[2005] UKSSCSC CIS_1616_2004 (08 September 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is disallowed. The decision of the Oxford appeal tribunal dated 11 March 2004 is not erroneous in point of law, for the reasons given below, and therefore stands.

2.	An oral hearing of the claimant's appeal to the Commissioner was held on 16 December 2004. The claimant did not attend but was represented by Mr Michael O'Donoghue of Oxford Citizens Advice Bureau. The Secretary of State for Work and Pensions was represented by Mr Stephen Cooper of the Office of the Solicitor to the Department for Work and Pensions. Both representatives made helpful submissions. Further action in the case was then deferred until the House of Lords had decided the appeals in R (on the application of Carson) v Secretary of State for Work and Pensions and R (on the application of Reynolds) v Secretary of State for Work and Pensions. The speeches in those appeals were delivered on 26 May 2005 ([2005] UKHL 37, [2005] 2 WLR 1369). Mr O'Donoghue had been directed to make a further written submission and did so in a submission dated 22 June 2005 and slightly amended on 7 July 2005. The Secretary of State was given the opportunity to reply, but did not wish to make any further submission.

3.	The claimant had been in receipt of income support as a lone parent from 10 September 2001. She had one child (Kyron) living with her permanently. By a court order dated 2 May 2000 (amended in a way not relevant to the present case on 28 January 2002), her two children with her former husband (Channing and Dalton) were to reside with him. The order provided for the claimant to have contact with the children by having them for each school half-term holiday (one week), for the first two and last two weeks of the school summer holiday and for half of the school Christmas and Easter holidays. The claimant's ex-husband had been awarded child benefit in respect of Channing and Dalton. The initial award of income support included personal allowances only for herself and Kyron.

4.	In a letter dated 16 December 2002 Mr O'Donoghue requested a supersession to take account of the fact that Channing and Dalton would be living with the claimant from 1 January 2003 to 15 January 2003. He recognised that, by virtue of regulation 15(1) and (4) of the Income Support (General) Regulations 1987, although the children could be said to be members of the claimant's household while with her, she could not be treated as responsible for them and they were not members of her family within the definition in section 137(1) of the Social Security Contributions and Benefits Act 1992. A personal allowance could not then be awarded for them. Regulation 15(1) provided that a person was to be treated as responsible for a child for whom he was receiving child benefit. Regulation 15(4) provided that, except where regulation 15(3) applied, a child was to be treated as the responsibility of only one person in any benefit week and any person other then the person treated as responsible in that week was to be treated as not responsible. I put all that in the past tense because the structure of the regulations has changed on the introduction of child tax credits. Thus, the ex-husband's receipt of child benefit for the two weeks of Christmas holiday prevented the claimant from being treated as responsible for the children. However, that was subject to regulation 15(3). It was on that provision and on the Human Rights Act 1998 that Mr O'Donoghue hung his argument for the claimant.

5.	Regulation 15(3) provided:

"(3) Where regulation 16(6) (circumstances in which a person is to be treated as being or not being a member of the household) applies in respect of a child or young person, that child or young person shall be treated as the responsibility of the claimant for that part of the week for which he is under that regulation treated as a member of the claimant's household."

Regulation 16 as a whole was rather confusingly drafted, but for present purposes it can be accepted that regulation 16(5)(c) and (f) had the effect that a child being looked after by a local authority under the Children Act 1989 or similar legislation or being detained in custody under a court sentence or pending trial or sentence could not be a member of a claimant's household. Then regulation 16(6) provided:

"(6) A child or young person to whom any of the circumstances mentioned in sub-paragraphs (c) or (f) of paragraph (5) applies shall be treated as being a member of the claimant's household only for that part of any benefit week where that child or young person lives with the claimant."

6.	Mr O'Donoghue's argument in the letter of 16 December 2002 was that, although the claimant's circumstances did not fall within regulations 16(6) and 15(3), by analogy with the circumstances in regulation 16(5)(c) (child being looked after by a local authority) and by the application of Article 14 (discrimination) of the European Convention on Human Rights (ECHR), in conjunction with Article 8 or Article 1 of the First Protocol, she should be treated as responsible for Channing and Dalton for the two weeks. He put the analogy in the terms of the income support claimant in both cases sharing parental responsibility, not being entitled to child benefit and having an actual responsibility for a child who visits on a regular basis. Mr O'Donoghue later confirmed that the possibility of the splitting of child benefit payments had been pursued and rejected.

7.	On 12 February 2003 a decision was given refusing the request for supersession. The claimant appealed, relying on the arguments in the letter of 16 December 2002. It was also said that the facts of the case fell within the ambit of Article 8 of the ECHR (respect for private and family life), so that Article 14 was applicable. The Secretary of State's written submission to the appeal tribunal merely dealt with the income support regulations and did not deal with the Human Rights Act 1998. Mr O'Donoghue put in a detailed written submission referring to much case-law on the ECHR. A further written submission on behalf of the Secretary of State, received by the Appeals Service on 5 March 2004 and now in the papers at pages 64 to 67, was probably received by the appeal tribunal and Mr O'Donoghue only shortly before the hearing.

