Mrs. Paulette Grayson (Hansard, 25 March 1982)

§ Mr. Ivor Stanbrook (Orpington)

Mrs. Paulette Grayson is a widow. She was twice married. By her first husband she had two children. One has died. The other, a son, aged 26, suffers from spina bifida. He is a "severely disabled person" within the meaning of section 37 of the Social Security Act 1975 and has at all material times been in receipt of an attendance allowance.

Mrs. Grayson married for the second time on 24 December 1975. On 3 May 1976 she made a claim for invalid care allowance, on the basis that she was engaged in caring for her son. It is not disputed that except for a matter to which I shall refer she was entitled to that allowance up to the time when she was widowed, on 9 November 1978. Because she was thereafter in receipt of widow's benefit, she lost her entitlement to invalid care allowance, under the overlapping benefits principle. Her application was prejudiced by the fact that section 37(3)(a) prohibits payment of the allowance to a married woman who is residing with her husband or whose husband is contributing to her maintenance".

The difficulty in Mrs. Grayson's case is that although she married for the second time on 24 December 1975 her second marriage soon broke down. Her husband lived with her in the same house for only a few months, and after that he was largely absent, visiting the matrimonial home only occasionally and paying nothing towards the expenses. By some accounts he had a drink problem. The report that I have from a local social worker says that he was of diminished responsibility, unable to sort out fact and fantasy. In November 1976, 11 months after the marriage, he went to live in a YMCA hostel in West London. He still returned to the matrimonial home occasionally, but the marriage seems virtually to have come to an end long before he died, after being in and out of hospital, on 9 November 1978.

By 3 May 1976 Mrs. Grayson considered herself to be married but separated, and she so indicated her status on the form on which she applied for invalid care allowance. It is noteworthy that she completed the form in her married name under her first marriage, which was the surname of her son.

However, the claim was accepted on this basis and the allowance was paid until 14 May 1978 when it was realised that Mrs. Grayson was not using her husband's name. It was then assumed that she had been living with her husband and was, therefore, ineligible for the invalid care allowance. She was told to pay some £901.50 which had by then been overpaid. These facts are largely agreed.

Mrs. Grayson appealed against the insurance officer's decision requiring her to repay the allowance. She appeared in person before the local appeal tribunal and explained about her marriage having broken down soon after it had started. The tribunal found the facts as I have stated and, by a majority, the chairman dissenting, took the view that the pressures on Mrs. Grayson from having a handicapped son and an alcoholic husband were such that she had used due care and diligence to avoid the overpayment. Therefore, the tribunal decided that she was 1183 not required to repay the money. So far so good. It seems extraordinary that a wife could be deemed to be residing with a husband who was habitually absent from the matrimonial home, in the circumstances I have described. However, at least Mrs. Grayson was spared the injustice of being required to pay the £901-odd back. Things went wrong from then on.

First, the insurance officer appealed from the tribunal's decision on the due care and diligence question. Therefore, that case went to the social security commissioner who decided that he was entitled, despited the appeal being on that narrow point, to consider the whole case afresh.

Secondly, the notice on form LT27, which was sent to Mrs. Grayson concerning the appeal, stated in effect that the insurance officer had 28 days in which to appeal. The insurance officer's notice of appeal was 49 days after the decision was made. During those 49 days, Mrs. Grayson was relieved of the worry and risk of being required to pay back the £901.50.

The notice was apparently in the wrong form—three months being allowed for this sort of case. It gave the impression that an appeal by the insurance officer had to be within 28 days. Therefore, Mrs. Grayson had the impression for some time that no appeal was possible and that she had succeeded.

Thirdly, on the main issue whether Mrs. Grayson and her husband were "residing together" for the purposes of the Act, the commissioner found against Mrs. Grayson. He cited the authorities and said that temporary absence did not mean that a husband and wife were not living or residing together for the purposes of the invalid care regulations. He found, in Mrs. Grayson's case, that the husband was not living or residing with her after he went to live at the YMCA hostel in November 1976. That was the first point, after he had left the home, at which it was possible to say with certainty that he was living away. After that, again using the authorities established by previous decisions of a social security commissioner, the commissioner held that the absence continued to be deemed temporary until the expiration of a further 12 months. Only at the end of that time was it allowable that Mrs. Grayson's husband was no longer residing with her. Therefore, the allowance that she had been paid was not properly authorised.

The commissioner also said that he could find no special feature in the case to justify an exception to the rule because he thought that the husband was at Mrs. Grayson's house more often than she cared to admit. The case seems to me to be quite ridiculous in its application to a real case of what was obviously hardship, and some misery. If a husband deserts the matrimonial home, leaving his wife with a severely handicapped child to care for, and while contributing nothing to the expenses of the home chooses to visit it from time to time, it is surely wildly unfair on that account to penalise the wife and to insist on the repayment of the sum of money paid to her for looking after the child.

