England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE SSTRI 97/0688/1

Royal Courts of Justice

Strand

London WC2

Friday, 5 June 1998

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE MILLETT

LORD JUSTICE MUMMERY

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SECRETARY OF STATE FOR SOCIAL SECURITY & ANR

APPELLANT

- v -

HARMON & ANR

DEFENDANT/RESPONDENT

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR M SHAW [MISS K GALLAFENT - judgment ] (Instructed by Mr PKJ Thompson, Solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Appellant

MR N MOSTYN QC (Instructed by Messrs Cripps Harries Hall, Kent TN1 1EN) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

IN THE SUPREME COURT OF JUDICATURE SSTRI 97/0689/1

Royal Courts of Justice

Strand

London WC2

Friday, 5 June 1998

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE MILLETT

LORD JUSTICE MUMMERY

- - - - - -

SECRETARY OF STATE FOR SOCIAL SECURITY & ANR

APPELLANT

- v -

CARTER & ANR

DEFENDANT/RESPONDENT

- - - - - -

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

- - - - - -

MR M SHAW [MS K GALLAFENT - judgment ] (Instructed by Mr PKJ Thompson, Solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Appellant

The Respondent did not attend and was not represented

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IN THE SUPREME COURT OF JUDICATURE SSTRI 97/0690/1

Royal Courts of Justice

Strand

London WC2

Friday, 5 June 1998

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE MILLETT

LORD JUSTICE MUMMERY

- - - - - -

SECRETARY OF STATE FOR SOCIAL SECURITY & ANR

APPELLANT

- v -

COCKS & ANR

DEFENDANT/RESPONDENT

- - - - - -

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

- - - - - -

MR M SHAW [MS K GALLAFENT - judgment ] (Instructed by Mr PKJ Thompson, Solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Appellant

The Respondent did not attend and was not represented

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Friday, 5 June 1998

J U D G M E N T

LORD JUSTICE MILLETT: These three conjoined appeals are brought by the Secretary of State for Social Security with the leave of Simon Brown LJ from three decisions of the Child Support Commissioner (Mr Commissioner Rice in the cases of Cocks and Carter; Mr Commissioner Angus in the Case of Harmon). All the decisions were in favour of the absent parent. Mr Commissioner Rice followed an earlier decision of his own in Baverstock, and Mr Commissioner Angus followed the decisions of Mr Commissioner Rice. The absent parents were all unrepresented below. In order to ensure that the appeals should be fully argued before us, the Secretary of State has agreed to pay the costs of the absent parents in this Court on an indemnity basis in any event. Only Mr Harmon has taken advantage of this offer, and we are indebted to Mr Mostyn QC for the careful and thorough argument which he has presented, technically on Mr Harmon's behalf, but in reality for all three respondents.

The three appeals all raise the same short but important question, which is concerned with the relationship between the Child Maintenance Support system and the Social Security benefit system. In order that the question may be understood, it is sufficient in the first instance to refer to the terms of two sections of the Child Support Act 1991 ("the Act") as amended.

Section 4(1):

"A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child, or any of those children."

Subsection (10) of the section, inserted by section 18(1) of the Child Support Act 1995 provides:

"No application may be made at any time under this section with respect to a qualifying child or any qualifying children if -

...

(b) benefit is being paid to, or in respect of, a parent with care of that child or those children."

Benefit is defined by subsection (11).

Section 6(1):

"Where income support, ... family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if -

(a) she is a person with care of the child; and

(b) she is required to do so by the Secretary of State,

authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent.

...

(5) That authorisation shall be given, without reasonable delay, by completing and returning to the Secretary of State an application -

(a) for the making of a maintenance assessment with respect to the qualifying child or qualifying children; and

(b) for the Secretary of State to take action under this Act to recover, on her behalf, the amount of child support maintenance so assessed.

(6) Such an application shall be made on a form ('a maintenance application form') provided by the Secretary of State."

For convenience I shall in this judgment adopt the statutory language and refer to the parent with care as if she were always the mother, and the absent parent as if he were always the father. Of course that is not necessarily the case. The parent with care can equally well be the father, and the absent parent can equally well be the mother.

