Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC CSC1/98 (25 February 1999)

 


Decision No: CSC1/98

APPELLANT: MS V( S…

FIRST RESPONDENT: CHILD SUPPORT OFFICER

SECOND RESPONDENT: MR F( G...

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

Ballymoney Child Support Appeal Tribunal

dated 31 July 1997

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the mother of the relevant child against the decision of the Child Support Appeal Tribunal dated 31 July 1997 which allowed the appeal of the father of the relevant child from a decision of the Child Support Officer. Leave to appeal was granted by a Commissioner on 23 April 1998. By direction of a Commissioner, the Child Support Officer was specified as the first respondent in this appeal and Mr F... G..., the father of the relevant child, was specified as the second respondent.
2. In this case an application for Child Support Maintenance was made by the mother of E..., on 10 October 1995 and a maintenance enquiry form was issued to the father on 11 October 1995. When he returned this form he stated that he had care of his daughter for three nights per week. On 6 November 1996 a maintenance assessment was calculated on the basis that the Child Support Officer did not accept that the father had day to day care of his daughter. The father asked for a review of the assessment as he disputed the earnings and housing costs used in the calculations and he stated in particular that his daughter had been living with him. The mother disputed that arrangement. The Child Support Officer, on second tier review, considered all the evidence and decided that the father did not have day to day care of the child. The father then appealed the decision to a Child Support Appeal Tribunal which allowed his appeal and came to the following decision:-

"UNANIMOUS DECISION OF THE CHILD SUPPORT APPEAL TRIBUNAL

This appeal is allowed because the wrong figures were used in initial calculation regarding Mr G...'s wages and his housing costs.

In addition the calculation will have to take into account the issue

of shared care of E....

Mr G... had shared care of E... from 11 October 1995 to 24 March 1996, 4 nights per week and from 25 March 1996 to 1 July 1996 he had

full-time care of E..., so between 25 March 1996 to 1 July 1996

no award against Mr G... should be made.

DIRECTIONS TO THE CHILD SUPPORT OFFICER

Consider the issue of (a) shared care of E... at 4 nights per week

(b) full time care of E..., when calculations are re-done using

correct wages and housing costs for Mr G...."

The mother sought leave to appeal on the following grounds:-

1. the decision was wrong because the Tribunal had no evidence to satisfy

it that the child stayed with her father;

2. the Tribunal would not let her son give evidence at the hearing;

3. the Tribunal was wrong to permit the father to bring in outsiders to

the appeal hearing.

3. The Chairman refused leave to appeal but, as stated in paragraph 1 herein, leave was granted by a Commissioner on 23 April 1998.
4. It is relevant at this stage to set out the findings of fact material to the Tribunal's decision and the reasons for its decision. The Tribunal's findings of fact were as follows:-

"1. Panel accept that the wrong wages and housing costs were used

in the calculation of the assessment. We have now been

presented with correct figures as outlined by Mrs F... at the

hearing.

2. Regarding the issue of shared care.

Panel are quite satisfied that E... did spend several nights

per week at her father's house from 11 October 1995 to 24 March 1996.

We also know from the Social Worker that E... was full

time at her father's house from 25 March 1996 until 1 July 1996.

3. It is impossible to be sure because of the conflict of evidence,

exactly how many nights E... did spend on average in her dad's house from 11 October 1995 to 24 March 1996. Panel are satisfied

it would be at least 4 nights per week, and therefore accepted

that shared care at 4 nights per week from 11 October 1995 to

24 March 1996 will have to be included in assessment.

Full-time care of E... by her father was between 25 March 1996 until 1 July 1996 when Mr G... will not be required to pay

Child Support."

The Tribunal's reasons for its decision were as follows:-

"1. For period 25 March 1996 to 1 July panel accept letter

Mrs A... Social Worker that E... was staying with her

father full time. This is also backed up by the fact Mr G...

applied for and received Child Benefit for E... during this

period. Panel are satisfied E... returned to her mother's

house after an incident on 1 July 1996 in her father's home.

2. For period 11 October 1995 up to 24 March 1996, panel have to go on the evidence from Mr G... and Ms S.... There is a lot of bad feeling between the parties now, but without saying that we

did not believe the evidence of any particular witness, we

preferred the evidence of Mr G... when he said that as E...

was living with him, he thought he wouldn't have to fill in the

Child Support form sent to him.