I do not doubt that the commissioner had his law right. He is no doubt bound by the authorities and precedents that he quoted. No appeal lies from him except on a point of law, and the time for appeal has expired, so the judicial application of the case has now ended. But the commissioner went further than deciding the law. He 1184 chose to reverse the findings of the tribunal on the facts and held that Mrs. Grayson had not, after all, used due care and diligence in avoiding the overpayment.

The Commissioner accepted that the husband may have, on his visits to the matrimonial home after his initial desertion, collected the mail and signed and cashed the allowance cheques himself. However, the Commissioner says: She knew what was going on and did nothing to bring the matter to the attention of the Department". That is assuming a standard of knowledge of cases of that kind which the ordinary, sensible and fair person would not assume. He went on: She acquiesced in what took place and for that reason she is (in the absence of due care and diligence) as much liable to repaying as if the payment had been made to her.

That is an astonishing conclusion that adds to the injustice of the case. I know that this case has been decided by what is officially an independent adjudicating authority over which the Minister has no power. However, surely an injustice such as this, which seems applicable to perhaps hundreds of similar cases of deserted wives, should not remain unremedied. At least it should be possible to remit the penalty imposed on Mrs. Grayson. How is it possible, in fairness, to require her to pay back such a large sum, or whatever sum is finally calculated on the basis of what she may have been entitled to and did not receive?

How is it possible to insist upon repayment in circumstances such as these? We are dealing with a case, as in so many cases in social security, of hardship, poverty and suffering. Yet the regulations apparently insist on repayment. It has been suggested to Mrs. Grayson that repayments should be made out of her widow's benefit. Goodness knows how long would it be possible for her to pay such a large sum out of her pension.

After all, it seems unfair, because the actual penalty was remitted by the appeal tribunal in the first instance. Therefore, this case having been taken further on what was in essence a point of law, it seems wrong to insist now that the position has been overturned by the social security commissioner and to demand a reversal of that finding arid the money paid to be paid back. It seems like victimisation. In those circumstances, I hope that the Minister can find some way to meet the justice of the case

§ The Under-Secretary of State for Health and Social Security (Mr. Tony Newton)

My hon. Friend the Member for Orpington (Mr. Stanbrook) has raised the subject of the rules governing invalid care allowance as they affect his constituent Mrs. Paulette Grayson. In his recent correspondence on this matter with my hon. Friend the Minister for Social Security, he has again demonstrated his concern for his constituent's interests and this debate is further evidence of that concern. If I may say so, Mrs. Grayson is very lucky in her Member of Parliament.

Before turning to the particular instance of Mrs. Grayson's case, I should make clear the general situation relating to married women and their entitlement to invalid care allowance.

ICA was introduced in 1976 as a non-contributory social security benefit for someone who stays at home to care for a severely disabled person. It was intended to provide for those who were thought to be most likely to 1185 be the sole provider for themselves or their families. For this reason, a married woman who resides with or is supported by her husband is not eligible. There have been representations that all married women should be able to receive the benefit, but such an extension could cost at least £40 million per year. It therefore stands as one of a number of competing priorities in the disablement field which the Government will consider as new resources become available. Meanwhile, we can deal only with the law as it is.

I come now to the particular case raised by my hon. Friend. As he has said, Mrs. Grayson has a severely handicapped son and claimed ICA on 3 May 1976. She stated on the claim form that her name was Paulette Grayson and indicated that she was married but separated from her husband. In response to a written inquiry from the Department's offices at Blackpool, Mrs. Grayson said that she was not receiving any maintenance from her husband. On the basis of those statements, ICA was paid to Mrs. Grayson with effect from 5 July 1976, the date from which ICA first became payable after its introduction.

In 1978 it was discovered that Mrs. Grayson, having divorced Mr. Grayson, had married a Mr. Christie on 24 December 1975—that is, just over four months before claiming ICA as Mrs. Grayson. As a result of subsequent inquiries, the insurance officer—who, as I must emphasise, and as my hon. Friend has recognised, is a statutory authority independent of Ministers—decided on 15 April 1980 that Mrs. Grayson was not entitled to ICA for the period July 1976 to 12 November 1978—Mr. Christie having died on 9 November 1978—because during that period she had been married to and was residing with Mr. Christie. The insurance officer also decided that an overpayment of ICA of £901.50 had been made for the period 5 July 1976 to 14 May 1978, the last date on which ICA had been paid. The insurance officer further decided that repayment was required because Mrs. Grayson had not used due care and diligence, which is what the law asks, to avoid the overpayment.

