Table of Contents
2.1 Points of Note
2.2 The criteria for assessing cohabitation
- Duration of the relationship
- The basis on which the couple live together
- The degree of financial dependence of either adult on the other
- and any agreements in respect of their finances
- The degree and nature of any financial arrangements between the adults
- 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
2.3 Revised Decisions under Section 302(a)
Appendix 1 – Principles of Natural Justice
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:
- A person may be entitled to an increase for a qualified adult for a person who is not a husband, wife or civil partner provided the couple are cohabiting.
- A disqualification applies in various schemes where there is cohabitation.
- Means are calculated similarly for a cohabiting couple as for a married couple/civil partners.
- In Jobseeker's Allowance, Disability Allowance and Pre-retirement Allowance cases a limitation is applied to payment rates where the person with whom the claimant is cohabiting is also in receipt of certain Social Welfare payments.
2.1 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 In the other contexts listed, previously where an entitlement may be dissallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists.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:
- Are the couple in a relationship ?
- Are the couple living together ?
- No single criterion can necessarily support a decision that a couple are living together as husband and wife or civil partners. It is essential to have as much information as possible on all the criteria before arriving at a decision.
- Evidence or the lack of it, in any criterion may not necessarily be conclusive.
- A voluntary admission of living together as husband and wife or civil partners is accepted as sufficient evidence where the person makes the admission in the knowledge that his/her own entitlement will be adversely affected by it. Such admission should be obtained in writing, as far as possible in his/her own words, and the statement should be read over to him/her before being signed.
- Where co-habitation is admitted the period where the couple were cohabiting and claiming a social welfare payment should be included in the admission.
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.
2.2 The criteria for assessing cohabitation
- The duration of the relationship;
- The basis on which the couple live together;
- The degree of financial dependence of either adult on the other and any agreements in respect of their finances;
- 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; and
- The degree to which the adults present themselves to others as a couple.
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 (e.g. 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.
- What has been the length of time that the relationship has existed?
- Do the couple have plans to marry or enter into a civil partnership?
- What were the circumstances in which they took up residence together?
- Have they moved from house to house together?
- How long have they been residing together?
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.
- The first question to examine is whether they reside in a single residential unit.
- Is the accommodation a single flat, apartment, house, caravan or other dwelling place?
- If it is a house, is it officially a single household unit? Do the local housing rules permit it to be subdivided into more than one unit?
- What type of accommodation is available and how is it shared?
- Who pays the household expenses such as rent, gas, electricity, mobile telephone(s), home telephone, television stations including satellite and cable television services, television license fee, wi-fi/broadband? In whose name(s) are these accounts?
- Do either maintain (or live in) another home, or use another address? If so, which place is the effective residence? At which address do they keep their personal belongings ?
- Are they listed on the electoral register as resident together
- What address do they both use for employment or social welfare purposes?
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:-
- Providing meals and shopping.
- Cleaning and laundry.
- Caring for each other and members of the household during illness.
- Decorating, gardening, washing up.
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:
- Is one party supported by the other?
- Is there a pooling of financial resources?
- Is there a financial commitment to a joint mortgage, joint bank accounts, etc.?
- If it is rented property, is it rented in joint names?
- Who pays the household expenses such as rent, gas, electricity, home telephone, television,broadband? In whose name(s) are these accounts?
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;
- Who owns the property? Was it purchased jointly, and/or is it registered in joint names?
- Are both parties named as mortgage holders?
- Have the couple jointly purchased or jointly acquired any other land or property?
Whether there are one or more dependent children
- Is there a commitment to raise (their) children together?
Whether one of the adults cares for and supports the children of the other
- How are the children cared for?
- Who attends school/medical/dental appointments for or with the children?
- Are baby-sitting responsibilities shared or are babysitters employed regardless of the availability of the other party?
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.
- Do the couple socialise together?
- Do they act in a parental manner to any children?
- Are they known locally as a couple?
- Have they any plans to marry or enter into a civil partnership or would they marry or enter into a civil partnership if they were free to do so?
- Did they represent themselves as a couple in applying for tenancy/mortgage?
- Do they use a common surname?
- Do they take holidays together?
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.
2.3 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:
- sexual relations between the couple are admitted; and/or
- they are a heterosexual couple who have a child or children of their union.
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 right to know the information upon which a decision is being made
- The opportunity to comment upon any reports or documents being used in reaching the decision and
- Generally to present his or her case
- The right to know the reasons for any adverse decision
- The right to have all relevant evidence considered and irrelevant evidence not taken into account
- To have the decision made by an impartial person whose discretion has not been fettered and,
- Where it is necessary for a fair determination of the issues, an oral hearing.
The principles of natural justice are clearly outlined in DSP 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.