[2005] NISSCSC C7_03-04(IS) (9 September 2005)

Decision No:  C7/03-04(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 20 December 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave being granted by a Commissioner, by the claimant against a decision dated 20 December 2002 of an appeal tribunal sitting at Belfast.  The claimant is represented by Mr Allamby of the Law Centre (Northern Ireland) and the Department by Mr McNamara of its Decision Making Services Unit.

2.	The factual background to the case is that the claimant and her former partner had three children.  The claimant left her partner and the children, she states as a result of health problems caused by violence by the partner, but then returned to live with them.  In late May 2002 she and her children moved into a Women’s Aid Hostel.  She claimed income support (IS) on 31 May 2002.  She was awarded IS from 30 May 2002 for herself on the basis of her having to be available to care for the children but that award did not include any family premium or any allowance for the children until 27 June 2002.  Her former partner lost his entitlement to IS but remained entitled to child benefit (CB) until the week beginning 27 June 2002 and the claimant was not entitled to CB till then.  Neither the CB rules, the decision awarding CB to the former partner, nor the decision not to award same to the claimant until the week beginning 27 June 2002 has been  successfully challenged (if challenged at all).  Nor is there any challenge to the CB legislation in this appeal.  The dispute in the case relates to the IS family premium and allowance for the children (the additions for children) from 30 May 2002 to 26 June 2002.  

3.	The grounds of disallowance of the additions for children were that the claimant was not entitled to the additions as she did not satisfy the conditions of entitlement during the said period because she was not treated as responsible for the three children until 27 June 2002.

4.	Both before the tribunal and before me, the parties were agreed that under domestic social security law the Department’s decision was correct.  Both before the tribunal and before me the case was argued on the basis that Article 8 of the European Convention on Human Rights was engaged and regulation 15(1) of the Income Support (General) Regulations (Northern Ireland) 1987 was in violation of the claimant’s rights under that Article.  An alternative argument was made based on section 3 of the Human Rights Act 1998 to the effect that regulation 15(1) could be interpreted so as to be compatible with the Convention.

5.	The tribunal accepted that Article 8 was engaged.  It concluded, however that the claimant’s Article 8 rights were not breached.  Relying on the case of Petrovic v Austria (156/1996/777/976) (approved by the Court of Appeal in Northern Ireland in the case of McAuley v Department for Social Development [2001] NICA 15), the tribunal reasoned that the Strasbourg jurisprudence did not interpret Article 8 so as to oblige a state to pay money to keep a family together.   However if a state did decide to pay money it must do so in such a way as not to breach Article 8 rights (here it relied on Chester v Secretary of State for Social Security (2001) EWHC Admin 1119).  The domestic legislation linked the responsibility for children with the CB rules and there were good practical reasons for so doing.  Those rules provided a clear means of determining disputes over responsibility, promoted certainty and consistency and reduced the dangers of overpayment of benefit.  They were not discriminatory against the claimant within Article 14.  The tribunal concluded that claimant’s Article 8 rights were not breached by the linking of responsibility for a child with the receipt of CB and specifically with the rule giving priority in CB entitlement to the previous recipient for a three week period.

6.	The appeal to me was essentially on three bases.  The first was that the tribunal had erred in its conclusion that regulation 15(1) was not in breach of the claimant’s rights under Article 8.  The second was that, an interpretation should and could be given to regulation 15(1) based on section 3 of the Human Rights Act 1998 which would not violate Article 8.  The third was that the tribunal had concluded that any breach was justified under Article 8(2) and had erred in so doing.  I received very detailed submissions from the parties which included submissions on my powers if I should find that regulation 15(1) was incompatible with Article 8 and this breach could not be remedied by section 3.  Both parties were agreed that if I found regulation 15(1) to be incompatible with Article 8 I had no power to grant an appropriate remedy under the Human Rights Act.  I could not make a declaration of incompatibility under section 4 of that Act and section 6 thereof did not provide an alternative remedy.

