KR, R (on the application of) v Secretary of State for Work and Pensions & Anor

The Claimant lives in Caernarfon. He has two children, born respectively in 1993 and 1994. In early 1998 he and the children’s mother, Ms J, separated. Ms J and the children moved to a home on Anglesey some 20 miles from Caernarfon. Since then the children have gone to school on Anglesey.

On 5^th February 1999 in the Caernarfon County Court a circuit judge, Lord Elystan-Morgan, made an interim order by consent giving residence to the mother and ordering her to allow the father to have contact “in accordance with the attached schedule”. The schedule does not survive but it appears that it was in similar terms to those contained in a residence and contact order made 3 months later. This provided for the father to have contact every alternate weekend and, in the weeks where there had not been weekend contact, from Monday after school until the children were returned to school on Tuesday morning. It is notable that at the first court hearing the mother gave an undertaking not to be in attendance at the children’s school when the father collected and returned the children. At a further hearing on 15^th September 2000 the mother gave an undertaking that her new partner Ms S would have no contact of any kind with either child. An effect of this was that a handover of the children at Ms J’s home became impracticable, whatever the state of relations between the father and the mother, if there was any possibility of Mr S being at the property at the critical moment. By a further order dated 3^rd February 2004 Judge Gareth Edwards gave joint residence of the 2 children to the Claimant and Ms J and made the following order for contact:-

“The children to be with Mr R (the Claimant) during school term from Friday after school to Monday at school on alternate weekends as at present, and on the week in which the weekend contact does not occur, from Monday after school to Thursday at school, otherwise the children to be with Ms J. School holidays to be shared between the parents equally”.

The effect of this order was that during the school term the children made regular journeys between their father’s home in Caernarfon and their school on Anglesey, some to facilitate a change of residence and some not.

During this period the Claimant had repeatedly made successful applications to the first defendant (“the DWP”) for community care grants to meet the cost of these journeys. However, an application which he made on 15^th December 2005 was refused by an officer of the DWP on 1^st February 2006. That decision was confirmed on an internal review by another officer and subsequently on reviews by the second defendants in March and May 2006. The Claimant challenges these refusals, relating in particular to the period from 3^rd January to 25^th March 2006, by way of judicial review.

The Social Fund was established by the Social Security Act 1986. The relevant statute is now the Social Security Contributions and Benefits Act 1992. The Fund has 2 elements, a “regulated element” covering maternity and funeral expenses and a “discretionary element” to meet other needs in accordance with Directions issued by the Secretary of State (section 138 (1)(b)). The discretionary element of the Fund covers “budgeting loans”, “crisis loans” and “community care grants” (CCGs). It is an application for a CCG that is the subject of these proceedings.

Pursuant to section 140 (1) of the 1992 Act the officer determining whether to make a payment from the discretionary part of the Social Fund is required to consider all the circumstances of the case and in particular “(a) the nature, extent and urgency of the needs (b) the existence of resources from which the need may be met and (c) the possibility that some other person or body may wholly or partly meet [the need]”. The determining officer must follow any general directions issued by the Secretary of State and must take account of any general guidance issued by him. If the applicant is dissatisfied with the determining officer’s decision he may first seek an internal review, and then a further review pursuant to section 38(3) of the Social Security Act 1998 by a Social Fund Inspector.

The Directions and Guidance issued by the Secretary of State are contained in the Social Fund Guide. The Directions are contained in Part 8 of this document and the guidance applicable to CCGs is contained in Part 2. Direction 4, so far as material, provides that a Social Fund payment in the form of a CCG may be awarded to promote community care:-

“(a)

by assisting an applicant with expenses, including expenses of travel within the United Kingdom (except those excluded by these directions) where such assistance will…

(3)

ease exceptional pressures on the applicant and his family.”

Direction 29 sets out exclusions from CCGs. These include “any expenses which the local authority has a statutory duty to meet”. The list of exclusions also incorporates by reference those applicable to crisis loans, set out in Direction 23. The critical one for present purposes is Direction 23 (1)(a)(iv), which excludes an award in respect of “travelling expenses to or from school”.

