Lucinda Dore Benefit Fraud and Appeal Solicitor explains the 2-3 nights a week rule
Let’s face it, being a single mum is damn right hard – I’ve been there and that’s why I am proud to support the SMBN as a ‘friend’ of the network – a little bit of legal assistance can go a long way…and us parents need to stick together right?
We all know that the mum/dad job comes first and foremost and often, finding some form of adult company is the last thing on your mind – I mean, after single-handedly running around after the children all day – most people want peace and quiet in the evening…and as for the complication of introducing a new partner into the mix -well that’s far from easy for a single mum…no one wants to introduce a new ‘casual’ partner to children – the option to go out for the evening is often not possible without a babysitter (and even that comes at a cost), so add to the mix the potential benefit fraud overpayments situation for those who have no option but to rely on state benefits…Is it really worth it?
As a Benefit Fraud and Appeal Solicitor I have seen it go wrong so many times…
So, when is it right to move a new partner into the home?
Now I know, that if you’re reading my article as a member of the SMBN you are someone who is either about to embark on the need to claim state benefits as a one income household or your self-employment has progressed so well that you are about to jump off the benefit conveyor belt…I can help you here – after all, no one wants to find all their dedication as a single parent tarnished by a loss of good character if you find yourself facing an allegation that you have failed to notify the DWP of your change of circumstances – i.e., that your partner is now living with you. It’s frightening and most find it so disheartening to be accused of committing a fraud.
As a Benefit Fraud Specialist Solicitor, I am often asked to help defend DWP living together allegations. I am also approached by benefit claimants fearful that they may be deemed as living with a partner when that is not the case.
If I had a pound for each time I am asked when the DWP consider a partner to be living with a claimant…I hope that this article will help explain to members what the situation is, in hope that I may be able to help alleviate at least some of the confusion about when the DWP treat a couple as living with each other for the purposes of benefit claims.
The first thing to bear in mind is that everybody’s situation is very different; of course, no two relationships are even the same, so any HMRC or DWP compliance officer or investigator will make their decision on a case-by-case basis.
I often hear people reiterating the 2/3-night use rule. I have clients that have heard that if a girlfriend or boyfriend stays more than 2 or 3 nights per week the DWP will treat them as living together as a couple. I can clarify that there is no firm 2-3 nights per week rule. Let’s put this into context, if the HMRC or DWP disregarded for benefits purposes couples who spend less than 2-3 nights together, this would open the opportunity for a claimant to be in a relationship with a wealthy person who worked away regularly, which is of course not an unusual situation for a person in the army or working abroad on business for example – would it be right that they claim state benefits? Of course not. Similarly, consider the situation where a single mother starts a new relationship with a man who has his own home, own bills and own children from a previous relationship – this is a classic situation where new couples have to resort to spending time at the claimants home address for childcare reasons – would it be fair for the new partner to immediately be responsible for a share in the household bills or to contribute towards the claimants children?, again, of course not.
Now, having said the above, the number of nights that a person stays at the claimant’s property is a good starting point and can often be a significant contributing factor for the investigators when deciding whether they should be treated as living together for the purposes of means tested benefits. After all, the common-sense approach is that a person’s main or primary residence is where they spend most of their time. If a partner is using the claimant’s home address as their main or prime residence then their income and savings will be taken into account for means tested benefits purposes, this is likely to reduce the amount of benefits that the claimant is entitled to or even result in a complete cessation of entitlement.
In addition to the number of nights staying at the property, the DWP will always look to see whether the other person is registered at a different address. Council Tax is the perfect starting point – is that other person paying council tax at a different property? If so, the assumption is that they are living at the other property as they have registered for a government tax at that address. The electoral roll is an open register and the DWP may look at this to see where the other person is registered to vote. If the other person is not registered for council tax or to vote at another address the investigators may undertake a credit check or enquire with the DVLA whether the other person has taken out fiancé at a different property or has a vehicle registered at another property. Now, if of course all these checks reveal that the other person is registered elsewhere, this is likely to be the end of the investigation, unless they have other information that they are living at the claimant’s address? If so, they may decide that the uncover surveillance is undertaken to try to establish what the true situation is.
Surveillance may include watching the claimant’s property to see when the other person arrives and leaves the property, whether they use a key to enter the property or take the bins out for example, these are things that the DWP will consider when trying to establish whether the other person is treating the claimant’s address as their own. After all, we don’t have keys to all our friends’ houses, nor do we take their bins out – these are actions the investigators may think consistent with treating the property as your own. Don’t forget, however, that each person’s situation is different – I have clients who allow the father of their children a key to the property for pick up/drop off reasons and would have no hesitation asking them to take the rubbish out when they leave!
You can see where the difficulty arises where upon investigation, it transpires that the other person is seen to be present at the claimant’s home more often than anywhere else and is registered for correspondence at the claimant’s address - it is these situations where the investigator may believe that they have sufficient evidence to suspect that the couple are living together and an interview under caution or compliance interview may be required to put the allegation and findings to the claimant for question.
Interviews under caution can be very daunting and can lead to serious implications. If after the interview the investigator believes that they have reasonable grounds to believe that the claimant has failed to declare that they are living together with a partner and an overpayment of benefits has arisen as a result, a criminal prosecution is likely to follow. It is important that a solicitor attends this interview with you to ensure that you are properly advised and to protect you from the implications that may arise. A solicitor will be able to obtain pre-interview disclosure from the investigator (i.e., what the investigation is regarding and any evidence that is available) before the interview to prepare a suspect for the questions that will be asked of them. Don’t forget that an interview under caution will be tape recorded and a transcript of the questions asked, and answers given may be used in court as evidence against you.
I can help any person who is facing an interview under causing for a benefit fraud allegation. I am also often asked to help claimants who want to declare that their partner is living with them but feel that they have left it too late and fear the implications, knowing that an overpayment will be involved. In these situations, I may be able to help you voluntarily declare to the HMRC or DWP that an offence has been committed, this allows the situation to be dealt with, without the constant fear of waiting for an interview under caution letter to arrive or surveillance to commence. It is always good mitigation if a voluntary admission of guilt is made.
I will never judge but will listen to each client on a case-by-case basis to help you to overcome a benefit fraud investigation. Having represented benefit fraud suspects for nearly 20 years now, I’ve dealt with every situation and will benefit your case in a robustly yet calm, friendly, and professional manner.
If you and/or your partner need help with a benefit issue whether that be a compliance, investigation, or appeal matter, we are here to listen and offer you non-judgemental advice. You can call us on 03332420691 or send us an email to email@example.com.
If you would like to have access to all the other articles of BMN Summer 2022 publication for free, here is the link: Single Mums Business Magazine - Summer Solstice Edition 2022 by Single Mums Business Network UK - Issuu