[2007] UKSSCSC CJSA_3009_2006 (20 March 2007)

PLH                                                                         Commissioner's File:  CJSA 3009/06
JOBSEEKERS ACT 1995
	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Jobseekers Allowance
Appeal Tribunal: 	Stockport 
Tribunal Case Ref:  	U/06/938/2006/00228
Tribunal date:	20 April 2006
Reasons issued:	20 June 2006

     1.     	This claimant’s appeal must be dismissed, as in my judgment there was no material error of law in the decision of the Stockport appeal tribunal of 20 April 2006 (Mrs W Walker, chairman, sitting alone) confirming the earlier determination of the Secretary of State on 30 December 2005 as to the amount of income-based jobseeker’s allowance to which the claimant was entitled on his claim on 17 December 2005.  
     2.     	This seems to me a hard case in which the rules about jobseeker’s allowance for young people operate harshly against couples such as the claimant and his partner, who are struggling to maintain a home and bring up their young baby on very little money indeed, despite being only just into adulthood themselves.  At the time of his claim for an income-based jobseeker’s allowance on 17 December 2005 the claimant was aged 19 and his partner only 16, and they also had their young son to look after, born on 2 September 2005 only shortly after she left school.  It is not in dispute that the three of them were living together at all material times and constituted a proper household and that the claimant’s partner (they are not married) is legally responsible for the baby.  
     3.     	Down to 16 December 2005 she had been claiming and receiving income support in respect of the three of them, being within a “prescribed category” of persons eligible to claim income support under section 124(1)(e) Social Security Contributions & Benefits Act 1992 because of her pregnancy: regulation 4ZA and Schedule IB Income Support (General) Regulations 1987 S.I. No. 1967.  However that basis of entitlement only lasted for 15 weeks after the baby was born and after that neither of them came within any of the “prescribed categories”.  In particular as they were a couple, neither could claim income support as a person having responsibility for a young child because neither was a lone parent: see paragraphs 1 and 14 of Schedule IB.   
     4.     	From 17 December 2005 onwards therefore, the only form of income assistance available to this young couple was the income-based jobseeker’s allowance for which there is no dispute the claimant did qualify at all material times, as a person over the age of 18 without work but available for and actively seeking it, having a partner and a young child to look after.  No one could complain about his being required to seek work as a condition of the couple continuing to qualify for such assistance from that date: but no one could rationally suppose that their subsistence needs to be taken into account for income assistance would suddenly reduce overnight between 16 and 17 December when nothing else in their circumstances had changed.  Yet that appears to be the assumption on which the present scales of benefit for the two forms of income assistance are drawn.
     5.     	  While the benefit was the income support payable to the claimant’s partner it included a personal allowance for the two of them down to 16 December 2005 at the rate of £88.15 a week, the full adult rate for a couple at that time.  It was payable at that rate even though she was under 18 because of her special circumstances: paragraph 1(3)(e) of Schedule 2 to the income support regulations already cited.  However when the entitlement switched to being jobseeker’s allowance in the name of the claimant instead, the personal allowance supposed to cover the weekly subsistence needs of the two of them from the following day suddenly dropped to only £44.50.  That was the same as he would have got for himself in any case as a single claimant between 18 and 24, so that in effect nothing at all was now being allowed for her personal needs.  Applying the table of personal allowances relevant to the couple under jobseeker’s allowance from 17 December 2005 onwards the Secretary of State determined and the tribunal confirmed that the only rate applicable to cover the personal needs of the two of them from that date was £44.50, the same as for the sole needs of a single person aged between 18 and 24.  
