UK Social Security and Child Support Commissioners' Decisions

[1995] UKSSCSC CF_25_1994 (02 June 1995)

 


R(F) 1/96


Mr. P. L. Howell QC CF/25/1994

2.6.95

Child in care - child placed with grandparents - whether child "boarded out"

The claimant claimed child benefit on 19 July 1993 in respect of his granddaughter, whose mother was schizophrenic and unable to care for her. The child had been taken into the care of the local authority but had been placed with her grandparents under a "child plan" agreed between the local authority, the grandparents and the child's mother as from 19 July 1993. No payment was made by the local authority to the grandparents for caring for the child. An adjudication officer refused the claim for child benefit on the ground that the child was in the care of a local authority and boarded out with the claimant and so entitlement was excluded under regulation 16(8) of the Child Benefit (General) Regulations 1976. The tribunal allowed the claimant's appeal, holding that the child was not "boarded out" under regulation 16(8). The adjudication officer appealed to a social security Commissioner.

Held that:

child benefit was clearly payable from 30 August 1993 because regulation 11 of the Foster Placement (Children) Regulations 1991 (which revoked and replaced the Boarding Out of Children (Foster Placement) Regulations 1988, which in turn revoked and replaced the Boarding-Out of Children Regulations 1955 referred to in regulation 16(8) of the Child Benefit (General) Regulations) only permitted a child to be placed with a person who was not an approved foster parent for a maximum of six weeks. The grandparents were not approved foster parents and thus from 30 August 1993 the arrangement under which the child was living with the claimant was not within the 1991 regulations at all (paras. 19-20);

the claimant was also entitled to child benefit in respect of the initial six week period from 19 July 1993. The Commissioner accepted that by virtue of regulation 1(4)(b) of the Child Benefit (General) Regulations, the reference in regulation 16(8) of those regulations to the Boarding-Out of Children Regulations 1955 could be construed as extending to the Foster Placement (Children) Regulations 1991 insofar as the latter directly or indirectly re-enacted or replaced the former (paras. 22-25). However, for regulation 16(8) to apply, it was not enough to find that a placement had been made under regulation 11 of the 1991 Regulations. It was necessary in each case to look at the individual circumstances to see if they constituted a "boarding-out" (paras. 26 to 35);

"boarding-out" was apt to describe an arrangement that had some commercial or professional aspect. It was wholly inapt to describe the arrangement in this case (paras. 36 to 37) which therefore did not fall within regulation 16(8).


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the social security appeal tribunal given on 31 May 1994 was not in my judgment erroneous in law and this appeal by the adjudication officer therefore fails.
2. The appeal arises out of the rejection of a claim for child benefit made by the claimant on 27 September 1993 in respect of his granddaughter Chloe, who is now aged five. I held an oral hearing of the appeal at which the claimant and his wife were present and represented by Mr. B. Ellson of their Citizens Advice Bureau, and the adjudication officer appeared by Miss N. Yerrell of the Solicitor's Office, Department of Social Security. I am grateful to Miss Yerrell in particular for the careful analysis she presented of the way in which the various legislative provisions in point had arrived at their present form.

