England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

		Royal Courts of Justice Strand London WC2 Thursday, 14th June 2001

1. LORD JUSTICE SEDLEY: This is an application made in person by Mr. Devoy for permission to appeal against a decision of a social security commissioner, Mr. Mesher, given after an oral hearing on 5th March 2001. Mr. Devoy went with permission before the Commissioner in order to challenge a social security appeal tribunal decision with which he was dissatisfied. That decision upheld a decision of the Secretary of State which essentially allocated to Mr. Devoy's ex-wife the whole of the claimable child benefit for their two children. Mr. Devoy considers that, as a partial carer for the two children, he is entitled to family benefit, whatever form that may take. The Commissioner agreed that Mr. Devoy's arguments on European community law had not been adequately addressed by the tribunal, but having considered those arguments himself with some care (and if I may say so, the care is visible in the detail of his written decision) he rejected them.
2. It is relevant to see, before I turn to the issues which Mr. Devoy brings before me today, what the underlying decision was against which no appeal lay. As explained by the Commissioner, it did not relate to findings of fact as to exactly how long each child spent with each parent. It was based upon the fact that both parents were quite tenably claiming benefit on the ground that each had the children with them for some of the time. Under the existing regulations and legislation, the question of who was responsible for the children for the purposes of entitlement to benefit was something which, in the absence of agreement between the parties, the Secretary of State was entitled himself to decide. I quote from the Commissioner's decision:

"In circumstances where paragraphs 2 to 4 do not provide an answer and there is no agreement between the parties, then the Secretary of State is under paragraph 5 able to choose which person is to be entitled in respect of each child. There is no power to split the award of child benefit in respect of any one child, but the Secretary of State may choose one person to be entitled in respect of one child and the other person to be entitled in respect of another child. In the present case, the Secretary of State chose the claimant's ex-wife in respect of both children. That is a choice which has to be accepted by the person making the decision on the claim, and there is no right of appeal to an appeal tribunal against the choice... Therefore the decision was given that the claimant was not entitled to child benefit from 3 January 2000."

3. It may be thought a remarkable thing that a decision of such significance may be made administratively by the Secretary of State without there being any appeal against it. The ability to continue to take care of one of the children may depend upon the allocation of benefit, and the Secretary of State's decision may be determinative that no benefit is to be allocated to a parent who would otherwise be caring for the child. But that is, it appears, the state of the law. Mr. Devoy has had to live with it. He now seeks permission to appeal, permission having been refused by the Commissioner, on the ground that, whatever the domestic legislation says, he has rights in European community law which override the domestic provisions. I leave aside, because Mr. Devoy has not sought to develop them today, the unworthy and unsupported allegations of malice on the Commissioner's part which were made in the skeleton argument.
4. I turn to the points of law to which Mr. Devoy has now confined himself. His central ground is derived from the opinion of Advocate-General Saggio in the Swaddling case C-90/97. This is to the effect that income support in the United Kingdom falls within regulation 1408/71 of the European Union, so that the United Kingdom is under an obligation to act in accordance with the regulation. Accepting, as the Commissioner accepted, that child benefit is a family benefit for the purpose of this regulation, one therefore turns directly to Article 3 of the regulation to see what it says. It is captioned "Equality of treatment". Paragraph 1 of it reads:

"Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State."

5. It is immediately apparent, and I think Mr Devoy accepts this, that this provision is concerned with equality of treatment as between nationals and non-nationals of individual Member States in regard to family benefit. It means, for example, that if Mr. Devoy were living in France, he would be entitled to exactly the same family benefit as a French national: or if a French citizen were living here, he would be entitled to be treated exactly as British nationals are treated. It does not confer any specific entitlement within a Member State.
6. If Mr. Devoy is to find a principle which entitles him to benefits which have so far been denied him in relation to his children, he has to find it elsewhere. His submissions to me today have not persuaded me that there is any mileage in this regulation which would take him any distance at all down the road of establishing separate rights to benefit not vouchsafed by United Kingdom law. There is, so far as this court knows, no European Union law specifying what benefit shall be available to what citizens and in what circumstances. That is a matter of domestic regulation.
7. Separately in his skeleton argument, although he has not developed it in argument today, Mr. Devoy seeks to derive the entitlement which he seeks to establish from the Human Rights Act 1998 and the European Convention on Human Rights. He cites the right to peaceful existence under the rule of law and the right to social security. Neither of these features in the Convention on Human Rights. Having said this, however, Mr. Devoy is entitled, without reference to those documents, to say that it is a fundamental principle of our own legal system that the powers and discretions must be exercised by government without arbitrary discrimination between one citizen and another. He can legitimately say that social security is among the matters to which such powers and discretions relate.
8. But this is still a long way from saying that the law gives him a right which supersedes the powers of allocation in the existing legislation and regulations and entitles him to benefits that are not specified in the legislation. For better or for worse, because I see what the factual grievance is that underlies Mr. Devoy's application, a decision has been made in accordance with the existing law, and against which there is no appeal. It is a decision which is adverse and unwelcome to him, and I understand why, but the Commissioner was in my judgment incontestably right in the conclusion to which he came.
9. I would be doing Mr. Devoy no favour if in these circumstances I gave him permission to appeal. He would face certain defeat in this court at very considerable expense because he would find himself liable for the Commissioner's costs. For those reasons this is not a case in which permission to appeal should be granted. The application is refused.
Order: Application refused.