NMcA-v-Department for Social Development (SF) [2012] NICom 300

Decision No:  C1/12-13(SF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL FUND

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 9 May 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the tribunal sitting at Enniskillen on 9 May 2011.

2.	An oral hearing of the application has not been requested and I consider that the application can properly be determined without a hearing.

3.	I grant leave to appeal.  However, I disallow the appeal having considered the merits of the case.

	My reasons are set out below.

REASONS

	Background

4.	The applicant claimed a sure start maternity grant on 31 March 2011 in respect of the prospective birth of a child due on 12 June 2011.

5.	The law governing entitlement to the sure start maternity grant changed on 23 March 2011.  The legislative change had the effect of removing entitlement to the grant where there was already a child aged below 16 in the family.  The applicant’s family included two other children under the age of 16.  On 1 April 2011 the Department decided that the applicant was not entitled to a sure start maternity grant.  She appealed.

6.	The appeal was heard by a tribunal on 9 May 2011.  This appeal was in the applicant’s absence, as she had indicated that she did not want an oral hearing. The tribunal disallowed the appeal. The applicant requested a statement of reasons for the tribunal’s decision. 

7.	On 5 August 2011 a statement of reasons was issued, together with a record of the proceedings.  The applicant applied to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.  On 22 August 2011 the legally qualified member refused leave to appeal and this determination was notified to the applicant on 12 September 2011.

8.	The applicant then made an application for leave to appeal directly to the Office of the Social Security Commissioners which was received on 3 October 2011.

	Submissions

9.	The applicant submits that:

(i)  there had been no publicity surrounding the change of legislation and a lack of communication within the Department making refusal of a grant unfair;

(ii)  her child was born ten days ahead of the expected date, and therefore she should have been able to claim before the law changed on 23 March 2011.

10.	On 6 December 2011 the Department was invited to make observations on the applicant’s grounds.  Mrs Rush replied on behalf of the Department.  She submits:

(i)  the amended legislation was correctly applied by the tribunal;

(ii)  transitional arrangements within the legislation did not apply to the applicant;

(iii)  the actual date of birth of the applicant’s child had no bearing on the application as it was after 11 April 2011;

(iv)  the Department’s decision clearly states the reason for disallowance, whatever other information the applicant might have been given.

11.	On 5 January 2012, the legal officer in the Office of the Social Security Commissioners directed the Department to consider reported Commissioner’s Decision R1/79(MB) and to provide views as to whether it is relevant to the present application.

12.	On 16 January 2012, Mrs Rush replied to submit that any incorrect advice given to the applicant would not have had any bearing on her appeal.

13.	The applicant responded by noting that the Department conceded that the legislation had been passed quickly and that it did not have time to publicise any changes to the law.

	Legislation

14.	The legislation governing entitlement to the sure start maternity grant is to be found in the Social Fund Maternity And Funeral Expenses (General) Regulations (Northern Ireland) 2005 (S.R. 2005 No. 506) (“the 2005 Regulations”).  The main provision is regulation 5. This reads:

‘5.—(1)  Subject to regulations 5A and 6, a payment of £500 to meet maternity expenses (referred to in these Regulations as a “Sure Start Maternity Grant”) shall be made in respect of a child or still-born child where the following conditions are satisfied.

(2)  The first condition is that the claimant or the claimant’s partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded—

(a)  income support;

(b)  state pension credit;

(c)  an income-based jobseeker’s allowance;

(d)  working tax credit where the disability element or the severe disability element of working tax credit as specified in regulation 20(1)(b) and (f) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002(b) (maximum rate) is included in the award; or

(a)  child tax credit payable at a rate higher than the family element; or

(b)  an income-related employment and support allowance.