8.	The claimant attended the hearing on 11 March 2004 with Mr O'Donoghue. The appeal tribunal disallowed the appeal. In the statement of reasons set out with the decision notice, the chairman rested that disallowance on the basis that Article 8 of the ECHR was not engaged, so there could be no argument of discrimination under Article 14. He relied on the judgment of Laws LJ in the Court of Appeal in Carson and Reynolds, where he said that the rules of the income support scheme did not come within the ambit of Article 8 because the scheme was not made out of compliance with any actual or perceived positive obligation to secure respect for family life arising under Article 8. That was the argument put forward in the Secretary of State's submission received on 5 March 2004.

9.	The claimant now appeals against that decision with the leave of the appeal tribunal chairman. I intend no disrespect to the skill and tenacity with which Mr O'Donoghue has put forward the claimant's case on the Human Rights Act 1998 by dealing with it fairly briefly. Nor do I ignore the obvious difficulty that someone already living on the restricted resources provided by income support for an adult with one child would have in looking after two additional children with no additional income.

10.	I shall focus on the question of whether or not, on the assumption that Article 8 of the ECHR is engaged, so that Article 14 is applicable, the claimant was discriminated against. That was the approach of Mr Cooper for the Secretary of State at the oral hearing and was responded to by Mr O'Donoghue both then and in his submission of 22 June 2005. The House of Lords in Carson and Reynolds did not advance matters at all on the question of whether any aspects of the income support scheme fall within the ambit of Article 8 and said nothing about Laws LJ's view. I am content to assume, without deciding, that, in relation to a claimant who is already entitled to a benefit like income support that contains provisions for increasing the amount of benefit to take account of the presence in her household of children for whom she is responsible, the question of whether she is entitled to increased benefit when her own children stay with her for blocks of at least a week at a time under a court order for contact is closely enough linked to questions of respect for family life. I shall also, taking into account what the House of Lords said about it not being necessary in every case to go through all the points identified in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, focus on one particular element of discrimination. That is whether the claimant was treated differently from some other person whose circumstances were not relevantly different or who was in an analogous situation. That was also the main ground on which Mr Cooper relied on in opposing the claimant's appeal.

11.	Mr O'Donoghue put the case on behalf of the claimant this way in his submission of 22 June 2005:

"6. The important consideration, ..., is to focus on the analogy with that of a claimant who shares responsibility for a child with a local authority who is allowed to claim allowances in respect of a child for that part of any benefit week. This obviously involves analysing the relevant factors between the two claimant and identifying the personal characteristic.
 7. [The claimant] is a parent who has a shared residence order with her ex partner. The fact that she has parental responsibilities (both legally and morally) is to a large extent a universal characteristic of all parents who want to provide for their children. It is not unusual these days for separated parents to work out arrangements to `co-parent' either formally or informally to jointly share responsibility for the care and upkeep of their children. When agreement cannot be reached between parents the court's intervention often facilitates and decides the level of contact or residence each parent should have.
 8. The situation where a parent shares responsibility with a local authority is relevantly similar to the extent that the parent has the same `responsibilities' to any child when that child is within its sole care.
 9. As the `status' here is that of a parent in a shared care situation the similarities between the two claimants are relevantly similar to the extent that both claimants have children who visit on a regular basis and in both cases the level of contact and residence can be determined under the Children Act 1989."

12.	It is not quite correct to say that the claimant had a shared residence order. The order in the papers was plainly one in which the children were to reside with the claimant's ex-husband and she was only to have contact with them, albeit staying contact for blocks of a week or weeks. However, that does not seem to me to alter the substance of the claimant's case. She nevertheless retained parental responsibility. And the situation with which she sought to compare herself (a child being looked after by a local authority living for a time in an actual parent's household) and in the other situation catered for in the regulations (a child in custody living for a time in an actual parent's household), seems to me effectively to be one in which the child lives with the authority concerned (under whatever legislation has been applied) and the actual parent is allowed contact by having the child to stay. If a child is being looked after by a local authority under a care order, the local authority has parental responsibility, in addition to the actual parents (Children Act 1989, section 33(3)) and is required to allow the child reasonable contact with its parents (section 34(1)). The other category of children "looked after" by a local authority is of those who are provided with accommodation under social services powers (section 22(1), and see sections 20 and 21 for examples of powers), which involves the local authority determining where the child is to live, including with a parent or person with parental responsibility. The local authority is under a duty to endeavour to promote contact with the parents (Schedule 2, paragraph 15).

13.	In my judgment the circumstances of the claimant were not relevantly similar to those of an parent whose child was being looked after by a local authority. A local authority in that situation is not able to claim child benefit (Social Security Contributions and Benefits Act 1992, section 147(6)) or any other social security benefit (which can only by implication be claimed by natural persons) in respect of the child. A local authority has power to make payments of expenses for a child visiting its parents, if there would otherwise be undue financial hardship and the circumstances warrant the making of the payment (Children Act 1989, Schedule 2, paragraph 16).

