R(F) 1/91
Mr. J. G. Mitchell CSF/5/1989
17.7.90
Child in care - child placed with grandparent - whether child "boarded-out"
The claimant, the grandmother of the child, made a claim for child benefit following the making of a supervision requirement by a children's hearing which contained a residence condition requiring the child to reside with the claimant and her husband. The claimant appealed against the decision of a tribunal upholding the decision of an adjudication officer that the claimant was precluded from child benefit by regulation 16(5)(b) of the Child Benefit (General) regulations 1976 because the child was "boarded-out" under the Boarding-out and Fostering of Children (Scotland) regulations 1985.
Held that (part B of the appendix to the decision):
- in order to constitute "boarding-out of a child in care by the local authority" within the meaning of regulation 16(5)(b) of the Child Benefit (General) Regulations the action taken must not only be in accordance with the Boarding out and Fostering of Children (Scotland) Regulations 1985 (the "BOFC Regulations") but also be identifiable as boarding-out under the statutory authority in the Social Work (Scotland) Act 1968 ("the 1968 Act") (para. 7);
- placement of a foster child under Part III of the BOFC Regulation, which may occur when a provision of regulations 3(1)(a) to (e) applies is to be distinguished from the placement of a child under Part IV where regulation 3(1)(f) applies. Placement under Part III involves detailed procedures including the approval of foster parents and financial and other agreements. Such action will be in the case of a local authority, having a child in care, represent boarding-out under section 21 and will be boarding-out under the BOFC Regulations (para. 12);
- by contrast placement under Part IV does not normally involve approved foster parents at all. There is no question of the grandmother concerned being an approved foster parent and no question of agreements on financial and other matters. Where relatives are stepping into the shoes of a parent for family reasons there seems no logic in their exclusion from child benefit (para. 13).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is that the decision of the social security appeal tribunal dated 21 March 1989 is erroneous in law and is set aside. The decision which I give as the decision which the tribunal should have made is that for the reasons stated in this decision the claimant is not precluded from entitlement to child benefit for the child Stephanie by regulation 16(5)(b) of the Child Benefit (General) Regulation 1977 in pursuance of her claim made 20 July 1988.
- This is an appeal by the claimant with leave granted by the tribunal chairman on a question of law against the above mentioned tribunal decision. This case and three similar appeals, being the cases on Commissioner's File CSF/3/1989, CSF/6/1989 and CSF/9/1989, were dealt with before me at an oral hearing. The claimant was represented by Mr. B. Lynch, Welfare Rights Officer with Strathclyde Regional Council, Social Work Department and the adjudication officer was represented by Mr. David Cassidy of the Office of the Solicitor to the Secretary of State for Scotland. I am indebted to both representatives for their detailed and careful submissions.
- The claimant in this case is the grandmother of a child, Stephanie, born on 15 February 1985. The claimant made a claim for child benefit for Stephanie on 20 July 1988 following the making of a supervision requirement by a children's hearing in respect of Stephanie under section 44(1)(a) of the Social Work (Scotland) Act 1968 which contained a residence condition requiring Stephanie to reside with the claimant and her husband. This followed the making of a "place of safety order" under section 37(2) of the 1968 Act. Child benefit had previously been in payment to Stephanie's mother. The local authority placed Stephanie with the claimant and her husband in implement of the supervision requirement in pursuance of their obligation under section 44(5) of the 1968 Act and under the Boarding-out and Fostering of Children (Scotland) Regulations 1985 (regulation 3(1)(f) and Part IV). The adjudication officer refused the claimant's claim upon the ground that Stephanie was "boarded-out" under the Boarding-Out and Fostering of Children (Scotland) Regulations and that the claimant's entitlement was excluded by regulation 16(5)(b) of the Child Benefit (General) Regulations 1975. The governing provisions of statute and regulation are, so far as material, quoted or referred to in Part A of the appendix to this decision.
- The claimant appealed to a social security appeal tribunal. The tribunal on 21 March 1989 upheld the decision of the adjudication officer and refused child benefit. Their adverse decision gave rise to the present appeal.