(3) The second condition is that—

(a)  the claimant or, if the claimant is a member of a family, one of the family is pregnant or has given birth to a child or a still-born child;

(b)  the child’s parents are not partners at the date of the claim and the claimant—

(i)  is the parent (but not the mother) of the child (who must not exceed the
age of twelve months at the date of the claim), or is responsible for that
parent, and

(ii)  is responsible for the child; 

(c) the claimant or the claimant’s partner—

(i)  has been granted a qualifying order in respect of a child who does not exceed the age of twelve months at the date of the claim, and

(ii)  is responsible for the child;

(d) the claimant or the claimant’s partner—

(i)  has been appointed the guardian of a child who does not exceed the age of
twelve months at the date of the claim, and

(ii)  is responsible for the child;

(e)  a child who does not exceed the age of twelve months at the date of the claim has been placed by an adoption agency with the claimant or the claimant’s partner, by virtue of an order freeing a child for adoption and the claimant or the claimant’s partner is responsible for the child; or

(f)  the claimant or the claimant’s partner has adopted a child who does not exceed the age of twelve months at the date of the claim and that adoption falls within Article 39(1)(cc)(a) and (d) of the Adoption Order (meaning of “adoption” in Part V).

(4)  The third condition is that the claimant or the claimant’s partner has received advice from a health professional—

(a)  on health and welfare matters relating to the child (but this requirement does not apply where the claim is made after the birth of a still-born child); and

(b)  where the claim is made before the child is born, on health and welfare matters relating to maternal health.

(5)  The fourth condition is that the claim is made within the prescribed time for claiming a Sure Start Maternity Grant.’

15.	It is not disputed that the applicant satisfies the main conditions of regulation 5, which contains the four threshold conditions to entitlement. 

16.	As indicated above, legislative amendments with effect from 23 March 2011 introduced a new regulation 5A to the 2005 Regulations. Regulation 5A was inserted by regulation 2(4) of the Social Fund Maternity and Funeral Expenses (General) (Amendment) Regulations (NI) 2011 (SR 2011 No.130) (“the 2011 Regulations”). This has the effect of restricting entitlement, notwithstanding that the four conditions in regulation 5 are met. It reads, so far as directly relevant:

‘5A.—(1)  In this regulation “C” is the child or still-born child in respect of whom a Sure Start Maternity Grant is claimed.

(2)  Except where paragraph (3) or (4) applies, a Sure Start Maternity Grant shall not be awarded if, at the date of the claim, any member of the claimant’s family apart from C is under the age of 16.
…

Transitional provisions were also introduced by the 2011 Regulations. By regulation 3:

(1)  The amendments made by regulations 2(3)(a) and (4) do not apply in a case where any of paragraphs (2) to (7) apply.

The only potentially relevant measures are regulations 3(2) and 3(3) which read:

(2)  This paragraph applies in a case where-

(a)  the claimant falls within regulation 5(3)(a) of the principal Regulations;

(b)  the claim is made before C’s birth;

(c)  the claim is made before 11th April 2011; and

(d)  the expected date of confinement is before 11th April 2011.

(3)  This paragraph applies in a case where-

(a)  the claimant falls within regulation 5(3)(a) or (b) of the principal Regulations;

(b)  the claim is made after C’s birth; and

(c)  C is born before 11th April 2011.’

17.	Further relevant provisions include regulation 19(1) and paragraph 8 of Schedule 4 to the Social Security (Claims and Payments) Regulations (NI) 1987.  These provide that the prescribed time for claiming a maternity grant is, “in a case where regulation 5(3)(a) of the Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 2005 (“the 2005 Regulations”) applies, 11 weeks before the first day of the expected week of confinement and ending 3 months after the actual date of confinement”.

	Assessment

18.	In all the circumstances of the case, I grant leave to appeal.

19.	The applicant’s first point relates to the manner in which the legislative change was introduced.  The amended regulations came into effect on 23 March 2011.  When the applicant claimed in the following week, she says that information given to her did not alert her to any change in the rules of entitlement and had not yet been altered to reflect the amendment which had occurred.  She says that she first became aware of any change in entitlement rules from television news on 6 April 2011.  She also says that she was told by her local social security office that the “cut-off point” for the change in the law was 6 April 2011.  If this is what she was told, it was not accurate.