It will be seen that a parent with care who is not in receipt of benefit may make her own application for child support maintenance under section 4. If she does so, she remains in charge of the procedure at every stage. Where she is in receipt of benefit, however, she may not make an application under section 4 but may be required by the Secretary of State to authorise him to recover child support maintenance on her behalf in respect of a qualifying child from the absent parent. If such a requirement is made, the person with care is obliged to give the requisite authority to the Secretary of State. If she does not do so, the child support officer may in due course make a reduced benefit direction under section 46. The purpose of this statutory machinery is to prevent a parent who is in receipt of benefit from leaving financial responsibility for the child with the state instead of claiming child maintenance support from the absent parent. The application is still made by the parent with care, but it is made at the instance of the Secretary of State, who takes responsibility for the entire procedure. If the application is successful and the Secretary of State recovers child support maintenance from the absent parent, the benefit of the payment enures to the Secretary of State (that is to say, the taxpayer); for although the social security benefit is not in practice reduced by the amount of child maintenance support, any maintenance payments made by an absent parent collected by the Secretary of State may be retained by him: see section 74A of the Social Security Administration Act 1992, inserted by section 25 of the Child Support Act 1995.

Section 6(1) attaches two conditions precedent to the ability of the parent with care to give the requisite authority to the Secretary of State. The two conditions which must be satisfied before the Secretary of State can be authorised to take action to recover child maintenance support from the absent parent are, first, that the person giving the requisite authority is the parent with care of a qualifying child; and secondly, that income support or other benefit of a prescribed kind is either being claimed by or in respect of the parent with care, or is being paid to or in respect of her. The principal question in these appeals is whether there is implicit in section 6(1) a further condition that the benefit in question is benefit to which the parent with care is entitled.

Once an effective application for child support maintenance has been made, the procedure is for the Secretary of State to give notice of the application to the absent parent and send him a maintenance inquiry form. The absent parent is required to complete the form and return it to the Secretary of State. If he does so within four weeks, the effective date (which is the date from which his liability if any to pay child support maintenance runs) is eight weeks after the receipt of the maintenance inquiry form. If he fails to complete and return the form within the four weeks, then the effective date is the date on which he received the form. Thus he has an incentive to complete and return the form within the time limited, since this delays the date from which he can be required to pay child support maintenance.

Once the form is returned and has been considered by the Secretary of State, the application is referred by him to a child support officer, and it is his duty to deal with the application in accordance with the Act and the regulations made thereunder (see section 11). The child support officer is a judicial or quasi-judicial officer who acts independently of the Secretary of State. Thereafter the Secretary of State has no further part to play in the assessment procedure, although he comes back into the picture when it comes to collection.

The assessment is made by the child support officer in accordance with schedule 1 to the Act. For this purpose it is necessary for him to determine, amongst other things, the assessable income of each parent. Where, however, either parent is in receipt of prescribed benefit, he or she is taken to have no assessable income: see paragraph 5(4) of the first schedule to the Act which provides:

"Where income support or any other benefit of a prescribed kind is paid to or in respect of a parent who is an absent parent or a person with care that parent shall, for the purposes of this Schedule, be taken to have no assessable income."

It will be seen that the language of paragraph 5(4) of the first schedule is closely similar to that of section 6(1) of the Act itself, with two differences: first, paragraph 5(4) applies to the absent parent as well as to the parent with care; and secondly, paragraph 5(4) omits any reference to "claim". Section 17 contain provisions which enable the absent parent to apply for the amount of the assessment to be reviewed when there is change of circumstances or otherwise. Section 18 provides review in other circumstances, and sections 20 and 24 provide for appeals, first from the child support officer to the child support appeal tribunal, and thence (on a question of law only) to the child support commissioner.

Once the maintenance assessment has been made by the child support officer, the absent parent is liable to pay maintenance as from the effective date. In the normal way, the effective date will have preceded the making of the assessment, so there will inevitably be some arrears of child support maintenance for the absent parent to pay. It is important to appreciate that, once the maintenance assessment is made, the Secretary of State is able to enforce the collection of the arrears and periodic payments, and there is no provision in the Act or the regulations made under the Act for any stay of enforcement during any review or appellate process.

In each of the cases with which these appeals are concerned the parent with care was the mother and the respondent father was the absent parent. The mother was in receipt of income support. She was required by the Secretary of State under section 6(1) to authorise him to take steps to recover child support maintenance from the respondent, and she did so. The statutory machinery was duly put in motion. In due course each of the respondents contended that the mother was not entitled to income support, and challenged the validity of the section 6 procedure.

Mr Cocks applied under section 25 of the Social Security Administration Act 1992 as amended to the social security authorities for the decision to pay income support to the mother to be reviewed, but his application was unsuccessful. Child maintenance support assessments were made by the child support officer in all three cases. Each of the respondents appealed to the child support appeal tribunal. Mr Cocks and Mr Carter relied on the terms of section 6(1) and argued that no assessment at all should have been made because the parent with care was not entitled to income support, with the result that the whole process was invalid.