- It was argued before me on the claimant's behalf, that the local authority's placement of Stephanie with the claimant and her husband in pursuance of the supervision requirement under section 44(1)(a) and in implement of the local authority's obligation under section 44(5) of the 1968 Act was not "boarding-out" under the Boarding-Out and Fostering of Children (Scotland) Regulations and that accordingly entitlement to child benefit was not excluded. For the reasons set out in Part B of the appendix I have reached the conclusion that this argument is sound and that accordingly the decision of the tribunal is erroneous in law and falls to be set aside. It is appropriate for me to give the decision which the tribunal should have made. I find that the claimant is not precluded from entitlement to child benefit under regulation 16(5)(b) in pursuance of her claim. Because of the previous entitlement of Stephanie's mother to child benefit it is unclear from what date entitlement can commence upon the claimant's claim. The adjudication officer's award of benefit will however, in the event of any dispute, be subject to appeal in the ordinary way.
- The appeal of the claimant is allowed.
Date: 17 July 1990 (signed) Mr. J. G. Mitchell
Commissioner
APPENDIX
APPENDIX APPLICABLE TO:-
CSF/3/1989
CSF/5/1989
CSF/6/1989
A. THE LEGISLATION
1. Child Benefit Act 1975
In terms of section 1(1) of the Child Benefit Act, subject to the provisions of Part I of that Act a person who is "responsible" for one or more children in any week is to be entitled to child benefit in respect of the child or children for whom he is responsible. In terms of section 3(1) a person is to be treated as responsible for a child in any week if :
"(a) he has the child living with him in that week; or . . .".
Section 4(1) provides that Schedule 1 to the Act is to have the effect of excluding the entitlement to child benefit in certain cases. Paragraph 1 of Schedule 1 provides:
"1. Except where regulations otherwise provide, no person shall be entitled to child benefit in respect for any week if in that week the child is -
(a) undergoing imprisonment or detained in legal custody;
(b) subject to a supervision requirement made under section 44 of Social Work (Scotland) Act 1968 and residing in a residential establishment within the meaning of that section; or
(c) in the care of the local authority in such circumstances as may be prescribed."
- The Child Benefit (General) Regulations 1976
Regulation 1(3) provides:
"References in these regulations to any condition being satisfied or any facts existing in a week shall, unless they relate to paragraph 1 of Schedule 1 to the Act (Children in detention, care etc.) be construed as references to the condition being satisfied or the facts existing at the beginning of that week."
Regulation 16 contains the following material provisions:
" . . (5) For the purposes of paragraph 1(c) of Schedule 1 to the Act (child in care of a local authority in such circumstances as may be prescribed) the prescribed circumstances are that the child is -
(a) received into care under section 2 of the Child Care Act 1980 or section 15 of the Social Work (Scotland) Act 1968 or pursuant to a resolution under section 16A(1) of the said Act of 1968 or under section 65(1) of the Child Care Act 1980;
(b) in the care of a local authority pursuant to the making of a supervision requirement to which section 44(1)(a) of the Social Work (Scotland) Act 1968 applies and is boarded out by that authority in the home of any person in accordance with the provisions of the Boarding-Out and Fostering of Children (Scotland) Regulations 1985; . . ."
NB. In terms of regulation 16(8) the provisions of regulation 16(6) deferring disentitlement under the regulation in certain cases do not apply in "boarding-out" cases.
3. The Social Work (Scotland) Act 1968, as amended
Part II of the Act, headed "Promotion of Social Welfare by Local Authorities", contains provisions in section 15 empowering a local authority in certain circumstances to receive a child into their care under that section. Section 16 empowers a local authority in certain circumstances to resolve to assume parental rights over any child in their care under section 15. Section 21(1) provides:
"21. - (1) Subject to the provisions of this section, a local authority shall discharge their duty to provide accommodation and maintenance for a child in their care -
(a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provision of this Act and regulations thereunder, determine; or
(b) by maintaining the child in a residential establishment."
