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Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2003] NISSCSC CSC2/03-04 (15 April 2003)
URL: http://www.bailii.org/nie/cases/NISSCSC/2003/CSC2_03-04.html
Cite as: [2003] NISSCSC CSC2/03-04, [2003] NISSCSC CSC2/3-4
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[2003] NISSCSC CSC2/03-04 (15 April 2003)
- This is an appeal, with the leave of the Legally Qualified Member granted on 28 August 2002, by the appellant against the decision of the Tribunal, dismissing the appellant's appeal and affirming the decision of the decision maker to the effect that the appellant, the parent with care, having failed to make an application for child maintenance under Article 9(1) of the Child Support (Northern Ireland) Order 1991, has not shown sufficient reason why she should not be required to co-operate in accordance with Article 9. However, for the reasons set out in paragraphs10 and 11 herein, the decision that in reality was being appealed is the imposition of a reduced benefit direction (RBD) under Article 43(5) of the Order.
- By direction of the Legal Officer, the Decision Making and Appeals Unit of the Department is the Respondent in these proceedings. A hearing of the present appeal was arranged and took place on 5 November 2003. At this hearing the parent with care, who was not present, was represented by Mr Hatton of the Law Centre (NI) while the Department was represented by Mr McIlduff. In addition I had the benefit of additional written submissions from both Mr Hatton and Mr McNamara (in place of Mr McIlduff).
- As this case originally came before me in my capacity as a Social Security Commissioner I refer to my decision – C13/02-03(IS) – in which I held that I did not have jurisdiction as a Social Security Commissioner to hear the appeal. This decision is appended to the present decision as an Appendix.
- The background facts of the case can be summarized as follows: -
- At this point I consider that it is appropriate to set out the material provisions of the relevant legislation which is contained in the Child Support (Northern Ireland) Order 1991: -
- The Legally Qualified Member made the following record of the proceedings before the Tribunal at which the parent with care was represented by Mr Mackle and Mr McIlduff was the presenting officer: -
- The Tribunal gave the following reasons for its decision: -
- The three original grounds of appeal raised the following issues which can be set out as follows: -
- An additional issue arose during the oral argument (and subsequent written submission) as to what exactly the decision maker and the Tribunal were actually purporting to decide. It is appropriate for me to deal with this issue at the outset.
- In accordance with Article 43(2) the Department served written notice on the parent with care on 11 August 2001 requiring her either (i) to comply with the requirement imposed by the Department under Article 9(1) (to authorise the Department to take action to recover child support maintenance from the absent parent, or (ii) to give the Department reasons for failing to do so. As the parent with care did not comply with the notice, a decision maker on 25 September 2001 imposed an RBD in accordance with Article 43(3) and (5) from 2 October 2001. The representative of the parent with care then, in a letter dated 23 October 2001, specifically sought a reconsideration of the decision "to impose a reduced benefit direction" and further asked that the letter be treated "as an appeal request", as no change was being made to the decision. Accordingly it is clear that the decision being appealed against is the decision imposing an RBD in accordance with Article 43 – and a right of appeal against such a decision is specifically given under the provisions of Article 22 and paragraph 3(1)(b)(i) of Schedule 4C of the Order. Unfortunately confusion has arisen because of the Department's original written submission to the Tribunal. This has come about because this submission highlighted the "good cause" decision (given in accordance with Article 9(2)) as the decision under appeal, whereas the decision that was being appealed was that imposing an RBD. However the Department has submitted to me the Tribunal clearly dealt with the real issue in the case, in spite of the misleading written submission contained in the original submission to the Tribunal, as it stated in its reasons that: -
- I conclude that the Tribunal, in spite of the potentially misleading submission to it, did in fact deal with the correct issue, namely the correctness of the Article 43 decision. I note also that Mr Hatton has not argued at any stage that the Tribunal did not deal with the correct legal issue.
