CIB 3933 2001
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 16 December 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIB 3933 2001 |
| Subject Matter | European Union law |
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I dismiss the claimant’s appeal against the decision of the Barnsley appeal tribunal dated 20 June 2001
REASONS
Introduction
2. I held an oral hearing of this appeal on 2 December 2003 in Doncaster. The claimant appeared in person. The Secretary of State was represented by Ms Marie Demetriou of Counsel, instructed by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions
3. This appeal is concerned with the claimant’s entitlement to increases of incapacity benefit in respect of his two children and, in particular, with the question whether the statutory link between entitlement to such increases of benefit and entitlement to child benefit is compatible with the law of the European Union. Before turning to the central issue, it is necessary to set out the relevant domestic legislation and the history of this case.
Domestic legislation
4. Increases in respect of children have been abolished, subject to a saving provision for existing beneficiaries, by section 60 of, and Schedule 6 to, the Tax Credits Act 2002, with effect from April 2003. However, at the material time, section 80(1) and (2) of the Social Security Contributions and Benefits Act 1992 provided:
“(1) … the weekly rate of any benefit to which this subsection applies shall, for any period for which the beneficiary is entitled to child benefit in respect of a child or children, be increased in respect of that child, or each respectively of those children, by the amount specified in relation to the benefit in question …
(2) Subsection (1) above applies to –
(a) [repealed]
(b) short-term incapacity benefit at the higher rate or where the beneficiary is over pensionable age;
(c) …; and
(d) …
Section 81(1) and (2) provided:
“(1) Where, apart from this subsection, a person is entitled to receive, in respect of a particular child, payment of an amount by way of an increase under section 80 above of any benefit, that amount shall not be payable unless one of the conditions specified in subsection (2) below is satisfied.
(2) Those conditions are –
(a) that the beneficiary would be treated for the purposes of Part IX of this Act as having the child living with him; or
(b) …”
5. Part IX of the Act makes provision for child benefit. Section 141 provides:
“A person who is responsible for one or more children in any week shall be entitled, subject to the provisions of this Part of this Act, to a benefit (to be known as “child benefit”) for that week in respect of the child or each of the children for whom he is responsible.
Section 143(1) provides:
“For the purposes of this Part of this Act a person shall be treated as responsible for a child in any week if –
(a) he has the child living with him in that week; or
(b) …”
Section 144(3) provides:
“Where apart from this subsection, two or more persons would be entitled to child benefit in respect of the same child for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 to this Act.”
Paragraphs 1 to 5 of Schedule 10 provide:
“Person with prior award
1. (1) Subject to sub-paragraph (2) below, as between a person claiming child benefit in respect of a child for any week and a person to whom child benefit has already been awarded when the claim is made, the latter shall be entitled.
(2) Sub-paragraph (1) above shall not confer any priority where the week to which the claim relates is later than the third week following that in which the claim is made.
Person having child living with him
2. Subject to paragraph 1 above, as between a person entitled for any week by virtue of paragraph (a) of subsection (1) of section 143 above and a person entitled by virtue of paragraph (b) of that subsection the former shall be entitled.
Husband and wife
3. Subject to paragraphs 1 and 2 above, as between a husband and wife living together the wife shall be entitled.
Parents
4. (1) Subject to paragraphs 1 to 3 above, as between a person who is and one who is not the parent of the child the parent shall be entitled.
(2) Subject as aforesaid, as between two persons residing together who are parents of the child but not husband and wife, the mother shall be entitled.
Other cases
5. As between persons not falling within paragraphs 1 to 4 above, such one of them shall be entitled as they may jointly elect or, in default of election, as the Secretary of State may in his discretion determine.”
6. By virtue of section 1 of the Social Security Administration Act 1992, it is a condition of entitlement to a benefit that a claim should have been made for it so that, in addition to the above rules, a person who has made a claim for child benefit always has priority over one who has not. Regulations made under section 1 provide that a claim for child benefit may be effective for up to three months before the date of claim but section 13(2) of the same Act further provides:
“Except where regulations otherwise provide, no person shall be entitled to child benefit for any week on a claim made by him after that week if child benefit in respect of the same child has already been paid for that week to another person, whether or not that person was entitled to it.”
7. Regulation 4A of the Social Security Benefit (Dependency) Regulations 1977 provides that in some circumstances a person living with a parent of a child who has been awarded child benefit may himself be treated as entitled to child benefit for the purposes of claiming entitlement to an increase of benefit under section 80. Regulation 7 of the Social Security (Overlapping Benefits) Regulations 1979 makes provision for the adjustment of increases of benefit in respect of children in order to prevent duplication of payments.
The facts
8. The facts of the case are not in dispute in so far as they are material to this appeal. The claimant is divorced. His two children lived with his ex-wife at the material time. She was in receipt of child benefit in respect of them both of them. On 31 March 1999, the claimant became incapable of work. He was awarded short-term incapacity benefit at the lower rate from 3 April 1999 and became entitled to the higher rate from 13 October 1999. On 20 September 1999, he claimed an increase of incapacity benefit in respect of his children. This claim was disallowed, apparently on the day it was received, on the simple ground that the claimant was not entitled to child benefit, as required by section 80(1) of the Social Security Contributions and Benefits Act 1992.
9. On 8 December 1999, the claimant claimed child benefit. It was accepted that the claimant was “responsible for” his children under section 143(1)(a) of the Social Security Contributions and Benefits Act 1992 because they lived with him for part of the time. However, his claim for child benefit was disallowed. In respect of the three months before the date of claim, it was disallowed under section 13(2) of the Social Security Administration Act 1992, because child benefit was in payment to his ex-wife. In respect of the next three weeks, it was disallowed under paragraph 1 of Schedule 10 to the Social Security Contributions and Benefits Act 1992 for the same reason. In respect of the subsequent period, it was disallowed by virtue of a decision of the Secretary of State made under paragraph 5 of that Schedule. The Secretary of State appears to have concluded that the children lived with their mother for more days in a week than they lived with their father.
10. The claimant appealed against the disallowance of child benefit. By virtue of paragraph 4 of Schedule 2 to the Social Security Act 1998, he was not entitled to appeal against the determination made under paragraph 5 of Schedule 1 to the Social Security Contributions and Benefits Act 1992. However, he argued that the legislation was discriminatory and should be disapplied as being contrary to European Union law. His appeal failed before a tribunal and also before Mr Commissioner Mesher in CF/3703/00. Mr...
To continue reading
Request your trial