HC Deb 14 November 1969 vol 791 cc805-18

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Dobson.]

1.23 p.m.

Mr. Charles Mapp (Oldham, East)

I shall not exceed in the course of this debate the notes I have drawn up, except in one small respect because we are relatively early in completing the business on the Order Paper but I still hope to contain my remarks in manageable proportions. I shall seek during this debate to indicate that the Ministry of Social Security in the payment of children's allowances for this family have completely evaded and avoided a magistrates' court order made in November, 1968, in addition has withheld payment to the children's appointed guardian until July this year, and in the meantime has made some payments to the father which were not justified.

I begin with the story. About April, 1968, Mrs. X—there are good reasons why the name of the family should not be identified—abandoned the family home of her husband and four children aged 10, 7, 6 and 4. The mother was already under the supervision of an Oldham probation officer. The father, understandably, could not give the children a full family upbringing, and consequently their future was at risk. The children could have been—indeed, might have been—taken into care by the local authority. Had that been done, doubtless the grandmother would have been asked to look after them and would have been assured a firm income for doing so, with, of course, the father being required to make a positive contribution.

But family life does not always work like that. Mrs. X's mother, the children's grandmother, would have none of this and immediately took them under her care and gave them warmth and affection in her home, which continues to this day. Meantime, the father was making efforts to re-establish the family, but these did not succeed. Unfortunately, the payments he had been making to his mother-in-law fell away. The probation officer—who, of course had certain oversight of the mother before these events took place—had kept in close touch with the children, and on her advice the grandmother applied to Oldham magistrates' court to enable herself better to meet her obligations to the four children.

On 27th November, 1968, the court awarded the guardianship of the four children to the grandmother and made orders of £2 per week on the mother and £4 a week on the father for the upkeep of the children.

It is understood that during the court hearing the bench, which of course would have no powers as to children's allowances, had in mind and hinted to the grandmother that in due course she would be entitled to the allowances. I have been a magistrate for many years. One would think that a magistrates' order in regard to guardianship of children would be accepted without question by the Ministry, but, alas, some eight months have elapsed before the facts have been recogised by the Ministry. In the meantime, that has resulted in considerable injustice being done to the grandmother, and even now the Ministry says that in certain circumstances, which might involve fortuitous payments by the father, the allowances could be taken from the grandmother, who continues to give the children a full and proper home.

So far as I know there is no machinery to provide communication between the clerk of a court and the Ministry in cases of this kind. One might think that the Ministry would consider some kind of machinery so that decisions in the courts about guardianship where allowances are involved might be acted upon, or at least noticed by the Ministry. From November last, the date of the court hearing, the mother has not paid a penny of the £2 a week order made upon her. The father became transitory in his abode and up to the end of February he had paid into court £32, plus another £10 to the end of April and £5 in May—£47 in all—against the £104 which he should have paid.

The family allowance book, for reasons one can well understand, was astray for most of the period in late 1968 and early 1969. It is understood that the father applied for such a book and obtained a replacement from the Ministry's Newcastle office. He drew the allowance of 58s. a week for three of the children on two occasions in the same winter-spring period, and he received a very measurable amount of arrears from the Ministry. Early in 1969 the father visited the children on three occasions and made payments to the grandmother of £2 on each occasion. By the end of February the grandmother's costs for the four children resulted in payments of about £32 when in all she should have drawn about £107. Four children are a costly item in a working-class home.

The probation officer continued to watch the children. She telephoned the full story as I am unfolding it to the Ministry's Newcastle office in March and followed with a full statement in writing dated 28th March. She again wrote on 16th May and on 29th July. Copies of each of these letters have been supplied to the Minister. The full facts were set out in her letter to the Ministry of 28th March, which I propose to read to the House. The only variation that I am permitting myself is to hide the name of the family, and, therefore, names will be transposed to meet that situation.