As E... was always on good terms with her mother we also accept she saw and stayed over at her mother's home for about 3 nights

per week, staying about 4 nights per week at her father's house.

3. From 2 July 1996 onwards the issue of shared care does not arise."

It is relevant that Mr R S... is named in the list of witnesses for the mother and that it was also noted by the Chairman that "Ms S... attended with her son R..., aged 20 years. The latter is also Mr G...'s son." The Chairman noted that R( had interrupted the proceedings at one stage and that the Tribunal did not take evidence from him.

5. I arranged an oral hearing at which the appellant was neither present nor was she represented. The first respondent was represented by Mrs Patricia McCann and the second respondent was present but was not represented.
6. The second respondent made the point that he considered that the Tribunal had conducted the hearing entirely properly and had come to a proper reasoned conclusion in its decision and, in the circumstances, could not be considered to have erred in law in any way. Mrs McCann on behalf of the first respondent expanded on her original submissions which had been set out in a letter dated 23 February 1998 and, in particular submitted:-

1. the Tribunal's decision was not wrong in concluding that it had no

evidence to satisfy it that the child stayed with her father, but the

Tribunal had erred in failing to consider the appropriate period to

determine the day to day care issue;

2. the Chairman erred in law by declining to take evidence from Mr R( S...; and

3. the Tribunal was correct in law in permitting two persons, described

as friends in the record of proceedings, to attend the appeal hearing.

7. In this case the parents of the child have disputed the care arrangements and each parent has, in effect, alleged that the other is the absent parent. The Child Support (Northern Ireland) Order 1991 provides that to have jurisdiction to make a maintenance assessment there must be a "person with care", an "absent parent" and a "qualifying child". These terms are specifically defined in Article 4 of the order. The Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992 further provide for the calculation of child support maintenance. Where an absent parent has day to day care of a child, certain elements of the exempt and protected income calculations are adjusted to take account of this particular fact. In addition regulation 20 provides as follows:

"Persons treated as absent parents

20.-(1) Where the circumstances of a case are that -

(a) two or more persons who do not live in the same household each

provide day to day care for the same qualifying child; and

(b) at least one of those persons is a parent of that child,

that case shall be treated as a special case for the purposes of

the Order."

In such a case the amount of maintenance payable is apportioned, in accordance with the legislation, to reflect the number of nights the parent has day to day care of the relevant child.

8. The term "day to day care" is specifically defined in regulation 1(2) of the 1992 Regulations, as amended by the Child Support and Income Support (Amendment) Regulations (Northern Ireland) 1995 and is as follows:-

""day to day care" means -

(a) care of not less than 104 nights in total during the 12 month

period ending with the relevant week; or

(b) where, in the opinion of the child support officer, a period

other than 12 months but ending with the relevant week is more

representative of the current arrangements for the care of the child

in question, care during that period of not less in total than the

number of nights which bears the same ratio to 104 nights as that

period bears to 12 months,

and for the purpose of this definition -

(i) ...Not relevant

(ii) in relation to an application for child support maintenance,

"relevant week" shall have the meaning ascribed to it in head

(ii) of sub-paragraph (a) of the definition of "relevant week"

in this paragraph;

(iii) ... Not relevant

(iv) ... Not relevant."

9. The relevant week referred to in para (ii) of the definition of "day to day care" is defined in the same regulation as follows:-

""relevant week" means -

(a) in relation to an application for child support maintenance or

a review under Article 20(1)(a) or 21(1)(a) of the Order -

(i) in the case of the person making the application, the

period of 7 days immediately preceding the date on which

the appropriate maintenance assessment application form

(being an effective application within the meaning of

regulation 2(4) of the Maintenance Assessment Procedure Regulations)

is submitted to the Department;

(ii) in the case of a person to whom a maintenance assessment

enquiry form is given or sent as the result of such an application, the period of 7 days immediately preceding the date on which that form is given to him or, as the case may

be, the date on which it is treated as having been sent to

him under regulation 1(6)(b) of the Maintenance Assessment Procedure Regulations;"

