DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision

 

This appeal by the Secretary of State succeeds.

 

Permission to appeal having been granted by District Tribunal Judge Coxon on 20 March 2014, and in accordance with the provisions of section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, I set aside the decision of the First-tier Tribunal sitting at Northampton made on 12 February 2014 under reference SC044/13/02814 as that decision involved an error on a material point of law.

 

On 15 July 2015 I invited further written representations in this matter. The appellant has indicated that he has no further submissions and the respondent has not replied.

 

Nor has either party asked for an oral hearing.  In my view the evidence and submissions are clear. I cannot see that the evidence and submissions as they currently stand would substantially change if oral representations were made. I have therefore concluded that I have sufficient evidence to make a decision on the papers before me without hearing further from the parties.  

 

I have power to remake a decision under section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007. It is appropriate for me to do so in this case rather than cause delay by directing a re-hearing.

 

Having set aside the First-tier Tribunal’s decision, I re-decide the appeal as follows:

 

The appeal against the decision of the Secretary of State dated 26 June 2013 is refused. The decision of the Secretary of State stands.

 

The respondent is not entitled to widowed parent’s allowance from and including 13^th May 2013.

 

 

The issues in this case

 

1. The appellant (‘the Secretary of State’) challenges the correctness of a decision made by a First-tier Tribunal (‘FTT’) relating to entitlement to widowed parent’s allowance (‘WPA’). In short, the Secretary of State argues that the FTT misapplied the law and was in error in finding that the respondent qualified for WPA.

 

2. The respondent (‘the claimant’) contends that the FTT was correct on the facts of her case. She further suggests that Article 14 of the European Convention on Human Rights has application in this appeal.

 

My decision

 

3. For the reasons set out herein I allow this appeal. I find the FTT’s approach to be in error of law. The FTT has failed to properly consider the staged entitlement conditions for WPA and has failed to make adequate findings of fact in relation to the same.

 

4. There can be no entitlement to child benefit without a claim; and only one person is entitled to child benefit at any given time. The claimant was not in receipt of child benefit when she claimed WPA. It was being claimed by her daughter on the relevant date. Further, the other entitlement conditions for WPA were not met.

 

5. The argument advanced in relation to the European Convention of Human Rights cannot succeed before this Tribunal. This appeal concerns primary legislation which is too clear to remedy by way of interpretation. Further, in neither the FTT nor the Upper Tribunal has the power to make a declaration of incompatibility. I have therefore concluded that it is unnecessary for me to decide the Article 14 point as I would be unable to grant any remedy.

 

The facts

 

6. In 2012 the claimant’s husband was sadly diagnosed with terminal cancer. The claimant states, and I accept, that thereafter his health began to deteriorate rapidly. The decision was taken soon after diagnosis that the claimant’s grand-daughter (referred to throughout this decision as “S.”) should leave the claimant’s home where she lived and move in with her mother (the claimant’s daughter).  Prior to this point the claimant and her husband had looked after and raised S. from when she was a baby.  This course permitted the claimant to focus on her husband’s care and, further, was intended to protect her grand-daughter from witnessing the decline in his health.

 

7. The claimant had brought up S. following her daughter falling pregnant and giving birth at the age of 13. The family agreed that it was preferable for the grand-mother (the claimant) to raise S., and the evidence provided by family members suggests S. effectively became a younger ‘sister’ to her birth mother. The claimant and her late husband, not the mother, were responsible for the cost of raising S., schooling decisions, medical appointments and other parental duties. She and her late husband took on the parenting role for S. to allow her daughter to continue her studies. I accept the claimant’s account in this regard. Her daughter was a child herself at the time the family decided the claimant should raise S.

 

8. Up until the time S. left her home the claimant had been in receipt of child benefit for her.  She also had (and continues to have) parental responsibility for S. There is a residence order included in the papers before me.

