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Cite as: [1996] UKSSCSC CF_44_1993

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McLavey v. Chief Adjudication Officer [1996] UKSSCSC CF_44_1993 (30 April 1996)

R(F) 1/97
(McLavey v. Chief Adjudication Officer)

Mr. A. W. E. Wheller CBE CF/44/1993

CA (Staughton, Aldous and Douglas Brown LJJ)

Child in care - no care order but accommodation provided by local authority - whether "in the care of a local authority"

Two of the claimant's children were placed in local authority accommodation but no care order was made. An adjudication officer held that the claimant was not entitled to child benefit in respect of them because paragraph 1(c) of Schedule 9 to the Social Security Contributions and Benefits Act 1992 provided that there should be no entitlement in respect of a child who "is in the care of a local authority in such circumstances as may be prescribed" and regulation 16(5)(f) of the Child Benefit (General) Regulations 1976, as amended, provided that one such circumstance was where accommodation was provided under section 20 of the Children Act 1989. The decision was upheld by a tribunal and the claimant appealed to the Commissioner, arguing that, since the enactment of the Children Act 1989, there had been a distinction between care provided by a local authority following the making of a care order and the provision of accommodation under section 20, that paragraph 1(c) of Schedule 9 to the 1992 Act referred only to the former situation and that regulation 16(5)(f) was therefore ultra vires. The Commissioner dismissed her appeal and the claimant appealed to the Court of Appeal.

Held, dismissing the appeal, that:

the 1976 Regulations were initially made under the Child Benefit Act 1975 at a time when "care" referred to both care under a court order and voluntary care and, therefore, being "in the care of a local authority" in the 1975 Act could have had two possible meanings, either referring to those two kinds of care or referring to the ordinary natural meaning of "care" when, by whatever route a child is being cared for by a local authority, the child is in the care of the local authority;

Parliament had not intended to change the law relating to child benefit by passing the 1992 Act, which was a consolidation Act, or by enacting the Children Act 1989, under section 105 of which being "in the care of a local authority" was defined as being in their care by virtue of a care order but under section 20 of which the substance of voluntary care also survived;

the phrase "in the care of a local authority" in paragraph 1(c) of Schedule 9 to the 1992 Act did not have the same meaning as in section 105 of the Children Act 1989 but had one of the two possible meanings the phrase had had in the 1975 Act and it was not necessary to decide which (although the Court inclined to the ordinary and natural meaning).

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble (instructed by Messrs Phil Shiner L42 7JU) appeared on behalf of the Appellant.

Mr. J. R. McManus (instructed by the Office of the Solicitor, Department of Social Security WC28 2LL) appeared on behalf of the Respondent.

LORD JUSTICE STAUGHTON: This appeal is about child benefit. It used to be called family allowance and was five shillings a week for the second child and every subsequent child. Now, we are told, it is £8 a week for the first and a little more after that.

Mrs. McLavey lives in Birkenhead and has seven children. We are concerned indirectly with two of them. The first is Paul, born on 18 October 1978, and the second Peter, born on 15 September 1979. In May 1992 Paul was placed in local authority accommodation. That remained the situation until 6 November 1992 when Paul began to spend two consecutive nights each week at home. He was not the subject of a care order under the Children Act. Peter had also been placed in local authority accommodation from 1 July 1992; his situation had not changed in the period up to 18 June 1993. He too was not the subject of a care order.

On those facts the Department of Social Security took the view that Mrs. McLavey ought not to have received child benefit for Paul for the greater part of the period when he was in local authority accommodation, and that she should repay the sum of £132.60 which she had received. The Department also contended that she was not entitled to child benefit in respect of Peter, for most of the time when he was in local authority accommodation. This time they had not paid it; Mrs. McLavey says that they should. The local adjudication officer agreed with the contentions of the Department, so Mrs. McLavey was to repay the £132.60 received for Paul and would not receive benefit for Peter. On appeal that decision was upheld by the social security appeal tribunal. There was a further appeal to the social security Commissioner. He too upheld the decision and he refused leave to appeal to this court. But leave was subsequently granted by Russell LJ.

