UK Social Security and Child Support Commissioners' Decisions

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Cite as: [1991] UKSSCSC CF_10_1991

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[1991] UKSSCSC CF_10_1991 (02 December 1991)

R(F) 2/92

Mr. M. J. Goodman CF/10/1991

Residence condition – absence in Canada – whether claimant able to rely on the Family Allowances and National Insurance (Canada) Order 1959

The claimant and her children went to Canada for personal reasons on 3 May 1986. They returned to the UK on 29 November 1989. The adjudication officer decided that child benefit was payable only for the first eight weeks of the claimant's absence in accordance with regulation 4 of the Child Benefit (Residence and Persons Abroad) Regulations 1976. He further decided that benefit was payable immediately on the family's return to the UK by virtue of paragraph 13 of the Schedule to the Family Allowances and National Insurance (Canada) Order 1959.

Held that:

paragraph 13 of the Schedule to the Canada Order 1959 enables a person to overcome the residence and presence conditions contained in section 13 of the Child Benefit Act 1975 when migrating from Canada to the UK. It does not enable benefit to be paid during any period of absence in Canada (para. 13).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I dismiss the claimant's appeal against the decision of the social security appeal tribunal dated 20 November 1990 as that decision is not erroneous in law: Social Security Act 1975, section 101 (as amended).

This is an appeal to the Commissioner, with the leave of the tribunal chairman, by the claimant, a woman born on 19 December 1948. The appeal is against the unanimous decision of a social security appeal tribunal dated 20 November 1990, which dismissed the claimant's appeal from a decision of the local adjudication officer issued on 26 June 1990 in the following terms:

"I have reviewed the decision of the adjudication officer awarding child benefit for Molly and Thomasz from 5 May 1986 to 3 December 1989 (both dates included).

There has been a relevant change of circumstances since the decisions were given. Social Security Act 1986, section 52(3) and the Social Security Act 1975, section 104(1)(b). This was that the claimant was abroad and her absence exceeded eight weeks. My revised decision for the period from 5 May 1986 to 3 December 1989 (both dates included) is as follows:-

The claimant is not entitled to child benefit from 5 May 1986 to 3 December 1989 because she was not and could not be treated as being in Great Britain and her absence from Great Britain had exceeded eight weeks.

(Child Benefit Act 1975, section 13(3) and the Child Benefit (Residence and Persons Abroad) Regulations 1976, regulation 4).

Child benefit is payable for Jacob, Molly and Thomasz from and including 4 December 1989."

The appeal was the subject of an oral hearing before me on 15 November 1991 at which the claimant was present, gave evidence to me, and addressed me on the relevant law. The adjudication officer was represented by Mr. D. A. Jobling of the Office of the Chief Adjudication Officer, who addressed me on the facts and the law. I am indebted to the claimant and to Mr. Jobling for their assistance to me at the hearing.

The facts are briefly these. The claimant was, prior to her departure for Canada on 5 March 1986, living with her husband and children in the United Kingdom. She was in receipt of benefit for the two children Molly and Thomasz. Jacob was not born until 7 July 1988 when she was in Canada. On 3 May 1986 the claimant left Great Britain and went to Canada. It is clear that she did not intend to live there permanently but merely to obtain temporary respite from certain personal circumstances of which she has given details. However, because she was financially straitened she did not return to Great Britain until 29 November 1989. While in Canada she did not claim child benefit for the children who were with her and it seems that such a claim might well have been unsuccessful (see below).

On her return to the United Kingdom on 29 November 1989, the claimant made a renewed claim for child benefit for her three children. The local adjudication officer then gave the above cited decision of 26 June 1990. The claimant appealed to the social security appeal tribunal on the ground that she had received no child benefit whilst in Canada and was therefore entitled to child benefit from the United Kingdom for the whole time that she had been in Canada. She contended that her entitlement to UK child benefit throughout the time that she was in Canada arose from the provisions of the Family Allowances and National Insurance (Canada) Order 1959, SI 1959 No. 2216 (applied to child benefit by SI 1976 No. 963).

In particular she drew attention in the 1959 Order to paragraph 13 of a letter dated 8 December 1959 from the High Commissioner for the United Kingdom and Canada to the Canadian Minister of National Health and Welfare. That letter is scheduled to the Order and is made part of the legislation of the Order by Article 2. Paragraph 13 reads as follows:

"13. Where a person is ordinarily resident in the United Kingdom he shall, for the purpose of any claim to receive a family allowance under the legislation of the United Kingdom, be treated -

(a) as if his place of birth were in the United Kingdom, if it is in Canada; and

(b) as if he had been resident or present in the United Kingdom during any period during which he was, respectively, resident or present in Canada."

