Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC CSC 5/94 (9 June 1994)

 


CSC 5/94

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

Appeal to the Child Support Commissioner

on a question of law from the decision of

Belfast Child Support Appeal Tribunal

dated 21 October 1993

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. In this case the Child Support Officer appeals against the decision of Belfast Child Support Appeal Tribunal confirming the amount of child support maintenance payable by the absent parent, (Mr C...), from 26 June 1993 to 9 August 1993, and directing that from 9 August 1993 the calculation of such maintenance should be reviewed.
2. Briefly, the background to the appeal is that, at Mr C...'s request, the first maintenance assessment dated 26 June 1993 was the subject of a review under the provisions of Article 20(6) of the Child Support (Northern Ireland) Order 1991, (the Order). A review under that Article is conducted by a Child Support Officer who played no part in taking the first decision, and is commonly referred to as "a second-tier review decision." Being still dissatisfied with the assessment by way of second-tier review decision dated 7 September 1993, Mr C... appealed to the Child Support Appeal Tribunal. At the hearing on 21 October 1993 the Tribunal dealt fully with Mr C...'s objections to the revised assessment and confirmed the amount of maintenance payable from 26 June 1993 to 9 August 1993. It had, however, been stated in the Child Support Officer's submission to the Appeal Tribunal that from 9 August 1993 Mrs C... was no longer receiving income support. In the light of this information the Tribunal held that there had been a relevant change of circumstances which necessitated a reassessment of the amount of child support maintenance payable from that date.
3. In accordance with regulation 13(4) of the Child Support Appeal Tribunal (Procedure) Regulations (Northern Ireland) 1993, the Child Support Officer to whom the case was referred applied to the Tribunal for clarification of the direction that "A review of child support maintenance should be carried out from 9 August 1993 taking into account the fact that Mrs C... is no longer entitled to income support from that date." It was said that the legislation provided for the effects of review to be different depending upon the provision under which it was carried out, and clarification was requested of the provision which was intended to apply to the review which the Tribunal had directed.
4. The response to the Child Support Officer's application for clarification of the Tribunal's decision was as follows:-

"The Tribunal has an inherent jurisdiction to order a review due to a

change in circumstance between the date of decision appealed against

and the date of hearing."

5. The present appeal by the Child Support Officer concerns the Appeal Tribunal's decision and direction that the child support maintenance payable in the case should be reassessed because of a relevant change of circumstances from 9 August 1993. It was submitted that it was inadequate to state that the Tribunal had an inherent jurisdiction without referring to the relevant legislation. It was further pointed out that in this instance the change of circumstances in question occurred prior to, not after, the date of the decision appealed against, and that article 20(10) of the Order provides for such an eventuality in the following terms:-

"In making a maintenance assessment by virtue of paragraph (9) a

Child Support Officer shall, if he is aware of any material change

of circumstance since the decision being reviewed was taken, take

account of that change of circumstance in making the assessment."

6. In his written observations on the appeal Mr C... supported the view that the amount of maintenance should be reassessed from 9 August 1993. It would seem that he was under the impression that the granting of leave to appeal meant that the Tribunal Chairman had changed his decision, and an explanation was requested.
7. I held an oral hearing which was attended by Mr C.... The Child Support Officer was represented by Mrs Fearon, Solicitor.

At the outset I explained to Mr C... that the granting of leave to appeal was in no sense an indication that the Tribunal Chairman had changed his mind about the case. I further commented that the grounds of the appeal were somewhat technical and that I doubted if anyone disputed that there should be a reassessment of the maintenance payable as from 9 August 1993. Mrs Fearon confirmed that that was indeed the position. It was accepted that there had been a material change of circumstances on that date and the purpose of the appeal was to obtain guidance on the procedure under which the recalculation of the maintenance was to be carried out. Some Child Support Officers were, she said, experiencing difficulty in applying the new legislation and in this instance it seemed that the provisions of Article 20 sub-paragraph (10) of the Order had been overlooked. Mrs Fearon also requested me to consider whether or not the Tribunal had an inherent jurisdiction to order a review due to a change of circumstances between the date of a decision appealed against and the date of the appeal hearing.

8. Before dealing with the specific points which arise in this case it might be helpful if I were to set out the basic procedure governing appeals against maintenance assessments in child support cases.

