R (Barber) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | SIR RICHARD TUCKER |
| Judgment Date | 17 July 2002 |
| Neutral Citation | [2002] EWHC 1915 (Admin) |
| Docket Number | Case No: CO/4463/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2002 |
[2002] EWHC 1915 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINSTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Sir Richard Tucker
Case No: CO/4463/2001
Richard Drabble QC & Daniel Kolinsky appeared on behalf of the Claimant
Jason Coppel appeared on behalf of the Defendant
This is a application by the claimant, Kevin Barber, for Judicial Review of the decision of the Defendant, the Secretary of State for Work and Pensions, dated 19 th December 2001, rejecting the Claimant's request that child benefit in respect of his younger son Gareth should be shared between himself and his former wife, Karen Barber. Their marriage has foundered, and they have two sons.
The parents have agreed to a shared care arrangement which has been approved by the court, whereby Gareth spends an equal amount of time with each of them. Unfortunately Mrs Barber will not agree to a sharing of the chiel benefit and the Secretary of State refuses to make any direction to that effect.
Initially the child benefit for Gareth was paid to the Claimant with his then wife's consent but on their separation, it was paid to Mrs Barber, again by consent. The claimant contends and concedes that they are each entitled to receive child benefit in respect of Gaeth, but complains that Mrs Barber continues to receive the entirety of the benefit while he receives none of it.
The sum of money involved is not large—the entire benefit for a second child amounts to £11.55 a week. However, it is contended that it is not only that sum of money which is at issue. The Claimant's case is that the receipt of child benefit is a gateway to many additional benefits and allowances.
By the Amended Judicial Review claim form, review is sought of the decision of the Secretary of State dated 19th December 2001 to decline to exercise his powers under Regulation 34 of the Social Security (Claims and Payments) Regulations 1987 and/or his discretion under paragraph 5 of Schedule 10 of the Social Security Contibutions and Benefits Act 1992 to split the child benefit between Gareth's parents.
Having heard careful and helpful submissions from Mr Drabble QC behalf of the Claimant and Mr Coppel on behalf of the Defendants, I am satisfied and Mr Drabble now concedes, that the decision under review was based only on Regulation 34 and that the case should be decided on that basis alone.
Nevertheless it will be desirable and necessary to set out the whole statutory scheme:
Section 141 of the Social Security Contributions and Benefits Act 1992 (“the Act”) provides that:
“A person who is responsible for one or more children in any week shall be entitled, subject to the provisions of this Part of the 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”.
By Section 143(1) of the Act a person recall be treated as responsible for a child in any week if:
a) “he has the child living with him in that week”,
or
b) “he is contributing to the cost of providing for the child at a weekly rate that is not less than the weekly rate of child benefit payable in respect of the child for that week”.
It is common ground that both the Claimant and Mrs Karen Barber are a “person responsible” for Gareth within the meaning of s.143 of the Act.
Section 144(3) of the Act provides that:
“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 of the Act”.
This is the basic rule that only one person is entitled to child benefit for a child in any week.
Schedule 10 of the Act sets out the order of priority between persons responsible in the following terms (so far as material):
a. By paragraph 1, a person already in receipt of child upon takes priority over a person claiming for a three-week period.
b. Paragraph 3 provides that as between a husband and wife residing together the wife shall be entitled. It is submitted that here is an overt weighting in favour of women (mothers)
c. Paragraph 5 provides:
“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”.
Section 5(1) of the Social Security Administration Act 1992 states:
“Regulations may provide…
(p) for the circumstances and manner in which payments of such a benefit may be made to another person on behalf of the beneficiary for any purpose, which may be to discharge in whole or in part, an obligation of the beneficiary of any other person”.
Regulation 34 provides (so far as is material):
“the Secretary of State may direct that benefit shall be paid, wholly or in part, to another natural person on the beneficiary's behalf if such a direction as to payment appears to the Secretary of State to be necessary for protecting the interests of the beneficiary, or any child or dependent in respect of whom benefit is payable”.
It is to be noted first that this regulation provides a discretionary power to apportion the benefit. Second that the beneficiary in this case is Mrs Barber and thirdly, that only if it appears to the Secretary of State to be necessary for protecting the interests of the beneficiary or any child, can the power be exercised.
Mr Drabble submits that the United Kingdom statutory scheme as construed and administered by the Secretary of State adopts an all or nothing approach. Only one parent receives child benefit so as to be regarded as the parent with care for the purposes of the Child Support Act 1991 and, if otherwise entitled, to receive child additions to means tested welfare benefits such as income support and Jobseeker's Allowanct, and Home Responsibility Protection (“HRP”) credits. The parent who does not receive child benefit is regarded as the absent parent under the Child Support Act 1991 and does not become eligible for HRP or the other additions to benefit to which I have referred if he should fall ill or become unemployed.
It is submitted that in the Claimant's case, this results in a highly disparate treatment of individuals who are in other respects in identical situations.
The Defendant recognises that child benefit is the passport to other benefit entitlements as appears from paragraph 40 of the first statement of Mr Sprawson, head of the Child Benefit Policy Section of the relevant department. However, they contend that these are hypothetical issues which do not fall to be considered in these proceedings since the Claimant is in full employment, does not receive any of the benefits referred to and there is no immediate likelihood of his making a claim for them.
I disagree with the Defendant's approach on this particular issue. I take the view that the potential effect of denying child benefit to the Claimant and of categorising him as the absent parent is of considerable importance to him and is a matter to which I should have regard. It is clear from paragraph 76 of Mr Sprawson's statement that the receipt of child benefits is regarded by the Defendant as a statutory criterion for identifying the absent parent and thus for eligibility or not of what I have described as the raft of welfare benefits.
The remedy sought in these proceedings is first, an order to quash the Defendant's decision and second, an order requiring the Secretary of State to reconsider the exercise of his discretion under Regulation 34 (the reference to paragraphs 5 of schedule 10 is now irrelevant). There are obvious difficulties in the Claimant's way in obtaining these orders.
The purpose of Regulation 34 is to enable the Secretary of State to ensure that benefit is paid to someone other than the parent where it appears necessary to do so in order to protect the interests of the parent or the child. It is designed to cover situations where the parent is unwilling or unable to apply the benefit in the interests of the child or squanders it for some other purpose and enables the Secretary of State to pass the benefit, for example to a landlord in respect of rent or to a lender to discharge a hire purchase commitment.
Mr Coppel rightly describes Regulation 34 as providing an exceptional measure designed to meet certain exigencies and which does not affect entitlement to child benefit.
I agree with the observations of Collins J. in Chester v Secretary of State for Social Security (unreported 7 th December 2001) where at paragraph 10 he says:
“That provision (i.e. Regulation 34) is applicable in the case where, for example, the beneficiary (that is to say the person who is entitled to receive the child benefit) disappears or is otherwise unable (or perhaps even unwilling) to use the benefit for the proper purpose”.
The present case does not fall within that category. There is no suggestion that Mrs Barber is not applying the benefit for the proper purpose. So it would be impossible for the Secretary of State to conclude that it is necessary for protecting the interests of the beneficiary or the child, that he should direct that the benefit should be paid other that to the beneficiary, i.e. Mrs Barber.
However Mr Drabble seeks to overcome that difficulty by invoking the provisions of the human rights legislation.
He submits that the provision of child benefit and the other welfare benefits are all within the ambit of Article 8 of the European Convention on Human Rights (the right to...
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