PLH                                                                             Commissioner's File:  CIS 2260/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Income Support
Appeal Tribunal:	Whittington House 
Tribunal case ref:	U/45/161/2000/01991
Tribunal date:	21 August 2001
Reasons issued:	22 October 2001

1.	This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the Whittington House appeal tribunal given on 21 August 2001, holding that the claimant no longer satisfied the conditions of entitlement to income support from 13 July 2000, the date when her son attained 16.  
2.	My decision is that for the reasons given below that decision by the appeal tribunal was correct in law, and the appeal against it is accordingly dismissed.
3.	This case has a somewhat confused history at the tribunal level, though there is no dispute about the actual facts.  The claimant, who is a lady now aged 57, was on income support from 13 February 1997 as a lone parent who was not required to be available for employment.  At all material times she has had one dependent son, Gabriel, born on 13 July 1984.   His home is with her but he attends Ampleforth College under the assisted places scheme.  There is no dispute that until Gabriel attained 16 on 13 July 2000, the claimant qualified for income support as a person within paragraph 1 of the prescribed categories so entitled under Schedule 1B, Income Support (General) Regulations 1987 SI No. 1967, as “a person who is a lone parent and responsible for a child who is a member of [her] household”:  Gabriel for this purpose being the “child”.  
4.	As noted in the observations on the appeal dated 15 July 2002 at page 57, there is one single issue in the case, namely whether the Secretary of State was right in terminating the claimant’s entitlement to income support from the date Gabriel attained 16, on the ground that from that date he no longer fell within the definition of “child” under section 137 Social Security Contributions and Benefits Act 1992, which prescribes that in Part VII of that Act (which is the part containing the primary legislation for the income support scheme) a “child” means a person under the age of 16, with no extension to young persons over that age still receiving full‑time education.  On the findings of the tribunal and the evidence before it, there was no other category of persons prescribed under Schedule 1B into which the claimant had been shown to fall so as to provide any alternative route to continued entitlement even if paragraph 1 ceased to apply to her once Gabriel attained 16; so that everything depended on whether he could continue to count as a “child” within that paragraph from 13 July 2000.  If not, then the Secretary of State must have been right to terminate the claimant’s income support entitlement from that date; and she would have had either to make an application for jobseeker’s allowance, or to establish herself as a person incapable of work under the incapacity benefit rules, in order to continue to receive means‑tested public assistance from that date, neither of which she had done.
5.	The claimant’s appeal against the Secretary of State’s decision of 12 September 2000 terminating her entitlement on those grounds first came before a tribunal on 6 February 2001 and at that stage succeeded, a decision notice being issued saying that her appeal was allowed and her arguments that Gabriel still qualified as a child and a member of her household while his education was continuing were accepted.  That decision was however subsequently set aside by order of another tribunal chairman under section 13(2) Social Security Act 1998 on 18 June 2001, and the case was relisted for further hearing, which took place in due course on 21 August 2001 before a third tribunal chairman.  
6.	On this occasion the claimant attended the hearing, the previous one having been a paper consideration only.  She gave oral evidence and repeated her contentions that she continued to fall within paragraph 1 of Schedule 1B as a lone parent responsible for a child who was a member of her household and still receiving full‑time education.  The tribunal rejected the claimant’s argument and held that as Gabriel had ceased to be a “child” for the purposes of paragraph 1 of Schedule 1B when he became 16, the claimant no longer qualified for income support under that head.  Having considered whether there were any alternative bases on which she could continue to qualify for income support and found there were not, it confirmed the termination of her benefit.  
7.	That is the decision against which she now appeals to me, on the ground that the previous tribunal’s interpretation should be preferred.  As noted above this appeal is brought with the leave of the tribunal chairman, rightly granted to enable the point of principle to be tested in view of the inconsistent decisions given on the same case at tribunal level.  
8.	Having now considered the case in more detail with the assistance of the written submission of Mr J Westerman on behalf of the Secretary of State dated 31 July 2002 at pages 58 to 60 and the claimant’s own observations in reply dated 28 August 2002 at pages 62 to 63, I have reached the clear conclusion that the original decision of the Secretary of State was right, and that the claimant did cease to qualify as a person “responsible for a child” within paragraph 1 of Schedule 1B to the Income Support regulations when Gabriel attained 16, because on that date he ceased to be a “child” for this purpose.  Unlike some other provisions in the income support legislation where the definition of a “child” for this purpose as a person under the age of 16 is extended by the use of expressions such as “or young person”, and unlike the treatment of children for the purposes of child benefit where a young person still in full‑time education and under the age of 19 may continue to qualify, there is nothing in this part of the legislation to extend entitlement where the young person concerned is no longer a “child” within the applicable definition in the primary legislation in section 137(1) Social Security Contributions and Benefits Act 1992.  
9.	That definition in the relevant primary legislation applies also for the purposes of subordinate legislation made under it unless a contrary intention appears, by virtue of section 11 Interpretation Act 1978, and in my judgment there is no such contrary intention shown here.  I agree with Mr Westerman’s submission that regulation 14 of the Income Support Regulations, to which reference was made by both tribunals in their decisions, is not of relevance as it does not apply for this purpose.  
10.	Consequently the original decision of the Secretary of State and that of the second tribunal sitting on 21 August 2001 were right and are confirmed by the dismissal of this appeal.

(Signed)
P L Howell
Commissioner
2 October 2002