UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CIS_11441_1995 (03 October 1996)


 


MR/JW/LB/2W

Commissioner's File: CIS/11441/95

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal is brought by the claimant with the leave of the tribunal chairman against the decision of a social security appeal tribunal, whereby they dismissed her appeal against a decision of an adjudication officer to the effect that she was not entitled to income support from 16 September 1994. At the oral hearing before me, the claimant was ably represented by Ms Lorna  Findlay, instructed by Mr Richard Poynter, solicitor of London  N8, and the adjudication officer was equally ably represented by Ms  Rachael Perez of the Office of the Solicitor to the Departments of Social Security and Health.
2. The facts of the case are not in dispute. In September 1994, the claimant was aged only 16. Her father had died in 1990 and, in the light of subsequent events, she had been made the subject of a care order in 1991. Her mother, who was the only natural person having parental responsibility for her, was living with a man who had been convicted of an offence within Schedule 1 to the Children and Young Persons Act 1933 and consequently the claimant was not allowed to live with her, although she visited her once a month under supervision. At first, the local authority had placed the claimant with foster parents. However, as a result of her violent and aggressive behaviour towards two different families, she was placed in a community home in August 1993. While there, she continued to be aggressive and inflicted injuries on other residents, on staff and on herself. She was twice found guilty of criminal offences arising out of her behaviour in the community home. At about the time she reached the age of 16 in July 1994, a review panel, meeting in pursuance of the local authority's duty to review from time to time the case of each child in their care, decided that it was necessary for the claimant to live in accommodation where she could be as independent as possible. That decision was consistent with the claimant's own desire, with the local authority's general policy of promoting independent living for all young people at the earliest opportunity and, I am told, with a recommendation of a court. The claimant was therefore given assistance to find suitable accommodation and she chose to rent accommodation from a housing association. She moved to that accommodation on 16 September 1994. The Director of Social Services acted as guarantor of her tenancy agreement. The claimant continued in full time education and also continued to receive psychiatric counselling. No steps were taken for the discharge of the care order. It appears that the claimant wished to see the order continue in force for "emotional" reasons. The claimant continued to have personal contact with her social worker but the contact was fairly limited, consisting of a regular three-monthly visit and the monthly supervision of her visits to her mother. The local authority's social services department met the claimant's liability for council tax and, only because her claim for income support had been rejected, also provided her with a weekly payment equivalent to her claimed entitlement to income support. Her liability for rent was met through housing benefit. Whether or not a court would have discharged the care order had an application been made, I cannot say, but I accept that the claimant received no more help from the social services department than a young person in her position would have received in the absence of a care order.
3. Section 124(1) of the Social Security Contributions and Benefits Act 1992 provides:-

"A person in Great Britain is entitled to income support if -

(a) he is of or over the age of 18 or, in prescribed circumstances and for a prescribed period, of or over the age of 16 or he is a person to whom section 125(1) below applies;

(b) he has no income or his income does not exceed the applicable amount;

(c) he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged; and

(d) except in such circumstances as may be prescribed -

(i) he is available for, and actively seeking, employment ;

(ii) he is not receiving relevant education.

It has been decided that section 125(1) did not apply to this claimant and that decision has not been challenged. It is not suggested that the claimant was looking for work and it is conceded that she was receiving "relevant education" within the terms of regulation 12 of the Income Support (General) Regulations 1987 (hereinafter "the 1987 Regulations"). Accordingly, at first sight, it would appear that the claimant was not entitled to income support on three grounds: she was under the age of 18, she was not available for, and actively seeking, employment and she was receiving relevant education.

