UK Social Security and Child Support Commissioners' Decisions

 


CF/2735/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. It is with considerable reluctance that I feel constrained to dismiss the appeal. Like the Tribunal, I have considerable sympathy for the claimant, but I can see no alternative.
2. This is an appeal with leave granted by me from the decision of an appeal tribunal dated 26.3.2003.
3. There are two children involved, namely Emma and Katherine. I shall refer to the mother simply as "the mother" and the father as "the father".
4. The mother and the father were divorced. The mother had full custody and care of Emma and Katherine. She died on 18.8.02 and, since then, Emma and Katherine have been looked after entirely by the claimant, who was the sister of the mother. She has been entitled to Child Benefit in respect of the children as from 19.8.02.
5. On 18.10.02, the claimant made a claim for Guardian's Allowance in respect of the children. Entitlement thereto is provided for by section 77 SSC&BA 1992 which, so far as relevant, provides:

"(1) A person shall be entitled to a guardian's allowance in respect of a child if –

(a) he is entitled to child benefit in respect of that child, and

(b) the circumstances are any of those specified in sub-section (2) …

(2) The circumstances referred to in sub-section (1)(b) above are-

(a) …; or

(b) That one of the child's parents is dead and the person claiming a guardian's allowance shows that he was at the date of the death unaware of, and has failed after all reasonable efforts to discover, the whereabouts of the other parent …"

6. In the claim form at p.1D, the claimant says that the father is alive and, in answer to the question concerning his address, she said:

"Unknown. But c/o" then giving an address in Glasgow.

On 18.10.02, the claim was refused on the basis that, on that date, the claimant had not established that at the date of her sister's death she was unaware of, and had failed after all reasonable effort to. Discover, the whereabouts of the father. In her letter of 2.1.2003 (8), the claimant states:

"Since I originally applied I have been in touch with the CSA and have received the attached letter indicating nil assessment. In regard to knowing [the father's] address I can only stress that the address given was a c/o (ex-girlfriend) and that I do not have a direct address for him."

And, in a letter of 20.1.03 (9E), she volunteered the further information that she never had informed the father direct of the mother's death but left a message at the c/o address and at the same time had not even been aware that the father was even in the Glasgow area.

7. The claimant appealed, and an appeal tribunal heard and dismissed her appeal on 26.3.2000 (13). They gave their reasons as follows:

"The tribunal accepted entirely that all the claimant had was a c/o address for the father. However, there was no evidence that armed with this information as a starting point, she had made 'all reasonable efforts' to discover his whereabouts. Accordingly, unfortunately, the claim fails…"

8. I quote from the commentary to section 77(1) from SLSS 2003 Vol. I p.168:

"In considering whether the whereabouts of a surviving parent can reasonably be discovered under (b) above, a tribunal may take into account information which came to light after the claim had been made but before the adjudication officer had come to a decision, even where the whereabouts of the surviving parent became known otherwise than through the efforts of the claimant. The operative date is the date of decision by the DM. The tribunal must consider the case on the basis of the facts known at the date of decision…"

This, I think, with respect to the submissions of the board of 9.9.2003, is what the tribunal in effect did. Pausing there for a moment, I am unsure what significance a Child Maintenance Assessment had, or what role the CSA could play, in discovering the father's whereabouts. The comments in para 3 of the statement were mere comment. The guts of the decision are in para 6. In any event, the absent parent's address is made confidential by reg.44 Decisions and Appeals Regulations 1999 and, assuming the CSA did have the father's address, there is no evidence that he consented to its disclosure. Further, the CSA is not there to supply a conduit for information between the two parents, otherwise than is strictly for Child Support purposes.

9. I take the view that the decision of the tribunal was, in essence correct. Furthermore there is evidence that the post box did in fact work and that is, I think, tantamount to a conclusion that the whereabouts of the father can be taken to be known. In R(G) 2/83 it was held that the claimant discovered the whereabouts of the father when she saw him at the mother's funeral. And in CG/60/92 the Commissioner thought that the essence of knowing the whereabouts of a person meant no more than being able in someway to communicate with him and that was clearly achieved in that case on the four occasions of the father's visits. Furthermore, it is clear from para 17 of R(G) 2/83 that once the whereabouts has been discovered the claimant cannot be assisted by the subsequent disappearance of the other parent. "Such a person has not failed to discover the whereabouts of the other parent." Further, in CG/60/92, the Commission thought that the evidence of knowing the whereabouts of a person meant no more than being able to communicate with him.
10. I now turn to the final piece of evidence which is contained in the grounds of appeal at p.19:

"4. I spoke to [the father] a couple of days after my sister's death in August. The c/o address had always been used to contact him and no reason to believe that he would not get the message. In the past he has been trouble and threatened my sister and also moved about from one address to the other hence the c/o address was agreed for contact."

From that it was quite plain that the post box address had been used and had worked.

11. My decision is therefore set out in para 1 above.

(Signed) J M Henty

Commissioner

(Date) 4 November 2003