Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: CSC6/03-04(T)

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995
Appeal to a Child Support Commissioner on a question of law from a Tribunal's decision dated 17 April 2003
DECISION OF A TRIBUNAL OF CHILD SUPPORT COMMISSIONERS
1. This is an appeal, leave having been granted by Mrs Commissioner Brown, by the non-applicant parent (NAP) (who is the father and non-resident parent of the relevant children) against a decision dated 17 April 2003 of an Appeal Tribunal sitting at Armagh. That Tribunal had allowed the appeal by the applicant parent (AP) (who is the mother and resident parent of the relevant children) against a Departmental decision dated 4 January 2002. In that decision the Department rejected the AP's application for a departure direction in connection with a child support maintenance assessment. The application was made on the following grounds: -

   (a) Assets capable of producing income or higher income.

   (b) Diversion of income.

   (c) Life-style inconsistent with assessed income.

   (d) Housing costs could be paid by the other parent's present partner.

2. The AP appealed to the Tribunal, the grounds of appeal being related to the life-style inconsistent ground and that the NAP had a partner. The Tribunal in allowing her appeal decided as follows: -

   "The application falls within Regulations 23 and 25 of the Child Support Departure Direction (etc) Regulations (Northern Ireland) 1996, as amended, i.e. assets capable of producing a higher income, and life-style inconsistent with declared income.

   It is just and equitable to give a departure direction.

   The Department is directed to make a fresh assessment from 4^th July 2001, on the following bases (sic):

   (i) That the absent parent has joint ownership of assets of 4.83 acres of land at [H];

   (ii) That the absent parent has a total weekly income of £975.43."

3. The outcome of the Department's consideration of the application for a departure direction had been that it was not prepared to make a direction and therefore refused the application. In respect of each of the first three grounds the Department decided that it had no reason to dispute the facts as stated by the AP but was unable to determine a departure direction on the relevant ground as the information provided was insufficient to allow a decision to be made. It therefore decided to refuse the application because it was: -

   "Unable to determine a departure direction on [the relevant ground] as the information provided is insufficient to allow a decision to be made."

4. These reasons for refusal were applied to all the grounds save that relating to partner's contribution to housing costs where the Department decided that the application should be refused because the AP had requested that the NAP's housing costs be shared by someone who, for child support purposes, was not the partner of the NAP.

5. The AP appealed to the Tribunal. The Tribunal investigated this matter in a very thorough manner. On the first occasion when it sat the NAP did not attend. On the second occasion he attended accompanied by his accountant. At the third and final hearing he attended with legal representation.

6. The NAP's income for child support maintenance assessment was calculated (on the basis of information he supplied to the Child Support Agency) at £89.66. It was not disputed that the child support maintenance assessment had been based on this figure. That assessment appears to have been for a sum of £5.40 per week in total for the three qualifying children.

7. The AP's contentions in applying for a departure direction included contentions that the NAP had a life-style which involved much greater expenditure than his declared income would sustain, that he had purchased land and was engaged in property development, that he had an agricultural business with six employees, that land purchased by him was put in the name of his father to deceive the authorities. Before the Tribunal the NAP (who had originally stated and submitted tax returns on the basis that he was self-employed), stated that he was an employee of his father in his father's agricultural business, then stated that he was self-employed on a "roll-on basis, not PAYE", then that he was "self-employed, contracted to father". He denied having any other income than that from his work for his father as declared. He did agree that he had been involved in property development at one stage but stated he was not now actually involved and that planning permission on some of the land was awaited. He denied many of the contentions of the AP relating to his life-style and said certain aspects had been funded by his partner, others by budgeting.

8. On the second occasion on which it adjourned the Tribunal had directed the attendance of an appropriate official from the bank which had made loans to the NAP and an associate totalling £400,000 to enable the purchase of certain lands to be used for building. This official attended and further gave evidence that the loan to the NAP was being repaid out of a business account in the NAP's father's name over which the NAP also had signing authority. One loan was being discharged by the two parties at £1,200 per month each and by monies coming in when sites were sold. A sum of £92,500 remained outstanding on the loan. The bank official also expressed the view that the claimant was involved in running the agricultural business.

9. The Tribunal set out in some detail its assessment of the evidence and made detailed findings of fact as to the income required to support the life-style of the NAP. The Tribunal assessed the evidence of the NAP as unreliable and that of the AP as reliable. It assessed the weekly income necessary to support the NAP's life-style at £975.43 per week.

   THE TRIBUNAL'S DECISION AND REASONING

10. The Tribunal stated in the first paragraph of its reasons for decision: -

    "After considering the evidence submitted by the appellant in support of her departure application, the Department rejected the application on preliminary consideration. It is against this latter decision that the appellant appeals to the present appeal tribunal."

    (The Tribunal was incorrect in finding that the Department had rejected the application on preliminary consideration. However, the error is of no importance as the Tribunal proceeded to deal with the matter of the application as if it had not been so rejected).

11. The Tribunal considered that the NAP had joint ownership of assets which were capable of producing a higher income and also that his life-style was inconsistent with his declared income. The Tribunal's reasons contain an extensive review of the evidence. The Tribunal made clear findings of fact and was quite clear in its rejection of the evidence of the NAP and its acceptance of the evidence of the AP. It found that the NAP was effectively directing and administering a highly successful agricultural business and that he was involved in substantial and profitable property developments. It found that he did have a life-style which required an income substantially inconsistent with his assessed income. It found that he had certain expenses in connection with the running and maintenance of his home, with his car, in relation to other day-to-day matters, all of which were met out of income. It also made a finding as follows: -

    "The appeal tribunal has also noted that certain debts of the absent parent are being paid back to the bank through the accounts of the agricultural business. As was noted above, the appeal tribunal has no doubt that the absent parent is effectively directing and administering the agricultural business. Accordingly, it finds that the absent parent has other debts and expenses amounting to £600 per week.

    In total, therefore, the appeal tribunal finds that the absent parent has a lifestyle which requires a total weekly income of £975.43 per week. He clearly has a life-style inconsistent with his declared income. The appeal tribunal finds, therefore that the appellant's application falls within Regulation 25 of the Child Support Departure Direction etc Regulations (Northern Ireland), as amended, and the Department must make a fresh assessment based on the absent parent having the newly assessed weekly income.

    The appeal tribunal is also clearly of the view that it is just and equitable to give a departure direction on this ground."

12. As regards the ground relating to the assets capable of producing income the Tribunal recorded, amongst other things, the following: -

    "What the appeal tribunal can find, however, as a fact, is that the absent parent does have a joint ownership in 4.83 acres of land at [H], the appeal tribunal has been provided with a copy of the deed of conveyance, dated 5th march (sic) 2002, which transfers ownership of property rights in lands at [H], to the absent parent. There has been much evidence of what happened to that plot of land. At the appeal tribunal hearing, however, it was accepted, even by the absent parent, that the substantial part of the land, remained in joint ownership of the absent parent. The appeal tribunal estimates the substance of the joint ownership to be in the region of 4.83 acres, based on an acceptance that the remaining land was used for housing development. What happened as part of that development cannot be fairly determined, in fact, although the appeal tribunal holds it (sic) own views on the issue. Clearly, however, those remaining 4.83 acres constitute assets capable of producing a higher income. The appeal tribunal finds, therefore that the appellant's application falls within regulation 23 of the Child Support Departure Direction etc Regulations (Northern Ireland), as amended, and the Department must make a fresh assessment based on the absent parent having joint ownership of these assets.

    The appeal tribunal is also clearly of the view that it is just and equitable to give a departure direction on this ground."

13. The Tribunal allowed the AP's appeal and made a departure direction on the grounds of life-style inconsistent with assessed income and assets capable of producing income. It refused the application on the regulation 24 grounds of diversion of income and the regulation 27 grounds of housing costs paid by the NAP's partner. We make no further comment on the housing costs grounds as same have formed no part of the appeal to us. We make brief comment later on the diversion of income grounds.

    JURISDICTION

14. A preliminary issue arises as to the Tribunal's jurisdiction.

15. The Department's submission to the Tribunal in relation to the decision under appeal (which governed the extent of the Tribunal's jurisdiction) was confusing and conflicting. The Department submitted both that the departure application failed on preliminary consideration and that it did not fail on preliminary consideration. It submitted (it appears correctly) that it had instituted procedures under regulation 8(1) of the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996. Those procedures are only to be instituted where an application for a departure direction does not fail on preliminary consideration. After reciting these procedures and the outcome thereof, the Department then informed the Tribunal that it had rejected the application on preliminary consideration.

16. We have to consider whether or not this last is correct. If the application was rejected on preliminary consideration the Tribunal's only jurisdiction in the matter was to determine whether or not it should have been so rejected and, if not, then to direct the Department to determine the application. On the other hand if the Department had actually determined the application, whether refusing it or actually making a direction, then the Tribunal had full jurisdiction to make the decision which the Department should have made i.e. to uphold the refusal or to make the direction which the Department should have made.

17. We sought submissions on this matter initially from the Department and then from both parents. The Department made its submission by letter dated 31 December 2004. Neither of the parents made any submission. We are in agreement with the Department in its submission and consider that the application was not rejected on preliminary consideration The Department embarked on a much more detailed consideration and invoked the regulation 8 procedures. It did actually decide that the application had not failed pursuant to Article 28B(2) of the Child Support (Northern Ireland) Order 1991. The Tribunal therefore had jurisdiction to determine the matter as it did. The Tribunal's determination that the application had been rejected by the Department on preliminary consideration is, therefore, of no consequence as it proceeded to deal with the application correctly i.e. as if it had not been so rejected.

18. On 3 March 2004 leave to appeal was granted by Mrs Commissioner Brown as arguable issues appeared to arise as to: -

    (1) whether the Tribunal erred in law in its computation of the income required to support the life-style of the NAP; and

    (2) whether the Tribunal erred in law in its application of regulation 40(5) of the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996.

