UKSSCSC CF_5791_1997 (08 June 1998)
Mr. P. L. Howell QC CF/5791/1997
Persons subject to immigration control - transitional provision - whether child benefit "is being paid"
The claimant had limited leave to remain in the United Kingdom and had satisfied the conditions for entitlement to child benefit since 23 September 1996, save that she did not claim until 11 December. On 7 October 1996, section 146A of the Social Security Contributions and Benefits Act 1992 came into force to provide that persons subject to immigration control would not be entitled to child benefit unless they satisfied prescribed conditions. Regulation 14B(g) of the Child Benefit (General) Regulations 1976 afforded entitlement to "a person … who immediately before 7 October 1996 is being paid child benefit".
The adjudication officer awarded the claimant child benefit only from 23 September 1996 to 6 October 1996. On appeal, a tribunal held that, as the adjudication officer had retrospectively awarded benefit for the period to 6 October, the condition in regulation 14B(g) was satisfied and they made an indefinite award of child benefit. The adjudication officer appealed to the Commissioner.
Held, allowing the appeal, that:
- regulation 14B(g) was quite unambiguous in prescribing an exception to the cut-off imposed by the primary legislation from 7 October 1996 only where the claimant was in fact being paid child benefit immediately before that date (paragraph 11);
- the undoubted hardship for people caught on the wrong side of the line drawn by Parliament fell far short of the kind of repugnancy which might justify departing from the actual words used (paragraph 12);
- as a result, the words could not be construed so as to include a case where the benefit was not being paid before 7 October 1996 but was only claimed, awarded and paid in respect of that period some months afterwards.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"146A. No person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 shall be entitled to child benefit for any week unless he satisfies prescribed conditions."
"(g) a person ... who, immediately before 7 October 1996, is being paid child benefit, save that this paragraph shall apply only until such time as that person's entitlement to that benefit is reviewed under section 25 of the Social Security Administration Act 1992."
This condition was inserted by a second set of amending regulations made on 3 October 1996 and laid the following day, by way of substitution for an initial abortive attempt at a saving provision for existing recipients of child benefit that was revoked and never brought into force at all: see Child Benefit (General) Amendment Regulations 1996 SI No. 2327; Child Benefit (General) Amendment (No. 2) Regulations 1996 No. 2530.
Date: 8 June 1998 (signed) Mr. P.L. Howell