It is common ground that a CCG may be paid in respect of travelling expenses where a couple have divorced or separated and one of them is taking the children from his home to his ex-partner’s home. It is also common ground that by virtue of Direction 23(1)(a)(iv) a CCG cannot be paid in respect of what Mr Squires, for the Claimant, called an “ordinary school run”, that is to say a journey by either parent, even one living (as the Claimant does) 20 miles from the children’s school, taking them to school on a day when he will also bring them back to his home. The point in issue relates to what may conveniently, but inaccurately, be described as “handover journeys”, that is to say journeys enabling the children to move from one parent’s home to the other’s. An example would be where, the children having spent the week with Ms J, the Claimant travelled to their school on Friday afternoon to collect them and took them home for the weekend. The term “handover journey” is somewhat inaccurate because the children were not in fact handed over by one parent to the other. In the example I have just given Ms J would have taken the children to school on Friday morning but the couple would not have come face to face. Indeed she had, as already recorded, undertaken not to be in attendance at the school when the Claimant was either collecting or returning the children.

Until the end of 2005 the Claimant’s applications for CCGs for handover journeys had been successful. At about this time the Social Fund office dealing with his case was relocated to Swansea. On 1^st February 2006 a letter was sent by Ms Richards of the DWP refusing the application on the grounds that the Claimant and his family were not under “exceptional pressure”. The Claimant requested a review of the decision. On the internal review by another officer of the DWP, Mr Perkins, Ms Richards’ finding that the Claimant and his family were not under exceptional pressure was affirmed. But Mr Perkins, for the first time, mentioned the subject of Direction 23 (1)(a)(iv), although he expressed the view that it “may well not exclude” the handover journeys. This was, in lawyers’ terms, an obiter dictum, since he refused the application for review on the other ground.

The Claimant sought a further review from a Social Fund Inspector. On 9^th March 2006, an inspector, Mrs Gough, reversed the decisions of Ms Richards and Mr Perkins on the issue of exceptional pressure. She noted, however, that some of the journeys began or ended at the children’s school and that this might mean that they were excluded by Direction 23(1)(a)(iv). She concluded that if only non-excluded journeys were considered the Claimant’s needs were of medium priority, and only high priority needs were being met in the area at the time. The application for a CCG was therefore refused. Her conclusion was reviewed and upheld by other inspectors on 22^nd March and 10^th May 2006.

On 22^nd February 2007 the Claimant made a further application. On this occasion the DWP officer determining it, Mr Williams, expressly considered whether payment could be made for journeys to and from school. He drew a distinction between journeys where the children were being taken from the Claimant’s home to school in the morning and back to his home in the evening (in Mr Squires’ classification, an ordinary school run) and handover journeys. The former category was excluded, in his view, by Direction 23(1)(a)(iv). He continued:- “I have not excluded journeys to and from school on remaining week days as I consider that these journeys are made to collect or return the children at a convenient location for all parties concerned as opposed to an actual “school run”. All remaining journeys not excluded as above will be considered. …”

A similar decision was made in early 2008, although by this time the facts on the ground had changed to the extent that Ms J had ended her relationship with her new partner and it became possible for the first time for the Claimant to collect and return the children as Ms J’s home.

There was no dispute that the proper approach to the interpretation of the Social Fund Directions is to be found in judicial observations in two Divisional Court cases decided nearly 20 years ago. The first is R v Secretary of State for Social Services ex parte Stitt (DC, 21 February 1990) where Woolf LJ said at page 14:-

“Although the directions have the force of law and have to be complied with, in approaching their construction and approaching the construction of the guidance it is important to remember that they are not the ordinary form of delegated legislation. As in the case of the Immigration Rules, they should be interpreted in a common sense manner so as to give effect to their obvious intent.”

The second case is R v Social Fund Inspector ex parte Healey and others (DC, 17^th April 1991) in which Mann LJ, giving the judgment of the court, said:-

“There was agreement before us that directions should not be construed as if they were enactments (which they are not) but rather that they should be interpreted in a common sense manner without recourse to subtlety or technicality. This approach, with which we agree, does not of course extend to a departure from the ordinary meaning of language. The approach was the one adopted by Woolf LJ in ex parte Stitt.”

