Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C2/98(CB) (22 March 1999)

 


Decision No: C2/98(CB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

CHILD BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 15 September 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by the Tribunal Chairman, against a decision dated 15 September 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The appellant is Mrs McD.... The Tribunal had disallowed Mrs McD...'s appeal against an Adjudication Officer's decision to the effect that she was not entitled to Guardian's Allowance for her grand-daughter Liza because the child's mother was still alive.
2. My decision is that the decision of the Tribunal is not in error of law and the appeal is therefore dismissed.
3. The Tribunal's grounds of appeal were contained in the application for leave to appeal dated 7 February 1998 and a subsequent letter dated 22 July 1998. The Adjudication Officer made representations on same by letter of 14 October 1998.
4. The appellant on the OSSC1 form dated 7 February 1998 stated as follows:-

"It is respectfully submitted that both the Tribunal and the

Adjudicating Officer, in taking into account all the relevant

circumstances, failed to correctly interpret the relevant

legislation, namely, Social Security Contributions and Benefits

(Northern Ireland) Act 1992, s.77(8)(a), which states;

Regulations -

(a) may modify subsection (2) or (3) above in relation to cases

in which a child has been adopted or is illegitimate, or the

marriage of a child's parents has been terminated by divorce.

In addition it is submitted that the legislation does not, nor is it drafted in such a way so [sic] as to legislate for circumstances whereby a court of relevant jurisdiction, awards guardianship of a child, to a person when both of the natural parents of the child, are still alive. It is therefore submitted, that in this case, for reasons of natural justice, the Department of Social Services should interpret the legislation so as to give effect to a decision of a court of relevant jurisdiction."

5. The letter of 22 July 1998 from the appellant's solicitors added nothing to this save that it stated that Mrs McD... was Liza's appointed guardian by appointment of the High Court.
6. The facts of the case are not in dispute. Mrs McD... has been appointed as Liza's guardian. The child's parents are known and it is accepted that they do not take responsibility for Liza. It has not, however, been either contended or established that either of Liza's parents are dead.
7. The law in relation to entitlement to Guardian's Allowance is contained in section 77(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. Those sub-sections state as follows:-

"77(1) a person shall be entitled to a guardian's allowance in

respect of a child if -

(a) he is entitled to child benefit in respect of that child, and

(b) the circumstances are any of those specified in sub-section (2)

below; but this sub-section is subject, in particular, to section 81

below.

(2) The circumstances referred to in sub-section (1)(b) above are -

(a) that both of the child's parents are dead; or

(b) that one of the child's parents is dead and the person

claiming guardian's allowance shows that he was at the

date of the death unaware of, and has failed after all

reasonable efforts to discover the whereabouts of the

other parent; or

(c) that one of the child's parents is dead and the other

is in prison."

8. Section 81 referred to above relates to increases in payments of benefit which a person is entitled to receive in respect of a particular child and is not relevant to this case.
9. It will therefore be seen that it is essential for the entitlement to Guardian's Allowance for one of the conditions in section 77(2) to be satisfied. In relation to this case there was no contention to the Tribunal that either of Liza's parents was dead. There was also no evidence indicating that either parent was dead.
10. At Tribunal level and in the notice of application for leave to appeal the appellant referred to section 77(8)(a) of the above Act which states that regulations "may modify sub-section (2) or (3) above in relation to cases in which a child has been adopted or is illegitimate, or the marriage of a child's parents has been terminated by divorce." As Liza's parents were not married she does fall into the category of being an illegitimate child. There is no contention that Liza was an adopted child and there appears to be no evidence to this effect.
11. Section 77(8) gives power for regulations to be made modifying the conditions in sub-section (2) above. The relevant regulations are the Social Security (Guardian's Allowances) Regulations (Northern Ireland) 1975 (as amended). Regulation 2 relates to adopted children and regulation 4 to the children of divorced persons. They therefore have no relevancy to this case. Regulation 5 applies only in circumstances where one of the parents is dead and the other is in prison and is not relevant. Regulation 6 relates to residence conditions for receipt of the Guardian's Allowance and regulation 6A to the manner of making an election under section 77. None of these therefore appear relevant. The only relevant provision appears to be regulation 3(2) which provides that in the case of certain illegitimate children section 77(2) shall be modified so as to have effect as if "the following circumstances were substituted for those in that sub-section, namely that the mother of the child is dead."
12. As there was no contention and no evidence to the effect that the child's mother was dead it appears that this regulation cannot be of assistance.
13. I can therefore, see no merit in the submissions on behalf of the appellant. I am unable to find any error of law by the Tribunal in the respects contended or in any other respect. In such circumstances I am puzzled as to why the Chairman of the Tribunal granted leave to appeal and would have found it helpful had the Chairman indicated the reasons for granting the leave though it is not obligatory that the Chairman do so.
14. I have considerable sympathy for Mrs McD…l in the situation in which she finds herself but the Tribunal decision appears to be correct in law. I must therefore dismiss the appeal.

(Signed): M F Brown

COMMISSIONER

22 March 1999