     6.     	So far as relevant and in force at the time, the personal allowances prescribed  in the table in Schedule 1 to the Jobseeker’s Allowance Regulations 1996 SI No. 207 were as follows: 
	“(1)  Single claimant aged -
		(a)  [except in special cases] less than 18 … 		£33.85 
		(b), (c)  less than 18 [in the special cases] …            		£44.50
(d)	not less than 18 but less than 25 …                                            	£44.50
(e)	not less than 25…	£56.20   
…
(3)	 Couple -
(a)  where both members are aged less than 18 and –
	(i)  at least one of them is treated as responsible for a child …   	£67.15 
…
(e)  where both members are aged not less than 18 … 	£88.15
(f)  where one member is aged not less than 18 and the other member is a person under 18 who –
(i)  is a person to whom regulation 59, 60 or 61 applies… or
(ii) is the subject of a direction under section 16; and
(iii) satisfies requirements for entitlement to income support other than the requirement to make a claim for it … 	
	£88.15
(g)  where one member is aged not less than 18 but less than 25 and the other member is a person under 18 –
(i)  to whom none of the regulations 59 to 61 applies; or
(ii)  who is not the subject of a direction under section 16; and
(iii) does not satisfy requirements for entitlement to income support disregarding the requirement to make a claim for it … 
	£44.50
…”
     7.     	Regulations 57 to 61, in Part IV of the regulations headed “Young Persons”, prescribe various conditions under which a young person over the age of 16 but under 18 may exceptionally qualify for income-based jobseeker’s allowance; the normal rule under section 3(1)(f) Jobseekers Act 1995 being that a person under the age of 18 does not so qualify unless a direction under section 16 (severe hardship) is in force or specially prescribed circumstances apply for the time being to him or her.  It is common ground that no direction under section 16 of the Act had been made in respect of the claimant’s partner at the relevant time for this claim. (Such a direction may be made by the Secretary of State in respect of a young person under 18 only if registered for training: she was not so registered and in any case it seems most unlikely that this would have been a practical proposition for her with such a young baby to look after.)  It is however also common ground, and plainly correct, that she was at that time within one of the special prescribed categories as a young person who was a member of a couple and treated as responsible for a child who was a member of her household.  That brought her within regulation 61, which would remain applicable to her so long as that state of affairs continued and she was under 18: see regulation 61(1)(b), 61(2)(b).  
     8.     	The argument put forward for the claimant before the tribunal and before me is that on that basis the personal allowance under paragraph 1(3)(f) of Schedule 1 should apply, so that the full couple rate of £88.15 is still payable as it was for income support. For this purpose, it is sufficient that the claimant’s partner is a person under 18 to whom regulation 61 applies at the material time. The word “and” after condition (ii) in sub-paragraph (3)(f) should be construed disjunctively, or if necessary ignored, so that it does not also have to be shown she could still qualify for continuing entitlement to income support after 16 December 2005 had she gone on claiming that instead.  
     9.     	The Secretary of State’s argument, accepted by the tribunal chairman, is that the structure of sub-paragraph (3)(f) makes it impossible to read in that way.  Conditions (i) and (ii) are alternatives as the “or” between them shows, but the “and” at the end of (ii), plus the fact that condition (iii) is a free-standing condition in its own right rather than merely being made part of (ii), means that it too must be satisfied for the claimant to get within sub-paragraph (3)(f), in addition to whichever of (i) and (ii) happens to apply.  Consequently it is sub-paragraph (3)(g) (the structure of which is similar) that applies to the claimant.  Although regulation 61 does apply to his partner so that condition (i) in sub-paragraph (3)(g) is not met, the alternative condition in (3)(g)(ii) is in terms satisfied: she is not the subject of any direction under section 16.  Nor is it disputed that condition (3)(g)(iii) is also met: she was no longer able to qualify for income support in her own right while a member of a couple beyond the period of 15 weeks from when her baby was born.  Hence one “or” plus the “and” in (g) are satisfied and the rate is £44.50.
     10.     	In my judgment, the arguments of the Secretary of State on the construction of the Schedule are right and the tribunal chairman was right to say there is no real ambiguity in the meaning of sub-paragraphs (f) and (g).  Applying all normal rules of construction to the language used in paragraph 1(3) of Schedule 1 to the regulations, I can only agree with her succinctly expressed conclusion at page 18 that:
“The meaning of paragraph (3)(f), and the only meaning without altering or straining its construction, is that in order to fall within paragraph (3)(f), in a claim by a couple the circumstances of the member of the couple who is under 18 must either satisfy subparagraphs (3)(f)(i) and (3)(f)(iii) or satisfy subparagraphs (3)(f)(ii) and (3)(f)(iii).”