4. However, before the tribunal it was argued on the claimant's behalf that, when she moved to her new accommodation on 16 September 1994, the provisions of regulation 13(2)(d) and (dd) of the 1987 Regulations applied to her. Regulation 13(2) and (3)(a) of the 1987 Regulations provides:

"(2) This paragraph applies to a person aged 16 or over but under 19 (hereinafter referred to as an eligible person) who -

(a) is the parent of a child for whom he is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) and who is treated as a member of his household under regulation 16 (circumstances in which a person is to be treated as being or not being a member of the household); or

(b) is severely mentally or physically handicapped and because of that he would be unlikely, even if he were available for employment, to obtain employment within the next 12 months; or

(c) has no parent nor any person acting in the place of his parents; or

(d) of necessity has to live away from his parents and any person acting in the place of his parents because -

(i) he is estranged from his parents and that person; or

(ii) he is in physical or moral danger; or

(iii) there is a serious risk to his physical or mental health; or

(dd) has ceased to live in accommodation provided for him by a local authority under Part III of the Children Act 1989 (local authority support for children and families) and is of necessity living away from his parents and any person acting in place of his parents; or

(e) is living away from his parents and any person acting in the place of his parents in a case where his parents are or, as the case may be, that person is unable financially to support him and -

(i) chronically sick or mentally of physically disabled; or

(ii) detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

(iii) prohibited from entering or re-entering Great Britain; or

(f) is attending a course of education to which regulation 9 (persons treated as available for employment) applies and satisfies the other conditions of that regulation; or

(g) has completed or terminated such a course and while attending that course satisfied the other conditions of that regulation; or

(h) is a person to whom paragraph 16 of Schedule 1 (refugees not required to be available for employment) applies.

(3) In this regulation-

(a) any reference to a person acting in the place an eligible person's parent includes -

(i) for the purposes of paragraph (2)(c), (d) and (dd), a reference to a local authority or voluntary organisation where the eligible person is being looked after by them under a relevant enactment or where the eligible person is placed by the local authority or voluntary organisation with another person, that other person, whether or not a payment is made to him;

(ii) for the purposes of paragraph (2)(e), the person with whom the person is so placed;...."

The tribunal rejected the submissions made on behalf of the claimant, holding in relation to regulation 13(2)(dd) that the accommodation to which the claimant moved on 16 September 1994 was provided by the local authority under Part III of the Children Act 1989 and holding in relation to regulation 13(2)(d) that the claimant was neither living away from, nor estranged from, the local authority who, by virtue of regulation 13(3)(a)(i), had to be regarded as acting in the place of the claimant's parents.

5. It is common ground that, if regulation 13(2)(d) or (dd) of the 1987 Regulations did apply to the claimant, the combined effect of regulation 13(1) of, paragraph 10 of Schedule 1 to, and paragraph 1 of Schedule 1A to, those Regulations would entitle her to income support. I need not set out those provisions. The case turns on the construction of regulation 13(2) and (3)(a).
6. Ms Findlay first argued that the tribunal had erred in holding that, from 16 September 1994, the claimant had not, for the purposes of regulation 13(2)(dd) of the 1987 Regulations, ceased to live in accommodation provided for her by the local authority under Part III of the Children Act 1989. Among the provisions of Part III of the 1989 Act is section 23(1) and (2) which provides:-

"(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.

(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by -

(a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with -

(i) a family;

(ii) a relative of his; or

(iii) any other suitable person,

on such terms as to payment by the authority and otherwise as the authority may determine;

(b) maintaining him in a community home;

(c) maintaining him in a voluntary home;

(d) maintaining him in a registered children's home;

(e) maintaining him in a home provided by the Secretary of State under section 82(5) on such terms that the Secretary of State may from time to time determine; or

(f) making such other arrangements as -

(i) seem appropriate to them; and

(ii) comply with any regulations made by the Secretary of State."

Only section 23(2)(f) of the 1989 Act could have any application in this case. Essentially, Ms Findlay argued that the accommodation to which the claimant moved on 16 September 1994 was "provided" by the housing association under arrangements made by the claimant, whereas Ms Perez relied heavily on the duty to provide accommodation imposed on the local authority by section 23(1) of the 1989 Act and submitted that arrangements in this case were made by the local authority in fulfilment of that duty and that the local authority therefore "provided" the accommodation. Ms Findlay replied by submitting that there could be no duty on the local authority to provide accommodation if satisfactory accommodation was being provided by other means. She also pointed out that section 23(2)(f)(ii) required that any arrangement should comply with regulations and she suggested that many of the provisions of the Arrangements for Placement of Children (General) Regulations 1991 were not appropriate to a child living independently.

