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Cite as: [1998] UKSSCSC CF_5791_1997

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[1998] UKSSCSC CF_5791_1997 (08 June 1998)

R(F) 1/99

Mr. P. L. Howell QC CF/5791/1997

8.6.98

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

This appeal by the adjudication officer must be allowed, as in my judgment it is unanswerable. The tribunal decision of 18 July 1997, holding the claimant entitled to child benefit from 7 October 1996 on the ground that she fell within a special provision of the child benefit regulations for people being paid that benefit immediately before that date when in fact she was not, was clearly in error in law and I set it aside. I exercise the power in s. 23(7)(a) Social Security Administration Act 1992 to substitute my own decision, confirming that of the adjudication officer issued on 9 February 1997, that the claimant was entitled to child benefit for her four children from 23 September 1996 to 6 October 1996 (both dates included) but not from 7 October 1996 onwards.

I held an oral hearing of this appeal which had been directed at the claimant's request. Simon Cox of counsel, instructed by David Thomas, solicitor, appeared on her behalf and the adjudication officer was represented by Nathalie Lieven of counsel, instructed by the solicitor to the Department of Social Security. I am grateful to them both for their able skeleton arguments and oral submissions.

The claimant is a Nigerian national now aged 35, employed at the University of Bradford. She originally arrived in this country on 28 January 1992 and at all material times her immigration status has been that she has leave to remain in this country until 31 January 1999. She is married and has four children aged from thirteen to eight, who she initially had to leave in Nigeria with her husband. On 17 September 1996 the family was reunited when he brought the four children into this country to live, and according to the immigration details in the case papers they too were given leave to remain, until at any rate 4 April 1998.

At the times when the claimant, and also her children, came into the country child benefit under Part IX of the Social Security Contributions and Benefits Act 1992 was normally payable in respect of all children living in the care of a responsible adult within Great Britain subject to certain minimum conditions as to the length of time they or their parents had been present here. Those conditions were satisfied in relation to the claimant's four children from the week they arrived. However very shortly afterwards the law was changed with the coming into force on 7 October 1996 of a new s. 146A, inserted into Part IX of the Act as one of a number of provisions introduced with the intention of cutting down the entitlement to social security benefits of people from overseas. This provides that:

"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."

There is no dispute that the claimant's status as a foreign national with leave to remain in the United Kingdom brings her within the class of "persons subject to immigration control" in s. 146A. The effect of the primary legislation was thus that from 7 October 1996 she was deprived of any entitlement to child benefit for her four children unless she fell within one of the "prescribed conditions". These conditions were set out in amendments to the regulations also coming into effect on 7 October 1996. Before me there is no challenge to the validity of the regulations and the sole question is whether the claimant satisfied the one relevant condition or not.

That condition is set out in what is now regulation 14B(g) Child Benefit (General) Regulations 1976 SI No. 965, as amended with effect from 7 October 1996, which prescribes as an exception to the immediate effect of s. 146A:

"(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.

There is and can be no dispute that immediately before 7 October 1996 the claimant was not in fact being paid child benefit in any sense of those words. She was not being paid it then for the simple reason that she had never claimed it. It was not until some two months later on 11 December 1996 that her claim at pages 2-12, signed on 5 December 1996, was received by the Department of Social Security.

After further details had been supplied of the immigration status of the claimant and her children, an adjudication officer made and duly recorded the decision under appeal to the tribunal. This awarded her full child benefit for her four children from 23 September to 6 October 1996 inclusive, but none from 7 October 1996 because of the change in the legislation. Pages 1A and 44 in the appeal file show the actual decision sheet signed by the adjudication officer on 30 January 1997, and the terms of the resultant reasoned decision issued on 9 February 1997 to the effect that the claimant was not entitled to child benefit from and including 7 October 1996 because she was subject to immigration control and did not satisfy the prescribed conditions.

On appeal to the tribunal that decision was reversed, on the grounds explained in the tribunal's statement of reasons dated 18 July 1997 at page 32. These were that as the first part of the adjudication officer's decision had awarded benefit retrospectively for the period 23 September to 6 October 1996 the tribunal considered that the condition that child benefit "is being paid" in regulation 14B(g) should be read as satisfied, by the award later made that entitled the claimant to a payment in respect of the period immediately before 7 October 1996. They commented that the regulation was manifestly intended to be a transitional provision and the class of benefit recipients covered by it inherently limited, but they considered any other construction than the one they adopted would be "perverse and irrational". Consequently they made an indefinite award of child benefit from 7 October 1996. It was common ground before me (though I express no view on whether this is correct) that this would continue until the children became too old for child benefit or the claimant ceased on some other ground than s. 146A to be entitled to it; in which events a review of the entitlement would be warranted under s. 25 Social Security Administration Act 1992 in the normal way.

In my judgment the tribunal erred in law in failing to give effect to the plain words of the legislation before them, as Miss Lieven on behalf of the adjudication officer argued.

Regulation 14B(g) appears to me 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. Mr. Cox tried nobly to persuade me that the words "is being paid" should be read as meaning something other than they actually say, so as to extend the saving provision to people like this claimant who were able to establish an entitlement to the benefit for the earlier period retrospectively on a claim made only some time later. However the fact that such claims were permitted at that time to be made up to six months in arrear, so as to give rise to a payment at a later date if it was shown that the conditions for entitlement had been satisfied at an earlier period, does not seem to me to allow one to rewrite history or the English language by saying that the payment was being made in the earlier period when in fact it was not.

I do not for my part see how the words "immediately before 7 October 1996 is being paid child benefit" can be read in any sense other than testing what the actual state of the facts was at the time; and the contrast between the expressions "is being paid" and "that person's entitlement to that benefit" within the same phrase in regulation 14B(g) is in my judgment conclusive against reading the reference to "payment" in so loose a sense as to include an entitlement only later established. Of course, as Miss Lieven conceded, the words have to be read in a practical sense to cover cases where on 6 October 1996 child benefit for the current week was in payment, and not just where the claimant was physically receiving cash at the last tick of the clock before midnight; but that does not justify ignoring the condition as to current payment altogether which is what Mr Cox's argument would entail. He also relied on the difference of treatment between those claimants who had managed to get their claims in and allowed by the cut-off date and those who had not; but I accept Miss Lieven's argument that the undoubted hardship for people caught the wrong side of the line drawn by Parliament, and outside the partial relief given by regulation 14B, falls far short of the kind of absurdity or repugnancy which might justify departing from the actual words of the legislation.

In the course of argument my attention was drawn to instances where other Commissioners had interpreted references to a person being "in receipt of" benefit, for specific purposes under the supplementary benefit and income support legislation, as including cases beyond the literal meaning of those words in the particular context (see decisions R(SB) 12/87 and R(IS) 10/94): but these were on different words in different legislative contexts and were not of great assistance to me. Nor did I find the various differing phrases used in relation to certain other benefits in regulation 12 Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 SI No. 30, to which my attention was also drawn, much help on the question before me.

For the reasons given above, I allow the adjudication officer's appeal and substitute the decision set out in paragraph one above.

Date: 8 June 1998 (signed) Mr. P.L. Howell

Commissioner