The facts

3. The relevant facts can be stated quite simply. The claimant and his wife are now in their 50's and have been given a great deal more than most people to cope with in the way of family difficulties. Their daughter, Chloe's mother, has a long history of mental illness including periods of compulsory admission to hospital. As a result they have had to care for Chloe periodically throughout her life. At the date of their application for child benefit their daughter was detained in hospital under a Mental Health Act order dated 23 April 1993 and it was feared she would never be able to care for Chloe again. They are devoted to Chloe and willing to provide her with the home and stability that her mother could not give her. Unhappily their daughter's schizophrenia makes her prone to react irrationally on occasions and initially she would not give her consent to this being done as a voluntary arrangement. For her own protection, Chloe had to be taken into the care of the local authority in May 1993 and was temporarily placed by them with approved foster parents. The policy of the authority is not to leave children with foster parents indefinitely and the only option for Chloe's long term future seemed to be for her to be given up for adoption (which has in fact happened with another child of the claimant's daughter).
4. The social workers, obviously operating with tact and skill in a difficult situation, devised a solution under which the local authority retained legal responsibility for Chloe, but while remaining in their care she was in fact "placed" with her grandparents so as to be given a home and a stable family upbringing with them. The purpose of her remaining legally "in care" was to provide a necessary buffer between her grandparents and her mother, who had unhappily caused her physical harm on at least one occasion in the past, and might otherwise be able to insist on taking her away despite not being in a fit state to care for her.
5. Accordingly, from 19 July 1993 Chloe came to live with her grandparents on an indefinite basis with the approval of the local authority under a "child plan" drawn up and signed on 14 July 1993 as agreed between Chloe's mother, the claimant and his wife, and the two social workers responsible. This set out the agreed objective as being "to place Chloe with maternal grandparents on a probable long term basis", and set out detailed provisions about the control of access, the day to day care to be provided by the claimant and his wife, and such things as the day nursery Chloe was to attend in the autumn. At the foot was written "Child plan to be reviewed after four weeks. Up to 16 August 1993." A copy of this document, with an added manuscript note by Chloe's mother about dental and medical treatment, was produced at the hearing and is at pages 50 to 54 in the case papers.
6. Also produced at the hearing (p. 49) was a letter dated 13 June 1995 from the local authority in the following terms:

"This is to confirm that Chloe has been looked after by her grandparents under regulation 11, Children Act 1989 since 19 July 1993 .... No payment has been made to [the grandparents] in the form of funding the placement as it is not this department's policy to fund such placements, except in very exceptional circumstances."

The arrangements made for Chloe

7. I was further told, and it is common ground, that the interim care order made in favour of the local authority in May 1993 has been superseded by a full care order made on 15 December 1993 under s. 31 Children Act 1989, and that this is still in force. No payment has ever been required by the claimant or his wife for taking in their granddaughter and giving her a home, and as confirmed by the letter at page 49, no payment has ever been made to them. It is also common ground that the "Regulation 11" referred to in the letter is regulation 11 of the Foster Placement (Children) Regulations 1991, SI 1991 No. 910. These are the present regulations governing the terms on which children in the care of a local authority may be placed in the homes of foster parents, and are made pursuant to s. 23(2)(a) Children Act 1989 empowering a local authority to "place" a child in their care with a suitable person on such terms as to payment and otherwise as they may determine.
8. The regulations contain detailed provisions for the approval of foster parents and normally no child can be "placed" with a person who is not so approved. Regulation 11, exceptionally, provides for emergency or immediate placements, and permits a child to be placed for a period of not more than six weeks in the home of a person who is not an approved foster parent where the local authority are satisfied that such placement is necessary, the person is a relative or friend of the child, and other special conditions are satisfied. Otherwise, all "placements" in accordance with the regulations must be with approved foster parents who have been through and successfully completed the procedure for approval under reg. 3. When a particular placement is made with such parents there are further conditions to be complied with under reg. 5, and they have to enter into both a formal "foster care agreement" imposing general obligations as to all children fostered with them, and a specific "foster placement agreement" for the particular child, in the detailed terms required under Schedules 2 and 3.
9. The claimant and his wife confirmed at the hearing before me, and I so find, that they have never been through the more lengthy procedure for formal approval as foster parents under reg. 3 and have not in fact been so approved, and there has never been any placement agreement with them as there would have been for a "professional" foster arrangement under reg. 5. Nor has there been any later document or agreement entered into by them after the initial "child plan", which appears to have been intended, very sensibly, to cover only the initial emergency period, and to be subject to review after about a month. Thus even though the initial arrangement for Chloe to go and live with her grandparents was, as it appears, entered into by the local authority in exercise of their powers under reg. 11 of the Foster Placement Regulations 1991, that "immediate placement" must have come to an end at the latest at the expiration of six weeks, and it has never been replaced by a more formal fostering arrangement under regs. 3 and 5.

10. So from the end of the initial six weeks, the arrangement under which Chloe has been allowed to remain with her grandparents has been a less formal one, outside the 1991 regulations altogether. Under s. 23 Children Act 1989, a local authority having a child in their care must provide accommodation and maintenance for him or her but may do so in a number of ways, of which placing him or her with foster parents under s. 23(2)(a) is only one: alternatively they may maintain him or her in a community or children's home under s. 23(2)(b)-(e), or by s. 23(2)(f) make "such other arrangements as seem appropriate to them" and comply with relevant regulations. The informal arrangement at present in force between the local authority and Chloe's grandparents cannot fall within (a), but appears to me to be within the local authority's powers under the last head (f). The claimant and his wife are not local authority foster parents and have made it quite clear that they do not wish to be; they have taken Chloe in because she is their granddaughter and they love her, and they and the social workers consider this is the best arrangement for her, to provide the security and continuity which above all else she must need. It seems to me a very sensible and practical arrangement and none the worse for its lack of formality.