It would I think be impossible to read the structure of sub-paragraph (3)(f) as intended to operate in a different way from that of (3)(g), or for that matter (3)(h), in each of which the same pattern is used.  In each there are three separately numbered conditions of equal status, the first two separated by “or” and alternative to one another, with the third introduced by “and” so as to make it additional to whichever of the other two is satisfied. Although a more meticulous or old-fashioned draftsman would probably have put in the words “and in either case” between (ii) and (iii) to forestall a hypothetical person reading in bad faith affecting to misunderstand, it would not in my judgment have been necessary to do so.  There is in my view no possible reason for assuming the draftsman here to have meant a second “or” when he plainly chose to say “and” instead, showing that the conjunctions between the conditions were meant to have a different effect.  Furthermore this was the structure adopted in each of these sub-paragraphs of the 1996 regulations from the outset, so this cannot be a case where accidental retention of a word following later amendments can be disregarded as an obvious drafting slip, as in CIB 4051/01.
     11.     	Even if one carries out the exercise of removing and ignoring all punctuation as a strict approach to statutory construction may still require, one still cannot ignore the use of the numerals (i) (ii) and (iii) and the fact that each condition is thereby given an equal status in its own right.  That in my view is what distinguishes the structure of these sub-paragraphs from the ingenious example given by the claimant’s welfare rights officer Mr R Jenkins, of a child being offered an (unnumbered and undifferentiated) choice of “vanilla or strawberry and chocolate ice cream”, where I quite agree there is a potential ambiguity; (though one that in my experience would normally be resolved by an immediate call for a physical demonstration of what was on offer before any effective choice would be made).  Mr Jenkins also points with some force to the apparent lack of any rhyme or reason in the various different rates of means-tested benefit that can apply to young couples in such circumstances as these.  There seems no obvious policy reason why a young couple thought to need £88.15 for their own personal needs in week 15 of their baby’s life should suddenly be thought able to manage on only £44.50 without anything extra for the mother in weeks 16 and following; or why they should now be thought to need even less than the £67.15 they would have got had they both been still under 18.  I would add that they would also have got significantly more if they had given up the attempt to bring up their baby as a couple: he would still get the personal allowance of £44.50 as a single JSA claimant, but she would then have been able to claim income support as a lone parent with a personal allowance of £33.85 or more: a bizarre incentive to deprive the baby of the support of a two-parent household.  
     12.     	I agree that a coherent policy in the way such young couples are treated is far from easy to discern in the tangle of different conditions and rates that now appear in Schedule 1 to the jobseeker’s allowance regulations and the corresponding Schedule 2 to the income support regulations.  It is plain in my view that the whole subject would benefit from a careful look, and the application of some clear thinking by the Secretary of State as to what the provisions are really trying to achieve and whether their sometimes surprisingly different effects are justified.  (Apart from anything else, the wording in sub-paragraph (3)(f)(iii) making it a condition that the member of the couple under 18 “satisfies requirements for entitlement to income support” could use some clarification, when ex hypothesi the schedule is prescribing a rate of benefit for somebody entitled to income-based jobseeker’s allowance, while section 124(1)(f) of the 1992 Act now makes it an essential requirement for entitlement to income support that neither member of the couple is entitled to that allowance.)  
     13.     	However as has been said many times the prescribing of the conditions and rates governing entitlement to benefit in something as complicated as the United Kingdom social security system is a matter for political and social judgment, not legal.  The fact that the legislative process over the years may happen to throw up apparent  inconsistencies in the treatment of different groups of people, or of the same people in different circumstances, does not justify a tribunal or court in substituting its own view of what the legislation ought to contain for what has actually been enacted or approved by the Parliamentary process.  Nor can subordinate legislation be rejected on the ground of “irrationality” or repugnancy to the purpose of the enabling power when as here the most that can be said is that for some people in some circumstances the practical results of the legislation as it stands may appear harsh or unfair.  Those are matters that need to be taken up elsewhere, and I hope that the claimant’s representative will be able to do this with those responsible for policy on behalf of the Secretary of State, using the facts of the present case as an example.
     14.     	So far as the point of law on the construction on the present wording of the regulations is concerned however, I must simply dismiss this appeal and confirm the decision of the tribunal.  

(Signed)

P L Howell
Commissioner
20 March 2005