As my hon. Friend said, Mrs. Grayson then exercised her right to appeal to a local tribunal against the decision of the insurance officer, and on 8 December 1980 the tribunal upheld the decision that Mrs. Grayson was not entitled to the benefit for the period in question. The tribunal also decided, on a majority decision, that repayment of the overpayment was not required because in their view Mrs. Grayson had exercised due care and diligence—in other words, exactly as my hon. Friend described.

On 26 January 1981, the insurance officer appealed to the social security commissioner against the decision that repayment was not required. Unfortunately, Mrs. Grayson was inadvertently notified of the local tribunal's decision on a form that stated that the right of appeal should be exercised within 28 days. That form was not appropriate to the situation in which Mrs. Grayson found herself and the notification should have made it clear that an appeal could be made within three months of the tribunal's decision. It is regrettable that that happened.

The social security commissioner who heard the subsequent appeal commented that the notice issued by the tribunal, as well as being inappropriate, was misleading and that it was entirely understandable that Mrs. Grayson 1186 should have thought that after 28 days had elapsed without an appeal, she could not be required to repay £901.50. However, the commissioner also said that the slip on the part of the local tribunal did not preclude an appeal by the insurance officer.

The commissioner was able to consider whether an overpayment of benefit had occurred and, if so, whether repayment was required. As my hon. Friend said, Mrs. Grayson presented her own case before the commissioner. The outcome was that the commissioner decided that ICA was properly paid for the period 14 November 1977 to 14 May 1978 and, furthermore, that the allowance was payable for the period 15 May 1978 to 12 November 1978, for both periods on the ground that Mrs. Grayson was no longer residing with Mr. Christie.

The commissioner also decided that benefit amounting to £628.50 for the period 5 July 1976 to 13 November 1977 had been overpaid and that, as Mrs. Grayson had not exercised due care and diligence, that sum was repayable. However, as his decision also meant that benefit of £274.95 was payable for the period May to November 1978, the net result was that the amount due to be repaid was reduced to £353.55, compared with the original figure of over £900.

The fundamental issue in this case is whether Mrs. Grayson was not only married to, but residing with, Mr. Christie when she claimed ICA in May 1976 and subsequently. Mrs. Grayson has claimed that Mr. Christie left the household a few months after their marriage in December 1975. However, I emphasise that none of the adjudicating authorities—the insurance officer, the appeal tribunal or the social security commissioner—was able to accept that Mrs. Grayson had ceased to reside with Mr. Christie when she claimed ICA.

The insurance officer decided that the couple had been residing together for the whole period for which ICA had been paid. The tribunal, after hearing Mrs. Grayson, confirmed that decision but decided that repayment was not required. The commissioner, to whom Mrs. Grayson presented her case at an oral hearing, decided that the couple were residing together until November 1976 when Mr. Christie went to live and work at a YMCA hostel. The commissioner further decided, in accordance with legal precedent, that the absence did not cease to be temporary until November 1977 and from that date Mrs. Grayson was no longer residing with Mr. Christie.

The decisions relating to the proper payment of the allowance and the extent to which repayment was required were made by the independent adjudicating authorities and, as my hon. Friend is aware, neither Ministers nor officers of the Department have the power to intervene in their decisions. I am sorry to disappoint my hon. Friend, but I cannot add anything on that point.

My hon. Friend wrote to my hon. Friend the Minister for Social Security in December 1981 and suggested that, where an appeal goes to a higher court or tribunal purely on a point of law, it is usual to provide that the individual does not suffer if the result of the appeal is to reverse the effect of a finding as to the facts. I would not necessarily accept that proposition, but in any event this was not a case of the kind in which the right of appeal existed only in relation to a question of law, or in which the appellate body had to consider only a particular point of law. The commissioner could and did regard the whole matter as being before him.

1187 My hon. Friend will realise from what I have said that it is not in my power to alter the legal requirement for Mrs. Grayson to repay the sum now being asked. I hope that he will also accept, however, that I am far from lacking sympathy with Mrs. Grayson's position. On the contrary, I considered it with anxious care. No one who looks at the history of the difficulties with which she has contended in the past few years could do otherwise. I cannot override the legal decisions that have been made. What I can and 1188 will do is to ask the invalid care unit to give every consideration to any reasonable offer for the terms of repayment which Mrs. Grayson is able to make. I know that that will not remove all the difficulties, but I hope that it will at least do something to help. I am grateful to my hon. Friend for having brought this case to our attention.