[2008] UKSSCSC CJSA_2811_2006 (04 January 2008)
CJSA/2811/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Newcastle-upon-Tyne appeal tribunal dated 23 January 2006.

REASONS

2.	I held an oral hearing of this appeal.  The claimant was represented by Mr Alan Hind, a welfare rights officer employed by Northumberland NHS Care Trust, and the Secretary of State was represented by Ms Marie Demetriou of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to both Mr Hind and Ms Demetriou for their helpful submissions.

3.	The facts of this case have never been in dispute.  The claimant was in receipt of jobseeker’s allowance until 21 August 2003.  He then claimed income support on the ground that he had become a single parent because his 10 year-old daughter, who had been living with her mother since her parents’ separation in January 2003, had come to live with him.  However, his claim for income support was rejected because he had not been awarded child benefit in respect of his daughter.  Child benefit had been awarded to his wife.  The claimant had been an alternative payee when they were living together and that arrangement had never been terminated.  When their daughter went to live with the claimant, his wife had merely given the claimant the order book so that he could receive the payments.  On 9 September 2003, his claim for income support having been rejected, he made a new claim for jobseeker’s allowance.  On 18 September 2003, he was interviewed and explained that he was trying to claim child benefit but could not find his daughter’s birth certificate.  It appears that the Child Benefit Centre had not been notified that he wished to claim and so, on 25 September 2003, he was awarded jobseeker’s allowance with effect from 22 August 2003 on the basis that he had no dependants.  He was eventually awarded child benefit with effect from 4 November 2003 and the award of jobseeker’s allowance was duly revised or superseded with effect from 29 October 2003 on the basis that his applicable amount from that date included a sum in respect of his daughter and a family premium.  The claimant appealed, seeking to have the revision or supersession made effective from 22 August 2003.  The first decision of an appeal tribunal was set aside and the case was referred to another appeal tribunal, which deferred consideration of it to await the decision of the Court of Appeal in Hockenjos v. Secretary of State for Work and Pensions [2004] EWCA Civ 1749 (reported as R(JSA) 2/05).  On 23 January 2006, the second appeal tribunal dismissed the claimant’s appeal and he now appeals against the tribunal’s decision with the leave of Mr Commissioner Mesher.

4.	By virtue of section 4(3) of the Jobseekers Act 1995, income-based jobseeker’s allowance is paid a rate equal to the amount by which a person’s “applicable amount” exceeds his income.  At the material time, regulation 83(b) and (d) of the Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207) provided for there to be included in a person’s applicable amount “an amount … in respect of any child … who is a member of his family” and also a further amount, known as a “family premium”, “where he is a member of a family of which at least one member is a child …”.  By section 35(1) of the 1996 Act, a “family” may be “a person who is not a member of a married or unmarried couple and a member of the same household for whom that person is responsible and who is a child …” and a “child” is “a person under the age of 16”.  It was common ground that the claimant’s daughter was a “child” and that she was a member of the same household as the claimant from 22 August 2003, but there was an issue between the parties as to whether he was “responsible for” her.  If he was not, she was not a member of his “family” and he was not entitled to have either the personal allowance for her or the family premium included in his applicable amount.

5.	Regulation 77 of the 1996 Regulations makes provision for “[c]ircumstances in which a person is to be treated as responsible or not responsible for another”.  Paragraphs (1), (3) and (5) provide –

   “(1)	Subject to the following provisions of this regulation, a person is to be treated for the purposes of the Act as responsible for a child or young person for whom he is receiving child benefit ….

     (3)	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 respect of the child or young person, the person who made that claim.

    (5)	… 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.”

In Hockenjos , the Court of Appeal disapplied regulation 77 because it discriminated against men who were substantial minority carers, contrary to Council Directive 79/7/EC.

6.	In the present case, the tribunal took the view that the claimant was not responsible for his daughter at the material time because he had not been awarded child benefit and therefore was not “receiving” child benefit for the purposes of regulation 77(1).  It distinguished Hockenjos on the ground that the claimant was not a person with joint care for his daughter but had sole care and that the claimant had not been subject to discrimination because he could have obtained the amount of jobseeker’s allowance he sought by making an earlier claim for child benefit.

7.	Mr Hind, for the claimant, argued first that, given the use of the word “receiving” in regulation 77(1), the tribunal erred in focussing on whether the claimant was entitled to child benefit under an award rather than on the simple fact that he was receiving payments by cashing the order book.  Ms Demetriou conceded that there was a distinction between “entitlement” and “payment” or “receipt” but submitted that, in the circumstances of this case, the claimant was not receiving child benefit for the purposes of regulation 77.

