of establishing that they are living together as man and wife. The important issue of housekeeping and financial arrangements is summarily dismissed with the instruction ' that the financial arrangements the couple come to in their relationship is not the point at issue. They may, however, be of interest in that, if there has been regular maintenance, the evidence of cohabitation will have been even further strengthened '.

My Lords, this decision places the accent on sex and not, as I should have thought it should be, on finance. I believe that I may have broken the Official Secrets Act—or may be told so by my noble friend Lord Wells-Pestell—in quoting from the "AX" code, but the Group had the courage to do that. When I asked a Starred Question, I think a comment was made by the noble Lord, Lord Avebury, and I am not sure that my noble friend followed this point when he said that there had been a leak. I think that what he meant was that a great many of us strongly take the view that if it is left to the discretion of not well paid officials to make a woman completely destitute, the way to find out how, it is being operated is to see what are the instructions of those officials and to see whether the public have a right in such a case to know the instructions which are being given to them.

What ought to be finance-orientated is at present sex-orientated. I am quite sure that my noble friend Lord Collison is a magnificent Chairman of the Commission. He has a large staff of thousands who are not well paid. In any large body there must always be some black sheep. The Child Poverty Action Group say very clearly in their Report that they do not suggest that the 50 cases which they examined in great detail was a sufficiently representative sample. One must keep a balance about this matter in fairness to the Commission, and the point has been well expressed by the Finer Committee in their Report when they say, in paragraph 5,266: There are few subjects in the field of social security law and administration which give rise to more heat and criticism than the cohabitation rule in supplementary benefits. We have been made conscious of this not only by the literature which abounds and the evidence we have received but also by the frank statement of the Supplementary Benefits Commission of ' this basic difficulty—the mere fact of investigation in this emotionally charged field arouses distress and resentment among claimants, social workers and others, perhaps beyond that aroused in any other area of the Commission's administration '.

They say in the next paragraph: It is obvious that a jurisdiction of this kind must expose the Commission to attacks which are unfounded or exaggerated, but which it is hard for them, especially having regard to the obligation of confidence, to refute. Nevertheless, the testimony of the Commission confirms the evidence from other sources, that however much effort is given to improve its administration, and to inform the endeavours in the field with the care and refinement which characterises the thinking at the centre, the cohabitation rule may involve indignities, and sometimes hardship or injustice, for people who fall under its shadow.

I felt, myself, that these women—unmarried mothers, widows, divorced and separated wives—are among the most defenceless of our population. They are always on the borderline of poverty because obviously the 720.000 children cannot be looked after if the mother goes out to work. I suppose they represent the classical example as to why supplementary benefits are necessary. They are usually not well educated and inevitably are in great fear of this official who has the sole right to take away their book. Sometimes it is taken away without their being told why, and often it depends on how much fuss is made. If you make a great fuss the book is suddenly returned to you, but you are never told why the supplementary benefits have been withdrawn.

My noble friend Lord Wells-Pestell, when I asked a question about widows, said to me: "Why do you select widows? "I frankly did so because people can, I suppose, say of an unmarried girl who has a baby:" As she has made her bed, so she must lie on it." Of a widow with young children, who had been living happily with her husband before, say, he had a sudden heart attack and died, nobody can say, "Of course, that is her fault". But this does not mean that I am not sympathetic to men. I have perhaps a reputation for being a feminist, which is quite deserved if that means that I think women are discriminated against in too many different ways. We do not always think of the men. Of course, one should be very careful of quoting a man who is dead; one should be certain that he would not mind being quoted and one must be accurate.

I remember that one day Mr. Richard Crossman (whose intellect I greatly admired) came to see me and he said this: "In the whole field of social wel- fare, I think the most difficult problem is that of the fatherless family. There are many different ways in which they might be helped. There must always be limited resources, and I am thinking of appointing a committee to see what is really the best way of tackling this. If I take it to the Cabinet, will you support me?"

I said, "I am sure that would be desirable, but why on earth do you want to limit it to fatherless families?" I went on to say: "You may remember that the biggest single ground for divorce, whether or not it is the real cause of the breakdown of the marriage, is adultery. Every year about half the petitions on this ground are brought by wives against adulterous husbands and the other half are brought by husbands against adulterous wives. But when a man with children aged two, four and six finds that his wife has gone off with another man, he is himself in a very difficult position. Nobody seems to realise this: everybody talks about the women. Of course, if he is in work he wants to continue at work and then he is told that he must get a woman to look after the children. If he has a mother or sister the matter is fairly easy, if they are prepared to give up many years to bringing up the children. If not, where is he to find this woman and is he to sleep in the house? I have said that whereas with women the main problem is one of finance, which a man does not have to the same extent, it is a very difficult position for the man, too, and I see from the Report now that there are about 100,000 fathers who are trying to bring up children in these circumstances."

Mr. Crossman went away saying that he would think about this, and then we heard that the Finer Committee had been appointed and were looking into one-parent families. There have been several independent inquiries, of course, about the operation, apart from this one, by the Child Poverty Action Group. There are many difficulties. One is of course that I can understand the Supplementary Benefits Commission saying to a woman: "Now you have a spare room in your house: you could let that and the State would be relieved of a certain amount of supplementary benefit." When she has a lodger, then they round on her and say, "You are cohabitating". The main way in which the rule seems to be operated is that the officials take away a book if there is a man living in the house, unless the woman satisfies them that she is not cohabitating with him—and of course this is not always an easy thing to do.

Another difficulty is that very often a widow with young children, and being fairly young herself, may feel that it is probably her duty to her children to re-marry. She is thus in that delicate stage of wondering whether this is the right man for a re-marriage; and he is wondering the same. This is always a difficult stage in an emotional development. When the supplementary benefits official arrives at the house he does not only charge the woman or speak to the the woman about the man's presence in the house but he rounds on the man and says, "You ought to be supporting her"—and the official sometimes calls on him at work so that the interview may take place in front of his workmates. I have observed that in about a third of the cases which have been investigated by the Child Poverty Action Group, from the figures given, the man just gets up and goes, because he does not see why he should be put in this position or to be told, "You should be supporting her and then you could get family incomes supplement." Therefore, what might have been a secure re-marriage never happens. The other thing that struck me was that in only four out of the 49 cases for which they got the most complete details was any real contribution being made by the man or any pooling of resources.

Of course, there is an appeal to a tribunal, but the decision is taken before the tribunal. The book is taken away and sometimes you may have to wait months before you can get to the tribunal. This plunges the family at once into a chronic economic position. The Finer Committee considered this and came down against the suggestion that benefit should continue to be paid until the hearing by the tribunal, but what they recommend is that where benefit is already being paid—that is to say, not merely applied for—the official concerned should present a short piece of paper giving the facts on which he thinks there is evidence of cohabitation. If she agrees with the facts she can still appeal to the tribunal on the grounds that the facts do not amount to cohabitation; but if she disputes the facts, the official should himself take the case to the tribunal to get this dispute of fact resolved and meanwhile the payments should continue.

