R(F) 3/96
Mr. D. G. Rice CF/1015/1995
2.10.96
Claim - second child - whether separate claim required for each child
The claimant had, on 1 April 1979, claimed child benefit for his first child born on 4 March 1978. However, the claim was not adjudicated upon until August 1990 when a claim was made for child benefit for the claimant's second child born on 15 January 1980. The reason the claimant did not claim in respect of his second child until August 1990 was that he had been erroneously told in 1979 that he was not entitled to child benefit in respect of his first child. A tribunal confirmed the AO's decision that the claimant was not entitled to child benefit for his second child for any period earlier than six months prior to the date of claim (see regulation 19(6)(a) of the Social Security (Claims and Payments) Regulations 1987 as then in force). The claimant appealed.
Held that:
- having regard to various provisions in the Child Benefit Act 1975, it was clear that a separate claim for child benefit had to be made for each eligible child. It was not open to a claimant simply to seek a review of an existing award to take account of the birth of another child;
- incorrect advice given by an officer of the Department could not give rise to an estoppel as the adjudicating authorities had no jurisdiction to award a benefit for which there is no statutory authority (R(F) 8/60 and R(F) 3/61 applied).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is that the decision of the social security appeal tribunal given on 14 October 1994 is erroneous in point of law and accordingly I set it aside. As it is convenient that I give the decision the tribunal should have given, I further decide that the claimant is entitled to child benefit in respect of his daughter Sarah for the period from 1 April 1978 to 4 February 1990, but not in respect of his son Michael for any period prior to 5 February 1990.
- This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 14 October 1994. In view of the complexity of this case, I directed an oral hearing. At that hearing the claimant was neither present nor represented, but the adjudication officer appeared by Mr. J. Heath of the Solicitor's office of the Department of Social Security.
- The claimant has been awarded child benefit in respect of his two children from 5 February 1990. I understood that the commencement date should have been 26 February 1990 and that in consequence there has been an overpayment. However, repayment is not sought and accordingly in practice nothing turns on the point. The claimant seeks a backpayment from the date of birth of the children, which in the case of Sarah was 4 March 1973, and in the case of Michael 15 January 1980. It is not in dispute that a claim for child benefit in sufficient form was made on 1 April 1979. At that date Michael was not born. Manifestly, the claimant was entitled to child benefit in respect of Sarah from 1 April 1979. Moreover, as the legislation then was, he was also entitled to a backpayment of one year. The tribunal made a decision to that effect and the matter is not now in dispute. The claimant has effectively established title in respect of Sarah almost from the date of her birth.
- The real matter that is in issue in this case is whether the tribunal were right to disallow any backpayment in respect of Michael earlier than 5 February 1990 (which should have been 26 February 1990). The award from 5 February 1990 was made on the basis of a claim, accepted as being in sufficient form, lodged on 23 August 1990. At that date the Social Security (Claims and Payments) Regulations 1987, SI 1987 No. 1968, applied and regulation 19(6)(a) thereof restricted backpayments to a period of six months prior to the date of claim. On the face of it, no earlier claim had been made in respect of Michael, and, if this was so, the tribunal were right to conclude that there was no entitlement in respect of him for any period earlier than the six months period already allowed.
- However, a difficulty has emerged in this case. Could it be said that the first claim for child benefit made on 1 April 1979 was a claim for child benefit generally, without being restricted to any particular child? And if the answer is in the affirmative, could it be said that any award on the basis that there was one eligible child was liable to subsequent review by the change of circumstances arising when a second child was born? If the answer to this is again in the affirmative, was it open to the claimant, relying on the claim of 1 April 1979, to seek, on the birth of Michael, a review of the award arising out of the claim made when only Sarah had been born? The matter is complicated in this instance by the fact that the claim of 1 April 1979 was never adjudicated upon until some ten years after Michael was born. There was, therefore, no actual award in existence which could be the subject of review. But in the special circumstances of this case, could it be said that, as the claim of 1 April 1979 was a continuing claim, it was open to the claimant when it came eventually to be adjudicated upon, to contend that account should be taken of the circumstances as they then were, which would necessitate an award in respect of both children, the award operating in respect of Sarah from the period 52 weeks prior to 1 April 1979, and in respect of Michael from the date of his birth?
- The crux of the problem is whether or not it is possible to make a claim for child benefit generally i.e. without restriction to a particular child. If it is not, then the other matters postulated above simply do not arise. The thought that it might be possible to apply for child benefit generally finds support in the concept that, generally speaking, when a benefit is claimed, it is claimed comprehensively. If one particular part of a benefit has to be specially claimed then the legislation will expressly so require. Thus, regulation 2(3) of the Social Security (Claims and Payments) Regulations 1987, which came into force on 11 April 1988, and existed substantially in the same form in the Social Security (Claims and Payments) Regulations 1979, SI 1979 No. 628, provided as follows:
"For the purposes of the provisions .... relating to the making of claims every increase of benefit in respect of a child or adult dependant ... shall be treated as a separate benefit and so shall an increase in the weekly rate of benefit under regulation 2(2) of the Child Benefit (Fixing and Adjustment of Rates) Regulations [one-parent benefit]."
- Accordingly, claims for an increase of benefit have to be claimed separately (before 1988 there were special Child Benefit Regulations, but the same principle there applied, increases had to be claimed separately). Now, if an increase of benefit has to be claimed separately, the implication could be said to be that, in the absence of a specific requirement of this kind, a claim made for a particular benefit is all embracing. And if this is so, then it was enough merely to claim child benefit in the abstract. Of course, there would have to be one eligible child for the claim to succeed, but if there was one, was the claim effectively lodged in respect of all subsequent children?