19. Mrs Commissioner Brown also directed that the Department for Social Development be specified as the first respondent in the appeal and the AP as the second respondent in the appeal.

20. The Chief Commissioner directed, in accordance with paragraph 2(1) of Schedule 4 of the Child Support (Northern Ireland) Order 1991 that the appeal be dealt with by a Tribunal of Commissioners.

    SUBMISSIONS BY THE PARTIES

21. The NAP sought leave to appeal on an OSSC1 form received in the Commissioners' Office on 7 November 2003. The grounds which were given were as follows: -

    "The tribunal misdirected itself when considering the evidence in that it rejected the absent parents evidence in its entirety and as a consequence of this accepted the appellants evidence in its entirety.

    The tribunal should have directed itself to assess the quality of each witness, then to assess the quality of the evidence from each witness, and then to form a judgment as to the quality of evidence of each witness in each aspect and the weight to be given to the evidence in each aspect, independently.

    By accepting the appellants evidence in its entirety simply because it rejected the absent parents evidence in its entirety was wrong in law. It is the absent parents contention that the appellants evidence should have been assessed in every aspect of it and a proper judgment made concerning each point of evidence submitted by the appellant.

    The appellant made unsubstantiated allegations against the absent parent. There was no evidence to support these allegations. Nevertheless the tribunal accepted these allegations as evidence by virtue of the fact that the tribunal had misdirected itself in accepting "the evidence of the appellant in its entirety." simply because it rejected the evidence of the absent parent. Because of the misdirection the tribunal failed to assess the appellants evidence properly and could not therefore come to a proper conclusion on the evidence so a (sic) to form the basis of a sound decision."

22. By letter dated 26 April 2004 the parties were sent a copy of the Chief Commissioner's direction and were also informed that a hearing would be held and that, at the hearing, the Tribunal of Commissioners (TOC) might seek to be addressed on the general approach to be adopted to applications under regulation 25(1) of the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996. In particular the Tribunal of Commissioners might seek to be addressed on: -

    (1) The interpretation of "overall life-style" in the above-mentioned provision and whether, on the assumption that the relevant facts were found the "overall life-style" could include: -

    (a) the financial ability to service and discharge loans which were not included in the formula assessment;

    (b) the engagement in and discharge of expenses in connection with ventures the income from which was not included in the formula assessment;

    (c) the engagement in a business in a capacity different to that upon which formula assessment was based.

    (2) In considering whether a case fell within regulation 25(1) whether it was permissible to make inferences from overall life-style as to the level of income required to support that life-style.

    (3) In considering whether regulation 25(1) applied upon whom did the burden of proof fall of showing that regulation 25(2) applied.

    (4) Whether it was necessary in every case for a Tribunal to consider regulation 25(2) or was this consideration dependent on whether or not an issue was raised by an individual appeal as to the applicability of that provision.

    (5) In considering regulation 40(5) whether it was necessary for findings to be made as to the actual net income of the non-resident parent or was it sufficient for findings to be made as to the income required to support the overall life-style.

23. The parties were also informed that we might also seek to be addressed on whether the Tribunal would have been entitled to conclude that the "Term Loan" of £200,000.00 from the bank was in actuality a mortgage by equitable deposit of title deeds of the unsold lands at [H] and in this connection the parties were referred to the letter dated 11 February 1999 from the bank comprised in the papers.

24. The parties were also informed in the letter that we might also seek to be addressed on whether or not an issue arose (in relation to the monies being paid to the said bank from the agricultural business) as to the applicability of regulation 24 of the said Regulations (diversion of income).

25. At the hearing the appearances were as follows: -

    Mr Gough for the Department

    Mr McNamee of Counsel, instructed by Mr H B M…, Solicitor, for the AP who also attended

    Miss Martin of Counsel, instructed by Messrs H… and McC…, Solicitors, for the NAP who also attended.

26. We held a hearing of the appeal and we had the benefit of extensive written submissions and written skeleton arguments. We directed submissions on certain issues which arose in the course of the appeal. Apart from the oral submissions and skeleton arguments we had from the Department, observations dated 20 February 2004. At hearing Mr Gough resiled from some of his written submissions, particularly those relating to the payment of debts.

27. In light of the change in Mr Gough's submissions (some of which she had adopted) Miss Martin was afforded 10 days post-hearing to make further representations in writing if she so wished. She availed of this opportunity by written submissions dated 16 June 2004. Opportunity was given to the other parties to comment on these additional submissions but neither did so.

28. At our direction the Department prepared calculations of child support maintenance based on the net income of the NAP being increased by various figures. The other parties commented thereon.

29. We have considered in detail the submissions made. In view of their very comprehensive nature we do not set them out in detail here but they are alluded to in the course of our decision.

30. Miss Martin made various submissions contending that the Tribunal had erred in its assessment of the evidence, in failing in its inquisitorial role, in its calculation of the income required to support the life-style and in concluding that it was just and equitable to make a departure direction. She also made representations as to whether or not we, as a Tribunal of Commissioners, should give the decision which the Tribunal should have given.

31. Mr Gough supported the appeal though not on the grounds on which it was initially made. He submitted that the Tribunal had erred in making a direction on the basis that the NAP had assets which were capable of producing income. He further submitted that the Tribunal had erred in not complying with regulation 40(5). He defended the Tribunal's assessment of the evidence and its conclusion that it was just and equitable to make a departure direction. He submitted the Tribunal had erred in relation to its calculation of the net income required to support the life-style.

32. Mr McNamee defended the Tribunal decision in submissions which we have found particularly helpful, both in relation to its assessment of evidence and its calculation of income required to support the life-style.

33. We are grateful to all the representatives who have given us considerable assistance in this case.

34. All parties were agreed that the adjudicating authorities should reach their conclusions as to the income required to support the overall life-style of the NAP from that overall life-style. At our request we also had submissions as to what could be included in "overall life-style" for purposes of a departure direction.

    ANALYSIS AND DECISION

35. The decision is given in the final paragraphs. We marshall our reasoning under the various issues which, as the arguments have developed, arose in this case. We set out, as an appendix, the statutory provisions which have been most relevant to our decision.

    ISSUE 1 – THE ASSESSMENT OF EVIDENCE, THE RULES OF NATURAL JUSTICE AND THE INQUISITORIAL ROLE

36. We wish to state firstly and with some emphasis that we do not consider that the Tribunal erred in relation to its assessment of evidence in this case. There is no doubt in our mind that the Tribunal was entitled to the view that it reached of the NAP's evidence as being unreliable and incredible. The NAP, despite two adjournments did not co-operate with the Tribunal. The Tribunal was also entitled to view the AP's evidence as reliable and to accept it as it did. We reject Miss Martin's submission to the contrary.

37. The Tribunal stated in its reasons:

    "As a corollary to the appeal tribunal rejecting the evidence of the absent parent, the appeal tribunal accepts the evidence of the appellant in its entirety. The appeal tribunal finds the appellant to be an honest and credible witness and accepts her description of the lifestyle of the absent parent".

38. While the use of the phrase "as a corollary" is perhaps somewhat unfortunate, we consider that this is merely careless use of language. We do not consider that it indicates that the Tribunal considered itself, once it had rejected the evidence of the NAP, bound to accept the evidence of the AP. The above paragraph makes it clear that the evidence of the AP was accepted because the Tribunal found her to be an honest and credible witness. The reasons refer in detail to examples of why the Tribunal found the evidence of the NAP to be unreliable. It is also quite apparent that, rather than simply accepting automatically the evidence of the AP, the Tribunal has carefully reviewed all the evidence including that of the bank official. On reading the record of proceedings it is quite obvious that there were very considerable inconsistencies in the NAP's evidence and that the evidence of the bank official was supportive of the AP's evidence relating to the business activities of the NAP.

39. We consider there is no error of law in the Tribunal rejecting the evidence of the NAP in its entirety, rather than going through every single bit of it and rejecting it bit by bit. If it found none of his evidence reliable, as was the case, it was entitled to so state. We consider its conclusion on the reliability of the NAP's evidence to be sustainable and reasonable.

40. A tribunal is quite entitled to accept the evidence of a party without requiring corroboration of it but is equally entitled to reject any evidence whether corroborated or otherwise. In our view the Tribunal's assessment of the evidence is in no way perverse or unreasonable and the reasoning for the assessment is abundantly clear.

41. We can also ascertain no failure of the inquisitorial role. Indeed, we commend the Tribunal on its very thorough investigation of this matter which involved two adjournments to enable additional evidence to be produced. It is quite apparent that the Tribunal considered every issue which was raised on the evidence. In this connection, in light of the fact that the NAP had professional legal representation and that his accountant was involved, the Tribunal was entitled to rely on any relevant issues being raised and relevant witnesses called by the professional legal representative and, indeed, it appears to us that any relevant issues were so raised by that representative who did a professional job. The Tribunal clearly recorded its conclusions on those issues. We can ascertain no failure of the inquisitorial role in this respect. As regards relevant witnesses, it was for the NAP to call such witnesses as he wished to give evidence on his behalf. He had ample opportunity to do so and it was for him, not for the Tribunal, to produce evidence to substantiate his assertions.

42. As regards the weight to be given to any evidence, this is a matter for the Tribunal. The evidence of the AP and of the bank official, was in our view entitled to be given the weight which the Tribunal accorded to it and adequate to sustain the findings which the Tribunal made. The Tribunal found that the NAP was untruthful, evasive and uncooperative. Under those circumstances the Tribunal is entitled to use its own judgment and to make reasonable deductions from the evidence before it. It is not in error of law in so doing. As Mr McNamee submitted, the NAP is not to profit from his own obfuscation. We would also add that we consider it reprehensible indeed that such untruthfulness and obfuscation should take place in a situation involving the financial support of the NAP's children and in circumstances where he was resisting an increase in the very small weekly assessment for his children.