Therefore, I would ask the Government whether they have considered this recommendation and, if so, whether they propose to accept it and, if not, why not?—everything, of course, having stopped except that the Commission, pending appeal (relying on the exceptional cases clause) continues the payments for the children, though not for the mother, for four weeks. The Finer Committee think that that is far too short a time. They say in 5,276: The other situation which has given us particular concern is where benefit is withdrawn on the grounds of cohabitation, but the cohabitee is not supporting dependent children of the claimant of whom he is not the father. Currently, the Commission are prepared to deal with such cases by making an exceptional needs payment in the nature of ' an adjusting allowing to meet those children's requirements (taking into account their share of family allowance and any maintenance payments made by their father) for a period of four weeks. The purpose of these payments is to cushion the family against the abrupt reduction in their income, give the couple time to claim any family income supplement to which they may be entitled, and time to adapt to a situation in which the whole family must in most cases rely upon the man's income for their support.' We regard this period of four weeks as insufficient. Proper as the decision to withdraw the benefit may be, its sudden loss creates in many of the cohabitation cases a crisis within the household of the first order. Social workers are familiar with this situation: the man who has not been giving support to the dependent children of the woman with whom he is cohabiting is often temperamentally unstable, with limited earning capacity; the loss of income from the benefit may result in the total disruption of what may already be a parlous household economy; rent may fall into arreas, other debts may accumulate and gas and electricity meters become tempting targets. As the Fisher Committee observed. ' The Commission … recognise that the rarity of payments to meet urgent need in cohabitation cases may well conceal a fair amount of genuine need that is not being met … ' We recommend that the four-week period to which we have above made reference should be extended to three months.

May I ask on that point whether the Government accept this recommendation of the Finer Committee and, if not, why not?

Then I come to the appeal tribunal. This is in every respect unsatisfactory. First of all, if a widow's pension is not enough for a woman to live on, it is topped up by supplementary benefits. If the books are taken away, she has two appeals, one to the insurance tribunal in respect of a pension, and one to the supplementary benefits tribunal in respect of the supplementary benefits, the cohabitation rule of course applying to both. The pension tribunal is the tribunal in which two out of three members are appointed by the Minister but the chairman is a lawyer who is appointed by the noble and learned Lord the Lord Chancellor. They follow the rules of evidence and, if they disallow an appeal, there is a right of appeal on law to a commissioner who is a judge of high standing.

The supplementary benefits appeal tribunals are the lowest form of tribunal life. They are paid much less than members of any other tribunal in the country: nominally the Minister appoints two of the three, and the noble and learned Lord the Lord Chancellor, who is expected to appoint lawyers, appoints the chairman. In real life it is the Minister who appoints all three, for the reason that he simply cannot get lawyers who are prepared to take the chair at tribunals of this kind. Out of 224 chairmen, only 16 are lawyers and 208 are laymen. They have to deal with these delicate affairs affecting women, and the House, with its great knowledge, will not be surprised to hear that 85 per cent, of the members are men.

The appellant has no rights. In the insurance tribunal you are entitled to have a representative, whether a lawyer or not, who can ask questions of the witnesses and address the tribunal. With supplementary benefits tribunal you have no right at all. About a fortnight ago I saw the solicitor to the Child Poverty Action Group. He had come from a supplementary benefits tribunal. A member of the tribunal had said to him, "I have here a letter which proves cohabitation". The solicitor asked to see it but was not allowed to do so. He asked who had written the letter but they would not tell him. He asked what the letter said. They paid no attention to the rules of evidence and were very proud about this. They said it was all discreticn and there was no law in it. They accept as evidence anonymous telephone conversations, anonymous letters, and so forth. There is no appeal at all from this tribunal.

With a pensions tribunal the decisions of the commissioners are binding on the tribunal. They are published; the tribunals have to follow them; there is a doctrine of precedence. As there is no appeal in the supplementary benefits tribunals, this does not apply. In one case the regional officer (who is apparently a very high official) turned up to hear the case, which I suppose he is entitled to do. When the tribunal retired he retired with them. Look at the difficulty of persuading these women that this is an independent tribunal when the Ministry appoints all three members of a tribunal, and when the clerk to the tribunal conies from the Ministry and is going back when he finishes being clerk. Even a regional officer is allowed to be with the tribunal when they consider their decision. I know of at least one case where a widow's pension and supplementary benefits were withdrawn, and she appealed on both. They were heard by the two tribunals. The evidence was exactly the same. The National Insurance tribunal found that there was no cohabitation, and the supplementary benefits tribunal found that there was.

I suggest this needs a complete overhaul and re-thinking. It is almost impossible to get before a judge. I read in The Times of a case which went before a judge. The supplementary benefits tribunal had withdrawn benefits on the ground of cohabitation and the woman appealed. She lost her appeal and, as so often happens, was prosecuted for fraud on the grounds that she ought to have told the Commission that there was a man in the house and she should not have gone on drawing benefits meanwhile. This enabled her to get to a judge because she appealed on the magistrates' decision. It came before the divisional court and, if my recollection is right, the Lord Chief Justice was sitting. With great respect to my noble friend Lord Coliison, this is why I do not think it can be all discretionary. Where you are operating a Statute the construction of the Statute must be a matter of law.

The case was quashed on two grounds: first, the man was not living in the house in the ordinary sense of the word. This woman was separated from her husband. They had discussed a reconciliation and it was agreed that for a trial period the husband would stay in the house at weekends. The court quashed the case on the ground that that was not what was ordinarily understood as cohabiting. The whole point was to see whether or not they would do that in the future. Secondly, as she had not thought herself under any obligation to tell the Commission that her husband had come to the house, she could not have been convicted properly of fraud, because "fraud" means a fraudulent mind, which she had not got.

There is no legal aid. I know of the difficulties of the noble and learned Lord the Lord Chancellor, regarding legal aid. In the 50 cases carefully examined by the group, not one single appeal succeeded where the woman was not represented. Where she was represented, not necessarily by a lawyer but by a social worker or somebody who read the Act and knew what cohabiting meant, somebody who expressed the woman's point of view—which very often the woman was incapable of doing—60 per cent, of the appeals succeeded. That makes a strong case why legal aid should be allowed.

Some of the cases seem so extraordinary from the point of view of cohabitation. I was talking to a woman at mid-day to-day who had been convicted of cohabiting at the age of 71. She was divorced from her husband 25 years ago and had to find somewhere to live. There was a young man, 25 years younger than she was, who was an old friend of the family. He had a spare room and it was decided that she should have the spare room. She would not pay any rent but would cook his meals and keep the house clean. She had a job and went on working. This went on for a quarter of a century, or whatever it was, and then three years ago the lady developed acute arthritis. She had gone on working until she was 69 and then could not work any more. She would have been entitled to a supplementary pension but she did not apply for that because she did not think it right to live on charity and she had her life savings of £150. For the next two years she lived on her life savings, and then she applied for supplementary benefit, only to be told she was disoualified because she was cohabiting with this man. As there had never been any kind of sexual relationship between them the shock of anybody thinking that she would have sexual relations with a man 25 years younger than herself naturally appalled her.

There was another case of a woman of 59 with an epileptic son. An old friend of her husband used to visit the house and sometimes say the night, because he was the one person with whom this epileptic son, who had frequent fits, got on very well. She had a book taken away from her on the ground that she was cohabiting with this man. Since this has been done she feels she dare not ask this man to the house again (which is a great loss to the epileptic son) in case the same unpleasantness arises again.

I have read the Minister's Statement made in the Commons about this recommendation for the Finer Committee. She says: I can also say that the Supplementary Benefits Commission have already in hand a major re-examination of the administration of the cohabitation provisions to assist them to review their policies and will certainly give the most careful consideration to what the Finer Committee have said. I have also asked the Commission to include in their consideration the question whether any amendment of the Supplementary Benefit Act is desirable and to report to me on their findings.

On this point, may I respectfully ask my noble friend Lord Wells-Pestcll how long has this inquiry been going on? Secondly, how long is it likely to go on? Is it an entirely internal inquiry or will it be possible for other people to give evidence before it? This has now gone on for a long time. It is always rather distressing when one is told one must wait for something else. We have now waited months and months for Finer. We are grateful to all the members of the Finer Committee. We now look to the Government.

