FAMILY ALLOWANCES (QUALIFICATIONS) REGULATIONS (Hansard, 22 April 1969)

§ Mr. Tim Fortescue (Liverpool, Garston)
I beg to move, That the Family Allowances (Qualifications) Regulations 1969 (S.I. 1969. No. 212), dated 19th February 1969, a copy of which was laid before this House on 28th February, be withdrawn. My hon. Friends and I do not object to these Regulations, which are mostly of a consolidating nature. However, we wish to hear from the Minister the reasons for the changes in the limits incorporated in the amendments to Regulations 12(2) and 15(2). While these proposed changes are no doubt due to experience, we should be told more about them.
I draw attention to Regulations 2(2) and 2(3) which cover the payment of family allowances in respect of children of parents who are not British subjects born in this country. The Regulations provide that no family allowances are payable unless one of the parents has been in Great Britain for one year out of the last two if he or she is a British subject or British protected person; or for three years out of the last four if neither is a British subject or British protected person.
We are all aware of the ignorant and bigoted talk that goes on about immigrants coming here and being immediately entitled to benefit from family allowances without having made any contribution to the economy of the country. These Regulations show that that is not so and that it has not been so for the lifetime of the Scheme, since Regulations 2(2) and 2(3) are lifted in their entirety from the 1946 Regulations. I hope, therefore, that we shall hear no more of the sort of talk that does nothing but harm relations in Britain.
Our purpose in praying against the Regulations is to point out how the definition of "temporary" in Regulation 8—a definition which does not coincide with the criterion used by the Inland Revenue—can cause anomalies which, in turn, can convince a citizen that he is being unjustly treated; and to suggest to the Minister that the saving clause in Regulation 10(2)(b) should similarly be provided in Regulation 8.
423 We all know from our regular surgeries or clinics that very large numbers of our constituents come to see us and complain that they are entirely baffled by the whole of the vast State machine and say that "they" have done something and ask what we can do to help.

§ Mr. Deputy Speaker (Mr. Harry Gourlay)
Order. The hon. Gentleman cannot on the Motion before the House suggest alterations to the Regulations.

§ Mr. Fortescue
Thank you, Mr. Deputy Speaker. I had not intended specifically to suggest alterations. I had intended to suggest that the Minister might consider that one day, perhaps in a new set of Regulations, something should be done about this point.

§ Mr. Deputy Speaker
That is not even in order in this debate either.

§ Mr. Fortescue
Thank you, Mr. Deputy Speaker. I was saying how our constituents come to see us and say that they are baffled by the State machine. Even we have to write to the Department concerned and ask for an explanation. We always get a courteous reply. It is not always prompt, but when it comes it is pretty good. Sometimes the reply we get, especially when the workings of more than one Department are concerned, is without logic and practically beyond all reason. It is in cases such as these that the constituent feels that he is in the grip of some unthinking and uncontrollable inhuman machine, and it is very difficult for a Member of Parliament to convince him that he is not.
Section 20(4) of the Family Allowances Act, 1965, provides that the temporary absence of a person from Great Britain "shall be disregarded" when considering whether he or she qualifies for a family allowance. Regulation 8(1)(b) of these Regulations provides that the absence of a person from Great Britain shall be treated as temporary except in the following circumstances—

(i) if it is or was when it began for a purpose other than a temporary purpose; or

(ii) if it has lasted for a continuous period exceeding 6 months; or
424
(iii) if the person is a member of a family for which there was no right to an allowance in existence immediately prior to that date, and for more than 26 weeks in the aggregate out of the 12 months immediately preceding that date he has neither been present nor been a member of the Forces, a merchant seaman or a person under treatment".

Regulation 10(2), on the other hand, which covers a child's absence from Great Britain, says that this shall be treated as temporary—

(a) if and so long as it is not intended to exceed and has not exceeded 6 months, for the period of such absence; or

(b) in any other case if it is for a temporary purpose, for such period or periods, if at all, as the Secretary of State in his discretion may from time to time determine having regard to all the circumstances of the particular case".

