UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CIS_2317_2006 (27 October 2006)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14 of the Social Security Act 1998:

The decision of the Cardiff appeal tribunal under reference U/03/188/2005/05947, held on 6 March 2006, is not erroneous in point of law.

What I have to decide

2. The claimant's two children were living with her. Her husband was awarded child benefit in respect of the children, but arranged for it to be paid into her bank account. In those circumstances, was she 'receiving child benefit' for the purposes of regulation 15(1) of the Income Support (General) Regulations 1987?

History and background

3. The claimant was awarded child benefit in respect of her two children on 17 January 2005. From that date, she was accepted as entitled to income support on the basis that she was a lone parent. However, she had claimed income support on that basis on 13 December 2004. So I am concerned with the period from 13 December 2004 and 16 January 2005.
4. Before 17 January 2005, the claimant's husband had been awarded child benefit in respect of their children. At first, he was paid by order book. At that time, he cashed the counterfoils and gave the money to the claimant. From October 2004, he arranged for the benefit to be paid into a bank account in the claimant's sole name.
5. The Secretary of State decided that the claimant was not responsible for her children for the purposes of regulation 15(1) until 17 January 2005. She exercised her right of appeal. The appeal was heard by a district chairman, who dismissed the appeal, but gave the claimant leave to appeal to the Commissioner.

Income support for lone parents

6. The conditions of entitlement to income support are set out by section 124 of the Social Security Contributions and Benefits Act 1992. The relevant provision in this case is section 124(1)(e):

'(1) A person in Great Britain is entitled to income support if-

…

(e) he falls within a prescribed category of person'.

7. The categories are prescribed by regulation 4ZA of the Income Support (General) Regulations 1987 and Schedule 1B to those Regulations. The relevant provision is paragraph 1 of Schedule 1B:

'Lone parents

1. A person who is a lone parent and responsible for a child who is a member of his household.'

8. 'Lone parent' is defined by regulation 2(1):

'"lone parent" means a person who has no partner and who is responsible for, and a member of the same household as, a child or young person.'

9. Whether a person is 'responsible for a child' is governed by regulation 15. The relevant provision is regulation 15(1):

'Circumstances in which a person is to be treated as responsible or not responsible for another

15.-(1) Subject to the following provisions of this regulation, a person is to be treated as responsible for a child or young person for whom he is receiving child benefit …'

This regulation is drafted in terms of treating persons as responsible for a child to reflect the terms of the enabling authority in section 137(2)(m) of the 1992 Act:

'(2) Regulations may make provision for the purposes of this Part of this Act-

…

(m) as to circumstances in which one person is to be treated as responsible or not responsible for another.'

The arguments of the parties

10. The claimant has been represented by Ms Emma Bridges of the Speakeasy Advice Centre in Cardiff. Her argument is that 'receiving' should be given its plain English meaning and that the claimant was, on that meaning, receiving the benefit. The Secretary of State's representative submits that the claimant's husband applied for child benefit and the child benefit was in his name. He was, therefore, receiving the benefit. The payment arrangement did not affect the person who was receiving the benefit.

Analysis

11. I accept the Secretary of State's argument and reject the claimant's arguments for two reasons.
12. The first reason concerns the wording of regulation 15(1). The word 'receiving' immediately raises the question: receiving what? The answer is: child benefit. Ms Bridges argues that the claimant was receiving the child benefit, because it was paid into her account. However, there is a flaw in that argument. The claimant was not receiving the benefit. What she was receiving was the money paid pursuant to the award of child benefit. That is not the same thing as receiving the benefit itself.
13. This conclusion can be tested in this way. A claimant's applicable amount for the purposes of income support may include a number of premiums. One is the disability premium. This is part of the applicable amount if the claimant is 'in receipt of … attendance allowance (paragraphs 11 and 12(1)(a) of Schedule 2 to the Regulations). Suppose the claimant is an appointee for an elderly relative who has been awarded an attendance allowance. The claimant might receive payment on behalf of the relative, but would not be 'in receipt of … attendance allowance' so as to qualify for the disability premium. Adopting Ms Bridges's interpretation would produce the result that a claimant who had no disability whatever would qualify for a disability premium simply because of the payment arrangements for someone else's attendance allowance.
14. The second reason why I reject the claimant's argument concerns the payment provisions for benefit. In the case of child benefit, this is governed by the Child Benefit and Guardian's Allowance (Administration) Regulations 2003. These Regulations make separate provision for entitlement and payment. Entitlement is governed by regulations 5 to 15, which deal with making a claim and the period of an award. Payment is governed by regulations 16 to 26. The payment arrangements by which the child benefit was paid into the claimant's bank account were made under these regulations. Regulation 17(1) authorises payment by direct credit transfer by 'arrangement with a person claiming, or entitled to, child benefit'. Regulation 17(2) provides that

'(2) The direct credit transfer shall be into a bank account or other account-

(a) in the name of-

(i) the person entitled to the benefit or allowance,

(ii) that person's partner; or

(iii) a person acting on behalf of that person'.

The claimant's husband was the person entitled to the child benefit, because he was the person who had claimed that benefit and the person named in the award as entitled to it. So the claimant was not the 'person entitled' for head (i). I do not know whether the claimant was still her husband's partner for the purposes of the definition in regulation 2 of those Regulations. However, the payment to the claimant's account could only have been authorised under head (ii) or (iii). Both authorise payment into the name of someone other than the person entitled to child benefit. They provide for the discharge of the Secretary of State's duty to make payment pursuant to the award of child benefit. They deal with receipt of the payment of the award. But they do not deal with entitlement. The claimant for the child benefit remains entitled to the benefit and entitled to receive it. And that claimant does receive it, albeit that this is effected by payment into someone else's name.

Disposal

15. There was no dispute about the facts of this case. The tribunal directly itself correctly on the law and applied that law to the facts. It did not go wrong in law, so I must dismiss this appeal.

Signed on original on 20 October 2006

Edward Jacobs Commissioner