 

9. I am told by the claimant that the residence order was made in September 2006. The Order itself is undated and refers only to the claimant, not the claimant’s late husband. There is reference in the papers to the claimant and her husband living in Spain from 1 September 2006 to 1 October 2008. During the course of the FTT hearing the claimant confirmed that S. had been with them during this period. It appears therefore that the residence order was made in or before September 2006. This suggests S. would have been 7 years of age when the order was made.

 

10. The claimant’s husband passed away on 13 May 2013. (I mean no disrespect, but I shall refer to him throughout as ‘GH’ simply to maintain anonymity.) They had married in July 2006. S. was 14 years of age when GH died.

 

11. When the claimant completed her bereavement benefit claim form (undated, but stamped 15 May 2013) she confirmed that she was not getting child benefit for any child and that she was not waiting to hear about a claim for child benefit. She also confirmed her late spouse had not been in receipt of child benefit. She did not claim for any children as part of her household. She did not give any indication that S. would be rejoining her household.

 

12. Bereavement allowance was paid from 13 May 2013.

 

13. The claimant wrote a further letter to the relevant department on 30 May 2013 to state S. would be rejoining her household on 2 June 2013 and that she had applied for child benefit that day. She wanted S. to be added to her bereavement allowance claim.

 

14. According to the letter of appeal S. returned to live with the claimant on 3 June 2013. Although it is difficult to discern the exact period S. was away from the claimant and residing with her mother, it appears to have been for a year. The claimant wrote in a letter dated 26 July 2013: “Thirteen years of S’s life she has been with us and because one year was spent away from us [it] puts me in a different category”.

 

15. Child benefit was re-awarded to the claimant from 10 June 2013.

 

The decision at first-instance

 

16. The issue before the FTT was whether the claimant should be entitled to widowed parent’s allowance from and including 13 May 2013. The relevant decision concluded that she was not so entitled because she was not receiving child benefit for a qualifying child on 13 May 2013.

 

17. The tribunal judge who heard this appeal found that because S. was only temporarily living away from home and that her grandmother was her ‘legal parent’ she should be entitled to the additional WPA. The judge added: “Entitlement to child benefit does not require that the child lives with the person who is entitled”.

 

18. The essence of the Secretary of State’s appeal, slightly removed from the original decision in this matter, is that neither the claimant nor her late husband was entitled to or in receipt of child benefit at the time of GH’s death, and therefore the FTT’s decision was materially in error.

 

The law

 

 

Widowed parent’s allowance

 

19. Widowed parent’s allowance replaced widowed mother's allowance from 9 April 2001. WPA is a weekly benefit that consists of a taxable basic allowance for the surviving parent equivalent to the state retirement pension and a non-taxable allowance for each dependent child (children under the age of 16 or under the age of 19 when still in full-time education); and an additional state earnings related pension (SERPS) if the surviving parent qualifies (which is taxable).

 

20. WPA was introduced by section 55 of the Welfare Reform and Pension Act 1999 which inserted section 39A to the Social Security Contributions and Benefits Act 1992 (‘SSCBA 1992’). The relevant parts provide as follows:

 

(1) This section applies where—

(a) a person whose spouse dies on or after the appointed day is under pensionable age at the time of the spouse’s death, ….

(2) The surviving spouse [or civil partner] shall be entitled to a widowed parent’s allowance at the rate determined in accordance with section 39C below if the deceased spouse [or civil partner] satisfied the contribution conditions for a widowed parent’s allowance specified in Schedule 3, Part I, paragraph 5 and—

(a) the surviving spouse [or civil partner] is entitled to child benefit in respect of a child [or qualifying young person] falling within subsection (3) below; or

(b) the surviving spouse [or civil partner] is a woman who either—

(i) is pregnant by her late husband [or civil partner], or

(ii) if she and he were residing together immediately before the time of his death, is pregnant in circumstances falling within section 37(1)(c) above.

(3) A child [or qualifying young person] falls within this subsection if…the child [or qualifying young person] is either—

(a) a son or daughter of the surviving spouse [or civil partner] and the deceased spouse [or civil partner]; or

(b) a child [or qualifying young person] in respect of whom the deceased spouse was immediately before his or her death entitled to child benefit; or

(c)  if the surviving spouse [or civil partner] and the deceased spouse [or civil partner] were residing together immediately before his or her death, a child [or qualifying young person] in respect of whom the surviving spouse [or civil partner] was then entitled to child benefit.

