Decision No: C1/02-03(SF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL FUND

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 5 September 2001

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Legally Qualified Member, granted on 26 September 2002, against the decision of an Appeal Tribunal in which the Tribunal, disallowing an appeal, decided that the claimant was not entitled to a payment from the social fund in respect of a Sure Start Maternity Grant (SSMG).

2.	A hearing of this appeal took place on 10 June 2003 at which the claimant, who was present, was represented by Mr Allamby of the Law Centre (NI) while the Department was represented by Miss Stewart of the Decision Making and Appeals Unit.

3.	The facts of the case are as follows: -

The claimant is a single mother with three children.  In the summer of 1999 she became pregnant but did not reveal the circumstances of her pregnancy to anyone and received no ante-natal care or advice.  In late April 2000 she went to hospital and gave birth to a son on 30 April 2000.  Following the birth, the claimant suffered from both physical and emotional stress and felt unable, because of this, to decide to keep her child.  A Social Worker became involved and the claimant’s son was placed in foster care pending the claimant’s recovery and this allowed her further time to make an informed decision on the child’s future.   The claimant spent some time in hospital after the birth of her son because of the anxiety related problems.  Following detailed work between the claimant and her social worker, the claimant decided to look after her son and he was returned from foster care on 6 September 2000.  She then made a claim for a maternity grant on 26 September 2000.  This claim was disallowed as it was outside the absolute time limit for making such a claim.  She was notified of this decision on 30 September 2000.  On 22 November 2000 she lodged an appeal against this decision.  The claimant did not include in her letter of appeal any particulars of the grounds on which the appeal was made as required by regulation 33(1)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Following a request from the Appeals Service for details of the ground of appeal the claimant forwarded further particulars on 15 December 2000, whereupon her appeal was accepted as valid.  As there was an issue in relation to whether or not the appeal fell into the misconceived category, a hearing was conducted on 21 March 2001 when an Appeal Tribunal ruled, under regulation 48(5) that the appeal was not misconceived and should be returned to the Department for its further consideration.  The Department reconsidered the case but did not revise or supersede the earlier decision.  Accordingly the appeal came before a Tribunal for a full hearing on the substantive issues.

The appeal before the Tribunal was heard on 5 September 2001 but the full reasons were not issued until 12 August 2002.  The reasons for the Tribunal’s decision were set out in full by the Legally Qualified Member in a document consisting of more than 50 pages but, in the circumstances, I feel that it is not necessary for me to set out the content of the document in full.  

4.	The claimant, through the Law Centre (NI), sought leave to appeal on the following grounds: -

	“ARTICLE 6

	The tribunal misdirected itself in law by: -

(a)	holding that Article 6 of the European Convention of Human Rights did not apply to time limits for the claiming of a sure start social fund maternity grant and that, if it did apply that the existing time limit does not violate Article 6.  Jurisprudence of the European Court suggests that Article 6 applies to civil rights and obligations from the moment the proceedings commenced (see, for example, Golder –v- UK (1975) 1 EHRR 524 where denial of a prisoner access to a solicitor prior to filing a claim was held to be covered by Article 6).

ARTICLE 6 AND ARTICLE 8

(b)	holding that the setting of a rigid time limit was a proportionate response to meet a legitimate policy aim and did not impair the essence of the right and as a consequence, was not contrary to Article 6 and 8 of the Convention.

	The time limit of three months after the date of confinement for claiming a sure start social fund maternity payment is an absolute limit.  The tribunal’s findings that there has been a retention of special reasons in which a claim may be accepted outside the time limits (page 39 of the tribunal’s decision) does not apply to sure start maternity grants.

	The time limit does impair the essence of the right, in that a sure start maternity payment can only be paid to a claimant (or member of the claimant’s family) who has recently given birth or is pregnant and who is in receipt of a qualifying benefit.  In the circumstances applying in this case, the rules left neither [the claimant] nor the temporary foster carers entitled to receive a maternity payment for the child during the three months after the birth of the child.

(c)	by holding that the setting of a rigid time limit for claiming a maternity payment is a proportionate response to a policy aim.

