DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Plymouth First-tier Tribunal dated 22 December 2008 under file reference 198/08/00247 involves an error on a point of law.  The tribunal’s decision is set aside.

 

The Upper Tribunal is in a position to re-make the original decision under appeal.  The decision that the tribunal should have made is as follows:

 

The appellant’s appeal against the Secretary of State’s decision dated 24 June 2008 is allowed.

 

The appellant was estranged from her parent and there was no person acting in place of her parent as at the date of her claim, 7 April 2008.

 

            The Secretary of State’s decision dated 24 June 2008 is accordingly revised.  The appellant is entitled to income support from and including 7 April 2008.

 

This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

REASONS FOR DECISION

 

The decision in summary

 

1.         The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the Plymouth First-tier Tribunal dated 22 December 2008 under file reference 198/08/00247 involves an error on a point of law. The Upper Tribunal re-makes the tribunal’s decision on the original appeal, as set out above.

 

The issue in this appeal

 

2.         The issue in this appeal is a narrow one.  The appellant, Miss P, is a young woman who was aged 16 at the material time.  She had had to leave home and was staying with her boyfriend at his father’s house.  The question is whether the boyfriend’s father was “any person acting in the place of [her] parents”.  If he was, then Miss P was not entitled to income support.  If he was not, she was entitled to that benefit.

 

The relevant statutory test

 

3.         Income support is a benefit of last resort.  Only certain categories of people can qualify.  Most 16 and 17 year olds do not qualify for this benefit.  In particular, as a general rule anyone who is in “relevant education” cannot claim income support (Social Security Contributions and Benefits Act 1992, section 124(1)(d)).  There are, however, a limited number of exceptional circumstances in which such young people may qualify for income support.  These special cases are set out in regulation 13 of the Income Support (General) Regulations 1987 (SI 1987/1967).

4.         One such exceptional situation, according to regulation 13(2)(d), as amended, is where the young person in question: 

 

“(d) of necessity has to live away from his parents and any person acting in the place of his parents because-

(i)         he is estranged from his parents and that person; or

(ii)        he is in physical or moral danger; or

(iii)       there is a serious risk to his physical or mental health”.

 

The circumstances of this case

 

5.         The appellant was born in January 1992.  In the 2007/08 academic year she was in her final year at senior school.  She claimed income support on 7 April 2008, stating that she had left her mother’s home on 1 April and was now living with her boyfriend at the house of his father (Mr H).  Miss P included a letter from her mother stating that the appellant had “walked out” and that she (the mother) had stopped claiming child benefit and tax credits for her. 

 

6.         The appellant then completed a questionnaire stating that Mr H did not provide her with any “supervision, financial, social, discipline, moral or other care or guidance”.  Miss P further stated that Mr H did not provide shelter, food or clothing and was not going to claim child benefit or child tax credit for her.   She also sent a letter from Mr H confirming that she was “estranged from home”.  This was also confirmed by her Personal Adviser from the local office of Connexions, the information and advice service for young people.

 

7.         The local Jobcentre Plus office then sent a series of further questionnaires.  Miss P confirmed on two further forms that Mr H did not provide supervision, care or guidance.  She conceded that he provided some shelter and food but no clothing.  Mr H confirmed she was “a most welcome member of the household” and confirmed again that she was estranged from home. 

 

8.         Mr H then wrote a further letter, saying that he provided the appellant with shelter but that she was responsible for her own food and clothing and that he had no intention of claiming benefits or tax credits for her.  This prompted yet another and arguably unnecessary series of questions from Jobcentre Plus, who argued that unfortunately Mr H “didn’t provide an answer to the question of he provides supervision, financial, social [etc] care and guidance”.

 

9.         Mr H tried again.  His fourth letter stated (in full) as follows:  

 

         “I provide some financial assistance and food, she is under my care I provide social, moral guidance and she is happy to follow house rules.  I have no further intention to support [Miss P] financially once this claim is sorted or she has other source of income.”

 

It appears that this letter was written on the advice of a benefits adviser.

 

10.       A decision maker acting on behalf of the Secretary of State then considered the evidence on 24 June 2008.  She concluded that Miss P did not fall into any of the exceptional categories and was not entitled to income support.  In short, the reason was that “boyfriend’s Dad is acting in place of her parents”.

 

11.       The appellant lodged an appeal on 2 July 2008.  She repeated that she was estranged from her mother and that Mr H “has not and does not have any financial or parental responsibility for me”.  She included a further letter from Mr H which stated plainly that he “did not intend to take parental or financial responsibilities” for her. 

 

12.       Miss P’s Connexions Personal Adviser also wrote a detailed letter in support of the appeal in October 2008.  She explained that their office had provided the appellant with food vouchers on several occasions and that they were concerned both for her health and at the delays in resolving the case.

 

13.       Miss P’s Connexions Personal Adviser then wrote to the Tribunals Service again on 4 December 2008, pressing for the appeal to be dealt with urgently.  She reiterated her concerns about Miss P’s health and circumstances more generally.  The adviser wrote again a week later to report that Miss P had been unable to claim an educational maintenance allowance (EMA) as she was not getting income support and there was no one with parental responsibility for her (or at least exercising such responsibility).

 

14.       The adviser concluded that Miss P’s “situation is really dire, she has exhausted friends networks who have supported her with handouts and food and is still getting the odd food voucher from us at Connexions, her situation is untenable and I really cannot say loud enough how needy she is”.

 

The Plymouth appeal tribunal’s decision

 

15.       The appellant had opted for a “paper hearing” of her appeal.  This took place at Plymouth on 22 December 2008.  The tribunal’s decision was to confirm the Secretary of State’s decision and so to dismiss the appeal. 

