Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC CSC7/97 (26 June 1998)

 


Decision No: CSC7/97

CHILD SUPPORT OFFICER: APPELLANT

MRS G… T... : FIRST RESPONDENT

MR D… T... : SECOND RESPONDENT

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 12 May 1997

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the Child Support Officer against the decision of the Child Support Appeal Tribunal dated 12 May 1997 and issued on 13 June 1997 which allowed the appeal of G... T... , the Parent with Care, from a decision of a Child Support Officer. Leave to appeal was granted by the Chairman of the Tribunal on 17 September 1997. By direction of a Commissioner, Mrs G... T... , the Parent with Care was specified as the first respondent in this appeal and Mr D... T... , the Absent Parent, was specified as the second respondent.
2. An application for Child Support Maintenance was originally made by the Parent with Care for the qualifying children on 22 April 1994. The Absent Parent was claiming Income Support so the maintenance assessment was calculated at Nil from 1 June 1994. On 29 May 1996 the Parent with Care requested a review of the assessment as the Absent Parent was now employed. Accordingly a change of circumstances review was conducted and the amount of maintenance payable was assessed at £4.80 per week from 29 May 1996. The Parent with Care then asked for a further review of the assessment because she did not agree with the income figures that the Absent Parent had provided. However there was no new evidence produced and accordingly a Child Support Officer refused to review the assessment. At this point the Parent with Care appealed the decision to a Child Support Appeal Tribunal which allowed the appeal in the following terms:-

"*UNANIMOUS DECISION OF THE CHILD SUPPORT APPEAL TRIBUNAL

Appeal allowed. Decision of 1st Child Support Officer incorrect.

Mr T... 's "Housing Costs" have been incorrectly assessed.

DIRECTIONS TO THE CHILD SUPPORT OFFICER:

Re-calculate Mr T... 's maintenance assessment taking into

account his proper housing costs. He is not a holder of the

Abbey National mortgage. He is not the holder of two endowment

policies. He is not the owner of premises, 18 H… P…,

G…."

3. In addition the Tribunal made the following findings of fact material to its decision:-

"1. Ms T… is sole owner of 18 H… P…, G….

2. Ms T… is the only person who has a mortgage with the

Abbey National regarding 18 H… P…, G….

3. This mortgage is supported by an endowment policy in her

name only.

4. Mr T... 's earnings correctly assessed by 1st Child Support

Officer.

5. Mr T... 's housing costs incorrectly assessed by 1st Child

Support Officer as he is not the house owner nor has he legal

title in the mortgage and endowment policy."

The Tribunal gave the following reasons for its decision:-

"1. As 1-5 inclusive above.

2. Regulation (1a) of the MASC Regulations Schedule 3 and

endowment Payment Regulation 3(4) of the MASC Regulations

Schedule 3 does not apply.

3. 520 (sic) of Child Support Order (Northern Ireland) 91 was wrong

in law and based on a mistake as to a material fact."

The original handwritten reasons made it clear that paragraph 3 should read:-

"Section 20 of Child Support Order (Northern Ireland) 1991

was wrong in law &

based on a mistake as to a material fact"

4. On appeal, Mrs Patricia McCann, the Child Support Officer now concerned with this case submitted in her Notice of Appeal set out in a letter dated 28 October 1997 that the Appeal Tribunal had erred in law in determining the Absent Parent's housing costs by not properly taking into account the provisions of paragraph 4 of Schedule 3 of the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992.
5. An oral hearing was held at which Mrs McCann made further submissions, but both the Parent with Care and the Absent Parent were neither present nor represented, and in addition they did not avail themselves of the opportunity given to them to make written observations on the appeal.
6. The issue in dispute in this case is the decision of the Tribunal to allow the appeal and to direct that the maintenance liability imposed on the Absent Parent is to be recalculated taking into account proper housing costs.
7. The Tribunal made findings to the effect that the Absent Parent's partner is the sole owner of the home where he and his partner reside. The mortgage relating to the property is solely in his partner's name and is supported by an endowment policy in her name alone. The Tribunal in particular found that the Absent Parent's housing costs were incorrectly assessed as he is not the owner nor has he legal title to the mortgage and endowment policy.
8. In determining the exempt income and protected income of a parent, as provided by regulation 9 and 11 of the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992, (hereinafter referred to in this decision as the MASC Regulations), the Child Support Officer is required to include an amount in respect of housing costs. The amount of housing costs is determined under regulation 14 to 16 and 18 of the MASC Regulations. Regulation 14, in particular, provides as follows:-

"Eligible housing costs

14. Schedule 3 shall have effect for the purpose of determining the

costs which are eligible to be taken into account as housing costs

for the purposes of these regulations."

