The term 'cohabitant' is defined in the social welfare code in accordance with Section 172 (1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
172 .— (1)
For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.
The question of whether a couple are cohabiting as husband and wife or civil partners affects entitlement under the Social Welfare Acts in a number of ways:
Points of Note
The following general points should be borne in mind when examining the various aspects of a particular case.
In establishing entitlement to an increase in respect of a partner, the onus is on the claimant to produce satisfactory evidence to show that cohabitation exists. In the other contexts listed, previously where an entitlement may be dissallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists.
There are two central aspects to be examined when considering if a couple are cohabiting:
1. Are the couple in a relationship ?
2. Are the couple living together ?
Where such a signed statement is not received, if appropriate, both parties could be interviewed. It may not be appropriate in certain instances.
The second party should be interviewed where his or her claim to benefit or assistance may be affected, and/or where his or her means are being taken into consideration.
All available information and evidence should be on file and before the Deciding Officer in advance of a decision being taken.
It must be remembered that where further information is presented at a later stage, e.g. when a case is under appeal at an oral hearing, this information cannot then be considered, as the client was not given the opportunity, under the principles of natural justice, to respond to this information.
The core principles of natural justice are outlined at Appendix 1.
Duration of the relationship
Marriage/Civil Partnership is entered into as a stable relationship and therefore in deciding whether a couple are living together as husband and wife/civil partners, regard should be had to the stability of their relationship.
This may be reflected either in the duration of the relationship or in the level of commitment to one another.
A couple who have decided to share together for a temporary period only (example: a couple who are unmarried or not in a civil partnership where one party lives elsewhere and is only on holiday in Ireland) are not therefore cohabiting as husband and wife/civil partners and one could not claim an increase for the other as a qualified adult.
It must be remembered that it is not only the motive which caused the parties to live together which is important but the facts and circumstances which apply after they have done so.
The basis on which the couple live together
The fact that the couple reside in a common residence is insufficient by itself to determine that they are living together as husband and wife or civil partners. There also needs to be consideration as to whether they constitute a single household.
Where household duties such as those listed below are done by one partner for the other, or by both for each other, in the same way in which husbands and wives/civil partners ordinarily perform such tasks then that is further evidence that the couple are living together as husband and wife/civil partners.
Do the couple share any of the following:
Note 1: Even if one or both of the couple own or rent alternative accommodation they may still be regarded as living together as husband and wife or civil partners, particularly where the alternative accommodation is seldom used. Evidence should therefore be obtained in such cases on the ownership/tenancy of the shared accommodation, the ownership of furniture etc.
Note 2: a married couple/civil partners may also live apart for significant periods of time because of work abroad or elsewhere in Ireland, or because of providing care for relatives, but the relationship remains intact. All the circumstances of each case need to be taken into consideration where similar factors affect a permanent relationship where the couple are not married or in a civil partnership.
The degree of financial dependence of either adult on the other and any agreements in respect of their finances;
Evidence of a common household fund is an indication of living together as husband and wife or civil partners. Joint bank accounts used for household expenses would be strong evidence of such a relationship.
The following questions should be considered:
Where one of the parties claims to be a subtenant or lodger but the amount paid is not realistic, comment should be made as to the average local rate for a lodger to pay for what s/he is receiving by way of accommodation, meals etc.
The absence of a common fund, however, is in itself not conclusive evidence that the couple are not living together as husband and wife/civil partners, as financial arrangements vary frequently in marriages/civil partnerships. An evaluation will be made by the deciding officer as to whether the financial arrangement mirrors a householder - tenant or lodger, a householder - housekeeper, or a husband – wife/civil partnership relationship.
The degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
Whether there are one or more dependent children
Whether one of the adults cares for and supports the children of the other
The degree to which the adults present themselves to others as a couple.
If a couple are acting socially or representing themselves to others as husband and wife /civil partners such evidence should be included where it is known.
The use of unnamed sources or local enquiries to establish facts is not permitted. If a person or persons make allegations, the facts must be established. Information obtained from local, reliable or other sources should, be used as pointers for an Inspector to pursue his/her own enquiries.
Revised Decisions under Section 302(a)
In making a revised decision on a claim under Section 302(a) of the 2005 Social Welfare Consolidation Act (as amended) please note the following:
Sub-section 302(a) applies where:
a) There is evidence of deliberate false or misleading information
b) It is established there was a deliberate failure to disclose relevant information
Therefore there must be evidence that the information was not just false, but deliberately so, and that any subsequent failure to disclose information was “deliberate”.
Please see guideline on [Revised Decisions and their Date of Effect.]
It is not necessary that all the above elements be present before cohabitation is established but some of the elements must be established. It would be necessary to establish that a relationship exists between the couple and that the couple co-reside - that the couple actually or normally reside at the same address - and that some of the other elements are also present.
The questions above are illustrative of the type of questions which may be useful in different situations in trying to determine whether cohabitation exists.
There is a strong presumption that members of a couple are cohabiting if they are living at the same address and:
Appendix 1
Principles of Natural Justice
Every claimant is entitled to have their claim considered in accordance with the principles of natural and constitutional justice and in the context of determinations of entitlement under the social welfare legislation that includes:
The principles of natural justice are clearly outlined in DEASP guidelines and legal advice has confirmed that a failure to observe the principles of natural justice leaves the decision liable to be overturned.
Over the years, the Courts have laid down rules for administrative bodies to ensure that persons seeking benefits etc. are dealt with in a scrupulously fair manner. These rules, which are known as the Rules of NJ, apply to all administrative bodies and tribunals.