Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC CSC5/95 (9 January 1997)

 


Decision No: CSC5/95

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995 CHILD SUPPORT Appeal to the Child Support Commissioner on a question of law from the decision of Belfast Child Support Appeal Tribunal dated 8 March 1995 DECISION OF THE CHILD SUPPORT COMMISSIONER
1. In this case the absent parent, Mr B( C..., appeals against the decision of Belfast Child Support Appeal Tribunal, which concerned a number of points in relation to the appellant's liability under a maintenance assessment, made by way of second-tier review dated 6 January 1995.
2. I do not propose to set out the background facts in full; but some reference to them is required if the appellant's grounds of appeal are to be understood.

(i) In June 1993 the parent with care applied for a child support maintenance assessment, and in due course a maintenance enquiry form was issued to the appellant, directed to his last known address as stated by the parent with care. There being no response to the maintenance enquiry form, a category A interim maintenance assessment (IMA) was issued on 27 August 1993.

(ii) Prior to 27 August 1993 there was a Court Maintenance Order in force in respect of the child in question.

(iii) The appellant was informed that on the making of the IMA on 27 August 1993, this Court Maintenance Order was cancelled.

(iv) It was later ascertained that the appellant no longer resided at the address to which the maintenance enquiry form had been sent and a further enquiry form was issued to him on 17 September 1993. He returned it on 21 October 1993; but did not supply details of his partner's income.

(v) On 25 October 1993 notification of the Child Support Officer's intention to make an IMA was issued to Mr C.... The form used was that appropriate to a category A interim maintenance assessment, whereas it should have been the form for a category B assessment.

(vi) By letter dated 7 April 1994 the parent with care informed the Child Support Agency that she would no longer be receiving income support from 11 April 1994 because she had started work.

(vii) On 30 June 1994 a further IMA was issued in which no account was taken of the Court Maintenance Order. At the appellant's request, a second-tier review was carried out on 6 January 1995. The effective date of the IMA was said to be incorrect and this was now held to be 12 November 1993. Again no account was taken of the Court Maintenance Order, which was said to have been cancelled on the making of the first IMA.

3. At the hearing before the Appeal Tribunal one of Mr C...'s principal arguments was that an official of the Child Support Agency had acknowledged to him that because the first maintenance enquiry form had not been received by him the Court Maintenance Order had been wrongly cancelled. The official had given Mr C... an assurance that the Agency would reinstate the Order. This was a matter of some concern to Mr C..., who was firmly of the view that it was this cancellation of the Court Order which had deprived him of the benefits of the "phasing in" arrangements for which provision was made in the Child Support (1991 Order) (Commencement No. 3 and Transitional Provisions) Order (NI) 1992 and the Child Support (Miscellaneous Amendments and Transitional Provisions) Regulations (NI) 1994. The Appeal Tribunal accepted that the Court Order had been wrongly cancelled and that no steps had been taken to reinstate it. They nevertheless decided that, as the legislation made no provision for the correction of such an error, they were bound to take account of the fact that there was no Court Order in force. It was accordingly decided that Mr C... was not entitled to "phasing in" of his maintenance payments. On the subject of the effective date of the IMA, the Appeal Tribunal held that the notification which had been given to Mr C... of the intention to make the assessment was sufficient, despite the fact that the wrong form had been used. They therefore confirmed that the effective date of the IMA was 12 November 1993.

Mr C... further submitted that he should not have been required to pay a service fee of £78.00; but it was held that this was a matter for the Secretary of State, not for the Tribunal. The Appeal was nevertheless allowed on the ground that a review should have been carried out, taking into account the earnings of the parent with care from 11 April 1994.

4. The Appeal Tribunal's refusal to take any action in relation to the cancellation of the Court Maintenance Order and the undertaking to have it reinstated is the principal ground of Mr C...'s appeal to the Commissioner. He also disputes the Tribunal's acceptance of 12 November 1993 as the effective date of the revised maintenance assessment.
5. In her written observations on the appeal, the Child Support Officer who was in charge of the case at that stage, by letter dated 1 November 1995, submitted that although Mr C... had not received the first maintenance assessment form, the proper procedures had been followed and the category A interim maintenance assessment had been correctly made on 27 August 1993. One result was that the Court Maintenance Order ceased to have effect. That was a consequence of the legislation, which made no provision for the revival of a Court Order. The Appeal Tribunal were bound by the legislation, whatever might have been said or done by an official of the Agency.

The Child Support Officer further referred to a number of provisions concerning the circumstances in which payments on foot of a maintenance assessment might be "phased in". Under the Child Support (1991 Order) (Commencement No.3 and Transitional Provisions) Order (NI) 1992 there could be no "phasing in" because the assessment was a category A interim maintenance assessment. Similarly, regulation 7 of the Child Support (Miscellaneous Amendments and Transitional Provisions) Regulations (NI) 1994 provided that the "phasing in" did not apply to a category A maintenance assessment.

On the question of the effective date of the IMA, the Child Support Officer explained that this depended upon due notification having been given to Mr C... of the intention to make such an assessment:- see Article 14(4) of the Child Support (NI) Order 1991, (the Order). The Agency have printed forms for use in notifying absent parents as required, and in this instance the form relating to a category A interim maintenance assessment was issued, whereas it should have been a category B form. However, article 14(4) of the Order makes no distinction between the various types of IMA, and it was submitted by the Child Support Officer that the Tribunal were entitled to hold that due notification had been given.

