R(IS) 11/96
(Barton v. Chief Adjudication Officer)

CA (Stuart-Smith, Peter Gibson and Thorpe LJJ) 	CIS/164/1994
16.5.96
Applicable amount - child maintained by local authority at residential educational establishment - whether “resident” and to be treated as possessing income
The claimant’s income support was reduced by virtue of income attributed to children under regulation 44(3) of the Income Support (General) Regulations 1987 because they attended a boarding school in Norfolk and the fees were paid by the local education authority in Essex. That decision was upheld by a social security appeal tribunal. The claimant appealed to the Commissioner on the grounds that the children were not “resident” at the school as they attended in only certain weeks of the year. The Commissioner dismissed the appeal because it was logical that there should be a reduction of income support while the children were living elsewhere and there was no reason to distinguish between part year attendance and attendance for all 52 weeks of a year. The claimant appealed to the Court of Appeal.
Held, dismissing the appeal, that:
1.	there is no authority for the proposition that a child cannot be resident at a school where he boards for only 35 weeks of the year;
2.	securing the provision of boarding school accommodation in another County by direct payment of fees satisfies the requirement for maintenance in regulation 44(3)(a) so that the child must be treated as possessing the income prescribed.

decision of the court of appeal

Mr. P. Engleman and Miss R. Crasnow (instructed by Messrs. Marshall Sutton Jones, Colchester) appeared on behalf of the Appellant.
Miss N. Lieven (instructed by the Solicitor for the Department of Social Security) appeared on behalf of the Respondant.

LORD JUSTICE THORPE: On 25 June 1990 in the Colchester County Court the care and control of the three children of the Barton family was committed to their mother, the petitioner in the divorce suit. The three boys were then aged about 13, eleven and seven years. Subsequently the two elder boys went to Wymondham College in Norfolk. Their fees were paid by the Essex County Council subject to means assessed parental contribution. However, Mrs. Barton fell ill, became entitled to income support and ceased to be liable to contribute. On 12 January 1993 she lodged a claim for income support with effect from 4 January 1993. On the previous day the two boys had started the new term at Wymondham College. That day was also the eldest boy’s sixteenth birthday. On 29 January 1993 after 18 days of the school term Mrs. Barton withdrew the boys and they returned to local day schools.
		
That seems to have been a reaction to the decision of the adjudication officer on 21 January 1993 reducing her entitlement to income support by £46.95 per week whilst the boys were away at school. On 22 April 1993 she appealed that decision to the appeal tribunal. On 19 August 1993 the appeal tribunal confirmed the decision of the adjudication officer. She appealed again to the social security Commissioner and, following an oral hearing, the Commissioner dismissed her appeal by a written decision of 31 March 1995. However on 5 September 1995 the Commissioner granted her leave to appeal and Mrs. Barton’s appeal now comes before this court.

The appeal both before the Commissioner and in this court depends on the construction of regulation 44(3) of the Income Support (General) Regulations 1987. The regulations define and quantify entitlement under the Social Security Contribution and Benefits Act 1992. For the purposes of this judgment I do not think it necessary to consider all the sections and regulations to which Mr. Engelman referred in his extensive opening. I concentrate on regulation 44 which deals with the capital and income resources of children the subject of claim. I cite only so much of regulation 44(3) as is essential for the determination of this appeal:
“(3)	Where a child or young person-
(a)	is resident at an educational establishment he is wholly or partly maintained at that establishment a local education authority under section 8 of the Education Act 1944 ... he shall for each day he is present at that establishment be treated as possessing an amount of income equal to the sum obtained by dividing the amount of personal allowance ... applicable in respect of him by seven.”

The appellant’s contention before the Commissioner was that her two elder children were not resident at Wymondham College within the meaning of the regulation since it was not a school that provided 52 week education but only a curriculum divided into conventional school terms, holidays, and exeats. That was not an original submission since it had been advanced in an earlier appeal before another Commissioner. In that earlier appeal the Commissioner decided against the claimant relying on a text book commentary on regulation 44(3) and upon the 1988 Amendment Regulations, SI 1988 No. 663, which had added to regulation 44 an additional sub-paragraph (9) as follows:
“For the purposes of this regulation, a child or young person shall not be treated as present at his educational establishment on any day if on that day he spends the night with the claimant or a member of his household.”

The Commissioner accepted that approach and added:
“It seems to me that there is no reason to confine the application of regulation 44(3) to the kinds of cases suggested by the claimant. That is because, as I see it, it is both just and logical that there should be a reduction of income support, in relation to the allowance for children when they are living elsewhere, however temporarily; that is I think emphasised by the reference in regulation 44(3) to “each day he is present” and by paragraph (9). In relation to this matter I see no reason in principle to distinguish between the 52 week children referred to in the Essex letter and the claimant’s children in their boarding school in Norfolk. And there is, in my view, nothing in the language used in the provision which requires me to make such a distinction.”

