UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_3544_2002 (19 December 2002)

 


Commissioner's case no: CIS/3544/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Secretary of State, brought with my leave, against a decision of the Ipswich Appeal Tribunal made on 27 March 2002. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal and set aside the Tribunal's decision. Further, in exercise of the power in s.14(8)(a)(i) of the Social Security Act 1998 I make the decision which the Tribunal ought in my judgment to have made, namely to dismiss the Claimant's appeal against the Secretary of State's decision, as revised on 27 September 2001, that the Claimant was not entitled to a child maintenance bonus.

2. The Claimant is a woman now aged about 37 who was in receipt of income support as a lone parent from 13 March 1997. At times between 1995 and 11 April 2000 she was also in receipt of child support maintenance payments made by her former partner in respect of their two daughters, who were living with the Claimant. Those payments were made pursuant to assessments made under the Child Support Act 1991.

3. Since 7 April 1997 there has been in existence a benefit called child maintenance bonus which, very broadly stated, becomes payable when a person on income support returns to work, and accrues in respect of a bonus period – i.e. a period during which the claimant was entitled to child support maintenance and which terminated not more than 14 days before the claimant returned to work.

4. On 5 February 1998, 12 March 1998 and at 6 monthly intervals thereafter the Claimant received estimates from the Benefits Agency stating the amount of child maintenance bonus which had accrued. The last such statement, which was dated 8 March 2001, stated: "our records show that you have built up a child maintenance bonus of £806.43.

5. The Claimant returned to work on 30 August 2001, and claimed child maintenance bonus on 3 September 2001. She says that at about the time of completing this claim she was advised by a member of the staff at the Jobcentre that she could claim child maintenance bonus and that it was of the order of £800. Further, according to the written submission to the Tribunal on behalf of the Claimant, "in view of this information [the Claimant] borrowed money to enable her to pay rent in advance and buy equipment for her employment as a hairdresser. As a result of the non-payment she is still repaying the money owed."

6. The amounts of child support maintenance in fact payable to the Claimant (which I take from p.96 of the papers) were as follows:

April 1995 to 3/12/98: £22.04 per week

3/12/98 to 26/1/00 nil

27/1/00 to 10/4/00 £6.39 per week

11/4/00 onwards nil

However, during the periods when nothing was payable, there was a child maintenance assessment in force, but in the sum of nil owing to the absent parent's income.

7. On 10 September 2001 a decision was made that the Claimant was entitled to £354.29 by way of child maintenance bonus. That was calculated on the footing of an entitlement of £5 per week in respect of the period between 4 February 1998 and 14 June 1999. Why the period of that calculation terminated on 14 June 1999 does not emerge from the evidence. The Claimant was issued with a giro cheque for that amount.

8. On 19 September 2001 the Claimant visited the Ipswich caller section and returned the cheque, firstly because it had been made out to the wrong name, and secondly because she said that she should be entitled to the higher amount of in excess of £800.

9. On 27 September 2001 a revised decision was issued, namely that the Claimant was not entitled to child maintenance bonus. The Claimant appealed on 8 October 2001.

10. The Tribunal allowed the appeal. Its Decision Notice reads: "The appellant is entitled to a child maintenance bonus as her entitlement to receive child maintenance did not cease." The Tribunal did not calculate the amount of bonus to which the Claimant was entitled, but its reasoning would appear to lead to the conclusion that she was entitled to £5 per week in respect of those periods set out in para. 6 above when was entitled to more than nil by way of child support maintenance. That would, I think, be a total of very roughly £500.

11. Two of the conditions of entitlement to a child maintenance bonus set out in Reg. 3(1) of the Social Security (Child Maintenance Bonus) Regulations 1996 are:

"(b) the claim relates to days within a bonus period;

(f) the work condition is satisfied within the period of –

(iii) …….. 14 days immediately following the day on which the bonus period applying to the applicant comes to an end."

12. The "work condition" was satisfied when the Claimant returned to work on 30 August 2001 (see Reg. 3(1)(c)). The Claimant was therefore only entitled to a child maintenance bonus if there was a "bonus period" which came to an end no later than 16 August 2001. By Reg. 4:

"(1) A bonus period comprises only days falling on or after 7 April 1997 …….on which

(c) child maintenance is either –

(i) paid or payable to the applicant; or

(ii) retained by the Secretary of State in accordance with section 74A(3) of the Social Security Administration Act 1992;

(2) Any two or more bonus periods separated by any one connected period shall be treated as one bonus period.

(3) For the purposes of these Regulations, "a connected period" is –

(a) any period of not more than 12 weeks falling between two bonus periods to which paragraph (2) refers ….."

13. The argument on behalf of the Claimant, which the Tribunal accepted, was that for the purposes of Reg. 4(1)(c)(i) child maintenance is "payable" if there is an assessment of child support maintenance in force, even if the amount payable under it is nil. I do not accept that argument. In my judgment it is as clear as can be that child support maintenance is not "payable" to the applicant unless there is an assessment for a positive amount – i.e. an amount greater than nil. I reach that conclusion as a simple matter of the plain meaning of the words "child maintenance is …payable." I do not see how child maintenance can be said to be "payable" when the effect of the assessment is that nothing is payable. The, at first sight, somewhat strange concept of a nil assessment has its origin in para. 13 of the Child Support Act 1991, under which the Secretary of State shall not decline to make a maintenance assessment only on the ground that the amount of the assessment is nil.

14. It follows that in my judgment the bonus period which started on 27 January 2000 came to an end on 10 April 2000, which was more than 14 days before the Claimant started work. The condition of entitlement in Reg. 3(1)(f) of the 1996 Regulations was therefore not satisfied, and the Claimant was therefore not entitled to any sum by way of child maintenance bonus.

15. The Tribunal also stated that "in any event the appellant had a legitimate expectation that the bonus would be paid because of the conduct of the Benefits Agency it was reasonable for her to have such an expectation namely that the regulation would be interpreted as this Tribunal now finds." However, the estimates of the bonus which had accrued were issued pursuant to Reg. 6 of the 1996 Regulations, and Reg. 6(2) provides that

"The issue by the Secretary of State of a statement under paragraph (1) shall not be binding on the adjudication officer when he makes his determination on a claim for a bonus as to –

(a) whether the applicant satisfies the conditions of entitlement to the bonus; and

(b) the amount, if any, payable where the bonus is awarded."

16. Reg. 6(2) in my judgment makes it clear that the estimates were not binding on the decision maker. Further, the function of the decision maker was to determine whether bonus was payable in accordance with the regulations, and he had no power (and neither therefore did the Tribunal, and nor do I) to give effect to the estimates, or other representations which may have been made to the Claimant, by way of some form of estoppel or by awarding compensation. Any remedy by way of a claim for compensation (and I make it clear that I can express no view one way or the other as to whether there is one) would have to be sought elsewhere.

(Signed) Charles Turnbull

(Commissioner)

(Date) 19 December 2002