Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC CSC1/97 (11 February 1997)

 


Decision No: CSC1/97

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

CHILD SUPPORT

Application by the Absent Parent

for leave to appeal, and appeal to the

Child Support Commissioner

on a question of law from the decision of the

Child Support Appeal Tribunal

dated 21 February 1996

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. In this case the absent parent, Mr Samuel Mc......, seeks leave to appeal against the decision of the Child Support Appeal Tribunal sitting at Belfast, dismissing his appeal against the refusal of the Child Support Officer to review the decision that an interim maintenance assessment, (IMA) effective from 6 September 1993, should not be cancelled. I grant leave to appeal and, with the consent of all parties, treat the application as an appeal.
2. The IMA which is the subject matter of the appeal was made on 14 October 1993 and declared to be effective from 6 September 1993 at the rate of £106.05 per week. The IMA had been made because Mr Mc...... had failed to provide information concerning his self-employed earnings, and on 21 September 1995 he requested that it be cancelled on the grounds that "there was an unavoidable delay in his completion and return of the maintenance enquiry form." On 2 October 1995 the Child Support Officer decided that there were no grounds to cancel the IMA and the absent parent requested a review of that decision. The second Child Support Officer who considered that request refused to review the decision of 2 October 1995, and it was against this refusal to review - dated 15 December 1995 - that the absent parent appealed to the Appeal Tribunal.
3. In the preparation of her submission to the Appeal Tribunal the Child Support Officer then concerned with the case drew attention to the fact that, when Mr Mc...... applied for the cancellation of the IMA it had already ceased to have effect from 31 January 1995 because on that date the Department had received the required information as to Mr Mc......'s earnings:- see reg 8(9) of the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992, (the Assessment Procedure Regulations). It was said that an IMA which was no longer in force could not be cancelled and it was submitted that this was an additional reason why the Child Support Officers had been correct to refuse to review the decision not to cancel the IMA.
4. At the hearing before the Appeal Tribunal Mr Mc...... did his best to establish that the delay in providing the required details of his earnings was unavoidable, and it is clear that the matter was investigated in depth. In dismissing the appeal and thereby upholding the Child Support Officer's refusal to cancel the IMA insofar as it was effective from 6 September 1993 to 31 January 1995, the Tribunal gave clear and detailed reasons for their decision.
5. The grounds of Mr Mc......'s application for leave to appeal to the Commissioner are as follows:-

"The Tribunal failed to apply the correct law and furthermore

wrongly interpreted the legislation. The Tribunal also made a

decision which is unsupportable on the weight of the evidence

before it."

6. In response to an invitation to comment upon the application for leave to appeal, the Child Support Officer then involved with the case submitted that the Appeal Tribunal had erred in law in three respects, as follows:-

(a) That, because the IMA had ceased to have effect from the

date on which the absent parent provided the required

information as to earnings, it was no longer "in force"

when the application was made to have it cancelled.

It was said that an application for cancellation could

only be made when an IMA was "in force" and that the

Appeal Tribunal had erred in law in holding that the

application was valid.

(b) That the Appeal Tribunal had failed to give adequate

reasons for their decision in that they had not explained

why they had concluded that the evidence did not

disclose grounds for review.

(c) That the Appeal Tribunal had erred in law in holding

that the IMA of 14 October 1993 was correctly imposed.

It was submitted that, under the relevant provisions

of the Assessment Procedure Regulations the effective

date should have been 7 September 1993, not 6 September

1993. It was pointed out that this error had not been

brought to the attention of the Tribunal, but there was

nothing to suggest that it was a matter of any great

significance.

7. I held an oral hearing at which both Mr & Mrs Mc...... where present. Mrs Mc...... was represented by Ms L( of Messrs H( & M(, Solicitors of, (, Belfast. Mr Mc...... was represented by Mr W( of Messrs McC(, K( & Company, Solicitors of, (, Belfast. The Child Support Officer in attendance was Mrs P McCann.

There was a lengthy discussion on the right to apply for cancellation of an IMA after the date when it had ceased to be in force by reason of the supply of the information in question. I expressed the opinion that insofar as an IMA was effective in relation to the period up to the date on which it automatically ceased to be in force, it should be possible to apply for it to be cancelled on the grounds of unavoidable delay, and I suggested that this view was supported by the provision in paragraph 8(7) of the Assessment Procedure Regulations, (as then in force), which enabled the Child Support Officer to make allowance for unavoidable delay for only part of the period during which an assessment was in force. Consideration was also given to the question of whether the Child Support Officer or the Appeal Tribunal had erred in law in deciding that there had been unavoidable delay on the part of the absent parent. I indicated that in my view the decision on this issue could not be said to have been so unreasonable as to be perverse and that, whether I agreed with it or not, I had no power to intervene. However, at a late stage it emerged that these questions might be of no consequence whatever, in view of the mistake as to the effective date of the IMA. It will be recalled that it had been pointed out that the correct date should have been 7 September 1993, not 6 September 1993, and in Mrs McCann's submission there was no power to correct that mistake until the regulations were amended as from 16 February 1995. The effect of the mistake, even by as little as one day, was to render the IMA invalid and incapable of being enforced. As the IMA had been automatically cancelled on 31 January 1995 by the absent parent's provision of the required information as to his earnings, there was no period in respect of which it could have been corrected or enforced. On enquiry from me, Mrs McCann stated that there had been a number of cases in which IMAs had not been enforced because of similar mistakes.

8. At my request Mrs McCann agreed to prepare a further written submission on the effect of the incorrect date having been applied to the IMA made on 14 October 1993. This she has done by letter dated 18 November 1996 in which she has set out in detail her understanding of the effect of the legislation up until the coming into operation of the Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 1995, on 16 February 1995. Copies of this letter have been sent to Mr and Mrs Mc...... and their respective representatives with an invitation to submit any further comments thereon within 14 days. There has been no response.
9. Having considered this matter, I accept Mrs McCann's argument that there was a mistake as to the effective date of the IMA made on 14 October 1993 which was incapable of being corrected until the amendment of the regulations came into operation on 16 February 1995. By that date the IMA had already been cancelled, and accordingly it was invalid and unenforceable throughout the entirety of its intended life. This is not a matter which had been brought to the attention of the members of the Appeal Tribunal, who in my view dealt admirably with the issues raised before them. Nevertheless, their decision was erroneous in point of law in that the mistake as to the effective date of the IMA was not identified and the consequent invalidity of the assessment was overlooked. On these grounds I allow this appeal and set aside the decision of the Appeal Tribunal. In my view this is clearly a case which I should take it upon myself to decide, in the exercise of my powers under Article 25(3)(a) of the Child Support (Northern Ireland) Order 1991. Considering it expedient to do so, I find as a fact that there was a mistake as to the effective date of the IMA made on 14 October 1993. As a result, that IMA was invalid and unenforceable throughout the whole of the period during which it would otherwise have been effective. The absent parent is accordingly not liable for any amount under that IMA. He is, however, liable for the amount under the full maintenance assessment, effective from 1 June 1993.

(Signed) R R Chambers

CHIEF COMMISSIONER

11 February 1997