Thus an adult's absence, even if always for a temporary purpose, intended for a temporary purpose, and actually for a temporary purpose, is held not to be temporary if it lasts one day longer than six months, although a child's absence if it is for a temporary purpose can last for any period, for as long a period as the Secretary of State in his absolute discretion may decide. Already there is an anomaly—the different treatment of a parent from that of a child under the Regulations. I believe from my study of the case that these Regulations were meant to apply to the case of a child being away from this country while the parents remained in this country—a child going abroad for education or for some other purpose.
The anomaly that we already have is greatly aggravated by the fact that the residence rule for Income Tax purposes is once again different. This rule is—I quote from no less an authority than the Financial Secretary to the Treasury, in a letter to me dated 31st March of this year—that A person whose ordinary residence has been in the United Kingdom and who leaves the country for only occasional residence abroad is regarded as continuing to be resident for that period if it does not span a complete Income Tax year. So for parents, for family allowance purposes, the period is six months. For children, for family allowance purposes, it is an indefinite period if the Secretary of State should so decide. For Income Tax purposes it is an Income Tax year. At once we have citizens enmeshed in a maze of incomprehensible legislative 425 regulations, and they do not understand what is going on.
In support of my case I should like to quote a family in my constituency which has become mixed up in this maze and does not see its way out of it. The family name is Taylor. The father was a pilot with British Eagle, which, unhappily, is no longer operative. In 1968 he was sent to Spain for a temporary stay for six months to work for British Eagle. He took his wife with him, but he left his two older children at home with their grandmother. Before Mr. and Mrs. Taylor left they wrote to the family allowances office at Newcastle and said that they were going, and asked that the grandmother be authorised to draw the family allowances during their absence in Spain. This was agreed to—this is provided for in the Act—and off they went.
They were away for just over six months. The intention was not in any way changed, but they did not come back within the six months. They came back a few days later. They were promptly informed that for the next six months they would forfeit their family allowances for the two children who had remained in England because they had been away for longer than six months. They replied that Mr. Taylor's salary had been paid from England during the whole of his absence, that the ordinary tax and insurance deductions had been made from that salary during the whole of his absence, and that the expenses of the children had been the same during the whole of his absence; but nothing could be done. They appealed to the tribunal, and their appeal was turned down, quite rightly. On the regulations their appeal was dismissed.
They were still smarting from that blow when a few days after they returned from Spain they received a letter from the Income Tax authorities which said: I regret that as you remain resident in the United Kingdom you are liable to tax on all moneys paid in the United Kingdom, and no repayment is due in respect of the period spent abroad. Will you please make an Income Tax return, together with a statement of the amount of family allowances received for the period 6th April, 1968 to date", and so on. Not only were they liable for Income Tax for the whole of the period they were abroad, but they were 426 liable to Income Tax on the family allowances their children had received while they were abroad.

§ Mr. Deputy Speaker
Order. I must draw the hon. Member's attention to the fact that we are discussing not the Income Tax regulations, but this consolidating Measure, Statutory Instrument No. 212. We cannot discuss the merits of the parent Act. We can discuss only the consolidation of the changes which the Regulations make. I think that the hon. Member's case is based more on existing legislation than on the changes proposed in these Regulations.

§ Mr. Fortescue
With respect, Mr. Deputy Speaker, surely we can discuss the content of the Regulations, and not only the changes that have been made? The fact that they are consolidating Regulations does not alter the fact that we can discuss the content of them.

§ Mr. Deputy Speaker
The practice is that when we discuss a consolidating Measure we can discuss only the merits or otherwise of consolidating. We cannot discuss the merits of the Regulations being consolidated.

§ Mr. Fortescue
Does that mean that I cannot discuss the content of these Regulations?

§ Mr. Deputy Speaker
We can discuss only whether they should be consolidated in one set of Regulations. The hon. Member cannot discuss the detailed merits of the Regulations. That has always been the practice with consolidating Measures. The hon. Member can discuss the one or two changes which are made in the Regulations.

§ Mr. Fortescue
I have already discussed those and asked the Minister to explain them. I shall adapt my speech to keep in order, but I am a little surprised and taken aback by your Ruling. I thought that as these Regulations were on the Table they could be discussed. Surely that must be the practice? I shall try to adapt my case to your Ruling. I am fortunate to have been made the point about Income Tax before you called me to order and I shall not revert to it.
The Taylor family are now back in England. They were baffled by the situation and saw me about it. I want to 427 make a suggestion to the hon. Gentleman. As I have said, Mr. and Mrs. Taylor before they went abroad wrote to the Ministry and asked for authority to have their family allowances paid to the grandmother, and this was granted. I have no criticism of that. Would it not be possible in such cases, however, when authority is given, to warn the parents that, if they do not come back within six months—that in itself is an anomaly—they will forfeit the allowance for six months? Mr. and Mrs. Taylor were not told of this Regulation and could not be expected to be familiar with every detail of the Regulations.
I am used to obtaining from the hon. Gentleman slight concessions to constituents of mine after debates, and I put this to him in the hope that I shall obtain one again. Would it not be possible to spell out their rights to parents going abroad and thus prevent them from having a sense of injustice? They should be warned that they might put their family allowances in jeopardy.

