Upper Tribunal (Administrative Appeals Chamber), June 26, 2014, [2014] UKUT 298 (AAC)

Resolution Date:June 26, 2014
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:LS v Secretary of State for Work and Pensions (SF) (Benefits for children : other)


[2014] UKUT 0298 (AAC)

cis 3320 2012


[2014] UKUT 0298 (AAC)




Decision and Hearing

  1. This appeal by the claimant succeeds in the technical sense that in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Sheffield and made on 16th July 2012 under reference SC147/11/01775. However, I substitute my own decision to the same effect. This is that the claimant is not entitled to a Sure Start Maternity Grant in respect of her claim made on or about 10th February 2011.

  2. I held an oral hearing of this appeal in Field House (London) on 6th February 2014. The claimant did not attend in person but was represented by Mr Michael Spencer, solicitor from the Child Poverty Action Group (assisted by Mr Martin Williams). The Secretary of State was represented by Mr Ivan Hare of counsel instructed by the Solicitor to the Department for Work and Pensions. I am grateful to them all for their assistance.

    The Sure Start Maternity Grant Provisions

  3. Section 138(1) of the Social Security Contributions and Benefits Act 1992 provides as follows:

    138(1) There may be made out of the social fund, in accordance with this Part of this Act -

    (a) Payments of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, maternity expenses ...

    Section 138(4) defines ``prescribed'' as meaning ``specified in or determined in accordance with regulations''.

  4. The main regulations that are relevant in this appeal are the Social Fund Maternity and Funeral (General) Regulations 2005. In respect of claims made before 23rd January 2011 the relevant provisions of those regulations provided as follows:

    5(1) Subject to regulation 6 [trade disputes] a payment to meet maternity expenses (referred to in these Regulations as a ``Sure Start Maternity Grant'') shall be made where -

    (a) the claimant or the claimant's partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded -

    (i) income support,

    [or another of a list of means tested benefits], and

    (b) either -

    (i) the claimant or, if the claimant is a member of a family, one of the family is pregnant of has given birth to a child or a still-born child, or ...

  5. Regulation 5(1)(c) imposed a condition relating to the receipt of advice, regulation 5(1)(d) required a claim to be made within the prescribed time and regulation 5(2) provided that (my emphasis):

    5(2) The amount of a Sure Start Maternity Grant shall be £500 in respect of each child.

  6. The Social Fund Maternity Grant Amendment Regulations 2011 amended the 2005 regulations and came into force on 24th January 2011. In addition to other amendments it inserted a new regulation 5A as follow:

    5A(1) In this regulation ``C'' is the child ... in respect of whom a Sure Start Maternity Grant is claimed.

    (2) Except where paragraph (3) or (4) applies a Sure Start Maternity Grant shall not be awarded if, at the date of the claim any member of the claimant's family apart from C is under the age of 16.

  7. I do not need to go into the exceptions in 5A(3) and (4) for the purposes of this decision. The effect of 5A(2) is that a claimant whose family already includes a person under the age of 16 cannot be entitled to a Sure Start Maternity Grant. Except for the rare case where the age gap between two children exceeds 16 years this means that in respect of claims made after the amendment came into effect a family can only ever receive one Sure Start Maternity Grant no matter what their actual needs are. It cannot be controversial to say that in the absence of any compensatory financial measures this amendment makes life more difficult than previously for poorer families who are in receipt of means tested benefit, the more children they have.

  8. The amendment applied to claims made from 24th January 2011 for babies expected or born on or after 11th April 2011 (or in certain other eventualities).

    The Race Relations Act 1976

  9. Section 71(1) of the Race Relations Act 1976 as amended provides as follows:

    71(1) Everybody or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have regard to the need -

    (a) to eliminate unlawful discrimination and victimisation; and

    (b) to promote equality of opportunity and good relations between persons of different racial groups.

  10. Schedule 1A specifically includes in paragraph 1(1) ``A Minister of the Crown or government department''. There is no dispute and there can be no doubt than in drafting, making and promoting the relevant amendments to the Social Fund Maternity and Funeral (General) Regulations 2005 that are referred to above, the Secretary of State and other ministers were carrying out functions referred to in the provisions of section 71(1) of the Race Relations Act 1976 as amended. This duty is often referred to as ``the public sector equality duty''.

    The Public Sector Equality Duty

  11. The public sector equality duty was recently (6th November 2013) considered by the Court of Appeal in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345. That case was about the decision of the Minister of State (for disabled people) to close the Independent Living Fund from the end of March 2015. A number of beneficiaries of the fund sought judicial review of that decision on several grounds including a breach of the public sector equality duty. The Court of Appeal quashed the Minister's decision on the basis that the duty had been breached. Lord Justice McCombe set out a number of principles to be applied by the courts. I do not propose to set out in full the two and a half pages of the paragraph or to review the 13 cases that were cited to the Court of Appeal, but I summarise the main points as follows:

    - Equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

    - An important evidential element in the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements.

    - The relevant duty is on the Minister or other decision maker personally, who cannot be taken to know what his or her officials know or what may have been in their minds.

    - A Minister must assess the risk and extent of any adverse impact and the ways in which such a risk may be eliminated before the adoption of a proposed policy and not merely as a rearguard action following a concluded decision.

    - The duty to have due regard to the relevant matters must be fulfilled before and at the time when a particular policy is being considered and is a continuing and non-delegable duty

    - Provided that there has been a rigorous consideration of the duty and a proper appreciation of the potential impact of the decision on equality objectives, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. The court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker.

    - Public authorities must be properly informed before taking a decision and if...

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