Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2006] NISSCSC C6_01_02(JSA) (21 June 2006)

Decision No: C6/01-02(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
JOB SEEKERS ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 26 July 2001
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a tribunal decision dated 26 July 2001 to the effect that the claimant (the father of the relevant children) was entitled to job seekers allowance (JSA) from 4 November 2000 at the rate of £52.50 per week which sum did not include any additions in respect of his children.
2. The appeal against this decision was lodged on 17 December 2001. By agreement with Miss O'Hare of Trevor Smyth and Company, Solicitors representing the claimant and of Mr McNamara of Decision Making Services branch representing the Department proceedings in this case were stayed pending outcome of the case of Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749. The decision of the Court of Appeal in England and Wales in that case issued in June 2005 It held, so far as relevant to this case, that the provisions in regulation 77 of the Jobseeker's Allowance Regulations 1996 which linked entitlement to JSA additions for children to receipt of child benefit (CB) were discriminatory towards men and not objectively justified. It held further that the said regulation should not be applied in so far as it breached the father's directly effective rights under Article 4 of EC Social Security Directive 79/7 and that, as a substantial minority carer, the father was to be treated as responsible for his children though this would mean that the State could end up paying the relevant additions twice over.
3. Leave to appeal to the House of Lords having been refused, that decision now stands. There is no Northern Ireland authority on point and the relevant legislative provisions are in identical terms. It is therefore incumbent on me (R(SB) 1/90) to follow that decision.
4. The background facts to this case are that the two children in question are the children of parents who throughout the period relevant to this case have lived apart. The parents maintain separate households. There is a Joint Residence Order in respect of the children but the Order does not detail how residence is to be shared other than implying that it is to be equal. When the father of the children, who is the JSA claimant, was in regular employment he worked on oil rigs in the North Sea. The mother and he operated an arrangement whereby the children alternated three weeks with their father and three weeks with their mother. When the father's permanent job ceased he took work where and when he could get it and often worked outside Northern Ireland. The parents tried, so far as possible, to maintain the alternating three weeks pattern but this was sometimes not possible. However they tried to maintain equal periods of living with either parent as this was what the Joint Residence Order envisaged. This was the situation at 4 November 2000.
5. The father was therefore, in substantive terms, a broadly equal carer with the mother when the situation was looked at over a period of time. He was, at the least, a substantial minority carer. Following Hockenjos I therefore consider that the offending parts of regulation 77 should not be applied to him as they operate in a discriminatory fashion. The tribunal erred by applying the offending parts to him and I set its decision aside for that reason.
6. I consider that this is a case where I can give the decision which the tribunal should have given. It is expedient that I do so in view of the length of time for which this case has been going on.
7. Disapplying the offending parts of regulation 77, therefore, I must consider the matter by reference to Article 4(5), Article 35(1) of the Jobseekers Order (Northern Ireland) 1995 and regulation 83 of the Jobseekers Allowance Regulations (Northern Ireland) 1996.
8. Article 4(5) of the Jobseekers Order (Northern Ireland) 1995 provides that the applicable amount of JSA is to be such amount or the aggregate of such amount as may be determined in accordance with Regulations. Regulation 83 of the JSA Regulations sets out the applicable amounts and includes:

"(b) an amount determined in accordance with paragraph 2 of Schedule 1 in respect of any child or young person who is a member of his family."

"Family" is defined in Article 35(1) of the Order as:

"A person who is not a member of a married or unmarried couple and a member of the same household for whom that person is responsible and who is a child."

There are other definitions of "family" but the above is the salient one for purposes of this present case. That definition raises three questions as follows:

(1) Is the claimant a member of a married or unmarried couple?

It appears accepted in this case that he is not.

(2) Are the children members of the same household as the claimant?

(3) Is the claimant responsible for the children?