8.	By virtue of section 187(1) of the Social Security Administration Act 1992, child benefit cannot be assigned to anyone other than the person to whom it has been awarded.  Thus, no-one except the person to whom an award has been made may be entitled to child benefit.  However, there are provisions relating to payment rather then entitlement.  Regulation 34(1) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003 (S.I. 2003/492) provides that, “… where a member of a married or unmarried couple is entitled to child benefit …, the Board may make arrangements whereby that benefit …, as well as being payable to the person entitled to it, may, in the alternative, be paid to that person’s partner on behalf of that person”, effectively re-enacting regulation 36 of the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968) which ceased to apply when the Inland Revenue took over the administration of child benefit in April 2003.  Regulation 16 of the 2003 Regulations, like regulation 20 of the 1987 Regulations, permits child benefit to be paid by means of an instrument of payment.  An order book, such as the claimant in this case was cashing, consists of a number of instruments of payment.  When directing the oral hearing in this case, Mr Commissioner Mesher also referred to regulation 20A of the 1987 Regulations.  This introduced the concept of an instrument for benefit payment, which is not the same as an instrument of payment, and specifically provided in paragraphs (2)(e) and (4)(b) for a an instrument for benefit payment to be issued to a person authorised by the beneficiary to act on his behalf or for such a person to obtain payment on an instrument for benefit payment issued to the beneficiary or someone acting on his behalf.  No such provision exists in the 2003 Regulations and I suspect that that is because an instrument for benefit payment was intended to be a benefit card that has never seen the light of day.  Regulation 20A is not, I think, relevant to the present case but it is arguable that the general law of agency permits child benefit due to a claimant to be paid to a third party on the claimant’s behalf.

9.	Ms Demetriou submitted that regulation 36 of the 1987 Regulations and regulation 34 of the 2003 Regulations did not authorise payment to the claimant at the time material to this case.  Although the claimant was entitled to receive child benefit under regulation 36 of the 1987 Regulations while he and his wife were living together, they ceased to be a married couple in the terms of the definition in section 35(1) of the 1995 Act when they ceased living together and so payment could no longer properly be made to him under regulation 36 of the 1987 Regulations or, at the time material to this case, regulation 34 of the 2003 Regulations.  I do not accept Mr Hind’s submission that arrangements made under those regulations could continue lawfully when the conditions for making the arrangements had come to an end, although plainly there was no dishonesty in the present case.  In any event, there is a more fundamental reason why neither any of the statutory provisions nor the law of agency assists the claimant.  Because, the claimant’s wife could not lawfully assign her right to child benefit to the claimant, he could only lawfully receive child benefit if he did so “on behalf of” his wife, implying an obligation to pay the money to her.  In those circumstances, her giving him the child benefit book and allowing him to keep the benefit when he received it must be regarded as an arrangement under which he received child benefit on her behalf and, instead of him paying the money to her, she allowed him to keep it as a form of child maintenance.

10.	In my judgment, that did not amount to him “receiving” child benefit for the purposes of regulation 77 of the 1996 Regulations.  In Secretary of State for Social Security v. Harmon [1999] 1 W.L.R. 163 (also reported as R(CS) 4/99), the Court of Appeal considered that the primary meaning of the word “paid” was “actually paid” but that that primary meaning “will readily yield to the context” so that the word “paid” might in some contexts mean “lawfully paid”.  The same approach is applicable to the word “receiving”.  In my judgment, its primary meaning is, as Mr Hind submitted, “actually receiving”, but whether it has that meaning in any particular statutory provision depends on the context.  Where one person receives a payment on behalf of another, there immediately arises the question whether the context requires receipt to be attributed to the first person, to the second person or to both of them.  Similar issues arose in R(IS) 5/03, but CIS/2317/2006, to which Ms Demetriou referred me, is more relevant to the present case.  In CIS/2317/2006, Mr Commissioner Jacobs held that, for the purposes of entitlement to have a disability premium included in an applicable amount for income support purposes, attendance allowance paid to a person appointed to act on behalf of a disabled person had to be treated as received by the disabled person and not the appointee.  Otherwise a person with no disability might have a disability premium included in his or her applicable amount and that plainly is not what the legislator intended.  The same reasoning leads to the conclusion that the legislator intended that an applicable amount should include an amount in respect of a child and an amount in respect of a family premium only where the claimant (or his or her partner) was entitled to child benefit and not where child benefit was being received on his or her behalf by someone else.  For that reason, I accept the Secretary of State’s submission that the tribunal did not err in finding that the claimant was not “receiving” child benefit for the purposes of regulation 77 of the 1996 Regulations.