Mr. Engelman, who has argued the appeal vigorously and more extensively, submits that a child is manifestly not resident at his boarding school but at his parental home. Not only is that submission unsupported by authority, it is, in my judgment, contrary to authority. Admittedly a sojourn must have some settled continuity before it amounts to residence, but beyond that the quality of residence may be adjectivally qualified in any number of ways, for example, permanent, temporary, habitual, ordinary, intermittent etc. Just as an adult may have two residences at the same time so, a boy may be both resident at home and at his boarding school although he only spends approximately 35 weeks a year at the school. Even the speech of Lord Cave in Levene v. IRC [1928] AC 217 at 222 relied on by Mr. Engelman points to that conclusion. Miss Lieven for good measure shows that this court has so held in the case of an undergraduate dividing his year between university and home, see Fox v. Stirk [1970] 3 All ER 7. Mr. Engelman extended his argument to other provisions in regulation 44, particularly regulation (2) contending that only his construction made coherent sense of the regulation as a whole. Regulation 44(2) provides a mechanism to deal with the case of children whose boarding school fees are paid other than by a member of the family as normally defined by the Act, for instance by a grandparent or an uncle. In their case the payment to the school is deemed to be their income subject to a cap provided by regulation (4). Again Mr. Engelman’s submission is quite unattractive to me. As a matter of reality fee paying boarding schools provide 35 week and not 52 week residence.
		
Mr. Engelman’s second principal submission was also considered by the Commissioner and he found it more substantial. Regulation 44(3) has the further provision that the child “is wholly or partly maintained at that establishment by a local education authority under section 8 of the Education Act 1944”. Mrs. Barton relied upon a letter from Essex County Council in which they stated that they made payment to Wymondham College pursuant to section 81 of the Education Act 1944. The Commissioner rejected the submission. Again Mr. Engelman develops the point in this court more extensively. He emphasises that section 8 imposes a duty upon local authorities to provide primary and secondary school education for children in their area. Section 81 empowers a local authority to make payments including payment of school fees. Therefore he submits that the maintenance of a child at a school can only be pursuant to the power to make payment of fees derived from section 81. In my judgment there is an obvious and overpowering response to this submission. Section 8(2)(d) provides:
“(2)	In fulfilling their duties under this section, a local authority shall, in particular, have regard-
…   
(d)	to the expediency of securing the provision of boarding accommodation, either in boarding schools or otherwise, for pupils for whom education as boarders is considered by their parents and by the authority to be desirable”
Where a local authority in the exercise of its discretion elects to discharge its duty to provide secondary schooling for a particular child by arranging for him to attend a boarding school in another County paying the fees directly and recouping the parental contribution, if any, the qualification in regulation 44(3) is in my judgment manifestly satisfied. Miss Lieven confirms that conclusion by showing that section 8 is the catch all section and that once a decision has been taken to provide boarding education thereunder there are a number of alternative powers by which it might be financed. She relies on Watt v. Kesteven County Council [1955] 1 All ER 473 and particularly this passage at 475 from the judgment of Lord Justice Denning:
 “The duty of the county council [under section 8 of the Education Act 1944] is plain. They must make schools available for all the pupils in their area. But they can fulfil this duty, not only by maintaining schools themselves, but also by making arrangements with certain other schools. They may, for instance, make a grant to aid a school and in return get a right to a number of free places.	Or they may make arrangements with some particular independent school to take the boys.”

By way of amendment to his notice of appeal Mr. Engelman contends that since regulation 44(3) does not repeat the words “at which he is receiving relevant education” to be found in regulation 44(2) it applies only to children of secondary school age. Since under the provisions of the Education Act 1944 a child ceases to be of secondary school age on attaining his sixteenth birthday and since the eldest child attained that age on 11 January 1993, he at least from that date escapes the provision of regulation 44(3). Again Miss Lieven has a short and conclusive response. Section 8(V(b)) of the Education Act 1944 obliges a local authority to provide “secondary education, that is to say, full time education suitable to the requirements of senior pupils ....”. By section 114 of the Act senior pupil is defined as:
“a person who has attained the age of twelve years but has not attained the age of nineteen years.”

	Finally Mr. Engelman resorts to arguments of public policy ultra vires and international convention, namely the United Nations Convention on the Rights of the Child, 1989, paragraph 26. Mr. Engelman submits that it must be contrary to the policy aim of the statute that the appellant should be deprived of the addition of the boys’ personal allowances during term time when she has continuing expenditure not only for school extras but also for outgoings on the parental home. That submission seems to me a complete distortion of the reality. The obvious intention of the statute and the regulations is that a claimant should receive a weekly supplement for each child at home. It seems to me perfectly reasonable that that supplement should abate in respect of a boarding school child for each day that a child is absent at school. As Miss Lieven points out, if Mr. Engelman’s submission were upheld not only would the parent of a child at boarding school be in a preferential position to the parent with a child at day school but also the State would bear a double burden, first in paying the school fees and second in paying the claimant the child’s supplement during periods when the child was not being maintained at home.

Although Mr. Engelman argued the appeal with great fluency I am satisfied that his case is without foundation on any point. I would dismiss this appeal.

LORD JUSTICE PETER GIBSON:  I agree.

LORD JUSTICE STUART‑SMITH: I also agree.

Order: Appeal dismissed. Application for leave to appeal to House of Lords refused. Legal Aid taxation.