Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC CSC6/95 (14 January 1996)

 


Decision No: CSC6/95

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991 CHILD SUPPORT Appeal to the Child Support Commissioner on a question of law from the decision of Belfast Child Support Appeal Tribunal dated 15 July 1995 DECISION OF THE CHILD SUPPORT COMMISSIONER
1. In this case the parent with care, Mrs T…, appeals against the decision of the Belfast Child Support Appeal Tribunal disallowing her appeal against the Child Support Officer's decision dated 30 March 1995. The only issue in the appeal was whether the Child Support Officer had been correct to take account of the amount payable by the absent parent, Mr L…, on foot of a Maintenance Order dated 15 August 1994 in respect of a child S... L..., who was born on 3 January 1994, when calculating Mr L...'s income. The effect of taking this amount into account was to reduce the amount of child support maintenance payable to Mrs T... to £2.30 per week from 14 August 1994.
2. In confirming the Child Support Officer's decision the Tribunal reached the following findings of fact:-

"Mr L... is paying maintenance on foot of a court order in respect

of S… L.... The order is dated 15 August 1994. The

child support officer's decision under appeal is dated 30 March 1995."

The Tribunal's reasons for decision were:-

"Regulation 11(2)(ii) of the Maintenance Assessment and Special

Cases Regulations (NI) 1992 provides that in calculating the income

of the absent parent (in this case Mr L...) there is to be

deducted the amount of any maintenance under a maintenance order

which the absent parent is paying in respect of a child in

circumstances where an application for a maintenance assessment

could not be made in accordance with the Act in respect of that

child. "In the present case a maintenance order in respect of

S… is in existence and the absent parent is paying

on foot of it. The only issue which remains to be considered is

whether an application for maintenance assessment could be made

for that child. In our view it could not because of the provisions

of the Child Support Act 1991 (commencement No. 3 and transitional

provisions) Order 1992 - Article 2(a) which prevents a child support

maintenance application being made pre 7 October 1996 in respect of

a qualifying child. A qualifying child ie a child with at least

one absent parent. S... L... is such a child.

Regulation 11(2)(ii) therefore applies and the amount of the court

order must be deducted. The calculations appear otherwise correct."

3. The grounds of Mrs T...'s appeal against the Tribunal's decision are set out in full in her Notice of application. It is said -

(a) that the Tribunal had incorrectly interpreted regulation 11(2)(ii)

of the Maintenance Assessment and Special Cases Regulations (Northern Ireland) 1992, (the Maintenance Assessment Regulations), which was intended to apply only to children who were not natural children or who lived outside the jurisdiction;

(b) that Article 2(a) of the Child Support Act 1991 (Commencement No.3 and Transitional provisions) Order 1992, (the Child Support Act Commencement No.3 Order), was only intended to apply to cases in which clients had pre-existing Court Orders; and

(c) that the Agency had an obligation to ensure that the maintenance due on the foot of the Order was being paid and that it was "in respect of a child".

4. In her written observations on the appeal the Child Support Officer submitted that the Appeal Tribunal were correct to find that the maintenance which Mr L... was paying on foot of a Court Order fell to be deducted from his income for protected income purposes.
5. I held an oral hearing which was attended by both Mrs T... and Mr L.... Mrs T... was represented by Ms D…, Solicitor, of R…, Solicitors, and Mr L... by Mr T…, Solicitor, of C… Solicitors, . The Child Support Officer was represented by Mr John McClure.
6. Ms D... submitted that the Appeal Tribunal had been wrong to hold that a maintenance assessment could not have been made in respect of the child S... L.... In her view the provision in regulation 11(2)(ii) of the Maintenance Assessment Regulations was not intended to apply to a case of this nature. She was, however, unable to explain how paragraph 2(a) of the Schedule to the Child Support Commencement No.3 Order could be disregarded. Ms D... further argued that the Tribunal had had insufficient information upon which to reach their finding that Mr L... was paying maintenance on foot of the Court Order in respect of S... L.... Mrs T... believed that the money was not in fact being paid and a doubt existed as to whether this was a true Order.

Mr McClure said that a copy of the Court Order had been obtained. It was dated 15 August 1994 and thereafter no maintenance assessment in respect of the child S... L... could have been made. It had been for the Tribunal to find the facts of the case on the evidence at their disposal. They had expressly found that Mr L... was paying maintenance on foot of the Court Order and there was nothing to suggest that they had erred in point of law.

7. The provisions regarding the making of maintenance assessments are complex and it is not surprising that they should give rise to controversy. In the present instance the Tribunal decided that the amount of the maintenance which Mr L... was paying under the Maintenance Order dated 15 August 1994 had properly been deducted when calculating his income for maintenance assessment purposes. Having studied the legislation and considered the arguments advanced by Ms D... I have reached the conclusion that the Appeal Tribunal were correct in their reasoning and their decision. The circumstances of the case were such that, by virtue of the provisions of paragraph 2(a) of the Schedule to the Commencement No.3 Order 1992, a maintenance assessment could not be made under the Child Support (Northern Ireland) Order 1991 in respect of the child S... L..., and accordingly the amount of the Maintenance Order in respect of that child fell to be deducted from the income of the absent parent under the provisions of regulation 11(2)(a)(ii) of the Maintenance Assessment Regulations. I have also reached the conclusion that the Tribunal did not err in law in finding as a fact that Mr L... was paying maintenance on foot of a Court Order dated 15 August 1994 in respect of S... L.... It was for the Tribunal to find the facts of the case and in my opinion it could not be said that, on the evidence at their disposal, the conclusion which they reached on this aspect of the case was perverse or unjustified. I accordingly reject the grounds of appeal relied upon by Mrs T....
8. For the reasons given in paragraph 7 above this appeal will be dismissed.

(Signed) R R Chambers

CHIEF COMMISSIONER

14 January 1996