7.	I do not propose to recite the submissions in detail, they are already set out in writing in the papers with one exception to which I allude later.  I am in agreement with the representatives that Article 8 is engaged in this matter.  I further agree with the parties that, absent the new rule of statutory interpretation imposed by section 3 of the Human Rights Act, the decision of the tribunal is correct.  Absent section 3, the claimant could not be treated as responsible for a child for whom she is not receiving CB and so could not be entitled to the family premium or to the personal allowances for the children until she received CB, that is till 27 June 2002.

8.	I am also in agreement with the parties that if I consider regulation 15(1) incompatible with the claimant’s Article 8 rights, unless an interpretation of regulation 15(1) can be given which is compatible with the claimant’s Convention rights, there is no other remedy open to me.  I would add, as is obvious, that no other remedy was open to the tribunal.  I also agree that I have no power to make a declaration of incompatibility.

9.	The Court of Appeal in Northern Ireland in the case of Department for Social Development v Sean MacGeagh and Patricia MacGeagh [2005] NICA 28(i) held that before invoking section 3 it was necessary first to decide whether, absent section 3, the relevant legislation would be in breach of Convention rights.  I do not consider that section 3 can assist in this case so to some extent my comments as to whether or not regulation 15 violates the claimant’s rights under Article 8 of the Convention are unnecessary.  However, in case I am wrong in that conclusion, I consider in line with the MacGeagh case, whether or not there is a violation of the Article 8 rights.  

10.	Article 8(1) provides that:

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

11.	It is agreed by the parties and I accept that the state is under no positive obligation under the Convention to provide any funds to keep a family together.  Neither party has contended that there is any breach of Article 14 of the Convention and I can perceive no such breach.  The legislation does not discriminate against the claimant’s enjoyment of her Article 8 rights on any ground “such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

12.	The written submission put to me on the claimant’s behalf was somewhat lacking as to the basis on which it was contended that regulation 15(1) actually breached the claimant’s Article 8 rights.  It appeared to move from the (accepted) contention that Article 8 was engaged to whether any restriction on the Article 8 rights was justified under Article 8(2).  However the argument before me at hearing and to the tribunal raised the matter.  I therefore examine whether there was, in fact, any breach of the claimant’s rights to respect for family life by regulation 15(1) and specifically by the link of entitlement to IS additions for children to receipt of CB.

13.	The claimant was awarded IS from 30 May 2002 on the basis that she was not available for work due to her child minding responsibilities.  Essentially the claimant is contending that she had actual financial responsibility for her children from 30 May 2002 and that, by not awarding her the additions for children, the state was violating her right to respect for her family life.

14.	The case of R (Chester) v Secretary of State for Social Security No: C0/1848/01 has been cited to me.  That case was not decided on the basis of whether legislation breached Article 8 rights.  It was a judicial review case which quashed a decision of the Secretary of State on the basis that he had failed to have regard to a relevant consideration, namely that, as a matter of law, he could have approached the award of CB in a way which could have reflected more exactly the division of care that took place.  The remarks of Collins J on the extent of Article 8 are therefore obiter.  The subject of comment in paragraphs 12-14 of Chester was not whether a statutory provision was incompatible with Article 8.  The comments dealt with whether the said statutory provisions which enabled the Secretary of State to choose which parent should receive CB, had been applied in such a way as to enable the individuals in question to receive state funds in such a way as did not breach their rights under Article 8.  In this present case it is being contended that regulation 15(1) as it stands is incompatible with Convention rights, not that it could have been applied differently.  In this case regulation 15(1) as it stands does not permit any discretion to the Department (the Northern Ireland equivalent of the Secretary of State) in the choice of who is to receive the additions for children.  I therefore find Chester of limited assistance in deciding whether Article 8 has been breached.  Chester was dealing with different provisions.  

15.	It appears that Mr Allamby is contending that regulation 15(1) is incompatible with Article 8(1) in that it links entitlement to the relevant IS additions to the receipt of CB.  The incompatibility is stated to lie in the fact that the mother actually had sole responsibility for the three children without recourse to additions for them for at least 3 weeks.  As IS is a subsistence benefit this, it is submitted, created a risk that the children might have had to return to their father or that the home might be otherwise broken up.