In each case the tribunal held in effect that it was sufficient that the parent with care was in receipt of income support, whether she was entitled to it or not. Mr Harmon took a slightly different line; he relied on paragraph 5(4) of the first schedule to the Act and contended that the assessment was incorrect because the parent with care was in receipt of income support to which she was not entitled, and accordingly her income should have been assessed and not simply taken as nil. The tribunal rejected this contention also. All three respondents appealed to the child support commissioner, who allowed the appeals.

Mr Harmon succeeded in having an adjustment made to his housing costs, from which the Secretary of State does not appeal, but before the commissioner Mr Harmon abandoned his claim that paragraph 5(4) of the first schedule had no application. Mr Commissioner Angus nevertheless dealt with the point. On the relevant questions, therefore, all three commissioners ruled in favour of the absent parent.

In each case the commissioner held as follows:

1. The authority of the Secretary of State to take action under section 6(1) to recover child maintenance support from the absent parent depends on whether the parent with care is claiming or being paid income support or other prescribed benefit to which he or she is lawfully entitled.

2. The social security adjudication officer has exclusive jurisdiction to determine whether income support or other benefit is properly payable, and the child support authorities are bound by his decision.

3. Where the absent parent has substantial grounds for contending that income support or other benefit should not be being paid to the parent with care, the child support officer or the child support appellate authorities on appeal from the child support officer have a discretion to defer the assessment in the one case, or to adjourn consideration of the assessment in the other, until the issue has been resolved by the social security authorities.

4. The failure by the tribunal even to consider whether to adjourn the appeals in Mr Cocks and Mr Carter's case to allow application to be made to the social security authorities to review the payment of income support to the parent with care was a breach of natural justice and an error of law which the commissioner should correct.

5. The cases should be remitted to the tribunal to consider whether to grant an adjournment for the stated purpose.

6. If the social security authorities in due course found that income support was not properly payable to the parent with care, then the child support appeal tribunal could, on a resumed hearing of the adjourned appeal, remit the case to the child support officer with a direction to cancel the assessment.

The Secretary of State has appealed all three cases to this court. It is a curiosity that the only case in which the respondent is represented before us (that is to say Mr Harmon's case) the point was expressly abandoned by him before the commissioner. But Mr Commissioner Angus dealt with the point in his decision and followed the earlier decisions, though in view of Mr Harmon's attitude he made no order in relation to the matter.

We have been invited to consider the appeals as a matter of principle without regard to the technicality to which I have referred, and we have agreed to do so.

I should now refer briefly to the reasoning of Mr Commissioner Rice in Baverstock to explain the route by which he arrived at his decision. He said:

"But the crucial issue in this case was whether or not income support was at the relevant time being paid to the parent with care within section 6(1). If it was, then reliance could be placed on section 6(1), and there was jurisdiction to make an assessment order. But if income support was not being paid, there was no such jurisdiction.

Ms Thomas [for the Secretary of State] initially contended that there was no great problem. It was an undoubted fact that income support was being paid to the parent with care, and that was the end of the matter. However, in my judgment, that was too simplistic an approach. It was not enough, in my view, for it to be shown that the payment was actually made; it had also to be shown that the payment was properly made."

The learned commissioner then referred to other regulations under other statutes preceding the enactment of the 1991 Act, and showed that in some contexts "payment" means "lawful payment". He also referred to section 13(2) of the Social Security Administration Act 1992 which expressly deals with the situation where the benefit has been paid to the wrong person.

The commissioner continued:

"Ms Thomas countered by saying that, even if this was so, income support was in this instance being paid lawfully. The adjudication officer had investigated the claim for this particular benefit, and had considered, rightly or wrongly, on the evidence before him, that the claimant was entitled. This was a matter which fell for determination in accordance with the social security legislation. It was not something which the child support adjudicating authorities could challenge. Accordingly, the propriety of the action on the part of the adjudication officer could not be questioned in the child support jurisdiction, and it followed that the payment to the parent with care had, for child support purposes, to be deemed lawful. I see the force of that submission."

Later the commissioner said:

"Manifestly, the child support tribunal could not decide this particular matter [entitlement to income support]. They had no jurisdiction. The evidence which I understand the absent parent brought to the hearing could only have been evaluated by the social security adjudication officer. In those circumstances, I think that the proper course was for the tribunal to have adjourned the hearing to enable the matter to be gone into again by the adjudication officer, in the light of the fresh evidence, and then to have reconvened to consider the appeal after the adjudication officer had made his decision... In failing to adopt this course, I think that the tribunal erred in point of law. There was a breach of natural justice."

