[2004] UKSSCSC CIS_1965_2003 (17 August 2004)

Social fund maternity payment not payable to claimant with residence order

Article 14 not relevant to claimant with residence order as compared with adoptive parent claiming for child
CIS 1965 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal. For the reasons below, the decision of the tribunal was not wrong in law.

2	The appellant and claimant, Miss F, is appealing with permission of a chairman from the decision of the Leicester appeal tribunal on 18 February 2003. The appeal has taken some time to decide because I issued an earlier decision dismissing the appeal in 2003. However, I did so having left out of account a Commissioner’s decision cited by one of the parties on the ground that I then had no access to a copy of that decision. A copy came to light and, on the application of one party and with the acquiescence of the other party, I set aside that decision so that the matter could be considered again in full. In addition, the Public Law Project replaced Miss F’s previous representatives. I then received fresh submissions from both parties. This decision entirely replaces the set-aside decision, to which no further reference is made.    

The issue in dispute

3	Miss F claimed a sure start maternity grant for a child (whom I shall call C) born in October 2001. The claim was made in July 2002. Miss F stated that she was claiming because she had a “residency care order” made in May 2002 for C. The claim enclosed a copy of the court order. It is a residence order made under section 8 of the Children Act 1989 by the circuit judge. It shows that C is the child of Miss F’s sister. The claim also enclosed a certificate from a general practitioner indicating that Miss F had been given advice on the health and welfare of C.  

4	The claim was refused both initially and on reconsideration on the grounds that she did not meet the conditions of regulation 5 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (the 1987 Regulations). It was accepted that Miss F was receiving income support at the time. But it was not accepted that Miss F could show that she had any of the required links with C to meet the terms of the regulation. This was because the view was taken that the residence order did not meet those requirements.

5	 The tribunal confirmed the decision of the Secretary of State refusing the claim. Its reasons amounted to little more than a statement of the facts and the regulation, although it is clear from the papers that arguments were put to the tribunal to justify Miss F’s claim. As a chairman granted permission, so bringing the issue of principle before me, I deal with it without further reference to the detail of the tribunal decision. I see no point in considering separately whether that decision was or was not adequate. In any event, I have now received entirely fresh submissions on the point of principle, and the facts are not in dispute.

The regulation

6	 The only part of regulation 5 of the 1987 regulations that is in dispute is regulation 5(1)(b). As relevant to Miss F’s claim, it provides that a sure start maternity grant shall be made only if –

either –
(i)	 the claimant … is pregnant or has given birth to a child …
(ii)	the claimant … has adopted a child not exceeding the age of 12 months at the date of the claim or
(iii)	the claimant and the claimant’s spouse have been granted an order in respect of a child pursuant to section 30 of the Human Fertilisation and Embryology 199 (parental orders) …

7	Of these three links between claimant and child Miss F relies and can only rely on (ii). She claims that she has adopted C. But, of course, she has not adopted C. What she has is a residence order for C. So she must argue, and has argued, that the residence order is, for the purposes of regulation 5, to be treated as an adoption order. 

8	The starting point in considering the arguments made for Miss F is Commissioner’s decision CIS 13389 1996 – the decision that was most unfortunately found to be missing from official records when I first considered the case. The issue in that case was the entitlement of the claimant father to a maternity payment for his daughter. The facts were that the mother had claimed and been paid a maternity payment for the child before its birth. The mother and father were not married to each other. “Shortly after the birth, she arrived at the claimant’s door, handed him their child and left.” But she did not hand him the money. 

9	As the mother had already received a grant, the father could make a claim only as an adoptive parent. But there was no adoption order. Instead, the parents had reached a parental responsibility agreement under section 4 of the Children Act 1989. This gave the father parental responsibility for the child. In the view of the Commissioner it was not an adoption order. First, it was not an order but an agreement.  Second, it was not an order made under the procedure of the Adoption Act 1976 that is:

an order giving parental responsibility for a child to the adopters, made on their application by an authorised court (section 12(1) of the 1976 Act).

10	For Miss F it is argued that this decision is no longer relevant. This is because the matter should now be looked at with the Human Rights Act 1998 in mind. The heart of the argument put by the Public Law Project is that this approach violates Miss F’s convention rights under the European Convention on Human Rights. It could of course additionally be argued that in this case Miss F did have a court order. It was also argued that her claim was assisted by the terms of article 26 of the United Nations Convention on the Rights of the Child. And it was argued that even without these external references the decision of the tribunal was wrong on the “everyday” meaning of adoption. 

11	The secretary of state's representative was directed to deal with these arguments in details and has done so in a series of submissions. I am grateful to both parties for stating their views fully and clearly. I will deal with each issue in turn.

The everyday meaning of “adoption”

12	“Adoption” is not defined in regulation 5. For Miss F it is argued that the term should therefore be given an everyday broad meaning. I do not agree. The term “has adopted” is used expressly in regulation 5 in the context of establishing a specific link between claimant and young child: there must have been an adoption, and the child must at the date of the subsequent claim be not more than 12 months old.  This is (save for the narrow specific case of the grant of a court order to both parties of a marriage under the 1990 Act) the only basis for claim by someone who is not a member of the child’s natural family. In that context I agree with the Commissioner in CIS 13389 1996 (at paragraph 8) that “unless from the context it is clear both that some other meaning is required and what that other meaning is, I can see no alternative but to interpret adoption as referring to the acquisition of parental responsibility by the statutory procedure.” 

13	I do not see anything in the provisions of the Adoption and Children Act 2002 that alters this. On the contrary, section 46 of the 2002 Act makes clear that an adoption order takes priority over and revokes an order under the 1989 Act: 

46    	Adoption orders
 	
 	    (1) An adoption order is an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter.
 	