In conclusion it was submitted that the Tribunal had erred in law in not making sufficient findings of fact to support its decision that a review should be conducted taking account of the earnings of Miss C... from 11 April 1994.

6. I held an oral hearing at which Mr C... was present. The Child Support Officer in attendance was Mrs Patricia McCann.

Mr C... was once again mainly concerned with the cancellation of the Court Maintenance Order and the undertaking which he had been given that it would be reinstated. He also maintained his criticism of the choice of 12 November 1993 as the effective date of the IMA following his request for a review on 4 August 1994.

Mrs McCann submitted that the Court Maintenance Order had been effectively cancelled by the making of a Category A Interim Maintenance Order following the issue of the maintenance enquiry form to Mr C...'s last known address, and that there was no power to reinstate it. The fact that an official of the Agency had given an undertaking to the contrary could not affect the position. The legislation had to be applied and there could be no question of estoppel. The Tribunal had been wrong to find as a fact that the Court Order had been wrongly cancelled; but they had been correct in holding that the Court Order had ceased to have effect and that there could be no "phasing in". The Tribunal were also correct in holding that the effective date of the interim maintenance assessment was 12 November 1993. The wrong form had been used to notify Mr C... of the intention to make an IMA; but all the necessary information had been given to him and the Tribunal were entitled to find that there had been sufficient compliance with the legislation. The effective date of the assessment was dependent upon the date of notification, and in this instance it had been correctly calculated to be 12 November 1993. Mrs McCann explained why in her submission the Appeal Tribunal had been wrong to hold that the Child Support Officer had erred in failing to carry out a review which took account of the earnings of Miss C... from 4 April 1994 at the request of Mr C... after Miss C... had gone back to work. The Child Support Officer in charge of the case at that time had correctly decided that, because there was no provision in the legislation for the determination of a relevant week, it was not possible to carry out a change of circumstances review, and that it was not until a periodical review was being conducted that account could be taken of the fact that Miss C... had commenced employment. As this was a complicated matter I requested Mrs McCann to set out her reasoning in writing; which she has done by letter dated 25 September 1996.

7. I have considerable sympathy for the appellant in this case. It seems unfair that the issue of a maintenance enquiry form, and its despatch to an address at which he no longer lived, should have resulted in the cancellation of a previously effective Court Maintenance Order. However, having considered this matter I have reached the conclusion that that is indeed the effect of the legislation. The category A interim maintenance assessment of 27 August 1993 had been correctly made, and one consequence was that the Court Order ceased to have effect; see regulation 3(5) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations (NI) 1992. I am also satisfied that the Tribunal were correct in holding that the appellant was not entitled to the "phasing in" arrangements:- see regulation 7(2) of the Child Support (Miscellaneous Amendments and Transitional Provisions) Regulations (NI) 1994.

The issue concerning the effective date of the IMA made on 30 June 1994 and revised on review by the decision of 6 January 1995 is somewhat involved; but having considered all the facts I agree that the Appeal Tribunal were entitled to find that effective notice had been issued to the absent parent, albeit on the wrong form, and that the correct date had been designated: namely 12 November 1993.

The remaining question is whether the Appeal Tribunal erred in law in allowing the absent parent's appeal on the ground that the Child Support Officer should have reviewed the maintenance assessment to take account of the fact that the parent with care had started work. As will be apparent from Mrs McCann's letter of explanation dated 25 September 1996 this is a very technical subject. I have studied the provisions of the legislation to which Mrs McCann has referred and I accept that her submissions are correct. I do so with some reluctance; for I find it difficult to understand why there should be a definition of "the relevant week" for the purposes of a review of a maintenance assessment under articles 18 and 19 of the Order; but none for a review under article 20. I accept that the letter of 11 April 1994 from Miss C... could not have been identified as an application for a change of circumstances review under article 19 of the Order, because at that time the maintenance assessment had not yet been made. Mr C...'s request of 2 August 1994 was for a second-tier review under article 20 of the Order and, as Mrs McCann has pointed out, the absence of any means of determining "the relevant week" renders it impossible to take account of a change of the amount of a person's earnings. I note also from the file that the question of the absence of any provision for the selection of "the relevant week" was present to the mind the Child Support Officer who was then considering whether or not to have regard to Miss C...'s return to work. The conclusion again was that the legislation contained no such provision, and that in the circumstances the parent with care's return to work was a matter which would have to wait until a periodic review was carried out, before it could be taken into account. In my view this reasoning was correct and I accept Mrs McCann's submission that the decision of the Child Support Officer which was under consideration by the Appeal Tribunal was not erroneous in law in any respect. The Appeal Tribunal therefore erred in law in allowing the appeal and in directing a review to take account of the earnings of Miss C... from 11 April 1994.

8. For the reasons given in paragraph 7 above, I allow this appeal and set aside the decision of the Appeal Tribunal. This is clearly a case in which, in the exercise of my powers under article 25(3) of the Order, I should give the decision which the Appeal Tribunal should have given. My decision is that the second-tier review decision of the Child Support Officer dated 6 January 1995 was not erroneous in point of law and the Appeal therefrom by the absent parent is accordingly dismissed.

(Signed): R R Chambers

CHIEF COMMISSIONER

9 January 1997