Para 3(b) IS Regs: member of same household

I work in Great Ormond St Hospital and have a client whose child is in hospital and whose JSA is at risk of being stopped as he has to stay in the hospital pretty much all the time. I’m wondering whether he can claim IS on basis of para 3(b) of the IS Regs (looking after someone who is temporarily ill). The problem he might face is that his child does not live with him but with the mother when out of hospital. I was told s.137(1) SSCBA 1992 defines family for the Regs as including only children or partners who live in the same household. I’m not so sure.

The Regs were based on the 1975and 1986 SS Acts which didn’t and still don’t seem to define family. The 1975 defines “relative” in sch 20 but this just says it includes persons by marriage or adoption and people born “illegitimate”. So surely the Regs takes on ordinary defintions and because those not in the same household are not even mentioned, my client will be fine (it would also inlude those who are not children or your partner).

But even if the s.137(1) definition applies, there will still be no household requirement. s. 137(1) has this where “family” is defined:

(c) except in prescribed circumstances, a person who is not a member of [a couple] and a member of the same household for whom that person is responsible and who is a child or a person of a prescribed description.

I read this part like this:

The “and” in “and a member of the same household” is conjunctive with the “is” in “who is not a member of [a couple]”. In other words, the negatived verb “is” applies to “member of the same household” thereby excluding such persons from the definition. This conclusion is reinforced by the words “...and who is a child or…”. Here there is a clear distinction between the two uses of the verb “is”. In the former case, it is negative and the latter is positive. Does this definition therefore mean that the child need not be part of the same household? Is there any case law atall on this?

Thanks!
Matt

hi matthew

i’m afraid i don’t read the definition of family in s137 in the same way as you - i think it refers to single person and child or other person who lives in the same household.

however, i think there could be an argument that ‘member of family’ is different in context of para 3(c) of sched 1B to the IS regs - not a claim for benefit for the child so should just be given ordinary meaning - no case law on this that i can see though and so it is risky - could give up jsa claim for nothing in the end.

what does anyone else think?

is the child getting dla, or could they get it? see para 4 of sched 1B which might allow your client to claim IS as carer (and carer’s alowance) at least up to date of determination of claim. dla stops after 84 days in hosp for child and carer’s allowance with it, but may be worth exploring perhaps.

cheers ros

I agree with Tony

The commentary states that 137(1) “family”(c) “covers a single claimant who is responsible for a child in the same household”.  I agree that you could read it in the way you describe but the lack of the word “not” in front of the second use of the word “member” was probably deliberate in order to shut out situations such as that of your client.  I’m not aware of any case law.

It seems to me that this is consistent with para 3(b) of schedule 1B covering single claimants who are relieved from the pressures of being available for and actively seeking work because of the child’s illness, where the claimant is the primary carer.

Where the child’s other parent is the primary carer then they would be expected to be the IS claimant, except where that person was ill then the absent parent could claim IS under para 3(a). 

Situations where the child’s primary carer is working are catered for in employment and equalities legislation to allow time off for caring responsibilities.  Thus, there is joined up legislation for these kinds of situations notwithstanding rogue employers or those employers who simply do not apply the legislation properly.  And, like a lot of situations in the law, there will sometimes be hard cases with little meaningful redress.

Thank you all for your help - very useful indeed.

Tony Bowman - 28 June 2012 03:00 PM

The definitions of family are:

I’m not entirely sure what you’re saying as regards the IS rules being based on earlier acts. The current IS scheme is provided for by part VII, ss.123-124 of the SSCBA and the definition of ‘family’ in s.137 covers all of part 7.

I noticed the IS Regs were made under powers confered by other statutes, not the SSCBA. Wondered whether there might be some sort of statutory interpretation rule which means the Regs have to be interpreted in light of the meaning of the enabling Acts rather than some later statute but I accept that’s a long shot…

The client’s problem is worsened by his housing situation – currently in a hostel with no hope for allocations / homelessness application that I can see. I’m currently exploring strategies to stabilise his housing situation.

Tony Bowman - 28 June 2012 03:07 PM

- Do JSA reg 14(2) and (2ZA) assist?
- Is the child claiming DLA? Might there be scope for an IS carer claim (schedule 1B para 4) if there’s an outstanding claim for DLA?

Possibly, but he’s been here for more than one week and looks like he’ll be here for some time.

Re DLA – as far as I know, the child isn’t getting this. And it would not be possible to claim as it would be a first claim in hospital.

It just doesn’t seem to fit together. When you stop considering a temporary illness and are instead dealing with a permanent disability, you can go down the DLA/AA and carer’s allowance route, regardless of who it is and whether they’re in your household. It looks like there is a hierarchy set up: IS when you need to stop working for a period to look after someone who is ill then DLA if that person is actually permanently disabled. That seems to be the policy of the scheme and the intent of the draghtsman.

The ssc&ba; was a consoliding act and that particular reg is not ultra vires and completely lawful in its scope

There’s also the option of your client claiming ESA in the short term if he has a sympathetic GP willing to issue med certs (stress/depression possibly?)