THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CF/3565/2001

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL
 ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[CORRECTED IN PARAGRAPHS 1 AND 6]

COMMISSIONER:	Mr H Levenson

Decision

1. This appeal by the claimant does not succeed in any sense that she will appreciate. I set aside the decision of the Portsmouth tribunal of 27th February 2001 as having been made in part without jurisdiction. If the tribunal had no jurisdiction to make that part of the decision then I have no jurisdiction to substitute my own decision in respect of it.  However in accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I substitute my own decision on the matter in which the tribunal and I do have jurisdiction. This is to the effect that, the Secretary of State having decided not to recognise the relevant education, there was no entitlement to child benefit in respect of V from and including 11th September 2000 [corrected date]. 

Child Benefit Law

2. So far as is relevant, sections 141 and 142 of the Social Security Contributions and Benefits Act 1992 provide as follows:

141. A person who is responsible for one or more children in any week shall be entitled, subject to the provisions of this Part of this Act, to a benefit (to be known as "child benefit") for that week in respect of the child or each of the children for whom he is responsible. 

142(1) For the purposes of this Part of this Act a person shall be treated as a child for any week in which— 

(a) he is under the age of 16; or
(b) he is under the age of 18 and not receiving full-time education and prescribed conditions are satisfied in relation to him; or
(c) he is under the age of 19 and receiving full-time education either by attendance at a recognised educational establishment or, if the education is recognised by the Secretary of State, elsewhere.

(2) The Secretary of State may recognise education provided otherwise than at a recognised educational establishment for a person who, in the opinion of the Secretary of State, could reasonably be expected to attend such an establishment only if the Secretary of State is satisfied that education was being so provided for that person immediately before he attained the age of 16.
 
Background and Procedure

3. The claimant was born on 17th November 1960. She has a daughter V who was born on 22nd August 1983 and in respect of whom child benefit was awarded. V reached the age of 16 on 22nd August 1999. She did not attend any State school and was educated at home until September 1999. She then enrolled in a College course, leaving College on 27th June 2000 at the age of 16 years and 10 months. Unable to find employment she then commenced a correspondence course. This was under the auspices of the National Extension College and involved 15 hours of home study each week, studying for the GCSE in 3 subjects, under the tutorship of the claimant. The claimant has paid £600 in fees for this course. V’s work is submitted for regular assessment and marking.

4. Although, in the circumstances, the Secretary of State had power under section 142(3) to recognise the education under section 142(1)(c), on 14th December 2000 he decided not to do so. His decision reads as follows:

“ … the education undertaken by [V at home] should not be accepted as recognised education for Child Benefit purposes as it commenced after the child’s 16th birthday [which was on 22nd August 1999] and it has not been shown that there are exceptional circumstances why the child is unable to attend school or a recognised educational establishment.”

5. To count as attendance at a recognised educational establishment for the purposes of section 142(1)(c) the student or pupil has to be physically present for instruction at the establishment (R(F)2/95). Thus, V did not come within either limb of section 142(1)(c). I must say that this decision seems odd to me, because V was being educated at home immediately prior to her 16th birthday, and it seems irrelevant that there was a break and that a new course of education commenced at home after her 16th birthday. However, on the face of it the provision gives discretion to the Secretary of State.

6. On 8th January 2001 the Secretary of State further decided that the claimant was not entitled to child benefit in respect of V from 11th September 2000 [corrected date], the day after the terminal date following the date when V left College. 

7. On 11th January 2001 the claimant appealed to the tribunal against the decision of the Secretary of State. The tribunal considered the matter on 27th February 2001 and confirmed the decision made by the Secretary of State. I must say that the tribunal seems not to have properly understood the structure of the relevant provisions as I have set them out above, but I am sure that made no difference to its decision. On 26th July 2001 a chairman of the tribunal granted the claimant’s application for leave to appeal to the Social Security Commissioner against the decision of the tribunal. The Secretary of State takes the view that the decision of the tribunal was made in error of law but that I should substitute my decision to the same effect, although based on a different analysis of the law.