16.	Entitlement to CB is provided for by section 137 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  Essentially the relevant condition for entitlement to CB (section 137) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is that a person be responsible for a child.  A person is treated as responsible for a child (section 139(1) of the Act) in any week if:

“(a)  he has the child living with him in that week; or

(b)  he is contributing to the cost of providing for the child at a weekly rate which is not         less than the weekly rate of child benefit payable in respect of the child for that          week.”

17.	I can see no lack of respect for family life in linking IS entitlement to the above CB conditions.  They clearly indicate recognition of and respect for family life and I fail to see why IS entitlement for children should not be linked to them.  If someone does not either have a child living with him or contribute to that child’s upkeep at a weekly rate at least equal to the CB rate, he should not have CB.  Neither should he have child related additions in IS.   The link to the underlying conditions for CB avoids duplication of investigation.  CB entitlement being established on the basis of responsibility for children, it does not appear to me to indicate lack of respect for family life to make entitlement to IS child related additions dependent on satisfying the underlying conditions for child benefit, rather the reverse.

18.	The challenge which Mr Allamby makes however, is not founded on those basic conditions.  Rather it is based on the linking of entitlement to IS to receipt (ie payment) of CB and in particular to the rules on priority between persons who would be entitled to CB.  Obviously in most cases CB will be paid to the person with whom the child lives or who is contributing to the upkeep of the child at the relevant rate.   In most cases there will only be one claimant for child benefit or only one who can meet the relevant conditions.  In those cases the link works well.  However where more than one person could be entitled to CB, as here, there are certain priority rules which come into play and these are set out at Schedule 10 to the said Act.

19.	Paragraphs 1 and 2 of Schedule 10 reads as follows:-

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)	Sub-paragraph (1) above shall not confer any priority where the week to which the claim relates is later than the third week following that in which the claim is made.

Person having Child living with him

2.	Subject to paragraph 1 above, as between a person entitled for any week by virtue of paragraph (a) of subsection (1) of section 139 above and a person entitled by virtue of paragraph (b) of that subsection the former shall be entitled”.

20.	Essentially therefore the rules on priority, so far as relevant, are that an existing recipient who continues to be entitled to CB has priority over a new claimant for the first three weeks following the claim.  Thereafter the person with whom the child lives has priority over the person contributing to the child’s upkeep at the required amount.

21.	In this case I would again emphasise that the father’s right to CB is not challenged.  As he is entitled to CB and as the priority rules only relate to persons entitled he must therefore be taken to have continued to satisfy the conditions of entitlement for CB throughout the period when he received it.  As it appears unquestioned that the children ceased to live with him after 31 May 2002 the father’s entitlement to CB appears to be on the basis that he was accepted as having contributed to their upkeep at the relevant amount until his award ended.  The mother does not appear to accept this as being actually the case but the Department has I think, done so.

22.	I do not know what the actual facts of the father’s contribution, if any, were in this case.  Nor do I consider it necessary that I do so.  The merits of the continuing award of CB to the father is not challenged before me and is outside my jurisdiction in this case.  I must consider the rules on priority and whether the IS link to them is incompatible with Article 8.  I begin with the CB priority rules themselves. In giving priority for the first three weeks to existing recipients of CB over new claimants, these rules do not appear to me to evince a lack of respect for the family life of the new claimant for CB.  The family includes the children.  For the earlier recipient to have been entitled he or she must either have had the children living with him or contributed to the children’s welfare to the relevant level and to retain entitlement, must continue to satisfy either of those conditions.  The priority rules apply only where two or more persons would otherwise be entitled.

23.	I do not know the policy rationale behind the relevant priority rules but it does seem to me that there is no lack of respect for a new claimant’s family life shown by these rules per se.  If another person was and remains entitled to CB he or she can reasonably have priority for a short transition period without any lack of respect to the new family.  Expenses associated with children can remain for some time after they cease to be part of a family.  For example – extra heating and lighting costs, purchase of clothing and other items on instalments require payment after children cease to be part of a family unit.  Similarly where the children become part of a new family unit they will usually have the benefit and use of possessions acquired in the former unit.   If a former recipient continues to contribute (the basis of his entitlement) then there is no disrespect to the new family in that being recognised.  The rules do not appear to me to indicate any lack of respect for the family life of either the old or the new family.