The letter reads: This letter is to confirm a telephone conversation I had this week with your Liaison Officer. This lady is the grandmother of four children aged 10, seven, six and four. Until early in 1968 these children lived with their parents. Early last year the mother deserted the family and her mother—that is, the grandmother—took the children in. For most of last year the husband was seriously attempting to get his wife to return to the family, was seeing the children and was paying some maintenance to his mother-in-law. Towards the end of the year his payments became more and more erratic and finally it was agreed that the grandmother would get the maximum assistance with caring for these children if she had legal custody of them. This matter was referred to the Oldham Borough Magistrates' Court in November last year and she was given the custody. An order was made ordering the father to pay £4 a week for the children and the mother to pay £2 a week. The mother has paid no money at all and the father's payments ceased on 26th February. I specifically call attention to the fact that regular payments ceased on 26th February.

The letter continues: His record for this year is as follows: The officer has set out the record. She continues: This information was supplied to me by the Court Office. The family allowance book has been missing since the mother left the family and I made inquiries … about this earlier this year. It was explained to me by a member of your staff —that is, the staff at Newcastle— that as the father was paying maintenance he would have to have the book. In due course the book was issued, together with a sum for back payment. I endeavoured to get the father to allow the Children's Department to have the book to pay the grandmother, but he refused to do this, and he has not given his mother-in-law any of the lump sum. He made three payments of £2 a week after he received the book and since then nothing has been handed over to the grandmother. We are not, at the moment, aware of the father's address. I understand from my conversation with your officer that there is a reasonable chance that because of the circumstances described above, the book can be re-issued to the grandmother. That is the first major report from the probation officer making firm statements about the jurisdiction of the magistrates' court. The matter then unfolds. On 16th May, in the absence of any reply—and as far as I know she has had no reply from Newcastle, although I may be corrected about that—she pressed the case further and enclosed an application form to confirm the earlier request for a book. On 29th July the probation officer pointed out that the father had failed to appear in court in connection with arrears of the order and that a warrant had been issued for his arrest.

Early in July I was telephoned by a church worker about the case. He gave me sufficient detail to enable me to write more or less there and then to the Minister, on 8th July. In doing so I pointed out the human and urgent nature of the case. But I was not aware at the time of the preceding history or of the work which the probation officer had done in the case with the Newcastle office.

It seems from what I can find that in consequence of my letter inquiries were made by the two Oldham offices of the Ministry—the supplementary benefits branch and the social security branch—of the grandmother. When I saw her a few days ago she told me that the inquiries to her seemed to be more concerned about supplementary benefits than about her right to the children's allowance book. So far as is known, neither of the two offices made any inquiries of the probation officer who had been handling the case. I wonder whether the reports made by the two offices paid sufficient regard to the basic problem that the magistrates had already decided where the guardianship should lie.

The Minister's reply to me of 29th August completely evaded—and his subsequent replies have completely evaded —the part which the magistrates' decision should have played in a case of this kind. For the Ministry it is as if the magistrates' court did not exist.

I then visited the family and became aware of the back history. On 18th September I asked the Minister to review the case in the light of all the new facts which I had obtained. To me at that time it left a very bad taste in my mouth. I felt that the Department had been cynical and even callous in its treatment of the case. On 15th October, following further inquiries, the Minister, in a letter to me, said, I must say that the position disclosed by these facts is at first sight unsatisfactory. I shall be looking further into it, but I fear for the present there is nothing I can do to help Mrs. X". The matter was the subject of Question and Answer in the House on 20th October.

I find no pleasure in criticising a Department which over the years I have found to be humane, but today is an opportunity—one which I never thought I should need—for the Minister to clear the slate about a narrow area of administration and ensure retrospective payment to the grandmother of the allowance which she should have been receiving for most of the period about which I am speaking.

There is one over-riding issue to which I should like the Under-Secretary to make reference—and that is the position of the court. If for reasons which become apparent in the magistrates' court they are asked to make a guardianship order, the magistrates will call for and require to know all the circumstances—why, in this case, four children are to be taken from their natural parents, one of whom has abandoned them, and care of them awarded to the grandmother. It is the duty of the courts—a duty which the House has laid upon the courts in Act after Act—to deal with circumstances of this kind properly and judicially. In this case they did so, and they made a guardianship order on the grandmother.