 

16.       The District Tribunal Judge who had considered the appeal then issued a full statement of reasons.  The judge reviewed the evidence from the appellant, her mother and Mr H.  The key passage in the tribunal’s reasoning read as follows:

 

“7.        It seems clear from Mr H’s second letter that he did not envisage assuming financial responsibility for Miss P on an indefinite basis.  It would therefore, in the view of the Tribunal, be wrong to place decisive weight on that aspect of the evidence.  However, at the date of her claim, when she was aged just 16, Miss P was living as a ‘welcome’ member of his household as the girlfriend of his son – also a minor.  She was living in his household other than on a commercial basis.  He acknowledges that (as would be expected in these circumstances) he was providing ‘social, moral guidance’ and that Miss P was ‘happy to follow house rules’.  In the view of the Tribunal, this indicates a parent-like role in relation to her, with precisely the kind of oversight and supervision that would normally be expected in relation to a person of Miss P’s age.  Notwithstanding the professed absence of any intention to provide other than temporary financial assistance, the Tribunal nevertheless considers that Mr H was acting ‘in place of a parent’ in relation to Miss P.  Miss P’s appeal therefore fails.”

 

The reason why the tribunal’s decision cannot stand

 

17.       Ms Ramsey, on behalf of the Secretary of State, supports this appeal.  She argues that the tribunal erred in two respects.

 

 18.      The first is that there is no indication from the Statement of Reasons that the tribunal took into account the correspondence from the Connexions adviser.  In particular, the adviser’s letters were not merely submissions and representations on the case – the adviser was also giving relevant evidence as to Miss P’s circumstances, including as they were at the time that the decision under appeal had been made.  The failure to explain why that evidence was not accepted amounts to an error of law.

 

19.       The second point relates to the appropriate legal test to be applied in assessing whether Mr H was “any person acting in the place of [her] parents”. In my initial observations on the appeal I asked whether the tribunal had set the bar too low in this respect.  Ms Ramsey agrees, pointing out that while Mr H had provided shelter and some food he had not provided financial support and Miss P had had to rely on food vouchers from Connexions (and indeed support from other friends).

 

20.       The Department’s original submission to the tribunal made no reference to any case law.  However, the leading case on the point is Commissioner’s decision R(IS) 9/94. The facts of that case were very different: a 17 year old Somali refugee was living apart from both his parents (who were in Ethiopia) and from a friend of the family in London who had acted as his sponsor for immigration purposes.  Mrs Commissioner Heggs ruled that the sponsor was not acting “in the place of his parents” as her duties “are limited and do not equate with the duties of a parent or person in loco parentis” (at paragraph 13). 

 

21.       Mrs Commissioner Heggs accepted that the category of “any person acting in the place of his parents” could include someone acting in an informal relationship.  The example she gave was where the adult is claiming child benefit for the claimant. However, that example implies a greater degree of commitment and permanence than was found in the present appeal concerning Miss P.  The old expression “in loco parentis” means, for example, “a person taking upon himself the duty of a father of a child to make provision for that child” (Bennet v Bennet 10 Ch D 477 per Jessel MR).

 

22.       The statutory test is whether the young person “of necessity has to live away from his parents and any person acting in the place of his parents”.  This clearly suggests some degree of parity or equivalence between the parent and any person who may be acting in the parent’s place.  That approach is supported by R(IS) 9/94.

 

23.       I accept that a “person acting in the place of [the young person’s] parents” need not formally hold parental responsibility in relation to that young person (of course, adults who are not parents may acquire parental responsibility in various ways under the Children Act 1989).  “Parental responsibility” is defined very broadly by that Act as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (Children Act 1989, section 3(1)).  However, the statutory test under regulation 13(2)(d) of the Income Support (General) Regulations 1987 means that the adult must in practice be acting broadly in a way that a parent would.  So, even if he or she does not formally hold parental responsibility, he or she must be acting as what is sometimes described as a social parent.

 

24.       In the present case Mr H was simply doing what any person who lacks parental responsibility might do, namely “what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare” (Children Act 1989, section 3(5)).  That did not give him parental responsibility over Miss P and on the facts he was not “acting in the place of [her] parents”, given that his conduct lacked the greater degree of permanence and commitment required to meet that test.

 

25.       True, Mr H was providing shelter and, according to some accounts, some food.  In addition, he may have been providing some general oversight, but only in as much as Miss P was a temporary guest in his household.  Crucially, however, he was not providing her with financial support – Miss P had to rely in part on food vouchers provided by Connexions and assistance from friends. Mr H also expressly disclaimed parental responsibility for her and refused to treat her as part of his household for the purpose of child benefit or child tax credit.  In short, Mr H was helping out to a limited extent as any responsible adult would do – he had not assumed the responsibility of “acting in the place of [her] parents”.

 

The disposal of this appeal

 

26.       I must allow this appeal for the reasons explained above.  This error of law is such that I must set the tribunal’s decision aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.  Ms Ramsey on behalf of the Secretary of State helpfully suggests that the appropriate way to deal with this appeal is for the Upper Tribunal to substitute its own decision as the one that the tribunal should have made.  I agree, not least given the passage of time that has elapsed in this case.

 

Conclusion and outcome of this appeal to the Upper Tribunal

 

27.       I allow the appellant’s appeal and re-make the decision originally under appeal. My decision is therefore as set out above. 

 

 

 

 

 

 

 

 

 

 

Signed on the original                                              Nicholas Wikeley

on 25 November 2009                                              Judge of the Upper Tribunal