9. As regards whether or not the children are members of the same household as the claimant this case differs on its facts from the Hockenjos facts. These children do not live part of every week with their father as did the children in Hockenjos. There are periods, sometimes exceeding three weeks, when they do not live with him at all because of his work commitments. It would also appear that there are periods when they do not have any staying contact with him due to his employment on the oil rigs. There are weeks when they are living exclusively with their mother whether or not their father is working. However, regulation 78(1) of the JSA Regulations provides as follows:

"(1) Subject to paragraphs (2) to (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 77 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person shall be treated for the purposes of the Order as members of the same household notwithstanding that any of them is temporarily living away from the other members of his family."

(The underlining is mine)

10. Regulation 78(1) refers to a claimant treated as responsible under regulation 77. The offending parts of regulation 77 are disapplied in relation to the father in this case and regulation 77(4) (which was not disapplied) does not apply to him in any event. It therefore seems to me that regulation 78(1) is also discriminatory in so far as it purports to discriminate against the father in that it can only benefit him if he is treated as responsible under regulation 77. In order to avoid this discriminatory effect, the discriminatory part of regulation 78(1) must be disapplied and the offending parts appear to be those underlined.

Therefore the said regulation 78(1) is to be applied in this case as if those underlined words were omitted. So doing, if the claimant is responsible for the children either child is to be treated as a member of the same household as the claimant notwithstanding that either child or the claimant is temporarily living away from the other members of the claimant's family. If, therefore, the claimant is responsible for the children the fact that he is temporarily living away from them does not stop them continuing to be members of his household. I do not understand either representative to disagree with this conclusion and it appears to me to be one which is necessary in light of the Hockenjos decision. The children could therefore simultaneously be members of their mother's and of their father's household so long as he remained responsible for them. I do not understand either representative to dissent from this.

11. However, the concept of membership of the household and that of parental responsibility are obviously envisaged by the legislation as distinct concepts. The salient definition of "family" in Article 35(1) is:

"A person who is not a member of a married or unmarried couple and a member of the same household for whom that person is responsible and who is a child."

This indicates a degree of separation of the two concepts otherwise there would have been no need to make separate provision for them. The question which must be determined therefore is how, absent the discriminatory provisions of regulation 77 and regulation 78(1), the matter of responsibility is to be decided. As JSA is a weekly benefit the issue may also arise that there must be responsibility in any given week. This leads to a further question as to whether or not responsibility is to be determined by looking at each individual week's circumstances or by looking at the matter over a longer timescale.

12. I look first for guidance from Hockenjos. There is of course a factual distinction in that case and this, in that in the Hockenjos case the children lived for a substantial part of each week with their mother and with their father. In this present case weeks will elapse when the children do not live with their father and the same with their mother.
13. Hockenjos gives some assistance in relation to how this matter is to be decided. From Hockenjos I draw the following principles -

(i) Responsible does not necessarily mean "sole" or "primary" responsibility. As a matter of ordinary interpretation there is no reason why more than one person should not be responsible for the same child (paragraph 80).

(ii) The relevant benefit being paid weekly, the test of responsibility is a weekly one (paragraph 81).

(iii) Whether a child qualifies as a member of the family (and this includes the parent being responsible for the child) is a question of fact (paragraph 92).

(iv) Section 35 is silent on the question of the period for which any person must be "responsible" but it covers a person who is responsible during part of a week but not for the whole of the week.

(v) Merely being available to be contacted in the course of an emergency or illness cannot of itself render a claimant responsible for his children for purposes of section 35 on those days when they are their mother's responsibility (paragraph 116).

(vi) As the JSA legislation has an essential feature that only one personal allowance or family premium is payable for a child in any given week even though more than one person is responsible it would be irrational to have a scheme which gave the number of whole personal allowances or family premiums per child equated to the number of households of which a child was a member in any week with any person responsible. The concepts of membership of a household and responsibility are distinct (paragraph 128 and 144).

(vii) Section 35 does not require that the child spends more time in one household than the other (paragraph 170).

(viii) The same rules should be applied to the father as to the mother (paragraph 187).