- In relation to the first substantive ground of appeal – namely, whether the Tribunal's decision was so unreasonable that no reasonable decision maker could have arrived at it – Mr Hatton submitted that the Tribunal could not properly conclude that there is no prospect of the parent with care and the relevant child not suffering harm or undue distress if the parent with care complied with the Article 9 requirements. Mr Hatton relied specifically on the Great Britain decision of Mr Commissioner Williams – R(CS)8/02 at paragraph 12 – where the Commissioner stated: -
- Mr Hatton also objected to the Tribunal taking into account what he considered to be irrelevant considerations, namely, that the fears of the parent with care were speculative, - and that there was a lack of involvement by the police and any medical doctor – and, in addition, that it was most unlikely that her address would be accidentally revealed to the Child Support Agency.
- It must be borne in mind that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset the tribunal's conclusions unless:
- In accordance with Article 43(3) the Department, through its decision maker, and the Tribunal on an appeal from the decision maker's decision, is obliged to have regard to the reasons given by the parent with care. This it has done. It has also considered whether there were reasonable grounds for the belief of the parent with care that there would be risk, etc, of harm or distress as a result of complying with an Order to co-operate with the Child Support Agency.
- At one stage during the case there was legal argument directed on the issue of whether a Tribunal had to look at the issue of reasonableness through the eyes of the Department – but, clearly in my view, on an appeal from the decision maker to the Tribunal, the Tribunal on a rehearing is required to put itself in the position of a decision maker and therefore the Tribunal must decide whether it, the Tribunal, considers that there are reasonable grounds for believing that there would be the relevant risk.
- When deciding these issues the decision maker, and the Tribunal on appeal, are obliged to look into the future and come to a judgment as to what might or might not happen in the future. This is a difficult task but it is a task that is undertaken on a day-to-day basis throughout the courts and tribunals of the United Kingdom. I do not consider that this process should be labelled as speculation. The Tribunal is specifically required to look into what amounts to all the circumstances and come to a conclusion.
- The Tribunal in this case is required to decide the facts. It has the heavy responsibility of deciding the important issues set out in Article 43. I do not find, in the circumstances of the case which are admittedly difficult, that the Tribunal erred in law in the respect alleged, as I do not consider that its decision was irrational. However, I further conclude, as the Tribunal considered there were no reasonable grounds (as set out in Article 43(3)) that it must then decide whether or not (under Article 43(5)) it ought to exercise its discretion to give an RBD.
- Article 43(5) is an important provision in the statute book. The decision maker and the Tribunal on appeal have a discretion, even if reasonable grounds do not exist under Article 43(3). This discretion must be exercised judicially. As the learned editor of Child Support legislation (2001-2002 – Jacobs and Douglas) has stated: -
- Accordingly the welfare of the children must still be specifically considered by a Tribunal even if otherwise it finds that no reasonable grounds exist under Article 43(3).
- The Tribunal appears to have come reluctantly to the conclusion that it must impose an RBD. However, that is not the case. Article 6 must still be applied and the welfare of the children must be addressed, even if the other statutory tests are clearly in favour of an RBD. Unfortunately this aspect of the case was not dealt with specifically in the written submission to the Tribunal although there is a bare reference in the submission to the decision maker having "given due consideration to the provisions of Article 6 …" and in addition there is a reference to the welfare of the child. I can envisage circumstances where no overt reference to the discretion under Article 43(5) will be required – but the present appeal is not such a case. Therefore I conclude that the Tribunal erred in law by not specifically dealing with the issue whether, in light of the provisions of Article 6, it ought to exercise its discretion under Article 43(5) to give an RBD with respect to the parent with care.
- In relation to the second ground of appeal, in my view there is nothing defective in the Tribunal's reasoning, save its failure to recognise that the imposition of an RBD was discretionary and must be looked at in light of the overall welfare of the children.