    ISSUE 2 - THE APPROACH TO BE TAKEN BY THE TRIBUNAL IN RELATION TO ASSESSING THE INCOME REQUIRED TO SUPPORT THE LIFE-STYLE OF THE NAP

43. This, to some extent, is linked with the previous issue. The parties are agreed that the income required to support the overall life-style was to be ascertained from that life-style. We agree with that approach. Regulation 25(1) provides that the Department must be satisfied that the level of income upon which the current maintenance assessment is based "is substantially lower than the level of income required to support the overall life-style of that non applicant". Before commenting further on that matter we would wish to make some comment on the Department's approach to the departure application on this ground. The AP had applied for the departure direction. She mentioned in her application the fact that the NAP had bought land at a cost of £400,000; that he ran, with his father, a profitable agricultural business from which he received an income; that he had a mortgage of £60,000; that he had two cars, a caravan, a jeep and a van; that he serviced loans on machinery and property; that he took two holidays a year; that he employed six staff on a farm and that he was engaged in buying land and building. The decision maker's response was as follows:

    "I have no reason to dispute the facts as stated, however, I am unable to determine a departure direction on lifestyle inconsistent with declared income as the information provided is insufficient to allow a decision to be made."

44. We consider this response to be inadequate and inaccurate. The Department made little attempt to investigate what the AP had stated, though, when the Tribunal did so, it appears that the statements made were substantially true. The Department made no effort to deduce what income would have been required to support the relevant life-style, though it was quite obvious that it could not be supported on the very small assessed income of the NAP. The approach should be as stated above i.e. that income is to be deduced from overall life-style. The Department had no evidence that any method other than income was supporting the life-style. Having accepted what the AP stated, the Department could have proceeded on the accepted information before it and reached some sort of reasonable assessment of the income required to support the relevant life-style. Certain of the items, such as the amount being repaid to the bank would have required further investigation to reach a precise figure but it should not have been beyond the Department to consider how much would be required to service the mortgage and run the vehicles and ascertain if this could be done on the very small declared income. It could also have taken the entirely reasonable course of asking the AP if she could produce some specific additional information. It could have exercised powers of inspection. It did not. We consider that the Department's response was distinguished by its inadequacy.

45. It follows from the approach indicated above that the income required to support the life-style is a matter upon which, having considered the evidence, the decision-making authority is entitled to use its judgment. The figure to be reached is the income "required" to support the overall life-style of the NAP. This involves an obvious area of judgment. It is a situation where, often, though not necessarily always, a tribunal will not be greatly assisted by the NAP. Some facts may have to be found on the balance of probability. The facts found are not of actual income but of income required to support the NAP's life-style. It therefore appears to us that, provided the finding on the income required is within a reasonable range, it is not in error of law because some other figure might have been reached. The word "required", in our view, indicates an element of the relevant amount of income being necessary to support the life-style. There will always be an element of judgment as to how much is required to fund a particular life-style. Provided the figure computed for the income required is one which could reasonably be said to be required to fund the overall life-style the decision- making body should not be found to be in error of law because some other figure might also have been found to be necessary. Essentially this is a finding of fact. Such a finding should not be disturbed unless it was perverse or unsustainable on the evidence or revealed to contain an error of law.

    ISSUE 3 – WHAT CAN BE INCLUDED IN THE "OVERALL LIFE-STYLE"?

46. In particular, questions arose as to whether or not this could include:

    (a) the ability to service and discharge loans;

    (b) the engagement in ventures with financial implications where the income from same was not included in the declared income;

    (c) the engagement in business in a capacity different to that stated when the declared income was notified.

47. An exhaustive list of what can be included in "overall life-style" would be almost impossible to complete. It would probably be unwise to attempt one. However, in our view the term "overall life-style" is a broad one. Otherwise, we do not see the point of the use of the word "overall" in regulation 25(1). It appears to us to include the entire way of living of the NAP in so far as that way of living could reasonably be expected to have any financial implications.

48. .That being so, we come to consider the items mentioned at (a), (b) and (c) above and, particularly, the ability to service and discharge loans. Where the declared income is that from the business of a self-employed businessman (or woman), the debts of the business will, in so far as permitted by the relevant statutory provisions, have been taken into account in reaching the declared income. However, the ability to service and discharge loans other than those so taken into consideration, can, in our view, be considered as a part of the overall life-style. It would be ludicrous if a person was able to service such a loan at the rate of £1,000 per week on a declared net income of £100 per week and this could not be taken into consideration. This ability to service and discharge such loans is, in our view, a part of the overall life-style of the NAP. The Tribunal did not err in taking this ability into account.

49. .We consider also that the phrase "overall life-style" can also include the fact of engagement in any venture which has financial implications, the income from which was not included. It also, we consider, can include the engagement in business in a capacity different to that which has been declared. These are all matters which form part of the NAP's life-style in this case and which are likely to have financial implications. We therefore consider that the Tribunal was entitled to take into consideration the fact that the NAP effectively directed and administered an agricultural business, that he was substantially involved in property development and that he had debts and expenses associated with each. The Tribunal found, and in our view it was entitled, on the evidence, to find that the NAP was repaying certain debts to the bank through the accounts of the agricultural business. He had declared no income from being a director and/or a manager of that business. Nor did he declare any income from his engagement in property ventures. The Tribunal was entitled to its conclusion (with which we agree) that debts were being paid through the accounts of the agricultural business which were not the debts of that business but were the NAP's personal debts. We consider that the Tribunal was entitled to take the ability to discharge these debts into consideration as part of the overall life-style of the NAP. The Tribunal was also entitled to its conclusion that there was an ability to pay for other debts from the accounts of the agricultural business. The declared income did not include income from running that business.

50. We consider the Tribunal's figures for the various items listed as debts and expenses to be very reasonable. It should also be noted that the Tribunal has not sought to ascertain the actual income from the agricultural business which, again, we consider likely to have been "profitable", as the Tribunal found. This indicates the correct approach was being taken by the Tribunal i.e. that it has considered the income required to support the overall life-style by deduction from that life-style.

    ISSUE 4 - WHETHER THE TRIBUNAL SHOULD HAVE CONSIDERED WHETHER OR NOT THE OVERALL LIFE-STYLE OF THE NAP WAS BEING FINANCED FROM CAPITAL AND IF SO WHETHER IT FAILED TO DO SO?

51. Decision, R(CS)3/01, a decision of Mr Commissioner Jacobs in Great Britain, was cited to us as authority for the proposition that the Tribunal should have so considered. We note first that there was no evidence in this case that the life-style was being funded from the capital. We do not consider that R(CS) 3/01 should be read as implying that even where no issue arose either expressly or implicitly as to life-style being funded from capital, regulation 25(2) must always be expressly considered and found inapplicable. Paragraphs 21 – 24 of the said decision read as follows:

    " 21. The tribunal's reasons show that it did not have regard to these provisions. It first concluded that the absent parent's lifestyle was substantially in excess of his declared income. Then, it fixed the absent parent's income by reference to his previous income and his ambitious character. Those factors may be relevant to determining the absent parent's income, but they are not relevant to determining the increase in his net income under regulation 40(5). That increase has to be determined as set out in regulation 40(5) and not in any other way. The tribunal should have reasoned from the life-style to the income needed to support it. It did not do that and that was a mistake in law.

    22. There is a further mistake in law in this part of the case. In deciding whether the conditions in regulation 25(1) are satisfied, it is always relevant to consider whether the parent's life-style could be financed in other ways than from income.

    23. Regulation 25(2)(b) (re-enacted from 19 January 1998 as regulation 25(2)) makes express provision for a life-style being paid for from capital or from a partner's income. The tribunal clearly considered the possibility that the partner's income was being used to finance the life-style, but nonetheless concluded that it could not be supported even on their joint incomes. It is improbable that the absent parent was supporting his modest life-style from capital. So, the tribunal cannot be criticised for not referring to that.

    24. However, there are other ways in which a life-style can be supported than those covered by regulation 25(2)(b). They include careful budgeting and the use of credit facilities. The tribunal had no evidence on these matters. This was not because the absent parent had failed to comply with the chairman's direction to produce evidence, as those directions did not include these matters. The difference between the incomes used in the formula assessment and the couple's expenditure as considered by the tribunal was not so great that it could not be achieved by careful budgeting and perhaps by some use of credit. Obviously, the tribunal could not decide, in the absence of any evidence, that this was how the life-style was achieved. But these were realistic possibilities. The tribunal should have taken them into account in determining whether regulation 25(1) applied and its reasons should have shown that it had done this. The lack of reference to these considerations in the context of the tribunal's findings on income and expenditure makes its decision wrong in law."

    We consider the last two sentences of paragraph 23 to be particularly relevant to this case.

52. As Mr Gough submitted, R(CS)3/01 was a case where there was a realistic possibility, on the evidence, of the life-style being funded by careful budgeting or by some use of credit. That was not so in this case. Essentially what Commissioner Jacobs was stating at paragraph 24 was that the Tribunal had failed to take into consideration a matter, i.e. the possibility of financing of the life-style by careful budgeting and by some use of credit, which was a "realistic possibility" on the evidence. In this present case there was no realistic possibility of the NAP's life-style being funded from capital nor by careful budgeting and the use of credit facilities and there was no evidence, despite the adequate opportunities to produce same, that such was the case. That being so, we do not consider that the Tribunal erred in not making express allusion to regulation 25(2).

