Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC CSC5/96 (24 January 1997)

 


Application No: CSC5/96

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

Application by the applicant for leave to appeal

and appeal to the Child Support Commissioner

on a question of law from the decision of the

Ballymoney Child Support Appeal Tribunal

dated 20 December 1995

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an application for leave to appeal by the absent parent against the decision of a Child Support Tribunal which upheld the decision of a Child Support Officer relating to the maintenance payable by the absent parent.
2. I held an oral hearing of the application at which the absent parent was present and represented by Mr Stockman. The parent with care was not present nor represented and the Child Support Officer was represented by Mr McClure.
3. It is unnecessary for me to detail the figures in this complicated matter, it is sufficient for me to say that the Child Support Tribunal accepted the calculations made by the Child Support Agency. The grounds of appeal to me, as set out at length in the application for leave were as follows:-

"I now wish to augment the grounds of appeal submitted by

Mr L... as follows:

1. The tribunal erred in law in determining that Mr L...'s

earnings should be calculated over a 12 month period in

accordance with para.2(4) of Schedule 1 of the Maintenance Assessments and Special Cases Regulations. The purpose of that regulation is to enable the normal weekly earnings of a parent to be determined more accurately. There is no indication in this case that the tribunal or the child support officer had any grounds for deciding that the ordinary provisions of para.2(1) should not apply.

2. In addition and in the alternative, if the tribunal had

sufficient grounds for determining that the provisions

of para.2(4) should apply rather than the provisions of

para.2(1), it is respectfully submitted that they have

failed to state adequate reasons as to why this should

be so. In particular, while the tribunal have stated

that the calculation would allow Mr L...'s wages to be

calculated more accurately, it is submitted that this is

an insufficient statement of reasons and erroneous in

law under reg.13(2) of the CSAT Procedure Regulations."

4. Having received the application the Child Support Officer commented as follows:-

"The appellant Mr J L... (the absent parent) has stated in his

grounds of appeal

. the tribunal have erred in law in finding that the earnings

should be calculated over a 12 month period without identifying that the assessment period required by the legislation did not apply;

. the tribunal failed to give adequate reasons why the alternative period was appropriate.

Regulation 7 and paragraphs 1 and 2 of Schedule 1 of the Child

Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992 provides that the earnings to be taken into account are to be assessed as a weekly average over a period determined under paragraph 2 of Schedule 1. At the material time, paragraph 2 as far as is relevant -

"2(1) Subject to sub paragraph (2) to (4)

(b) where a person is paid monthly, the amount of those earnings shall be determined by aggregating the amounts received in the 2 months ending with the relevant week, multiplying the aggregate by 6 and dividing by 52;

(4) Where a calculation would, for this sub-paragraph, produce an amount which, in the opinion of the child support officer, does not accurately reflect the normal amount of the earnings of the person in question, such earnings, or any part of them, shall be calculated by reference to such other period as may, in the particular case, enable the normal weekly earnings of that person to be determined more accurately and for this purpose the child support officer shall have regard to -

(a) the earnings received, or due to be received, from any employment in which the person in question is engaged, has been engaged or is due to be engaged;

(b) the duration and pattern, or the expected duration and pattern, of any employment of that person."

A GB Commissioner in an unreported decision CCS/016/1994 confirmed that the legislation requires that the earnings in the prescribed assessment period under paragraph 2(1) must be considered before an alternative period under 2(4) is used.

The initial application was made on 6 January 1995 by the parent

with care in respect of 3 qualifying children. A maintenance

enquiry form was issued on 11 January 1995. Paragraph 2(1)

provides that the amount of net earnings shall be determined

by calculating the average over a specific period "ending with the

relevant week". For the purposes of calculating the earnings

of the absent parent the definition of relevant week specified in

regulation 1(2)(a)(ii) of the MASC Regulations is appropriate.

The relevant week is the 6 January 1995 to 12 January 1995. As

Mr L... is paid monthly, the assessment period under Schedule 1

paragraph 2(1)(b) is 13 November 1994 to 12 January 1995.

On a review under Article 20 of the CS (NI) Order 1991 the CSO

used earnings in a 12 month period without identifying why the

assessment period used by the first CSO did not give an accurate

reflection of the normal earnings.

On appeal the tribunal upheld the CSO decision. I would submit that the tribunal did not give adequate reasons why the 12 month period gave a more accurate reflection and did not state why the

prescribed assessment period in Schedule 1 paragraph 2(1)(b) should not be used.

I would further submit that the tribunal decision on this issue is

inadequate and failed to comply with the requirements of regulation 13(2)(b) of the Child Support Appeal Tribunal's (Procedure) Regulations (NI) 1993. The decision is therefore wrong in law.

Should the Commissioner decide to treat the application as an appeal, I consent to him doing so and determining any question on the application as if it arose on appeal."

5. I arranged an oral hearing at which I granted leave to appeal.
6. Mr Stockman, on behalf of the absent parent, argued that the Agency had taken the wrong approach and that it did not take into account the fact that claimant's work pattern changed after his marriage broke up, or that the pattern of overtime changed. He said that it was inappropriate for the Tribunal to use calculations based on regulation 2(4) of Schedule 1 of the Child Support (Maintenance Assessments and Special Carers) Regulations (Northern Ireland) 1992. In order to trigger paragraph 2(4) there would have to be a sound reason. That regulation was clearly intended to cover someone with an irregular income and not someone with a monthly income. The proper course would have been to have an assessment made for the two month period before the enquiry form was issued, and the Tribunal failed to give any reason why it considered that regulation 2(4) was relevant in this case.
7. Mr McClure agreed that regulation 2(4) should not have come into play. He said that the first decision of the Child Support Officer was wrong - pension contributions were allowed where in fact only 50% should have been allowed. He agreed that the Tribunal did not give any reason why it considered that regulation 2(4) was appropriate. He said it may well be that at the end of the day the same figures would be arrived at.
8. I have considered all that has been said and I have read all the documents in this complicated case. I am satisfied that the Tribunal erred as stated by Mr Stockman and accepted by the Child Support Officer. I have considered whether or not it would be appropriate for me to give the decision which the Tribunal should have given, but in the light of Mr Stockman's comments that these complicated and involved calculations in respect of excess fares etc would be better dealt with in a proper and full argument before a differently constituted Child Support Tribunal. I therefore allow the appeal and refer the matter back to be reconsidered by a differently constituted Tribunal.

(Signed): C C G McNally

COMMISSIONER

24 January 1997