20.	I can sympathise with the applicant’s position.  She claimed on a date which meant that she was one of the first people affected by the removal of entitlement effected by the 2011 Regulations.  I do not doubt that there may also have been uncertainty among those administering social security benefits, as there can be when the basis of entitlement changes.

21.	While the 2011 Regulations only came into effect on 23 March 2011, I note that their Great Britain equivalent became operational on 24 January 2011.  Both sets of regulations were aimed at implementing a policy change first indicated as part of the “emergency budget” of 22 June 2010.  The policy change was announced to Parliament on 20 January 2011.  Although the GB and NI regulations have different dates for coming into operation, in fact the transitional provisions dis-apply the new regulation 5A in relation to pregnancies where there is an expected date of confinement before 11 April 2011, and where children are born before 11 April 2011.  Thus, the regulations only began to have effect for children born from and including 11 April 2011 or where the expected date of confinement is on or after 11 April 2011.  This is a date common to the GB and NI regulations.

22.	The applicant’s first point is essentially that she was not given accurate information about her potential entitlement.  Had she known about impending changes in the law she could have claimed earlier.  Perhaps there is also a suggestion in her first submission that she should be entitled to the sure start maternity grant on the basis set out in existing Departmental information and advice, which was misleading to her.

23.	The period for claiming is prescribed for sure start maternity grant as the period beginning 11 weeks before the first day of the expected week of confinement and ending three months after the actual date of confinement.  In the applicant’s case the expected “date of confinement” – the best guess of maternity services as to when the baby might be born - was 12 June 2011.  This was a Sunday.  The Claims and Payments Regulations define a week as a period of seven days beginning with midnight between Saturday and Sunday.  Thus, in the applicant’s case, the expected week of confinement was the period from 12 to 18 June 2011.  The period beginning 11 weeks before the expected week of confinement was therefore the period beginning on 27 March 2011.  The applicant could not make a valid claim for sure start maternity grant before 27 March 2011.

24.	The amended regulations came into effect on 23 March 2011 and therefore the basis of entitlement operating at the earliest valid date of claim for the applicant was the amended basis of entitlement.  The law governing claims for benefit therefore prevented the applicant making a valid claim for sure start maternity grant under the provisions applying until 23 March 2011.  As this was the case, it does not really matter what information was given to the applicant about her right to the grant, she could not have claimed during the period prior to the amendment of the law which removed her entitlement.

25.	The fact that misleading information was still in circulation in official leaflets would not have altered things.  There can be no legitimate expectation that the Department will adhere to the terms of the information it has issued where legislation requires the Department to act in a different way (see eg R v Department for Education and Employment, ex parte Begbie [2000] 1 WLR 1115; R v Staffordshire Moorlands District Council, ex parte Bartlam (1999) 77 P & CR 210).

26.	The applicant further submits that her child was in fact born on 2 June 2011, ten days earlier than the expected date of confinement of 12 June 2011.  On this basis she argues that the period for claiming should have commenced ten days earlier.  On the logic being applied by the applicant, this would mean that the period for claiming would begin on 13 March 2011.

27.	I cannot accept this argument.  I accept that the period for claiming after a birth is affected by the actual date of birth.  By paragraph 8 of Schedule 4 to the Claims and Payments Regulations it ends three months after the actual date of confinement – and by Schedule 4 this is the date of the birth of the child.  However, the period for claiming before a birth is calculated with reference to the expected week of confinement.  If a child is born prematurely, this does not have the effect of altering the expected week of confinement.  Despite the fact that the applicant’s baby was born on 2 June, her expected week of confinement was nevertheless still the week commencing 12 June 2011.

28.	For these reasons I must disallow the appeal.

(signed):  Odhrán Stockman

Commissioner

9 July 2012