53. We also mention, (though it is not necessary for the purposes of this case) that we do not think that decision R(CS)3/01 is authority for the proposition that regulation 25(2) must always be considered before it can be determined whether there is a prima facie case under regulation 25(1). A permissible approach (though not necessarily the only one) to paragraphs 1 and 2 of regulation 25 is that the decision maker considers first whether or not there is a life-style inconsistent case i.e. whether the level of income required to support the overall life-style of the NAP is substantially in excess of that assessed. The income required is, as stated above (and indeed as stated by Mr Commissioner Jacobs in the above decision), to be ascertained by a consideration of the life-style. What is found is not necessarily the actual income of the NAP. Simply it is the income required to support the NAP's life-style. Regulation 25(1) is expressed as being subject to paragraph (2). Paragraph 2 provides that paragraph 1 shall not apply where the Department is satisfied that the life-style of the NAP is paid for –

    (a) "out of the capital belonging to him."

54. It does not appear to us that the initial step is necessarily to consider whether or not the life-style is paid for out of the capital. It appears to us to be proper to decide first whether the declared income is substantially lower than the level of income required to support the overall life-style of the NAP. It is only where there is at least a case to be met on that basis that the issue of whether capital pays for the life-style can become relevant. It is also noteworthy that the Department has to be satisfied that the life-style of the NAP is paid for out of capital. Where there is no evidence that the life-style is paid for out of capital it would be exceedingly difficult for the Department to be so satisfied. As it is unlikely that the AP, who is contending for the departure direction, will be either in a position or prepared to produce such evidence, it is probable that the evidence must be sought from the NAP. In any event, where there is no reliable evidence raising this either by implication or expressly the Department cannot be so satisfied. That being so, in this particular case, it is quite obvious that the Tribunal could not be so satisfied. The NAP produced no evidence to indicate that capital funded his life-style and equally the other evidence which was before the Tribunal raised no issue which needed to be explored in relation thereto.

55. We do not read Commissioner Jacobs' decision as saying more than that the possibility of regulation 25(2) being relevant must always be present to the Tribunal and that it must explore that possibility where the evidence raises such an issue. It is noteworthy that Commissioner Jacobs did not criticise the Tribunal for not referring to the possibility of financing from capital where that possibility did not arise from the existing evidence. Indeed he makes clear that the Tribunal need only explore those matters which are realistic possibilities on the evidence. There was, on the evidence, no realistic possibility of alternative financing in this case. Equally importantly, here, the Tribunal had a right, the NAP being professionally represented before it, to expect any such issue to be expressly raised if it was considered relevant. It was not raised and on the basis of the evidence we consider that the professional representative was correct not to raise it. We can ascertain no error of law in relation to this matter.

    ISSUE 5 - WHETHER OR NOT THE TRIBUNAL ERRED IN ITS COMPUTATION OF THE INCOME REQUIRED TO SUPPORT THE LIFE-STYLE OF THE NAP

56. The Tribunal made use of a check list in computing the income required to support the life-style of the NAP. As has been stated in previous decisions this is not an error of law. Indeed the check list may be helpful as explaining the Tribunal's computation of income. However, that check list contained an item described as "personal allowance" which had typed against it a sum of £53.05. This appears to relate to the amount allowed when the protected income of the NAP is calculated. It appears, as the Department has observed, to be based on the rate of income support personal allowance for a single person. The Tribunal has made detailed findings on the expenses of the NAP's life-style other than items for food and clothing. It therefore appears likely that the Tribunal has attributed the entirety of this personal allowance to food and clothing (in addition to the allowance for eating out). The figure attributed to these items does not appear to us to be unreasonable, even allowing for the items for eating out and the other items included in the expenses which for those living at the level of income support would have to be covered by the £53.05. However, it is unclear that the Tribunal attributed this sum to those items. It should, once it made use of this figure have actually set out what this "personal allowance" was for. To do otherwise rendered the reasoning for the decision inadequate and this was an error of law. The Tribunal was entitled to use its own judgment and to take into account what was reasonable for food and clothing. As has already been mentioned it was not able to rely on the evidence of the NAP as to how much he actually spent and it was therefore entitled to reach some reasonable figure for same. We consider, therefore, as indicated above, that the Tribunal erred in not clearly setting out how it had computed the figure for the income required to support the life-style. However, we make no criticism of the other figures used.

    ISSUE 6 - DID THE TRIBUNAL ERR IN LAW IN RELATION TO THE APPLICATION OF REGULATION 40(5) OF THE CHILD SUPPORT DEPARTURE DIRECTION AND CONSEQUENTIAL AMENDMENTS REGULATIONS (NOTHERN IRELAND) 1996?

57. Regulation 40(5), as applicable at the relevant time, provides:

    "In a case to which regulation 25 (life-style inconsistent with declared income) applies, the net income of the non-applicant who is a parent of a child in respect of whom the current assessment is made shall be increased by the amount specified in that departure direction, being the whole or part of the difference between the two levels of income referred to in paragraph (1) of that regulation."

58. The Tribunal decision notice recorded as follows

    "The appeal is allowed.

    The application falls within Regulations 23 and 25 of the Child Support Departure Direction (etc) Regulations (Northern Ireland) 1996, as amended, i.e. assets capable of producing a higher income, and life-style inconsistent with declared income.

    It is just and equitable to give a departure direction.

    The Department is directed to make a fresh assessment from 4th July 2001, on the following bases (sic):

    (i) That the absent parent has joint ownership of assets of 4.83 acres of land at [H];

    (ii) That the absent parent has a total weekly income of £975.43."

59. In its reasons the Tribunal recorded, inter alia, how it had computed the said income. Regulation 40(5) provides that the net income is to be increased by the amount specified in the departure direction. No amount was specified by the Tribunal and therefore there was an error of law in the decision. The Tribunal did err in law on this issue for that reason.

    ISSUE 7 – WHETHER THE TRBIUNAL ERRED IN GIVING A DEPARTURE DIRECTION ON REGULATION 23 (ASSETS CAPABLE OF PRODUCING AN INCOME) GROUNDS

60. Firstly, the Tribunal had no evidence as to the manner in which or the amount of any higher income which could be obtained from the land at [H]. Secondly, it does appear that an issue arose on the evidence as to whether this land was subject to a mortgage by equitable deposit of title deeds to secure the remainder of the bank loan of £400,000 so that paragraph 2(a) might be relevant. Thirdly, on the evidence an issue did arise as to whether the retention of the land by the NAP was for a purpose which could be considered reasonable i.e. pursuing planning permission. It is difficult to see how this particular exception can relate to the letting of the land but nonetheless the legislation is clear that the paragraph does not apply where either of the exceptions set out in paragraph 2 are relevant.

61. We therefore find that the Tribunal erred in its finding that there was a case for a departure direction under regulation 23 and this is one of the reasons why we set the Tribunal's decision aside.

    ISSUE 8 – WHETHER THE TRIBUNAL ERRED IN THE APPLICATION OF ARTICLE 28F(1), (2) OR (3) OF THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

62. The Tribunal has recorded: -

    "The appeal tribunal is also clearly of the view that it is just and equitable to give a departure direction on this ground."

    It has recorded this in relation to the grounds of life-style inconsistent and of assets capable of producing a higher income.

63. We begin by stating that we regard this as the recording of a positive view by the Tribunal. The Tribunal was clearly of the view that it was just and equitable to give a departure direction on the relevant ground.

64. Article 28F, so far as relevant, provides that the Department (and therefore, on appeal, the Tribunal) may give a departure direction where satisfied that the case is one which falls within one or more of the cases provided for in the legislation and it is the Department's opinion that " in all the circumstances of the case, it would be just and equitable to give a departure direction." Article 28F(2) provides for matters to which, in considering whether it would be just and equitable to give the relevant direction, the Department must have regard. These are the financial circumstances of the absent parent, the financial circumstances of the parent with care and the welfare of any child likely to be affected. It does appear to us that the Tribunal had regard to all of these. It made very detailed findings as to the income which the NAP would have required to support his life-style, it was aware of his assessed income and there was no reliable evidence that the life-style was supported in any other manner than from income. It was also well aware of the financial circumstances of the AP and of the welfare of the children who were the only children likely to be affected. This was not a case where the Tribunal had to balance the competing interests of children living in different families.

65. Article 28F(3) gives the Department power, by Regulations, to make provision for factors which are and are not to be taken into account in determining whether it would be just and equitable to give a departure direction in any case. The factors are prescribed in regulation 30 and those particularly relevant in this case are at regulation 30(1)(a)(i). Factors which are not to be taken into account are set out at regulation 30(2).

66. As indicated above it does appear that the Tribunal formed a positive view that it was just and equitable to make a departure direction in this case. The arguments to us that it had erred in so doing essentially were based on R(CS)3/01. At paragraph 43 of that decision, referring to the GB provisions equivalent to Article 28F(1) and 28D(3), Mr Commissioner Jacobs stated:

    "Taken together, those provisions imposed a duty on the tribunal not to give a departure direction unless it was satisfied that it was just and equitable to give it. Before the tribunal had power to give a direction, it had to form the positive opinion that it would be just and equitable to do this. In the circumstances of this case, it was not sufficient to decide that there was nothing to suggest that it would not be just and equitable. It may be that the tribunal was correct in making that statement. However, by its own admission it did not know what net income it was attributing to the absent parent and did not know what effect that would have on the amount of child support maintenance payable by the absent parent. In those circumstances, it was not in position to be satisfied that it would be just and equitable to give the direction. There may be some cases in which it is possible to estimate the likely impact on the formula assessment sufficiently to reach a judgment that it would be just and equitable to give a direction without knowing the precise amount of the change that it would produce. This was not one of them. I doubt that the tribunal knew that the change would be as great as it was; it certainly came as a surprise to me. It is always wise to know the impact that a direction would have on a formula assessment before giving the direction. In most cases it will be a mistake of law not to have this information. It was a mistake of law in this case."