11.	Mr Hind’s second submission was that regulation 77 acted in a discriminatory fashion in the present case, as it did in Hockenjos, and that it should be disapplied.  It was found in Hockenjos that regulation 77 was discriminatory and that the discrimination was not justified but Ms Demetriou argued that regulation 77 should not be disapplied in the present case because it did not have the consequence here of disentitling the claimant to any benefit.  Unlike Mr Hockenjos, the claimant in this case could have secured his entitlement to the full amount of jobseeker’s allowance that he was seeking (or, for that matter, to income support) by making a claim for child benefit as soon as his daughter came to live with him.  (Even if the Inland Revenue really required the claimant to submit a birth certificate with his claim, notwithstanding that child benefit in respect of his daughter was already being paid to his wife, he could have submitted a claim without it and provided the certificate later.  I observe, however, that no-one administering income support or jobseeker’s allowance gave the claimant that advice.)  Because his daughter was living with him, he would have had priority over his wife’s claim save during the first three weeks of his claim (see paragraphs 1 and 2 of Schedule 10 to the Social Security Contributions and Benefits Act 1992) and he would also have been given priority over his wife for those three weeks if his wife had waived her priority (see regulation 15 of the Child Benefit (General) Regulations 2003 (S.I. 2003/493)), as presumably she would have done given her willingness to hand over her child benefit book.  Moreover, he might even have been given priority over his wife in respect of a period before his claim if she had agreed that the payments that had already been made on her award should be treated as paid on account of payments due to him as, again, she would presumably have been prepared to do.  Mr Hind retorts that the claimant would not have lost any jobseeker’s allowance as a consequence of failing to claim child benefit had regulation 77 not made receipt of child benefit necessary.  This seems to me to be a good point.  If forcing people to claim child benefit was discriminatory, the penalty for failing to claim (or for failing to understand the necessity of persuading a former claimant to concede priority) was discriminatory and it is irrelevant that the penalty could have been avoided.

12.	Ms Demetriou, however, had a second string to her bow and submitted that the tribunal was right to distinguish Hockenjos and that regulation 77 did not in fact have any discriminatory effect in a case like the present. There are at least two reasons why the link with child benefit imposed by regulation 77 may be discriminatory.  One is that more women than men tend to be majority carers, which was the point that was relevant in Hockenjos.  As the tribunal found, that is not relevant to the present case where both parents were caring for their daughter until their separation and then each of them had sole care (by which I mean that the other did not claim to be a “substantial minority carer” as that term was used in Hockenjos) in succession.  A second way in which the link to child benefit may be discriminatory arises because child benefit is generally awarded in a discriminatory fashion to women rather than men where couples are living together (see paragraphs 3 and 4 of Schedule 10 to the Social Security Contributions and Benefits Act 1992).  This is the point Mr Commissioner Mesher had in mind when directing the oral hearing in this case.  Where a couple split up, the woman will retain priority as an existing claimant for the first three weeks after they separate, even if the child goes to live with the father.  It seems to me that there is considerable force in Mr Commissioner Mesher’s suggestion that men could complain that they were unfavourably treated in those circumstances by comparison with women who remained carers following a separation and that there was insufficient justification for that unequal treatment.  Ms Demetriou’s submission was simply that that was not the case here.  Here, the mother’s priority as an existing claimant for the first three weeks after her husband’s claim for child benefit was based on her having been the sole carer for several months; any discriminatory priority accorded to her while she was living with her husband had long since ceased to be relevant.  Giving priority to a sole carer is obviously justified and, even if it were the case that more men take over care from women than vice versa, any resultant statistical inequality would therefore also be justified.  A woman taking over the care of a child from her husband would in fact be in exactly the same position as a man taking over the care of a child from his wife.  Consequently there was no discrimination on grounds of sex in the circumstances of this case.  I accept this submission.

13.	This is fatal to the claimant’s case.  As the Court of Appeal found in Hockenjos, the link with child benefit effected by regulation 77 is unnecessary and it can act harshly and was even more likely to do so while regulation 83(b) and (d) was in force.  However, it is not so irrational as to make the regulation ultra vires.  The Court of Appeal was able to provide Mr Hockenjos with a remedy only because he was the victim of indirect sex discrimination as a result of the application of regulation 77 and the Secretary of State was unable objectively to justify the discrimination.  Because the claimant in the present case is not the victim of unlawful discrimination, regulation 77 is not unlawful as it has been applied to him and therefore it cannot be disapplied.  

14.	Accordingly, the claimant’s appeal must be dismissed.

	(signed on the original)	MARK ROWLAND
		Commissioner
		4 January 2008