In a later case, the commissioner diluted his earlier ruling by making it clear that the tribunal had a discretion in the matter. They were not bound to grant an adjournment. They had to consider whether the evidence tendered by the absent parent was sufficiently compelling to justify such a course, but they were bound to consider whether to grant an adjournment or not.

In the case of Cocks, Mr Commissioner Rice expanded on his reasoning for holding that the word "paid" meant "lawfully paid", by saying that he was not persuaded that it was necessary to read the word "lawfully" into the section when it was not there. He said:

"Parliament does not normally incorporate words which are otiose, and in my view, in the context of the relevant provision, 'paid' can only mean 'lawfully paid'."

The parties' respective skeleton arguments identify three issues for determination on this appeal. The first is described as the "jurisdiction issue"; the second as the "adjournment issue", and the third as the "payment issue". For reasons which will appear shortly, the appeals effectively turn on the third of those issues.

The jurisdiction issue raises the question whether the child support officer, the tribunal or the commissioner had jurisdiction to question the validity of the Secretary of State's decision under section 6(1) of the Act to require a parent with care to authorise him to take action under the Act to recover child support maintenance from an absent parent. The Secretary of State has stressed that the Act draws a clear division of functions between the Secretary of State on the one hand and the child support officer on the other. In section 6 cases, the division is made clear by a distinct two-stage process. There is, first, the imposition on a parent with care of a requirement to authorise the Secretary of State to make an application for child support maintenance, the acceptance of such an application, and its reference to the child support officer. All that is done by the Secretary of State under section 6 and section 11(1). The second stage is the calculation of the amount of maintenance payable, and that is done, not by the Secretary of State, but by an independent child support officer, under sections 11 and 12 and schedule 1 to the Act.

The Secretary of State submits that the importance of a division of those functions for present purposes is that the decisions of the Secretary of State at the first stage are not appealable, but the decisions of the child support officer can be appealed to the tribunal and the commissioner. The statutory machinery however does not provide power for the tribunal and the commissioner to do anything beyond reviewing the assessment made by the child support officer. They cannot go outside the scope of the functions which are entrusted by the Act to the child support officer. Since the jurisdiction of the appellate authorities is confined to that of the child support officer and it is clear that he has no power to question or review the decision of the Secretary of State which led to the referral of the application to him, then it follows that none of the appellate bodies have any power to decide the validity of the procedure which is being invoked.

These submissions have not been challenged by Mr Mostyn QC. In his careful skeleton argument he accepts that the decision-making process under section 6(1) of the Act is vested solely in the Secretary of State, and that neither the child support officer nor the child support appeal tribunal or the child support commissioner has any jurisdiction to question such a decision. Mr Mostyn accepts that to the extent that any of the commissioners suggested otherwise, their reasoning cannot be supported. As I read their decisions, however, none of them suggested otherwise.

But this brings one immediately to the adjournment issue, because Mr Mostyn submits that it is necessary to consider what is really meant by the term "question a decision". He says that it means that neither the child support officer nor the tribunal nor the commissioner can conclusively decide that the claim for income support is fraudulently made or that the parent with care is not entitled to the benefit claimed by her or paid to her. But this does not mean that the tribunal or the commissioner could not adjourn an appeal in order to enable the appropriate authorities to investigate the issue and decide whether the parent with care is entitled to the benefit in question. The Secretary of State's response is to point out that the effect of the commissioners' decisions is that, whenever an absent parent alleges that the parent with care is not entitled to benefit and produces material not previously considered by the social security adjudication officer, the tribunal must consider whether to exercise its discretion to adjourn the appeal. The tribunal will therefore have to consider whether there is a sufficiently strong case for thinking that the entitlement to benefit might be successfully challenged, and this necessary involves some, albeit preliminary, assessment of the strength of the claim that the parent with care is not entitled to the relevant benefit.