I gather that the probation officer was in the court at the time. From her memory—with that reservation, but with good will—she feels that she can recall that there was an informal discussion in the court about the children's allowances of 58s. a week. Although the magistrates have no jurisdiction at all over the payment of these allowances, there was an inference, from some informal conversations and discussions, that in due course these allowances would be paid to the grandmother.

If a case of this kind can arise, surely there is a gap between the decisions of the court and those of the Ministry in respect of the payment of children's allowances where in one case or the other the parents are found not to be fit persons to care for their children or have abandoned their family.

I will go further. Even if—which I cannot accept—the magistrates' court's decision is overlooked, I believe that the Ministry has made wrong decisions, certainly in regard to the dating of the family allowance book which has since been awarded to the grandmother.

My first letter to the Ministry was dated 8th July and had no significance in the history of the case. Nothing had changed about the situation regarding the children's guardian or the contributions or how the children were being maintained. But the allowance book was awarded to the grandmother from the date of my letter. I am unconvinced that that is in any way a material factor in deciding from what date the book should have been handed to the grandmother.

The Under-Secretary's letter of 29th August dealt with the contention that the book should be held by the father. It said … the Family Allowances Act provides that a child is to be included in his parents' family for allowance purposes if he is either living with his parents or the parent is contributing 18s. a week towards the cost of providing for him. It further provides that so long as the child can be included in the family of his parents he cannot be included in the family of any other person. The Act and Regulations also provide that any reduction or interruption of maintenance contributions which is intended to be temporary"— I will come back to the phrase" intended to be temporary"— may be treated as such for up to four weeks and disregarded. By virtue of the payments made by their father for their maintenance up to the beginning of June, therefore the children concerned continue to count as in his family up to the beginning of July. The court award provided for £4 from the father and £2 from the mother, not as of an equation of the children's allowances. The court's consideration was based on the likely income of the two parents, who are now separated. It laid down the proportions in which the £6 was to go to the children. Children's allowances are not paid to parents on some form of means test; they are paid because of a feeling in the country and certainly in this House that they are an important contribution to family life. They are paid in addition to what might be regarded as the minimum standard.

If it is considered that, because the father paid £4 a week, as he did for only eight weeks, therefore the childrens' allowance should not accrue to the grand- mother who was maintaining them, then the Ministry must think again. It was obvious from the Ministry's letter, which mentioned the word "temporary", that the intention was to avoid so far as possible payments under the court orders, quite apart from any other payment. Therefore, it is wrong, and even malicious, for the Ministry to read that inference into a set of circumstances, from which any ordinary person would take the view that the mother had totally evaded her responsibilities.

The father was despondent and fed up and was reaching the stage when he was not obeying the orders of the court. There were substantial arrears, and the grandmother had received hardly anying. But, because of the letter from the Member of Parliament on 8th July, the Department took it as a watershed in the family's arrangements and does not regard it as sufficient to award a figure of 58s. a week. Even by the Department's own regulations, it should have acted earlier unless the father had himself been contributing at least 58s. for the three children, or for four children £3 12s. a week. It should clearly have been made over to the grandmother not later than April.

I am sure the Under-Secretary must feel that there is something wrong with the procedure in this case. I feel that we do not differ on the facts. Therefore, it is the job of the Minister to be sympathetic and human and to meet the kind of case I have put to him today.

1.48 p.m.

The Joint Under-Secretary of State for Health and Social Security (Mr. Brian O'Malley)

My hon. Friend the Member for Oldham, East (Mr. Mapp) has referred to a specific case, although understandably he has not given names. My hon. Friend is aware that an appeal is pending before a local tribunal in this matter and that it would be quite out of order for me, therefore, to comment on the details of the case this morning. I will not comment on his contention that my Department has taken wrong decisions in this case because, clearly, it is a matter for the appeal tribunal itself to consider.

May I make one brief comment on the specific case?

Mr. Deputy Speaker (Mr. Sydney Irving

): I ought to give some guidance to the hon. Gentleman. On 20th June, 1963, the House accepted the first Report of the Select Committee on Procedure in the Session 1962–63, in a Resolution of 23rd July, which dealt with the question of the sub judice rule to which the hon. Gentleman now refers.