§ The Under-Secretary of State for the Department of Health and Social Security (Mr. Norman Pentland)
I think it is a good thing if we discuss from time to time the reasons for some of the intricacies of the rules and regulations in our various schemes, and I am to that extent grateful to the hon. Member for Liverpool, Garston (Mr. Fortescue) for raising this matter. I do not, however, propose to detain the House for very long.
No one would pretend that these Regulations are simple, and I have considerable sympathy with those who find them difficult reading, and I am in sympathy with the hon. Gentleman in presenting his case. But if we are going to make laws which cater fairly for the varieties of circumstance of nearly four million families containing over 10 million children I am afraid that some complexity is unavoidable.
As the hon. Member said, the Regulations for the most part simply consolidate the old Regulations made in 1946 and the amendments made since then, so that they are all on one piece of paper. Such changes as have been made are few and comparatively minor. It may be helpful, 428 however, if I explain what the main changes are.
There are only two material amendments. The first is in Regulation 12(2). This provides that where a child is in the care of a local authority or a voluntary organisation, his absence from his parents can be treated as temporary for a maximum period of four weeks.
I should explain that for a child to be included in his parent's family he must normally be living with them or they must be contributing at least 18s. a week to his maintenance. Periods during which he can be treated as temporarily absent from them or their contributions temporarily break down are, however, disregarded.
Under the old Regulations "temporary absence" was in most cases limited to four weeks where a child had been taken into the care of a local authority or similar body and his parents were not contributing for his maintenance. This was in most cases, but not in all. An unintentional result of the way in which the Regulations were drafted was that if the authority then boarded-out the child with foster-parents within four weeks, the parents could continue to count the child in their family for 12 weeks instead of four. The new Regulation prevents this happening; it also ensures that foster-parents who might otherwise have been denied the right to count the child in their family between the fourth and 12th week of absence from the parents can now do so.
The second material amendment is in sub-paragraph (g) of Regulation 15(2). This ensures that a child still counts for family allowances when he is on holiday between schools or between school and college or university.
Family allowances may be payable for a child over school-leaving age and under 19 if he is undergoing full-time instruction in a school, college, university or similar establishment. Obviously, we have to allow for periods when he is not actually at school because of, say, holidays or sickness but his full-time education has not finished. Ordinary school holidays were already covered by the old Regulation; and absence from school because of a change of school was disregarded for up to four weeks. But there has been 429 some doubt about the practice of allowing a child who left one school in the summer and went to another or to university in the autumn to count for family allowances in the intervening period. The new provision in the Regulations makes it clear that in this sort of case the holidays of either school or university can be disregarded for up to 16 weeks, in addition to absence of up to four weeks at the beginning or end of term.
There are a number of other minor amendments, but I do not propose to occupy the time of the House by listing them now. Hon. Members will appreciate how minor they are if I say that one of them substitutes for a now obsolete reference to the Royal Army Service Corps a reference to the Royal Army Ordnance Corps, which is the Corps now responsible for N.A.A.F.I. personnel, who count as "members of the forces" for family allowances purposes.
The hon. Member for Liverpool, Garston touched on a particular case in which the provisions in Regulation 8 about people going from or coming to this country worked to the disadvantage of one of his constituents. I should be out of order, I suppose, if I attempted to go into the details of the particular case that the hon. Member has raised, but I shall be writing to him about it. His letter to the Financial Secretary was handed to me only recently, and therefore, I have not been able to write earlier, but I have taken note of what the hon. Member has said tonight.
The rules in Regulation 8 have the effect for an ordinary family in which the mother and father both go abroad for a short while that if they stay abroad for less than six months they can continue to qualify for family allowances while they are away and immediately they return; and if they stay abroad for more than six months they will lose their right to family allowances after six months and will have to serve a re-qualification period of 26 weeks when they return.
The rules seek to strike a balance—and it seems to me a fair one—between, at one extreme, excluding a claimant for any period of absence from Great Britain 430 and, at the other extreme, admitting the continued right to family allowance of anyone abroad, however long he or she has been away.
As to the suggestion that the family allowance rules about presence in or absence from Great Britain do not square with the tax rules about residence abroad, here again I can only say that there is no particular reason why they should. This is, however, as the hon. Member knows, a matter for my right hon. Friend the Chancellor of the Exchequer and not for me.
I do not want to delay the House much longer—

§ Mr. Fortescue
The Minister has just said that the matter is one for his right hon. Friend the Chancellor of the Exchequer. In writing to me, the Financial Secretary to the Treasury said that the question of entitlement to family allowance is a matter for the hon. Gentleman's Department. I am trying to bring the two Departments together to consider the matter from one point of view instead of two, but it seems impossible to do so.

§ Mr. Deputy Speaker
I hope that the hon. Member will not pursue that line too far, because it is out of order.

§ Mr. Pentland
I leave it at that, Mr. Deputy Speaker, because I appreciate your Ruling on the matter.
In conclusion, it seems to me rather belated to commend to the House Regulations most of which have already been effective for so long; but I am sure that they remain sound, and I am equally sure that, for the convenience of all of us, this sort of consolidating and tidying-up measure is useful and to be welcomed by everyone in the House.
I therefore hope that the hon. Gentlemen opposite will feel able to withdraw their Motion.

§ Mr. Fortescue
In view of the Under-Secretary's very kind approach to my speech, and the fact that he is going to write to me so soon, I beg to ask leave to withdraw the Motion.