Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC CSC3/95 (9 May 2000)

[1995] NISSCSC CSC3/95 (9 May 2000)

 


Decision No: CSC3/95

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Appeal to the Child Support Commissioner

on a question of law from the decision of the

Ballymoney Child Support Appeal Tribunal

dated 16 August 1994

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the absent parent against a decision of a Child Support Appeal Tribunal and it comes with leave of the Chairman of that Tribunal.
2. I arranged a hearing at which the absent parent was present but was not represented. The Child Support Officer was represented by Mrs McCarron and the parent with care was also present but not represented. The child resides with his mother, the parent with care. The absent parent has remarried and is living with his new partner. The Child Support Agency assessed the father's liability for maintenance at £32.49 from 21 December 1993, and against that decision the father appealed and the Child Support Appeal Tribunal allowed his appeal and remitted the matter to the Child Support Officer and held that the maintenance of £24.00 was payable from and including 10 February 1994 for a period of 32 weeks.
3. The appellant sought leave to appeal on the grounds that the child stayed longer over the summer months with the father and he also had a 14 day continuous stay and also that his ex wife ran a catalogue book from which she received commission. The Chairman of the Tribunal granted leave on that basis.
4. At the hearing before me the absent parent argued that he was being over assessed for maintenance because the parent with care had not only Income Support but also had an income for looking after children in the afternoon and also from catalogue sales. He argued that the fact that he had the children most weekends was not taken into account.
5. Mrs McCarron on behalf of the Child Support Officer made a long submission prior to the hearing and I think it is helpful to set out it in detail as follows:-

"The appellant [...] (the absent parent) has given

as his grounds of appeal:

i. "The child [...] stayed longer over

the summer months And he also had a 14 day

contineous stay."

ii. "also my ex-wife runs a catalogue Book of which

she receives commission."

Ground I

I would submit that the tribunal were correct in determining that

the maintenance assessment made on 2nd tier review was correct.

The legislation provides for the situation where the care of a

qualifying child is shared.

Regulation 20(1) and 20(2) of the Child Support (Maintenance

Assessments and Special Cases) Regulations (Northern Ireland)

1992 says:-

"20.-(1) Where the circumstances of a case are that -

(a) two or more persons who do not live in the same

household each provide day to day care for the same

qualifying child; and

(b) at least one of those persons is a parent of that

child;

that case shall be treated as a special case for the purposes

of the Order.

(2) For the purposes of this case a parent who provides

day to day care for a child of his in the following

circumstances is to be treated as an absent parent for the

purposes of the Order and these regulations:-

(a) a parent who provides such care to a lesser extent

than the other parent, person or persons who provide

such care for the child in question;

(b) ..................".

The definition of day to day care is found in regulation 1 (2) of

the Child Support (Maintenance Assessments and Special Cases)

Regulations (Northern Ireland) 1992 which says -

"day to day care means care of not less than 2 nights

per week on average during ...

(a) the 12 month period ending with the relevant week;

or

(b) such other period, ending with the relevant week,

as in the opinion of the child support officer is

more representative of the current arrangements for

the care of the child in question;

and ....."

The above definition has been amended by The Child Support and

Income Support (Amendment) Regulations (Northern Ireland) 1995

from 18 April 1995 but does not effect this case.

The phrase "relevant week" which is mentioned in the definition of

day to day care is also defined in regulation 1(2) which says -

"relevant week" means -

(a) in relation to an application for child support

maintenance -

(i) .............;

(ii) in the case of a person to whom a

maintenance assessment enquiry form

is given or sent as the result of such

an application, the period of 7 days

immediately preceding the date on which

that form is given to him or, as the case

may be, the date on which it is treated as

having been sent to him under regulation

1(6)(b) of the Maintenance Assessment

Procedure Regulations ..."

The maintenance enquiry form was treated as sent to [the appellant] on

7 June 1993. Therefore the relevant week in [the appellant's] case is

the 31 May 1993 to 6 June 1993. The Department wrote to [the appellant] on 13 January 1994 and requested him to provide details of the nights when his son [...] stayed with him during the year ending 5 June 1993. [The appellant] replied on 19 January and stated that "their is

no set dates or times kept on this when [my son] asks to come and

stay with my wife and myself he comes it is usually both weekend

nights or sometimes longer" (pages 74 and 75 of submission). The

child support officer on second tier review decided that [the appellant]

had day to day care of [his son] for 2 nights. Neither the child

support officer or tribunal had evidence before them which indicated

that the child [...] stayed with [the appellant] during the periods

stated in [the appellant's] grounds of appeal. I cannot identify any

error in the tribunal decision on this issue.

GROUND II

Firstly I would submit that regardless of the fact that [the second respondent] (parent with care) may have an income from commission this has no bearing on the calculation of the maintenance assessment in this case because [the second respondent] is in receipt of income support and therefore is taken to have NIL assessable income by virtue of Schedule 1 paragraph 5(4).

Schedule 1 paragraph 5(4) of The Child Support (Northern Ireland)

Order 1991 says -

"(4) 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."

Secondly I would submit that the issue of [the second respondent] having an income from commission was not considered by a child support

officer on second tier review and therefore would have been outside

the jurisdiction of the tribunal. Thirdly, this issue was not

raised before or considered by the appeal tribunal. For all these

reasons I would submit that there is no merit in this ground of

appeal. ..."

6. I have considered all the arguments in this case and the relevant law which is set out above. I accept the submission on behalf of the Child Support Officer that none of the grounds cited by the absent parent are valid and that there was not sufficient evidence relating to when the child stayed with him. In addition, the other incomes which the parent with care is alleged to have had are dealt with by the legislation because once she had the Income Support then these matters could not be taken into account. This would be a matter for the Income Support Branch to deal with.
7. I am satisfied therefore that there are no valid grounds to hold that the Tribunal erred in law as alleged by the absent parent and I would therefore dismiss the appeal.
8. Mrs McCarron also argued that the Tribunal had erred in law in its decision but the Child Support Agency did not seek leave to appeal and this matter was only raised before me after the absent parent had appealed. I intend to deal only with the appeal before me, namely that by the absent parent.

(Signed): C C G McNally

COMMISSIONER

9 May 2000