7. There is much force in the arguments on both sides but I have come to the conclusion that Ms Perez is right on this point and that the new accommodation was provided by the local authority under Part III of the 1989 Act. Because the claimant was in care, there was a continuing duty on the local authority to provide accommodation. That was a duty not only to secure that accommodation became available but also to ensure that it remained available. Although the claimant may have had a considerable hand in making the necessary arrangements, that was done under the supervision of the local authority and the local authority were obliged to approve the arrangements and did so. In those circumstances, I take the view that the local authority were "making... arrangements" even though the claimant was also making arrangements and, to that extent, the local authority were providing the accommodation in fulfilment of their duty. There is no evidence that the arrangements were in any way inconsistent with those provisions of the Arrangement for Placement of Children (General) Regulations 1991 that might have had any application to her case and I do not think it is significant that some of the provisions of those Regulations would not have had any application. I am therefore of the view that the tribunal did not err in holding that the claimant had not ceased to live in accommodation provided for her under Part III of the Children Act 1989 and, accordingly, that the provisions of regulation 13(2)(dd) of the 1987 Regulations were not satisfied in her case.
8. I therefore turn to the questions arising under regulation 13(2)(d) of the 1987 Regulations. It was not disputed that regulation 13(3)(a) (i) applied in this case and that references to a person acting in place of the claimant's parents in regulation 13(2)(d) included a reference to the local authority. Regulation 13(3)(a) was substituted in consequence of the Children Act 1989 coming into effect (see regulation 12 of, and paragraph 2 of the Schedule to, the Income Support (General) Amendment Regulations 1992 and also paragraph 11 of the Schedule to those Regulations which restricts its ambit to England and Wales) and, in relation to local authorities, the phrase "being looked after" must be given the same meaning that it has in the 1989 Act. Section 22(1) of the 1989 Act provides:-

"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 of this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970".

It is not strictly necessary for me to consider the meaning of the phrase "being looked after" in relation to voluntary organisations but, in the light of Part VII of the 1989 Act, I incline to the view that it refers to a person being provided with accommodation by the voluntary organisation, which would be consistent with its meaning in those cases where section 22(1)(b)applies.