Jurisdiction of the Tribunal

8. The question that bothers the Secretary of State is whether the tribunal had jurisdiction to take a view on the correctness of the decision of 14th December 2000. Regulation 27 of, and paragraph 2 of schedule 2 to, the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provide that there is no appeal to the tribunal against “ A decision of the Secretary of State to recognise education provided otherwise than at a recognised educational establishment”. This includes a decision not to recognise such education. These regulations are authorised by section 12(1)(a) of, and paragraph 9 of schedule 2 to, the Social Security Act 1998. If this is correct, then the tribunal had no jurisdiction over whether the education should be recognised. Its only jurisdiction was over whether, given that the education was not recognised, there was continued entitlement to child benefit. I return to this matter below.

The Convention: Article 14, and Article 2 of Protocol 1

9. The claimant agrees that the Secretary of State and the tribunal (if it had jurisdiction) were wrong in the way in which they applied sections 142(1)(c) and 142(2) to the facts of the case. In her grounds of appeal she also refers to the anti-discrimination provisions of article 14 of the European Convention on Human Rights (“the Convention”). However, article 14 does not deal with discrimination in general. It prohibits discrimination in the enjoyment of the other rights and freedoms set out in the Convention. Article 2 of Protocol 1 to the Convention deals with the right to education and reads as follows:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

10. It might be argued that, in denying child benefit in the present case, although it would be awarded in respect of a child of the same age attending a recognised educational establishment, the Secretary of State was in breach of article 14 in respect of the enjoyment of the rights protected under article 2 of Protocol 1. That is not an argument that I find very attractive on the facts of this case, but I do not propose to address it in detail unless I can find that the tribunal (and the Commissioner) have jurisdiction despite the clear words of Regulation 27 of, and paragraph 2 of schedule 2 to, the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (see above). 

The Convention: Article 6(1)

11. Section 3 of the Human Rights Act 1998 obliges me, so far as it is possible to do so, to read and give effect to statutes and regulations in a way which is compatible with certain rights set out in the Convention. By virtue of section 1(1)(a) of the Act these include the rights set out in article 6 of the Convention. The first part of Article 6(1) provides as follows:

In the determination of [her] civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

12. For the purposes of my decision I am prepared to assume that the right to a determination of whether education is recognised in the context of entitlement to child benefit is a civil right within the meaning of article 6(1). It also seems to me that the Secretary of State is not an independent and impartial tribunal in this matter because the way in which he exercises the discretion under section 142(1)(c) of the 1992 Act has implications for his Departmental budget and public expenditure under section 141. If the exclusion of a right to appeal to the tribunal means that there is no entitlement to a hearing by an independent and impartial tribunal, then I might be obliged to find that the way in which paragraph 2 of schedule 2 to, the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is drafted makes it ultra vires (i.e. beyond the powers conferred by) the Social Security Act 1998.

13. In the Alconbury Case [2001] UKHL 23, [2001] 2 All ER 929, from page 963, the  House of Lords considered the planning powers of the Secretary of State. When the Secretary of State made planning decisions there was no right to an appeal on the facts or the merits. The decisions were, however, subject to judicial review or statutory appeal to the High Court, where the legality of the decisions and the procedures followed could be examined. The Secretary of State was not himself an independent and impartial tribunal in individual cases because of his role in making planning policy. The question was whether the availability of judicial review or statutory appeal to the High Court was sufficient to make the relevant provisions and procedures compatible with Article 6(1).

14. Having reviewed the domestic and European authorities, Lord Slynn concluded that the Secretary of State’s procedure and the judicial remedy had to be considered together and that there was no requirement that the latter should constitute a rehearing on the merits. It had long been established that if the Secretary of State misinterpreted the legislation, or took into account irrelevant matters, or ignored relevant matters, or reached a perverse decision, or failed to follow the necessary procedural steps, the court could set his decision aside. Accordingly the scope of judicial review was sufficient to comply with article 6(1). The other Law Lords delivered speeches to similar effect.

Conclusions

15. Applying that approach to the case before me, it seems that any misinterpretation of the legislation by the Secretary of State can be challenged on judicial review. It is not possible for me to predict what the Secretary of State would decide if he were now to apply the legislation properly. If he does so, and still reaches the same conclusion on the facts, the question might arise at that stage as to whether there is entitlement to a hearing by an independent and impartial tribunal, and a breach of the requirements of article 6(1). In such circumstances the solution to which I refer in paragraph 12 above might be appropriate. However, that is somewhat speculative. On the facts of this case, the claimant has an adequate remedy by way of judicial review and there is no basis for me to interfere with the regulation excluding the jurisdiction of the tribunal and the Commissioner.

H. Levenson
Commissioner

21st February 2002

[Corrected on 27th March 2002]