CF/24/1994

The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
MR COMMISSIONER M J GOODMAN
Tribunal :
Tribunal Case No : 
 
1. I allow the claimant's appeal against the decision of the social security appeal tribunal dated 11 July 1994 as that decision is erroneous in law and I set it aside. My decision is that the claimant is entitled to payment of Child Benefit in respect of her daughter Wendy (born 15 March 1977) for the inclusive period from 14 September 1993 to the end of the "week" in which Monday, 4 September 1995 occurs. Social Security Administration Act 1992, section 23.

2. This is an appeal to the Commissioner by the claimant, a married woman, the mother of Wendy. Wendy was born on 15 March 1977 and thus attained the age of 16 years on 15 March 1993. The appeal has been the subject of three oral hearings before me, on 15 June 1995, 8 November 1995, and 19 April 1996. The need for three oral hearings was caused by the necessity to make a number of communications to the Secretary of State asking for clarification etc of his rulings (see below). I am much indebted to the claimant, to her husband, and to the representatives from the Office of the Solicitor to the Departments of Health and Social Security for their assistance to me at the three hearings.
3. The appeal is against the unanimous decision of a social security appeal tribunal dated 11 July 1994 which dismissed the claimant's appeal from a decision of an adjudication officer given on 18 October 1993. Apart from temporary extensions to 13 September 1993 (under regulation 7 of the Child Benefit (General) Regulations 1976, SI 1976 No 965) and from 3 October 1993 to 2 January 1994, because Wendy registered at a Careers Office for work or training, the effect of the decision was to deny to the claimant child benefit from the time that Wendy left school on 23 July 1993, having attained her 16th birthday on 15 March 1993. That denial was on the ground that the education which Wendy received at home from her parents in preparation for taking three A level examinations in June 1995 had not been recognised by the Secretary of State.

4. The tribunal took the utmost care with this case and their record of decision (on Form AT3) is completed in exemplary detail. The tribunal were clearly sympathetic to the claimant and made it clear the only reason they dismissed the appeal was because the Secretary of State had issued, on 1 March 1994, a certificate refusing to recognise Wendy's education at home (see section 142(1)(c) of the Social Security Contributions and Benefits Act 1992, set out below). In their reasons for decision the tribunal said,
  
"It was inevitable that the appellant's application for Child Benefit would not succeed, once the Secretary of State's decision not to recognise [Wendy's] course of education became known. How the Secretary of State decides to exercise his discretion whether or not to grant a certificate in any particular instance is not a matter over which the social security appeal tribunal has any jurisdiction. Conceivably [the claimant and her husband], being dissatisfied with the way in which the Secretary of State made his decision and issued the adverse certificate on 01.03.1994, might think about other remedies, such as an application for judicial review. That, however, is a matter for them alone, and nothing to do with the Tribunal."
5. The chairman of the tribunal in giving leave to appeal to the Commissioner gave detailed reasons for his granting of leave to appeal (in a letter dated 1 October 1994), as follows,
  
"The reason for granting leave to appeal is that, although the more likely effective remedy would seem to be proceedings for judicial review of the Department's decision to refuse a certificate, it would be desirable for the Commissioner to consider how the adjudicating authorities should treat such a decision. The evidence before the Tribunal... indicated that the Appellant and her family regarded the decision by the Department of Social Security as perverse and unfairly discriminatory. Clearly the tribunal had no power to disregard the refusal of the certificate simply because the decision appeared on the face of it arbitrary; in any event, the Presenting Officer had no information on the Department of Social Security's policies and reasoning, which had led to the making of that particular decision, so it was impossible for the Tribunal to form a balanced view on the issue. Even if the Tribunal had been fully aware of the Department's reasoning, whether or not they agreed with the same, they had no power to review that decision".
6. In view of the obvious concern expressed by the tribunal and its chairman, I have had this matter investigated very fully. In a direction dated 15 June 1995 (following the first oral hearing) I directed the adjudication officer to refer to the Secretary of State for Social Security a number of questions. The relevant question is contained in paragraph 1(a) of the Direction and reads as follows,
  
"Whether the education provided for Wendy at home by her parents (both qualified teachers) from 6 September 1993 onwards is recognised by the Secretary of State as 'full-time education ... elsewhere' within the meaning of section 142(1)(c) of the Social Security Contributions and Benefits Act 1992. The Secretary of State is on this point asked to consider the exercise of his powers of reconsideration of his decision dated 1 March 1994 (under regulation 19(2) of the Social Security (Adjudication) Regulations 1986), because of representations made to me at the hearing by Wendy's father and the concern expressed by the tribunal chairman when granting leave to appeal."
7. At this point I should say that the only reason I have set the tribunal's decision aside as being erroneous in law is because they did not apparently have drawn to their attention the power of the Secretary of State to reconsider a ruling of his. That power was conferred by regulation 19(2) of the 1986 Regulations and is now contained in regulation 17(3) of the Social Security (Adjudication) Regulations 1995. Technically that power (because of its wording) might not extend to child benefit cases, but I have no doubt that in any type of case the Secretary of State has an inherent power to reconsider his rulings. As a result the tribunal did not consider whether or not they could rectify their obvious concern by asking the Secretary of State to reconsider. That is sufficient error of law for me to set aside their decision although of course I emphasise it is very much in some ways a 'technical' error of law.