67. At paragraph 46 and referring to the GB equivalent to Article 28F(3), Mr Commissioner Jacobs said: -

    "It was the tribunal's duty to consider those matters. It knew about the parent with care's financial circumstances and it is reasonable to assume that it took them into account. However, by its own admission it did not know the amount of net income it was attributing to the absent parent. As far as the likely impact on children is concerned, the only child to consider in this case (as far as I know) was the qualifying child. …"

68. At paragraph 47 Mr Commissioner Jacobs stated:

    "By its own admission the tribunal was unaware of matters that were relevant to the just and equitable requirement. And it (sic) reasons do not refer to the qualifying child. There are both mistakes of law in the tribunal's decision."

69. It is obvious from the passages quoted above that decision R(CS)3/01 is not authority for the proposition that it is always in error of law for a tribunal to form an opinion that it would be just and equitable to make a departure direction, without knowing the precise amount of change in the formula assessments. In any event this present case is distinguishable from R(CS)3/01. The first distinction is that the Tribunal has formed a positive view that it was just and equitable to make the relevant direction. Secondly, and perhaps most importantly, the Tribunal in this case did make very exact findings as to the income required to support the life-style. This income, being computed on the basis of the expenses of the life-style, was obviously net income. The Tribunal in this case therefore did know what net income it was attributing to the NAP. It is quite obvious that, with such an enormous increase in the net income, the Tribunal would have been well aware that there would be a very substantial increase indeed in the formula assessment.

70. The question which we must ask therefore is whether in this case it was permissible to reach a judgment that it would be just and equitable to give a departure direction, without knowing the precise amount of the change in the maintenance assessment that would be produced. In our view it was. It is also worth noting that all that Article 28F(1) requires is that the opinion be formed that it would be just and equitable to give a departure direction. The sub-paragraph makes no mention of the amount of money to be included in that direction. There is also a discretion (even where a case is established) as to whether or not to make a direction. Article 28F(1) is an enabling provision. Very often, of course, it will be necessary to know the amount of change to the maintenance assessment before a judgment can be made as to whether or not it would be just and equitable to make a departure direction. However, that was not necessary in this case. In our view the very gross discrepancy between the income required to support the life-style and the declared income in this case enabled the Tribunal to form a view as to it being just and equitable to give a departure direction, without knowing the precise amount of the change that it would produce. We also consider that it is likely that the Tribunal had a fairly good idea of the change which would be produced. It had exact figures as to the incomes to be used in the new assessment. In addition regulation 40(5) gives the Tribunal a discretion as to the amount by which the net income shall be increased. This can be the whole or part of the difference between the net income and the income upon which the assessment was based. We consider that in all the circumstances of this case the Tribunal was entitled to its view that it was just and equitable to give a departure direction.

71. We do not disagree with Commissioner Jacobs' decision. Indeed there would be many cases (probably most) where it would be impossible to form a view as to whether it was just and equitable to give a direction without knowing the precise amount or at least to have a close approximation of the change it would produce. However, we do not consider that this is one of those cases. In this case the enormous discrepancy in the declared income and that required to fund the life-style was justification for the Tribunal's view that it was just and equitable to give a departure direction without having to obtain precise details of any resultant change to the maintenance assessment. It must be remembered that this was a father who the Tribunal found needed an income of over £900 per week to fund his life-style and who was assessed to pay child support maintenance on a net income of £89.66 per week. From the documents his child support assessment appears to be £5.40 per week based on that net income. We, in considering the appeal, decided to obtain the calculations of child support maintenance to assist us, if we substituted our own decision for that of the Tribunal, in determining the amount of increase in the net income. We did not consider such calculations necessary to determine whether or not it would be just and equitable to make a departure direction though they were, of course, helpful to us.

    ISSUE 9 – WHETHER OR NOT A DEPARTURE DIRECTION SHOULD BE GIVEN ON REGULATION 24 (DIVERSION OF INCOME) GROUNDS

72. This matter was not pursued in the appeal to us and we consider it was correctly not pursued. If it is considered that a diversion of actual income took place, it is for the Department or the AP to decide whether or not to pursue this matter through other channels. We make no comment on that. However, there is no indication on the evidence we have seen that income was being diverted within the terms of regulation 24. It was, as Mr Gough submitted, being utilised by the NAP to pay certain personal debts. That is not a diversion. It brings the ability to pay those debts within the overall life-style of the NAP.

    ISSUE 10 – LIFE-STYLE PAID FOR BY THE PARTNER

73. Miss Martin raised a point that an issue had been raised that some or part of the NAP's life-style was paid for by his partner. She considered that once this issue had been raised it was for the AP to disprove it. We consider there is no merit in that ground in this case. The Tribunal found that the NAP's evidence was completely unreliable. This included the evidence as to what was paid for by others. In that circumstance, as no corroborative evidence was produced, there remained no issue to be dealt with. We do not consider it necessary to deal any further with that point at this stage but we would state that we do not agree that the AP must disprove an allegation made by the NAP. In general terms it is for the person making an allegation to prove it. Regulation 25(1) applies unless the Department is satisfied that regulation 25(2) circumstances exist. The burden of satisfying the Department as to the application of regulation 25(2) was on the NAP.

    ISSUE 11 – THE TERMS OF THE DECISION NOTICE

74. We do, as mentioned above, consider that there was an error in this matter in that the Tribunal should, pursuant to regulation 40, have specified in its direction the amount by which the net income of the NAP was to be increased. Regulation 40(5) sets this out in relation to "life-style inconsistent" cases. It was an error of law not to specify the amount by which the net income of the NAP was to be increased. This can be the whole or part of the difference between the income required to support the life-style and the declared income. This is why regulation 40(5) provides that an amount must be specified and why it is an error of law not to so specify.

75. Before giving our decision we would wish to comment on the detail of the fact findings necessary in dealing with a departure direction application on life-style inconsistent grounds. The Tribunal in this present case made detailed findings. It used a check list which (with the exception of the item for personal allowance) appears to us to be a useful tool in computing the income required. That is not to say that it is an exhaustive list or that each of the items in it will be relevant to every case. The use of the list is not, of course, a legal requirement. However, it does seem to include day-to-day categories which are likely to be the subject of expenditure. The detailed findings made in this case were, of course, useful in explaining the decision to both the parents. It may be that this level of detail will not always be necessary but sufficient detail to explain the decision and (if a direction is made) to explain the calculation of figures used is necessary. The calculation was (with the exception of the item for "personal allowance") very clear in this case and we commend the Tribunal for its thoroughness and its clear recording.

    OUR DECISION

76. We set the Tribunal's decision aside as in error of law for the reasons set out above.

77. We have considered (having considered representations from the parties) whether or not to give the decision which the Tribunal should have given. We have decided to do so. It is expedient to do so because (a) this matter has gone on for some considerable time and it is in the interests of all, but especially of the relevant children, that it be resolved, (b) we are able to do so as the factual background to this matter was thoroughly investigated by the Tribunal, (c) we have obtained calculations (from the Department pursuant to our Direction) of the likely effect of increasing the net income by various amounts and we accept the correctness of those calculations.

78. We find that the income required to support the NAP's life-style from and at the effective date was substantially inconsistent with the income on which the assessment was based. We find that income required to support that life-style was £975.43 made up as indicated by the Tribunal, except that the weekly sum of £53.05 included therein and described by the Tribunal as "Personal Allowance" was, we consider, necessary for food and clothing. With regard to this last we have borne in mind the ventures in which the NAP was engaged and the social life in which he engaged.

79. We find that the life-style was not paid for out of capital belonging to the NAP, nor by the NAP's partner.

80. We have had regard to the principles set out in Article 28E(1) and (2) and left out of account the matters set out in Article 28E(4) and have taken into account the representations as set out in Article 28E(3) of the Child Support (Northern Ireland) Order 1991. We have considered, pursuant to Article 28F, whether it would be just and equitable to give a departure direction in this case and have had regard in particular to the financial circumstances of the NAP and of the AP and the welfare of each of the children likely to be affected. With regard to this last and very important factor, we are firmly of the view that it would be to the benefit of the children that a departure direction be made. We have taken into consideration the NAP's financial circumstances including (inter alia) the facts that he was prepared to undertake a considerable financial commitment to purchase land and was running an agricultural business. We have also taken into account the factors set out in regulation 30(1) of the said Regulations and have left out of account the factors set out at regulation 30(2).

81. Accordingly, we are of the view that it would be just and equitable to give a departure direction and that one should be given. The direction is based on the ground set out in regulation 25 (life-style inconsistent with income on which the assessment is based). We direct that, with effect from 4 July 2001, the net income of the NAP be increased by the sum of £885.77 (£975.43 - £89.66) being the difference between the income required to support the life-style of the NAP (£975.43) and the income upon which the child support maintenance was assessed (£89.66) and that, with effect from that date, a fresh child support maintenance assessment be made with the net income increased by that amount. None of the parties disputed this effective date and it appears to us to be correct.

82. We make the direction to cover this whole amount and consider it just and equitable to so do, having had before us the calculation by the Department in response to our direction and being aware of the likely increase in child support maintenance which will be produced thereby.

83. In essence, therefore, as regards this ground of "life-style inconsistent", the NAP technically wins his appeal but the decision which we have given is to the same effect as the Tribunal's decision.

84. As regards the ground relating to regulation 23, (assets capable of producing income on higher income) the NAP wins his appeal. The AP has not proved that income or additional income, could be produced. We observe that, should income in the future be derived from this land or from capital produced by its sale, such income should be declared by the NAP to the child support authorities and be included, in accordance with the statutory provisions, in the child support maintenance assessment. As regards this ground we determine that no departure direction should be given. In light of this it is not necessary that we comment further on the matter other than to indicate that the NAP appears throughout to have been beneficially entitled to the relevant lands.

85. For completeness we also mention that we do not consider a departure direction is merited on regulation 24 (diversion of income) grounds.

    (signed): John A H Martin QC

    Chief Commissioner

    (signed): Moya F Brown

    Commissioner

    (signed): J P Powell

    Deputy Commissioner

    3 March 2005

    CSC60304.MB(T)

    SCHEDULE 4B
    DEPARTURE DIRECTIONS: THE CASES AND CONTROLS
    PART I

    THE CASES

    General

    1.—(1) The cases in which a departure direction may be given are those set out in this Part or in regulations made under this Part.

