UK Social Security and Child Support Commissioners' Decisions

 


R(CS) 1/96


Mr. D. G. Rice CCS/100/1995

19.10.95

Tribunal jurisdiction - question whether there was a written maintenance agreement in force - whether a question within the jurisdiction of a child support appeal tribunal

A child support appeal tribunal decided that there was a written maintenance agreement between the parties in existence before 5 April 1993. The consequence was that the Child Support Agency had no jurisdiction by virtue of paragraph 2(a) of the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992. The parent with care appealed to a child support Commissioner. It was contended on behalf of the child support officer and the Secretary of State that whether or not there was a maintenance agreement in existence was a matter for the sole determination of the Secretary of State, not for the child support officer, and that once the Secretary of State was satisfied that there was an "effective application" within the meaning of regulation 2 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 the validity of such an application could no longer be questioned.

Held that:

an "effective application" within the meaning of regulation 2 of the Maintenance Assessment Procedure Regulations 1992 was no more than an application in the proper form. An application could not be referred to a child support officer until it was "effective", but it was not incumbent on the Secretary of State to investigate the accuracy of the facts on the application form. Under section 11(1) of the Child Support Act 1991 a child support officer was required to deal with a maintenance assessment application "in accordance with the provisions made by or under this Act". These words were wide enough to enable the child support officer not merely to make an assessment, but also to satisfy himself that the application had been properly made.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. For the reasons set out below, the decisions of the child support appeal tribunal given respectively on 6 July 1994 and 12 October 1994 are erroneous in point of law and accordingly I set them aside. I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.
2. This is an appeal by the parent with care, brought with the leave of the tribunal chairman, against the decisions of the child support appeal tribunal of 6 July 1994 and 12 October 1994. In view of the complexity of the matter, I directed an oral hearing. At that hearing the parent with care was present, but unrepresented, whilst the child support officer appeared by Miss D. Thomas of the Solicitor's Office of the Department of Social Security. The absent parent did not attend and was not represented.
3. On 27 April 1993 the parent with care applied to the Secretary of State for a maintenance assessment to be made in respect of her daughter Alison in accordance with section 4 of the Child Support Act 1991. The application was referred to a child support officer, who decided that the absent parent was to pay child support maintenance at the rate of £106.26 per week from 3 June 1993. The matter was subsequently referred to a second child support officer, who concluded that there were grounds to review the earlier decision, and decided that the true sum payable was £105.26 per week from 3 June 1993. In due course, the absent parent appealed to the tribunal on the ground that the child support officer had no jurisdiction to make a maintenance assessment owing to the existence of a written maintenance agreement. He relied on paragraph 2(a) of the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, SI 1992 No. 2644, ("the Transitional Provisions"), which reads as follows:

"2. Subject to paragraph 4 below, during the transitional period [defined in paragraph 1 as "the period beginning with 5th April 1993 and ending with 6th April 1987"] no application under section 4 of the Act (application for child support maintenance) in relation to a qualifying child or qualifying children may be made at any time when-

(a) there is in force a maintenance order or written maintenance agreement (being an agreement made before 5th April 1993) in respect of that qualifying child or those qualifying children and the absent parent; or

(b) benefit is being paid to the parent with care of that child or those children."

There was no question of benefit being paid in this case, so that the crucial issue was whether, at the date when application was made for child support maintenance, there was in force a maintenance order or maintenance agreement in respect of the child. The local child support officer in his submission to the tribunal took the view that there was no evidence of a written agreement between the parent with care and the absent parent, and that accordingly there was nothing to prevent the child support officer having jurisdiction to make a maintenance assessment. It was not in dispute that there was no maintenance order in existence.