14.	There are obviously differences in the complex statutory provisions under which, on the one hand, the residence of a child with one parent or another is determined and, on the other, a local authority is empowered to look after a child. I do not need to decide if those in themselves would create relevant differences for the present purpose, in the face of Mr O'Donoghue's emphasis on the responsibilities and practical position of the parent with whom the child is staying for a short term. The distinction in the benefit position is what is most important. Where a child spends time with both natural parents, child benefit will usually have been awarded to one of the parents. That parent will also potentially, depending on the circumstances, have access to a range of social security benefits that, at the time with which I am concerned, contained provisions for increases in benefit for the presence of children, normally dependent on the child benefit entitlement. In such a situation, the government, if it had wished to provide for paying income support allowances to the parent without child benefit for days or weeks when the child was staying with that parent, would have been faced with the question of whether and, if so, how to adjust any benefit payable to the parent with child benefit. That question did not arise in the local authority and custody cases. Further, in those cases there was likely to be clarity, and an adequate official record kept, of the days for which the child in question was staying with the claimant. Where a child moves between parents, dispute about the days involved and inconsistent evidence, even when there is a court order in place, is not uncommon. Mention has been made in this case of the possibility, although the practicability would have differed according to individuals involved, of the parent in receipt of child benefit or other benefit, paying over some element of the benefit to the other parent while the child in question was staying with the other parent. In the local authority and custody cases, there is no other person in receipt or potentially in receipt of benefit in respect of the child in question. Although a local authority has power to make some payments while the child is with a parent, the nature of what would be done is different from what would be done between parents. I take that final factor into account, but consider the other factors more important.

15.	My conclusion is that, without delving into the reasons that might lay behind the rule adopted in income support for cases like the claimant's and the rule adopted for cases like those where children are being looked after by a local authority or are in custody, the differences mentioned in the previous paragraph make the circumstances of the claimant here not analogous to those of an income support claimant whose child being looked after by a local authority comes to stay. I do not have to think that there are good reasons behind either or both of the rules to conclude that the government was entitled to make whatever rule it thought fit for the different circumstances. If I need to go beyond that and ask a question like that posed by Lord Hoffmann in Carson and Reynolds (at [31]), there was enough of a relevant difference between the circumstances to justify a difference in the rules applied. I also bear in mind the factor mentioned at several points in the speeches in Carson and Reynolds, that the line sought to be drawn in the present case between sets of circumstances does not raise questions of suspect grounds of discrimination offending our notions of the respect due to the individual, but rather the kind of line that does not attract intense scrutiny and is within the broad political judgment to be exercised by government and Parliament.

16.	That is the conclusion that I would reach in the absence of consideration of the judgments of the Court of Appeal in Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749, decided after the oral hearing in the present case. The House of Lords has dismissed the Secretary of State's petition for permission to appeal. Mr O'Donoghue mentioned those judgments in his submission of 22 June 2005. Scott Baker and Ward LJJ in particular were scathing in their view of the jobseeker's allowance (JSA) rules (equivalent to the income support rules here) preventing the splitting of child allowances and premiums within a benefit week and there was some mention of the rules on children being looked after by a local authority or in custody. For those reasons, I must look at Hockenjos, but it does not affect my conclusion. The context of Hockenjos was very different. I leave aside, although it may be relevant, that Mr Hockenjos had a shared residence order, sharing care for the children in question broadly equally. His case on discrimination was, though made under Article 4 of Council Directive 79/7/EEC (equal treatment for men and women in matters of social security). It was conceded by the Secretary of State that the rule linking child allowances and premiums to receipt of child benefit discriminated against Mr Hockenjos on the ground of his sex, as women were more likely than men to be awarded child benefit in the circumstances of his case. What was at issue was whether there was objective justification for that discrimination (to which the Commissioner and the Court of Appeal answered no) and, if not, how much of the relevant regulation had to be disapplied. It was on that point that the Court of Appeal differed from the Commissioner. The Court of Appeal was thus not concerned with any question of whether the circumstances of a JSA/income support claimant without child benefit were analogous to those of a claimant whose child was being looked after by a local authority or was in custody. I think that the local authority and custody rules were looked at only as showing that it was possible to split allowances within a benefit week, which does not take the claimant any significant distance in the present case. She cannot rely on Directive 79/7, which does not cover income support, and, being female, cannot rely on any argument of discrimination under Article 14 of the ECHR on the ground of sex in relation to the basic link with receipt of child benefit (on the basis conceded in Hockenjos) or in relation to any other element of the rules on allowances for children.

17.	For those reasons, I reject the argument made for the claimant that she was discriminated against contrary to Article 14 of the ECHR. I therefore do not need to go into the other interesting and difficult questions discussed at the oral hearing, in particular what remedy could have been applied if I had decided in the claimant's favour on Article 14.

18.	Accordingly, the appeal tribunal was right in law to reject the claimant's case under the Human Rights Act 1998. Although I have reached that conclusion on a different ground, and I am not sure about the ground relied on by the appeal tribunal (although that might eventually be revealed to be sound), there was no error of law that was material to the decision made. There is no dispute that the Secretary of State's decision had been correct if the Income Support Regulations were to be applied as enacted. The appeal to the Commissioner must therefore be disallowed.

(Signed)            J Mesher
Commissioner

Date:  8 September 2005