- In relation to the third legal issue, in light of my overall conclusion this point is no longer strictly relevant and there is no requirement for me to rule on the issue in all the circumstances. However, it may be useful to make some general remarks. Domestic legislation (not taking into account the Human Rights Act 1998) has clearly given a discretion to the Tribunal, for the reasons stated earlier, to look after the interests of the children of the parent with care and, in the circumstances, this will include the right to respect for private and family life set out in Article 8 of the European Convention on Human Rights. However, in my view, the provisions of Article 43(5) and Article 6 of the Order are probably sufficient to ensure that the interests of the family are considered – the welfare of the children being paramount. Accordingly it does not seem to me that it is reasonably arguable that this part of the Child Support scheme infringes Article 8 of the European Convention on Human Rights. Nonetheless, I emphasize that my conclusion on this matter is not a considered one in light of the fact that it is no longer a relevant issue for decision in light of my decision on what has turned out to be the main question in this case.
- Accordingly I allow the appeal for the reasons set out in paragraphs 18-21 herein. Therefore I set aside the Tribunal's decision and refer the case back to a Tribunal for a rehearing of the appeal. This Tribunal should take into account specifically what I have set out at paragraphs 18 to 21 herein. Additionally I would reiterate the point made at paragraphs 10 and 11 herein that the issue in the case is whether an RBD was properly given in all the circumstances.
- This is an appeal by the parent with care, with the leave of the Legally Qualified Member, against the decision of a Tribunal to the effect that a Decision Maker's decision of 25 September 2001 was confirmed. That decision was that the parent with care had failed to make an application for Child Maintenance under Article 9(1) of the Child Support (Northern Ireland) Order 1991 and that the parent with care had not shown sufficient reason why she should not be required to co-operate in accordance with Article 9. In addition the Decision Maker had given due consideration to the provisions of Article 6 of the Child Support (Northern Ireland) Order 1991 and, using all the information available to him, he decided that there was no indication that the welfare of any child may be affected if the parent with care was required to co-operate.
- This case was listed by me to hear submissions concerning the important preliminary issue as to whether I had jurisdiction to hear this case as a Social Security Commissioner or whether it should more properly be dealt with by a Child Support Commissioner. Although I am appointed both as the Social Security Commissioner (under section 50 of the Social Security Administration (Northern Ireland) Act 1992) and as the Child Support Commissioner (under section 23 of the Child Support Act 1991), the two appointments are entirely separate, even though it has been the universal practice, not only in Northern Ireland but in the rest of the United Kingdom, to appoint the same persons both as Social Security Commissioners and as Child Support Commissioners. However, I have no general jurisdiction as "a Commissioner".
- The background of the case relevant to this preliminary issue is as follows. The parent with care has been claiming Income Support from 29 May 2001. As she is a lone parent she was contacted by the Department in relation to Child Support maintenance. She stated that she did not wish the Child Support Agency to contact the absent parent and gave reasons for her wish. The Department decided that the parent with care was required to supply the requested information about her son's father. The parent with care failed to comply with this request. A Departmental decision maker then decided that the parent with care had failed to show good cause for refusing to comply with the request for information and issued a Reduced Benefit Direction to be imposed on the claim of the parent with care for Income Support. The parent with care then appealed this decision. All the correspondence received by the parent with care from the Appeals Service, the administrative body supporting the Appeal Tribunals, referred to the appeal as an Income Support appeal and not as a Child Support appeal. The appeal was disallowed by a Tribunal on 27 March 2002. Again the documentation relating to the appeal was consistent with the case having been dealt with as an Income Support case. The representative of the parent with care then sought leave to appeal to the Social Security Commissioner by a letter dated 12 August 2002 which was received at the Appeals Service on 16 August 2002. As the application was outside the one month limit for appealing it was referred to a legally qualified member for a decision. The parent with care, through her representative, was asked to fill in the appropriate form giving reasons why the application was late. This form is headed "application for leave to appeal to a Social Security/Child Support Commissioner". Time was extended by the Legally Qualified Member on 28 August 2002 and leave to appeal granted on the same date. The parent with care, who is now represented by the Law Centre (NI), then sent to the Office of the Social Security Commissioners and Child Support Commissioners the form OSSC1 along with the copies of the Tribunal's record of proceedings and statement of reasons for its decisions, as well as the statement of grounds for appeal and the decision granting leave to appeal. This form was specifically completed in such a way as to make clear that the case related to Child Support, as the word "yes" was circled opposite the question - "Does your case relate to Child Support?"