    (2) In this Schedule "applicant" means the person whose application for a departure direction is being considered.

    Special expenses

    2.—(1) A departure direction may be given with respect to special expenses of the applicant which were not, and could not have been, taken into account in determining the current assessment in accordance with the provisions of, or made under, Part I of Schedule 1.

    (2) In this paragraph "special expenses" means the whole, or any prescribed part, of expenses which fall within a prescribed description of expenses.

    (3) In prescribing descriptions of expenses for the purposes of this paragraph, the Department may, in particular, make provision with respect to—

    (a) costs incurred in travelling to work;

    (b) costs incurred by an absent parent in maintaining contact with the child, or with any of the children, with respect to whom he is liable to pay child support maintenance under the current assessment;

    (c) costs attributable to a long-term illness or disability of the applicant or of a dependant of the applicant;

    (d) debts incurred, before the absent parent became an absent parent in relation to a child with respect to whom the current assessment was made—

    (i) for the joint benefit of both parents;

    (ii) for the benefit of any child with respect to whom the current assessment was made; or

    (iii) for the benefit of any other child falling within a prescribed category;

    (e) pre-1993 financial commitments from which it is impossible for the parent concerned to withdraw or from which it would be unreasonable to expect that parent to have to withdraw;

    (f) costs incurred by a parent in supporting a child who is not his child but who is part of his family.

    (4) For the purposes of sub-paragraph (3)(c)—

    (a) the question whether one person is a dependant of another shall be determined in accordance with regulations made by the Department;

    (b) "disability" and "illness" have such meaning as may be prescribed; and

    (c) the question whether an illness or disability is long-term shall be determined in accordance with regulations made by the Department.

    (5) For the purposes of sub-paragraph (3)(e), "pre-1993 financial commitments" means financial commitments of a prescribed kind entered into before 5th April 1993 in any case where—

    (a) a court order of a prescribed kind was in force with respect to the absent parent and the person with care concerned at the time when they were entered into; or

    (b) an agreement between them of a prescribed kind was in force at that time.

    (6) For the purposes of sub-paragraph (3)(f), a child who is not the child of a particular person is a part of that person's family in such circumstances as may be prescribed.

    Property or capital transfers

    3.—(1) A departure direction may be given if—

    (a) before 5th April 1993—

    (i) a court order of a prescribed kind was in force with respect to the absent parent and either the person with care with respect to whom the current assessment was made or the child, or any of the children, with respect to whom that assessment was made; or

    (ii) an agreement of a prescribed kind between the absent parent and any of those persons was in force;

    (b) in consequence of one or more transfers of property of a prescribed kind-

    (i) the amount payable by the absent parent by way of maintenance was less than would have been the case had that transfer or those transfers not been made; or

    (ii) no amount was payable by the absent parent by way of maintenance; and

    (c) the effect of that transfer, or those transfers, is not properly reflected in the current assessment.

    (2) For the purposes of sub-paragraph (1)(b), "maintenance" means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the current assessment was made.

    (3) For the purposes of sub-paragraph (1)(c), the question whether the effect of one or more transfers of property is properly reflected in the current assessment shall be determined in accordance with regulations made by the Department.

    4.—(1) A departure direction may be given if—

    (a) before 5th April 1993—

    (i) a court order of a prescribed kind was in force with respect to the absent parent and either the person with care with respect to whom the current assessment was made or the child, or any of the children, with respect to whom that assessment was made, or

    (ii) an agreement of a prescribed kind between the absent parent and any of those persons was in force;

    (b) in pursuance of the court order or agreement, the absent parent has made one or more transfers of property of a prescribed kind;

    (c) the amount payable by the absent parent by way of maintenance was not reduced as a result of that transfer or those transfers;

    (d) the amount payable by the absent parent by way of child support maintenance under the current assessment has been reduced as a result of that transfer or those transfers, in accordance with provisions of or made under this Order; and

    (e) it is nevertheless inappropriate, having regard to the purposes for which the transfer or transfers was or were made, for that reduction to have been made.

    (2) For the purposes of sub-paragraph (1)(c), "maintenance" means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the current assessment was made.

    Additional cases

    5.—(1) The Department may by regulations prescribe other cases in which a departure direction may be given.

    (2) Regulations under this paragraph may, for example, make provision with respect to cases where—

    (a) assets which do not produce income are capable of producing income;

    (b) a person's life-style is inconsistent with the level of his income;

    (c) housing costs are unreasonably high;

    (d) housing costs are in part attributable to housing persons whose circumstances are such as to justify disregarding a part of those costs;

    (e) travel costs are unreasonably high; or

    (f) travel costs should be disregarded.

    Part II

    REGULATORY CONTROLS

    6.—(1) The Department may by regulations make provision with respect to the directions which may be given in a departure direction.

    (2) No directions may be given other than those which are permitted by the regulations.

    (3) Regulations under this paragraph may, in particular, make provision for a departure direction to require—

    (a) the substitution, for any formula set out in Part I of Schedule 1, of such other formula as may be prescribed;

    (b) any prescribed amount by reference to which any calculation is to be made in fixing the amount of child support maintenance to be increased or reduced in accordance with the regulations;

    (c) the substitution, for any provision in accordance with which any such calculation is to be made, of such other provision as may be prescribed.

    (4) Regulations may limit the extent to which the amount of the child support

    maintenance fixed by a maintenance assessment made as a result of a departure direction may differ from the amount of the child support maintenance which would be fixed by a maintenance assessment made otherwise than as a result of the direction.

    (5) Regulations may provide for the amount of any special expenses to be taken into account in a case falling within paragraph 2, for the purposes of a departure direction, not to exceed such amount as may be prescribed or as may be determined in accordance with the regulations.

    (6) No departure direction may be given so as to have the effect of denying to an absent parent the protection of paragraph 6 of Schedule 1.

    (7) Sub-paragraph (6) does not prevent the modification of the provisions of, or made under, paragraph 6 of Schedule 1 to the extent permitted by regulations under this paragraph.

    (8) Any regulations under this paragraph may make different provision with respect to different levels of income.

    CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

    Departure from usual rules for determining maintenance assessments

    Application for a departure direction

    28A.—(1) Where a maintenance assessment ("the current assessment") is in force, the person with care, or absent parent, with respect to whom it was made may apply to the Department for a direction under Article 28F (a "departure direction").

    (2) An application for a departure direction shall state in writing the grounds on which it is made and shall, in particular, state whether it is based on—

    (a) the effect of the current assessment; or

    (b) a material change in the circumstances of the case since the current assessment was made.

    (3) In other respects, an application for a departure direction shall be made in such manner as may be prescribed.

    (4) An application may be made under this Article even though an application has been made under Article 18(1) or 19(1) with respect to the current assessment.

    (5) If the Department considers it appropriate to do so, the Department may by regulations provide for the question whether a change of circumstances is material to be determined in accordance with the regulations.

    (6) Schedule 4A shall have effect in relation to departure directions

    Preliminary consideration of applications

    28B.—(1) Where an application for a departure direction has been duly made to the Department, it may give the application a preliminary consideration.

    (2) Where the Department does so the Department may, on completing the preliminary consideration, reject the application if it appears to the Department—

    (a) that there are no grounds on which a departure direction could be given in response to the application; or

    (b) that the difference between the current amount and the revised amount is less than an amount to be calculated in accordance with regulations made by the Department for the purposes of this paragraph and Article 28F(4).

    (3) In paragraph (2)—

    "the current amount" means the amount of the child support maintenance fixed by the current assessment; and

    "the revised amount" means the amount of child support maintenance which, but for paragraph (2)(b), would be fixed if a fresh maintenance assessment were to be made as a result of a departure direction allowing the departure applied for.

    (6) Where a decision as to a maintenance assessment is revised or superseded under Article 18 or 19, the Department—

    (a) shall notify the applicant and such other persons as may be prescribed that the decision has been revised or superseded; and

    (b) may direct that the application is to lapse unless, before the end of such period as may be prescribed, the applicant notifies the Department that he wishes it to stand.

    Determination of applications

    28D.—(1) Where an application for a departure direction has not failed, the Department shall—

    (a) determine the application in accordance with the relevant provisions of, or made under, this Order; or

    (b) refer the application to an appeal tribunal for the tribunal to determine it in accordance with those provisions.

    (2) For the purposes of paragraph (1), an application for a departure direction has failed if—

    (a) it has been withdrawn; or

    (b) the Department has rejected it on completing a preliminary consideration under Article 28B or

    (c) the Department has refused to consider it under Article 28C(5).

    (3) In dealing with an application for a departure direction which has been referred to it under paragraph (1)(b), an appeal tribunal shall have the same powers, and be subject to the same duties, as would the Department if it were dealing with the application.

    Matters to be taken into account

    28E.—(1) In determining any application for a departure direction, the Department shall have regard both to the general principles set out in paragraph (2) and to such other considerations as may be prescribed.

    (2) The general principles are that—

    (a) parents should be responsible for maintaining their children whenever they can afford to do so;

    (b) where a parent has more than one child, his obligation to maintain any one of them should be no less of an obligation than his obligation to maintain any other of them.

    (3) In determining any application for a departure direction, the Department shall take into account any representations made to it by the person with care or absent parent concerned.

    (4) In determining any application for a departure direction, no account shall be taken of the fact that—

    (a) any part of the income of the person with care concerned is, or would be if a departure direction were made, derived from any benefit; or

    (b) some or all of any child support maintenance might be taken into account in any manner in relation to any entitlement to benefit.

    (5) In this Article "benefit" has such meaning as may be prescribed.

    Departure directions

    28F.—(1) The Department may give a departure direction if—

    (a) the Department is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and

    (b) it is the Department's opinion that, in all the circumstances of the case, it would be just and equitable to give a departure direction.