I have seen a letter which the Minister of State has written to the Secretary of the National Association of Widows dealing with all these points on a very non-possumus basis. I trust that that will not be persisted in. I was somewhat upset to notice that this letter, which set out his own personal views on all these matters, was in places, including the whole of the last paragraph, word for word, line for line, exactly the same as a letter which Sir Keith Joseph wrote to me when he was Minister. Of course, it is quite possible for Ministers of different Parties to have the same views. We all know that where there is a strong Civil Service there can be a very strong Departmental view, and I regret it was a case of the voice being the voice of Jacob and the hands being the hands of Esau. I am primarily concerned for these million children. Knowing her, I cannot myself believe that the Minister can be happy about this situation. I am deeply sympathetic to her great difficulties with the reorganised National Health Service (in terms other than those we should have liked), the reorganisation of local government, the Pensions Bill, nurses' strikes and so on. However, if she has time to look into this matter herself I cannot believe, knowing her, that she will allow the administration of the cohabitation rule to continue as it is at present.

5.24 p.m.

LORD BEAUMONT OF WHITLEY

My Lords, when I first heard that the noble and learned Lord was to ask this Question to-night I felt that I must put my name down to speak for one main purpose, which was to identify myself and my noble friends with the case I was sure he was to deploy. However, I was not foolish enough to think that I should have much to add to what he said in deploying the case as forcefully and as well as he has. And so events have turned out. Therefore, I do not wish to go over any of the ground which the noble and learned Lord has himself gone over so well. The only reason why I am staying on my feet for a few minutes longer is that it would be a great pity if this subject was debated and discussed without its being suggested that there was, in tact, a deeper element of injustice and a deeper element of wrong legislation behind even the points which the noble and learned Lord has produced.

He has questioned whether there should be a cohabitation rule at all, in view of the disbenefits, the disadvantages, from which people who are cohabiting, particularly women, suffer. That is a very fair point. I would go behind that even further. He quoted the cohabitation rule as being, of course, a means of bringing the law into line with what is the law for those who are married. I suggest there is something wrong in the rule as it stands, even as it affects marriages; that is, the provision that for social security purposes the income of two people who are married, or two people who are cohabiting, should be lumped together. All this stems from the tradition which we inherit from the economic life of the last century, that the main economic unit with which we must treat is that of the wage-earner and his or her family.

I am very much in favour of the family. I belong to a family. I have a family and I am very fond of them. However, we have gone along the wrong lines in our legislation, and in our social welfare legislation, in trying to think in terms of the wage-earner and his or her dependents, instead of thinking in terms of individuals and the fact that it is their affair whether they marry or live together or anything else. Any economic situation which takes as its unit the wage-earner and his or her dependents will be unjust, in anything except an ideal world, to the dependents. One of the reasons why this bears hardly on women is that in a situation and a society where the job of bringing up the children is, I suppose, regarded as a private contract between a wage-earner and his wife, the majority of the dependents are women. But what I am saying applies to all dependents whether they are women or men. It seemed to me a bad basic fault in the Beveridge Report and the whole welfare system that this has been allowed to continue.

From it have stemmed a great many injustices. When one starts trying to apply the rules such as the cohabitation rule one comes across all these hard cases and it is difficult to see how to do away with them. It is exactly the same kind of thinking, and the same kind of wrong placing of the economic unit, which have made the trouble with the immigration rules and the hardship that they have given to some dependents with injustice to women—an injustice which I am delighted to know (and I pay tribute to this) has to a certain extent been abolished recently. Surely, if we were starting again from scratch to-day with the social security system we would start with a system whereby we would guarantee the safety net, so to speak, of basic living money—the basic ability to live and not to starve—not for the unit of a family but for men, women and children. Indeed, we are moving along those lines already. The whole idea of a children's allowance is moving in that direction. The idea that the children's allowance should be extended to the first child, which my Party has stood for some time and which many people, again, are moving towards, is another step in this direction.

My Lords, T think that there should be no lessening of social security benefits for anybody just because they happen to share a house with somebody, whether or not they are married. I should like the pension to be a unit pension for men or women and exactly the same for each, and it should not be lessened because they happen to be living together or to be in a household together. There might be a statutory lessening in so far as part of the pension is deemed to be for housing and a saving results from the sharing of a house. Basically, however, we should be producing a safety net for individuals and if we introduced it we should be escaping from these injustices. It would be expensive to produce a social security system like this. It would cost a great deal more than we pay for it at the moment, but that we have to move in that direction and that we shall move in that direction I have little doubt.

My Lords, there is one way in which in the long run it would not be expensive and inflationary, because as well as making sense of the social security system it would import a certain amount of common sense into the wages and incomes system of this country. As your Lordships know, at the moment we have a situation (although it does not always work out like this) in which the basic wage is meant to be calculated as what is necessary to support a man with a wife and some children. This is grossly inflationary, because one pays the same basic wage to an unmarried man who has none of those responsibilities. If one had a sensible social security system, either by negative income tax or by tax credit with a claw-back from the taxation system, one would be able to import a great deal more sense into the whole of one's incomes and wages policy.

My Lords, I apologise for digressing a little from the main subject of the debate, but at least your Lordships will agree that I have not kept your Lordships' House long. I think it is right that when we have problems which raise many individual injustices we should look back and back again to see whether there is something which is fundamentally wrong with the system which we are administering that we should try to cure in future social security Bills. What I have said may not be directly pertinent to what the Minister has to say to-day in reply to the Question raised by the noble and learned Lord, but I think that it is something which Government and political Parties should think about when they pass further legislation in the social security field—as, indeed, will happen in the future.

5.32 p.m.

BARONESS PHILLIPS

My Lords, we are deeply grateful to the noble and learned Lord who has asked this Question. In his usual splendid way he has covered the whole of the matter which we are discussing. We know about his great compassionate beliefs in many fields, and women in particular are deeply grateful to him for raising this Question.

My Lords, I shall give one straightforward and simple story which illustrates the question that has been put. It is a case which came to the surgery of a Member of another place a couple of weeks ago. At five o'clock on a Saturday afternoon the last case to ask for advice was a young woman with a small child who came in, sat down quietly, was very still and said suddenly to the Member, "I am going to kill myself". The Member said, "What is the trouble?" The woman then told her that she was a widow with five children, that she had been accused of cohabiting with a man who was living in her house and that her pension book had been taken away.

I think it is perhaps difficult for some Members of your Lordships' House to appreciate what it must be like for a woman with five small children to be left totally without money at five o'clock on a Saturday afternoon. The Member offered to help her with some money. The woman refused the money; she did not want it; she wept. Then she explained the terrible trauma she had experienced. The Member returned to London and on Sunday telephoned the emergency service of the Department of Health and Social Security. There is a telephone number for this purpose. All that she got was a recorded answer which informed her that the duty officer was not available. Therefore it was Monday, after more telephoning locally, before she was able to obtain any kind of help for this woman. Then the local officer said, "Of course, the woman could have had some help if she had filled in the right forms". That is the kind of system under which we live. I remember G. K. Chesterton's famous words. He spoke of the "Lords of the Dead Eyes and their fumbling papers".

