Commissioner's File: CF/019/1994

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER 

Appeal Tribunal: Bromley SSAT 

[ORAL HEARING]

1. For the reasons given below the decision of the social security appeal tribunal given on 4 May 1994 and holding that the claimant was not entitled to child benefit for her daughter from 9 November to 27 December 1992 or from 18 January 1993 onwards was in my judgment erroneous in law. The decision must therefore be set aside, and as there is no real difficulty in determining the relevant facts from the papers, I exercise the power in s.23(7)(a) Social Security Administration Act 1992 to substitute the decision that I consider should have been given by the tribunal. 

2. My decision is that: 
(1) whether or not the claimant's daughter fell to be treated as having been in the care of the local authority at any time from 9 November 1992, she did not fall within any of the circumstances prescribed under reg.16(5) Child Benefit (General) Regulations 1976 S.I. No.965 at any time while at home or at the special school she attends in Scotland; 
(2) although the provision of accommodation for her by way of respite care in one of the local authority's own homes is capable of falling within the wording of reg. 16(5)(f), reg. 16(6)(a) applies so that her parents cannot be disentitled to child benefit for her for any week before the 9th in any period of consecutive weeks in each of which such respite care has been provided; and 
(3) any week in which no respite care is provided has the effect of breaking the chain of consecutive weeks, so that the period under reg. 16(6)(a) begins again each time respite care is provided after such a break; and only if there is an unbroken succession of 9 consecutive weeks, in which respite care is provided, will it become necessary to consider whether her parents are disentitled or whether any of the remaining conditions of reg. 16(6)(b ) apply to prevent this. 
3. I held an oral hearing of this appeal at which the claimant was represented by Mr S. Cox of Counsel, from the Free Representation Unit, instructed by Mr N. Sheppard of the Disability Law Service; and the adjudication officer by Mr S. Sriskandarajah of the Solicitor's Office, Department of Social Security. I am grateful to Mr Cox in particular for a helpful skeleton argument and chronology. 

4. This case concerns child benefit for a young lady now aged 17 who is unfortunately severely mentally handicapped. Because of her disability it has become increasingly difficult for her parents to give her the specialist care she needs at home, and from Autumn 1992 she has been attending a special residential school in Scotland which was decided to be the most suitable education for her, after an assessment and no doubt much anxious consideration by her parents in conjunction with their local authority. The fees for this school are paid by the local authority, but all clothing and other incidental expenses have to be met by her parents who retain full parental responsibility for her. During the school holidays, which total about 13 weeks a year, she returns from Scotland to where her parents live in the South of England; and during the first year spent most of her holidays at home but has increasingly had to be provided with accommodation and 24 hour care in one of the local authority's own special homes equipped to cope with people suffering from her type of behavioural and other disorders. 

5. As I have said her parents retain full parental responsibility for her and there is no question of the local authority having at any stage exercised their statutory powers to take her formally into care. This appeal however arises from the stopping of her child benefit on the ground that she had been "taken into local authority care" from 30 July 1992 which was the date given by the local authority as when they began to look after her by providing suitable accommodation for her. According to the local authority's statement dated 6 November 1992 (pages T9 to T10) the local authority had from then on been exercising its powers under ss.17 and 20 Children Act 1989 by providing accommodation either in respite care or by financing her education at the independent special school. 

6. The claimant understandably objected to her daughter being categorised as a child in local authority care, and to the implication that she was no longer responsible for her daughter or paying expenses for her. She appealed against the termination of her daughter's child benefit, and the tribunal on 4 May 1994 rejected the appeal on the ground that they were satisfied that her daughter was being provided for by the local authority Social Services Department in the weeks she was not actually at home, and had therefore to be treated, in the period after this accommodation was first provided, as in the care of the local authority in the sense that she was being provided with accommodation by it under s.20 of the Children Act 1989. She thus fell within the circumstances prescribed in reg. 16(5)(f) of the Child Benefit Regulations referred to above, with the result that apart from an initial period of 8 weeks covered by reg. 16(6)(a) and a short period when she was home over Christmas 1992, her parents were disentitled to child benefit in respect of her.

7. She appeals with the leave of the tribunal chairman granted on 26 August 1994 on the ground that the tribunal have misinterpreted and misapplied the legislation and the regulations. The adjudication officer opposes the appeal on the principal issue of whether the claimant's daughter was rightly treated as in the care of the local authority, while drawing my attention to one technical way in which the tribunal may have erred in law by failing to record their own findings of fact in sufficient detail. On the view I take about the main issue, this technical point does not in fact arise. 

8. The primary legislation on child benefit which is now set out in Part IX Social Security Contributions and Benefits Act 1992 has remained unaltered in all material respects from its first introduction as the Child Benefit Act 1975. Its basic principle in what is now s. 141 of the 1992 Act is that a person who is responsible for one or more children in any week shall be entitled, subject to the provisions of Part IX of the Act, to child benefit for that week in respect of each child for whom he is responsible. By s. 143 a person is to be treated as responsible for a child in any week if he has the child living with him in that week or is contributing to the cost of providing for the child at or above the weekly child benefit level (now either £10.40 or £8.45 a week). 