	Entitlement to a maternity payment is determined by a specific act (pregnancy or childbirth) and receipt of particular benefits which are indicators of low income.  The resource implications of retaining the good cause provision are insignificant.  Moreover, as the payment is designed to support low income families and their newborn babies and alleviate childhood poverty, there is a strong policy argument for flexibility.  The policy aim as outlined by the government on 28 March 2000 was that: -

“… the introduction of the new Sure Start Maternity Grant which targets the very first stage of child development to create a better environment for more than one-in-four families in the country … Childhood poverty, poor health, reduced educational success and less opportunity to do well as an adult are key problems that this Government is tackling.  Focusing on crucial life stages through a variety of Government programmes will create a more healthy and successful environment to enrich the lives of all people… Sure Start aims to improve the life chances of young children by giving greater access to family support, child health services and early education.  I hope that it will also encourage parents to take up and continue to use the wide range of health services that are available to them”.
		
The maintenance of a good cause provision does not fatally undermine a general desire for clarity inasmuch as a specific time limit for claiming augmented by an overall time limit for good cause or special reasons could still reasonably meet the desire for administrative simplicity and certainty.

This case can be distinguished from the Court of Appeal decision in Tucker where a regulation depriving a tenant with a child from receiving housing benefit if the landlord was the other parent was held to be lawful as the regulation was proportionate in meeting a clear legitimate aim, namely protection against fraud or abuse.  Weighing up the aim of the sure start maternity payment, the impact of the rigid time limit and the reasons behind such a time limit, the factors in this case are of a discernibly different.”

5.	The domestic legislative background of the case is that a SSMG is provided for by section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, which states, inter alia: -

“134.-(1)  There may be made out of the social fund, in accordance with this Part of this Act –

(a)	payments of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, maternity expenses and funeral expenses; …”

Regulation 4 of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987 details the conditions of entitlement for the grant and provides, inter alia, that: -

“4.-(1)(c)  The claim is made within the prescribed time for claiming a Sure Start Maternity Grant.”

The prescribed time for claiming a SSMG is 11 weeks before the first day of the expected week of confinement and ending three months after the actual date of confinement in accordance with regulation 19 and Schedule 4, paragraph 8 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.

6.	However, the domestic legislation must be seen in light of the Human Rights Act 1998 which has brought into domestic law the principles set out in the European Convention on Human Rights.  Section 3 of the Human Rights Act provides that primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.  The validity of primary legislation which cannot be read in such a way as to be compatible with Convention rights is not affected.  Also, if subordinate legislation is found to be incompatible with Convention rights, its validity is not affected if primary legislation prevents the removal of the incompatibility.  As the time limits in this case were set by subordinate legislation it seems relatively clear that if it were to be determined that it was incompatible with Convention rights, primary legislation does not prevent the removal of the incompatibility.

7.	Section 8(1) and (6) of the Act provides that in relation to any act of a public authority, which included a tribunal, which a court or tribunal finds is or would be unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just or appropriate.  Section 6(1) provides that it is unlawful for a public authority, including a tribunal to act in a way which is incompatible with a Convention right.

8.	Accordingly if I, as a Commissioner hearing this appeal, determine that the relevant legislation in question cannot be read as compatible with Convention rights under section 3 of the Human Rights Act, it is unlawful for me to apply the legislation.

9.	Mr Allamby originally submitted that the relevant legislation was incompatible with both Article 6 and Article 8 of the Convention.  However, at the hearing Mr Allamby specifically abandoned the Article 6 submission, which concerned the right to a fair trial, and relied solely on Article 8 of the Convention which relates to the right to respect for private and family life.

10.	Article 8 is in the following terms: -

	“				Article 8
			Right to respect for private and family life

1.	Everyone has the right to respect for his private and family life, his home and his correspondence.

2.	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

11.	In light of the fact that the claimant’s case is now founded on an alleged breach of this Article I consider that it is appropriate to quote that portion of the Tribunal’s reasons in relation to Article 8 (which, although fairly long, is only a small part of the statement of reasons): -

“Is Article 8 of the European Convention on Human Rights applicable to the issues arising in the present appeal?
(1)	Article 8 in general
Article 8 of the European Convention on Human Rights provides that:
(1)	Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As was noted above, Article 8 is a qualified right i.e. a right which although set out in positive form is subject to limitation or restriction clauses which enable the general public interest to be taken into account.