The noble and learned Lord, Lord Gardiner, has described how the cohabitation rule works. As he pointed out, it is important to remember that there is no definition of "cohabitation". And, indeed, ¡the administration of the system is different according to the benefits which are collected. The four or five vital questions which were put by the noble and learned Lord are those which are used now as the criteria to decide whether people are cohabiting. Does the woman use the man's name and do they represent themselves as man and wife? That is simple, Is the partnership a stable one and for how long has it lasted? Again that is not difficult. Is there a common home in the sense of shared accommodation? I suggest, My Lords, that this is not so easy a question to answer. Have the couple had children and do they share the same bedroom? Reading the cases, it seems to me that the crux of the matter is whether they share the same bedroom. It is the question to which they return again and again. Finally, does the man support the woman financially?

I will give your Lordships two cases. They might be hypothetical but in fact they are not. I chose a widow of over 60 years of age, thinking that she could not be held to be cohabiting, but now we hear that even when you are 71 you are not immune from the charge. I notice that if you claim your retirement pension there is no cohabitation rule, so perhaps the lady of 71 is holding the wrong pension book. The first case is the widow of over 60 who has two lodgers. Each lodger pays her about £8 a week for lodging, food and shared accommodation, and if she makes any profit from letting this accommodation she makes a return to Her Majesty's Inspector of Taxes. However, she is still allowed to receive her widow's pension, although she is receiving money over and above that which the State provides for her. Yet if we take the case of the widowed mother, at 33 years of age she has one lodger but because somebody suggests that she sleeps with him she is not allowed to have money from the State since he should be supporting her.

My Lords, whichever way you examine it, this is totally illogical. I have not yet read my copy, but whatever the Finer Report says I am going to ask for the abolition of this rule. I believe that it is cruel and I believe that it is expensive to operate, just as is that other crazy rule which, with other Members of your Lordships' House, I have tried to abolish. It is particularly degrading both to the woman who is being investigated and to those people who have to investigate. I expect I shall be told that it is going to be too costly, but I say to the Government quite seriously that there is no evidence to suggest that if you abolish this rule each of the 556 widows will rush out to-morrow and set up cohabitation with a man. Would it be unfair to a married couple? As the noble and learned Lord has already pointed out, the married woman has the kind of security which a woman who lives as a common law wife could never have at any stage. I agree with the noble Lord who has just spoken. In the long term, we shall have to look much more carefully at the status of women—at the status of the home maker who at the moment has no status within the law.

From this stem many other injustices, such as the difficulty for the disabled housewife in getting anything. If we cannot have the abolition of the rule, I would ask the Government quite seriously to take into consideration some other points which are absolutely vital to the operation of this system. First, I would say that benefits—and not just for children—must not be withdrawn until a case has been heard by an independent tribunal. What right have we to find people guilty before they have even gone through the process of investigation? The onus of proof must be placed on the authority making the decision that a person is cohabiting, and it must be made clear to the woman that she can appeal. It is perfectly obvious to me, as the secretary to a women's organisation—because I see practically every kind of difficulty that women have to contend with—that nobody had explained that one could appeal, nor indeed would people understand how to set about it. We must have the whole set-up looked at carefully.

The National Association of Widows has been doing some splendid work in representing the widows at the tribunal, but few women will win their case if they have to go alone. I am a magistrate, and I know only too well the necessity to have an expert who understands the procedure of how to question witnesses. One can imagine a woman coming before the tribunal and having to challenge the evidence given by a skilled officer. In my view, there is a very strange overtone in this, that the State must never at any stage be seen to be supporting what is called "immorality". I was in court the other day listening to the case of a man who was living on immoral earnings. This was no Messina-like character; he was a rather delicate young man who was living with a rather jolly lady 20 years his senior. But I felt that had she been working at the local supermarket nobody would have questioned the fact that she was supporting him. We always have an overtone that one must never appear to be condoning this conduct. To those who say that somebody will cheat, I would say, as a Christian, "Let he who is without sin cast the first stone." I think that cheating the State has become some kind of game. We all know people who will tell us how they were clever at cheating the Customs, or how they found a way to get around the income tax. This is a cruel and unjust rule and I ask this Government, in their compassion, to seek its abolition.

5.44 p.m.

BARONESS MACLEOD OF BORVE

My Lords, I, too, am grateful to the noble and learned Lord for asking this Question, which has pin-pointed the difficulties of so many women in this country. Those of us in this House who are widows are most grateful to him for bringing this matter out into the open, and perhaps for having the light of the Press shed upon it, because as there are no copies of Hansard being printed that is about the only way in which we can get this known.

From the vast amount of material available, it is obvious that the subject of cohabitation is an unusually difficult and delicate one. Needless to say, each writer and all who give evidence think that their version of the word "cohabiting" is the correct one. But the Ministry of Social Security Act 1966 referred to "cohabiting as man and wife", while the National Insurance Act refers to "cohabiting with a man as his wife". Whichever wording one prefers, the fact remains that there is a rule and if a woman breaks that rule by taking unto herself a common law husband she shall forfeit the right to the widow's pension and her book is withdrawn.

Those of us who are interested in this debate today will all have heard of women who have been suspected of breaking the rules, and who have been made acutely unhappy because of the suggestion that they might be cohabiting. There are 3 million widows in this country today, and in 1972 only 1,146 had their books withdrawn. Of these, after further investigation, 40 had their books returned to them. One wonders how many of the other 1,100 were actually breaking the rules and how many did not know the rules. The insurance inspectors on the staff of the local N.H.S.S. offices are authorised by the Central Pensions Branch at Newcastle to carry out investigations. He, or she, establishes the facts according to the rules laid down and to the best of their ability.

If the inspector is satisfied that cohabitation exists in the home, he reports to his office and the woman's book is forthwith withdrawn. But no one is perfect and there is evidence to show that on some occasions the officer is wrong. The book, which may represent all her finances, is withdrawn. The woman can protest her innocence, but I fear that few women know of their rights of appeal. They can appeal to a tribunal—and, having heard what the noble and learned Lord has said, I hope that in future tribunals will always have a woman as one of their number—which, unfortunately, is likely to take some time to hear the case: meanwhile no book, no money. I should like to see two changes: First, that the woman should retain her book until the appeal is heard; and, secondly, that she should be legally represented. I also think that the investigating officer should given the woman a detailed written report of what he has found and the reasons for his decision. I also feel that within a short time of the woman being widowed a representative of the N.H.S.S. should call on her and tell her of the provisions which are made for her benefit.

The newly formed National Association of Widows, of which I am very proud to be a patron, is giving a superb service in helping those widows who need guidance and help with their problems. I should like to pay my tribute in this House today to their first and present chairman, Mrs. Hamer, for all that she does to help the widows. This Association is against the abolition of the cohabitation rule, realising as we do that if there were no rule unmarried couples living together would be treated more favourably than married ones. This is not Utopia, and although the previous Government reduced the age at which a widow may receive benefit to 35, in my opinion it is still not low enough. If we were in Utopia, I should like to see some help for a widower who is left with children. I sometimes feel that his load is more difficult than ours. As we all know, laws and rules are made but widows, in particular, have to rely on the sympathy and understanding of those who implement them.

5.49 p.m.