In accepting that report the House gave to the Chair discretion as to whether matters decided before bodies other than courts of law should be sub judice so far as the House is concerned. It felt that to extend the sub judice rule to all statutory bodies outside courts of law would be too restrictive of the rights of Parliament. In the exercise of this discretion the Chair would not regard it as out of order if the hon. Gentleman wished to comment on the case in question.

Mr. O'Malley

I am grateful to you, Mr. Deputy Speaker, for that guidance.

Mr. Mapp

On a point of order. I always try to keep in order and, therefore, made some inquiries on this matter. I was aware that an appeal had recently been made and the information I received was that if there was an appeal in the courts in a general sense this discussion would have been out of order. Had that been the situation I would not have raised this matter today. But I understand that the appeal is within the machinery of the Department and I was advised that in that sense it would be in order if I were to raise the matter.

Mr. O'Malley

I am not suggesting that my hon. Friend was in any way out of order in the manner in which he dealt with the subject this morning. That would have been grossly discourteous to you, Mr. Deputy Speaker. I am grateful for your guidance. I will certainly consider carefully everything my hon. Friend has said on the specific case.

With reference to the case itself, perhaps I may deal briefly with the question of the date, 8th July, to which my hon. Friend referred. He made the point that he had written on that day and that his letter had spurred the Department into paying the allowance from that date. In fact, payment was made from 8th July because that was exactly the date when the, father lost his title.

I am grateful to my hon. Friend for raising the subject of the payment of family allowances when the custody of children has been awarded by a court to a person other than the parents. I fully understand my hon. Friend's general concern and the view which he holds regarding children and adult citizens who are affected by that kind of situation. Cases of this general type, involving, as they do, the breakdown of normal family life, inevitably cause great unhappiness and hardship. For the children placed in the care of other people because their parents have been unable to provide for them a satisfactory home life, we all feel the greatest sympathy. We must be thankful, also, for the devotion of those who receive such children into their own homes.

It may happen—as it did in this case, I think—that the substitute parents are relatives who are no longer young. At a time in their lives when their own children have grown up and become self-supporting, they are once again faced with all the work and worry of caring for a young family, and their worries are likely to be aggravated by financial problems arising from disputes about whether the social security benefits payable in respect of the children are to be paid to the real or the substitute parents. I have great sympathy for them, since it is the substitute parents who are undertaking the heavy responsibility of bringing up the children. What I should like to do now is to look at the general position in circumstances of this kind and how matters are operated under the law as it stands today.

The family allowance scheme has always, understandably, given pride of place to the rights of the natural parents of a legitimate child. Family allowances are intended for the benefit of the family as a whole, and it is generally in the best interests of a family that, even if they are separated, the natural parent should be helped and encouraged to maintain his own children. As a consequence, a parent remains entitled to receive family allowance for children from whom he is separated, on condition that he pays over to the person caring for the children not less than 18s. a week for each child. My hon. Friend is aware of that.

Mr. Mapp:

Yes, but will my hon. Friend answer one question? I am aware of that point, and the family allowances in this case applied to only three of the four children. But my hon. Friend referred to 18s. a week for each child. Would that be for each of the four children, or each of the three in this case?

Mr. O'Malley

I am obliged to my hon. Friend for that question. Rather than give him an answer off the cuff, and since I think I know the intention behind his question, I should prefer to look at the situation and, perhaps, write to him with a detailed and considered reply.

We were referring to the situation in which a parent remains entitled to receive family allowance for children from whom he is separated, on condition that he pays over to the person caring for the children not less than 18s. a week for each child. So long as he fulfils this maintenance condition, the legal right of the natural parent to family allowance prevails over any rival claim.

That provision is incorporated in the Schedule to the Family Allowances Act, which provides that the child in such circumstances can be included only in the family in which he is treated as being issue of the parents or parent. The inclusion of a child in the family of his parent by virtue of contributions automatically results in defeating the claim to family allowance of some other individual who is actually maintaining the children, even if custody of the children has been awarded by a court to that other person.