Schedule 3 itemises the payments that are eligible to be treated as housing costs and includes in particular "mortgage interest payments" at paragraph 1(b). In addition provisions are made in paragraph 3(4) of Schedule 3 to provide that payments under a policy of insurance taken out for the purpose of discharging a mortgage are eligible to be included as housing costs in exempt income calculations only. Paragraph 4 provides the conditions relating to eligible housing costs, and in particular paragraph 4(1) provides as follows:-

"Conditions relating to eligible housing costs

4.-(1) Subject to the following provisions of this paragraph the

housing costs referred to in this Schedule shall be included as

housing costs only where

(a) they are necessarily incurred for the purpose of purchasing,

renting or otherwise securing possession of the home for the

parent and his family, or for the purpose of carrying out repairs

and improvements to that home;

(b) the parent or, if he is one of a family, he or a member of

his family, is responsible for those costs; and

(c) the liability to meet those costs is to a person other than a

member of the same household."

9. It is helpful at this stage to quote relevant portions of regulation 1(2)of the MASC Regulations, which defines the meaning of certain terms in the Regulations:-

""couple" means a married or unmarried couple;"

""family" means -

(a) a married or unmarried couple ..."

""partner" means -

(a) in relation to a member of a married or unmarried couple who

are living together, the other member of that couple; ...."

10. Mrs McCann submitted both in writing and at the oral hearing that although the mortgage and endowment policy are in the name of the Absent Parent's partner, he is nonetheless entitled to have the payments included in his exempt and protected income calculations. The reason for this is that, because of the particular wording of the definition regulation in relation to "couple", "family" and "partner" in regulation 1(2) of the MASC Regulations, the Absent Parent and his partner are members of the same family. Consequently, the housing costs are being incurred in relation to the Absent Parent's home, and the liability to pay the costs is to someone other than a member of the same household. Therefore a member of the Absent Parent's family, as defined by regulation 1(2) of the MASC Regulations, is responsible for the costs, and, in these circumstances, the appropriate allowance should be included in exempt and protected income calculations. Mrs McCann also drew my attention to two decisions of Commissioners in Great Britain, namely, the decision of Mr Commissioner Wheeler in CCS/2852/95 and of Mr Commissioner Howell in CCS/6741/95.
11. I have come to the conclusion that Mrs McCann's submissions are well founded. I have sympathy with the Tribunal as it appears that the relevant statutory provisions were not drawn to its attention. However, in light of these provisions it seems clear to me that the Tribunal erred in law in coming to its conclusion in relation to the housing costs and that it was incumbent upon the Tribunal to hold that the Absent Parent's relevant housing costs are eligible to be included in calculations of exempt and protected income as the housing costs are the responsibility of his partner.
12. An additional matter was brought to my attention in Mrs McCann's submissions. The housing costs were calculated at a monthly figure of £153.01. The Child Support Officer incorrectly used this figure as the weekly amount of housing costs in the calculation of exempt and protected income. The costs were therefore restricted to £80.00 per week in accordance with regulation 18 of the MASC Regulations. There seems to have been confusion between whether this figure of £153.01 was a monthly or weekly figure. By applying the provisions of regulation 16(1)(b) of the MASC Regulations (whereby a parent who pays housing costs on a monthly basis shall have the weekly amount assessed by multiplying the relevant monthly sum by 12 and dividing it by 52). It is clear that the housing costs are in fact £35.31 per week. Another error seems to have been made in Mrs McCann's written submissions to the effect that the housing costs were £32.51 per week, but I am satisfied that her oral submission, backed up by documentary evidence that the correct figure is £35.31 per week. In any event I accept that the figure £35.31 is the correct amount to be included in exempt and protected income calculations. However the maintenance liability remains at the minimum amount as the Absent Parent's net income still exceeds his exempt income.
13. I do not consider it necessary to deal with the decisions in CCS/2852/95 and CCS/6741/95. Suffice to say I consider that my conclusion in this case is consistent with those decisions.
14. I conclude that I am entitled in all the circumstances to hold that the Appeal Tribunal decision was wrong in law and should be set aside in accordance with section 25(2) of the Child Support (Northern Ireland) Order 1991. I also conclude that I can give the decision which I consider that the Tribunal should have given on the main issue in relation to housing costs and I also consider it expedient to make a finding of fact that the housing costs are in fact £35.31 per week.
15. I confirm that the Tribunal was correct to allow the appeal of the Parent with Care insofar as it held that the Absent Parent's housing costs had been incorrectly assessed but I hold specifically that the directions to the Child Support Officer made by the Tribunal were incorrect and should be modified to read as follows:-

The Absent Parent's maintenance assessment should be recalculated

taking into account his proper housing costs of £35.31 per week.

I accordingly refer the case to a Child Support Officer with the amended directions so that the Absent Parent's maintenance assessment can be recalculated in accordance with these directions.

(Signed): J A H Martin

CHIEF COMMISSIONER

26 June 1998