(4) ….  Not relevant to this appeal

(5) ….  Not relevant to this appeal

[My emphasis added]

 

21. The importance of entitlement to WPA is that bereavement allowance lasts for up to 52 weeks, whereas WPA is available to a surviving spouse or civil partner for as long as he or she has a child living with them for whom they are entitled to receive child benefit.

 

22. The Social Security (Widow’s Benefit and Retirement Pensions) Amendment Regulations 2001 (SI 2001 No. 1235) inserts regulation 16ZA to the Social Security (Widow’s Benefit and Retirement Pension) Regulations 1979 to provide for a person to be treated as entitled to child benefit in certain circumstances where eligibility for WPA is dependent on such entitlement. It has no application however to the instant matter as it relates largely to children who are absent from Great Britain and persons who have re-married.

 

Child benefit

 

23. Entitlement to child benefit is determined in part by section 13 of the Social Security Administration Act 1992 (SSAA 1992) which provides:

 

 (1) Subject to the provisions of this Act, no person shall be entitled to child benefit unless he claims it in the manner, and within the time, prescribed in relation to child benefit by regulations under section 5 above.

 

(2) Except where regulations otherwise provide, no person shall be entitled to child benefit for any week on a claim made by him after that week if child benefit in respect of the same child [or qualifying young person] has already been paid for that week to another person, whether or not that other person was entitled to it.

[My emphasis added]

 

24. Section 144 of the SSCBA provides for certain exclusions and priorities:

 

144 Exclusions and priority

 

(1) (not relevant to this appeal).

(2) (not relevant to this appeal).

(3) Where, apart from this subsection, two or more persons would be entitled to child benefit in respect of the same child for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 to this Act.

[My emphasis added]

 

25.  Schedule 10 of the SSCBA 1992 provides as follows:

 

SCHEDULE 10 Priority between persons entitled to child benefit

Person with prior award

1(1)  Subject to sub-paragraph (2) below, as between a person claiming child benefit in respect of a child for any week and a person to whom child benefit in respect of that child for that week has already been awarded when the claim is made, the latter shall be entitled.

(2) …(3)...  (not relevant to this appeal).

Parents

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.

(2) (not relevant to this appeal)

[My emphasis added]

 

Residence orders

 

26. A residence order is an order made by the court determining with whom a child shall live. It is defined in the Children Act 1989 at section 8 as follows:

“a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live.”

27. In addition to defining with whom and when a child lives with someone, a residence order also has certain legal consequences, including giving the holder of the residence order parental responsibility for the child (s.12 of the Children Act 1989).

 

28. Section 3 of the Children Act 1989 defines parental responsibility as follows:

 

3 Meaning of “parental responsibility”.

 

(1) In this Act “parental responsibility” means 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.

 

Analysis and application to the facts

 

29.  Section 39A of the SSCBA 1992, as set out above, requires a staged decision making process.

 

30.  Firstly, a Tribunal must ask itself: was the claimant a person under pensionable age at the time of the spouse’s [or civil partner’s] death? If the answer is no to this question then the claim for WPA is likely to fall at the first hurdle. In the instant matter the claimant was a person under pensionable age at the time of her husband’s death. She was 50 years of age. She therefore satisfied the requirement of s39A(1) and I find accordingly.

 

31.  The second question a tribunal must ask concerns the contribution condition set out in s 39A(2): did the deceased spouse satisfy the contribution conditions for a widowed parent’s allowance specified in Schedule 3, Part I,  paragraph 5 of the SSCBA 1992? Without such contributions a claim for WPA will not succeed.

 

32.  In this matter there is no dispute that the claimant’s late husband satisfied the contribution conditions specified.  There is no evidence of the contribution record itself, but it is accepted by the Secretary of State that the claimant’s late spouse satisfied that condition. Therefore I find that for these purposes the contribution condition is also satisfied.

