UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CF_2871_2007

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[2008] UKSSCSC CF_2871_2007 (20 February 2008)

This claimant's appeal is allowed. The Telford appeal tribunal consisting of a chairman sitting alone on 14 May 2007 misdirected itself in holding that a person in whose favour a residence order is in force under the Children Act 1989 does not count as a "parent" of the children concerned for child benefit purposes under Part IX Social Security Contributions and Benefits Act 1992.

I set the tribunal decision aside and in exercise of the power in section 14(8)(a) Social Security Act 1998 give instead the decision I am satisfied the tribunal ought to have given on the claimant's application for child benefit made on 15 May 2006 in respect of the two children concerned in this case, the material facts not being in dispute. This is that:

(1) as regards the period down to the date of that claim and until the expiration of a further three complete weeks on 11 June 2006 she had no entitlement and the claim had been rightly refused, because child benefit for the same two children had been awarded and paid to another claimant for those periods under a prior claim: section 13(2) Social Security Administration Act 1992; section 144(3) and Schedule 10, paragraph 1(2) SSCBA 1992.

(2) as regards the periods 12-18 June and 7 August 2006 onwards, the decision under appeal by an officer of Revenue and Customs ("HMRC") given in its revised form on 26 October 2006 (page 26) had been wrong in refusing any possibility of entitlement on the ground that the claimant was not a "parent" of the children for the purposes of the order of priority in Schedule 10 ibid:

(3) as regards those periods the refusal of the claim is set aside and the case remitted to HMRC to make a determination as to entitlement in exercise of its discretion under paragraph 5 of Schedule 10, with the direction that both rival claimants count as "parents" of the children for this purpose;

(4) as regards the intervening period from 19 June to 6 August 2006 inclusive the claimant's entitlement is not disputed by HMRC (and has already been paid to her: page 24) and is therefore simply confirmed.

I held an oral hearing of the appeal, at which the claimant appeared and presented her case in person and HMRC were represented by Jason Coppel of Counsel, instructed by the solicitor of Revenue and Customs.

The facts, as recorded by the tribunal chairman in her very clear and well set out decision at pages 253, 256-258, were that the two rival claimants had lived in a lesbian relationship from 1995 until 2002. During the course of this relationship the claimant's partner had given birth to two children (both girls) as a result of anonymous donor insemination undertaken abroad. The decision to have a family was an agreed and joint decision taken by the two partners together. From 2002 the relationship began to break up but they continued to live together with the two children until May 2003, when the children were respectively aged four and just under two. At that point the claimant's former partner began a further relationship with another woman and moved away, the children going to live with her later in the same year.

Prolonged and complex family litigation ensued; of which it is only necessary to note that on 15 February 2006 the High Court made a shared residence order under the Children Act 1989 in favour of the two former partners in respect of both children, and that order has remained in force unaltered at all material times. Under the relevant provisions of the Children Act (and expressly recorded in the order itself, at page 129) the effect of this is that the claimant has legal parental responsibility for the children so long as the order remains in force. The arrangements for their care were the subject of differing orders made in the proceedings and on appeal, but those are not relevant to consider for this purpose: nor, as the tribunal decision correctly records, are any issues as to the conduct of the parties.

Under the child benefit provisions in Part IX SSCBA 1992, a person who is responsible for one or more children in any week may be entitled to child benefit in respect of them for that week: section 141. As recorded by the chairman, there is no dispute that the claimant counted for this purpose as "responsible" for both of them at all material times, within the definition in section 143: for some relevant weeks they were actually living with her, but for all she was making regular contributions to the cost of their maintenance. Where more than one person is potentially entitled under section 141 for a child in any particular week the actual entitlement is restricted by section 144(3) to a single person, the order of priority being determined under Schedule 10. Thus a person who already has a prior award is accorded priority up to the end of three weeks after the making of a rival claim (paragraph 1: the basis on which the claimant was refused entitlement down to 11 June 2006); and subject to that a person who has the child living with him or her in the relevant week takes priority over others (paragraph 2: the basis on which her entitlement was awarded from 19 June to 6 August 2006).

The dispute in this case arose on the provision in paragraph 4 of Schedule 10, headed "Parents" (the intervening paragraph 3 being irrelevant here), that

"4. (1) Subject to paragraphs 1 to 3 above, as between a person who is and one who is not a parent of the child … the parent shall be entitled."

Upholding HMRC's decision to reject the claim for the remaining periods, the tribunal chairman held the meaning of "parent" in this context had to be restricted to that of a biological parent, so that the claimant's former partner who had actually borne the children counted as their parent and she did not. The chairman's decision noted that the only relevant interpretation provision was in section 147(3) of the 1992 Act extending the meaning of parent to include a step-parent, observing correctly that this extension was not worded so as to include a person in the position of this claimant who had been described as the "psychological" parent of the two children in the course of the proceedings in the Court of Appeal: (the added comment in the decision that section 147(3) further extended the meaning to include an adoptive parent being clearly inaccurate, but immaterial). On that basis the claimant could not get equal priority as a parent under pararaph 4.

The claimant has pursued this present appeal because she regards that result as discriminatory against her, and contrary to her right to respect for her family life under Article 8 of the European Convention on Human Rights. She contends that her psychological and family ties with the two children deserve to be recognised by the law as those of a parent, every bit as much as if they had been biological. To recognise her status, and that of other persons in her position, the word "parent" in the legislation should be interpreted so as to accord her that status (and if necessary the law should be changed so as to achieve this: though I think she was prepared to accept that would have to be a matter for Parliament rather than a mere court of law).

It is not necessary for me to decide the case on these broader issues, as in his submissions on behalf of HMRC for which I am grateful Mr Coppel points out that so far as her status for child benefit purposes is concerned, the result the claimant seeks is already achieved by the domestic legislation and the subsisting court order in her favour.

Under section 12(2) Children Act 1989 where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned, that person shall have parental responsibility for the child while the residence order remains in force. By section 3(1) of the same Act, the "parental responsibility" conferred by that order is defined as meaning "all [sic] the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".

It is not in dispute that the court order of 15 February 2006 in force in favour of the claimant in respect of the two children at all material times was an order of this kind.

It must follow in my judgment that while that order remains in force the claimant is for the purposes of child benefit under Part IX and Schedule 10 SSSCBA 1992 a parent of the two children. For this purpose "parent" in relation to a child or children means their legal parent, which as is well established on authority is not necessarily restricted to (and may in exceptional circumstances sometimes even exclude) a natural or biological parent: see Secretary of State v. Smith [1983] 1 WLR 1110, where the Court of Appeal construed the word for benefit purposes in accordance with the Children Act 1975 then in force, so as to include an adoptive parent and exclude the natural parent whose parental rights and duties had been extinguished by the making of the adoption order. In my judgment the principle of that case, which is binding upon me, is that "parent" for the present purpose must be construed in accordance with the Children Act, and so to include a person in this claimant's position who has the legal rights and responsibilities of a parent in respect of the children under the residence order.

The consequence is that as the claimant and her former partner are both entitled to equal priority as parents under paragraph 4 of Schedule 10 the entitlement has to be resolved under the next paragraph 5, and in default of any joint election by the two of them must be determined by HMRC in its discretion.

The appeal is accordingly allowed and the case remitted to HMRC for the question of entitlement for the outstanding periods under the claim of 15 May 2006 to be determined under that paragraph. I give the claimant liberty to apply to me by written notice to the Commissioners' office for any appropriate further directions that may be needed if a final determination under paragraph 5 has not been made by the expiry of three months from the date of issue of this decision.

(Signed)

P L Howell

Commissioner

20 February 2008