[2006] UKSSCSC CF_3348_2002 (04 July 2006)

CF/3348/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  This appeal is brought by the claimant with the leave of a chairman from a decision of the Oxford Appeal Tribunal given on 24 January 2002.  A decision on the appeal has been deferred pending the resolution of a number of relevant points arising in other cases in the High Court and the European Court of Human Rights.  As a result of those decisions, the claimant’s representative has rightly accepted that he cannot succeed on this appeal by virtue of the points which he had previously raised under the Human Rights Act 1998 and the European Convention on Human Rights.  Subject to one matter, it is therefore unnecessary for me to deal further with those points.  Although at one point the claimant’s representative had sought an oral hearing of this appeal to deal with some of those points, he no longer seeks an oral hearing (file, p.195).  I am satisfied that I can deal with the issues which remain on this appeal without an oral hearing.  The appeal is supported by the secretary of state, but only to the extent that it is accepted that the tribunal’s reasoning was defective.  I am invited by the secretary of state to replace the decision of the tribunal by one of my own to the same effect

2.	  For the reasons given below, I accept the submissions of the secretary of state.  I allow the appeal and set aside the decision of the tribunal, but I replace that decision with my own decision confirming the decision of the decision maker issued on 28 February 2001 that the claimant was only entitled to child benefit from 12 February 2001.

3.	  The facts of this case are not in dispute and can be briefly stated.  The claimant and her husband separated on 4 February 2001.  At that time the claimant’s husband was in receipt of child benefit in respect of eight of their children.  The children in respect of whom benefit was being paid went to live with their mother.  On either 9 or 12 February 2001 the claimant claimed child benefit in respect of those eight children. By that time, her husband had already been paid child benefit for the week ending on 11 February.  The claimant was awarded child benefit from 12 February 2001, her husband having given up benefit from that date.

4.	  The claimant contends that child benefit ought to have been awarded to her from 4 February 2001 and the child benefit paid to her husband ought to have been reclaimed by the secretary of state.  The tribunal rejected the claimant’s appeal from a decision of a decision maker that she was not so entitled.  It dealt only with the claimant’s human rights arguments, and then only the argument that the provisions of the Social Security Contributions and Benefits Act 1992 and the regulations made under it were incompatible with the European Convention on Human Rights.  The tribunal correctly found that it had no jurisdiction to entertain such an argument.

5.	  Unfortunately, the tribunal failed to address the primary argument put on behalf of the claimant, that the relevant provisions of the 1992 Act, and the regulations made under it, had to be construed as the claimant contended by reason of the provisions of sections 3 and 6 of the Human Rights Act 1998.  Its failure to do so was, as the secretary of state accepts, in error of law and its decision must be set aside.

6.	  The human rights arguments having now been abandoned, the claimant is left with two arguments based on the construction of the legislation.  The first contention relates to the construction of sections 143(1)(a) and (2) and 144(3) of the Social Security Contributions and Benefits Act 1992.  Section 141 of that Act provides that a person who is responsible for one or more children in any week shall be entitled to child benefit in respect of each such child.  Section 143(1)(a) provides that a person is to be treated as responsible for a child in any week if he has the child living with him in that week.  Section 143(2) provides that even if the child is absent, he shall be treated as having the child living with him in that week unless in the preceding 16 weeks they were absent for more than 56 days.  Section 144(3) then provides, by reference to Schedule 10 of the Act, for priority in cases where two or more persons would otherwise be entitled to child benefit – in this case both the claimant and her husband would be so entitled for the week from 4 February 2001.  Paragraph 1 of Schedule 10 provides that for the first three weeks in which a new claim is made, the person to whom child benefit has already been awarded has priority over a new claimant.  After that period of three weeks, the claimant would have had priority if the husband had not given up his claim.