The claimant contends that that completely exempts her, during the period that she and the children were in Canada, from the normal requirements of section 13 of the Child Benefit Act 1975, reading as follows:

"Persons outside Great Britain

(1) Regulations may modify the provisions of this Part of this Act in their application to persons who are or have been outside Great Britain at any prescribed time or in any prescribed circumstances. [There is no regulation relevant to the present contention of the claimant.]

(2) Subject to any regulations under sub-section (1) above, no child benefit shall be payable in respect of a child for any week unless -

(a) he is in Great Britain in that week; and

(b) either he or at least one of his parents has been in Great Britain for more than one hundred and eighty-two days in the fifty-two weeks preceding that week.

(3) Subject to any regulations under sub-section (1) above, no person shall be entitled to child benefit for any week unless -

(a) he is in Great Britain in that week; and

(b) he has been in Great Britain for more than one hundred and eighty-two days in the fifty-two weeks preceding that week."

Section 13 of the Child Benefit Act 1975 would certainly debar the claim for child benefit for the period when the claimant and her children were in Canada. However it is clear (as affirmed by the local adjudication officer and by the tribunal) that child benefit for the children became immediately payable to the claimant on her return to the United Kingdom because paragraph 13 of the Canada Order 1959 undoubtedly modified the requirements of section 13 to that extent. The question is whether, as the claimant contends, paragraph 13 goes further than that and also removes the requirements of section 13 of the 1975 Act for the period during which she and the children were in Canada. Mr. Jobling submitted inter alia that paragraph 13 referred only to a claimant and not to a child whereas section 13 of the 1975 Act contains requirements in relation to both parent and child. I reject that particular submission as, in my view, paragraph 13 is clearly not confined to a claimant. It used the broad expressions, "a person" and "for the purpose of any claim to receive a family allowance under the legislation of the United Kingdom".

The claimant contends that paragraph 13 of the 1959 Order is perfectly general in its terms and that there is nothing in it to limit its operation simply to claims for the period when the parent and children are in the United Kingdom. Mr. Jobling drew attention to the fact that sub-paragraph (b) of paragraph 13 of the 1959 Order uses not the present tense but the past tense in the phrases "as if he had been resident or present in the United Kingdom" and "during any period during which he was respectively, resident or present in Canada." I agree that that tends to aid a construction of paragraph 13 as looking to past periods only as qualifying for a claim from arrival in the UK but it is not in my opinion conclusive on its own and is not necessarily inconsistent with the claimant's contention.

However, one must bear in mind the context in which paragraph 13 of the Schedule to the 1959 Order appears. It is in correspondence between the High Commissioner for the United Kingdom in Canada with the Canadian Minister of National Health and Welfare. It occurs as a quid pro quo for certain reciprocal provisions as to family allowances and family assistance which are described in earlier paragraphs of the same letter as granted by the Canadian Government. The context is of "the social security of people who migrate from the United Kingdom to Canada or from Canada to the United Kingdom". (Introduction to the letter of 8 December 1989). Moreover the letter is part of the 1959 Order because of Article 2 of the Order, reading:

"Modification of Acts

The provisions contained in the Letters set out in the Schedule to this Order shall have full force and effect, so far as the same relate to England, Wales and Scotland and provide for reciprocity in any matter specified in subsection (1) of section 64 of the National Insurance Act, 1946, as extended by subsection (1) of section 4 of the Family Allowances and National Insurance Act, 1956, (which subsections relate to reciprocity with other countries); and the Family Allowances Acts, 1945 to 1959, and the National Insurance Acts, 1946 to 1959, shall have effect subject to such modifications as may be required therein for the purpose of giving effect to any such provisions."