9. By s. 144(2) and Sch.9 (in terms identical to s.4(1) and Sch. 1 Child Benefit Act 1975) entitlement to child benefit is excluded altogether: 
"Except where regulations otherwise provide, ... in respect of a child for any week if in that week the child - 
(a) is undergoing imprisonment or detention in legal custody; 
(b) is subject to a supervision requirement made under s. 44 Social Work (Scotland) Act 1968 and is residing in a residential establishment within the meaning of that section; or 
(c) is in the care of a local authority in such circumstances as may be prescribed." 

10. At the time this was enacted in 1975, there were numerous statutory provisions under which a child might be taken or committed into the care of a local authority. The most important was s. 1 Children Act 1948, under which a local authority had a duty to take a child in their area into care in specified circumstances, such as that he had been abandoned by his parents or they were incapable of providing for him properly. Once a child had been taken into care under this section various duties and other legal consequences followed under that Act, such as the local authority being obliged to provide for his accommodation and maintenance. 

11. The child benefit regulations in their original form (1976 S.I. No.965) reflected this statutory context by prescribing for the purposes of para. 1( c ) of the schedule a list of circumstances where a child had been received or committed into the care of a local authority, under one of some ten or twelve different statutory provisions. The provisions in para. 1(c) of the schedule to the 1992 consolidating Act which give the authority to prescribe circumstances when entitlement to child benefit may be excluded for a child in the care of a local authority are in all practical respects identical to those of the 1975 legislation, but the list of prescribed circumstances under reg. 16(5) of the regulations has seen numerous alterations. Reg. 16(5)(a) in its present form follows the earlier pattern by referring to reception into care under s. 2 Child Care Act 1980 (which was similar to s. 1 of the 1948 Act); but the new provisions added (by 1991 S.I. No.2105, from 14 October 1991) as regulations 16(5)(f) to (h) depart from it by referring to provisions of the Children Act 1989 which were radically different in their effect. Reg. 16(5)(f) in particular refers not to a child who is received or committed into the care of the local authority under any provision, but to one "provided with accommodation by a local authority under sections 20 or 21(2)(c) of the Children Act 1989 (provision of accommodation for children)". 

12. It is this provision which the adjudication officer contends excludes entitlement to 
child benefit in the present case even though the claimant's daughter has never in fact been taken into the care of the local authority at all. If the adjudication officer's contention is right, it becomes necessary to consider reg. 16(6) under which if entitlement is taken away under one of the heads in reg. 16(5) it is given back again if various conditions are satisfied. The most relevant for the present purpose is reg. 16(6)(a) already referred to, under which entitlement to child benefit is reinstated for a child in local authority care for any week 
"unless that week is the 9th or a subsequent week in a series of consecutive weeks in which any of [paras l(a)-(c) Sch. 9 ... child in detention, care etc.] have applied to that child;" 
There follow various other ways in which entitlement may be reinstated even for the 9th and following weeks, such as that the person claiming benefit actually has the child living with him for a specified period during the relevant week, but it is not necessary to set them all out in detail here. 

13. The issues to which this appeal appears to me to give rise are first, whether para. 1(c) of Sch. 9 can apply to exclude child benefit at all, since the claimant's daughter is not in fact in local authority care; with the consequence that the question whether she falls within one of the prescribed circumstances under reg. 16(5) may never arise. Second, if the arrangements made for her are enough to bring her within the exclusion in para. 1(c), do both or either of the school and respite care arrangements made for her by the local authority count as the provision of accommodation under ss. 20 or 21 of the Children Act so as to bring her within reg. 16(5)(f); and third, to the extent that they do, is she thereby to be treated as continuously in the care of the local authority until they finally cease to provide such arrangements, or does she count as being in their care only while accommodation is actually being provided for her, so that the 8 week period for which benefit is re-instated under reg. 16(6)(a) starts to run all over again each time there is a week when she returns home. 

14. On the first of these issues Mr Cox reserved his position and he and Mr Sriskandarajah both urged me to give a decision that would not make the outcome of this appeal depend on it. The reason they did this was because the same issue is already due to be considered by the Court of Appeal in another case, on file CF/044/93, in which the Commissioner has decided that the expression "in the care of the local authority" under para. l(c) is capable of applying to a child being looked after in local authority accommodation under s. 20 of the Children Act 1989 without having formally being taken into care. In so holding the Commissioner followed an earlier decision in R(SB) 28/84 on supplementary benefit. 

15. No argument was therefore addressed to me on this issue and I do not propose to decide it, although it does appear to me that there is a powerful argument for saying that the regulations cannot extend the "prescribed circumstances" wider than the ambit of Sch. 9 para. 1(c) itself; and that the natural meaning of the expression "in the care of a local authority", in the context of the other instances in para. 1 where parental rights and responsibilities were excluded or curtailed by the detention, etc. of the child, would in 1975 have been to refer a case where some formal action had been taken by the local authority affecting parental responsibility, and not just the provision of education, accommodation or other services. These, and the question of whether the meaning in the consolidating legislation is in any way affected by the decision in R(SB) 28/84, (cf. R v Chard [1984] AC 279, 294-5) will no doubt have to be considered in due course by the Court of Appeal. Fortunately, I do think it is possible to dispose of the present appeal on the basis of the other issues. 