24.	I come then to deal with the link to these rules by the IS rules.  IS is a subsistence level benefit.  Additions for children are therefore to be paid subject to the condition of the person being responsible for the children.  That responsibility is defined by reference to the receipt of CB the conditions for which define responsibility according to residence or financial contribution at a requisite level and which make certain rules as to priority of entitlement.  There is no Article 14 discrimination in that definition.  I have concluded that the rules for CB (including priority rules) do not of themselves violate any Article 8 rights.    It is somewhat difficult to see how the rule linking IS entitlement to CB rules which respect family life can of itself indicate disrespect for a claimant’s family life.

25.	Mr Allamby submits that the IS rules, though they work well for the vast majority of cases, operate harshly in this case though they do not operate in a way which is discriminatory within Article 14.  That may be so.  However I do not consider that the period of three weeks during which the claimant received IS for herself but did not receive the child related additions was such that it could be said to indicate a lack of respect for her family life.  It was, after all, under the same legislation that the claimant did eventually acquire entitlement to the additions.  After three weeks paragraph 2 of Schedule 10 became operative for CB and the mother acquired priority as the person with whom the children were living and became entitled to CB.  Once the mother was entitled to CB, regulation 15(1) operated so as to entitle her to the IS child related additions for children.

26.	I do have some unease as to the fact that actual individual circumstances were not investigated (and not required to be by regulation 15) and because the child related additions are worth much more than the amount of CB.  However the case of McAuley v Department for Social Development [2001] NICA 15 (approving Petrovic) decided that the state’s refusal to disregard funds in court which were not accessible (apart from occasional modest payments) to the IS receiving mother or her children could not be a breach of Article 8 “since there was no positive obligation on states to do so.”  The mother therefore could not obtain additions for her children.  In that case there was no indication that the mother had any other means of supporting her children and the refusal of additions for children was for a much longer period than three weeks.  Indeed it applied throughout the childhood of the relevant children.  The Court of Appeal nonetheless held the mother’s Article 8 rights not to be breached.  The ratio for both Petrovic and McAuley appears to be that because the state was not obliged by the Convention, to pay any funds to support family life, a failure to pay certain funds to a claimant could not amount to a failure to respect family life since Article 8 did not impose any positive obligation on the state to provide the financial assistance in question. In this case, I am dealing with a period of three weeks during which the state awarded the mother IS for her personal needs on the basis of her being available to care for the children but did not award her the additions for children because she did not satisfy the condition of being in receipt of child benefit.  It is agreed that Article 8 is engaged and that there is no Article 14 discrimination.  There is a remark at paragraph 14 of Chester as follows:
	
“It is quite clear from Strasbourg jurisprudence that the rights under Article 8 do not require that the state actually pays money in order to enable a person to have the wherewithal to keep his family together.  That is subject to many exceptions.  In the context of this case, although there is no obligation to pay any money, there is in my view an obligation to apply the provisions which enable, as a result of Social Security provisions, the individuals in question to receive state funds in such a way as does not breach their rights under Article 8.”

	The emphasis is mine.

27.	That paragraph refers to application of provisions which enable a choice to be made.  It is obvious that where that is in question the provisions should be applied where possible in such a way as not to breach Article 8.  At paragraph 16 of Collins J (referring to the obligation set out in the above extract from paragraph 14)  stated:

“That is as I see it, as far as Article 8 applies”.

	It appears to me that Chester does not conflict with Petrovic and McAuley and that those cases prevent me from concluding that there is any breach of the claimant’s Article 8 rights by regulation 15(1).  In this case, as in Petrovic and McAuley, the legislation permits no choice as to how it should be applied.

