Commissioner’s file: CF 1771 2003
DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I grant permission to appeal and, with the consent of both parties, decide the appeal. The appeal is allowed, although for technical reasons as explained below and not to the advantage of the claimant. 

2	The claimant  (Mr S) is appealing against the decision of the Horsham appeal tribunal on 11 February 2003 under reference U 45 151 2003 00024.

3	I set aside the decision of the tribunal. I replace that decision with my own decision which is:

The appellant is entitled to child benefit for each of his three children for claim weeks from 1 November 2002 and not before. 

Background to the appeal

4	This appeal concerns the entitlement of Mr S to child benefit for his three children. No question arises about his claim for the children save that the child benefit was paid or payable to his wife (Mrs S) during the period in dispute. It is this that Mr S seeks to challenge, against a tragic family background.

5	Before September 2002 Mr and Mrs S were living together with their three children. As is often the case Mrs S was claiming the child benefit for the children but it was paid into a joint account. Mrs S suffered from a serious inherited mental illness that led her to become aggressive. Because of the illness, Mr S was Mrs S’s carer. As a result of an incident on 5 September 2002,  in which the police and social services were involved,  Mr S and the children left the family home to live elsewhere. He and the children have lived together (with active support of the authorities), but apart from Mrs S, since then. Mrs S continued to get the child benefit for the children.

6	   Mr S claimed child benefit for the children for the first time on 12 September. The Inland Revenue refused the claim on 1. 11. 2002 in a procedurally correct series of decisions, namely that: before 9. 9. 2002 someone else was being paid the child benefit; from then to 6. 10. 2002 the existing payee had priority over the new claim; from 7.10.2002 to 3. 11. 2002 Mr S was still regarded as living with his wife, and she has priority. 

7	Mr S appealed, but did not seek to attend the hearing of his appeal. It went ahead on paper. Instead he sent in a detailed statement of the factual background to the family breakup. The tribunal confirmed the decision of the Inland Revenue and in its statement set out an explanation for the fact that throughout the period Mrs S had both received the child benefit and had a prior claim to it as compared with Mr S. As background, Mr S had been receiving carer’s allowance for caring for his wife up to the breakup of the marriage. When he moved out with the children on 5 September the carer’s allowance was stopped. Mr S’s financial predicament was made worse because the breakdown of his carer relationship with his wife was taken immediately into account, but the breakdown of her responsibility relationship with the children was not.
 
Grounds of appeal 

8	Mr S protested strongly. In his view it was wrong in English and European law, broke his human rights, and contrary to common sense. He paid all the bills for his children during the period and was left without enough money to live on.  

9	I asked the Inland Revenue to comment. The Revenue made a full submission which, if I may say so, is commendably clear and thorough. It supported the application and, if the application was granted, also the appeal on the basis that the tribunal had not found sufficient facts and was not entirely accurate in its reasoning. As the tribunal largely adopted the full submission put before it, that of course called into question the adequacy of the original decisions and the submission to the tribunal. But, in the view of the officer now representing the Inland Revenue, the tribunal nonetheless came to the right conclusion save for one point of fact not yet clarified. 

10	This is one of several cases I have seen where a father has been denied child benefit for children he is looking after because the mother or someone else is getting it.  It clearly causes strong feelings in appellants who feel the rules unfair. But it is also complex law such that even a careful tribunal (and this tribunal was careful on the papers before it) can go wrong.  But, as we shall see, it missed the fact that the rules had changed. It is therefore worth restating the rules that apply when a marriage breaks down. It is increasingly the case that the family makes the claim for the children in the name of the mother but with the benefit paid into a joint bank account so that in practical terms both parents receive the benefit. It is only when a marriage breaks up and the joint bank account is closed and emptied by one partner that problems emerge. Although not directly relevant to this case, the picture is complicated because the rules for claiming child tax credit are different. 

The rights of a father to child benefit when the mother claims

11	I deal only with the case where the parents are husband and wife and where, as here, the children are all under 16. The primary rule is that a person who is responsible for a child in a week is entitled to child benefit for that child for that week: Social Security Contributions and Benefits Act 1992, section 141. This is of course subject to exceptions. [The references are all to that 1992 Act unless stated.] The rules relevant in this case predate the consolidation and amendment of all the Regulations by the Inland Revenue in 2003. Some changes are noted, but they do not apply to this case.

12		Where husband and wife are residing together and with their children, then both are regarded as responsible for their children and as entitled to child benefit: section 143(1)(a).

13	If a child previously lived with her or his parents, she or he is assumed to continue living with them unless absent for more than 56 days in the previous 16 weeks (112 days): section 143(2). This is subject to exceptions relating to education and 
medical treatment set out in subsection (3) but not relevant here. 