Article 8 is frequently litigated because of its extensive scope.  It protects four distinct rights – ‘private life’, ‘family life’ ‘home’ and ‘correspondence’.

(2)	The applicability of Article 8 to welfare benefits and entitlements

In Petrovic v Austria ((1998) EHRR 487), the European Court was asked to consider whether the refusal to pay the applicant a parental leave allowance contravened Articles 8 and 14 of the European Convention.  The Court held:

‘In this connection the Court, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.

Nonetheless, this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organized as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention.’

In R (on the application of Hooper and others) v Secretary of State for Work and Pensions ([2002] EWHC 191), the issue was the non-payment of certain types of widows’ benefits to widowers before the passing of the Welfare Reform and Pensions Act, which made widowers entitled to equivalent benefits.  The four widower claimants had submitted that the failure to pay them benefits to which women were entitled was, inter alia, in breach of Articles 8 and 14 of the European Convention on Human Rights.  Mr Justice Moses thought that Article 8 was applicable:

‘In my view, the availability of pecuniary support afforded by Widow’s Payment and Widow’s Pension does have a significant effect on the relationship of a family prior to the death of the spouse.  They form a significant part of a family’s plans for a secure future.  The Government itself emphasised the importance of the provision of bereavement benefits in making such plans when it advertised its proposals for new bereavement benefits: -

“From 9 April 2001, there will be new bereavement benefits for husbands and wives under retirement age.  Widows and widowers claim a tax-free £2,000 payment of course the last thing you want to think about is the death of your loved one.  But it makes sense to understand how the new bereavement benefits will affect you and see how it can be built into your pension and life insurance plan.  By seeking advice now, you can plan for a more secure future”.

Thus, albeit in the context of the changed proposals designed to apply to both widowers and widows, the Government acknowledged the importance of these benefits in the context of family financial planning.  Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse.

There is further support for the proposition that financial planning for the future falls within the scope of family life.  In Marckx v Belgium [1979] 2 EHRR 330, the mother (Paula Marckx) complained as to the limitation of her capacity to bequeath property to her illegitimate child.  Such limitations fell within the ambit of Article 8 because they inhibited the illegitimate child’s integration into its family (see paragraph 31, page 342).  The Court found a violation of both Article 8 and Article 14, taken in conjunction with Article 8.  It is true that this case concerned a disposition in contemplation of death during the course of family life and not payments after the death of a spouse.  But the case is of significance in demonstrating the importance of financial arrangements made as part of the enjoyment of the rights protected by Article 8.

Moreover, Widow’s Payments and Widow’s Pensions form part of a congeries of provisions, all of which are designed to provide support to a surviving spouse at different stages of her life.  Widow’s Payments under Section 36 are one-off payments made immediately on bereavement.  Widowed Mother’s Allowances are paid whilst she looks after dependent children and Widow’s Pension payable in the longer term between the ages of 45-65 when she has finished bringing up her children.  Viewed as part of a package, the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband.

Accordingly, for those reasons I conclude that the failure to make Widow’s Payment and Widow’s Pension available to a surviving widower falls within the ambit of Article 8(1).’

In Tucker v Secretary of State for Social Security ([2001] EWCA Civ 1646) the Court of Appeal upheld the rejection by the High Court of a challenge to the validity of a regulation which deprived a tenant of housing benefit if she was responsible for a child of whom the landlord was the other parent.  The challenge was made, in part, under Article 8.  Lord Justice Waller thought that Mr Justice Maurice Kay, had applied the correct tests, holding that Article 8 did not include a positive obligation to provide financial support.

In the High Court, Mr Justice Maurice Kay had stated:
‘Any attempt to rely upon Article 8 alone to sustain a Convention right to a welfare benefit faces difficulty.  The Strasbourg jurisprudence tends not to interpret the obligation on the state to respect family life in such a way as to require financial support.  Thus, in Petrovic v Austria (1998) 4 BHRC 232, the European Court of Human Rights had to consider Austrian legislation whereby parental leave allowance could be claimed only by mothers who stayed at home to look after children and not by fathers.  The Court stated (at para. 26):

“In this connection the Court, like the Commission, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on states to provide the financial assistance in question.”

