UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_43_2008 (19 May 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:

I SET ASIDE the decision of the Leicester appeal tribunal, held on 23 August 2007 under reference 038/07/01430, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that, provided she satisfies the other conditions of entitlement, the claimant is entitled to income support for the inclusive period from 21 November 2006 to 3 January 2007 on the basis that she satisfies paragraph 3 of Schedule 1B to the Income Support (General) Regulations 1987.

REASONS

This appeal, brought with the leave of a district chairman, raises the issue of entitlement to income support for the new carer of a child before entitlement to child benefit is transferred.

History and background

On 19 November 2006, the claimant began to look after her granddaughter, then aged 14, who had failed to settle with her mother when the family moved home. The stress of her behaviour was worsening her mother's depression. The claimant was at that time working five hours a week and claiming jobseeker's allowance. However, on 21 November 2006, she claimed income support. At first, the claimant's daughter continued receiving child benefit and paid it to the claimant. However, the claimant was awarded child benefit with effect from 8 January 2007 and the Secretary of State has accepted that the claimant then became entitled to income support.

Income support for a lone parent

The claimant was advised to claim income support as a lone parent. She did so, but her claim was refused on that basis. That was correct and the tribunal was correct to confirm the Secretary of State's decision.

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'.

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.'

'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'.

The word 'parent' is not defined either in the Regulations or in the governing statute, which is the Social Security Contributions and Benefits Act 1992. The Secretary of State has accepted that the claimant, as a grandparent, is a parent for this provision. However, the claimant did not satisfy the requirement that she be 'responsible for a child' until she was awarded child benefit in respect of her granddaughter. It is not sufficient, for paragraph 1, that she was caring for the child.

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 claimant was not entitled to child benefit in respect of her granddaughter until 8 January 2007. Before that, the person entitled to child benefit was the claimant's daughter. She was paying the money over to the claimant, but that does not satisfy regulation 15(1), because the person 'receiving child benefit' is the person who claimed and was awarded that benefit: see my decision in CIS/2317/2006.

Income support for someone looking after a child

Paragraph 3 of Schedule 1B contains another relevant 'prescribed category of person':

'Persons temporarily looking after another person

3. A person who-

(a) looking after a child because the parent of that child or the person who usually looks after him is ill or is temporarily absent from his home; or

(b) looking after a member of his family who is temporarily ill.'

The tribunal failed to consider this possibility. A district chairman gave leave to appeal on the ground that the tribunal should have considered this possibility and the Secretary of State has supported the appeal. I accept that argument.

The Secretary of State's representative has commented that

'The claimant's daughter stated on 11/12/06 (see page 16 of the bundle) that she was forwarding Child Benefit and arranging for it to be changed into her mother's name. On the 18/12/06 the claimant wrote to the local office stating that she had made an application for Child Benefit and was awaiting a decision. I submit that this may throw into question whether the arrangement was temporary, when it appears from the letters provided by the claimant and her daughter that on 11/12/06 and 18/12/06 a decision had been made for the claimant to make an application for Child Benefit.'

That raises an issue of interpretation paragraph 3: is it essential that the claimant is only looking after the other person temporarily? The heading to paragraph 3 suggests that the answer is: yes. However, further consideration shows that the answer is: no.

The heading of paragraph 3 relates temporary to the act of looking after the other person. However, the wording of the paragraph relates it to the normal carer's absence from home or the other person's illness. That may simply be looking at the temporary nature of the arrangement from two different perspectives: the cause (in the body of paragraph 3) and the effect (in the heading). However, there is a contrast between the illness of the carer and the illness of the other person. The latter must be temporary, but the former need not. That contrast within the same paragraph must be significant to its interpretation. And, given that contrast, it would not be appropriate to override it by reference to the heading.

This, together with the law on child benefit, produces a coherent and rational interpretation. It is possible for child benefit to be transferred from one person to another. However, the time periods used in determining the person properly entitled to child benefit in respect of a child can mean that there is an inevitable delay before benefit can be transferred from one person to another. If the person receiving child benefit is too ill to provide care for the child, and perhaps is likely to remain so in the long-term, it is appropriate for the new carer to be able to obtain income support pending the change of entitlement to child benefit. That is what my interpretation of paragraph 3 secures.

Disposal

The tribunal went wrong in law, I must set its decision aside. On the evidence and my interpretation of paragraph 3, I am able to give the decision that the tribunal should have given, which is set out in paragraph 1.

Signed on original
on 19 May 2008

Edward Jacobs
Commissioner