16. In the appeal before me, Mr Cox withdrew, as he was entitled to, the previous acceptance in a letter of 1 August 1994 (page 36) that the arrangements at issue in this case amounted to the provision of accommodation by the local authority under s. 20 Children Act 1989. He invited me to approach the question factually and determine whether the circumstances fell within reg. 16(5)(f) by reference to what had actually been happening rather than by the statements from the local authority as to the powers under which it considered it had been acting. In my judgment, this must be the right approach, since for the question to arise at all it is necessary to have adopted a broad factual approach to the meaning of the expression "in care" by reference to its ordinary natural meaning as held in R(SB) 28/84 and CF/044/1993; and I can see no justification for doing anything else when one comes to "provided with accommodation" in reg. 16(5)(f). 

17. In my judgment, the provision of financial assistance by payment of school fees for an independent specialist boarding school is not within the ordinary and natural meaning of the expression "provided with accommodation by a local authority", even though for what are no doubt perfectly proper reasons the money has been provided by the local authority in this case in exercise of its powers under the Children Act to assist children in its area, rather than under its powers as an education authority. So far as the periods the claimant's daughter spends away at boarding school are concerned, I therefore hold that the decision of the tribunal was erroneous in law in holding that reg. 16(5)(f) applied, and I therefore set their decision aside. 

18. The periods when the claimant's daughter is accommodated in a local home provided by the local authority itself do however appear to me to fall squarely within s. 20 Children Act 1989 and thus the wording in reg. l6(5)(f). It was submitted to me that the provision of respite care is something which is necessarily done by the local authority under s. 17 of the Children Act; but this section is a general one defining the duties of a local authority to provide services and assistance for children within their area who are in need of them, and does not seem to me in any way inconsistent with accommodation of any suitable kind being provided under s. 20 which sets out more detailed provisions dealing with that topic. I therefore reject Mr Cox's submission that, on the assumption that the provision of accommodation is enough for the claimant's daughter to count as "in care" at all, the respite accommodation is outside s. 20 and reg. l6(5)(f). 

19. That however is not the end of the story because even if the periods of respite care bring reg. 16(5)(f) into operation, they will only have the effect of depriving the claimant of child benefit for her daughter if any of them lasts for a continuous period of more than 8 weeks or if it can be said in some way that once reg. 16(5)(f) starts to apply it does not stop when the respite care is interrupted by periods at school or at home. Mr Sriskandarajah argued strongly that once a local authority had started to provide accommodation for a child so that s. 20 applied, the child had to be treated as having gone into local authority care and would remain so until "officially discharged" from such care. He therefore submitted that the 8 week period under reg. 16(6)(a) could run once and once only so as to relieve the claimant from disentitlement to benefit. 

20. I have no hesitation in rejecting this submission. If one has to accept that a child whose legal status has not in fact altered by being taken into local authority care has nevertheless to be treated as "in care" by reason of the fact of being provided with local authority accommodation for the time being, then it seems to me inevitably to follow that the question of whether the required state of facts exists to bring this about has to be ascertained on a continuous basis week by week during the period when what would otherwise be a clear entitlement to child benefit arises. It seems to me that Mr Cox is clearly right in saying that in each week one has to look to see whether the prescribed circumstances in reg. 16(5) apply, and if they do, then one goes on to apply reg. 16(6) to see if that week is the 9th or a subsequent week in a series of consecutive weeks since para. l(c) and reg. 16(5) last began to apply. 

21. In my judgment therefore, the 8 week exemption from disentitlement to benefit under reg. 16(6) is to be ascertained by reference to periods which start afresh each time there is a week in which no accommodation in respite care is provided for the claimant's daughter, because she is away at school or at home. On the evidence before me it does not appear that in the period under consideration by the tribunal there was in fact any unbroken period of more than 8 weeks in which respite care was being provided, but if there was, or there is such a period in the future, then it will become necessary to consider the further exempting provisions under reg. l6(6)(b)(i) to (iv). I do not propose to increase the length of this decision by going over all the conditions in those sub. paragraphs, but they will have to be applied by the adjudication officer if there should in fact be a respite care period of more than 8 weeks at any point. 

22. The effect of my decision is therefore that the claimant is not disentitled to child benefit for her daughter for the periods she is away at school in Scotland even though the fees continue to be paid by the local authority, and the question of any disentitlement for periods of respite care will depend on whether any of these lasts for more than 8 weeks. It will only be if this happens and the further exemptions under reg. l6(6)(b) do not operate that the first question on the validity of the regulations themselves can possibly arise, and this does not appear to be so on the evidence before me. I hope that what is set out above gives sufficient material for the adjudication officer to recalculate the claimant's entitlement and I am therefore not referring the case back for another tribunal hearing, but it may be restored to me for further mention if any difficulty over the actual implementation of my decision arises. 
  
23. The appeal is accordingly allowed and my decision in paragraph 2 above substituted. 
  
(Signed) P L Howell 
Commissioner 

(Date) 3 November, 1995