The statutes provisions

11. It has been necessary to go in some detail into the exact arrangements under which Chloe is living with the claimant and his wife, because their claim for child benefit for her has been rejected on the ground that as she is in the care of the local authority and has been "placed" with them, she counts as "a child boarded out by a local authority in the home of any person in accordance with the provisions of the Boarding-Out of Children Regulations 1955" for the purposes of the exclusion in reg. 16(8) Child Benefit (General) Regulations 1976, SI 1976 No. 965 ("the Child Benefit Regulations"). Apart from this provision, there is no real doubt that they would qualify for child benefit from 19 July 1993 as they are persons with the day to day responsibility for a child living with them, and their claim on 27 September 1993 was made within six months of the date the entitlement started: see ss. 141, 143 Social Security Contributions and Benefits Act 1992, and reg. 19(3) Social Security (Claims and Payments) Regulations 1987, SI 1987 No. 1968. Conversely if regulation 16(8) does apply, no child benefit can be paid to them and the adjudication officer's appeal must succeed.

12. The relevant provisions to explain the argument that no child benefit is payable are:

(1) s. 144(2) and Sch. 9 Contributions and Benefits Act 1992, under which no child benefit is to be paid in respect of a child in the care of a local authority in such circumstances as may be prescribed;

(2) reg. 16(5) Child Benefit Regulations, setting out a list of "prescribed circumstances" under which entitlement to child benefit for children in care is prima facie excluded: these include children being in care under orders made pursuant to the Children Act 1989 (and cover both interim and full care orders, of the kinds that have applied to Chloe continuously from 19 July 1993);

(3) reg. 16(6) ibid., by which the right to child benefit for a child within (5) is reinstated for the first eight weeks of local authority care, and for subsequent weeks if the child is actually living with the claimant throughout those weeks (or other conditions, not here material, are met);

(4) reg. 16(8) already referred to, by which the rights reinstated under para. (6) are taken away again, for any week in which a child in care is "boarded out by a local authority in the home of any person in accordance with the provisions of the Boarding-Out of Children Regulations 1955 or the Boarding-Out and Fostering of Children (Scotland) Regulations 1985";

(5) the 1955 Boarding-Out Regulations referred to in reg. 16(8): these were in force at the time of the Child Benefit Regulations in 1976, but revoked and replaced with substantial amendments in 1988 by the Boarding-out of Children (Foster Placement) Regulations 1988, SI 1988 No. 2184, the 1988 regulations being in their turn revoked and replaced with further amendments by the Foster Placement (Children) Regulations 1991 to which reference has already been made.

10. The reference in reg. 16(8) to a child being "boarded-out ... in accordance with the provisions of the Boarding-Out of Children Regulations 1955" has never been updated to reflect the changes in the child care legislation since 1976. The exclusion for "boarding out" can therefore apply to a placement or other arrangement made in 1993 only if is legitimate to read reg. 16(8) as including a reference to the type of arrangement actually made under the later child care legislation, by virtue either of general principles of interpretation or of reg. 1(4)(b) Child Benefit Regulations, which is a provision for updating legislative and other references intended to make the regulations read as if extending automatically to later re-enacted or replacement provisions.

