Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC CSC3/96 (30 January 1997)

 


Decision No: CSC3/96

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 a

Child Support Appeal Tribunal

dated 8 May 1996

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. In this case the Child Support Officer appeals against the decision of the Child Support Appeal Tribunal sitting at Belfast; whereby it was held that, in the assessment of the child support maintenance payable by the absent parent, account should be taken of the payment by him of water charges. By my direction the absent parent was made first respondent and the parent with care second respondent.
2. The absent parent lives in England where he pays water charges, and at the hearing before the Appeal Tribunal it was submitted on his behalf that such expenditure was allowable under the provisions of paragraph 1(f) of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992, (the Maintenance Assessment Regulations), which reads as follows:-

"Eligible housing costs for the purposes of determining exempt

income and protected income

1. Subject to the following provisions of this Schedule, the

following payments in respect of the provision of a home

shall be eligible to be taken into account as Housing

Costs for the purposes of these regulations -

(f) payments in respect of, or in consequence of, the use

and occupation of the home;"

This argument was accepted by two members of the Tribunal on the grounds that "as water was an essential element of modern day living, and as users were protected against termination of supply, then it should be regarded as a payment in respect of the use and occupation of the home". The dissenting member of the Tribunal was of the opinion that "the payment of water charges could not be interpreted as to include a payment in consequence of the use and occupation of the house. This would open this clause to a wide range of payments which the regulation was never intended to cover".

3. The grounds of the Child Support Officer's appeal to the Commissioner are:-

"... that the decision given by the CSAT is wrong in law in that

it allowed payments in respect of water charges as housing costs.

This expenditure was held to be allowable under paragraph 1(f) of

Schedule 3 to the Child Support (Maintenance Assessment and

Special Cases) Regulations (Northern Ireland) 1992.

The absent parent in this case lives in England and consequently

has to pay towards water charges. The GB Child Support

legislation specifically excludes water charges as housing costs

so it is anomalous that the tribunal should have allowed them

under paragraph 1(f) especially in the light of Commissioner

decision R 1/94 (CSC). In that decision the Commissioner held

that this provision was intended to cover payments in respect

of the provision of a home and should be given a restricted

meaning. As well, as a result of the amendment to Reciprocal

Agreement from 22 January 1996, the GB legislation became

applicable in this case from that date and as a consequence

water charges could not be considered as housing costs."

These grounds were further amplified by the Child Support Officer now concerned with the appeal in her letter dated 30 September 1996. It was pointed out that, under the equivalent GB Regulations, water charges had been excluded from housing costs by the express provisions of paragraph 6 of Schedule 3 and it was submitted that the reason why a similar provision had not been included in the Northern Ireland Regulations was that no such charges are levied separately in this jurisdiction. It was acknowledged that until 22 January 1996 reciprocal arrangements between Northern Ireland and Great Britain did not require the provisions of the GB Regulations to be applied in this jurisdiction; but it was said that it would have been anomalous to allow water charges in one territory when they could not be allowed in the other. After 22 January 1996, the express provisions of the GB Regulations were to be applied in determining the amount of child support maintenance where the absent parent resided in that territory.

4. As has been stated, the absent parent has been made first respondent to this appeal. He has been requested to submit written observations upon it, and to include therein a statement as to whether or not he opposes it and the grounds upon which he proposes to rely. There has been no response to this request.
5. Having considered this matter and studied the relevant legislation the conclusion which I have reached is that the majority decision of the Appeal Tribunal was erroneous in point of law. On the authority of decision R1/94(CSC), with which I am in full agreement, I am of the opinion that the water charges paid by the absent parent do not fall within the provisions of paragraph 1(f) of Schedule 3 to the Maintenance Assessment Regulations, and the majority of the Appeal Tribunal were therefore wrong to direct that they be taken into account as housing costs. The further arguments set out in the Child Support Officer's letter of 30 September 1996 merely serve to reinforce that view; which is not dependent upon the change in the legislation from 22 January 1996.
6. Having held that the majority decision of the Child Support Appeal Tribunal of 8 May 1996 was wrong in law I allow this appeal and set the decision aside. This is a case in which, without making fresh or further findings of fact, I can give the decision which I consider should have been given by the Tribunal. In exercise of my powers under Article 25(3)(a) of the Child Support (Northern Ireland) Order 1991. My decision is that payments by way of water charges made by the absent parent are not eligible to be taken into account as housing costs for the purposes of the Maintenance Assessment Regulations and his appeal against the Child Support Officer's second tier review decision dated 26 January 1996 is accordingly disallowed.

(Signed): R R Chambers

CHIEF COMMISSIONER

30 January 1997