4. The appeal was first heard on 6 July 1994. It is not clear what that tribunal decided. They seem to have taken the view that two letters dated respectively 25 July 1991 and 3 July 1991 together with certain other evidence suggested that there had been a maintenance agreement, and they then went on to give incomprehensible directions. Not surprisingly, the child support officer applied for further directions under regulation 13(4) of the Child Support Appeal Tribunals (Procedure) Regulations 1992, SI 1992 No. 2641. He requested "that the tribunal confirm if a maintenance agreement does in fact exist and, if that is the determination of the tribunal, remit to the child support officer a direction in accordance with that determination". On 12 October 1994 a differently constituted tribunal decided that there was a written maintenance agreement between the parties in existence before April 1993 and that the Child Support Agency had in consequence no jurisdiction.
5. In the written submissions on behalf of the child support officer now concerned, the contention was made that whether or not there was a maintenance agreement was a matter for the sole determination of the Secretary of State, not for the child support officer. The Secretary of State had referred the application for maintenance support to the child support officer and accordingly had decided that no written maintenance agreement was in force, with the result that there was no bar to the making of the application for an assessment. Miss Thomas adopted the same approach.
6. Miss Thomas first referred me to section 4(1) of the Child Support Act 1991, which reads as follows:

"4. - (1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act in respect of that child, or any of those children."

Miss Thomas pointed out that it was not in dispute that there had been an application by the parent with care to the Secretary of State.

7. Miss Thomas then referred me to section 11(1), which provides as follows:

- (1) Any application for a maintenance assessment made to the Secretary of State shall be referred by him to a child support officer whose duty it shall be to deal with the application in accordance with the provision made by or under this Act."

She pointed out that such an application had been referred to a child support officer.

8. Miss Thomas also drew my attention to regulation 2 of The Child Support (Maintenance Assessment Procedure) Regulations 1992, SI 1992 No. 1813, which deals with applications for a maintenance assessment. Sub-paragraphs (3), (4) and (5) provide, so far as is relevant to this appeal, as follows:

"(3) A completed maintenance application form shall be given or sent to the Secretary of State.

(4) Subject to paragraph (5), an application for a maintenance assessment under the Act shall be an effective application if it is made on a maintenance application form and that form has been completed in accordance with the Secretary of State's instructions.

(5) Where an application is not effective under the provisions of paragraph (4), the Secretary of State may-

(a) give or send the maintenance application form to the person who made the application, together, if he thinks appropriate, with a fresh maintenance application form, and require that the application be re-submitted so as to comply with the provisions of that paragraph; or

(b) request the person who made the application to provide such additional information or evidence as the Secretary specifies, ............."

Miss Thomas contended that the Secretary of State had sole jurisdiction to decide whether an application was an effective application and if, in any particular case, he was satisfied that an effective application had been made, it was his duty to refer it to a child support officer, who would make the necessary maintenance assessment. The child support officer had in accordance with section 11(1) "to deal with the application in accordance with the provision made by or under this Act". It was not his duty to determine whether or not the application was effective. Once it had been referred to him as an effective application by the Secretary of State, his sole function was to deal with it in accordance with the provision made by or under the Act, and not to question whether the application was effective. He had to proceed on the basis that it was. It followed that it was not open to the tribunal in the present case to consider whether an application was barred under regulation 2 of the Transitional Provisions by reason of there being a written maintenance agreement in force. The matter had already been resolved by the Secretary of State and was not subject to appeal before the child support appeal tribunal (or the Commissioner). Accordingly, in the present case both tribunals erred in point of law in purporting to assume to themselves a jurisdiction which they did not have. The only matter which they could properly adjudicate upon was any dispute as to the amount of the maintenance assessment as computed by the second child support officer.