The adjudication officer's decision and the appeal to the tribunal

11. On 22 November 1993, an adjudication officer determined that the claimant was not entitled to child benefit for Chloe "because the child is in the care of a local authority and is boarded out in the claimant's home in accordance with the provisions of the Boarding-Out of Children Regulations 1955 (Boarding Out of Children (Foster Placement) Regulations 1988 with effect from 1 June 1989)." The claimant appealed to the tribunal, and the adjudication officer maintained the stance that reg. 16(8) precluded entitlement to child benefit, after the local authority had stated in response to a query (p. T8) that "Chloe was placed on 19 July 93 with [her grandparents] under the Foster Placement (Children) Regs. 1991. They have never received any payments towards the care of Chloe."
12. While correct as far as it went, this reply, given on 17 December 1993 two days after the full care order had been made on 15 December 1993, and long after the initial six week arrangement had expired, failed to make it clear that there was no current placement arrangement complying with the 1991 Regulations at all, see above. The DSS appear thus to have been left with a fundamental misapprehension about the facts, which has been mainly responsible for their pursuit of this appeal in the way they have, and continued until the actual hearing before me when the documents were produced.
13. The tribunal allowed the appeal on 31 May 1994 and determined that the claimant was entitled to receive child benefit in respect of Chloe from 19 July 1993. Having considered the evidence with a good deal of care they recorded findings of fact that initially because Chloe's mother would not allow her to go into voluntary care with the grandparents she had been put into the care of professional foster parents by the local authority; but subsequently she had been put into the voluntary care of the claimant on 19 July 1993 and had remained in the voluntary care of the grandparents since that date. They thus drew a distinction on the facts between a "placement" with foster parents and the "voluntary" arrangement under which Chloe went into the care of her grandparents, and this was reflected in the two reasons they gave for their decision, which were that the claimant and his wife were not "approved foster parents" and were not receiving any boarding-out allowance from the local authority. They held that in these circumstances Chloe was not "boarded-out" under reg. 16(8) and commented that they could not envisage that it was the intention of the legislature to deprive a person in the position of the claimant of child benefit to assist him in the bringing up of his granddaughter.

The present appeal

14. Against that decision the adjudication officer appeals, contending that Chloe has throughout been the subject of a placement arrangement under the 1991 Foster Placement (Children) Regulations, and in consequence falls within the exclusion for "boarding out" of children in care under reg. 16(8) of the Child Benefit Regulations. In a written submission dated 28 November 1994 which was developed by Miss Yerrell at the hearing, he submits that even though no payment is being made by the local authority, any placement with foster parents or other approved persons under the 1991 Regulations is caught by reg. 16(8) so that there is no provision to allow payment of child benefit, and the tribunal have therefore erred in law in failing to apply the provisions of reg. 16(8) as it applies to a child who is boarded out.
15. The claimant responds that it is a complete misdescription of the arrangement to say that Chloe is "boarded out" with him, and that it is inconceivable that grandparents looking after their granddaughter in such circumstances could have been intended to be deprived of all child benefit, even though receiving nothing for her care from the local authority. With that last point I have a good deal of sympathy, as did the tribunal and I suspect everyone else involved in the case. However the legislation has to be applied as it is and the question I have to determine is whether on a fair reading of reg. 16(8) as it stands it applies to Chloe, bearing in mind that unlike in reg. 16(9) dealing with children placed with a view to adoption, there is no specific saving for cases where the local authority is making no payment.

The main period: 30 August 1993 onwards

16. As regards the majority of the period at issue the answer has become clear on a closer examination of the facts. The arrangement under which Chloe has been living with her grandparents since 30 August 1993 has, for the reasons given above, been an informal arrangement and not within the provisions of the 1991 regulations about "placement" at all. It was in my view quite properly within the powers under s.23(2)(f) Children Act 1989, but whether that is right or wrong it cannot have been in accordance with the provisions of the Foster Placement (Children) Regulations 1991. No placement has ever been made with the claimant and his wife as approved foster parents in accordance with regs. 3 and 5, and no immediate placement with them in accordance with reg. 11 could have continued beyond the expiry of six weeks from 19 July 1993, because of the time limit in reg. 11(3).
17. Thus since 30 August 1993 at the latest, Chloe cannot have been the subject of any placement in accordance with the Foster Placement (Children) Regulations 1991, and therefore even if reg. 16(8) is to be read as applying to such a placement instead of to a "boarding-out" under the 1955 regulations, it still cannot apply as the arrangement has not been in accordance with any of the regulations referred to. It follows in my judgment that from and including 30 August 1993, the claimant has been entitled to child benefit for Chloe for each week in which she has been living with him and the other conditions for benefit (apart from reg. 16(8)) are met. Although there is no specific finding on the point it is I think implicit in the way the case has been dealt with that there are no other conditions at issue. Therefore the tribunal's conclusion, that reg. 16(8) had no application because the claimant and his wife are not "approved foster parents", was correct in law and warrants their decision that as regards this period he was entitled to child benefit for Chloe .