If the tribunal has no power to reach a concluded view about the entitled of a parent with care to benefit, the Secretary of State submits, then the tribunal does not have power to reach a preliminary view either. In fact, the Secretary of State has told us that he is not particularly troubled by the effect of the commissioners' decisions on the proceedings before the tribunal since, even if the tribunal adjourns consideration of the appeal, this does not stay enforcement of the payment of child support maintenance in the meantime. But he is extremely concerned by the prospective effect of the decisions on the position before the child support officer, since what applies to the appellate authorities must equally apply to the child support officer, and the Secretary of State would be concerned if the child support officer were to consider it necessary to adjourn or defer making the assessment in order to allow further time for the entitlement of the parent with care to benefit to be considered by the social security authorities. This is because, while the effective date would not be affected, any delay in the enforcement and collection of periodic payments would increase the amount of arrears and make it more likely that irrecoverable arrears would arise.

Seeing the force of this concern, Mr Mostyn has submitted that the considerations which a child support officer would have to bear in mind would be different from those which the tribunal would have to bear in mind or an application for deferment or adjournment. The child support officer would have to consider whether he would be justified in deferring making the assessment and thus delaying enforcement, whereas no such consideration would be relevant to the decision of the tribunal. Accordingly, Mr Mostyn accepts that a child support officer should only defer the assessment in exceptional circumstances, whereas the tribunal should be more ready to adjourn where cogent and compelling evidence is tendered by the absent parent which merits consideration by the social security authorities. There was considerable debate before us as to the appropriate threshold which should be adopted in the different circumstances.

However, it is the third or payment issue in my view which is decisive of the present case. The issue is whether, for the purposes of section 6(1) and paragraph 5(4) of the first schedule to the Act, the benefit in question must be benefit to which the parent with care is entitled, or whether it is sufficient that the benefit is actually being claimed or paid.

The child support officer has power to defer making the assessment, and the tribunal has jurisdiction to adjourn consideration of an assessment already made, in order to allow the social security authorities to review the decision to pay benefit to the parent with care if, but only if, entitlement of the parent with care to income support is a matter which is relevant to the discharge of their respective functions. This is so if, but only if, as the commissioners have held, "paid" or "claim", means "lawfully or properly paid or claimed", as otherwise the question whether the benefit is benefit to which the parent with care is entitled is not relevant to the discharge of his functions by the child support officer or to the questions which fall to be considered by the appellate bodies on appeal from his assessment.

As appears from the extracts of his decisions which I have read, Mr Commissioner Rice was of opinion (i) that the primary meaning of the word "paid" is "lawfully paid", and (ii) that in the context of the Act the word "paid" could have no other meaning. I respectfully disagree with both these conclusions. In my judgment, the primary meaning of the word "paid" is "actually paid". But I acknowledge that this primary meaning will readily yield to the context. In my view however, the statutory context demonstrates that the word "paid" in section 6(1) and in paragraph 5(4) of the first schedule to the Act means "actually paid". My reasons are as follows.

1. It is clear that so far as payment is concerned the same test is adopted in section 6(1) and 4(1)(b). Where benefit is claimed or paid, whatever this may mean, then (i) the parent with care may not make her own application but (ii) the Secretary of State may require her to authorise him to do so. The two procedures are obviously both mutually exclusive and exhaustive. Every case must fall into one or the other. Either benefit is claimed or paid or it is not. Accordingly if "paid" means "lawfully paid" in section 6, it must do so in section 4(10)(b). But this, in my view, produces a nonsensical result. The parent with care cannot claim or be paid income support on the basis that she is entitled to it, and at the same time decline to authorise the Secretary of State to recover child maintenance support under section 6 on the basis that she is not. By making a claim to benefit and a fortiori by receiving it, she automatically takes herself out of section 4 and into section 6. It is in my view not insignificant that in section 6 the relevant condition precedent is not attached to the power of the Secretary of State to require the parent with care to confer the necessary authority upon him, it is a condition precedent to the power of the parent with care to authorise the Secretary of State to act. She is the person who must consider whether to apply under section 4 or ask the Secretary of State to apply under section 6. She knows whether she has made a claim or is in receipt of benefit. But (unless she has made a fraudulent claim) she cannot know whether she is entitled to benefit, though if she has acted honestly she will consider that she is.

2. Section 6(1) refers to benefit being claimed by or in respect of the parent of a qualifying child as well as benefit being paid to or in respect of her. This shows that Parliament intended the section 6 procedure to be set in motion before the claimant's entitlement to benefit has been determined. This, to my mind, demonstrates conclusively that the invocation of the section 6 procedure cannot depend upon the validity of the claim. It is true that, as Mr Mostyn pointed out, where the child support officer is required to make the assessment before the claim to benefit has been determined, he cannot rely upon paragraph 5(4) of the first schedule, to disregard the claimant's income, for paragraph 5(4) refers to payment and not to claims. But that to my mind takes the matter no further. The position before the child support officer is no different from that which would obtain if the parent with care had not claimed benefit and was proceeding under section 4.