The reference to the Family Allowances Acts, 1945 to 1959, and the National Insurance Acts, 1946 to 1959 have been updated by SI 1976, No. 225 to the corresponding provisions of the Child Benefit Act 1975 etc. However the 1959 Order itself was made under section 64(1) of the National Insurance Act 1946 (which is in similar terms to section 143 of the Social Security Act 1975). Section 64 of the National Insurance Act 1946 provided as follows:

"Reciprocal agreements with Dominions, colonies, and foreign countries

(1) For the purpose of giving effect to any agreement with the Government of any part of His Majesty's Dominions other than Northern Ireland, of the Government of any foreign country, providing for reciprocity in matters relating to payments in respect of interruption of employment by unemployment, sickness or otherwise, or payments in respect of the confinement of women, widowhood, orphanhood, retirement, old age or death [extended to family allowances by section 4(1) of the Family Allowances and National Insurance Act 1956], it shall be lawful for His Majesty by Order in Council to make provision for modifying or adapting this Act in its application to cases affected by the agreement.

(2) The modification of this Act which may be made by virtue of the foregoing subsection shall include provision -

(a) for securing that acts, omissions and events having any effect for the purposes of the law of the country in respect of which the agreement is made shall have a corresponding effect for the purposes of this Act (but not so as to confer a right to double benefit);

(b) for determining, in cases where rights accrue both under this Act and under the law of the said country, which of those rights shall be available to the person concerned;

(c) for making any provisions as to administration and enforcement contained in this Act or in any regulations applicable also for the purposes of the law of the said country;

(d) for making any necessary financial adjustments by payments into and out of the National Insurance Fund."

The wording of that section clearly envisages that the provisions of the legislation, including the Child Benefit Act 1975, shall be modified to the extent only that it is necessary to give effect to the reciprocal agreement and the Order embodying it. The words in the section "but not so as to confer a right to double benefit" (compare section 143(2)(a) of the Social Security Act 1975) indicate that there can be no general entitlement for a claimant in the United Kingdom to United Kingdom benefit during the time when the claimant is in Canada and vice versa.

It appears that the claimant in this case might well not under the relevant Canadian legislation have been able to claim or receive full family allowances under the Canadian system because one of the requirements of that system is that she should have paid Canadian income tax and been resident in Canada for a certain period. However, the entitlement to UK child benefit cannot depend on the individual application of the Canadian Family Allowances legislation and no construction of the 1959 Order that required the Commissioner to make a precise adjudication as to the Canadian legislation could be correct or practical. Undoubtedly, paragraph 13 of the Schedule to the 1959 Order does have an effect when once a person has migrated from Canada to the United Kingdom and it enables immediate payment of child benefit, as distinct from having to wait the normal six months. That in my view is as far as it goes. It would be wrong to construe more widely a modification of a statutory provision by what is in fact only a paragraph in correspondence. Consequently I reject the claimant's contention.

The claimant has drawn attention to the provisions of the May 1989 issue of the departmental leaflet entitled "Child Benefit for People Entering Britain". At page 3 of that leaflet it states, "You may have been entitled to child benefit while you were abroad if . . . in a country with which Great Britain has special arrangements". At page 4 of the leaflet under the head "Canada" is the statement "If you normally live in the UK, any residence in Canada can help you to get British Child Benefit". The claimant draws attention to the generality of those phrases and contends that they support her submission. I agree that the phrases are general but a departmental leaflet does not represent the law and is only meant to give a broad indication of the position. The leaflet cannot affect a precise construction of the relevant legislation.

At the hearing before me both the claimant and Mr. Jobling indicated that they did not know of any Commissioner's decision which would assist me in regard to this particular problem. However, subsequent research by me has revealed a decision of a tribunal of Commissioners in R(F) 1/62 which did consider paragraph 13 of the 1959 Order. However the tribunal were concerned only with the question whether immediately on arrival in the United Kingdom a claimant could be considered to be "ordinarily resident in the United Kingdom" within the meaning of paragraph 13. The tribunal concluded that a person could so become ordinarily resident. What is, however, perhaps significant is that no suggestion was made in R(F) 1/62 that any claim could be made for a time when the parent and children were still in Canada.

For the above reasons, I conclude that the claimant's contention must fail and child benefit is not payable to her for the period during which she and the children were in Canada, other than for the first eight weeks under the provisions of regulation 2 of the Child Benefit (Residents and Persons Abroad) Regulations 1976, SI 1976 No. 963. That has in fact been taken into account. Indeed, the fact that there is an eight week limitation in regulation 2 of the 1976 Regulations may also indicate the intention of the draftsman of the regulation that no payment should be made for a child abroad after eight weeks. There is no reference in that regulation to the possible operation of any modification by reciprocal agreement, though the absence of such a reference is not of course of itself conclusive.

Date: 2 December 1991 (signed) Mr. M. J. Goodman

Commissioner