8. As a result of my direction of 15 June 1995 (above cited) the Secretary of State gave a further ruling on 5 July 1995 dealing with a number of points but as that ruling has been subsequently superseded I will not go into detail into its contents. Following receipt of that response by the Secretary of State, I held another oral hearing on 2 November 1995 to consider the consequences of the Secretary of State's ruling. At that hearing there was information that Wendy had now passed all three A level subjects, being English literature (grade C), French (grade C) and History (grade D).

9. On 8 November 1995 I directed that this information be supplied to the Secretary of State and asked for the Secretary of State to consider that (and a number of other technical matters referred to in the Direction). As a result, the Secretary of State by a ruling dated 20 December 1995 ruled as follows:-
  
"In light of advice and the information provided, the Secretary of State has accepted that the education given to [Wendy] by her parents was that of private tutors on an individual basis which resulted in her achieving examination results to 'A' level standard. The decision of the Secretary of State is that the education undertaken by Wendy .. at [her parent's home address] should be accepted as recognised education in a tutors home."
10. The Secretary of State had therefore exercised his power of reconsideration and had reversed his earlier decision not to recognise Wendy's education at home. There is however one further question before an award of child benefit can be made to the claimant. That question arises from section 142(2) of the Social Security Contributions and Benefits Act 1992 (re-enacting earlier legislation to the same effect). Section 142(1) and (2) of the 1992 Act read as follows,
  
"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) ....................... 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".
Section 147(1) of the Act provides that "'recognised educational establishment' means an establishment recognised by the Secretary of State as being, or as comparable to, a university, college or school;".

11. The difficulty in this case, and I by earlier directions had asked the Secretary of State to deal with this is that at first blush section 142(2) of the Act would appear to proscribe education at home which starts only after the child attains the age of 16. That is of course what happened here. The education at home did not start until after Wendy attained 16 on 15 March 1993. However section 142(2) is by no means clear about this matter. In particular the words "for a person who, in the opinions of the Secretary of State, could reasonably be expected to attend such an establishment" are difficult to interpret. Do they mean who could reasonably be expected to attend such an establishment before or after the age of 16? It has to be borne in mind here that Wendy's parents did not wish her to continue her education in a mixed sex 6th form college (the only A level education available in the area) because Wendy had previously been educated at an all girls school. Her parents are members of a Religious Sect and on moral grounds they did not wish their daughter to be educated at a mixed sex college or school. That might bear on the meaning of the phrase "could reasonably be expected to attend such an establishment" in section 142(2). I raised this question specifically with the Secretary of State in my directions. I have ultimately come to the conclusion that, as the Secretary of State has ruled on 20 December 1995 (quoted in paragraph 8 above) "that the education undertaken by Wendy .. at [her parents home] should be accepted as recognised education in a tutor's home", the Secretary of State must have been satisfied that he could issue such a ruling since section 142(2) provides that "the Secretary of State may recognise education ...". I have no power to do other than accept the ruling of the Secretary of State under section 142(2) at face value.
12. Consequently it is clear that the Secretary of State, having ruled that the education at home was recognised education, Wendy was then undoubtedly a qualifying "child" within section 142(1)(c) of the 1992 Act, since she was under the age of 19 and she was receiving education "recognised by the Secretary of State". She fulfils all the conditions of section 142(1)(c). As a result I have in paragraph 1 above awarded the claimant child benefit for the appropriate period. It would appear that the automatic extension period under regulation 7 of the Child Benefit (General) Regulations 1976 would apply and my decision reflects this.

13. As I have decided in favour of the claimant on the grounds above stated, I have not dealt with the further matter that the claimant was in fact receiving tuition under correspondence courses with the Rapid Results College and the Civil Service Correspondence College. There is no need for me to do that in the circumstances. I note simply that in a decision on file CF/012/1994, another Commissioner decided that, even though a Correspondence College is recognised by the Secretary of State for Education as an Accredited College, nevertheless there was not compliance with section 142(1)(c) of the 1992 Act, because there was no "attendance" at such a College.
 
M.J. Goodman
Commissioner 

14 May 1996