28.	Even apart from those cases and though there may have been some harshness in the claimant losing all the additions, I am not of the view that there was a breach.  A short period of time was involved.  It was never in my view likely that such a short period with personal IS entitlement but without entitlement to the additions for children would lead to a break-up of the claimant’s family or to serious harm to the claimant or any other member thereof and there is no evidence that such occurred.  No disrespect was intended.  There was no Article 14 discrimination.  The Article 8 right is a right to respect, it is not a right to support of any particular amount or at all.  The state not being obliged to provide any funding it is difficult, absent Article 14 discrimination, to see any lack of respect in it providing funding which did not include the additions for children.

29.	If I am wrong in thinking that there was no breach of the Article 8 rights by the interpretation given to regulation 15(1) – can section 3 of the 1998 Act assist?  Mr Allamby suggests that it can, by way of the addition of the words “or has the child living with him and made a claim for child benefit” to regulation 15(1).

	Regulation 15 has the heading:

“Circumstances in which a person is to be treated as responsible or not responsible for another”

	It reads as follows:

“(1)	Subject to paragraphs (1A) to (4), a person is to be treated as responsible for a child or young person for whom he is receiving child benefit.

(1A) In a case where a child (“the first child”) is in receipt of Child Benefit in respect of another child (“the second child”), the person treated as responsible for the first child in accordance with the provisions of this regulation shall also be treated as responsible for the second child.

(2) 	In the case of a child or young person in respect of whom no person is               receiving child benefit, the person who shall be treated as responsible                 for that child or young person shall be-

(a)	except where sub-paragraph (b) applies, the person with whom the child or young person usually lives; or

(b)	where only one claim for child benefit has been made in receipt of the child or young person, the person who made that claim.

(3) Where regulation 16(6) (circumstances in which a person is to be treated as being or not being a member of the household) applies in respect of a child or young person, that child or young person shall be treated as the responsibility of the claimant for that part of the week for which he is under that regulation treated as being a member of the claimant’s household.

(4) Except where paragraph (3) applies, for the purposes of these regulations a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible”.

30.	There is no ambiguity in regulation 15(1) as it presently stands.  However, that does not prevent section 3 being invoked (R v A (No2) 2002 AC 45 paras 44-45).  However section 3 is a rule of interpretation.  It is obligatory to apply it where a breach of a Convention right is otherwise inevitable.  It is, however, only a rule of interpretation (ibid: para 108).  It does not entitle a court, a tribunal nor a Commissioner to legislate.  The role of any person in a judicial role is to interpret.  Compatibility is to be achieved only so far as it is possible in the exercise of that interpretative role.  In R v A, Lord Hope (paraphrasing Lord Woolf CJ in Poplar Housing and Regulation Community Association Ltd v Donaghue [2001] EWCA CIV 593) said at paragraph 58:

“The compatibility is to be achieved only so far as this is possible.  Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible.  It seems to me that the same result must follow if they do so by necessary implication, as this too is a means of identifying the plain intention of Parliament”.

31.	The particular form of words used is not to be determinative in that the operation of section 3 is not to depend critically upon the particular form of works adopted in the relevant statutory provision (Ghaidan v Godin–Mendoza (2004) UKHL30 para 31).  However as was stated at  paragraph 33 of that decision, Parliament:

“cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed.”

32.	What was the fundamental feature or underlying thrust of this legislation?  Firstly additions for children are to be paid to only one person and that person is the person treated as responsible for the children.  The purpose of regulation 15 was to set out the circumstances in which a person is to be treated as responsible or not responsible for another in the determination (amongst other purposes) of entitlement to the additions for children.

33.	The test prior to 1993 was “primary responsibility” with receipt of CB being determinative only in cases of doubt.  That test was changed to the present one.  There is no doubt from the express wording of regulation 15 that the intention behind regulation 15(1) is to make receipt of CB the prime determining factor in determining responsibility for IS purposes.  Regulation 15(1) and 15(2) both make this clear.  Regulation 15(2) applies where no person is in receipt of CB for a relevant child, and provides that, in that circumstance either the person with whom the child usually lives or, where only one claim for CB has been in respect of that child, the CB claimant shall be treated as responsible.  The history of the change also confirms the intention shown by the words.