 

33.  Section 39A(2) however requires more than the contribution condition alone. Not only must the deceased spouse have satisfied the contribution condition, but also (‘and’) either

(1)   the surviving spouse [or civil partner] is entitled to child benefit in respect of a child [or qualifying young person] falling within subsection (3); or

(2)   the surviving spouse [or civil partner] is a woman who either is pregnant by her late husband [or civil partner], or if she and he were residing together immediately before the time of his death, is pregnant in circumstances falling within section 37(1)(c) above.

 

34.  For these purposes it may be easier to address the second limb first because it has no direct application in this matter.  There is no question of the claimant being pregnant. That sub-section therefore has no application or relevance to the current appeal. In this matter a claim for WPA could not have succeeded on that ground.

 

35.  The route to entitlement therefore becomes narrower. In order to qualify the claimant (as the surviving spouse) would need to be entitled to child benefit in respect of a child falling within subsection (3).

 

Child benefit

 

36.  The original decision by the Department, dated 26 June 2013, was predicated on the basis that child benefit was not in payment at the time of the claim. It was advanced that the entitlement condition for child benefit was not met. On a plain reading of the facts I find that to be correct.

 

37.  WPA was claimed on 13 May 2013. The notification of S. rejoining the household was received on 30 May 2013.  Child benefit was re-awarded to the claimant from 10 June 2013. It follows that the earliest the claim for WPA could begin would be 10 June 2013. The claimant had no entitlement to child benefit prior to that date. S.’s mother had been claiming child benefit and only one person can receive child benefit at any given time. S’s mother also had priority in terms of child benefit. This was a fundamental oversight in the FTT’s reasoning.

 

38.  The Secretary of State states in his submission that: ‘all things being equal, a surviving spouse with a son or daughter could establish entitlement to widowed parent’s allowance where child benefit has not been in payment in respect of their son or daughter at the time of death, but was in payment at the time of the WPA claim’.

 

39.  This however only assists the claimant to a limited extent. Child benefit was not in payment at the date of the claim, nor at the time the further claim for S. was notified.

 

40.  The difficulty for the claimant is that even if it had been or subsequently became payable (as it did) there are other requirements set out in section 39A(3) (considered below) that must also be met.

 

41. At 14 years of age S. falls within the definition of a child for the purposes of Part IX (s142) of the SSCBA 1992. In order to fall within subsection (3) however, S would need to be a ‘child’ [or young person] who is either:

 

(a) a son or daughter of the surviving spouse [claimant] and the deceased spouse; or

(b) a child in respect of whom the deceased spouse was immediately before his or her death entitled to child benefit; or

(c)  if the surviving spouse and the deceased spouse were residing together immediately before his or her death, a child in respect of whom the surviving spouse was then entitled to child benefit.

 

42.  In terms of the three further requirements, which act as alternates for each other, none is met.

 

43.  It may be easier to consider (b) and (c) first. Both are predicated on entitlement to child benefit “immediately before his or her death”.

 

44.  Dealing first with ss.(3)(b), S. was not a child for whom the late GH was entitled to child benefit ‘immediately before his death’. There are two straightforward reasons for this. Firstly, he had not claimed child benefit for S. prior to his death, and there can be no entitlement without a claim. Secondly, the claimant’s daughter was receiving child benefit for S. at that time. Only one person can be entitled to child benefit at any one time, and as child benefit had already been paid to the claimant’s daughter, with whom S. was residing, no-one else could have entitlement at that time (see s13 of the SSAA). I could add to this that parental responsibility was not vested in GH, and so there would have been further obstacles to a claim in his name. Either way, I have no difficulty in concluding that this path to qualification for WPA is not made out on the facts in this matter. Section 39A(3)(b) is not therefore satisfied and the claim could not succeed on that basis.