    (2) In considering whether it would be just and equitable in any case to give a departure direction, the Department shall have regard, in particular, to—

    (a) the financial circumstances of the absent parent concerned,

    (b) the financial circumstances of the person with care concerned, and

    (c) the welfare of any child likely to be affected by the direction.

    (3) The Department may by regulations make provision—

    (a) for factors which are to be taken into account in determining whether it would be just and equitable to give a departure direction in any case;

    (b) for factors which are not to be taken into account in determining such a question.

    (4) The Department shall not give a departure direction if it is satisfied that the difference between the current amount and the revised amount is less than an amount to be calculated in accordance with regulations made by the Department for the purposes of this paragraph and Article 28B(2).

    (5) In paragraph (4)—

    "the current amount" means the amount of the child support maintenance fixed by the current assessment, and

    "the revised amount" means the amount of child support maintenance which would be fixed if a fresh maintenance assessment were to be made as a result of the departure direction which the Department would give in response to the application but for paragraph (4).

    (6) A departure direction shall—

    (a) require the making of one or more fresh maintenance assessments; and

    (b) specify the basis on which the amount of child support maintenance is to be fixed by any assessment made in consequence of the direction.

    (7) In giving a departure direction, the Department shall comply with the provisions of regulations made under Part II of Schedule 4B.

    (8) Before the end of such period as may be prescribed, the Department shall notify the applicant for a departure direction, and such other persons as may be prescribed—

    (a) of its decision in relation to the application, and

    (b) of the reasons for its decision.

    SCHEDULE 4B DEPARTURE DIRECTIONS: THE CASES AND CONTROLS
    PART I
    THE CASES

    General

    1.—(1) The cases in which a departure direction may be given are those set out in this Part or in regulations made under this Part.

    (2) In this Schedule "applicant" means the person whose application for a departure direction is being considered.

    Special expenses

    2.—(1) A departure direction may be given with respect to special expenses of the applicant which were not, and could not have been, taken into account in determining the current assessment in accordance with the provisions of, or made under, Part I of Schedule 1.

    (2) In this paragraph "special expenses" means the whole, or any prescribed part, of expenses which fall within a prescribed description of expenses.

    (3) In prescribing descriptions of expenses for the purposes of this paragraph, the Department may, in particular, make provision with respect to—

    (a) costs incurred in travelling to work;

    (b) costs incurred by an absent parent in maintaining contact with the child, or with any of the children, with respect to whom he is liable to pay child support maintenance under the current assessment;

    (c) costs attributable to a long-term illness or disability of the applicant or of a dependant of the applicant;

    (d) debts incurred, before the absent parent became an absent parent in relation to a child with respect to whom the current assessment was made—

    (i) for the joint benefit of both parents;

    (ii) for the benefit of any child with respect to whom the current assessment was made; or

    (iii) for the benefit of any other child falling within a prescribed category;

    (e) pre-1993 financial commitments from which it is impossible for the parent concerned to withdraw or from which it would be unreasonable to expect that parent to have to withdraw;

    (f) costs incurred by a parent in supporting a child who is not his child but who is part of his family.

    (4) For the purposes of sub-paragraph (3)(c)—

    (a) the question whether one person is a dependant of another shall be determined in accordance with regulations made by the Department;

    (b) "disability" and "illness" have such meaning as may be prescribed; and

    (c) the question whether an illness or disability is long-term shall be determined in accordance with regulations made by the Department.

    (5) For the purposes of sub-paragraph (3)(e), "pre-1993 financial commitments" means financial commitments of a prescribed kind entered into before 5th April 1993 in any case where—

    (a) a court order of a prescribed kind was in force with respect to the absent parent and the person with care concerned at the time when they were entered into; or

    (b) an agreement between them of a prescribed kind was in force at that time.

    (6) For the purposes of sub-paragraph (3)(f), a child who is not the child of a particular person is a part of that person's family in such circumstances as may be prescribed.

    Property or capital transfers

    3.—(1) A departure direction may be given if—

    (a) before 5th April 1993—

    (i) a court order of a prescribed kind was in force with respect to the absent parent and either the person with care with respect to whom the current assessment was made or the child, or any of the children, with respect to whom that assessment was made; or

    (ii) an agreement of a prescribed kind between the absent parent and any of those persons was in force;

    (b) in consequence of one or more transfers of property of a prescribed kind-

    (i) the amount payable by the absent parent by way of maintenance was less than would have been the case had that transfer or those transfers not been made; or

    (ii) no amount was payable by the absent parent by way of maintenance; and

    (c) the effect of that transfer, or those transfers, is not properly reflected in the current assessment.

    (2) For the purposes of sub-paragraph (1)(b), "maintenance" means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the current assessment was made.

    (3) For the purposes of sub-paragraph (1)(c), the question whether the effect of one or more transfers of property is properly reflected in the current assessment shall be determined in accordance with regulations made by the Department.

    4.—(1) A departure direction may be given if—

    (a) before 5th April 1993—

    (i) a court order of a prescribed kind was in force with respect to the absent parent and either the person with care with respect to whom the current assessment was made or the child, or any of the children, with respect to whom that assessment was made, or

    (ii) an agreement of a prescribed kind between the absent parent and any of those persons was in force;

    (b) in pursuance of the court order or agreement, the absent parent has made one or more transfers of property of a prescribed kind;

    (c) the amount payable by the absent parent by way of maintenance was not reduced as a result of that transfer or those transfers;

    (d) the amount payable by the absent parent by way of child support maintenance under the current assessment has been reduced as a result of that transfer or those transfers, in accordance with provisions of or made under this Order; and

    (e) it is nevertheless inappropriate, having regard to the purposes for which the transfer or transfers was or were made, for that reduction to have been made.

    (2) For the purposes of sub-paragraph (1)(c), "maintenance" means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the current assessment was made.

    Additional cases

    5.—(1) The Department may by regulations prescribe other cases in which a departure direction may be given.

    (2) Regulations under this paragraph may, for example, make provision with respect to cases where—

    (a) assets which do not produce income are capable of producing income;

    (b) a person's life-style is inconsistent with the level of his income;

    (c) housing costs are unreasonably high;

    (d) housing costs are in part attributable to housing persons whose circumstances are such as to justify disregarding a part of those costs;

    (e) travel costs are unreasonably high; or

    (f) travel costs should be disregarded.

    Part II

    REGULATORY CONTROLS

    6.—(1) The Department may by regulations make provision with respect to the directions which may be given in a departure direction.

    (2) No directions may be given other than those which are permitted by the regulations.

    (3) Regulations under this paragraph may, in particular, make provision for a departure direction to require—

    (a) the substitution, for any formula set out in Part I of Schedule 1, of such other formula as may be prescribed;

    (b) any prescribed amount by reference to which any calculation is to be made in fixing the amount of child support maintenance to be increased or reduced in accordance with the regulations;

    (c) the substitution, for any provision in accordance with which any such calculation is to be made, of such other provision as may be prescribed.

    (4) Regulations may limit the extent to which the amount of the child support

    maintenance fixed by a maintenance assessment made as a result of a departure direction may differ from the amount of the child support maintenance which would be fixed by a maintenance assessment made otherwise than as a result of the direction.

    (5) Regulations may provide for the amount of any special expenses to be taken into account in a case falling within paragraph 2, for the purposes of a departure direction, not to exceed such amount as may be prescribed or as may be determined in accordance with the regulations.

    (6) No departure direction may be given so as to have the effect of denying to an absent parent the protection of paragraph 6 of Schedule 1.

    (7) Sub-paragraph (6) does not prevent the modification of the provisions of, or made under, paragraph 6 of Schedule 1 to the extent permitted by regulations under this paragraph.

    (8) Any regulations under this paragraph may make different provision with respect to different levels of income.

    CHILD SUPPORT DEPARTURE DIRECTION AND CONSEQUENTIAL AMENDMENTS REGULATIONS (NORTHERN IRELAND) 1996

    Procedure in relation to the determination of an application

    8.—(1) Subject to paragraph (4), where an application has not failed within the meaning of Article 28D of the Order, the Department shall, unless it is satisfied on the information or evidence available to it that a departure direction is unlikely to be given—

    (a) give notice of that application to the relevant persons other than the applicant;

    (b) send to them details of the grounds on which the application has been made and any relevant information or evidence the applicant has given, except details, information or evidence falling within paragraph (2);

    (c) invite representations in writing from the relevant persons other than the applicant on any matter relating to that application; and

    (d) set out the provisions of paragraphs (2), (5) and (6) in relation to such representations.

    (2) The details, information or evidence referred to in paragraphs (1)(b), (6) and (7) are—

    (a) medical evidence or medical advice that has not been disclosed to the applicant or a relevant person and which the Department considers would be harmful to the health of the applicant or that relevant person if disclosed to him;

    (b) the address of a relevant person, or of any child in relation to whom the assessment was made in respect of which the application has been made, or any other information which could reasonably be expected to lead to that person or that child being located, where that person has not agreed to disclosure of that address or that information, it is not known to the other party to that assessment and—

    (i) the Department is satisfied that that address or that information is not necessary for the determination of that application, or

    (ii) the Department is satisfied that that address or that information is necessary for the determination of that application and that there would be a risk of harm or undue distress to that person or that child if disclosure were made.

    (3) Subject to paragraph (4), the notice referred to in paragraph (1)(a) shall be given as soon as reasonably practicable after—

    (a) completion of the preliminary consideration of that application under Article 28B of the Order; or

    (b) where the Department has requested information or evidence under regulation 6, receipt of that information or evidence or the expiry of the period referred to in regulation 6(2).

    (4) The provisions of paragraphs (1) and (3) shall not apply where the information or evidence requested in accordance with regulation 6 has not been received by the Department within the period specified in paragraph (2) of that regulation and the Department is satisfied on the information or evidence available to it that a departure direction should not be given.