 	    (2) The making of an adoption order operates to extinguish- 
 	
 	(a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,	
 	(b) any order under the 1989 Act or the Children (Northern Ireland) Order 1995,	
 	(c) any order under the Children (Scotland) Act 1995 other than an excepted order, and	
 	(d) any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child's maintenance or upbringing for any period after the making of the adoption order.	
 	"Excepted order" means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 or an exclusion order within the meaning of section 76(1) of that Act.	
 	    (3) An adoption order- 
 	
 	(a) does not affect parental responsibility so far as it relates to any period before the making of the order, and	
 	(b) in the case of an order made on an application under section 51(2) by the partner of a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(d).	
 	    (4) Subsection (2)(d) does not apply to a duty arising by virtue of an agreement- 
 	
 	(a) which constitutes a trust, or	
 	(b) which expressly provides that the duty is not to be extinguished by the making of an adoption order.	
 	    (5) An adoption order may be made even if the child to be adopted is already an adopted child.
 	
 	    (6) Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.	

An extended meaning?

14	 Should the term, nonetheless, be given a wider meaning by reference to the Human Rights Act 1998 or international law?

15	The argument for Miss F is that the above approach fails to give full regard to her position, in comparison with that of others, by reference to Article 14 of the Convention read with either Article 8 (respect for family and private life) or Article 1 of Protocol 1 (respect for property). Assuming for present purposes that either or both of the substantive rights in Article 8 or Article 1 of Protocol 1 are engaged, in the sense that Miss F’s claim is within their ambit, then there is discrimination under Article 14 if there is unjustified discrimination “on any ground” between her and others who are in a similar or analogous position. For Miss F it is contended that there is discrimination against her because she is looking after C “in an analogous position to an adopter”.

16	If I accept for the sake of the argument that either or both of Article 8 or Article 1 of Protocol 1 are engaged here, I nonetheless do not consider that the case for discrimination is made good under article 14. To some extent, the issue is one of what Miss F can claim, but it is also an issue of what can be claimed for C. It is by reference to that aspect of the case that it has been argued that the rights under the United Nations Convention, to which I turn later, are relevant. With regard to any rights for C, I see nothing in this case that stopped the child’s natural mother claiming for C at the appropriate time, although I accept that she has not done so. While there is no legal requirement that she should do so, she could have made the claim and passed the cash to her sister. If the mother was for any reason unable to claim herself, then her sister or someone else could have been appointed as her appointee to make the claim.

17	With regard to Miss F herself, I do not agree that Miss F is in the same position for these purposes as her sister (the natural mother) or a person, if there were one, who adopted C.  Without reference to the facts of this case, it would in principle - I assume - be possible for Miss F to adopt C so not excluding payment on that basis. But Miss F rests her claim on a residence order. 

18	A residence order is one of the forms of order that can be made under section 8 of the 1989 Act. The orders that can be made are defined by section 8 as follows:

 8.—(1)  In this Act — 
"a contact order" means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;

"a prohibited steps order" means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;

"a residence order" means an order settling the arrangements to be made as to the person with whom a child is to live; and

"a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

19	It is clear from a comparison of the terms of the two sections quoted above that the nature of a residence order is significantly more limited than the nature of an adoption order. To have a child live with someone is an important link, but it is not the same as assuming full parental responsibility in the same way as the birth parent or the adoptive parent. Clearly there is common ground between the position of Miss F looking after C because, by court order,  C is living with her, and that of a natural or adoptive parent, but there are also important differences. I do not consider that the common ground is sufficient to establish the analogous status that is contended for Miss F.  The core of the provision is that of a grant to the natural mother (or the family of which she is a member). This is then extended to adoptive parents (provided that the natural parents have not claimed) because that position is analogous to the natural parent. To extend the position further is to go beyond the analogous group to others, such as those with the benefit of residence orders, or perhaps those looking after the child but without a formal order, who have lesser claims. They have not assumed the full parental role (nor claim for a family one of whom has assumed that role). I therefore do not find that Miss F has a status or position with regard to C such that she can claim to be the subject of discrimination from the terms of regulation 5(1)(b) of the 1987 Regulations.  

The United Nations Convention on the Rights of the Child

20	Nor do I consider that my views should be altered by reference to Article 26 of the United Nations Convention on the Rights of the Child, although it has been ratified by the United Kingdom  Government. Article 26 provides that states parties:

… shall recognise for every child the right to benefit from social security, including insurance, and shall take the necessary measures to achieve the full realisation of this right in accordance with their national law. 

I accept that this applies in the United Kingdom as a matter of interpretation of ambiguous domestic law in accordance with well-established approaches to statutory interpretation, strengthened by the provisions on interpretation of the Vienna Convention on the Law of Treaties, to which the United Kingdom is also a party.  But I do not see how this assists Miss F. With regard to any rights of C, there is as noted nothing in the papers to suggest that C’s mother could not have made a claim. With regard to the position of Miss F, I do not, for the reason set out above, consider that the phrase from regulation 5 that “the claimant … adopted a child not exceeding the age of twelve months” allows of an ambiguity of the kind necessary to broaden its meaning in the way contended for Miss F.

21 	I therefore conclude that the tribunal was right to find that Miss F did not bring herself within the terms of regulation 5.  On the facts before it, the tribunal reached the only conclusion open to it in law in dismissing the appeal from the original decision that Miss F is not entitled to a sure start maternity grant in respect of C. While the reasoning of the tribunal might be open to criticism for inadequacy in not dealing fully with the issues put before it, I do not see how it could have reached any different decision to that it did reach.  I see no point in setting aside the formal decision of the tribunal merely to reimpose it because of such inadequacy, and therefore dismiss the appeal. 

 								David Williams
								Commissioner

								17 August 2004
[Signed on the original on the date shown]