Mr Buley, for the DWP, drew my attention to a further observation of Mann LJ at page 7:-

“In directing the exclusion of categories of need which are often, but not invariably, met elsewhere we can readily infer that the Secretary of State has decided to focus on defined categories of needs and to exclude from consideration other needs of equal worth which, although often met elsewhere, would … require detailed investigation of each application in order to see whether in fact the particular need could be met elsewhere.”

Mr Squires submitted that Direction 23(1)(a)(iv) should be interpreted in line with the underlying purpose of the Social Fund. CCGs exist, he argued, to assist applicants on low incomes to meet needs which would not otherwise be met. Assistance to facilitate an exchange of residence of the children as between divorced or separated parents fits the objects and purposes of the Fund. Direction 23(1)(a)(iv) was not intended to preclude such assistance which would otherwise be appropriate simply because such exchange, on occasion, occurs at the children’s school. Mr Squires accepts that CCGs are not available for an “ordinary school run”: that type of journey is a matter for local education authorities pursuant to their powers and duties under Section 509 of the Education Act 1996.

Mr Squires offered the hypothetical case of a child of school age with a parent who is seriously ill in hospital. Visits can only be made twice a week at lunch time, say on Wednesdays and Saturdays. Direction 4(b)(i) permits payment for “expenses of travel … to visit someone who is ill”. So there would be no difficulty about eligibility for a CCG in order to fund the child’s journey at lunch time on Saturday from home to the hospital and back. But on Wednesdays, if the Defendants are right, the child could not be assisted to travel between school and hospital because the journeys started and finished at the school. If one was asked to describe the twice weekly journeys for which financial assistance was sought, one would not say that the child or the adult taking him was receiving assistance with “travelling expenses to and from school”. One would say that he was receiving assistance with the expenses of travel to visit someone who was ill. Where payment is sought for a journey whose primary purpose falls squarely within the Social Fund scheme, assistance should not be precluded simply because the journey happens to start or finish at a school.

The central point made on behalf of both Defendants is the same. Direction 23(1)(a)(iv) means what it says. It excludes a journey to school or from school. The journeys between the Claimant’s home and the children’s school were in that category. Therefore they are excluded.

Mr Buley, for the Secretary of State, lays emphasis on Section 509 (1) of the Education Act 1996, which permits local education authorities to make arrangements “for the purpose of facilitating the attendance of persons … receiving education …at schools”. He submits that all of the journeys in question were capable of being funded under Section 509, and the discretionary question of whether they should be so funded was a matter for the LEA. The existence of these LEA powers was a reason why travelling expenses to and from school were excluded from consideration in relation to CCG payments. He argues that the Defendants’ test is simple, whereas a test which enables the Claimant to succeed cannot be formulated clearly.

Mr Gordon QC, for the Social Fund Inspectorate, submits that Section 509 is something of a distraction. The key questions, in his submission, are (1) what does the Direction, on its face, mean? (2) is that meaning consistent with the purpose of the Social Fund? Mr Gordon accepted that if the Defendants’ arguments in this case are correct, any Social Fund officer who authorised payment for handover journeys would be making ultravires payments from public funds.

The Defendants’ central point is beguilingly simple. But its apparent simplicity breaks down on closer examination. Whether a journey is properly to be categorised as “to or from school” is not simply a question of map reading. The Defendants accept that journeys between Anglesey and Caernarfon on a day when the school is shut – in the school holidays, during half term or at a weekend – were not excluded and would not have been even if the handover point happened to be outside or very near to the school. Conversely it is obvious that if the exclusion would otherwise apply, in the case of an ordinary school run on a day when the children were to attend school, it cannot be avoided by dropping the children off or picking them up a few minutes’ walk from school.

But the handover of children from one estranged parent to another takes many forms. Suppose, for example, the children’s grandmother or a close family friend lived around the corner from the school. A sensible arrangement would be for the children to walk there after school and for their father to collect them later in the afternoon. I asked whether the journey back from that collection point to the Claimant’s home would be excluded. Mr Buley, after some reflection, answered that it would depend on whether the visit to the grandmother was genuine, or whether it was in effect disguising an ordinary school run. It seems to me that this would not be an easy issue for the decision maker to resolve: it might be argued that (say) a 20 minute visit to the grandmother would mean that the journey remained excluded, but a longer visit might be treated as a real one.