- Mr. Heath, who painstakingly took me though all the relevant legislation in its different forms back to 1975, argued that legislation had proceeded throughout on the basis that a claim for child benefit had to be made in respect of each child for which an award was sought.
- At the time relevant to this appeal the Child Benefit Act 1975 was in operation. It has subsequently been incorporated into the Security Contributions and Benefits Act 1992 and the Social Security Administration Act 1992, but for convenience I will refer solely to the original Act. Section 1(1) provides as follows:
"1.-(1) Subject to the provisions of this Part of this Act, a person who is responsible for one or more children in any week beginning on or after the appointed day shall be entitled to a benefit (to be known as child benefit) for the week in respect of the child or each of the children for which he is responsible."
I stress the final words of this provision "for whom he is responsible". The implication of these words is that a person might have a child for which he is not responsible and therefore entitlement must relate to a particular child. Child benefit does not flow from merely being the parent of a child.
- Section 3(1) provides as follows:
"3.-(1) 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) he is contributing to the cost of providing for the child at a weekly rate which is not less than the weekly rate of child benefit payable in respect of the child for that week."
Thereafter there are set out in section 3 various rules for dealing with the position where the relevant child is not living all the time with the claimant. Once again, the implication is that the success of the claim will depend upon the eligibility of a particular child and that eligibility can only be tested pursuant to a specific claim for that particular child.
- The position is reinforced by section 4(2) of, and Schedule 2 to, the Act, which deal with priorities of claim in respect of a particular child as between two or more persons who would otherwise be entitled to benefit in respect of the same child for the same week. Furthermore, section 5 provides that different rates of benefit may be payable in respect of different children and section 6 again seems to contemplate that child benefit will only follow a claim for a specific child. It reads as follows:
"6.–(3) 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 other person was entitled to it."
The language of that provision, like the language of all the other provisions cited, clearly proceeds on the basis that a claim has to be made for each specific child, and its success depends upon the eligibility of that child. A person might well have several children, one or more of whom might give rise to entitlement to benefit, but not the other or others. The eligibility of each child would depend upon investigation of a separate claim made in respect of him. A claim for child benefit is not at large, in respect of each and every child he has now or might have in the future. A claim has to be made in respect of each child for which an award is sought.
- It follows from what has been said above that the claim made in 1979 for child benefit could only have related to Sarah and that the first occasion when a claim in sufficient form was made in respect of Michael was in 1990. There was no provision in the Child Benefit Act 1975 or any child benefit regulation allowing backdating for good cause. However, in 1990 backdating was specifically permitted for six months and the claimant has already received the benefit of this concession. Accordingly, the claimant is entitled to nothing more.
- However, the claimant complains that the only reason why he did not claim in respect of Michael was because he was erroneously told by an officer of the Department, way back in 1979, that he was not entitled to benefit in respect of Sarah, and in consequence he was induced to believe that there was absolutely no point in claiming benefit for Michael when he was born. Had he been correctly informed of the true position, namely that he was entitled to benefit in respect of Sarah, he would naturally have claimed timeously for Michael. He feels a sense of outrage that, because of the incompetence of the Department, he has in effect been deprived of benefit in respect of Michael for some ten years. I see the force of that view-point and sympathise with it. However, the adjudication authorities, that is the adjudication officer, the tribunal, and the Commissioner, have no jurisdiction to award a benefit for which there is no statutory authority. The concept of "estoppel" has no application in this jurisdiction (see R(F) 8/60 and R(F) 3/61). In R(F) 3/61 the Commissioner said at paragraph 7 as follows:
"7. At the hearing of her appeal the insurance officer was represented by learned counsel, who observed that at a much earlier date than the date of her claim the claimant had the right to include A in her family for family allowance purposes on the ground of maintenance, but that her claim form was not put in until 17 August 1960. The local tribunal found she had been misled by a mis-statement as to her legal position and as a result she should be entitled to a family allowance from August 1959 ... My attention was ... called to the case of Maritime Electric Company Ltd and General Dairies Ltd [1937] AC 610 and in particular to the judgment of Lord Maugham at page 621. It will be sufficient if I quote that part of Lord Maugham's judgment which in my view is most apposite to this case and in which he says "their Lordships are unable to see how the court can admit an estoppel which would have the effect pro tanto and in the particular case of repealing the statute. It is, however, to be observed that there is not a single case in which an estoppel has been allowed in such a case to defeat a statutory obligation of an unconditional character". ...
- So far as the local tribunal based their conclusions on estoppel I hold that there can be no estoppel in this case. To admit an estoppel would defeat the purpose of the Act and regulations made thereunder. ... "
- However, although I am unable to proceed on the basis that there has been an estoppel in the case, and to make any further award than has already been allowed, there is nothing to prevent the claimant from seeking an ex gratia payment from the Secretary of State, which in the circumstances he might find difficult to resist. However, I would stress that this is a matter entirely for the Secretary of State and is something in respect of which I have no jurisdiction whatsoever.
- Although the tribunal reached the right conclusion, I am not satisfied that they explained the position with sufficient clarity and in the circumstances I consider that I must set aside their decisions as being erroneous in law for breach of regulation 25(2)(b) of the 1986 Adjudication Regulations. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision. Accordingly, for the reasons given above, my decision is as set out in paragraph 1.
Date: 2 October 1996 (signed) Mr. D. G. Rice Commissioner
