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RCAW		CIS/866/2004

[2004] UKSSCSC CIS_866_2004 (06 August 2004)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
My decision
1.	My decision is that the decision of the appeal tribunal of 6 October 2003 is not erroneous in point of law. Accordingly, this appeal is dismissed.
Background and facts
2.	The appellant, who was born on 25 November 1973, is married and lives with her husband and a son, who was born on 4 April 2001. The appellant has indefinite leave to remain in the United Kingdom.
3.	The appellant’s son has a long-term disability which is well documented in the case papers.
4.	The appellant’s husband is an asylum seeker who was refused asylum in December 2001 and is for that reason not entitled to claim benefit. He is appealing against the refusal to grant him asylum. There is evidence that the husband has an alcohol abuse problem.
5.	The appellant claimed income support on 3 March 2003, but was refused the benefit because she was not a person who falls within a prescribed category of persons under section 124 of the Social Security Contributions and Benefits Act 1992. 
6.	The appellant appealed against that decision on the grounds that her husband was unable to cope with the child on his own, and that the appellant was unable to work because of her home care responsibilities. She accordingly took the view that she was ‘looking after a child because the parent of that child or the person who usually looks after him is ill’ or that she was looking after a member of her family who is temporarily ill.
7.	The appeal came before the tribunal on 6 October 2003. The appellant was present with an interpreter. The Secretary of State was not represented at the hearing. There is a helpful record of proceedings. The outcome of the appeal was that the tribunal confirmed the decision of the Secretary of State that the appellant was not entitled to income support. A full statement of reasons for the decision has been provided.
8.	The appellant sought leave to appeal against the decision of the tribunal, and the appeal now comes before me by leave of a Commissioner. The appeal is not supported by the Secretary of State.
The grounds of appeal
9.	The appellant’s grounds of appeal are that she comes within the list of prescribed categories of persons eligible to claim income support because she is a person looking after a child because the parent or the person usually looking after him is ill.
The law
10.	Section 124 of the Social Security Contributions and Benefits Act 1992 provides, so far as relevant to this appeal, that a person in Great Britain is entitled to income support if ‘he falls within a prescribed category of person.’
11.	Regulation 4ZA of the Income Support General Regulations 1987 provides, again so far as relevant to this appeal, that a person to whom any paragraph of Schedule 1B to those regulations applies falls within a prescribed category of person for the purposes of section 124(1)(e) of the Contributions and Benefits Act 1992.
12.	The paragraph of Schedule 1B which it is argued applies to the appellant is paragraph 3 which reads:
Persons temporarily looking after another person
3. A person who is—
(a) 	looking after a child because the parent of that child or the person who usually looks after him is ill or is temporarily absent from his home; or
(b) 	looking after a member of his family who is temporarily ill.
13.	I read paragraph (a) of that provision as meaning that either 
(1) the parent of the child who usually looks after the child, or 
(2) some other person who usually looks after the child,
is ill or is temporarily absent from his home. It is only if read in this way that the term ‘the parent’ rather than ‘a parent’ makes sense.  
14.	The tribunal’s findings of fact are that it is the mother who usually looks after the child; the father is not the person who usually looks after the child because the father has a problem with alcohol abuse. The evidence given at the hearing is that this problem had existed for over two years as at the date of the tribunal hearing.
15.	The relevant section of the tribunal’s reasons reads:
[The appellant’s] evidence to the tribunal is that she does not trust her husband to look after the baby. Indeed he goes out all day and she says he comes home drunk. The appellant’s GP states that [the appellant] told him that her husband has an alcohol abuse problem and she is not comfortable leaving the baby with him. The husband’s GP says that the appellant told him that the husband has an alcohol problem. The appellant’s evidence does not indicate that she has to care for her husband because of any illness of his; it is only that she does not trust him to look after the baby.
She has always looked after the baby. She is not looking after the child because her husband is ill. She does not fall within paragraph 3(a) of the Schedule.
16.	The tribunal went on to consider the possible application of paragraph 3(b). The tribunal concluded that the son was not temporarily ill but has a long term problem which would require treatment over an extended period of time. That seems to me to be a fair conclusion for the tribunal to have drawn from the evidence before them. The tribunal also concludes that the appellant is not looking after her husband who is temporarily ill. The tribunal has in my view asked itself the right questions and come up with the right answers in applying paragraph 3 to the appellant’s circumstances.
17.	It follows that I can find no fault with the decision of the tribunal; it contains no error of law. 
18.	The unfortunate effect is that, because the husband cannot claim as a refused asylum seeker and because he is not fit to care for the child because of his alcohol dependence, the appellant is left with responsibilities for the care of her child and no obvious means of financial support from the State other than child benefit.
Robin C A White
Deputy Commissioner
6 August 2004  
[Signed on the original on the date shown]