UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CIS_4003_2001 (08 July 2005)

 


CIS/4003/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is:

I set aside the decision of the tribunal and substitute my own decision as follows:

The decision of 1 March 1995 awarding income support is reviewed under section 25(1)(b) of the Social Security Administration Act 1992 as there has been a relevant change of circumstances since it was given, in that on 8 May 1995 the claimant's daughter Dawn permanently left the claimant's household to join that of her father.

On revision, in the period 2 May 1995 to 27 November 1995 inclusive, the claimant is entitled to income support under the provisions of the Income Support (General) Regulations 8(3)(b) (hardship), in the sum of £27.90 per week.

Under the provisions of regulation 5(1) and Case 1 of the Payments on Account, Overpayments and Recovery Regulations 1988, of the £2,248.50 already paid in respect of that period £837.00 is offset against arrears of entitlement under that determination and is treated as properly paid on account of them.

In consequence, under the provisions of section 71 of the Social Security Administration Act 1992 and regulation 13 of the Payments on Account, Overpayments and Recovery Regulations 1998, of the £2,248.50 paid in respect of that period, 1411.50 is overpaid and is recoverable by the Secretary of State from the claimant, as she failed to disclose on 8 May 1995, or as soon as practicable thereafter, the material fact that her daughter Dawn had permanently left the claimant's household.

2. The claimant was in receipt of income support as a lone parent, but inquiries made in 1995 revealed that the claimant's daughter had gone to live with her father. It was subsequently established that the claimant had handed the child benefit book to the child's father, and that child benefit had ceased to be paid to the claimant from 8 May 1995. Income support was disallowed from 28 November 1995 and on 19 January 1996 a decision was made that the sum of £,2248.00 paid as income support in the period 2 May 1995 to 27 November 1995 was recoverable as an overpayment, on the basis that the claimant's daughter had left her household. Since the claimant was re-paying an earlier overpayment, no attempt was made to recover the overpayment until March 1999 and consequently the claimant did not appeal against the overpayment decision until 4 May 1999. It is from the decision of the tribunal dismissing that appeal that the claimant now appeals.
3. Under regulations 2 and 15 of the Income Support (General) Regulations 1987, the claimant was entitled to income support as a lone parent only if she was receiving child benefit for her daughter. The original basis of the appeal against the tribunal's decision was that regulation 15 was contrary to Article 8 of the European Convention on Human Rights, in that the effect of the regulation was to deprive the claimant of the means necessary to care for her daughter. On 4 December 2001 I directed the Secretary of State to make observations on the grounds of appeal so that I could decide whether to grant leave.
4. The Secretary of State opposed the appeal, but I nevertheless granted leave on 5 February 2002 so that I could give full consideration to the claimant's argument. However, on 8 October 2002 a legal officer directed a further submission in respect of the apparent absence of any review decision complying with the requirements of section 71(5A) of the Social Security Administration Act 1992. In response to that direction, the Secretary of State made a submission annexing a composite decision both reviewing the relevant award and determining that an overpayment was recoverable on the ground that the claimant had failed to disclose that her daughter had left her household and that she had not made herself available for work. However, the submission supported the appeal on the ground that the tribunal had failed to consider whether the claimant was entitled to income support as a single person under regulation 8(3)(b) of the 1987 Regulations (in the form in force at the time) because she would suffer hardship if income support was not paid. The Secretary of State's representative very helpfully proposed a decision disposing of the appeal which incorporated the necessary review decision and took into account the claimant's entitlement to income support as a single person for the relevant period.
5. In her reply to that submission, the claimant's representative submitted that I should consider whether regulation 15 of the 1987 Regulations could be read compatibly with Article 8 by allowing income support to be split to reflect shared child care. The representative ultimately consented to me making a decision in the terms proposed by the Secretary of State's representative if I rejected that submission.
6. On 26 January 2004 this case was adjourned to await the outcome of the appeal to the House of Lords in Hinchy On 8 May 2005 the stay was removed following the decision of the House of Lords allowing the appeal from the Court of Appeal's decision, but the claimant's representative has not responded to the request to indicate whether she wishes to proceed with the appeal.
7. As I indicated when I raised the Hinchy issue, it seems clear that, despite the terms of the overpayment decision, the actual basis of the relevant award of income support was that the claimant was in receipt of child benefit, so that it was the claimant's failure to disclose that she had ceased to receive child benefit which resulted in the overpayment of benefit. On the basis of the decision in Hnichy, the claimant is not assisted by the fact that the Child Benefit Centre was aware that the claimant's entitlement to child benefit had ceased.
8. However, I agree that the decision of the tribunal was in error because they failed to consider the claimant's entitlement to income support as a single person. As the Secretary of State's representative pointed out in the submission of 13 November 2002, the tribunal was expressly requested to deal with that issue. Irrespective of where the burden of proof lay to establish entitlement to income support on some alternative basis, there was evidence that the claimant would suffer hardship if she did not receive income support, and there is also the possibility that the claimant had to care for her son, who was injured in a road accident.
9. It therefore remains for me to deal with the submission concerning the splitting of income support. It is clear from the judgments of the Court of Appeal in Carson v Reynolds v Secretary of State for Work and Pensions [2003] 3 All ER 577 that provision for payment of income support has not been made in order to comply with any Article 8 obligation-see per Laws LJ at para. 28. In Hockenjos v Secretary of State for Social Security (No. 2) [2004] EWCA Civ 1749 the Court of Appeal held that the link between child benefit and entitlement to the child premium of jobseeker's allowance was indirectly discriminatory and therefore contrary to Council Directive 79/7, but income support is not within the scope of Directive 79/7. However, the basis of the finding of indirect discrimination in Hockenjos was that fathers are less likely than mothers to be entitled to child benefit. Even if the claimant in this case could show that the relevant income support provisions 'engage' Article 8 of the European Convention of Human Rights for the purposes of Article 14 of the Convention, and that the Convention rights apply to a decision taken before 2 October 2000, she could not, as a mother, show that she was a 'victim' of the discrimination, as required by section 7(1) of the Human Rights Act 1998. I therefore reject the claimant's argument that the Convention required income support to be awarded to her to an extent which was proportionate to her share of the care of her daughter.
10. The claimant's representative has agreed that I should give a decision in the terms proposed by the Secretary of State's representative if I reject the submission on a split income support. In any case, I entirely share the representative's view that the claimant has been meticulous in disclosing her employment and income, and I am satisfied that the claimant was entitled to income support as a single person after she ceased to receive child benefit.
11. My decision is therefore as set out in paragraph 1.

(Signed) E A L BANO

Commissioner

8 July 2005