Turning to Section 509 of the Education Act 1996, I reject Mr Squires’ submission that it would have been ultra vires for the Local Education Authority to fund a handover journey under Section 509. Mr Buley was right to argue that a handover journey, like an ordinary school run journey, facilitated the children’s attendance at their school. However, it seems to me that the possibility of funding under Section 509 was no more than theoretical. The children’s mother lived close to the school on Anglesey. The Claimant, their father, lived 20 miles away in Caernarfon, in a different local authority area. The response of the LEA when an approach was made to them for funding was what one would expect; they replied that the school transport budget was severely limited, and the funding of such a journey from the father’s home to school could not be regarded as a sufficiently high priority for them to fund it.

Mr Buley submitted that the Secretary of State’s policy is that the Social Fund should not make provision where another statutory scheme, whether mandatory or discretionary, applies in principle. Mr Squires, for his part, accepts that the availability of another statutory scheme, and whether that availability is real or theoretical, are factors to be taken into account in the exercise of discretion in making Social Fund payments: see section 140 (1) of the Social Security Contributions and Benefits Act 1992, which provides:-

“In determining whether to make an award of a community care grant or a crisis loan to the applicant or the amount or value to be awarded a Social Fund Officer shall have regard, subject to subsection (2) below [which requires the officer to follow the Secretary of State’s directions and to take account of his general guidance], to all the circumstances of the case and, in particular –

(a)

the nature, extent and urgency of the need;

(b)

the existence of resources from which the need may be met;

(c)

the possibility that some other person or body may wholly or partly meet it …”

But in interpreting an exclusion different considerations apply. The Secretary of State already excludes from eligibility for CCG expenses which the relevant local authority has a statutory duty to meet: Direction 29 (b). I cannot follow the rationale of excluding altogether from CCG expenses which might just conceivably, in theory but not in practice, be met under another scheme.

Mr Gordon referred me to the passages in Stitt and Healey in which it was held that the Secretary of State is entitled to exclude categories of need, even if the result is that some needs will not be met which on social grounds are no less worthy than those which are eligible for payment. But that is not in dispute here. In both Stitt and Healey, although questions of interpretation arose, the principal focus of the case was an irrationality challenge to the Secretary of State’s Directions. Here the only question is whether on a proper interpretation of Direction 23(1)(a)(iv) the Claimant is excluded or not. I note also the reference in Healey to needs which are often, but not invariably, met elsewhere. There is no evidence before me that the need in cases such as the Claimant’s is often, if ever, met elsewhere.

In his oral argument Mr Gordon submitted that Section 509 of the 1996 Act was not a key point in the case. He argued that there were two questions to be asked: (1) what does this Direction, on its face, mean?; (2) is that meaning consistent with the purpose of the Social Fund? I prefer to reverse the order of the questions and ask (1) is the payment of a CCG to finance a handover journey in the circumstances of this case consistent with the purpose of the Social Fund?; (2) if so, (and bearing in mind that common sense interpretation cannot extend to a departure from the ordinary meaning of language), is it excluded by Direction 23 (1)(a)(iv)?

It is quite clear that the answer to the first question is yes. Direction 4 allows a CCG to be paid for expenses of travel in order to ease exceptional pressure on the applicant and his family. The Social Fund Inspector found in the Claimant’s favour on that issue and that part of her decision is not open to challenge in this court.

The critical question is then whether the intention of the Secretary of State or the draftsman of Direction 23 was that a handover journey must be excluded from eligibility simply because it begins or ends at the child’s school on a day when that school is open. The common sense answer to that question, without recourse to subtlety or technicality, is that there was no intention that it should be excluded. I agree with Mr Williams, the decision maker in 2007, that while an ordinary school run journey from the Claimant’s home to the school the same day is excluded, a journey to facilitate the children’s change of residence from one parent to another is not.

Accordingly the claim for judicial review succeeds.