It was on the basis of this judgment, which had been foreshadowed by the Commission in applications such as X v. Federal Republic of Germany (1956) 1 Yearbook 202 and Anderson and Kullman v. Sweden (1986) 46 DR 251, that Miss Baxendale submitted that Article 8 imposes no obligation on the state to provide financial assistance towards the payment of housing costs.  As a starting point, this seems to me to be incontrovertible.

I am prepared to assume that, on the basis of “ambit” or “scope” test, this is a case in which Article 14, taken together with Article 8, is applicable.  However, in my judgment the claimant has come nowhere near establishing a breach of the Convention.  It is appropriate for me to refer to some of the authorities on justification and proportionality.

In Rasmussan v. Denmark (1984) 7 EHHR 371 the European Court of Human Rights dealt with a case concerning an alleged discrimination in paternity proceedings.  One of the submissions on behalf of the Danish Government was that, in deciding whether the national authorities had acted within the relevant margin of appreciation, regard should be had to the economic and social circumstances prevailing at the relevant time in the country concerned and to the background to the legislation in question.  The Court stated (at para. 40):

“The Court has pointed out in several judgments that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law.  The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States.”

It concluded that a time bar which was absolute in relation to applications by men but was not so in relation to applications by women was within the margin of appreciation and did not transgress the principle of proportionality.  See also Stubbings v. United Kingdom (1976) 23 EHRR 213, at paras 70 and 71, and National & Provincial Building Society v. United Kingdom (1997) 25 EHRR 127, at paras 88-89.  There is, of course, a difference between the invocation of a margin of appreciation by the Strasbourg Court in exercising its supervisory jurisdiction and the role of a judge in a national court.  That difference was explained in Regina v. Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972 where Lord Hope of Craighead said (at pp 993-994):

“This technique is not available to the national courts when they are considering Convention issues arising within their own countries.  But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than a mere set of rules.  The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and the issue of proportionality.”

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society.  In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.  This point is well made at p.74, para. 3.21 of Human Rights Law and Practice (1999) of which Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as ‘the discretionary area of judgment’.”

This approach is mirrored in the speeches of Lord Bingham of Cornhill and Lord Steyn in Procurator Fiscal v. Brown (PC, unreported, 5 December 2000, Transcript, pp. 25 and 37 respectively).

I have no doubt that it is appropriate to apply these principles in the present case and that, when that is done, it is abundantly clear that regulation 7(1)(d) is within the discretionary area of judgment on the part of the Secretary of State, subject to parliamentary scrutiny by the negative resolution procedure.  I accept Miss Baxendale’s submission that it is a legitimate and proportionate response to the matters set out in Mr. Singh’s witness statement to which I have referred earlier in this judgment.  There is a need for an anti-abuse provision.  In my judgment the fact that the provision does not embrace an exception subject to a reverse burden of proof or a saving for existing arrangements by way of transitional provision (these being the two criticisms adumbrated by Mr. Drabble) does not render the regulation in its present form disproportionate.

Put another way, regulation 7(1)(d) pursues a legitimate aim and any differential treatment bears a reasonable relationship of proportionality to the aim sought to be achieved, viz. the eradication of abuse.  Moreover, any eviction of the claimant by Mr. Noble would be, as Miss Baxendale submitted, a matter for him and not necessarily an inevitable consequence of regulation 7(1)(d).  It is not without significance that, if the claimant is evicted, she would be eligible to apply for housing benefit in relation to another property with a different landlord.  I am mindful of the claimant’s evidence about the difficulties of finding alternative rented accommodation in Reading but I do not consider that they are such as to make an otherwise proportionate response a disproportionate one.’

In R (on the application of Reynolds) v Secretary of State for Work and Pensions ([2002] EWHC 426), the claimant submitted that differential amounts of benefit payments, based on the age of the benefit claimant, were in breach of several Articles of the European Convention, including Article 8.  Mr Justice Wilson also thought that Mr Justice Maurice Kay, in Tucker, had applied the correct test with respect to Article 8.

	‘In paragraph 22 of his unreported judgment Maurice Kay J. said:

“Any attempt to rely upon Article 8 alone to sustain a Convention right to a welfare benefit faces difficulty.  The Strasbourg jurisprudence tends not to interpret the obligations on the state to respect family life in such a way as to require financial support.”

