CIS/2031/2003

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Fox Court (London) tribunal of 6th September 2002. I substitute my own decision. This is to the effect that in respect of her claim made on or about 7th September 2001 the claimant is entitled to a Sure Start Maternity Grant (hereafter referred to as a “Grant”). I remit to the Secretary of State matters concerning calculation and payment consequent upon my decision.

2. I held an oral hearing of this application on 26th January 2004. The claimant did not attend in person but her partner, Mr W attended, spoke on her behalf and gave helpful information. The Secretary of State was represented by Mr Henshaw of counsel. I am grateful to both of them for their assistance.
 
3. The claimant was born on 8th June 1967. On 8th June 2001 she gave birth to a baby girl. At some stage she had become incapable of work and was awarded incapacity benefit. She made enquiries about a grant and was told that this was not available unless she was in receipt of one of a limited range of benefits, which included income support but did not include incapacity benefit. In August 2001 she claimed income support on the basis that she was a single person but her claim was eventually refused on the grounds that she and Mr W were living together as an unmarried couple. On 7th September 2001 she claimed a Grant while still waiting to hear about the result of her claim for income support. Although after the birth of the baby, this was still within the period prescribed for making a claim (regulation 19(1) of and schedule 4 to the Social Security (Claims and Payments) Regulations 1987). On 13th September 2001 the Secretary of State refused to award a Grant on the grounds that the claimant was not in receipt of one of the qualifying benefits and on 12th October 2001 the claimant appealed to the tribunal against this decision. 

4. On 19th March 2002 a memorandum from one of the Secretary of State’s officials recorded that income support had never been awarded to the claimant because she had been found to be living in the same house as Mr W. This memorandum is reproduced on page 4 of the bundle of papers before me and was before the tribunal. On 6th September 2002 the tribunal confirmed the decision. Its full statement made no reference to the possibility of the claimant having a partner. On 29th April 2003 the chairman of the tribunal refused the claimant’s application for leave to appeal to the Commissioner against the decision of the tribunal. She now appeals by my leave, granted on 1st October 2003.

5. Mr W had been in receipt of income support as a single person continuously for several years. I do not know on what grounds he was claiming. He told me that he and the claimant had been together “on and off” for some time but that the claimant moved in with him after the birth of the baby, initially on a temporary basis but then on a longer term basis. The Secretary of State has informed me that the claimant was not effectively included in Mr W’s income support assessment until 1st November 2001. However, the Secretary of State had decided, and there is no dispute that, Mr W and the claimant were an unmarried couple as from 30th June 2001. This date was prior to the dates of the claim for and the decision in respect of the Grant.

6. The relevant legislation and regulations are referred to in the submissions from the Secretary of State to the tribunal and to the Commissioner. The main provisions are to be found in the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 as amended. It is not necessary to go through the whole of the regulations. The only matters of dispute are governed by regulation 5(1)(a). Subject to further provisions and exceptions which are not at issue here, it is provided that:

	5(1) … a Sure Start Maternity Grant shall be made only where –

(a)	the claimant or the claimant’s partner has, in respect of the date of the claim for a [Grant], been awarded … income support …

7. “Partner” is defined in regulation 3(1) and includes:

	3(1) … where a person -

(a)	is a member of a married or unmarried couple, the other member of that couple;

8. Clearly Mr W was the claimant’s partner at the relevant time, he was in receipt of income support, and on the face of it this must mean that the claimant was entitled to a Grant under regulation 5. However, Mr Henshaw offers two arguments as to why this appeal should not succeed.

9. The first argument is based on the facts that when she claimed the Grant, the claimant did not indicate that she had a partner and indicated that her own claim for income support was awaiting a decision. It is argued that this latter was inconsistent with her having a partner. Accordingly there was no error of law because there was no evidence on which the tribunal could have reached any other decision. I reject the logic of this argument. The fact that the claimant and Mr W did not regard themselves as partners does not mean that, as a matter of law, they were not partners. Anybody may claim income support – whether there is entitlement is a different question and the system is so complex that it is dangerous to draw conclusions about other matters from the mere fact that income support has been claimed. More immediately relevant is that the memorandum of 19th March 2002 (see paragraph 4 above) was in front of the tribunal and should have put it on notice that there was an issue as to whether the claimant had a partner. At the hearing before me Mr Henshaw accepted this, although I am not sure that he went so far as to concede that there was an error of law on this basis. At a more fundamental level, it seems to me that the question of whether the claimant has a partner is intrinsic to the very question of entitlement to a Grant and in an appeal against refusal of a Grant which depends on the question of entitlement to a qualifying benefit, a tribunal should always enquire whether the person applying for the Grant has a partner. In the present case the tribunal failed to appreciate the significance of the memorandum and failed to make the relevant enquiries. For these reasons I find that the decision of the tribunal was made in error of law.

10. Mr Henshaw’s second argument is that in any event there is no entitlement to the Grant. This is because the reference in regulation 5(1)(a) to a claimant’s partner having been awarded income support should be read as referring only to cases where the claimant’s partner receives income support in respect of the claimant. Although the claimant and Mr W were partners from before the date of claim, the claimant was not included in Mr W’s income support assessment until after the date of claim. I also reject this (rather mean minded) argument, and not only because it contradicts the actual wording of the regulation.

11. Whether or not the applicable amount in the calculation of entitlement to income support includes an amount for a partner, there is only one claim for income support (although the decision on the claim or the amount of entitlement might later be changed). Also, if a claimant for income support has a partner, the means of the partner are aggregated and the income support claimant has no choice over this (Social Security Contributions and Benefits Act 1992 s 136(1)). Mr Henshaw’s argument would mean that an income support claimant could have his partner’s income treated as his own but if (through error or for whatever reason) the applicable amount was not calculated with reference to the partner, not only would the amount of income support payment be reduced but the claimant’s partner would not be able to claim a Grant on the birth of a child. Income support recipients are, by definition, on subsistence level incomes and this could not possibly be justified.

12. For the above reasons this appeal by the claimant succeeds and I make the decision set out in paragraph 1 above. 

H. Levenson
Commissioner

30th January 2004