(ix) In construing what "responsible" means the context is responsibility for a child who is a member of the same household. Living seems to be an integral part of the concept which has to be grappled with. There is a certain symmetry between the concept of living with a parent and being a member of the same household for section 35 purposes. This has to be carried forward into the meaning to be attributed to "responsible" (paragraph 191).

(x) The purpose of the legislation is to provide an allowance for children living in the household not visiting it (paragraph 192).

(xi) While each case must be considered on its own facts there must be responsibility for a not insignificant part of the week and responsibility can still be found provided there is something more than a few hours contact on the one hand and something less than full responsibility for the whole of the week on the other (paragraph 193).

(xii) The purpose of the legislation is to provide the allowance for children living in the household not visiting it.

14. Applying the above it appears to me that the allowances are to be paid to the father for weeks when the children were living with their father. He is responsible for them for those weeks and they are members of his household. The children are to be considered as living with their father for weeks in which they are living with him as opposed to just visiting or staying with him and this can mean that they are living with him when they are based with him for less than the full week. They would have, however, to be living with him for a not insignificant part of the week. They would also have to be living there not merely staying for a few hours or even a single night if their father was only "minding" them.
15. When these children go to live with their father they do so for approximately three week periods unless his work intervenes. They may at times live with him for longer periods to make up for the periods when he is working outside Northern Ireland. The point is that during the periods when they are living with him as opposed to living with their mother (and merely visiting him or staying the occasional night) they are doing so as part of a settled course of daily living. In such circumstances he can be deemed responsible for them and the allowances can be paid to him. These periods may or may not correspond to benefit weeks. However provided part of such a period comprises a not insignificant part of a benefit week the father should be found to be responsible for the child in that benefit week. As guidance and mindful in particular of paragraph 114 of Hockenjos I would consider a cut off point of 2 nights per week as reasonable.
16. As regards the weeks when the children live with their mother (and not merely visit her or stay the occasional night while living with their father) it is much more difficult to draw up guidelines. Mr McNamara has properly pointed out that, once the discriminatory parts of regulation 77 and regulation 78(1) are disapplied, the test of responsibility for a child must be redefined. He correctly alludes to the analysis in paragraphs 191-193 of Hockenjos. He also mentions the test which the children's mother must satisfy to receive child benefit (and therefore, should she become unemployed) to receive the children related additions to JSA. The test of responsibility for child benefit purposes is contained in section 139 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which provides inter alia:

"139.-(1) For the purposes of this Part of this Act a person shall be treated as responsible for a child in any week if –

(a) he has the child living with him in that week; or

(b) he is contributing to the cost of providing for the child at a weekly rate which is not less than the weekly rate of child benefit payable in respect of the child for that week.

(2) Where a person has had a child living with him at some time before a particular week he shall be treated for the purposes of this section as having the child living with him in that week notwithstanding their absence from one another unless, in the 16 weeks preceding that week, they were absent from one another for more than 56 days not counting any day which is to be disregarded under subsection (3) below."