9. The first disputed question which arises under regulation 13(2)(d) of the 1987 regulations is whether, when she moved to her new accommodation, the claimant was a person who had come "to live away from" the local authority. That is an odd concept and, indeed, it is so odd that in R(SB)2/87 a Commissioner considering earlier legislation decided that it was not possible for a claimant to be said to be "living away from" a local authority. "The local authority, being a metaphysical concept cannot live anywhere." However, I am considering different legislation and the terms of regulation 13(3)(a)(i) make it clear that the phrase "live away from" has a meaning in relation to local authorities. In this context, the question whether a claimant is living away from a local authority is obviously not to be determined by considering whether or not the claimant lives within the borough boundaries. The tribunal took the view that the claimant in this case could not be said to "live away from" the local authority as long as she lived in accommodation provided for her by them. Ms Findlay submitted that regulation 13(3)(a)(i) would not have been drafted in the way it was if "live away from" in regulation 13(2)(d) had the meaning placed on it by the tribunal. In particular, she argued that it would have been unnecessary for the 1992 amendment to regulation 13(3)(a)(i), which was made at the same time as regulation 13(2)(dd) was introduced, to have been applied to regulation 13(2)(d) if the tribunal were right, because any case where a person lived away from the local authority would be one where he or she had ceased to live in accommodation provided by the local authority under Part III of the 1989 Act and so would fall within regulation 13(2)(dd). Ms Perez countered that argument by submitting that regulation 13(3)(a)(i) was applied to regulation 13(2)(d) out of an abundance of caution because it was conceivable that a child in care might abscond before being placed in accommodation and so would not have "ceased" to live in accommodation provided by the local authority.
10. Be that as it may, there seems to me to be another respect in which the wording of regulation 13(3)(a)(i) (both before and after the 1992 amendment) throws some light on regulation 13(2)(d). The last part of regulation 13(3)(a)(i) has the effect that, where a claimant is placed "with another person", the reference in regulation 13(2)(d) to a person acting in the place of the claimant's parents is a reference to the person with whom the claimant has been placed and not to the local authority. It is not necessary for me to determine in this case whether another "person" refers only to a person with whom a child is placed under section 23(2)(a) of the 1989 Act or whether it refers also to a home in which a child is maintained pursuant to section 23(2)(b) to (e). In either event, if the Tribunal's construction were correct, I think the last part of regulation 13(3)(a)(i) would be unnecessary. Furthermore, it serves to make the point that one can only "live away from" a person or an institution containing people. It is to be noted that the person from whom the claimant lives away is the same as the person from whom he or she is "estranged" in a case to which regulation 13(2)(d)(i) applies. One cannot be estranged from empty premises. It seems to me that a claimant lives away from a local authority if he or she is living away from a community home run by that authority or, perhaps, some other home in which a claimant has been placed. In other words, a person lives away from a local authority if he or she lives away from people representing the authority. I have come to the conclusion that a child who lives by herself must be regarded as living away from a local authority and, in my view, the tribunal erred in law in not holding that the present claimant lived away from the local authority from 16 September 1994.
11. The next question is whether the claimant was a person who "of necessity has to" live away from her parents and the local authority. It is not disputed that she had of necessity to live away from her mother because she would otherwise be in physical or moral danger. Ms Finlay submitted that, if living alone amounted to living away from the local authority, the fact that the review panel decided that the claimant should live alone made it necessary for the claimant to do so. I am not sure that I would accept that argument in all cases because a review panel might choose such an option when others were perfectly workable and the claimant had no strong views. However, in the present case, there is evidence that the review panel regarded it as necessary for the claimant to live alone because it was impossible to maintain her in any sort of home or with foster parents and I accept that "of necessity" this claimant had to live away from the local authority.
12. Finally, there is the question whether the claimant was "estranged" from the local authority. Ms Perez accepted that a child could be estranged from a local authority and that the tribunal had erred in stating the contrary. The terms of the legislation are clear and obviously intended to reverse R(SB)2/87 despite the difficulties. It seems to me, however, that consistency with the interpretation I have given to the phrase "live away from", requires that "estranged" refer to estrangement from the community home where the local authority had placed the claimant. In this case, the fact that the review panel felt it necessary for the claimant to live independently due to her behaviour in the community home clearly shows such estrangement. The fact that the claimant wished the care order to continue and received some assistance from the local authority does not alter the fact of estrangement. A child may be estranged from her parents and yet have some contact and accept some help. The regulation seems to me to focus on estrangement as a factor causing the claimant to live away from the local authority and does not require estrangement to be a complete rejection of any contact.
13. Accordingly, I find that regulation 13(1)(d) of the 1987 Regulations was satisfied in respect of this claimant from 16 September 1994. This has the effect that she was, prima facie, entitled to income support and so would not require maintenance from the local authority. I do not think that that is an unreasonable conclusion. There is no general provision to the effect that a child in care cannot be entitled to income support. Local authorities are effectively placed in the same position as parents. Normally a child aged under 19 in relevant education is not entitled to income support and so has to be maintained by his or her parents. Regulation 13 has the effect of relieving parents of that burden in appropriate cases and, in my view, removes the burden from local authorities to the same extent.

14. It follows that I must set aside the decision of the tribunal. I do not understand there to be any dispute between the parties on any other matter arising on the claim in this case. The parties were agreed that there had been changes of circumstances since 16 September 1994. It is, I think, sufficient that I should state that from that date the claimant was entitled to income support. If any further dispute as to the amount of her entitlement does arise, it must be referred to me or another Commissioner.

14. I allow the claimant's appeal.

(Signed) M Rowland

Commissioner

(Date) 3 October 1996