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[1991] UKSSCSC CG_25_1990 (09 May 1991)

R(G) 3/91

Mr. M. J. Goodman CG/25/1990

Invalid care allowance – calculation of number of hours of care – whether averaging permissible

In 1989 the claimant was in receipt of ICA because she looked after her autistic step-son, who was in receipt of AA, when he came home at weekends and during the school holidays. The pattern of the son's weekend visits home varied but for a period he was at home from Friday afternoon to Monday morning of alternate weekends. For these weeks, the AO disallowed ICA on the grounds that the claimant failed to meet the 35 hour test. This was because, although the claimant cared for her son for over 35 hours during these weekends, she did not satisfy the test in both the weeks leading up to midnight on Saturday and the subsequent week. Disallowance was confirmed by the social security appeal tribunal.

The claimant then appealed to the Commissioner on the grounds that the correct method of working out the number of hours caring in any one week was to use a kind of averaging.

In dismissing the claimants appeal the Commissioner held that:

in reg. 4 of the ICA Regs "a week" means "a period of seven days beginning with Sunday";

reg. 4(i) does not allow averaging of hours of care over separate weeks.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I dismiss the claimant's appeal against the decision of the social security, appeal tribunal dated 30 July 1990 as the decision is not erroneous in law, Social Security Act 1975, section 101 (as amended).

This is an appeal to the Commissioner by the claimant, a married woman born on 12 April 1949. The appeal is against the unanimous decision of a social security appeal tribunal dated 30 July 1990, which in effect dismissed the claimant's appeal from a decision of the local adjudication officer issued on 15 March 1990. Because, however, of variations in the data involved I quote the actual tribunal's decision which was as follows:

"(1) [The claimant] is not entitled to invalid care allowance for the periods from 11 September 1989 to 8 October 1989, 30 October, 1989 to 5 November 1989, 13 November 1989 to 10 December 1989.

(2) [The claimant] is not entitled to invalid care allowance for the periods from 9 October 1989 to 15 October 1989 or 6 November 1989 to 12 November 1989."

So far as paragraph (2) of the tribunal's decision is concerned, the fact relates to the following part of the local adjudication officer's decision which is not in contention in this appeal:

"As [the claimant's step son] is not a person in respect of whom attendance allowance or other prescribed payment on account of his need for attendance is payable, the claimant is not entitled to invalid care allowance in respect of him from 9 October 1989 to 15 October 1989 and from 6 November 1989 to 12 November 1989 (all dates included)."

I should explain at this point that the claimant's son was born on 27 April 1975 and suffers from a form of autism.

At the claimant's request, the appeal was the subject of an oral hearing before me on 25 April 1991, at which the claimant was present and was represented by Mr. K. Venables of the local unemployed workers centre. The adjudication officer was represented by Mr. P. Hull of the Office of the Chief Adjudication Officer. I am indebted to all those persons for their assistance to me at the hearing.

As explained above, the appeal is effectively against that part of the social security appeal tribunal's decision which is contained in paragraph (1) of their decision cited in paragraph 2 above. The tribunal held that there was no entitlement to invalid care allowance for the periods set out in paragraph 2(1) above. That was because the tribunal held (affirming the adjudication officer on this point) that during those periods, although the claimant was caring for her step-son on his weekend visits home from a special school, she could not comply with regulation 4 of the Social Security (Invalid Care Allowance) regulations 1976, SI 1976 No. 409, reading as follows:

"Circumstances in which persons are or are not to be treated as engaged or regularly and substantially engaged in caring for severely disabled persons.

(1) A person shall be treated as engaged and as regularly and substantially engaged in caring for a severely disabled person on everyday in a week if, and shall not be treated as engaged or regularly and substantially engaged in caring for a severely disabled person on any day in a week unless, as at that week he is, or is likely to be, engaged and regularly engaged for at least 35 hours a week in caring for that severely disabled person.

(2) A week in respect of which a person fails to satisfy the requirements of paragraph (1) of this regulation shall be treated as a week in respect of which that person satisfies those requirements if he establishes-

(a) that he has only temporarily ceased to satisfy them; and

(b) that (disregarding the provisions of this sub-paragraph) he has satisfied them for at least 14 weeks in the period of 26 weeks ending with that week and would have satisfied them for at least 22 weeks in that period but for the fact that either he or the severely disabled person for whom he has been caring was undergoing medical or other treatment as an in-patient in a hospital or similar institution."

That regulation is in fact made under section 37 of the Social Security Act 1975, the relevant parts of which read as follows:

"Invalid care allowance

(1) Subject to the provisions of this section, a person shall be entitled to an invalid care allowance for any day on which he is engaged in caring for a severely disabled person if-

(a) he is regularly and substantially engaged in caring for that person; and

(b) he is not gainfully employed; and

(c) the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.

(2) In this section, 'severely disabled person' means a person in respect of whom there is payable either an attendance allowance or such other payment out of public funds on account of his need for attendance as may be prescribed.

………

(8) Regulations may prescribe the circumstances in which a person is or is not to be treated for the purposes of this section as engaged, or regularly or substantially engaged, in caring for a severely disabled person, as gainfully employed or as receiving full-time education.

(9) An invalid care allowance shall be payable at the weekly rate specified in relation thereto in Schedule 4, Part III, paragraph 3."