- The appeal was registered in the Office of the Social Security Commissioners and Child Support Commissioners on 23 September 2002 as an Income Support appeal. In the circumstances it was entered in the register of Social Security appeals and not on the register of Child Support appeals.
- At the request of a Commissioner the Registrar of Appeals wrote to the Appeals Service (NI) to clarify whether this case had been treated as an Income Support appeal rather than a Child Support appeal. A reply was received from the Secretariat to the Office of the President of Appeal Tribunals to the effect that the appeal was referred to and treated as an Income Support appeal and that the Tribunal was constituted under the 1998 Order (the Social Security (Northern Ireland) Order 1998) with a legally qualified member sitting alone.
- In the circumstances I held a hearing on a preliminary point, namely the jurisdiction of a Social Security Commissioner in the present case. At the hearing the parent with care was represented by Mr Hatton of the Law Centre (NI) while the Department was represented by Mr McIlduff of the Decision Making and Appeals Unit. I am indebted to the two advocates for explaining the complicated background to this case and for their pragmatic approach to the problems that arose.
- The present procedures for both Social Security and Child Support appeals before Tribunals are set out in the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. Before the introduction of the new procedure, which was occasioned by the implementation of the Social Security (Northern Ireland) Order 1998, Income Support decisions were taken by Adjudication Officers appointed under section 36 of the Social Security Administration (Northern Ireland) Act 1992. However, Child Support decisions were taken by Child Support Officers appointed under Article 15 of the Child Support (Northern Ireland) Order 1991. However, both these provisions were revoked with the introduction of the Social Security (Northern Ireland) Order 1998. The effect of this was that the functions of both Adjudication Officers and Child Support Officers were transferred to the Department under Article 3 of the Social Security (Northern Ireland) Order 1998. Thereafter any Officer authorised by the Department can give decisions in relation to Child Support legislation.
- The practice appears to have arisen that decision makers based in Social Security offices give decisions on "good cause" in relation to Reduced Benefit Directions even though the Reduced Benefit Direction decisions arise out of Child Support Legislation.
- It seems that prior to 1 April 1999 the procedures in place between the Social Security Agency and the Child Support Agency were such that the Social Security Agency Visiting Officers gathered information, in relation to applications for maintenance only, from the parents with care on behalf of the Child Support Agency. All other such information in relation to "good cause" was obtained by the Child Support Agency through its procedures. Apparently the Social Security Agency Adjudication Officers played no part in the decision making process other than to ensure that, if the Child Support Officer decided that a Reduced Benefit Direction was appropriate, it was actually put into effect. From 1 April 1999 it seems that initiatives were taken to enable the Social Security Agency and the Child Support Agency to work more closely together. Accordingly Social Security Agency Visiting Officers undertook "good cause" interviews in circumstances where parents with care stated that there was a risk of harm and/or undue distress to themselves or any child living with them. The information obtained was then passed on to the Child Support Agency for it to make a decision as to whether a Reduced Benefit Direction was appropriate.
- It also appears that on 1 April 2000 this initiative to ensure co-operation between the Agencies resulted in the "good cause" decision making process moving from the Child Support Agency to the Social Security Agency. The Social Security Agency's Decision Makers, who had replaced Adjudication Officers in Income Support cases from 29 November 1999, were all given appropriate training on how to give "good cause" decisions and accordingly as and from 1 April 2000 all such decisions and any subsequent Reduced Benefit Directions became the actual responsibility of the Social Security Agency's Decision Makers. However, while the two Agencies seem to have agreed this procedure, the legislation governing both "good cause" and the Reduced Benefit Action still is and always has been Child Support legislation. The administrative convenience of the two Agencies cannot change that fact that the decision is a decision of the Department.
- A person who is aggrieved by a decision of the Department with respect to a Reduced Benefit Direction has the right of an appeal to an Appeal Tribunal. The right to appeal is specifically given by the provisions of Article 22(1) and paragraph 3(1)(b)(i) of Schedule 4C of the Child Support (Northern Ireland) Order 1991, as amended.