Thus in 1987, in Vaughan v UK No. 12639/87, the applicant complained to the Commission that his supplementary benefit had not included a component to cover the travelling cost of contact visits to his home on the part of his children.  It was held:

“Insofar as the applicant complains that there has been a violation of his right to respect for family life under Article 8 of the Convention, the Commission considers that the right to respect for family life does not impose an obligation on States to provide financial assistance for the purpose of ensuring that individuals can enjoy family life to the fullest.”

In my view the Defendant’s failure to fund the travelling costs of Mr Vaughan’s children showed disrespect for his family life more arguably than did the Defendant’s level of support for Ms Reynolds show disrespect for her private life or her home.  Not even Mr Gill has been able to convince me that the broadly worded principle in Article 8 is apt to a challenge to the level of a social security payment.  Had I come to the contrary conclusion, I would have held, for the reasons set out in paragraphs 26 to 34 above, that the interference with the exercise of Ms Reynolds’ rights under Article 8 was justified.’

In Willis v United Kingdom (Apl 36042/97; unreported), the applicant again argued that the failure to pay him certain widows’ benefits discriminated against him in breach of Article 14 of the European Convention in conjunction with Article 8.  As the Court was able to find that no issue of discrimination contrary to Article 14 arose, it was unnecessary to consider the application of Article 8.  During the course of the proceedings, however, the United Kingdom government did conceed that the benefit in question did fall within the ambit of Article 8.  A similar conclusion was arrived at in Gaygusuz v Austria ((1996) 23 EHRR 364), and in CG v Austria ((1994) 18 EHRR CD 51).

In McAuley v Department for Social Development (NI High Court, unreported), the issue was whether, for the purposes of entitlement to Income Support, certain funds could be disregarded.  Among the arguments advanced was that to decline to disregard the funds was a breach of Article 8 of the European Convention.  Petrovic  and Gaygusuz were cited in support of this argument.  The Lord Chief Justice thought, in applying the qualification in Petrovic, that the refusal to disregard the funds in court could not be a breach of Article 8, since there was no positive obligation on States to do so.

(2)	Does Article 8 apply to the issues arising in the present appeal?

The appellant’s representative has argued that a means-tested payment to meet the maternity needs of a child does fall within the scope of Article 8, submitting that the payment targeted as it is on parents on low income is designed to augment and enhance family life.  In addition, the appellant’s representative has argued that there has been a violation of Article 8.  He submits that Article 8 is qualified in a number of circumstances, noting that paragraph (2) of the Article states that ‘there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’  The appellant’s representative has submitted that the only arguable qualification for an inflexible time limit is the economic well-being test, and that this could not be applied to the circumstances arising in the present appeal.  He states that given that the Sure Start Maternity Grant is means-tested and confined to mothers having a child or due to give birth, the economic impact of providing good cause for a late claim up to twelve months after a child is born would be nugatory.

The Department has argued that Article 8 does not apply to the issues arising in the present appeal, or, in the alternative, there has been violation of Article 8.  For that proposition, the Department relies, almost entirely, on the reasoning of the European Court in Petrovic, arguing that this decision confirms that Article 8 does not impose any positive obligation on States to provide financial assistance, and that, accordingly, a refusal to pay an allowance does not in itself amount to a breach of Article 8.

The appeal tribunal finds, in law, and in fact, Article 8 applies to the issues arising in this appeal.  The jurisprudence of the European Court and European Commission on Human Rights confirms that Article 8 is applicable, in general terms to welfare rights and benefits, see the cases of Petrovic, Gaygusuz, CG v Austria, and Willis above.  The jurisprudence of the enforcement bodies of the European Convention has been carried over into the findings of the United Kingdom domestic courts which confirms the applicability, in general terms, of Article 8 to social security benefits, see the cases of Hooper, Tucker and Reynolds above.  In particular the case of Hooper adds great weight to the applicability of Article 8.

The appeal tribunal also finds that in fact Article 8 applies to the issues arising in this appeal.  Announcing the doubling of the amount of a Sure Start Maternity Grant to be paid to expectant or new mothers, on 28 March 2000, the Social Security Minister stated: 

“… the introduction of the new Sure Start maternity Grant which targets the very first stage of child development to create a better environment for more than one-in-four families in the country … Childhood poverty, poor health, reduced educational success and less opportunity to do well as an adult are key problems that this Government is tackling.  Focusing on crucial life stages through a variety of Government programmes will create a more healthy and successful environment to enrich the lives of all people … Sure Start aims to improve the life chances of young children by giving greater access to family support, child health services and early education.  I hope that it will also encourage parents to take up and continue to use the wide range of health services that are available to them’.