Under Part III, headed "Children in need of Care", provision is made by section 37(2) for the taking of a child who may require compulsory measures of care to a place of safety. Authorisations under that sub-section are commonly referred to as "place of safety orders". Subsequent sections deal with the bringing before Children's Hearings of such children or other children who may be in need of compulsory measures of care. Section 44 of the Act contains the following material provisions:
"44.- (1) Subject to the provisions of this Part of this Act a children's hearing, where, after the consideration of his case, they decide that a child is in need of compulsory measures of care, may make a requirement, in this Act referred to as a supervision requirement, requiring him -
(a) to submit to supervision in accordance with such conditions as they may impose; or
(b) to reside in a residential establishment named in the requirement and be subject to such conditions as they may impose; . . ."
. . .
(5) It shall be the duty of the local authority to give effect to a supervision requirement made by a children's hearing for their area, and a child who is subject to a supervision requirement shall, for the purposes of section 16 to 18, 20, 20A, 24, to 26, 28 and 29 of this Act and section 18 of the Adoption (Scotland) Act . . . be in their care:
Provided that where the performance of a function under any of the said sections in relation to the child requires or would be facilitated by the variation or discharge of the supervision requirement, the local authority shall recommend a review of the requirement under this Part of this Act."
4. The Boarding-Out and Fostering of Children (Scotland) Regulations 1985
These regulations are made under specific reference to the powers in section 5(2) and (3) of the Social Work (Scotland) Act 1968, which are examined in paragraphs 4 and 5 of Part B of this Appendix. Regulation 2(1) of the regulations provides:
"'care authority' means a local authority or voluntary organisation responsible for the welfare of a child where regulation 3 applies;
'to foster' means to arrange for a child to live as a member of the family of a person who is not the child's parent or guardian and who undertakes to care for him other than in accordance with the Adoption Agencies (Scotland) Regulations 1984; and includes 'boarding-out' within the meaning of sections 5(3) and 21 of the Act;
'foster parent' means a person approved by a care authority in accordance with regulation 7;"
Regulation 3(1) provides:
"3.- (1) These regulations apply where -
(a) a local authority foster a child who is in their care by virtue of sections 15 or 16 of the Act:
(b) a local authority foster a child who is in their care by virtue of section 10 of the Matrimonial Proceedings (Children) Act 1958, section 11 of the Guardianship Act 1973 or section 26 of the Adoption (Scotland) Act 1978;
(c) a local authority foster a child following the granting of authorisation under section 37(2) of the Act or a warrant under sections 37, 40 or 42 of the Act;
(d) a local authority or voluntary organisation foster a child under respite care arrangements made at the request of the child's parent or guardian;
(e) a voluntary organisation foster a child in their care;
(f) a supervision requirement is made, or is under consideration, by a children's hearing under section 44(1)(a) of the Act which imposes a condition that the child is to reside in a place where he is to be under the care of a person who is not his parent or guardian."
Part II of the regulations deals with the approval of foster parents, and agreements with them regarding financial and other arrangements. Parts III of the regulations regulates arrangements by a care authority to place a "foster child" and specifies the detailed checks and investigations which are to be carried out. Part IV deals with "Arrangements to place children in relation to action by a children's hearing". Regulation 20 in Part IV provides that a local authority submitting a report to a children's hearing may only recommend that the child be placed in a place where he is to be under the care of a person who is not his parent or guardian if they have carried out one or other of the sets of checks provided for in previous regulations. Regulation 21(1), headed "Placements in pursuance of a supervision requirement", contains the following material provisions:
"21.- (1)Where a children's hearing make a supervision requirement under section 44(1)(a) of the Act and impose a condition that the child is to reside in a place where he is to be under the care of a person who is not his parent or guardian, the local authority who are required by section 44(5) of the Act to give effect to the supervision requirement shall give written notice of the placement to the local education and local health authorities specified in regulation 17(1)(a) to (c)."
In terms of regulation 21(2) the provisions of regulation 18 in Part III relating to the monitoring of placements are to apply in such cases. Part V of the Regulations contains miscellaneous provisions applicable to "all placements".
