Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC CSC2/97 (7 July 1999)

 


Decision No: CSC2/97

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Appeal to the Child Support Commissioner

on a question of law from the decision of the

Belfast Child Support Appeal Tribunal

dated 26 November 1997

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the Child Support Officer against the decision of a Child Support Appeal Tribunal (CSAT).
2. No dispute has arisen in connection with the maintenance or the calculation of same and there is no suggestion that the Absent Parent was in any way attempting to avoid the payment of maintenance at any time. The dispute is as to who should be paid the maintenance, and who are the persons caring for the child of the marriage. It was alleged by the Absent Parent from the very beginning that the child was not living with her mother but was living with and was looked after by her grandparents.
3. There is a note on the file to say that a Child Support Officer interviewed both the mother and the father and was satisfied that the daughter was living with her mother and that she therefore was the Parent with Care. The Absent Parent appealed to a Child Support Appeal Tribunal. The Child Support Officer made a long submission to the Tribunal and finished by saying that upon receipt of the letter of appeal, the maintenance calculations of the Child Support Officer were examined and found to be correct, and further submitted that the decision that the father was liable to pay child support maintenance should be upheld.
4. What is amazing, but not surprising, is that the only relevant matter was who is the person caring for the child was not even mentioned in the submission to the Tribunal.
5. The Tribunal heard all the evidence and quite rightly focused on the only relevant matters. It found as a fact that the child lived with and was cared for by her paternal grandparents. It gave reasons for its decision that the grandparents were the persons caring for the child and that child support maintenance should be paid to them. It quoted the "Child Support (Collection and Enforcement) Regulations (NI) 1992. Part II Regulation 2(a)."

Against that decision the Child Support Officer sought leave to appeal as follows:-

"I consider that the CSAT erred in law in directing that the

maintenance assessment be paid to the grandparents of the

qualifying child. The tribunal has relied on the provisions

of the Child Support (Collection and Enforcement) Regulations

(NI) 1992, Part II, regulation 2A.

The provisions of the Child Support (Collection and Enforcement)

Regulations (NI) 1992 deal with the collection and enforcement

of child support maintenance under the Child Support (NI) Order.

These are matters for consideration by an officer acting on

behalf of the Department and consequently do not come within the

remit of the CSO or CSAT. ..."

6. I arranged an oral hearing at which the Absent Parent appeared and the Child Support Officer was represented by Mrs McCann. Mrs McCann said that the Tribunal directed payment to the grandparents but it was a matter for the Department to say to whom payment should be made. She accepted that the Tribunal was entitled to find that the child lived with her grandparents and said in the light of that finding the grandparents should apply for the maintenance and that if the person who was treated as the Parent with Care was not the Parent with Care, then Mrs McCann said it was a matter for the Department and not for the adjudicating authority to decide who was paid the maintenance.
7. Mrs McCann said that the Tribunal accepted the evidence provided in relation to the address of the child but she submitted it failed to consider whether the Parent with Care who made the application for the child support maintenance is providing day-to-day care for the child or whether the child's home is with that person. She argued that if the qualifying child does not have her home with the Parent with Care who made the application, then the Tribunal should have found that the Child Support Officer did not have jurisdiction to make a maintenance order. If the child did have her home with the Parent with Care and subsequently ceased to do so, then the Tribunal should have established when this arrangement changed. She submitted that the Tribunal had failed to make adequate findings of fact as to who the child has her home with and who provided day-to-day care. In addition, having found that the Parent with Care in respect of whom the assessment had been made was not the Person with Care, the Tribunal should have considered and directed whether the assessment should be cancelled.
8. The father of the child said he was completely fed up with the whole approach of the Child Support Agency. For years he has been trying to get them to accept that his daughter lives with her grandparents and that it is only whenever he got to the Tribunal that that fact was accepted. He said that he never disputed the maintenance and paid it regularly. His objection was that it was paying it to the wrong person and the fault was the fault of the Agency. He said his daughter is nearly 18 years of age now and he thought it was time that this matter had been sorted out.
9. I have considered all that has been said. Firstly as Mrs McCann said it is a matter for the Department to say to whom payment should be made, but the Department were not represented at the hearing. This surprised me greatly because the Child Support Agency has known from the very start that the only dispute was to whom the maintenance should be paid, yet no effort was made to ask the Department to justify payment to someone to whom the Tribunal found was not entitled to receive it. The Tribunal clearly were of the opinion that the grandparents provide day-to-day care for the child and that the grandparents are the Persons with Care. Mrs McCann also was unable to say what happens to all the money that was paid under the assessment that was made without jurisdiction. It would appear that no effort has been made to involve the Department in this matter.
10. I am quite satisfied that the Tribunal made proper findings of fact. The Tribunal recorded all the evidence. It found that the child lived at a particular address which was the address of the grandparents and that maintenance should be paid to them. I would have thought that that would be sufficient findings to cover the points raised by the Child Support Officer that the Tribunal did not consider who provided day-to-day care for the child and if the child's home was with that person. It was quite clear that that is what the Tribunal did decide (although it did not spell out in as many words) but what it did say was that the maintenance should be paid to the grandparents because the child lived with the grandparents. I think anyone reading that is entitled to assume that it found that the grandparents provided the day-to-day care for the child and that the child's home is with those grandparents. I am satisfied therefore that that finding was correct.
11. Having found that the Parent with Care in respect of whom the assessment has been made is not the Parent with Care the Tribunal should have directed that the assessment should be cancelled. It is quite clear that it should have never have been made because when the Child Support Officer states that the Tribunal should have made a finding as to when the arrangements for the child's care changed, it is quite clear from all the evidence that the arrangements never changed and that the child was looked after by the grandparents at all relevant times.
12. I therefore dismiss the appeal of the Child Support Officer in respect of the points raised in her appeal. I accept and endorse the decision of the Tribunal but add to it by saying that the circumstances found by the Tribunal are such that the assessment should have been cancelled. The Child Support Officer did not have jurisdiction to make a maintenance assessment. The assessment is void.

It is up to the Department to deal with the monies paid to someone who was not entitled to receive then, as that is outside my jurisdiction.

(Signed): C C G McNally

COMMISSIONER

7 July 1999