17. Mr McNamara urges me to adopt that test in this present case. He submits that to be "living with" the claimant in this context requires that the child resides in the same house in a "settled course of daily living" (R(F)2/81). I am in agreement with Mr McNamara in relation to what is involved in a child "living with" a parent. Mr McNamara submits that the section 139 test of responsibility should be adopted because it will ensure that the concept of fairness is adhered to, the test being to all intents and purposes the same test which is being applied to a child benefit recipient. He submits that if this test is not adopted and if the claimant can only be treated as responsible for a child during periods in which the children actually live with him, the result would be two separate tests of responsibility for the purposes of regulation 78(1). On the one hand a female child benefit recipient would continue to be responsible for a child even for periods when the children did not live with her by virtue of regulations 77 and 78(1). A male parent, not in receipt of child benefit could, however, only satisfy the test of responsibility if the children actually lived with him during a benefit week. Mr McNamara submitted that these differing tests of responsibility would constitute indirect discrimination in that the test of responsibility for a female child benefit recipient would be easier to satisfy than the test for a male non-child benefit recipient.
18. The claimant's representative opposes this argument. She submits that the Court of Appeal's remedy in Hockenjos is not discriminatory. She submits further that the evidence is that each parent cared for the children for half the time and took care of them in equal measures and that the joint residence order reflected this. She submits that the facts are significantly similar to Hockenjos apart from the difference in the pattern of care. In relation to the meaning of "responsible" she submits that, where care is shared equally irrespective of the pattern of caring, each parent is entitled to all the children related additions for the entire year. This, she submits, is particularly so because part of the JSA relates to "capital" items which are purchased and then used over a period of time.
19. She submits further that the reference in paragraph 81 of Hockenjos by Scott Baker LJ to the question of responsibility having to be divided "on a week by week basis" was only used because the particular pattern in that case was one week. For support she refers to paragraphs 63 and 54 of the Hockenjos judgment.
20. I deal with this last submission first. The paragraphs mentioned were dealing with whether the discriminatory provisions were justified. They do not deal with how responsibility is to be determined in connection with a weekly benefit such as JSA nor were they saying that determination of responsibility and entitlement to JSA child related additions on a week by week basis was discriminatory. I do not find those latter paragraphs of assistance in determining the matter of whether or not responsibility is to be determined on a weekly basis and how such determination is to be made. Nor do I consider that Scott Baker LJ was, in referring to deciding responsibility "on a week by week basis" referring solely to the facts of the Hockenjos case. Rather he was alluding to the task facing fact finders in dealing with the question of responsibility absent the discriminatory provisions of regulation 77.
21. I do consider that the condition of responsibility is to be satisfied on a week by week basis. However that does not mean that the matter has to be looked at afresh every week. The pattern of responsibility can be looked at over a period which is reflective of it in order to determine whether or not a parent is responsible in any given week. Once a decision was made it would apply until there was a change in the pattern with the parent in question having the usual obligation to inform the Department of any relevant change of circumstances. This, it seems to me, is the only practical way this can be done. The condition of being responsible is to be satisfied on a weekly basis but this can be determined by looking at the matter over a longer period reflective of the usual weekly pattern of responsibility.
22. As regards Mr McNamara's submission on the adoption of the child benefit tests to determine responsibility for JSA, there is in my view a considerable overlap between those tests and de facto responsibility for any given week. There is, of course, no statutory obligation to apply those tests (leaving aside the question of discrimination if they are not applied which I shall come to later). However, they do, as is to be expected, set out useful guidelines for the determination of de facto responsibility. They deal with the concept of "living with". They refer also to a minimum degree of financial responsibility and they deal with periods of temporary absence from one another (again indicating a longer period of care being considered). As, post Hockenjos, the question of responsibility in a given week is a question of fact that determination can only be upset if it is an unreasonable one. I consider that if the tests at section 139 are applied to all relevant circumstances the conclusion reached is unlikely to be so upset.
23. As regards Mr McNamara's contention on discrimination there is no doubt that a mother would simply have to meet the test of receipt of child benefit to obtain the JSA child related additions. The child benefit test is that of being responsible for a child and responsibility for child benefit purposes is to be determined in accordance with section 139. Application of the child benefit test in section 139, would, in my view, satisfy Directive 79/7/EEC. That is not, however, to say that the application of a de facto test would not do so. It will depend on the application of the test. As I have indicated above the child benefit test is, in my view, a reasonable one for determining responsibility and is a safe one from a discrimination point of view.
24. In light of the long delay I consider it expedient to give the decision which the tribunal should have given. For the weeks the children live completely with their father he is entitled to the additions. For the weeks they live with him for 2 or more nights per week he is entitled to the additions. For weeks when they live with him less than 2 nights per week, the test of responsibility in section 139 should be applied. The Department should apply the above guidance to the facts at the date of the decision under appeal. If agreement cannot be reached when this is done either party is at liberty to apply to me for determination of the matter. It would be helpful, if agreement is reached, if this was conveyed to the Commissioners' Office.

(signed): M F Brown

Commissioner

21 June 2006