A woman has been ordered to repay more than £45,000 in income support received over a 13 year period, despite claiming that the man with whom she shared a house was gay and that this precluded any finding that they were living together as husband and wife.

Lords Drummond Young, Malcolm and McGhie in the Inner House refused an appeal by the woman, DK, against a decision of the Upper Tribunal, affirming the First-tier Tribunal, that she should repay £45,770 in benefits received between 1999 and 2012. 

The First-tier Tribunal found that during that period, DK was living with a man, GO, as an unmarried couple and that GO was working for almost the whole of that time. They used terms such as "boyfriend" or "partner" to describe the other; they booked holidays and arranged motor insurance as partners; DK arranged a loan in her name when GO could not obtain credit; GO attended DK's family functions. In evidence GO said he had been reluctant to publicise his homosexuality, and had a history of mental health problems, but the tribunal did not accept that as an explanation for what appeared to be a consistent course of conduct over many years.

On appeal DK argued that it was essential for the tribunals to have considered whether a sexual relationship had existed, and the manner in which she and GO had been living together in the same household. It was not sufficient for the First-tier Tribunal simply to note GO's evidence; it had to decide what it made of it, and if it accepted that there was no sexual relationship it then had to decide what bearing that had on the issue of living together as husband and wife. Both tribunals had erred in failing to perform that exercise and to address one of the critical issues in the case.

Delivering the opinion of the court, Lord Drummond Young said: "The critical point is that a tribunal must address the applicable legal test on the basis of the whole of the evidence, but in doing so it is not necessary that it should provide a detailed analysis of the evidence divided into discrete components; nor is it necessary that the tribunal should explain what evidence it accepts or rejects in relation to each of those components and the relevance or otherwise of each component."

While a tribunal had to address the fundamental issue, such as whether a couple were living together as husband and wife, and give some explanation as to why it reached a particular conclusion on that issue, nothing in the leading case of Crake v Supplementary Benefits Commission (1982) indicated that that conclusion required to be "based on anything other than an assessment of the evidence as a totality".

He continued: "Sexuality, or the consciousness of sexuality, might alter over time, and persons might realise that sexuality at different times. We think that that falls within judicial knowledge; the examples of John Maynard Keynes and the Bloomsbury Group, or Oscar Wilde, are well known. Thus sexuality may be an important factor in deciding whether a couple are living together as husband and wife, but it cannot of itself be determinative. It is merely one factor, which must be assessed by the tribunal along with all other relevant factors."

None of the cases indicated that a sexual element was an essential component of living together as husband and wife. The degree of emotional attachment between the parties was nearly always a matter for inference rather than direct evidence. "A single factor, such as sexuality or the existence or otherwise of a sexual relationship, is a factor to be taken into account, but no more than that." The First-tier Tribunal had adopted the correct approach and was entitled to conclude that it was “satisfied that the parties had consistently over a period of years created a picture of being partners which was to their financial advantage in different spheres”.

Lord Drummond Young added: "Furthermore, we note that, if it were necessary for a tribunal to make detailed investigations about either a person’s sexuality or the existence of a sexual relationship between two persons, an intrusive inquiry would be involved. It would often be difficult to reach any conclusion, because contradictory evidence on such matters would be unlikely. Thus the evidence in question would have to be assessed against any evidence pointing in the opposite direction, such as that the persons involved behaved towards others as if they were a couple. That is of course precisely the sort of evidence that the tribunal treated as decisive in the present case."

Click here to view the opinion of the court.