3. If the respondents' argument is correct, then every step taken under section 6(1) falls if the parent with care is not entitled to the benefit which she has claimed or is being paid. It is not, as the commissioners seem to have thought, merely a case of incorrect assessment having been made under paragraph 5(4). The Secretary of State's authority to take action to recover child support maintenance, which is derived from the parent with care, together with the service of the maintenance inquiry form and his reference to the child support officer, must all be set aside since they are all ultimately subject to the same condition precedent. The result is, if the respondents' argument is correct, that there is no effective date and no liability on the part of the absent parent to pay child support maintenance at all. The parent with care on the other hand will be entitled to make her own application under section 4 and will always have been entitled to do so, but there is no means (at this stage) by which the parent with care can have the section 6 application treated as if it had been made by her under section 4. There is machinery for doing this at a much earlier stage, but that will have been long since past. Accordingly, if the respondents' arguments are correct and on the adjourned hearing the tribunal discovers that payment of income support has been cancelled, then there is no means by which the absent parent can be required to pay child support maintenance until the parent with care makes her own application under section 4 and a new effective date is obtained. Thus the consequence of holding the section 6 application to be invalid is to deprive the qualifying children of maintenance by the absent parent, and to confer upon him an unjustified relief from all liability, which is a result which Parliament cannot to my mind conceivably have intended.

4. Whether the benefit is paid within the meaning of section 6(1) and paragraph 5(4) to the parent with care, is relevant to the amount of maintenance payable by the absent parent, but it is mainly relevant to the question whether the maintenance is to be collected by the Secretary of State in order to recoup the cost of paying benefit to the parent with care. The cost to public funds and the corresponding need for recoupment by the Secretary of State on behalf of the taxpayer is the same whether or not the parent with care is entitled to the benefit which is being paid to her. Thus the statutory purpose behind section 6(1), far from requiring the word "paid" to be construed as being "lawfully or properly paid", in my judgment requires it to be construed as meaning "actually paid".

6. The absence of any statutory machinery to enable the child support authorities themselves to determine the eligibility of a parent with care to benefit, itself suggests that this is not a matter which affects either the procedure or the assessment of child support maintenance.

Not all these considerations are of the same weight, but they all point in the same direction, and I have been unable to discover any consideration which points in the other direction. Section 13(2) of the Social Security Administration Act 1992 is concerned with a different problem, that of preventing a situation from arising in which benefit is simultaneously payable to two claimants. This explains the language of the subsection. It provides no assistance in ascertaining the necessity of the statutory provisions under consideration in the present case.

Accordingly I am satisfied that section 4(10)(b) and 6(1) must be read in their primary signification. Whether the application may be made by the parent with care under section 4 or by the Secretary of State with the authority of the parent with care under section 6(1) depends on whether or not benefit is claimed by or in respect of the parent with care or is being paid to or in respect of her. It does not depend on whether the benefit in question is benefit to which she is entitled. This is a simple and straightforward test which can be applied with ease by the child support officer, and which need not delay the assessment or the collection of child support maintenance to which the absent parent is already liable.

Mr Mostyn I think recognised the force of these considerations and submitted that, even if this be so, the position under paragraph 5(4) is different. I cannot accept this submission. The power of the Secretary of State to refer the assessment of maintenance to the child support officer depends upon the fact that income support is claimed by, or paid to, the parent with care, not on whether she is entitled to it. The hypothesis upon which the child support officer makes the assessment is that the benefit is being claimed or paid. If it is being claimed but not yet being paid he is directed by the first schedule to assess the claimant's income. If it is being paid, he is directed to treat the claimant as having no assessable income. In other words, in assessing the claimant's assessable income, the child support officer proceeds on the same assumption, that benefit is being claimed or paid.

Accordingly, in my judgment, the appeal should be allowed; the decisions of the commissioners should be set aside; and the decisions of the tribunals should be reinstated, save that in the case of Mr Harmon the reference in the decision of the tribunal to housing costs of £67.11 per week should be amended to refer to housing costs of £67.11 per week from 20 October 1993 and £69.69 per week from 28 March 1994. There will be an order that the Secretary of State pay the costs of Mr Harmon of the appeal to this court on an indemnity basis, to be taxed if not agreed.

LORD JUSTICE MUMMERY: I agree.

LORD JUSTICE BELDAM: I also agree that the appeal should be allowed, and with the terms of the order which my Lord has proposed.

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