- Articles 5 and 6 of the Social Security (Northern Ireland) Order gave the new unified Appeal Tribunals jurisdiction to take over the functions, interalia, of the old Social Security and Child Support Tribunals. Article 5(1)(b) and 5(2)(b) of the Social Security (Northern Ireland) Order 1998 specifically provides an Appeal Tribunal with the jurisdiction to hear appeals relating to Child Support. However, it is not necessarily material to a Tribunal hearing appeals from the decisions of Decision Makers for it to classify a case as a Child Support or a Social Security case. This is because the new unified Tribunal has jurisdiction to hear both Child Support and Social Security cases. In the past the Tribunal would have been in law a specific Tribunal, for example, either a Child Support Appeal Tribunal or a Social Security Appeal Tribunal. This is no longer the position. The unified Tribunal, which for some unaccountable reason has not been named by the legislation as anything other than an Appeal Tribunal, has jurisdiction when appropriately constituted to hear both Child Support and Social Security cases.
- Article 25 of the Child Support (Northern Ireland) Order 1991 states that a person aggrieved by a decision of an Appeal Tribunal may appeal to a Child Support Commissioner on a question of law.
- On the other hand Article 15(1) of the Social Security (Northern Ireland) 1998 provides for a person aggrieved by a decision of an Appeal Tribunal to appeal to a Social Security Commissioner on a question of law relating to Social Security Decisions.
- The question at issue is whether I am being asked to deal with a Social Security matter or a Child Support matter. The legislation applicable in the present case is concerned with Child Support law. In particular the provisions dealing with the requirement to provide information and the requirement to show "good cause" are contained within Article 9 of the Child Support (Northern Ireland) Order 1991 (as amended). Moreover, the provisions dealing with the Department's powers to impose a Reduced Benefit Direction are contained in Article 43 of the Child Support (Northern Ireland) Order 1991.
- Accordingly the imposition of a Reduced Benefit Direction is dependent upon the parent with care failing to show that she had good cause to refuse to comply with the request for information. Therefore the relevant decision is whether or not the parent with care had good cause not to comply with the Department's request. These are matters which are decided by the application of Child Support legislation. The fact that the Department was dealing with the matter through the Social Security Agency rather than the Child Support Agency is immaterial in my view. Accordingly, I take the view that the case can only be dealt with at Commissioner level by a Child Support Commissioner. My conclusion is entirely consistent with the submissions of both Mr Hatton and Mr McIlduff.
- In the circumstances I hold that in my capacity as a Social Security Commissioner I have no jurisdiction to hear this case and that the case has wrongly been registered as an Income Support appeal, which is part of the Social Security Commissioner's appellate jurisdiction. However, as the Social Security Commissioner's Office is run conjointly with the Child Support Commissioner's Office I do not anticipate any difficulty in this case being re-registered retrospectively as at the date it was received at the Office, as a Child Support appeal. I expect that, in light of my decision herein, the matter can be expedited and decided as a Child Support case as soon as reasonably possible. Nevertheless, I consider that it is appropriate to direct that this decision is specifically drawn to the attention of the Registrar of Appeals.
- If the problem in this case had arisen pre-1999 this method of dealing with the issue would have been impossible as the Tribunal hearing the original appeal would not, as a Social Security Appeal Tribunal, have had the jurisdiction to hear the appeal in the first place – therefore a Commissioner, whether Child Support or Social Security, would not have had the jurisdiction to hear the substantive merits of any appeal.
- I realise that at the hearing of this appeal I indicated that I probably would be giving two separate decisions, one as a Child Support Commissioner, the other as a Social Security Commissioner. On reflection I have come to the conclusion that I can only deal at this stage with the case in my capacity as a Social Security Commissioner as it is presently registered as a Social Security case.