LADY KINLOSS

My Lords, I am happy to join with other noble Lords in expressing my gratitude to the noble and learned Lord, Lord Gardiner, for having asked this Question. I myself have been in touch with Miss Ruth Lister, whose As Man and Wife seems to me to be a model of clarity and good sense; and also with the Chairman and Secretary of the Child Action Poverty Group branch in York, Mr. Jonathan Bradshaw and Miss Teresa Gilbert, who have kindly given me far more information about what is a very difficult subject than I can possibly use in what I hope will be a very short speech. Indeed, the time for speaking at greater length will be when we come to debate the Finer Report, which was published only on July 2. I cannot say that I have been able to read it; there are 910 pages and there is a very great deal in it to think about and to consider with care. All the same, in view of some of the very painful revelations that the report has made—and by" revelations "I mean revelations which are giving pain to a very large number of women and children—I hope that a full debate upon it will not be long delayed. Indeed, I venture to hope that, whatever Government may be in office when we assemble again in the autumn, we may have an early opportunity of debating it then. There are no less than 620,000 families involved, and more than one million children—10 per cent, of all the families in Britain. Surely such a substantial number has an early claim upon our attention.

My Lords, this Question is concerned with the cohabitation rule and I must not stray wide of the Question—if I have not done so already. I cannot speak, as the noble and learned Lord, Lord Gardiner, does, as one learned in the law. But it is generally understood that everyone is presumed to know the law; though it is quite another question whether everyone does. But it seems to me as a very ordinary person that the cohabitation rule is not law at all; it is non-law because it seems to defy definition. If there is a real definition I shall be glad to be told of it; it will put a great many women—I am happily not one of those affected—out of what, at the moment, is a state of uncertainty and misery. This non-law, My Lords, appears to me as a simple laywoman to contradict what I have been taught to regard to be a fundamental of English law; that persons are to be presumed innocent until they have been proved guilty.

It is shameful, My Lords, that under this non-law—this non-law which has proved incapable of definition—a woman and children can be deprived of benefit and left destitute by the instant removal of her benefit book before she can even draw breath to appeal against the summary action of an investigating officer. This state of non-law goes even further than I have said: if the woman who has had her benefit book withdrawn does appeal, she appeals to a tribunal upon which there is not necessarily a single legally qualified person. Yet to these appeal tribunals has been entrusted the definition of the cohabitation rule and the consequence which may flow from it.

My Lords, I appreciate that there are serious difficulties in defining what "cohabitation" means. Like many noble Lords, I live in a village. Of course everyone knows that in a village there is a great deal of gossip; and everyone knows, too, that it is nonsense to rely too much upon it. In the past seven years I have been told six times that our house is for sale, because of advertisements which have appeared in the local newspaper. In fact, it has not been advertised once. It is surely quite scandalous that many investigations seem to have relied upon anonymous letters and anonymous telephone calls. Of course the investigators may reasonably plead that they are "acting upon information received", in the way the police do. But real cohabitation as man and wife, cohabitation not merely in the sense of sexual congress but in the sense of a more permanent quasi-marital unity, needs to be proved in formal terms. The question, as it appears to me, with which the Ministry is faced, is: what is to be regarded as a quasi-marital union?

There seems to be a solution in Miss Lister's Report. Her recommendation, which I fully support, is that for a quasi-marital relationship to be regarded as stable it should be necessary for the investigation to show that there had been a six-month period of cohabitation, and that women—who, with children, have been the principal sufferers—should not be penalised for what are casual or transitory relationships. Such a change—and I hope that the noble Lord who is to reply will consider it with sympathy—for the women and children who are suffering, could be brought about at once, quite simply, by administrative action.

I am speaking, My Lords, as a mother, and there are quite a few noble Ladies in the House who are mothers and who will know what I mean. I am quite sure that noble Lords will not misunderstand me. Under the present haphazard, random administration of the cohabitation rule, not just mothers but also children suffer. They see mother struggling; they see mother downcast and worried. Generally, mother is the only parent they know. Sometimes they are sent into care. I have been told of children who live in fear of being sent into care again, of being separated from mother. Will the noble Lord who is to reply think especially about the children upon whom there can be a lasting disturbing effect?

5.56 p.m.

BARONESS SUMMERSKILL

My Lords, I should like to thank my noble and learned friend Lord Gardiner for initiating this debate and for opening with such an excellent exposition, so comprehensive that one feels that anything more is redundant. I was very impressed by the fact that he has apparently digested both volumes of Finer. I must confess that I have only dipped into it, but undoubtedly one should combine the reading of this little booklet, As Man and Wife, with the reading of the Finer Report. Of the 600,000 single-handed parents who have between them one million children, the woman charged with breaking the cohabitation rule is too often a mother desperately trying to find accommodation and a degree of security. One has to think of her motive.

It is probably a fact that those who are cohabiting have sexual intercourse. But I know enough about women, and about women whom I have seen in my consulting room, to know that in their minds this is a secondary consideration. What such a woman is looking for is a male substitute for her husband, because she is wise enough to know, if she has a family, that a man in the house will help her to control her children. This, also, is combined with the problem of accommodation, which in these days is extremely difficult to find for highly respectable married couples, and therefore this woman with children has only a limited choice. The pressures on her are tremendous and, finally, she accepts a man who has the available accommodation and who, at the time, she feels she can trust.

It should be remembered that one-parent families suffer severe poverty. As I have just said, they are often last in the queue for housing and they suffer social isolation. The woman has no friend to whom she can go to ask for advice and help. She is isolated in every way. Therefore, I believe that this is a question which calls for the utmost compassion, and in this little book, As Man and Wife, I find the description of officials trying to persuade women into admitting cohabitation extremely distasteful. The most common adjectives used to describe the officer's manner were, "arrogant", "uncivil" and "insulting". My Lords, it could be said that these women, having their most private affairs investigated and probed, would want to retaliate, so I cannot attach too much importance to this.

However, I should like to know how many investigating officers are women. This seems to me to be essentially a woman's job, because a woman can put herself in the place of this desperate woman. Surely this delicate operation is not always conducted by men, although I have heard people talking in a way which suggests that the investigator is invariably male. The whole object, apparently, is to save money, but this seems to me to be a most expensive service. In 1971, the cost of the investigations were £400,000 which represents 45 per cent, of the benefit estimated to be saved. It is a pity that there is no way of estimating the cost in human misery of these painful investigations, better known by the victims as "snooping". However worthy the official may be, he may well regard a mother bringing up children alone as, a little cluster of deviants from the marital norm ", if I may quote Finer, and therefore vulnerable to offers of accommodation made by any man.

In a permissive society, are these women to be wholly condemned because they respond to the sexual urge, an instinct second only in strength to that of self-preservation? As I have already said, in my opinion that sexual urge is a secondary matter. What these women want is protection for their children. Nevertheless, it has been decreed that the price of State aid is chastity. A woman must be condemned to abject poverty in her own right if, in her loneliness and homelessness, she decides to share accommodation with a man prepared to offer her and her children shelter without marriage. I stress "in her own right" because she has none of the protection afforded to married women. She has no moral claim to an adequate housekeeping allowance, although it is suggested she may be benefiting financially, or to rights under the Matrimonial Homes Act. Both 1964. Worse still, she has no security under the matrimonial Homes Act. Both of these Acts I rejoiced in getting on the Statute Book myself. So one cannot equate her with a married woman. She is there with this man on sufferance, and any day he can say, "This is the end, go".

My Lords, under these circumstances she must privately consider the arrange ments as being on trial. I cannot believe any woman, knowing how precarious is her situation, would believe, once she moves in, that this was a permanent arrangement. She may hope so, but she will privately regard it as being on trial. For this reason I regard the withdrawal of widow's pensions and supplementary benefit on suspicion of cohabitation, even before an appeal, as heartless and shortsighted. My noble and learned friend has described just what the condition can be of a woman left at the week-end with five children, and her book taken away. She may well have decided to leave the man after a trial period, but stopping the only money which she might call her own is tantamount to removing her lifeline by denying her a chance to save and escape. Even if she has saved, there she is, denied any little money she might use without the man she is living with knowing what she is about to do. I presume the reason for this action is that otherwise the State would be subsidising immorality. Personally, I have always regarded the deliberate deprivation of hungry and homeless children as more reprehensible than sexual immorality.