Since my hon. Friend referred to the position of the magistrates' court, I think that it would be appropriate if I dealt with the comments which he made at this point. He used words such as "cynical" and "callous" to describe, as he saw it, the attitude of my Department towards a case of the kind to which he referred. In reply to his assertion that the Ministry evaded the magistrates' order, I must tell him that what the Department did was to operate the law and regulations on this subject as they stand. If there be argument about that, it will, no doubt, be one of the matters likely to be considered by the tribunal.

My hon. Friend is saying, in effect, that, when a magistrates' court makes an order, it should be in a position to direct the Ministry. It would not be practicable to expect magistrates' courts to be familiar with all the relevant family cir- cumstances or with the detailed provisions of the Family Allowances Act and the Regulations. Furthermore, it has always been the practice that decisions on these matters are taken by independent statutory authorities in accordance with the law, and a special ladder of appeal exists for the benefit of dissatisfied claimants.

My hon. Friend, understandably, put this question: is there a need for machinery between the clerk of the magistrates and officers of my Department? Certainly, liaison between the clerk and officers of the Department is desirable, and it is usual practice, in fact, to have such liaison. However, I accept that my hon. Friend raises an important issue here. I am not sure that there is need for formal machinery. I think that my hon. Friend, on consideration, will probably feel that close and continuing informal liaison is a better way—this is certainly my view—of dealing with problems of this kind, rather than the establishment of formal machinery.

To continue my discussion of what the present situation is, and having dealt with what I describe, for short, as the 18s. rule and the position of the magistrates' court in relation to problems of this kind, I turn now to a further provision which is designed to help the natural parent. A parent who maintains his children to the required extent is entitled to receive family allowances for them, but it quite often happens that a parent makes his maintenance payments regularly on a monthly basis or that some temporary misfortune interrupts his weekly maintenance contributions.

It would be most undesirable to terminate a parent's title to family allowances immediately he fell into nominal arrears of maintenance. To prevent that state of affairs from occurring, the family allowance qualifications regulations provide that the interruption of a parent's contributions to cost of providing for a child is generally regarded as temporary for four weeks if the child is living with another family. This is one of the features of which my hon. Friend is critical, and I understand why.

The interpretation by the independent statutory authorities on the application of the regulation is that a maintenance contribution is normally regarded as being made during the week in which it was paid over, and it entitles the child to be included in his parents' family for that week and the succeeding four weeks. This could result in a single maintenance payment by a parent depriving a substitute parent of title to family allowances, not only for the week in which she receives the maintenance payment but also for the fallowing four weeks during which the child can be included in its parents' family, and, therefore, can be included in no other family. In such cases the substitute parent loses her title to family allowances, even though the real parents may not have submitted any claim to receive family allowances on his own account.

The existence of a court order for maintenance can be an additional complicating factor. In the first place, the court cannot be certain in making the order which party will be drawing the family allowances. It may well assume that one or other natural parent will be doing so. If it makes an order accordingly and it is complied with, no difficulty need arise. The parent makes the payments under the order, and in that way the family allowances reach the home where the children are. If the order is not complied with for four weeks, the substitute parent will acquire title to family allowances.

However, if the court order is only partially complied with trouble follows all round. The parent may no longer be maintaining the child to the extent required by the Family Allowances Act, and so may lose the right to family allowance, but until he has lost his title, the substitute parent gets neither the full amount of maintenance ordered by the court nor the family allowances. If, as I have already explained, the substitute parent in due course claims the allowances and is awarded them, the whole position can be upset if during one week a sufficient payment is made to restore the parent's title. Within that general context, obviously unsatisfactory situations can be reached.

We have already given my hon. Friend an undertaking that we would give sympathetic consideration to the matters he has raised, and I will examine very carefully any suggested methods of dealing with this general problem. Unfortunately, as my hon. Friend will realise, in a scheme which deals with so many families there is a risk that measures taken to deal with anomalies arising in exceptional cases might have unwanted repercussions on other cases. But I give my hon. Friend a very firm assurance that I wholeheartedly share his hope that a practicable way will be found to give greater help to those who are caring for other people's children.

Question put and agreed to.

Adjourned accordingly at three minutes past Two O'clock.