Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC CSC8/94 (14 February 1995)

 


CSC 8/94

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

CHILD SUPPORT

Appeal to the Child Support Commissioner

on a question of law from the decision of

Omagh Child Support Appeal Tribunal

dated 4 July 1994

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. In this case the Child Support Officer appeals against the decision of Omagh Child Support Appeal Tribunal; whereby it was held by a majority that the income support payable to the parent with care should not be reduced on account of her failure to disclose the name of the father of one of her children.
2. The background facts may be stated shortly. The parent with care, Miss McC..., is the mother of two children, K... and P.... In October 1993 Miss McC... completed a maintenance application form in which she gave details of P...'s father, but none of K...'s. At a subsequent interview Miss McC... gave her reasons for not wishing to disclose the identity of K...'s father, and after she had been advised of her obligations in the matter and afforded a further opportunity to provide the information, the Child Support Officer gave a "reduced benefit direction" under the provisions of Article 43 of the Child Support (Northern Ireland) Order 1991, (the 1991 Order). That Article reads as follows:-

"43-(1) This Article applies where any person ("the parent") -

(a) fails to comply with a requirement imposed on the

parent by the Department under Article 9(1); or

(b) fails to comply with any regulation made under

Article 9(9).

(2) A child support officer may serve written notice on the

parent requiring the parent, before the end of the specified

period, either to comply or to give him reasons for failing

to do so.

(3) When the specified period has expired, the child support

officer shall consider whether, having regard to any reasons

given by the parent, there are reasonable grounds for

believing that, if the parent were to be required to comply,

there would be a risk of the parent or of any children living

with the parent suffering harm or undue distress as a result

of complying.

(4) If the child support officer considers that there are

such reasonable grounds, he shall -

(a) take no further action under this Article in relation

to the failure in question; and

(b) notify the parent, in writing, accordingly.

(5) If the child support officer considers that there are

no such reasonable grounds, he may give a reduced benefit

direction with respect to the parent.

(6) Where the child support officer gives a reduced benefit

direction he shall send a copy of it to the parent.

(7) Any person who is aggrieved by a decision of a child

support officer to give a reduced benefit direction may

appeal to a child support appeal tribunal against that

decision.

(8) Articles 22(2) to (4) and 23 shall apply in relation to

appeals under paragraph (7) as they apply in relation to

appeals under Article 22.

(9) A reduced benefit direction shall take effect on such

date as may be specified in the direction.

(10) Reasons given in response to a notice under paragraph

(2) may be given either in writing or orally.

(11) In this Article -

"comply" means to comply with the requirement or with the regulation in question;

"reduced benefit direction" means a direction, binding

on the adjudication officer, that the amount payable by

way of any relevant benefit to, or in respect of, the

parent concerned be reduced by such amount, and for such period, as may be prescribed;

"relevant benefit" means income support, family credit

or any other benefit of a kind prescribed for the

purposes of Article 9; and

"specified", in relation to any notice served under this

Article, means specified in the notice; and the period to

be specified shall be determined in accordance with

regulations made by the Department."

3. Miss McC... appealed and at the hearing before the Appeal Tribunal the case made on her behalf was that she did not in fact know who K...'s father was. Understandably in my view, this explanation was rejected by the Tribunal, who throughout their decision referred to Miss McC... as "the claimant". The following findings of fact were recorded:-

"The claimant was aware of identity of the father of K.... She

did withhold his name.

There were discrepancies in her statement.

Claimant has another child. Name of the father is known. This

is not the same father."

Despite these findings, the majority decision was that the appeal should be allowed and that there should not be a reduction in Miss McC...'s benefit; the "reasons for decision" being as follows:-

"The reduction in benefit would cause undue distress and K...'s

welfare inadvertently or not would be affected by this reduction

in benefit. It would be detrimental to the child's welfare.

Mrs O'Donnell, whilst agreeing with this, however did not believe

claimant had shown good cause for not disclosing the absent parent's

name.

The Chairman dissenting felt that the claimant had not shown good

cause in failing to disclose the father's name. By the reduction,

harm or undue distress would not be caused."

4. The grounds now relied upon by the Child Support Officer in her appeal to the Commissioner are set out in full in her letter dated 12 October 1994. Briefly, her submission is that the Tribunal erred in law in allowing Miss McC...'s appeal on the basis of a finding that the making of a reduced benefit direction would cause K... harm or undue distress; whereas they should have considered whether the disclosure of the information as to the alleged absent parent's identity would cause such harm or distress.
5. There has been no response from either Miss McC... or her representative to an invitation to submit written observations on the appeal.
6. I have considered this matter and have reached the conclusion that the Appeal Tribunal did indeed err in law in the respect identified by the Child Support Officer. Having satisfied themselves that Miss McC... was aware of the identity of K...'s father and was withholding that information from the Child Support Officer, the question which they had to decide was whether there were reasonable grounds for believing that, if Miss McC... were required to provide the information, there would be a risk that, as a result of so doing, she or any of her children would suffer harm or undue distress. The question was not whether the reduction of Miss McC...'s income support, would cause harm or undue distress. If that was a possible consequence, it was one which flowed from her non-compliance with the request for information, whereas the Tribunal should have concerned themselves with the likely consequences of enforced compliance. Article 43 of the 1991 Order specifically provides for the reduction of benefit in such circumstances, clearly as a form of sanction against unreasonable non-disclosure, and while there may be different views as to whether or not that is a wise provision, it would in my opinion be quite absurd if it were open to Appeal Tribunals simply to override or ignore it. It could be argued that any reduction in a mother's benefit would be likely to have an adverse affect upon the welfare of a child in her care; but in the absence of some special factor, (of which there is no suggestion in the present case), that is not a ground for interference with a Child Support Officer's decision to give a reduced benefit direction. I accordingly allow this appeal and set aside the decision of the Appeal Tribunal.
7. I have considered whether I should exercise the power given to me by section 25 of the 1991 Order to give the decision which the Tribunal should have given rather than refer the case to another Tribunal, and have reached the conclusion that it would be appropriate and expedient for me to do so. The real issue in the case was whether Miss McC... was genuinely unaware of the identity of K...'s father. The Tribunal unanimously rejected that contention and, on the evidence at their disposal, I have no doubt that they were right to do so. I therefore confirm the Tribunal's findings of fact. I am further satisfied that this is not a case in which there are reasonable grounds for believing that, if Miss McC... were to be required to disclose the identity of K...'s father, there would be a risk that she or either of the children living with her would suffer harm or undue distress as a result of her so doing. Indeed, having regard to the case made by Miss McC... it is difficult to see how there could ever have been any evidence of such harm or distress. I accordingly reverse the Appeal Tribunal's majority decision and dismiss Miss McC...'s appeal against the decision of the Child Support Officer to give a reduced benefit direction in this case.

(Signed): R. R. Chambers

CHIEF COMMISSIONER

14 February 1995