10. As Mrs McCann has pointed out, the maintenance enquiry form was issued to the absent parent on 11 October 1995 and a maintenance assessment was calculated and it was effective from that date. However the relevant week for the purposes of that assessment, as defined by regulation 1(2) of the Regulations, was the week of 6 to 12 October 1995. Accordingly the Tribunal in this case was obliged to consider the care arrangements of the child in the 12 month period ending with the relevant week (ie the week of 6 to 12 October 1995), or any other period ending with the same relevant week as it considered was more representative of the current arrangements for the care of the child (see subparagraph (b) of the definition of "day to day care" set out in regulation 1(2) as amended).
11. It is clear from the Tribunal's decision and its reasoning that it was considering the care arrangements of the child for a period after the relevant week in question. In so doing I find that the Tribunal has erred in point of law.
12. The second ground of the mother's grounds of appeal is that the Tribunal did not listen to her son at the hearing and, in light of all the circumstances, I consider that she is alleging that the Tribunal did not permit him to give evidence to the Tribunal.
13. It is noteworthy that the record of proceedings states that R( S... was appearing as a witness but, as Mrs McCann has pointed out, there is no indication that she in fact attempted to call him during the proceedings. The record of proceedings does state, however, that the "Panel did not take evidence from R... S...." It is correct that the Tribunal's reasons do not make clear why it declined to take evidence from R... S.... Mrs McCann submitted that the decision, in the circumstances, does not meet the requirements of regulation 13(3A) of the Child Support Appeal Tribunal's (Procedure) Regulations (Northern Ireland) 1993, as amended, which obliges a Tribunal in certain circumstances to give a statement, inter alia, of the reasons for the Tribunal's decision and of its findings on questions of fact material to its decision.
14. In support of her submission Mrs McCann referred me to a Great Britain Social Security Commissioner's decision, R(SB)6/82, in which the Commissioner dealt with a case concerning a Social Security Appeal Tribunal that had refused a request from the appellant's representative to permit a witness to speak. The Commissioner stated at paragraph 5 as follows:-

"... Tribunals are not bound to hear evidence which is clearly

irrelevant or immaterial, whether it be from a witness actually

giving evidence before the tribunal or from a proposed witness.

The discretion to stop or curtail such evidence should however

always be exercised with care, and in its exercise due regard

should in my view always be paid to the necessity of allowing

justice to be seen to be done. Particular care should be taken

to ascertain clearly the scope of a proposed witness' evidence

before any decision is taken to decline to hear such a witness."

15. In my view these words are equally apposite to Child Support Appeal Tribunal cases. In the circumstances I agree with Mrs McCann's submission that the Appeal Tribunal in this case has erred in point of law by (i) either not investigating the scope of Mr R... S...'s potential evidence, or by (ii) failing to record that it had investigated this matter; and in this respect I conclude that the decision, in particular, fails to meet the requirements of regulation 13(3A) of the Child Support Appeal Tribunals (Procedure) Regulations (Northern Ireland) 1993, as amended.
16. The third ground of appeal is that the Tribunal erred in law in permitting the second respondent to bring two "outsiders" to the oral hearing.
17. However it should be noted that regulation 9 of the Child Support Appeal Tribunals (Procedure) Regulations (Northern Ireland) 1993 states as follows:-

"Any party to the proceedings may be accompanied and (whether or not

the party himself attends) may be represented by another person

whether having a professional qualification or not, and for the

purposes of any proceedings any such representative shall have all

the rights and powers to which the person represented is entitled

under these regulations, except, subject to regulation 3, that a

representative who is not a barrister or solicitor shall not have the

power to sign the notice of appeal or application."

18. It is clear that the second respondent, the father, was entitled to have a companion or companions with him in accordance with this regulation and I can identify no error on the part of the Tribunal in permitting him to be so accompanied at the appeal hearing.
19. However, for the reasons stated at paragraphs 10 and 14 I conclude that the Tribunal's decision is erroneous in point of law and I set it aside. In the circumstances I consider that it is appropriate to refer this case back to a Child Support Appeal Tribunal for rehearing and this Tribunal should take the present decision into account in its deliberations.

(Signed): J A H Martin

CHIEF COMMISSIONER

(Date): 25 February 1999