- There is no doubt that this case has been held up unnecessarily because of its incorrect classification as a Social Security appeal case both at Tribunal level and, arising out of the incorrect classification, a further misclassification at Commissioner level. In similar cases to this case this problem can be obviated in the future if the Decision Makers, the Appeals Officers and the Presenting Officers all make it entirely clear that they are, in law, properly dealing with Child Support matters and such cases must be processed by the adjudicating authorities accordingly, even though the cases are, for administrative purposes, being dealt with by Officers of the Social Security Agency. Failure so to do will result in unnecessarily complicating the appellate process. In the circumstances I hope that my determination in this case will be drawn to the attention of both the Social Security Agency and the Child Support Agency as it must be made clear that administrative convenience in delimiting the respective jurisdictions of the two parts of the Department should not obscure the two separate legal jurisdictions of Child Support and Social Security.
Decision No: CSC2/03-04
(a) The parent with care has been claiming Income Support since 29 May 2001. As she is a lone parent she was interviewed on 10 July 2001 in order to establish her position with regard to child support maintenance. She refused to provide details of her son's father as she believed that if she did he would trace her whereabouts and harm her. As a consequence of the information obtained by the Department in the course of this interview it was decided that she was required to provide the name of her son's father in order that child support maintenance be sought from him. In a form issued on 11 July 2001 she was asked to provide details of her son's father but she failed to comply. A further form was issued on 11 August 2001 and she also failed to comply with this.(b) On 25 September 2001 a decision maker considered her claim and decided that she had not shown good cause for refusing to make an application for child support maintenance and as a consequence a Reduced Benefit Direction was issued to the Department for it to be imposed on her claim.
(c) This decision was subsequently appealed and an oral hearing was held on 27 March 2002. During the course of the hearing the parent with care gave additional evidence concerning her son's father and the reason for her withholding his name. She stated that he had assaulted her in March or April 1998 after which they had split up and she had neither seen or heard from him since. The incident was a one off incident and the parent with care had not reported it to anyone. She believed that he was trying to scare her as he had wanted her to have an abortion. He currently lives in West Belfast but he does not know her address. However they share mutual friends who do know her address. She believes that if the Child Support Agency were to contact him then he would come looking for her. She is not aware of him having perpetrated any other acts of violence or if he has any involvement with the police. The Tribunal upheld the decision of the decision maker.
"Meaning of certain other terms used in this OrderARTICLE 4 – (1) A child is a "qualifying child" if –
(a) one of his parents is, in relation to him, an absent parent; or(b) both of his parents are, in relation to him, absent parents.(2) The parent of any child is an "absent parent", in relation to him, if -
(a) that parent is not living in the same household with the child; and(b) the child has his home with a person who is, in relation to him, a person with care.(3) A person is a "person with care", in relation to any child, if he is a
person –(a) with whom the child has his home;(b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and(c) who does not fall within a prescribed category of person.(4) The Department shall not, under paragraph (3)(c), prescribe as a category –
(a) parents;(b) guardians;(c) persons in whose favour residence orders under Article 8 of the Children (Northern Ireland) 1995 are in force;(5) For the purposes of this Order there may be more than one person with care in relation to the same qualifying child.
(6) Periodical payments which are required to be paid in accordance with a maintenance assessment are referred to in this Order as "child support maintenance".
(7) Expressions are defined in this Article only for the purposes of this Order.
…
Welfare of children: the general principle
Article 6.
Where in any case which falls to be dealt with under this Order, the Department is considering the exercise of any discretionary power conferred by this Order, the Department shall have regard to the welfare of any child likely to be affected by its decision.
…
Applications by those receiving benefit
Article 9.
(1) Where income support, an income-based jobseeker's allowance, or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of the parent of a qualifying child that parent shall, if –
(a) that parent is a person with care of the child; and(b) that parent is required to do so by the Department,authorise the Department to take action under this Order to recover child support maintenance from the absent parent.(2) The Department shall not require a person ("the parent") to give it the authorisation mentioned in paragraph (1) if it considers that there are reasonable grounds for believing that -
(a) if the parent were to be required to give that authorisation; or(b) if that parent were to give it,there would be a risk of that parent, or of any child living with that parent, suffering harm or undue distress as a result.(3) Paragraph (2) shall not apply if the parent requests the Department to disregard it.
(4) The authorisation mentioned in paragraph (1) shall extend to all children of the absent parent in relation to whom the parent first mentioned in paragraph (1) is a person with care.