7.	  The claimant contends that section 143(2) should only be construed as applying where the absence of either the existing claimant or child was temporary.  I reject that submission.  There are situations where statutory provisions expressly require an assessment to be made whether a separation is likely to be temporary or permanent – see for example the definition of “married couple” in section 3(5)) of the Tax Credits Act 2002.  It will frequently be unclear initially, when a husband and wife separate, and the children are living with the parent who has not previously been receiving child benefit, whether the separation will be permanent or not.  To construe the section 143(2) as only applying when the separation is temporary would be to introduce uncertainty into the legislation.  The parents could easily have different views as to the likelihood that the separation would be permanent or temporary and as to the likely future residence of the children, and those views could fluctuate as discussions took place between them as to the future.  I am satisfied that Parliament cannot have intended that entitlement to child benefit should depend on whether a separation, or the resultant separation of a child from one of his or her parents, was likely to be permanent or temporary, and I reject this contention on the part of the claimant.

8.	  The second submission, which is stated to have been made orally at the tribunal hearing, is that the secretary of state failed to exercise his powers under regulation 14A of the Child Benefit (General) Regulations 1976.  That regulation provided that a claimant should not be disentitled to benefit if benefit had already been paid to another person, whether or not that other person was entitled to it, if either (a) there was a decision that the secretary of state was entitled to recover the benefit that had been paid to the other person or (b) the benefit had been voluntarily repaid or recovered and there has been a determination that there was no entitlement on the part of the other person to benefit.  That argument fails because, for the reasons I have already given, the claimant’s husband was entitled to benefit in the week in question.  There was therefore no basis on which the secretary of state or any other determining authority could have made such a decision or determination.

9.	  Although the claimant had by then abandoned the arguments previously taken on the effect of the Human Rights Act, following the decision of the European Court of Human Rights in Stec, Mrs. Commissioner Jupp directed further submissions as to whether the claimant’s right to child benefit could be a right in property prior to the date of her claim when that benefit was already in payment to her husband.  Submissions have been received on this issue from the secretary of state, but not from the claimant’s representative.  

10.	The secretary of state has referred to paragraph 55 of the decision in Stec, where the Court stated:

“In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No.1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question… Although Protocol No.1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.”

11.	Article 14 provides for the enjoyment of convention rights without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.  The child benefit scheme, in the case of a couple living together, permits either member of the couple to claim benefit in respect of the children.  Only one member of the couple can claim but which of them does so is a matter for the couple.  It does not appear to me that Article 14 in conjunction with Article 1 of Protocol 1 can provide any ground for challenging this arrangement.  

12.	When a couple cease to live together, whether temporarily or permanently, that can lead, as here, to the party who had not claimed the benefit living alone with the children and wanting to put in a claim.  Until such a claim is made, I am unable to see how there can be anything discriminatory or interfering with the claimant’s possessions, because the child benefit has continued to be paid to the original claimant.  The claimant had no more than a future right to claim child benefit because that is what had been arranged within the family when her husband claimed.  Further, the husband had been properly paid child benefit before the date of the claim, because he had a right to be paid.   I do not see how that right could properly be retrospectively removed from him.

13.	It is further clear that some transitional provisions are required to deal with cases such as this.  Before benefit can be removed from the party previously receiving it is necessary to check the position with him and to resolve any relevant disagreements between the parties as to the facts.  A partner who has suddenly removed the children from the family home may be faced with court proceedings for their return.  It appears to me that the transitional period of three weeks provided for in Schedule 10 to the 1992 Act is a sensible, proportionate and reasonable period to allow for the matter to be investigated and an informed decision taken in these circumstances.

14.	I can therefore find nothing in these provisions in the scheme for the payment of child benefit which are incompatible with either Article 14 or Article 1 of Protocol 1.

15.	 It follows that the claimant has no grounds for contending that she was entitled to child benefit in respect of her children in the week of 4 February 2001, and I substitute my own decision for that of the tribunal confirming the decision of the secretary of state issued on 28 February 2001.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		4 July 2006