B. REASONS FOR DECISION
- These cases are concerned with the extent of the exclusion from child benefit arising under regulation 16(5)(b) of the Child Benefit (General) Regulations 1976. At first sight it is difficult to envisage circumstances in which that exclusion will apply. A child in the care of a local authority pursuant to a supervision requirement under section 44(1)(a) is, under section 44(5), only in the care of the local authority for the purposes of specified sections of the Social Work (Scotland) Act 1968 ("the 1968 Act"). These sections do not include section 21 under which a local authority are to discharge their duty to provide accommodation and maintenance for a child in their care by boarding him out in accordance with regulations. This approach to the issue assumes that the "boarding-out" envisaged by regulation 16 occurs when it is by virtue of the section 44(1)(a) supervision requirement that the child is in the care of the local authority. Action to place such a child will be required from the local authority when the supervision requirement imposes a condition that the child shall live with a named person who is not a parent or guardian. The Boarding-Out and Fostering of Children (Scotland) Regulations ("the BOFC Regulations") apply in such a situation. See regulation 3(1)(f) quoted above.
- However a possible construction of regulation 16(5)(b), which was favoured neither by Mr. Cassidy on behalf of the adjudication officer nor by the claimant's representative, is that although both requisites there referred to must be present and co-exist, that is, that the child is "in the care of a local authority pursuant" to a supervision requirement, and "is boarded-out by that authority … ", the second need not be consequential upon the first. Thus for instance a child in care under section 15 of the 1968 Act and already boarded-out by a local authority under the BOFC Regulations could remain so notwithstanding an intervening supervision requirement under section 44(1)(a). See Central Regional Council v. B [1985] SLT 413. In such a case however if the child remained in care the direct exclusion contained in regulation 16(5)(a) of the Child Benefit (General) Regulations would be likely to apply.
- The position of the children in the present appeals, where in each case a residential condition was imposed as part of the supervision requirement, appears to fall potentially within the narrower and more natural constructions of the provisions or regulation 16(5)(b) i.e. that the local authority action was occasioned by the supervision requirement. The question remains however whether such action is "boarding-out" in accordance with the BOFC Regulations for the purposes of regulation 16(5)(b).
- The objection to such a conclusion, based on the absence from the local authority of powers under section 21 of the 1968 Act, has already been noted. Mr. Cassidy however disputed that a local authority's sole authority for the "boarding-out" of children under the BOFC Regulations lay in section 21 of the 1968 Act. He referred to section 5(3) of the 1968 Act and pointed out that the regulation-making power to make provisions for boarding-out was not confined to "boarding-out" under section 21. That is clearly the case, because section 5(3) covers the "boarding-out" of "persons" and not merely children and boarding-out by voluntary organisations as well as by local authorities. But the present appeals are solely concerned with action by a local authority in connection with children. Mr. Cassidy's argument appeared to be that section 5(3) in some way enlarged the scope of "boarding-out" by local authorities under the BOFC Regulations by empowering regulations covering such action, whether taken under the 1968 Act or not.
- Section 5 of the 1968 Act contains the following material provisions:
"5.- (1) Local authorities shall perform their function under this Act under general guidance of the Secretary of State.
(2) The Secretary of State may make regulations in relation to -
(a) the performance of functions assigned to local authorities by this Act;
(b) the activities of voluntary organisations in so far as those activities are concerned with the like purposes;
…
(3) Without prejudice to the generality of the foregoing subsection, regulations under this section may make provisions for the boarding-out of persons by local authorities and voluntary organisations, whether under any enactment or otherwise,…"
- Local authority functions covered by section 5(2)(a) include "boarding-out" under section 21 as well as implementations of a supervision requirement under section 44 and other functions. Section 5(2)(b) empowers the making of regulations to cover the activities of voluntary organisations so far as concerned with like purposes. I do not read the provisions of section 5(3) as authorising regulations "under this section" to make provision for the "boarding-out" of children by local authorities, otherwise than in the performance of functions assigned to local authorities by the provisions of the 1968 Act. Local authorities, unlike voluntary organisations, require statutory authority for their activities. The evident desire of the legislature to regulate boarding-out by local authorities and voluntary organisations on a uniform basis accounts, in my view, for the apparent width of the regulation-making power in section 5(3).