 

45.  Section 39A(3)(c) is not satisfied for similar reasons. While I have no hesitation in finding that the claimant and GH were residing together immediately before his death (the claimant nursed him to the end and I understand he passed away at home), the surviving spouse (the claimant) was not at that time (‘then’) entitled to child benefit for the reasons already given. She had not claimed it. Her daughter was in receipt of it. There was therefore no entitlement to child benefit immediately before GH’s death.  Any notional entitlement due to the residence order and parental responsibility is illusory. The FTT erred in law by concluding that there was an entitlement. Section 39A(3)(c) is therefore not satisfied and the claim could not succeed on that basis either.

 

46.  The final alternate condition for entitlement requires S. to be the daughter of the surviving spouse [the claimant] and the deceased spouse [GH].

 

47.  S. cannot be classed as the daughter of the surviving spouse and the deceased spouse. She was the biological grand-daughter of the claimant and the step-grand-daughter of GH. The claimant accepts in her latest submission that S. is not her daughter. She was living with her birth mother at the time of GH’s death.

 

48. I should add that the residence order does not affect S.’s legal relationship with her mother nor does it take away her own parental responsibility. Unlike an adoption order (which under section 39(2) of the Adoption Act 1976 prescribes an adopted child as if he or she were not the child of any person other than the adopters or adopter), the residence order does not have that effect. No court had therefore determined that the claimant was the ‘legal parent’ as the FTT had suggested.

 

49.  As a result, the FTT erred in law in finding that the claimant qualified for WPA. The route to entitlement is not made out. None of the requirements of s 39A(3) are satisfied and nor was the claimant in receipt of child benefit at the time of the claim.  

 

European Convention on Human Rights argument

 

50.  The claimant has raised the issue of entitlement through the European Convention on Human Rights (‘the Convention’).

 

51.  This form of claim was considered in Stec and Others v United Kingdom (2006) 43 EHRR 47, where the ECtHR observed (in the context of Article 1):

55. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ….. Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.

 

52.  The claimant in written submissions raises Article 14 of the Convention. She essentially challenges the entire basis of section 39A, both in terms of other parents who would qualify in circumstances where she does not; and in terms of what she perceives to be the inequity of her situation compared with that of the pregnant woman – who would qualify, even though child benefit was not payable at the time of death.

 

53.  The claimant states: ‘S. is my Grand-daughter, BUT she has been raised as our daughter in absolutely every way since she was born’.  ‘My late husband and I brought S. up in a loving, caring and responsible home just as any adopter, fosterer or anyone with legal rights bringing up a child would’.

 

54.  The force of her complaint may be summarised thus:  if adopters can get WPA, if pregnant women can get WPA, what is the objective justification for those with residence orders and parental responsibility not getting WPA? She effectively suggests S. should be regarded as her daughter, thus satisfying section 39A(3)(a).

 

My decision on the ECHR argument

 

55.  The Convention argument is not without difficulties for the claimant.  In her invocation of Article 14 the claimant needs, amongst other things, to establish:

(1)   a potential engagement with one or more of the Convention’s other articles. In that regard she raises article 8 ‘respect for private and family life’ and what she describes as ‘personal dignity’;

(2)   whether she has the necessary ‘status’ to bring a claim under Article 14; and then whether this matter falls within the ‘personal characteristic’ test;

(3)   whether discrimination is established. Only if indirect discrimination is established does the burden switch to the Secretary of State to show justification.

 

56.  The difficulty in part is that neither party has properly engaged with these arguments and these arguments were not rehearsed before the FTT. The claimant is without legal advice as far as I can ascertain. That in itself would not dissuade me from considering the argument, but for the final powers of this Tribunal in terms of remedy.

 

57.  Let me assume for a moment that I was to perform this Tribunal’s interpretive duty under s.3(1) Human Rights Act 1998 to read and give effect to section 39A of the SSCBA (primary legislation) in a way which is compatible with the Convention rights so far as possible (assuming, and one should not, that I was to find in favour of the claimant). Having considered this matter I do not think that it would be possible to construe section 39A in a way which includes a person given parental responsibility by a residence order for a child. As the Court of Appeal commented in Sara Francis v The Secretary of State for Work and Pensions [2005] EWCA Civ 1303, that would not be an interpretation but the rewriting of section 39A to include a new category. It would in my view also introduce too much uncertainty in terms of those eligible (in a social security system that depends on certainty and security for recipients and claimants). If the legislature had wished to include potential claimants with residence orders they could have included them within the eligibility for claims. They did not.

