[2004] UKSSCSC CSIS_724_2004 (09 December 2004)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIS/724/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Oral Hearing

Appellant:  				          Respondent:  Secretary of State

Tribunal:  Glasgow			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Glasgow on 2 June 2004 is not erroneous upon a point of law.  The appeal fails.  I dismiss it.

2.	This appeal came before me for an oral hearing on 9 December 2004.  The claimant was represented by Mr Orr, a welfare rights officer of the City of Glasgow Council.  The Secretary of State was represented by Mr Brodie, Advocate, instructed by Miss Parker Solicitor, of the Office of the Solicitor to the Advocate General.

3.	The claimant has appealed to the Commissioner against the decision of the tribunal which was that the appeal from the decision of the Secretary of State is disallowed and his decision issued on 18 July 2003 is confirmed.  That decision was that the claimant was not entitled to a payment from the Social Fund in respect of funeral expenses of his late father who died on 17 June 2003 and whose funeral took place on 26 June 2003.  The reasons given were that the claimant’s father had an immediate family member from whom he was not estranged and who was not in receipt of qualifying benefit at the date of the claim.

4.	The findings of fact on which the tribunal based its decision were as follows:-

“1.	On 17/07/03 the claimant made a claim to the social fund in respect of the funeral expenses of his late father […….] who died on 17/06/03 and whose funeral took place on 26/06/03.

2.	The claimant was in receipt of income based Jobseekers Allowance.

3.	The deceased had a brother and two other sons who survived him.  The brother was receiving income support.  The two sons [the two other sons] were both entitled to child tax credit at a rate not higher than the family element.

4.	[The two other sons] were not estranged from their late father at the date of his death”.

In giving reasons for their decision the tribunal said:-

	“…….In my view the proper and intended interpretation of ‘child tax credit payable at a rate higher than the family element,’ means one which is raised by an additional element to the family element including one or more of the individual child or qualifying young person’s elements under the Child Tax Credit Regulations reg. 7(4)
	…..”. 

5.	It was Mr Orr’s submission that the tribunal erred in law in giving that reason for their decision.  Mr Orr directed me to regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987.  Regulation 7(1) sets out the basis for entitlement to a funeral payment subject to the following provisions on that regulation.  In regulation 7(1)(a) the claimant has to have in terms of sub-paragraph (i) an award of amongst other things Child Tax Credit payable at a rate higher than the family element.  However in terms of regulation 7(3) provision is made whereby such a claimant is not entitled to a funeral payment if the circumstances set out in that sub-paragraph apply.  Where there are:-

	“(a)	there are one or more immediate family members of the deceased;
	(b)	neither those immediate family members nor their partners have been awarded a benefit to which paragraph (1)(a) refers;
		and
	(c)	any of the immediate family members to which sub-paragraph (b) above refers was not estranged from the deceased at the date of his death”.

6.	The only issue in this case related to Mr Orr’s submission that the tribunal erred in law in finding that the claimant’s brothers had not been awarded a benefit to which paragraph (1)(a) applied.  In making his submission that the claimant’s two brothers had been awarded such a benefit he referred me to regulation 3.  In that regulation the words “family element” are defined.  It was agreed by both parties that the definition in force at the date upon which the decision by the Secretary of State was made was as follows:-

	“‘family element’ means in a case where any child in respect of whom a tax credit is payable is under the age of 1 year, the amount specified in regulation 7(3)(a) of the Child Tax Credit Regulations 2002 or in any other case, the amount specified in regulation 7(3)(b) of those regulations.”

7.	Mr Orr then referred me to regulation 7 of the Tax Credit Regulations 2002 where in regulation 3 it is provided:-

	“(3) the family element of child tax credit – 
	(a)	in a case where any of the children referred to in paragraph(2)(b) above is under the age of one year, is £1,090.00; and
	(b)	in any other case, is £545.00”.