34.	If I were to adopt Mr Allamby’s suggestion as to the addition to regulation 15(1) how would this affect the remainder of regulation 15?  Regulation 15(1) must be read in context.  The suggested amendment would make regulation 15(1) read as follows:

“Subject to paragraphs (1A) to (4), a person is to be treated as responsible for a child or young person for whom he is receiving child benefit or has the child living with him and made a claim for child benefit.”

35.	That suggested amendment would in this case allow the Department to select whether the father or mother (assuming she made a claim to CB) would be entitled.  It would not, however, mean the mother would automatically be entitled.  The Department could choose.  Nor would it mean that she could be considered responsible merely because she had the children living with her.  She would have to have claimed CB.  As under the CB priority rules her claim would be bound to fail, I can see little point in the addition of the words “and made a claim to child benefit”.  However, leaving that aside, the basic additional qualifier would be that of living with the child. The legislation gives no guidance as to how the Department is to make a selection between the child benefit recipient or (where different) the person with whom the child lives and who has claimed CB.   This is very unusual in social security law and would in my view undermine the purpose of regulation 15.

36.	Regulation 15(4) (which provides that, with one exception, only one person is to be treated as responsible) would indicate that a non-discretionary structure is envisaged with responsibility being determined, not by reference to circumstances in each individual case, but by reference to the person in receipt of or claiming CB in the first instance and secondly by reference to the person with whom the child lives.  The underlying thrust of the regulation is that in determining responsibility preference is given to recipients of CB then to claimants for CB then to the person with whom the child lives. Regulation 15(1) being part of this structure clearly does not intend to provide for any further choice based on who is actually bearing main or complete financial responsibility for the child.  The order of preference is clearly laid down.  That being so I cannot ascertain how regulation 15(1) can be interpreted as advocated by Mr Allamby nor in any way other than the way in which it has been interpreted.  I conclude that, even if there had been an incompatibility with the claimant’s Article 8 rights there was no other way in which regulation 15(1) could have been interpreted and applied.  Section 3 of the 1998 Act cannot alter the interpretation given.  

37.	The parties were agreed, and I share their view, that if section 3 could not be applied to provide an alternative interpretation then, even had there been a breach, the application of section 6 meant that there was no alternative remedy.  The case of R v Secretary of State for Work and Pensions ex parte Hooper and others [2005] UK HL29 paragraphs 49-51 clearly interprets section 6(2)(b), which was the relevant section in this case, as excluding liability if the tribunal was giving effect to a statutory  provision which could not be read as Convention - compliant under section 3.  I consider there was no breach, but if there had been section 3 could not assist and section 6(2)(b) would lead to the result that the tribunal was not acting unlawfully.

38.	As regards Mr Allamby’s contention that the tribunal had concluded that any breach of Article 8 was justified under Article 8(2), I do not think that the tribunal so concluded.  Its view that there was no breach of Article 8(1) was clearly expressed.  It therefore did not need to reach a conclusion as to whether there was any justifiable restriction on that right under Article 8(2) and its decision does not indicate that it reached any conclusion thereon.  I have also concluded that Article 8(1) was not breached and I do not therefore need to reach any conclusion on whether Article 8(2) justified such breach. 

39.	Mr Allamby has mentioned the decision by the Court of Appeal in England and Wales in the case of Hockenjos v Secretary of State for Social Security (A1/2002/3196) in connection with objective justification of an accepted discriminatory provision.  He did so (referring particularly to paragraphs 27-32 of that decision) as outlining the policy aim of the CB linking rule in connection with jobseekers allowance.  The Court held that the indirect discrimination (against men) could not objectively justify the indirect discrimination created by the link.  As I am not of the view that there was any interference with the right to respect for family life it is unnecessary that I enter into the question of justification.

40.	For the reasons given above I disallow this appeal.

(Signed):  Moya F Brown

Commissioner

9 September 2005