 

58.  In my view section 39A can only properly be read one way. It is primary legislation and is too clear to admit of a remedy by interpretation. I concur with the Secretary of State’s submission that is not possible to interpret section 39A in a way that would entitle the claimant to WPA. It is not possible to interpret “is entitled to child benefit” in s39A(2) as “has a residence order”. It is not possible to interpret “son or daughter” in s39A(3)(a) as “grand-daughter or grand-son”. It is not possible to interpret “immediately before his or her death” in s39A(3)(b) as “after his or her death”. Such interpretations would be re-writing the legislation to give it a very different meaning.

 

59.  The alternative, if this were the High Court or Court of Appeal, would be to grant a declaration that the claimant was entitled to WPA (assuming once again I was with her on the substantive arguments surrounding the Convention.) That would allow the Secretary of State to decide how best to reformulate the legislation so as to exclude the potential discrimination identified in the present case. That remedy however is not open to the Upper Tribunal. The phrase ‘declaration of incompatibility’ has a precise meaning under section 4 of the Human Rights Act 1998, but relates to a declaration made by a court no lower than the High Court. Although this Tribunal is a superior court of record, it is not the High Court. This is what was referred to in AB v Secretary of State for Work and Pensions (JSA) [2013] UKUT 288 (AAC) as a ‘jurisprudential straight-jacket’.  As Upper Tribunal Judge Turnbull in SH v Secretary of State for Work and Pensions (JSA) [2011] 428 (AAC) stated:

 

17. Under the adjudication and appeal system for social security benefits, the earliest point at which a declaration of incompatibility could be sought is the Court of Appeal. Neither a First-tier Tribunal nor the Upper Tribunal has power to make such a declaration.

 

60.  He added, at para 21 of SH:

 

21. The extent to which it is appropriate for the Upper Tribunal, in a case where the only possible remedy would be a declaration of incompatibility, to enter into the merits of the claimant’s contentions that legislation infringes the Convention must in my judgement depend on the circumstances of the particular case.

 

61.  I do not propose to look at the merits in any detail, save to say that my reservations would include whether the Court in Francis intended for its decision to have any broader application beyond the facts in that particular case. I note for example that the Court of Appeal in Francis was considering a one-off payment, where perhaps the consequences of their decision would be less burdensome. The instant case concerns an arguably more valuable benefit, and in my view any court would be slow to open the gateway to persons with parental responsibility having a potential claim to WPA unless there were very persuasive reasons to do so. I remind myself that more than one person may have a residence order for the same child and thus the pool of potential claimants would be widened considerably. Further, while section 3(1) of the Human Rights Act 1998 draws no distinction, I take on board the Secretary of State’s concern that in Francis the Court of Appeal appears to have been considering secondary legislation, whereas I am considering primary legislation. I cannot therefore say with confidence that the Court of Appeal in Francis would have reached the same decision in this case.

 

62.  I do not find it necessary to go any further. I lack the jurisdiction to make a declaration of incompatibility. This appeal by the Secretary of State must succeed.

 

Conclusion

 

63. As a result I must set aside the tribunal’s decision and substitute my own. The decision of the FTT to allow this appeal was in error of law.

 

64. Although the claimant understandably urges me to show compassion, I must follow the terms of the legislation in this regard.

 

65. For completeness there was one further element to the claimant’s original appeal, namely the offset of overpaid carer’s allowance against arrears of bereavement allowance which was due for the same period. This aspect of the decision did not appear to be in dispute and, in any event, the payment of both benefits for the same period is not permissible, and as a result I uphold also that element of the original decision.

 

66. I substitute my own decision accordingly as set out in the Preamble above.  

 

 

 

 

 

 

 

 

 

M Sutherland Williams

Judge of the Upper Tribunal

 

Signed on the original on 29 October 2015