The appeal tribunal has absolutely no doubt that the provision of a welfare benefit such as the Sure Start Maternity Grant is wholly designed to promote family life.  Applying the reasoning in Hooper, the appeal tribunal is strongly of the view that Article 8 is engaged.

The next question for the appeal tribunal to decide is whether there has been a violation of Article 8.  It is clear that Article 8 is subject to a number of qualifications.  The first of these is that the European jurisprudence, as confirmed by the rulings of the domestic courts, and as noted above, confirms the general principle that Article 8 does not impose an obligation on States to provide financial assistance for the purpose of ensuring that individuals can enjoy family life to the fullest. As such, if the appellant were to claim that Article 8 gives her an absolute right to an entitlement to a Sure Start Maternity Grant, she must fail.

The appellant could argue, however, that the imposition of time limits for claiming the relevant benefit, impairs the very essence of the right to claim it, and, given that the aim and purpose of the benefit is the promotion of family life, impinges on her right to a family life.  Further, and as the appellant’s representative has submitted, the removal of the possibility of an extension of a time limit, through the amendment of the general ‘good cause’ provisions for not appealing in time, further impairs the essence of the right, by removing from entitlement to welfare benefits which promote family life, those who could most profit from such an entitlement. 

The appeal tribunal is of the view that there is much in these arguments and came close to a finding that there was a violation of Article 8, based on them.  On balance, however, the appeal tribunal has followed the line of reasoning in Tucker, above, and, in particular, the analysis of the doctrine of the margin of appreciation and the principle of proportionality.  The High Court in Tucker had thought that in respect of Article 8, countries enjoyed a margin of appreciation which permitted regard to be had to the economic and social circumstances prevailing at the relevant time in the country concerned and to the background to the legislation in question.  Applying principles from Rasmussen v Denmark and Stubbings, the High Court through that time bars were appropriate where they pursued a legitimate aim, where there was a reasonable relationship of proportionality between the means employed and the aim to be achieved, and that the limitation imposed did not impair the very essence of the right.  In Tucker the High Court was able to apply those principles to find that the relevant legislative provisions were within the discretionary area of judgment on the part of the Secretary of State, subject to parliamentary scrutiny by the negative resolution procedure, and were a legitimate and proportionate response.  In this appeal, the appeal tribunal applies those principles equally to the legislative provisions relating to entitlement to the relevant benefit, time limits included.

For the reasons outlined above, in the discussion on Article 6, the appeal tribunal finds that the time limits are reasonable, pursue a legitimate aim and do not impair the essence of the right now under discussion, the right to family life.  As such, the appeal tribunal’s findings is that the right to family life, in Article 8, while engaged, is not violated.

The appeal tribunal has noted the submissions of the appellant’s representative, on the qualification imposed on Article 8, by its own paragraph 2, and has argued that none of the qualifications, particularly the qualification with respect to economic well-being, is applicable here.  It is arguable that the imposition of a time limit for the claiming of a social security benefit does serve the economic well-being of a country by imposing a degree of regulation on access to, and eventual payment of, social security benefits.  A country will know that if certain benefits are not claimed and/or paid by a certain date, the rules with respect to time-limits will mean that they will probably never be claimed or paid.  Certainty is introduced into social security economics.  The appeal tribunal is of the view that there is not much strength in this latter argument, but having found that Article 8 has not been violated, does not have to pursue it further. …”

12.	I find the Tribunal’s summation of the law and its conclusions in light of the law and the facts to be entirely persuasive.