My Lords, if the Government insist on the cohabitation rule continuing I ask them to allow the woman to retain her benefit for at least the first six months of cohabitation. I believe Finer says three months. Three months is not enough to adjust oneself in such a way that one is prepared to go out into a really cruel and cold world. I think the woman should retain her benefit for at least six months in order to give her a chance of forming a stable union. The desirable thing in all these circumstances is that, if possible, the woman and children should establish a stable union.

If the cohabitation rule were abolished, save in common law marriages it would give the woman a degree of independence and prevent the children ultimately going into care at much greater cost to the community. I do not think the authorities have recognised this. A woman may have been cohabiting; she may have to leave; she may even cohabit with another man. The time comes when she finds life unbearable, and decides to let the children go into care. Children who go into care, deserted by the community, must inevitably develop in a way which is harmful to themselves and, of course, they form a risk to the whole community. The alternative is to adopt the second proposal of "as man and wife", and, having established the relationship as relatively stable, reduce the woman's benefit by the amount that represents the man's material support, if this could be done tidily as an alternative. But I have to agree, when considering both the suggestions put forward, that the only practical one is abolition.

This is a social problem which should not be regarded in isolation. Children denied the right of even an inadequate home with a substitute father may well become the delinquents of tomorrow.

6.5 p.m.

LORD ABERDARE

My Lords, I, too, would like to thank the noble and learned Lord, Lord Gardiner, for having put down this Question and giving us an opportunity to discuss the cohabitation rule. This is a matter which arouses deep emotions on all sides of the House. It has done so to-day. I have some sympathy with the noble Lord, Lord Wells-Pestell, who is to reply to a debate that has been extremely well-informed and highly critical of this rule. I do not know to what extent he will find me on his side or not, but as the noble and learned Lord has had identical letters from Ministers in both our Governments, it may be I have some sympathy with what will be his point of view.

When we were in Government, we certainly were well aware of the feelings of many people and, indeed, some organisations which represented to us some of the circumstances that cause a great deal of worry and distress about the rule. We were equally concerned with the other side of the coin. We were concerned with abuses that took place within the social security system. Noble Lords will recall that my right honourable friend Sir Keith Joseph set up a Committee on the abuse of social security benefits, under the chairmanship of Sir Henry Fisher. This Committee reported in March 1973. I think it is worth recalling what that Committee had to say on the subject of the cohabitation rule. I will not do more than quote a very brief passage from it. In paragraph 325, it says: We accept that in this sensitive area of human relations it is particularly important that the measures employed by the Department of Health and Social Security to contain an abuse should be no more intrusive than the extent of the abuse requires, and should involve as little offence to the feelings of the beneficiaries as is consistent with efficiency. We are, however, equally satisfied that if abuse occurs, as it does, it would be wrong for the Department to turn a blind eye to it because the people committing abuse arc in a situation which attracts sympathy ", That is what the Committee said on the principle of the cohabitation rule.

They went on to make their recommendations on the way in which investigations were conducted. Again, I quote from paragraph 335: Subject to the comments we have made about the difficulties involved in enforcing cohabitation rules and the particular criticism which wo make below, we have no criticism of the Commission's principles. They combine realism with humanity, and where they arc followed we do not consider that there is any legitimate ground for complaint. That is what one would expect of a Supplementary Benefits Commission led by a chairman whom we respect in this House. They went on to make various recommendations as to how the conduct of investigations into abuse could be improved. I should certainly be interested to hear from the noble Lord, Lord Wells-Pestell, what action has been taken on the recommendations of the Fisher Report. That is one highly authoritative Report which stood by the principle of the cohabitation rule, but made suggestions to improve its application.

We now have another Report, referred to by various noble Lords who have spoken to-day; the Report of the Finer Committee on one-parent families, of which my noble friend Lady Macleod, who made such an excellent speech today, was for a time a member until she resigned. I am afraid that I, too, have not had the opportunity of reading the 500-odd pages of this Report, but I have read the portion that deals with the cohabitation rule. The noble and learned Lord praised this Report very warmly as an excellent document. He quoted certain of the recommendations, but I think it is very relevant also to quote what the Finer Committee said about the general principle of the rule. I quote from Part 5, paragraphs 268/9, where they discuss the way the rule works. They said: … the cohabitation rule may involve indignities, and sometimes hardship or injustice, for people who fall under its shadow That has been very much the tenor of this debate. They went on: For this reason we had the strong disposition to recommend the abolition of the rule, which potentially affects all claimants who find themselves in the one-parent family situation, and we would have been glad to make such a recommendation had we been able to discover a reasonable and viable basis for doing so. We spent much time in this endeavour, but failed. It is proper to concentrate on the weaknesses in the rule and the hardships it can sometimes produce, so long as this is not permitted to hide or confuse the overwhelming argument in its favour. This is that it cannot be right to treat unmarried women who have the support of a partner both as if they had no such support and better than if they were married ". That, coming from the Finer Committee, is to me pretty convincing evidence.

BARONESS PHILLIPS

My Lords, I wonder if the noble Lord will forgive me for interrupting. He said "unmarried women", but surely they are not referring to widows.

LORD ABERDARE

My Lords, they are referring to all single parents. This was a Committee on one-parent families and, certainly, widows are included in one-parent families.

BARONESS SUMMERSKILL

My Lords, will the noble Lord allow me to intervene—I am sure he will, as he is a very kind man—on these subjects? The Finer Committee said also, as I have already quoted, … Acts which protect married women which will not protect these ". How can he say that the single woman will be treated better than the married woman?

LORD ABERDARE

My Lords, at the moment I am only quoting what the Finer Committee said. They went into the matter very carefully. As the noble and learned Lord said, it is a very fine Report, and I am being guided by what it said. Of course, I recognise that this does not apply to the argument of the noble Lord, Lord Beaumont of Whitley, who wishes to see the married woman treated differently and in her own right. That is another question, and, as he said, a very extensive one.

The Finer Committee went on to say, having convinced themselves of the necessity for the rule: — Granted the necessity for the rule, the task must be to improve its administration so as to minimise the dangers to which everyone agrees it gives rise. We are more than satisfied that the Commission are alive to these dangers and use their best endeavours, although not always with the success they would wish, to eliminate them. The noble and learned Lord mentioned both their recommendations for improvements in the system of administration, and one of them looks as if it was inspired by my noble friend Lady Macleod. This is the proposal that in those situations where the claimant has been regularly in receipt of benefit and disputes the alleged facts, before withdrawing benefits the appropriate officer of the Commission should give the claimant a written statement of the facts. If the claimant denies any of the facts in the statement, the Commission themselves would refer the case to the tribunal and, pending determination of that reference, the benefit would continue in payment; which is another point put by various noble Lords from different parts of the House. They also made another seemingly very useful suggestion. When the Commission are making exceptional needs payments in the nature of an adjusting allowance to meet children's requirements, they do it now for a period of four weeks, and the Committee recommended that it should be extended to three months.