- In any event however the activities in question in these appeals were undertaken by the local authority under the 1968 Act in implementing the supervision requirement of the children's hearing under section 44. It appears to me prima facie that in order to constitute "boarding-out" within the meaning of regulation 16(5)(b) of the Child Benefit (General) Regulations the action taken must not only be in accordance with the BOFC Regulations but also be identifiable as "boarding-out" under the statutory authority in the 1968 Act. Insofar as the placement action taken by a local authority following a supervision requirement under section 44(1)(a) with a residence condition is concerned, that is of course action coming within the BOFC Regulations by virtue of regulation 3(1)(f) and Part IV of those regulations. No problems or vires arises if such action is not "boarding-out" under the regulations since those provisions of the regulations remain clearly authorised by the general power in section 5(2)(a) of the 1968 Act invoked in the regulations.
- The provisions of the BOFC Regulations were examined in some detail before me in the course of the argument. I am bound to say that it is acutely difficult to discern any clarity or coherence of expression in the terminology used in those regulations. Despite their name, the term "boarding-out" is not employed in the regulations at all except in the title and in the definition in regulation 2(1), quoted above, which significantly refers back to section 5(3) and section 21. The terms "fostering" and "placement" appear at times to be used interchangeably. A seeming distinction between a "foster child" in Part III and a "child" in Part IV breaks down at regulation 23 in Part V, and there are other similar problems of language in the regulations.
- Mr. Cassidy maintained that any action covered by any of the sub-heads of regulation 3(1)(a) to (f) was covered by the generic term "boarding-out", although he accepted that under the construction of regulation 16(5)(b) of the Child Benefit (General) Regulations upon which he placed most reliance, only a placement in implement of a supervision requirement containing a residence condition is a boarding-out which excludes entitlement to child benefit.
- The claimant's representatives submitted that "fostering" was the generic term of which "boarding-out" is a particular type which arises when a local authority elects to place a child in their care with foster parents approved under Part II of the BOFC Regulations. According to one of those representatives, boarding-out by a local authority could only arise, properly speaking, if a child was in their care under section 15 or 16 and boarded out under the specific statutory power in section 21.
- The broad form of the definition provided in relation to the expression "to foster" in regulation 2(1) clearly indicates in my view that fostering is the generic description of placements under the regulations and that "boarding-out" within the meaning of section 5(3) and 21 is included as a particular variety of fostering.
- It is clear that the placement of a foster child under Part III of the BOFC Regulations, which may occur when a provision of regulation 3(1)(a), to (e) applies, is to be distinguished from a placement of a child under Part IV where regulation 3(1)(f) applies. Regulation 10 in Part III specifically excludes the latter placements from the scope of Part III. It is also clear that a placement under Part III involves detailed procedures including, either from the outset of the care authority's responsibilities or within six weeks (under regulations 11 and 12), the approval of the foster parents under regulation 7. That in turn leads to an agreement regarding financial and other arrangements under regulations 8 and 9. It is clear that such action will, in the case of a local authority, having a child in care, represent boarding-out under section 21 and will be "boarding-out" under the BOFC Regulations. It was not in dispute before me that in practice this is a commercial arrangement, and it is therefore readily understandable that the foster parent in receipt of a fostering allowance should not also be entitled to child benefit.