The point is certainly a short one. Schedule 9 in the Social Security Contributions and Benefit Act 1992 has the title "Exclusions from entitlement to child benefit." There is then a subheading, "Child in detention, care etc." Paragraph 1:

"Except where regulations otherwise provide, no person shall be entitled to child benefit in respect of a child for any week if in that week the child-

(a) is undergoing imprisonment or detention in legal custody;

(b) is subject to a supervision requirement made under section 44 of the Social Work (Scotland) Act 1968 and residing in a residential establishment within the meaning of that section; or

(c) is in the care of a local authority in such circumstances as may be prescribed."

The regulations purported to prescribe conditions under that paragraph. That was done in regulation 16(5) of the Child Benefit General Regulations 1976 as later amended. The regulation provides:

"For the purposes of paragraph 1(c) of Schedule [11] to the Act (child in care of a local authority in such circumstances as may be prescribed) the prescribed circumstances are that the child is-

(f) provided with accommodation by a local authority under sections 20 or 21(2)(c) of the Children Act 1989 (provision of accommodation for children);"

There is also:

"(h) in the case of a local authority pursuant to a care order within the meaning of section 105(1) of the Children Act 1989 (interpretation)."

Those regulations were originally made under the Child Benefit Act 1975. They are now deemed to be made under the Social Security Contributions and Benefit Act 1992. That comes about by virtue of section 17(2) of the Interpretation Act 1978:

"Where an Act repeals or re-enacts, with or without modification, a previous enactment then unless the contrary intention appears,-

(a) any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;

(b) in so far as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision."

It is said that the regulation is now outside the powers of the Secretary of State, because paragraph 1(c) in Schedule 9 must refer to the making of a care order under the Children Act 1989, and not to a child being taken into local authority accommodation under the procedure which used to be known as voluntary care. Hence it is said that there is no longer any power to make a regulation dealing with the second type of care by virtue of paragraph 1(c) of Schedule 9.

This legislation has quite a history. I have already mentioned how it used to be family allowance at five shillings a week. For present purposes we can start with the Child Benefit Act 1975. Paragraph 1(c) of Schedule 1 in that Act was in exactly the same terms, as far material, as paragraph 1(c) of Schedule 9 in the 1992 act. Regulation 16(5) of the 1976 regulations was made under that section. It is conceded that it was validly made. The concept of care in the law relating to a child was at that time rather different from what it is today, there were two kinds of care. First, pursuant to an order of the Magistrates' Court and known as a "care order", a child would be taken into the care of the local authority. There was also what was called voluntary care, when a child was placed in local authority accommodation. Those two kinds of care were dealt with in the Children Act 1948. I can save delving back into that Act by quoting from the Children Act 1980, which was a consolidating Act and re-enacted the 1948 provisions. That Act provided in section 2(1):

"Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of 17-

(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; or

(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child,

it shall be the duty of the local authority to receive the child into their care under this section.

(2) Where a local authority have received a child into their care under this section, it shall, subject to the provisions of this Part of this Act, be their duty to keep the child in their care so long as the welfare of the child appears to them to require it and the child has not attained the age of eighteen.

(3) Nothing in this section shall authorise a local authority to keep a child in their care under this section if any parent or guardian desires to take over the care of the child, and the local authority shall in all cases where it appears to them consistent with the welfare of the child so to do, endeavour to secure that the care of the child is taken over either-

(a) by a parent or guardian of his, or

(b) by a relative or friend of his, being, where possible, a person ..."

That was one system which was laid down, commonly known as "voluntary care", in the legislation about children, the other was a care order. When the Children Act 1989 was enacted those two kinds of care still survived in substance, but only the second of them was thereafter described as being a provision for the child to be in care of the local authority. Section 31 of the 1989 Act dealt with care orders which placed a child in the care of a designated local authority. By subsection (11):

"In this act-

"a care order" means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38;"

Section 105 is the definition section. It says in subsection (1):

"'Care order' has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order."

If the expression in paragraph 1 of Schedule 9 to the Social Security Contributions and Benefit Act 1992, where it refers to a child in the care of the local authority, is regulated by the interpretation in the Children Act 1989, then neither Peter nor Paul were in the care of a local authority .