I have great sympathy with these two recommendations made in the Finer Report, and I should like to ask the noble Lord, Lord Wells-Pestell, what is the Government's attitude to those two recommendations in the Finer Report. My feeling on the matter, having had two investigations into this rule, the Reports of the Fisher Committee and of the Finer Committee, and both of those Committees having come down in favour of the principle of the rule but making suggestions for its detailed application, is that this is very strong evidence that, in principle, we should stick by the rule. In fact, the Finer Committee, interestingly enough, which produced the admirable suggestion for a guaranteed maintenance allowance, went further. In making this suggestion for a guaranteed maintenance allowance, they argeed that a cohabitation rule in conjunction with the allowance would be unavoidable. This is in paragraph 164 of Part 5. This is the evidence to which I think your Lordships should pay heed. We should be concentrating on an improvement of the administration of the rule.

6.18 p.m.

LORD WELLS-PESTELL

My Lords, it is appropriate that we should be discussing this matter at this time, in view of the publication of the Finer Report. The whole question of what has come to be known as the cohabitation rule is one to which the Government and the Supplementary Benefits Commission have given, and are giving, some considerable thought. I think one has to recognise the fact that this is an extraordinary sensitive area in the administration of both supplementary benefits and widows' benefits.

The noble and learned Lord asked me what is being done at the present moment to consider the matters which he raised in a Starred Question, and has raised to-day in an Unstarred Question. The Supplementary Benefits Commission have started an inquiry which began earlier this year. It is being conducted by the Commission and, while it is not in any sense a public inquiry, it will be taking into account not only what has been said in the Fisher Committee's Report—and, in fact, it acted upon some of the recommendations of the Fisher Committee—but what has been said in the Finer Committee's Report and, I think I can say, what has been said in the Report of the Child Poverty Action Group.

I think many of us realise that this is a serious attempt on the part of the authoress to make a specifie contribution in this field. I have no doubt in my own mind that the Commission would be prepared to consider representations made to them, but I do not know whether the Commission would be prepared to hear evidence in person. However, I can see no reason at all why anyone should not write to them if they have something to contribute to the kind of inquiry that the Commission is undertaking at the present moment, and which may have come out of the debate we have had to-day. It must rest with the Commission to decide whether they would wish to consider evidence being given before them in any form. I must confess that this has not arisen, but there is no reason at all why the Commission should not consider whether it will receive evidence in writing as well as evidence in person. I do not think, if the noble and learned Lord will forgive me, that I can go farther than that at the present moment.

The noble and learned Lord, and my noble friend Lady Phillips, raised the question of the definition of the word "cohabitation". I was somewhat surprised to hear the noble and learned Lord say that there had been no definition on this. I am not in a position to argue with him because his knowledge of these matters is superior to that of many of us in your Lordships' House, but my attention was drawn some days ago to a judgment in the Queen's Bench Division of April 11 last year when the Lord Chief Justice said: We have been invited to give some guidance upon the phrase ' cohabiting as man and wife ' but, for my part, it is so well known that nothing I could say about it could possibly assist in its interpretation hereafter.' I think that every magistrates' court throughout the country, at some stage or other in its domestic proceedings, has to deal with this very matter. I would go so far as to say that there can be very few lay magistrates, as well as stipendiaries, who do not have a clear conception in their minds as to what "cohabitation" means.

I believe "cohabitation" means—and this has always been my interpretation of the term—the state of two people living together. It does net depend on there being a sexual relationship between them. On many occasions in desertion cases where husbands and wives have lived in separate parts of the house, have had no communication at all and have not lived together sexually but the wife has done shopping for the husband and done a certain amount of washing for him, as the noble and learned Lord will know better than I, the courts have held that they are, in fact, still living together. It is the state of living together rather than, the presence of the sexual act. I do not think that I can take it any further than that, but I should have thought that there is a reasonably clear and understandable definition of "cohabitation".

The noble and learned Lord, and also my noble friend Lady Phillips, asked about benefit pending an appeal. We have to bear in mind—it may be wrong—-that we are dealing with a fairly substantial amount of public money. It may be that we ought to change the rule; it may be that we ought to go a long way towards it if we do not abolish it altogether, but in the last analysis we have to keep in the forefront of our minds that this is the State spending public money, and the public must be satisfied that the money is being spent in the right way. To continue paying benefit—and I would ask your Lordships to consider this point—pending an appeal may encourage every person to appeal when their supplementary benefit has stopped. A large number of persons who have their benefit stopped, who have their book withdrawn, accept the situation and do not appeal. Your Lordships may not know, but after special investigation they are given notice in writing that their book is to be withdrawn and that they can appeal. As the noble and '.earned Lord says, it may well be that some of them do not know what steps to take, but they are told in writing that they can appeal. Only a small number appeal, and it may well be that if one continues paying benefit pending appeal in every case, however obvious it might be that the couples were cohabiting, it might encourage every person to appeal when, in the majority of instances, perhaps they would otherwise not do so.

I hope that I have answered the noble Baroness, Lady Summerskill, on the question of the sexual aspect, because an occasional sexual relationship by somebody having a supplementary benefit is not, in itself, considered by the Commission as living in a state of cohabitation. Therefore, one cannot say that the decision is tied up completely with any kind of sexual relationship. The noble Baroness also raised the question of the number of investigators. I must say that I am nervous about telling the House what the situation is. I understand that there are something like 320 investigators, but that less than half their time is concerned with cases of cohabitation. So far as I understand the situation, none of them are women. I say this with some apprehension. I would point out that the Commission's Report makes it clear that this can be, and often is, a job in which the officer is involved not only in embarrassment—and that aspect does not worry me at all—but one has to be aware of the fact that at worst there can be a risk of physical violence. It does not necessarily follow that because that element is present there should not be women investigators. I

am sure that the point that the noble Baroness has made will be taken up by the Department because I know that considerable importance is being attached to this debate.

In considering this matter—I think I can say "controversial matter" having regard to what has been said to-day—it is important that we should not lose sight of what has been the fundamental purpose of the rule. I ought to explain what the situation is, and has been for some considerable time. It must be seen in the context of social policy as a whole and not simply as a rule of particular social security schemes. The law and custom of this country is to treat the family—and by "family" I mean the man, wife and dependent children living with them—as a financial unit. This has always been the case. The cohabitation rule is simply a consequence of all the other arrangements that give effect to this principle. The principle itself reflects the importance of the stable family as the basic unit in our social structure. The supplementary benefit scale rates are based on the recognition of a family unit. The legislation provides that the requirements and resources of a couple cohabiting as man and wife are to be aggregated in the same way as those of a married couple living together.

It has been the view of successive Governments that equality of treatment as between married couples and cohabiting couples is both necessary and right. Not to treat them alike would—and I know that this is not accepted by many noble Lords—put the cohabiting couple in a more advantageous position, because the woman could continue to receive supplementary benefit while her partner is working. This seems to be grossly unfair. We are, therefore, denying it to the woman who is married. It would constitute considerable unrest in the community if there was a pattern of family life in which the husband, responsible for his wife and children, was in full-term employment earning a normal wage and, therefore, not eligible for family incomes supplement and not working a sufficiently reduced number of hours a week to qualify him for supplementary benefit, but who was doing a normal job in a normal working week for a normal income and having to keep a wife and family on that. Whereas, if you had a woman who is in receipt of supplementary benefit who decided to team up, with a view to establishing a kind of marriage relationship, but who is not married, in which the husband is working and doing a normal job with a normal income while she is continuing to receive supplementary benefit for herself and any children which she may have had in a former marriage, or as a result of former liaisons, that situation, surely, cannot be either reasonable or right.

BARONESS PHILLIPS

If the Minister will forgive me, he keeps saying "supplementary benefit". The case I mentioned was of a woman who had a widow's pension withdrawn. That is not supplementary benefit.