14	In addition, a person is entitled to child benefit for a child where in any week that person is contributing to the cost of providing for the child at a weekly rate not less than the weekly rate of child benefit: section 143(1)(b).

15	Where two or more people would be entitled to child benefit in respect of a child for a week, only one is entitled in law: section 144. The section provides that where there are two entitlements but for this section, then the rules in Schedule 10 to the Act determine who actually has entitlement. That language is somewhat confusing because it cuts directly across the wording of section 141 and also appears to conflict with the language used in section 13 of the Social Security Administration Act 1992, below.  It has led to references being made to Mr S being “entitled” to benefit for his children in this case when he was not entitled. It would be better if the rules made it clearer that only one person can have entitlement to, and therefore payment of, child benefit for a child in any week. 
  
16	Separately, the law requires that anyone seeking entitlement to child benefit must make a claim: Social Security Administration Act 1992,  section 13.  Regulation 19 of the Social Security (Claims and Payments) Regulations 1987 provides that a claim for child benefit may be made up to three months after the date for which the benefit is claimed. The regulation actually states that it is three months from the date on which “apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned”. That does not deal with the position of competing claims in the light of the way section 144 cuts across section 141, and must, I think, mean entitlement subject only to prior entitlement for someone else. Otherwise the regulation is inconsistent with Schedule 10 below. Leaving aside that complication, the effect is that the father must claim the child benefit if he wants to be entitled to it, and he must do so within three months of the date from which he wants entitlement. 

17	Section 13(2) of the Social Security Administration Act 1992 also includes another important practical rule relevant here. It is that no one is entitled to child benefit in respect of any claim for any child in any week if the child benefit has already been paid for that week to someone else “whether or not that other person was entitled to it”. This is subject to exceptions set out in regulation 14A of the Child Benefit (General) Regulations 1976. There are only two limited exceptions. The first is that it has been decided that the child benefit was overpaid to that person and is recoverable from that person and that decision is final. The second is that the other person has voluntarily repaid the child benefit or it has been recovered from the other person.   This is now in regulation 38 of the Child Benefit (General) Regulations 2003.

18	Schedule 10 sets out the following rules of relevance to a married couple making competing claims:

-	where one person has claimed the benefit for a week, but someone else has already been awarded it, then the benefit is payable to the person to whom it has been awarded  (paragraph 1);

-	a person who is claiming benefit because a child is living with her or him has priority over someone who is claiming because he or she is contributing to the cost of the child (paragraph 2);

-	as between a husband and wife residing together, “the wife shall be entitled” (paragraph 3).

19	It follows from section 141 and section 143 that both Mr and Mrs S had potential entitlement to child benefit for their children while they lived together, but that Mrs S had a prior entitlement to Mr S both because she was the wife and because she had made a claim. But Mrs S lost that entitlement when, as a result of Mr S and the children leaving the family home, the law determined that they were no longer living together. At that point, Mrs S’s award of benefit should end and, subject to further rules below, her priority over Mr S should also end.

20	Here the law adds a further complication. Under the Child Benefit (General) Regulations 1976, regulation 11 a married couple were treated as residing together:

	during any period of absence the one from the other falling before the date 
	in that period of absence on which:
(a) they were separated under an order of a court of competent jurisdiction or deed of separation; or
(b) they have been absent the one form the other for at least 91 consecutive days.

The wording of regulation 11 is based on the then income tax rule. It is now found in section 282 of the Income and Corporation Taxes Act 1988, a section that now refers to “living together”.  There is an error on this point in the submission made by the Inland Revenue to the tribunal. That asserts that the rule set out here applies to a “married couple who are permanently separate”. This was a confusion with the income tax law in section 282. There was nothing in child benefit law at the relevant date – as there is now, and is in income tax law and child tax credit law, which follows the income tax rule – stating that the separation had to be permanent.  

21	While regulation 11 was the regulation relevant in this case, regulation 34 of the Child Benefit (General) Regulations 2003  (replacing regulation 11) adopts an  approach more consistent with the income tax rules. Under that regulation spouses (and other couples) are treated as continuing to reside together where they are absent from one another and the absence is not likely to be permanent, or where the absence is because of medical or other treatment as an in-patient in a hospital or other similar institution. The reference to court orders has gone. The effect of regulation 11 was to treat husband and wife as continuing to reside together for 91 days after the start of a separation (temporary or permanent) unless there has been a court order intervening. That assumption has gone in the new rule, but the new rule only applies from 7 April 2003. From that date, the permanence of the separation is to be judged on the facts in each case.  The error in the submission to the tribunal, and in its decision, lies in applying this new rule before it came into effect.