The initial period: 19 July to 29 August 1993

18. For the initial six week period from 19 July 1993 that reason alone was not sufficient to decide the case, because an immediate arrangement under reg. 11 of the Foster Placement Regulations 1991 would be a "placement" under those regulations, and so arguably within the exclusion in reg. 16(8) of the Child Benefit Regulations. It therefore becomes necessary to consider (1) whether a reference to reg. 11 of the 1991 Regulations can be read into reg. 16(8) at all, and if so (2) whether the arrangement made for Chloe is identifiable as a "boarding out" within the scope of reg. 16(8), even though the 1991 Regulations, unlike their predecessors, make no use of that expression at all.

The first point: for 1955 read 1991?

19. Miss Yerrell sought to establish that the reference in reg. 16(8) to the Boarding-Out of Children Regulations 1955 should be read as a reference to the 1991 Placement Regulations in two ways. One was via reg. 1(5) Child Benefit Regulations, which applies the rules of construction in the Interpretation Act 1889 as if the regulations were an Act of Parliament. The 1889 Act has now been repealed, but by s. 25(2) Interpretation Act 1978 the reference in reg. 1(5) is to be construed as one to the 1978 Act as it applies to Acts passed at the time of the reference (i.e. at 8 August 1976, when the Child Benefit Regulations came into effect; for the significance of the words emphasised see next paragraph). Miss Yerrell relied on s. 1 7(2)(a) of the 1978 Act, which provides that where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears, any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted, and on s. 23 by which the provisions of the 1978 Act itself are made to apply for the future to subordinate legislation.
20. It seems to me that this part of the argument fails at this point, because the provisions of s. 23 making the relevant provisions of the 1978 Act apply to subordinate legislation, and making references to an "enactment" include subordinate legislation, apply only to subordinate legislation made after the commencement of the 1978 Act, and the Child Benefit Regulations were made in 1976. There was no corresponding provision to s. 23 in the repealed 1889 Act and the important qualification in s. 25(2) of the 1978 Act that its incorporation by reference is only "as it applies to Acts passed at the time of the reference" has the effect that the relevant provisions about references to subordinate legislation under s. 23(2) are not made to apply, since these are stated in terms to apply only to Acts passed after the commencement of the 1978 Act itself.
21. The alternative route is by reg. 1(4)(b) of the Child Benefit Regulations already noted, by which any reference in those regulations to "any provision made by or contained in any ... instrument shall be construed as a reference to that provision as amended or extended by any ... instrument and as including a reference to any provision which may re-enact or replace it, with or without modification". This is plainly apt to refer to statutory instruments such as those made under the Children Acts about boarding out or fostering of children. To summarise them again these are, so far as relevant:

(1) the 1955 Regulations referred to in reg. 16(8), made under the Children Act 1948, and revoked in 1988;

(2) the 1988 Boarding Out of Children (Foster Placement) Regulations, made under the Children Act 1980, and revoked in 1991;

(3) the 1991 Foster Placement Regulations, made under the Children Act 1989, which were the only ones of any effect on 19 July 1993.

22. An initial question is whether reg. 1(4)(b) can extend to any instrument beyond the first one which replaces the one actually named in the Child Benefit Regulations, since literally the 1991 Regulations did not re-enact or replace any provisions mentioned in reg. 16(8), but only those of the intermediate regulations made in 1988. However to reject the "updating" argument on this ground would in my view be adopting an over literal approach, and to give practical effect to reg. 1(4)(b) the reference in reg. 16(8) to the 1955 Regulations can in my judgment be construed as extending to the provisions of the 1991 Regulations insofar as on a proper reading they (directly or indirectly) re-enact or replace the original 1955 provisions expressly referred to.

The second point: for "boarding-out" read "placement"?