    (4A) Where the provisions of paragraph (1) have not been complied with because the Department was satisfied on the information or evidence available to it that a departure direction was unlikely to be given, but on further consideration of the application it is minded to give a departure direction in that case, it shall, before doing so, comply with the provisions of this regulation.

    (5) Where the Department does not receive written representations from a relevant person within 14 days of the date on which representations were invited under paragraph (1), (6) or (7) it may, in the absence of written representations from that person, proceed to determine the application.

    (6) The Department may, if it considers it reasonable to do so, send to the applicant a copy of any written representations made following an invitation under paragraph (1)(c), whether or not they were received within the time specified in paragraph (5), except to the extent that the representations contain information or evidence which falls within paragraph (2), and invite him to submit representations in writing on any matters contained in those representations.

    (7) Where any information or evidence requested by the Department under regulation 6 is received after notification has been given under paragraph (1), the Department may, if it considers it reasonable to do so and except where that information or evidence falls within paragraph (2), send a copy of such information or evidence to the relevant persons and invite them to submit

    representations in writing on that information or evidence.

    (9) Where the Department has determined an application it shall, as soon as is reasonably practicable—

    (a) notify the relevant persons of that determination;

    (b) where a departure direction has been given, make a decision in accordance with regulation 16(2) or 19(2)(c) of the Maintenance Assessment Procedure regulations

    (10) A notification under paragraph (9)(a) shall set out—

    (a) the reasons for that determination;

    (b) where a departure direction has been given, the basis on which the amount of child support maintenance is to be fixed by any assessment made in consequence of that direction.

    PART V
    ADDITIONAL CASES

    Assets capable of producing income or higher income

    23.—(1) Subject to paragraphs (2) and (3), a case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—

    (a) the Department is satisfied that any asset in which the non-applicant has a beneficial interest, or which he has the ability to control—

    (i) is capable of being utilised to produce income but has not been so utilised;

    (ii) has been invested in such a way that the income obtained from it is less than might reasonably be expected;

    (iii) is a chose in action which has not been enforced where the Department is satisfied that such enforcement would be reasonable, or

    (iv) has not been sold where the Department is satisfied that the sale of the asset would be reasonable;

    (b) any asset has been transferred by the non-applicant to trustees and the non-applicant is a beneficiary of the trust so created; or

    (c) any asset has become subject to a trust created by legal implication of which the non-applicant is a beneficiary.

    (2) Paragraph (1) shall not apply where—

    (a) the total value of any asset referred to in that paragraph does not exceed £10,000 after deduction of the amount owing under any mortgage or charge on that asset; or

    (b) the Department is satisfied that any asset referred to in that paragraph is being retained by the non-applicant to be used for a purpose which the Department considers reasonable in all the circumstances of the case, or

    (c) if the non-applicant were a claimant, paragraph 59 of Schedule 10 to the Income Support (General) Regulations (Northern Ireland) 1987(a) (treatment of relevant trust payments) would apply to the asset referred to in that paragraph.

    (4) For the purposes of this regulation the term "asset" means—

    (a) money, whether in cash or on deposit;

    (b) a beneficial interest in land and rights in or over land;

    (c) shares as defined in Article 2 of the Companies (Northern Ireland) Order 1986(a), stock, unit trusts, gilt edged securities as defined in paragraph 1 of Schedule 9 to the Taxation of Chargeable Gains Act 1979(b), and other similar financial instruments.

    (5) For the purposes of paragraph (4) the term "asset" includes any asset falling within that paragraph which is located outside Northern Ireland.

    (6) In this regulation—

    (a) "stock" includes shares, debentures and any securities of the body concerned, whether or not constituting a charge on the assets of that body;

    (b) "unit trust" means any trust established for the purpose, or having the effect of providing, for persons having funds available for investment, facilities for the participation by them as beneficiaries under the trust, in any profits or income arising from the acquisition, holding, management or disposal of any property whatsoever.

    Diversion of income

    24. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—

    (a) the non-applicant has the ability to control the amount of income he receives, including earnings from employment or self-employment and dividends from shares, whether or not the whole of that income is derived from the company or business from which his earnings are derived; and

    (b) the Department is satisfied that the non-applicant has unreasonably reduced the amount of his income which would otherwise fall to be taken into account under regulation 7 or 8 of the Maintenance Assessments and Special Cases Regulations by diverting it to other persons or for purposes other than the provision of such income for himself.

    Life-style inconsistent with declared income

    25.—(1) Subject to paragraph (2), a case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where the Department is satisfied that the current assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall life-style of that non-applicant.

    (2) Paragraph (1) shall not apply where the Department is satisfied that the life-style of the non-applicant is paid for—

    (a) out of capital belonging to him; or

    (b) by his partner, unless the non-applicant is able to influence or control the amount of income received by that partner.

    (3) Where the Department is satisfied in a particular case that the provisions of paragraph (1) would apply but for the provisions of paragraph (2)(b), it may, whether or not any application on that ground has been made, consider whether the case falls within regulation 27.

    Unreasonably high housing costs

    26. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—

    (a) the housing costs of the non-applicant exceed the limits set out in regulation 18(1) of the Maintenance Assessments and Special Cases Regulations (excessive housing costs);

    (b) the non-applicant falls within paragraph (2) of that regulation or would fall within that paragraph if it applied to parents with care; and

    (c) the Department is satisfied that the housing costs of the non-applicant are substantially higher than is necessary taking into account any special circumstances applicable to that non-applicant.

    Partner's contribution to housing costs

    27. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where a partner of the non-applicant occupies the home with him and the Department considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non-applicant.

    PART VIII
    MAINTENANCE ASSESSMENT FOLLOWING A DEPARTURE DIRECTION

    Effect of a departure direction - general

    36.—(1) Except where a case falls within regulation 22, 41, 42 or 43, a departure direction shall specify, as the basis on which the amount of child support maintenance is to be fixed by any fresh assessment made in consequence of the direction, that the amount of net income or exempt income of the parent with care or absent parent or the amount of protected income of the absent parent be increased or, as the case may be, decreased in accordance with those provisions of regulations 37, 38 and 40 which are applicable to the particular case.

    (2) Where the provisions of paragraph (1) apply to a departure direction, the amount of child support maintenance fixed by a fresh maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1 to the Order, but with the substitution of the amounts changed in consequence of the direction for the amounts determined in accordance with those provisions.

    Effect of a departure direction in respect of additional cases

    40.—(1) This regulation applies where a departure direction is given for an additional case falling within paragraph 5 of Schedule 4B to the Order.

    (2) In a case falling within regulation 23(1)(a) (assets capable of producing income or higher income), subject to paragraph (4), the net income of the non-applicant shall be increased by the amount specified in that departure direction, being the whole or part of an amount calculated by applying interest at the same rate as that prescribed for judgments by Order 42 rule 9 of the Rules of the Supreme Court (Northern Ireland) 1980(a) at the date on which the departure direction is given to—

    (a) any monies falling within regulation 23(1)(a);

    (b) the net value of any asset, other than monies, falling within regulation 23(1)(a), after deduction of the amount owing on any mortgage or charge on that asset, less any income received in respect of that asset which has been taken into account in the calculation of the current assessment.

    (3) In a case falling within regulation 23(1)(b) or (c), subject to paragraph (4), the net income of the non-applicant shall be increased by the amount specified in that departure direction, being the whole or part of an amount calculated by applying interest at the same rate as that prescribed for judgments by Order 42 rule 9 of the Rules of the Supreme Court (Northern Ireland) 1980 at the date of the application to the value of the asset subject to the trust less any income received from the trust which has been taken into account in the calculation of the current assessment.

    (4) In a case to which regulation 24 (diversion of income) applies, the net income of the non-applicant who is a parent of a child in respect of whom the current assessment is made shall be increased by the amount specified in that departure direction, being the whole or part of the amount by which the Department is satisfied that that parent has reduced his income.

    (5) In a case to which regulation 25 (life-style inconsistent with declared income) applies, the net income of the non-applicant who is a parent of a child in respect of whom the current assessment is made shall be increased by the amount specified in that departure direction, being the whole or part of the difference between the two levels of income referred to in paragraph (1) of that regulation.

    (6) In a case to which regulation 26 applies (unreasonably high housing costs) the amount of housing costs included in exempt income and the amount referred to in regulation 11(1)(b) of the Maintenance Assessments and Special Cases Regulations(b) shall not exceed the amounts set out in regulation 18(1)(a) or (b), as the case may be, of the Maintenance Assessments and Special Cases Regulations (excessive housing costs) and the provisions of regulation 18(2) of those Regulations shall not apply.

    (7) In a case to which regulation 27 applies (partner's contribution to housing costs) that part of the exempt income constituted by the eligible housing costs determined in accordance with regulation 14 of the Maintenance Assessments and Special Cases Regulations (eligible housing costs) shall, subject to paragraphs (8) and (9), be reduced by the percentage of the housing costs which the Department considers appropriate, taking into account the income of that parent and the income or estimated income of that partner.

    (8) Where paragraph (7) applies, the housing costs determined in accordance with regulation 11(1)(b) of the Maintenance Assessments and Special Cases Regulations (protected income) shall remain unchanged.

    (9) Where a Category B interim maintenance assessment is in force in respect of a non-applicant, the whole of the eligible housing costs may be deducted from the exempt income of that non-applicant.

    (10) In a case to which regulation 28 (unreasonably high travel costs) or regulation 29 (travel costs to be disregarded) applies, for the component of exempt income determined in accordance with regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations or in accordance with that regulation as applied by regulation 10 of those Regulations and, in the case of an absent parent, for the amount determined in accordance with regulation 11(1)(kk) of those Regulations, there shall be substituted such amount, including a nil amount, as the Department considers to be appropriate in all the circumstances of the case.