22	Does a separate problem arise where the children are living with one parent and not the other, but the parents are treated as residing together? This can arise where, as here, the parents are in fact living apart and the children are living with the father and not the mother. In other words, does the rule in section 143(2) apply separately from, or in conjunction with, the rules in Schedule 10 and the Regulations? The Inland Revenue assumed in its submissions that the rules operate separately, and I am aware of no authority to the contrary.  My view is that the Inland Revenue adopted the correct approach. The “56 day rule” operates to stop entitlement of both wife and husband if the children are separate from both. So the fact that the husband is deemed to continue residing with his wife when that is not the actual situation does not deem the children to be living with their mother beyond the separate period applied to their absence.  Consequently, the “56 day rule” is to be applied to the children separately from the “91 day rule” (or “permanent separation rule”) applying to their parents.  I agree that the tribunal also erred on this point.  

23	One final rule must be noted.  Wife and husband can choose that the husband rather than the wife is entitled to the child benefit. This can happen if the wife withdraws her claim and asks for the award to be stopped. Or the wife can elect under regulation 14 of the Child Benefit (General) Regulations 1976 to give priority to the husband. (This is regulation 15 of the 2003 Regulations).    

European laws

24	The claimant expressed his annoyance at the unfairness of the decision, as he saw it, by demanding application of European and human rights laws, but he made no specific submissions on these points. The Inland Revenue did not comment on these points. I did not ask the Revenue to make a submission on the European law issue because I see nothing that suggests that the legislation of the European Union is relevant. With regard to the possible application of the Human Rights Act 1998 and the European Convention for the Protection of Human Rights and Fundamental Freedoms, there might be arguments based on discrimination in favour of wives in situations such as this. If so, Mr S has not made them. Even if he had, the rules preventing the claimant maintaining his claim in preference to that of his wife are in primary legislation and not open to criticism by a social security commissioner. And, although it does not help Mr S, the change in rules since April 2003 might prevent the unfairness contended by Mr S recurring after that date. 

Summary

25	Applying these rules where the married couple and their children have been living together and the wife was claiming child benefit, but they then split up with the children going with the father, the rules are:

A	The husband cannot get child benefit unless he claims it. That claim can be made up to 3 months after the date on which he first claims his entitlement to the benefit. 

B	While the husband, wife and children are living together the wife is entitled to the child benefit unless she does not claim it or she elects that her husband’s claim has priority and he claims it.

C	Under the 1976 Regulations the husband and wife are assumed to continue to reside together until the first of (a) a deed of separation; (b) a court order separating them; or (c) a period apart of at least 91 consecutive days. Under the 2003 Regulations from 7 April 2003, what is now important is the permanence of the separation (unless one or both are getting in-patient treatment). If there is a divorce in that period, then the marriage is ended and these rules do not apply.  

D	The wife can continue to claim for her children until they have been away from her for 56 of the previous 112 days. That period is extended if the absence is because of schooling, medical treatment, or other specified reasons.
 
E	The “91 day rule” - now the “permanent separation rule” - applying to  husband and wife and the “56 day rule” for their children apply separately.

F	The husband cannot get child benefit for any week for which the wife has in fact received that benefit, whether or not she was entitled to it, unless it is paid back by, or formally claimed back from, her. 

Application to Mr S

26	Mrs S was entitled to child benefit while she and Mr S lived together. When they separated, her entitlement ended on the day on which the first of the following happened:
- the children had been absent from Mrs S for 56 of the last 112 days and none of the exceptional rules applied;
- a deed of separation between Mr and Mrs S was made;
- a court  of competent jurisdiction ordered their separation;
- Mr and Mrs S were separate for 91 consecutive days;
- Mrs S stopped her entitlement or elected that Mr S could claim.

27	The children were separate from Mrs S, and with their father, from the day they left with him on 5 or 6 September 2002. They were to be treated as being with their mother as well as their father until 56 days later. The Inland Revenue accepted that this rule applies to stop the children being treated as being with their mother from 1 November 2002 and I agree. 

28	Mr S is therefore entitled to child benefit only from 1 November 2002 unless before that date there was a deed of separation, an order from a relevant court, or some action by Mrs S. There was no such action by Mrs S. I agree with the Inland Revenue that the tribunal (and, in its original decision, also the Revenue itself) failed to deal with the question whether there was any relevant deed of separation or court order. It erred for that reason also.  I therefore asked Mr S whether there had been any deed or court order. Mr S told me, and I find as fact, that there had been no deed and no court orders relevant to separation. 

29 	Mr S’s entitlement remains subject to the Inland Revenue having stopped paying child benefit to Mrs S for the period from 1 November 2002, or reclaiming any payment made after that date.   Mr S’s entitlement then arises at the beginning of the first claim week after that. 

30	On these facts and for these reasons, and not on the facts or for the reasons given by the tribunal, I agree with the Inland Revenue submission that the tribunal came to the correct decision.  

								David Williams
								Commissioner

								20 January 2004
[Signed on the original on the date shown]