- By contrast it is apparent under regulation 20 of the BOFC Regulations that a placement under Part IV, even in pursuance of a recommendation by the local authority to a child's hearing under regulation 20 need not, and, it was stated before me, does not normally involve foster parents at all. The decision upon the placement in such cases lies with the children's panel after consideration of the local authority's report and any such recommendation, and is given effect to and monitored by the local authority in terms of section 44(5) and regulation 21. In the present appeals, no recommendation requiring action under regulation 20 appears to have been made in the local authority reports to the children's hearing and there is no question of the grandmother or grandparents concerned being approved foster parents and no question of agreements on the financial and other matters referred to in regulation 8 and 9. In such a case, where relatives are stepping into the shoes of a parent for family reasons there seems no logic in their exclusion from child benefit and accordingly no reason to place a dubiously extended meaning upon the expression "boarded-out" by that authority in the home of any person in accordance with the provisions of the Boarding-out and Fostering of Children (General) Regulations 1985" in regulation 16(5)(b) of the Child Benefit (General) Regulations, in a situation where as already noted the children are not stated to be in the local authority's care for the purposes of the statutory "boarding-out" section of the 1968 Act.
- It further does not seem to accord with either common sense or the general principles of child benefit entitlement that a relative or a friend is not excluded from child benefit if the child resides voluntarily with them (because such a case is outwith the scope of regulation 3(1)(f) of the BOFC Regulations) but is excluded if such residence is made compulsory. Yet that would be the result of accepting the arguments of the adjudication officer in these appeals.
- It is unnecessary for me to decide in these appeals whether if a placement were made with approved foster parents in implement of a supervision requirement with a residential condition naming such a foster parent, that would be a "boarding-out" in accordance with the BOFC Regulations so as to give rise to exclusion from child benefit under regulation 16(5)(b). If so, of course, it would give a rational content to that exclusion.
- It is perhaps of some interest to note that in Annex C to Circular SW 15/1985 by the Social Work Services Group of the Scottish Education Department on 4 December 1985 issued to local authorities and care agencies regarding the introduction of the BOFC Regulations the following statement appears in paragraph 2 :
"Children placed as a result of supervision requirements under section 44(1)(a) of the 1968 Act are not "boarded-out" for the purpose of the 1968 Act. Nevertheless many of the principles of the regulations dealing with the boarding-out and fostering of children by local authorities are relevant to their situation. The new regulations therefore include provisions governing the actions of local authorities: -
(a) in providing information and making recommendations in social background reports to children's hearings under section 39(4);
(b) in giving effect - under section 44(5) to a supervision requirement which makes it a condition that a child should live with someone who is not his parent or guardian."
It is also of interest to note that it was agreed before me that for the purposes of regulation 16(4)(a) of the Income Support (General) Regulations 1987 a child placed by a local authority in implement of a supervision requirement under section 44 is not for income support purposes regarding as one "boarded-out … under a relevant enactment" i.e. the Social Work (Scotland) Act 1968. I mentioned these matters solely to indicate that the conclusion which I have reached does not in these respects appear to create a conflict or anomaly.
- In unreported decision CSF/1/1989 another Commissioner reached a different result. In that case the child had been the subject of a place of safety order followed by a supervision requirement by a children's hearing with a condition of residence with the child's grandmother. The Commissioner did not have the benefit of full argument. The adjudication officer's case was that the child in question was boarded-out under the BOFC Regulations and the claimant in that case accepted and founded upon that fact. The dispute in the appeal was over the question whether the child was in the care of the local authority and the "boarding-out" issue addressed in the present appeals therefore did not arise for examination by the Commissioner.
- For completeness it should also be mentioned that in one of the appeals namely CSF/5/1989, the supervision requirement made under section 44 followed directly upon "place of safety orders" under section 37(2) of the 1968 Act. It was, I think correctly, not argued by Mr. Cassidy that any alternative question of boarding-out arose in that case through a fostering within the meaning of regulation 3(1)(c) of the BOFC Regulations. It is apparent from the terms of section 37 of the 1968 Act that the detention of a child under that section in a case where compulsory measures of care are considered to be necessary is essentially holding operation pending the consideration and disposal of the case by the children's hearing and that a supervision requirement made under section 44 will supersede any place of safety order operative prior thereto.
- For the foregoing reasons I have come to the conclusion that the children concerned in these appeals were not boarded-out by the local authority in accordance with BOFC Regulations for the purposes of regulation 16(5)(b) of the Child Benefit (General) Regulations 1976 and that the claimants are accordingly not excluded from entitlement to child benefit under that provision.