As I understand it the intention is that, before any appeal can be initiated, a person dissatisfied with a maintenance assessment must first apply for a review under the provisions of article 20 of the Order. Unless there are no reasonable grounds for supposing that the original assessment was wrong, a review is carried out by a different Child Support Officer from the one who made the first decision. Such a review could be regarded as a form of internal appeal, and no doubt is intended to reduce the burden on Appeal Tribunals by filtering out the cases in which the more obvious errors have occurred. As stated in paragraph 2 above, a review by a different Child Support Officer under article 20 of the Order is commonly referred to as a "second tier review decision" and is quite distinct from a review which might be carried out under articles 18, 19 or 21 by the Child Support Officer who made the original assessment and which would accordingly be "a first tier review decision". By the terms of article 22 of the Order the right of appeal to a Child Support Appeal Tribunal is confined to cases in which there has already been a second tier review decision under article 20, or in which an application for such a second tier review decision has been refused. There is not, in relation to child support cases any provision corresponding to section 34(1) of the Social Security Administration (Northern Ireland) Act 1992, which, in social security cases enables an Appeal Tribunal to proceed to determine a question arising for the first time in the course of an appeal, notwithstanding that it has not been considered by an Adjudication Officer.

9. Turning now to the facts of the present case, it is accepted on all sides that there was a material change of circumstances in that on 9 August 1993 income support ceased to become payable to Mrs C..., and that it was therefore appropriate that the maintenance payable by Mr C... should be reassessed from that date. There was a suggestion in the Child Support Officer's grounds of appeal that the Tribunal had failed to make relevant findings of fact as to whether the change of circumstances was material; but reading the whole of the Tribunal's decision I take the view that the record was adequate in this respect. It is right to say that the reference in the Tribunal's decision is to a relevant rather than a material change of circumstances; but the Tribunal must be taken to have been aware that in order to be relevant, a change of circumstances had to be material. There was a specific finding of the ending of income support on 9 August 1993 and a statement in the "reasons for decision" that there was a relevant change of circumstances from the date. In my opinion those statements, taken together, represent a finding that the cessation of income support on 9 August 1993 was a material change of circumstances. In the light of that finding I agree that the Tribunal were right to direct the recalculation of child support maintenance from 9 August 1993. They erred in law, however, in failing to identify the procedure under which such recalculation was to be carried out, and in subsequently relying upon an inherent jurisdiction as authority for their direction. As pointed out, the change of circumstances occurred before the date of the decision appealed against and if the Child Support Officer was aware of it his proper course was to take it into account in conducting his second tier review decision under article 20 of the Order:- (see sub-paragraph (10)). If he was not aware of it when the second tier decision was made, it had no relevance to the appeal; but would subsequently have given rise to a first tier review under article 21 of the Order at the instigation of the Child Support Officer. All would have been well if the Tribunal had made it clear in their decision and direction that the Child Support Officer had erred in not applying the provisions of article 20(10) of the Order. Equally, the matter could have been put right if, in answer to the request for further directions, the Tribunal had replied that the review of the child support maintenance which they had directed, was to be carried out under the provisions of article 20 of the Order with particular reference to sub-paragraph (10). As the Child Support Officer has stated, the legislation provides for the effects of a review to be different depending upon the provisions under which it is carried out.
10. I further consider that the Tribunal erred in law in claiming an inherent jurisdiction to order a review due to a change of circumstances between the date of a decision appealed against and the date of hearing of the appeal. Article 19 of the Order makes provision for such an eventuality, and any review carried out thereunder would be a first tier review which would have to be subjected to second tier review under article 20, (or a refusal thereof), before there could be an appeal under article 22 to the Child Support Appeal Tribunal. As has been pointed out there is no provision in the Child Support legislation corresponding to section 34 of the Social Security Administration (Northern Ireland) Act 1992, and indeed, the "internal appeal" procedure by way of second tier review decision means that any such corresponding provision would be inappropriate.
11. For the reasons given in paragraphs 9 and 10 above I allow this appeal and set aside the decision of the Appeal Tribunal. At the oral hearing I raised the question of the course which I should adopt in the exercise of my powers under article 25(3) of the Order. As I mentioned, the only uncertain feature of the case is the date on which the Child Support Officer first became aware of the material change of circumstances which occurred on 9 August 1993. There would in my opinion be no point in referring the case to another Appeal Tribunal to investigate that particular matter, and in the circumstances I am prepared to assume that the Adjudication Officer would not have drawn the Tribunal's attention to the fact that Mrs C... ceased to be in receipt of income support from 9 August 1993, if he had not been aware of it before he made his second tier review decision on 7 September 1993. I consider it expedient to make a finding to that effect. I accordingly do so and my decision is as follows:-

(a) That the child support maintenance payable from 26 June 1993 to 9 August 1993 is confirmed at the rate of £41.09 per week.

(b) A review of the child support maintenance payable from 9 August 1993 should be carried out under the provisions of article 20 of the Order, taking into account the fact that Mrs C... was no longer entitled to income support from that date.

(Signed): R. R. Chambers

CHIEF COMMISSIONER

9 June 1994