LORD WELLS-PESTELL

No, I can see that it is not, but the widow's pension is not given to the widow in her own right. It is given to her to meet certain needs as the result of the loss of her husband who himself has paid benefit insurance over a fair number of years. She gets this as the result of what her deceased husband has contributed. So, while it is not a supplementary benefit, it is a payment by the State arising from his insurance, given to her to meet a situation now that he has died. In that sense it is not a supplementary benefit; it stems from National Insurance benefit, but it is not something for which she herself has paid in and received as a right. Therefore, I think it is perfectly reasonable that the yardstick which is applied to people receiving supplementary benefit should apply to the widow.

LORD BEAUMONT OF WHITLEY

My Lords, is not the Minister, with every one of his last few words, admitting the logic of the case that I was deploying?

LORD WELLS-PESTELL

My Lords, I listened carefully to what the noble Lord said. What I wanted to say—perhaps I may say it now because I made a note of it at the time—is that I found his comments interesting and in some respects stimulating. I wanted to read his speech at leisure in Hansard before making any comment on it. That is what I had written down to say to the noble Lord at a later stage.

BARONESS SUMMERSKILL

May I make this point to the noble Lord. I feel strongly about this matter, that there is an argument, which the noble Lord has repeated, that we must not make it appear that the single woman is being treated better than a wife. But she does not have any security. With marriage the wife has security. I spelled it all out in my speech. The wife has the security of the home and she can stay there whatever the husband does. But we are talking about a woman who has no security whatsoever and who can be put out of the house in two minutes.

BARONESS PHILLIPS

My Lords, may I follow this point up to show how totally illogical it is? If the woman is 65 and claims retirement pension there is no cohabitation rule applied. Yet she is still receiving money from the State when she might be living with a man who is supporting her.

LORD WELLS-PESTELL

Yes, because she is receiving retirement pension in her own right, which is something entirely different. If I may reply to my noble friend Lady Summerskill, there is nothing to prevent the woman, whether or not she has children, if the relationship that she has entered into with a man breaks down, going back to the Supplementary Benefits Commission and asking for supplementary benefit.

BARONESS SUMMERSKILL

Of course, she would have to.

LORD WELLS-PESTELL

Precisely. I can see that she does not have the same protection as a married woman, but if she enters into a relationship of the kind that we have been discussing, and, for any reason at all, it breaks down, then she is back in the situation that she was in before she entered into the relationship. It seems to me to be perfectly right and proper that she should then be able to ask for the supplementary benefit to be restored.

The noble Lord, Lord Aberdare, referred to the Finer Committee. As I think he said, the Report makes clear that the Committee was fully conscious of the disadvantages of the cohabitation rule and that it would have liked to recommend its abolition if a reasonable and viable basis for doing so could have been found. Here you have a Committee, which has been sitting for a considerable time, giving a considerable amount of thought to this matter, bringing to it a good deal of competence and ability, yet it has been unable to find an alternative to the problem. In the end the Committee concluded that a cohabitation rule should be retained because of what it gave as the overwhelming argument in its favour; namely—and I come back to what I have just said—that it cannot be right to treat unmarried women, who have the support of a partner, both as if they had no support and better than if they were married. This is the Report of the Finer Committee which the Government are proposing to take into account and which the Supplementary Benefits Commission, who are considering the matter, will be looking at as well.

The report of the Child Poverty Action Group, I may say to my noble and learned friend Lord Gardiner, I have read with some considerable interest, because those of us who have worked in the professional social work field cannot but acknowledge the tremendous contribution that that organisation has made over a number of years in this area. I would not want to say anything that would in any way lessen one's own respect for what it has done in this field. The report was based on information obtained from a number of particular cases. These are mainly cases in which the woman felt sufficiently aggrieved to consult somebody associated with the Child Poverty Action Group, and it is to be expected that they would include a high proportion of hard cases. But I think it would be wrong to assume, because it is possible, as it will always be possible, to produce a number of hard cases in which there are a number of unsatisfactory factors, that this disquieting picture represents the situation in every case.

It has always been acknowledged that cohabitation is a difficult field where marginal cases are bound to arise, and it has never been claimed that the administration of the rule can be proof against mistakes occurring. In their 1971 Report on the administration of the rule, the Supplementary Benefits Commission themselves were, I would say, almost brutally frank. They went on to say:

… it must be apparent that mistakes and errors of judgment sometimes occur, in a service totalling some 18,000 staff, many of them reflecting the values of the local community in which they live, and all of them subject to the tensions inherent in the changing society of which they are a representative cross-section. In admitting that mistakes are sometimes made and complaints received, the Commission must not be taken as undervaluing the care and thought characteristic of the service which is given in the vast majority of cases, for which the community has, I think, reason to be grateful. Indeed, in view of the emotional problems involved I think they undertake a very difficult job well; and I think that this would be an appropriate moment to say that, knowing that there are complaints, knowing that there are criticisms, knowing that people have quite properly complained about the way they have been treated, I think we ought not to get the thing out of perspective. I think we ought to acknowledge that the investigating officers, who are seeing a large number of people over a year, by and large do a very good job.

I have attempted to explain briefly that there has always been a cohabitation rule, and I have said to your Lordships that the Supplementary Benefits Commission have under review the operation of the rule as it applies to supplementary benefits and that the Secretary of State has asked them to include in their consideration the question whether any change is desirable in the relevant provisions of the Supplementary Benefit Act, and to report to her on their findings. I think the Government acknowledge that people are not very happy about it, but the question arises as to what one can do in the light of the responsibilities that a Government Department must have in the expenditure of public money—and this, in the last analysis, is something that I think we have to take into account. But I know that both the Secretary of State and the Supplementary Benefits Commission are proposing to consider very carefully what has been said this afternoon in your Lordships' House. They are going to take into account not only the document published by the Child Poverty Action Group but also the Finer Report, and I hope that the outcome will be that perhaps some formula can be found which will be more acceptable to a large number of your Lordships.

LORD GARDINER

My Lords, before the noble Lord sits down, could he saying anything about the two specific Finer recommendations; namely, first, the continued benefit pending appeal where there is a dispute of fact, and, secondly, that the money for children should go on for three months instead of four weeks? Because are not both these questions of policy for the Government to decide, and not for the Commission?

LORD WELLS-PESTELL

My Lords, all I can say to the noble and learned Lord is that these two matters, along with several others, are being referred to the Supplementary Benefits Commission. I take his point about the responsibility being with the Government and not with the Commission, and perhaps he will allow me to draw the attention of the Secretary of State to what he has said.

LORD ABERDARE

My Lords, before the noble Lord sits down for the second time, could he say what has happened to the recommendations in the Fisher Report? Are these also being reviewed at the same time?

LORD WELLS-PESTELL

Yes, My Lords. My recollection is that some of the recommendations of the Fisher Committee have already been put into effect. I cannot remember offhand what they are, but I think there are two recommendations of the Fisher Committee which have been put into effect. Their recommendations, too, will be referred to the Supplementary Benefits Commission, because as the Commission started a review earlier this year it seems to me only sensible that they should look at the matter from every angle, and every angle must include the Reports in question.

BARONESS MACLEOD OF BORVE

My Lords, before the noble Lord sits down for the third time, may I remind him that I asked whether he could undertake to see that there would be a woman on all the tribunals. I wonder whether he would undertake to give that some thought.

LORD WELLS-PESTELL

My Lords, I will certainly give the noble Baroness an undertaking that I will pass this view on to the Secretary of State. The noble Baroness will appreciate that I cannot do more than that at this stage, but it is a very valid point and I shall be very happy to act upon it.