(5) That authorisation shall be given, without unreasonable delay, by completing and returning to the Department an application -
(a) for the making of a maintenance assessment with respect to the qualifying child or qualifying children; and(b) for the Department to take action under this Order to recover, on that parent's behalf, the amount of child support maintenance so assessed.(6) Such an application shall be made on a form ("a maintenance application form") provided by the Department.
(7) A maintenance application form shall indicate in general terms the effect of completing and returning it.
(8) Paragraph (1) has effect regardless of whether any of the benefits mentioned there is payable with respect of any qualifying child.
(9) A person who is under the duty imposed by paragraph (1) shall, so far as that person reasonably can, comply with such regulations as may be made by the Department with a view to the Department being provided with the information which is required to enable -
(a) the absent parent to be traced;(b) the amount of child support maintenance payable by the absent parent to be assessed; and(c) that amount to be recovered from the non-resident parent.(10) The obligation to provide information which is imposed by paragraph (9) -
(a) shall not apply in such circumstances as may be prescribed; and(b) may, in such circumstances as may be prescribed, be waived by the Department.(11) A person with care who has authorised the Department under paragraph (1) but who subsequently ceases to fall within that paragraph may request the Department to cease acting under this Article.
(12) It shall be the duty of the Department to comply with any request made under paragraph (11) (but subject to any regulations made under paragraph (13)).
(13) The Department may be regulations make such incidental or transitional provision as it thinks appropriate with respect to cases in which it is requested under paragraph (11) to cease to act under this Article.
(14) The fact that a maintenance assessment is in force with respect to a person with care shall not prevent the making of a new maintenance assessment with respect to that person in response to an application under this Article.
…
Failure to comply with obligations imposed by Article 9
Article 43
(1) This Article applies where any person ("the parent") –
(a) fails to comply with a requirement imposed on the parent by the Department under Article 9(1); or(b) fails to comply with any regulation made under Article 9(9).(2) The Department may serve written notice on the parent requiring the parent, before the end of the specified period, either to comply or to give the Department reasons for failing to do so.
(3) When the specified period has expired, the Department shall consider whether, having regard to any reasons given by the parent, there are reasonable grounds for believing that, if the parent were to be required to comply, there would be a risk of the parent or of any children living with the parent suffering harm or undue distress as a result of complying.
(4) If the Department considers that there are such reasonable grounds, it shall -
(a) take no further action under this Article in relation to the failure in question; and(b) notify the parent, in writing, accordingly.(5) If the Department considers that there are no such reasonable grounds, it may, except in prescribed circumstances, give a reduced benefit direction with respect to the parent.
(6) Where the Department gives a reduced benefit direction it shall send a copy of it to the parent.
(7) Schedule 4C shall have effect for applying Articles 18, 19, 22 and 28ZA to 28ZC to decisions with respect to reduced benefit directions
(9) A reduced benefit direction shall take effect on such date as may be specified in the direction.
(10) Reasons given in response to a notice under paragraph (2) may be given either in writing or orally.
(11) In this Article -
"comply" means to comply with the requirement or with the regulation in question;"reduced benefit direction" means a direction, that the amount payable by way of any relevant benefit to, or in respect of, the parent concerned be reduced by such amount, and for such period, as may be prescribed;"relevant benefit" means income support, an income –based jobseeker's allowance or any other benefit of a kind prescribed for the purposes of Article 9; and"specified", in relation to any notice served under this Article, means specified in the notice; and the period to be specified shall be determined in accordance with regulations made by the Department."
"DOCUMENTS CONSIDERED:Departmental submission, scheduled documents and appellant's representative's written submission.
RECORD OF PROCEEDINGS [including evidence considered and details of the adjournment application (if any)]
Mr Mackle – we rely on the written submission. There is no corroborative evidence of the alleged assault.