The problem in this case arises in relation to a number of weeks which are shown in a table in paragraph 4 of the local adjudication officer's submission to the tribunal as follows:

"Week From To Hours Satisfied

commencing

9.89 - - - No

9.89 14.30 22.9.89 Midnight 23.9.89 33 ½ No

9.89 Midnight 23/24.9.89 09.00 25.9.89 33 No

1.10.89 - - - No

8.10.89 - - - No

15.10.89 12.45 18.10.89 Midnight 21.10.89 73¼ Yes

22.10.89 All Week Yes

29.10.89 Midnight 28/29.10.89 09.30 30.10.89 33½ No

5.11.89 - - - No

12.11.89 14.30 17.11.89 Midnight 18.11.89 33½ No

19.11.89 Midnight 18/19.11.89 09.30 20.11.89 33½ No

26.11.89 15.00 1.12.89 Midnight 2.12.89 33 No

3.12.89 Midnight 2/3.12.89 09.30 4.12.89 33½ No

10.12.89 12.30 15.12.89 Midnight 16.12.89 35½ Yes

17.12.89 Home all week Yes

24.12.89 Home all week Yes

31.12.89 Home all week Yes

1.90 Midnight 6/7.1.90 10.45 8.1.90 34¾ No"

These figures appear to have been accepted at the hearing before the tribunal. I note that in some weeks the claimant came very near to the minimum of 35 hours per week. The references to "midnight" in the table result from the fact that when regulation 4 of the Invalid Care Allowance Regulations (cited in para. 5 above) refers to "a week" there must be applied thereto the normal definition of week to be found in Schedule 20 to the Social Security Act 1975 (as amended by the Social Security Act 1989) i.e. "A period of seven days beginning with Sunday . . ." In this case for those "weeks" in which the caring for the claimant of her step-son fell below 35 hours, there has been a disallowance of invalid care allowance, by applying regulation 4(1) of the Invalid Care Allowance Regulations to each week as a separate entity.

At the hearing before me, it was contended by Mr. Venables that that was not a correct method of applying the regulation and that there should be a kind of averaging, so that the weeks in which the claiment fell short of the 35 hours could be brought up to over 35 hours because for quite a number of the weeks in the overall period in question the claimant was looking after her step-son all week and was caring for him for over 70 hours in those weeks. Mr. Hull contended that this was not the correct construction of regulation 4 and that the local adjudication officer and the tribunal had adopted the correct approach. This particular problem does not up till now appear to have been the subject of any Commissioner's decision, reported or otherwise.

Mr. Venables, however, drew my attention to reported decision R(F) 1/84 which related to the requirement of regulation 16(6)(b)(iv) the Child Benefit (General) Regulations 1976, SI 1976 No. 965, that for benefit to be payable in a given situation the child should "ordinarily [live with the claimant] throughout at least one day in each week." It was contended for the claimant in that case that there should be a form of averaging but the learned Commissioner rejected the argument in the following terms (para. 17 of R(F) 1/84):

"[the relevant paragraphs of the regulation] clearly require a claimant to establish that a child ordinarily or as a general rule or in the absence of exceptional circumstances lives with her not less than one full day in each and every week. I appreciate [counsel's argument to the contrary], however it would have been possible for Parliament to have used some such expression as 'the week' instead of 'each week' but it did not do so and the Commissioner must give effect to the words of the statute as enacted. In my judgment the time unit 'each week' does not permit the averaging out over a short time scale."

Mr. Venables relied on that decision for the Commissioner's statement that the words "the week" might have been apt to allow a form of averaging. He pointed to the fact that regulation 4(1) of the Invalid Care Allowance Regulations refers to a person being "engaged and regularly engaged for at least 35 hours a week" (my emphasis). Although I appreciate the force of this argument, it seems to me that it is not particularly helpful in this case to compare two differently worded regulations. What I must in fact do is look at the entirety of regulation 4 of the Invalid Care Allowance Regulations, implementing as they do section 37 of the Social Security Act 1975.

The wording of regulation 4(1) is not particularly easy to follow but, in my judgment, it does not allow "averaging". That is despite the fact that the concluding words of the regulation read, "engaged for at least 35 hours a week in caring for that severely disabled person" and do not read "engaged and regularly engaged and regularly engaged for at least 35 hours in that week in caring for that severely disabled person."

What in my view the regulation requires is that one should start with the particular week in which the day of alleged entitlement to benefit occurs hence the words "as at that week" in the regulation. One then asks whether during that week the claimant is "engaged and regularly engaged for at least 35 hours…in caring for that severely disabled person". If and only if he or she is so engaged for 35 hours at least during that week, then the allowance is payable for the days in that week. The additional words in the regulation are in my view restrictive in nature and require not only that during the week in question the carer should have been engaged in caring for at least 35 hours but also that there should either be a pattern of this in the antecedent period or, if not, in the future period, hence the words "or is likely to be". That is consistent with the fact that section 37 of the 1975 Act requires a person not only to be engaged in caring but also to be "regularly" engaged in caring. I am fortified in this conclusion by the fact that regulation 4 makes exceptions from this general rule in sub-paragraph (2). That sub-paragraph contains limited exceptions which would be unnecessary, in some respects at least, if the averaging principle contended for by the claimant applied to regulation 4(1).

It is also worthy of note, as Mr. Hull pointed out, that where averaging is to take place then it is customary for a regulation to make this explicit e.g. the provision of regulation 4(1) of the Family Credit (General) Regulations 1987, SI 1987 No. 1973, referring to "remunerative work" where it defines that phrase as "work in which a person is engaged, or; where his hours of work fluctuate, is engaged on average, for not less that 24 hours a week . . ." (My emphasis). Compare similar wording in regulation 5(1) of the Income Support (General) regulations 1987, SI 1987 No. 1967.

Date: 9 May 1991 (signed) Mr. M. J. Goodman

Commissioner