23. That does not however conclude the matter in favour of the adjudication officer's appeal, since the excluded category under reg. 16(8) is for children "boarded out" under the 1955 Regulations and no mention whatever of "boarding out" appears in the 1991 Regulations (except in the name of the 1988 Regulations when revoked in reg. 17). Again adopting a literal interpretation, there is nothing in reg. 1(4)(b) that in terms alters the reference to "boarding-out" and there is no "boarding-out" under the provisions of the 1991 Regulations, which throughout use the wider expression "placement". I am however persuaded by Miss Yerrell's argument that this too involves too literal minded an approach and that the true position is that reg. 16(8) is capable of applying to any arrangement, by whatever name called under the 1991 Regulations, which in fact amounts to the same thing as a "boarding-out" under the revoked provisions of the 1955 Regulations. I do not for example think that
    s. 17(2)(a) Interpretation Act 1978 would be prevented from applying to a new Act referring to bicycles just because the repealed provisions of an earlier Act it replaced had called them velocipedes, when both provisions were in fact talking about the same thing.
24. Accepting this, the difficult question with legislation such as that dealing with children, which has of course seen considerable development and change since 1948, is whether a change of label also covers a change of content. Miss Yerrell fairly and rightly conceded that a provision such as reg. 1(4) for up-dating statutory references could not properly be given the effect of altering any of the substantive conditions of the social security legislation itself by a sidewind; so that any updating of references by reg. 1(4)(b) must still leave any exclusion from child benefit under reg. 16(8) within the scope of the provision as it stood originally. Any other conclusion would mean that the effect of the legislation could be altered without the procedures and safeguards prescribed by Parliament under the Social Security Acts having to be adhered to. The question thus becomes the one considered by the tribunal in their second reason for allowing the appeal, namely whether the arrangement in fact entered into for Chloe was identifiable at all with a "boarding-out" arrangement under the provisions having effect in 1955 and 1976.
25. Miss Yerrell pointed to the similarities running through the primary and subordinate legislation from 1948 to the present day as demonstrating that this test was in fact satisfied. By s. 13 Children Act 1948, a local authority was to discharge its duty to provide accommodation and maintenance for a child in its care either "(a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or (b) where it is not practical or desirable for the time being to make arrangements for boarding-out, by maintaining the child in a home provided under this Part of this Act ..." The 1955 Regulations were made to supplement s. 13(1)(a): by reg. 1 they were declared to apply to the boarding of a child in care by a local authority with foster parents to live in their dwelling as a member of their family, with references to "boarding out" to be construed as references to such a boarding, and various exclusions such as a child put into the care and possession of persons proposing to adopt him. Reg. 2 provided that a child was not to be boarded-out under the 1955 Regulations except with a married couple jointly, a woman alone, or a man who was a grandfather or other close relative; but was revoked in 1982 by amendment regulations; although nothing turns on it in the present case, a boarding-out after 1982 with a person prohibited under the original 1955 Regulations provides an example where there would be doubt whether it was within the scope of reg. 16(8), since this would alter the substance of the original exclusion.
26. The 1955 Regulations contained detailed provisions governing "boarding out" arrangements. Less elaborate provisions applied to arrangements intended to last for eight weeks or less, but is quite plain from the definitions in regs. 1 and 32, and the references to "boarding-out" throughout, that the expression applied to all arrangements of whatever length provided that they took effect under the regulations and the local authority's powers under s. 13(1)(a) of the 1948 Act. On the crucial question of what is meant by "boarding" there was no further guidance beyond whatever can be inferred from the express reference to payment under s. 113(1)(a).
27. The 1988 Regulations were made under powers in s. 22(1) Child Care Act 1980 for the Secretary of State to make regulations providing for the welfare of children "boarded out by local authorities under s. 21(1)(a) of this Act." Section 21 (1)(a) made provision for a local authority to discharge their duty to provide accommodation and maintenance for a child in their care by boarding him out on terms as to payment and otherwise, repeating the provisions of s. 13(1)(a) of the repealed 1948 Act. Section 21(1) differed however from s. 13(1) of the former Act in the powers about childrens' homes, and by including at the end as an alternative method of making provision for a child's accommodation and maintenance a power to make "such other arrangements as seem appropriate to the local authority" which had not been present in the former s. 13. This was amplified by a new sub-s. (2) stating that without prejudice to the generality of sub-s. (1), a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend.
28. It is thus quite clear that under the provisions of this Act, a local authority might now make other "appropriate" arrangements for a child in care to remain with a relative for a fixed or indefinite period and that such an arrangement would not be a boarding out under s. 21(1)(a), and would not be within the scope of any regulations made under s. 22(1). The scope of the 1988 Regulations is governed by
    s. 22(1)(a) which limits them to a boarding out under s. 21(1)(a), and by regulations 1 and 2, which define the expression "placement" now used throughout the regulations as "a boarding out to which these regulations apply". Thus despite the change in terminology to "placement" and new provisions, under which there could be no "placement" with foster parents unless the household in which the child was to live had been approved by the local authority, the "placement" arrangements governed by the regulations were limited to cases where the child was being boarded out under the powers in s. 21(1)(a) of the 1988 Act. Save in the case of what was now described as an emergency placement under reg. 9 for a maximum of six weeks, a local authority might not make arrangements for placement in a household which had not been formally approved, but the only arrangements that could be made (for whatever period) under the regulations were those amounting to boarding out arrangements under s. 21(1)(a). The regulations neither covered nor precluded the making of some other arrangement for a child to live with a relative under the residual powers in s. 21 (1) and (2).