[The claimant] – The assault occurred about March or April 1998, at home. It was not reported to anyone. We split up then. It was a one-off incident but he had been threatening me for a while to have an abortion. I have not seen or heard from him since. He has never seen or wanted to see [M], his son. He was trying to scare me. He held me against the wall with his hand on my throat. He told me he did not want me anywhere near him. If the Child Support Agency contact him, he will not be happy and he will come after me. He lives in […]. I live […]. I do not know of any other acts of violence on his part or involvement with the Police. He is now aged 31. At that time he was a student. I am unaware of his current occupation. He does not know my address but he knows my friends who do know it.
Mr Mackle – Refers Article 8 European Human Rights Convention. The Child Support Agency does accidentally pass on such information and there is no guarantee he wouldn't get her address. He was vehemently opposed to the birth and he will blame her if the Agency now looks for maintenance to age 16. There is very little on "good cause" in this context. Nothing to add.
Mr McIlduff – It is a discretionary matter for the Tribunal. There is insufficient evidence of a serious risk of harm to her or her son? But it is for the Tribunal to decide on the basis of the evidence. Nothing to add.
[The claimant] - nothing to add."
"The law is reasonably clearly explained in Mr Mackle's written submission and in the commentary on the equivalent GB legislation by Jacobs and Douglas. No reduced benefit direction may be made if there are reasonable grounds to believe that there would be a risk of the parent and child suffering harm and undue distress. The risk need not be substantial and it need not be shown that the harm or undue distress would actually occur, but there must be a realistic possibility of it occurring – CCS 1037/95 paragraph 9. It is not permissible to take into account the effects of the benefit reduction – CSC 8/94 paragraph 6.I have carefully considered [the claimant's] evidence and have very great sympathy for her. But the facts are that she was technically assaulted once, four years ago, by [M's] father. The assault was not serious enough to involve the Police or doctors. Since then she has had no contact with him and he is not aware of her address. I cannot say on these facts that she has shown reasonable grounds to believe there would be a risk of suffering harm or undue distress. I think the risk is too remote and is based on her apprehension of what might happen and there is no realistic possibility of it occurring. Her appeal is based largely on speculation about the possible feelings and actions of someone four years on, and on speculating that the Child Support Agency may accidentally reveal to [M's] father her current address. I am not prepared to allow the appeal on the basis of such speculation. I have also considered whether the legislation infringes Article 8 of the European Convention on Human Rights as set out in schedule 1 to the Human Rights Act 1998 (right to respect for private and family life). However the Child Support legislation was held to be valid in Logan v UK (1996) 22 EHRR CD178. The appeal is accordingly dismissed, albeit reluctantly in view of the financial implications for her and her children."
(i) whether the Tribunal's decision was so unreasonable that no reasonable decision maker could have arrived at it;(ii) whether the reasons for the decision demonstrated that due consideration was given to the issue as to whether there would be a risk to the parent with care suffering undue stress in light of her history of assault and very real fears of violence from the absent father if he discovered her whereabouts;
(iii) whether the relevant legislation provisions operate to infringe Article 8 of the European Convention on Human Rights.
"No reduced benefit direction may be made if there are reasonable grounds to believe that there would be a risk of the parent and child suffering harm and undue distress."
"As the European Court noted, section 6(2) [the equivalent legislation to Article 9(2) of the Child Support (Northern Ireland) Order 1991] provides an important safeguard to protect the rights of the parent with care and any children involved."
The reference to the European Court is a reference to the case of Stacey –v- The United Kingdom (Application No. 0040432/98).
(a) there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.
Accordingly even if I were in disagreement with the Tribunal's inferences and conclusions, that does not render the Tribunal's decision erroneous in point of law if the Tribunal's conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.
"The officer has a discretion, even if reasonable grounds do not exist under subs.(3). The provisions of subs.(3), (4) and (5) do not displace the duty in s.2. The welfare of any children affected must still be considered if the terms of subs.(3) are not satisfied."
The equivalent Northern Ireland statutory reference to section 2 of the Great Britain Child Support Act 1991 is Article 6 of the Order.
(Signed): J A H Martin QC
CHIEF COMMISSIONER
18 March 2004
Decision No: C13/02-03(IS)
(Signed): J A H Martin QC
CHIEF COMMISSIONER
(Dated):15 APRIL 2003