13.	There is little doubt, as Mr Allamby has submitted, that Article 8 is engaged in this case.  He contended that the SSMG is part of a bigger picture dealing with the health and welfare of children in low income families and therefore, potentially, family life can be affected.  He also submitted that the three month time limit is not compatible with respect for family life and that the legal provisions in issue are not anti-abuse provisions, unlike the facts of the Tucker case (which was affirmed by the Court of Appeal – [2001] EWCA Civ 1646) referred to by the Tribunal.  In particular Mr Allamby submitted that there could be no legitimate aim achieved by restricting the claimant in the present case from achieving entitlement to the SSMG.  He relied on the decision of R (Chester) v Secretary of State for Social Security  [2001] DWHC Admin 1119, a decision of Collins J in the English High Court, which has suggested (at paragraph 14 onwards) that, while Article 8 does not require that a State pays money to enable a person to keep his family together, there is still an obligation to apply provisions in such a way as to enable individuals to receive state funds in such a way as does not breach their rights under Article 8.

14.	The Department’s submission on the Article 8 issue can be summarised as follows: - Article 8 is “engaged” but as it does not impose any obligation on States to provide financial assistance, a refusal to pay an allowance does not in itself amount to a breach of Article 8; and, in any event, the imposition of time limits is reasonable, pursue a legitimate aim and do not impair the essence of the right to family life – accordingly there is no violation of Article 8.

15.	I have to remember the restrictions imposed on a Commissioner hearing appeals from a Tribunal.  Before a decision of a Tribunal can be set aside, there must be an error of law in the Tribunal’s decision.  A Commissioner is not entitled to look at a Tribunal’s decision and hold that it is erroneous merely because the decision is one that the Commissioner, applying his own subjective ideas of justice and fairness, does not think is appropriate or proper.  Just as the Tribunal was required to do, a Commissioner has to apply the law.  In this case the domestic law is straightforward – and when it is applied, there is no doubt that the claimant is not entitled to a payment of SSMG because the application for the grant was not made within the statutory time limit.  I am not entitled to rewrite the legislation to enable this time limit to be ignored, even if I personally consider that people in a similar position of the claimant ought to receive SSMG.  However, as Mr Allamby has submitted, I ought not to apply the time limit if it is incompatible with primary legislation, namely the Human Rights Act 1998 which has brought Article 8 of the European Convention into domestic law.  

16.	The legislation clearly provides money for a parent to help maintain a baby who has become a new member of a family or family unit.  There is clear logic for such provision in social security legislation as additional expenses almost inevitably arise when a baby joins a family.  However, Mr Allamby has pointed out that the SSMG payment is also available to parents of adopted children and, in their case, the time limit ends three months after the date of the adoption order – paragraph 8(b) of Schedule 4 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.  Therefore the SSMG is not only a grant to enable young babies to be provided for but also can be used to support older children.  

17.	However, as Miss Stewart submitted, it is entirely reasonable and not incompatible with Article 8 of the Convention, for a State to provide a monetary grant to parents of children, whether young babies or older, when the children actually become members of a new family, by birth or adoption – and that imposing a time limit, even though a rigid one, on making an application for a grant is reasonable, bearing in mind the administrative implications, a proportionate response to a legitimate policy aim.

18.	I conclude that Miss Stewart was correct in her assertions and, accordingly I am not entitled to rewrite or disapply the legislation in such a way as to permit the claimant to make a late application, as the legislation specifically does not allow for such a late application.  Furthermore in my view the imposition of a time limit in these circumstances cannot be said to breach the claimant’s human rights.

19.	Mr Allamby has pointed out that in the special circumstances of this case no person will ever get an SSMG in relation to the claimant’s child as no other person made a claim for SSMG in relation to the claimant’s child.  Accordingly the State has ended up not paying a grant that in normal circumstances it would have had to have paid.  This may result in the Department considering the propriety of making an ex gratia payment equivalent to the grant – but I emphasize that this is not a matter within my jurisdiction.

20.	Accordingly I come to the conclusion that the Tribunal was correct in its decision that the claimant’s right to family life has not been violated.  Therefore, adopting the reasoning of the Tribunal (the relevant portion of which, in light of the submissions before me, I have set out at paragraph 11 herein) and for the additional reasons set out in paragraphs 15 to 19 herein, I dismiss this appeal.  However, it would be entirely remiss of me in the circumstances if I failed to thank specifically the advocates in this case, namely Mr Allamby and Miss Stewart, for their industry and legal learning which greatly helped clarify the relevant issues in this most difficult case.

(signed):J A H Martin QC
Chief Commissioner

21 January 2004