29. These regulations were followed by the Children Act 1989, which made major changes in child care law following a Departmental review and a white paper, and a widespread acceptance of the need for comprehensive reform in the light of events such as those disclosed by the Jasmine Beckford inquiry. The Child Care Act 1980 as well as much other legislation was completely superseded and in due course the 1988 Regulations were replaced by the more elaborate provisions of those in 1991 dealing with foster placement, under which the process of mandatory approval now applied to foster parents as distinct from households. It is obviously increasingly difficult to apply such a provision for future up-dating as reg. 1(4)(b) of the Child Benefit Regulations to subsequent legislation which although covering the same subject matter, introduces substantial reform and may have a completely different shape from that of the original provisions, and this underlines the limitations and difficulties of this sort of attempt at legislation by reference. Whether reg. 16(8) can apply in the present case depends on what the post 1991 provisions actually do.
30. Under s. 23(1) of the 1989 Act, it is the duty of any local authority looking after a child to provide accommodation for him while in their care and to maintain him in other respects apart from providing accommodation. The expression "looking after" is defined by s. 22(1) as meaning having a child in their care or providing him or her with accommodation in the exercise of certain statutory functions. By s. 23(2) a local authority are to provide accommodation and maintenance for any child whom they are looking after, in any of a number of specified ways. The first of these, (a) by placing him with a family, a relative, or any other suitable person "on such terms as to payment ... and otherwise as the authority may determine;" is a provision recognisable as derived to some extent from s. 13(1)(a) Child Act 1948 and s. 21 (1)(a) Child Care Act 1980, but unlike them uses the broad neutral term "placing" without any specific restriction, instead of the previous "boarding-out". Paragraphs (b) to (d) of s. 23(2) provide for the child to be maintained in various types of home and (f) contains the residual power already noted to make such other arrangements as seem appropriate to the local authority. Under sub-s. (6) any local authority looking after a child is now required to make arrangements to enable him to live with a parent, relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare. There has thus been a substantial shift of emphasis away from the previous practice of placing a child with an unconnected "professional" foster parent and thus from the more commercial type of arrangement suggested by the natural meaning of the expression "boarding-out".
31. In this context, there is in my judgment no restriction of placements made under s. 23(2)(a) of the Children Act 1989, or of regulations made to govern such placements, to those arrangements formerly counting as "boarding-out". Indeed the whole tenor of the new child care legislation appears to me in favour of a broader ambit for both placements and regulations, to enable local authorities at the same time to exercise control over the people and homes into whose day to day charge children are put, and to retain flexibility as to the type of arrangement which is most suitable for each case. Accordingly, in my judgment, while placement arrangements under the 1991 Regulations may include what would formerly have been called "boarding-out" arrangements under the earlier regulations, they are in no way limited to them. Reg. 2(1)(a) states that the regulations apply to any placement of a child by a local authority under s. 23(2)(a) of the 1989 Act, but for that purpose the expression "placement" is not artificially restricted, as it was under the 1988 regulations, to an arrangement for boarding-out. The whole of the 1991 regulations must in my view be read with this mind.
32. I have already summarised the relevant provisions of the 1991 Regulations and it is only reg. 11(3) (immediate placement of a child for not more than six weeks with a person who is not an approved foster parent) that is in point here. I can find nothing in reg. 11(3) (restricted as it is to immediate placements with a relative or friend of the child) to confine it to arrangements of a commercial nature and ex hypothesi it applies only to people who are not "professional" foster parents approved to take in foster children generally. Accordingly, for reg. 16(8) to apply it is not enough to find that a particular placement has been made in accordance with reg. 11 and the individual circumstances of each such arrangement have to be looked at in order to see if they can be identified as within the narrower class of "boarding-out".
33. In my judgment, the claimant's argument, which was accepted by the tribunal, is correct: that as a matter of ordinary language "boarding" or "boarding-out" is apt to describe an arrangement having some commercial or professional aspect, such as that the child is taken in for payment, or that the foster parent is undertaking the job for professional reasons. It is wholly inapt to describe the case of grandparents taking in their grandchild for no payment, out of natural love and affection and concern for her as a member of their immediate family. Although there can be no possible criticism of the adjudication officer or Miss Yerrell for mounting the argument against the difficult legislative background I have outlined, to describe the arrangement in the present case as Chloe being "boarded-out" with her grandparents (with its connotations of "taking in boarders") is really something of an insult to their motives, as well as to the ordinary meaning of language.
34. In view of the wider ambit of the 1989 Act and the 1991 Regulations as I have sought to explain it above, I do not consider that I am bound to distort the ordinary meaning of language by holding that the arrangement in this case must fall within a "boarding-out" under reg. 16(8) Child Benefit Regulations just because it was made by the local authority in exercise of their powers under reg. 11 of the 1991 Foster Placement Regulations. In my judgment therefore, the initial arrangement under which Chloe was taken in by her grandparents from 19 July 1993 did not count as "boarding-out" for the purposes of reg. 16(8) of the Child Benefit Regulations and the entitlement to child benefit for those weeks was, for the second reason given by the tribunal, not excluded.