I have said that the provisions for voluntary care still survive in the Children Act 1989. They are to be found in section 20 and those immediately following it. Section 20(1) provides:

"Every local authority shall provide accommodation for any child in need within their area that appears to them to require accommodation as a result of-

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently or for whatever reason) from providing him with suitable accommodation or care."

Subsection (4):

"A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare."

Subsection (7):

"A local authority may not provide accommodation under this section for any child if any person who-

(a) has parental responsibility for him; and

(b) is willing and able to-

(i) provide accommodation for him; or

(ii) arrange for accommodation to be provided for him

objects."

I need not pause over section 21. Section 22 is headed "General duty of Local Authority in relation to children looked after by them". Subsection (1):

"In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is-

(a) in their care; or

(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970."

Subsection (3):

"It shall be the duty of the local authority looking after any child-

(a) to safeguard and promote his welfare; and

(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case."

Then this is section 23(1):

"It shall be the duty of any local authority looking after a child-

(a) when he is in their care, to provide accommodation for him; and

(b) to maintain him in other respects apart from providing accommodation for him."

It seems to me plain that when a child is in local authority accommodation, within those sections, the local authority has, in the ordinary meaning of language, a duty to care for the child. Indeed, the child is in the local authority's care, although as Mr. Drabble points out, as the child gets older the degree of care needed may diminish. But such a child is not, within the meaning of the Children Act, within the care of the local authority, as the phrase is defined in section 105(1). This change brought about by the Children Act may have arisen by reason of the new concept of parental responsibility which that Act introduced. It may well be that Parliament wished to draw a distinction between those children who, under a care order of a court, were the responsibility of the local authority and those who remained within the parental responsibility of some other person, but were being provided with accommodation and de facto care by the local authority. That, as I say, may be the reason for the distinction. But at all events the distinction has been made.

There are then, as it seems to me, two questions which have to be asked in this case. First, when Parliament enacted the Children Act of 1989, did it intend to do more than create that distinction for the purposes of the Children Act? Did it intend to alter the meaning of the Child Benefit Act 1975, as it then was? If so, the amending regulation which followed the enactment of the Children Act (amending regulations 16(5) by inserting a reference to the Children Act 1989) was outside the powers of the Secretary of State. Secondly, if there was not a change when the Children Act was enacted, did Parliament alter the law about child benefit when it enacted the 1992 Social Security Contributions and Benefit Act? That was a consolidating Act, and there is a presumption that a consolidating Act is not intended to change the law.

In my judgment Parliament did not intend either of those things. The Children Act was concerned with the law about children, their care, protection and such like. It was not concerned with the distribution of money provided by Parliament for social security purposes.

If that be right, what is the present meaning of the words "in care of the local authority" in paragraph 1(c) of Schedule 9 of the 1992 Act. Those words do not, in my judgment, have the same meaning as being in care of the local authority as defined in the Children Act, section 105. What do they mean? There appear to me to be two possibilities. First, that the 1975 Act was referring to the two kinds of care so described which then existed: care pursuant to a care order of the Magistrates, and what was called voluntary care, under the section of the 1948 Act which was re-enacted in section 2 of the Child Care Act 1980.

Alternatively, that the Act was intended to refer to the ordinary natural meaning of "care". When, by whatever route a child is being cared for by a local authority, the child is in care of the local authority. Either of those meanings is quite capable of resulting from the legislation, and it is not necessary for us to decide today which is right. But, if it were, I would incline to the second meaning. It does not seem to me that one should tie the words "in care of the local authority" to what in practice they meant in 1975 when they were first used. It seems to me that one should give them their ordinary and natural meaning.

As it is, I would hold that the decision was right in this case and dismiss the appeal.

ALDOUS LJ: I also believe that the decision was right for the reasons given by my Lord. I also would dismiss the appeal.

DOUGLAS BROWN J: I agree.

Order: Appeal dismissed with costs. Legal aid taxation for appellant's costs. Leave of appeal to house of lords refused.