It was Mr Orr’s submission that in the instant case as the claimant’s two brothers had both received credits in excess of £545.00 they were both in receipt of a qualifying benefit.  Accordingly in these circumstances, having regard to the other facts of the case, the claimant was entitled to the funeral payment.

8.	Mr Brodie on the other hand submitted that the tribunal did not err in law.  He submitted that they had applied the regulations correctly.  It was his submission that I should not accept Mr Orr’s submission.  In doing so he referred me first to section 1(1) of the Tax Credits Act 2002.  In that Act section 1(1)(a) makes provision for a tax credit to be known as child tax credit.  He then referred me to section 9 of the Act which provides:-

	“9(1)The maximum rate at which a person or persons may be entitled to child tax credit is to be determined in the prescribed manner.

	(2) The prescribed manner of determination must involve the inclusion of
		(a) an element which is to be included in the case of all persons entitled to tax credit, and
		(b) an element in respect of each child or qualifying young person for whom the person is, or either of them is or are responsible.”

He also directed me to regulation 7(2) of the Child Tax Credit Regulations 2002 which provides:-

	“(2) 	the maximum rate at which a claimant or joint claimants may be entitled to child tax credit shall be the aggregate of – 

(a)	the family element of child tax credit; and
(b)	an individual element of child tax credit, in respect of each child or qualifying young person for whom – 
			(i) the claimant; or
			(ii) either or both of the joint claimants;
			as the case may be is or are responsible.”

Regulation 7(3) and 7(4) set out in the case of sub-paragraph 3 the family element and in sub-paragraph 4 the individual element of child tax credit for a particular child.  

9.	Mr Brodie referred me to the tax credit assessments for the claimant’s brothers and their wives at pages 101 and 102.  It was his submission that a tax credit in each case was only awarded for the family element, though in the case of one of the brothers the assessment included not only the element specified in regulation 7(3)(b) but for part of the year (a) also.

10.	Mr Brodie submitted that where in the application of regulation 7(3)(b) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987, with its reference to regulation 7(1)(a)(i), the phrase “child tax credit payable at a rate higher than the family element” is a reference to not the sum specified in regulation 7(3) of the Child Tax Credit Regulations 2002 but to the addition of the child or individual element.  Mr Brodie submitted that if Mr Orr’s construction of the regulations was correct then the reference to family element in regulation 7(1)(a)(i) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 would not have been necessary.

11.	Mr Orr in response reiterated his submission that if the sum of the family element was in excess of £545 then that was sufficient to bring both the brothers within the scope of the qualifying benefit.  He accepted that in relation to the assessment of one of the brothers at page 101 that the one-off payment of £4.17 was not part of his argument.  He also accepted that the £77.48 as child tax credit for baby entitlement at page 102 in relation to the other brother related to the family element provided for in regulation 7(3)(a) of the Child Tax Credit Regulations.

12.	I am not persuaded by Mr Orr’s argument.  I have reached the conclusion that the tribunal did not err in law.  I accept Mr Brodie’s submission.  His interpretation and that of the tribunal seems to me to be the proper construction of the regulation.  The reason I take this view is that the phrase “child tax credit payable at a rate higher than the family element” must mean an element which is additional to the family element.  There are in the tax credit regulations only two sums set out for the amount of family element.  The amount is dependent upon whether the circumstances fall within regulation 7(3)(a) and (b), though there can be a mix of the two sums where there is a child under 1 year for part of the period as in the case of one of the claimant’s brothers in the instant case.  The rate higher can only be awarded if the circumstances are such that the claimant for the credit falls within the conditions for the child or individual element in addition to the family element.  The fact that the assessment of the family element is shown at 34 pence more than £540.00 on the forms at pages 101 and 102 is not material and cannot lead to a conclusion that the claimant’s two brothers had awards of a qualifying benefit.  

13.	The appeal fails.

(Signed)
D J MAY QC
Commissioner
Date:  9 December 2004