The intent of the legislation

35. This result appears to me to be consistent with the approach adopted by the Commissioner in case R(F) 1/91 on a different, though related question of the extent of "boarding-out" under reg. 16(5)(b) and the Scottish child care provisions there referred to. He held that fostering was the generic description of placements under the regulations and "boarding-out" was included as a particular variety of fostering, being in practice a commercial arrangement, so that it was readily understandable that a foster parent in receipt of a fostering allowance should not also be entitled to child benefit. On the other hand where relatives are stepping into the shoes of a parent for family reasons there is no logic in their exclusion from child benefit and no reason to place a dubiously extended meaning on "boarded-out" (see paras. 11-13 of his decision).
36. I am also strengthened in my conclusion by my complete inability to discern any reason why Parliament should have intended a person in the claimant's position looking after his granddaughter to be deprived of child benefit by the fact that she was the subject of a formal care order. To hold that this alone excluded her from child benefit even though no boarding out allowance was paid for her would involve imputing to Parliament an intention that children without parents to care for them and having to live with relatives should sometimes qualify for no financial help at all, not even child benefit. That would be a ridiculous result for children who in the nature of things, are likely to be among the most vulnerable and deserving of the help child benefit is intended to give.
37. On behalf of the adjudication officer it was suggested that any fault lay with the local authority for making no payment and that instead of seeking child benefit in such cases the grandparents' remedy was in s. 26(3) Children Act 1989, under which foster parents may make representations to the local authority about the terms of their fostering arrangements. The claimant, it was said, could seek to persuade the local authority to make payments to him as a matter of discretion, although it was acknowledged that he had no way of insisting. I regard this as a wholly unrealistic and inadequate answer. With current constraints on local authority funding and local authority treasurers forced by central government to adopt a hardnosed attitude to all avoidable spending, the claimant would have no negotiating position at all, as both sides would be well aware that he and his wife would never turn their granddaughter out on to the street even if left to shoulder the whole financial burden themselves. The solution I have arrived at on the meaning of the language is I think more consistent with any likely intention of Parliament than having children such as Chloe used in effect as shuttlecocks in squabbles between central and local government over funding.
38. For the reasons I have given, the adjudication officer's appeal is dismissed and the decision of the social security appeal tribunal of 31 May 1994 is affirmed.

Date: 2 June 1995 (signed) Mr. P. L. Howell QC

Commissioner