9. I posed to Miss Thomas the question as to what was the remedy of a dissatisfied party against the referral of an application to a child support officer if he believed there was no jurisdiction to entertain it. Miss Thomas submitted that the remedy lay in judicial review in the High Court. However, it has to be borne in mind that resort to the remedy of judicial review would be, for those persons dissatisfied with the decision of the Secretary of State, a matter of considerable complexity, unlike appeals to the child support appeal tribunal. Moreover there would, at least in most cases, be a need for legal aid, with all the complications that that involves. There would be no cheap, quick and easy resort to the child support appeal procedure. Of course, if Parliament has chosen to deal with the matter in the way suggested by Miss Thomas, then that is the course that has to be adopted. But is Miss Thomas' submission right in the first place?
10. Substantially the same matter that arises in this case arose in CCS/11/1994, the only difference in the latter instance being that the issue was whether there was in force a maintenance order as distinct from a written maintenance agreement. However, nothing turns on that distinction. In that case, although both the child support officer and the Secretary of State were legally represented, the point was not taken that the fact that the Secretary of State had referred the application to the child support officer per se disposed of the matter, and the decision, right or wrong, could not be challenged before the child support appeal tribunal or the Commissioner. Instead, the effect of a court order for maintenance, which had never been rescinded, was vigorously disputed, the representative of the child support officer contending that I should set aside the tribunal's decision on the ground that by virtue of paragraph 2(a) of the Transitional Provisions the tribunal had no jurisdiction to make an assessment. At the end of the day, I decided on balance that the court order was not in force, with the result that an application under section 4 of the Child Support Act could properly be made. This had been, of course, the contention throughout of the representative of the Secretary of State. The appeal proceeded before me on the basis that I had jurisdiction to determine whether or not regulation 2 of the Transitional Provisions order applied, whereas the child support officer through Miss Thomas now contends in effect that I never had such jurisdiction. In other words, the view of the child support officer has changed and jurisdiction has been surrendered to the Secretary of State. I understood from Miss Thomas that the Secretary of State supported her interpretation of the relevant statutory provisions.
11. Miss Thomas relied very much in support of her contention on regulation 2 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. Once the Secretary of State was satisfied that there was an "effective application" within the meaning of the regulation the validity of such application could no longer be questioned. But in my judgment an "effective application" is no more than an application in proper form. It has merely to be made "on a maintenance application form and that form has [to have] been completed in accordance with the Secretary of State's instructions". It is analogous to a claim for a social security benefit within regulation 4 of the Social Security (Claims and Payments) Regulations 1987, SI 1987 No. 1968. An application could not be referred to a child support officer unless and until it was effective within the requirement stipulated in regulation 2, but there is nothing to suggest that it was incumbent on the Secretary of State to investigate the accuracy of the facts set out on the application form. So long as the relevant questions were answered, seemingly the application had to be taken at its face value, and then referred to a child support officer.
12. Section 11(1) of the Child Support Act 1991 provides that when an application for a maintenance assessment has been referred to a child support officer, it shall be the duty of the latter to "deal with the application in accordance with the provision made by or under this Act". It is to be noted that the section does not say that the child support officer shall determine the maintenance assessment, it says that he shall deal with the application in accordance with the statutory provisions. In my judgment, these words are wide in their application and enable the child support officer, not merely to make the assessment when appropriate, but to satisfy himself that the application has been properly made, and unless he is satisfied that the application has been properly made, he will not determine the assessment.
13. I think Miss Thomas' contention can be tested by reference to its logical consequences. If, as she submits, the child support officer has to accept an application without demur and then make the necessary maintenance calculation, he must presumably also accept all the information contained in the application. For if he cannot challenge the jurisdiction to entertain the application, presumably the information which goes to make up the application form and renders the application "effective" is likewise not open to challenge. But if this is so, then the child support officer performs no greater function than the provision of an arithmetical calculation of the assessment and there is no effective appeal against inaccurate statements contained in the application form. In other words, there would be no effective appeal system. I would be slow to accept that this is what Parliament intended.
14. It is not without significance that the child support officer does in one specific case have unequivocal jurisdiction whether or not to make a maintenance assessment. The jurisdiction is expressly conferred on him by section 44 of the Child Support Act 1991. For that provision reads as follows:

"44. - (1) The child support officer shall have jurisdiction to make a maintenance assessment with respect to a person who is-

(a) a person with care;

(b) an absent parent; or

(c) a qualifying child,

only if that person is habitually resident in the United Kingdom."

The language of regulation 3(1)(b) of The Child Support (Information, Evidence and Disclosure) Regulations 1992, SI 1992 No. 1812, is less unequivocal. It provides as follows:

"3 (1) The Secretary of State may require information or evidence under the provisions of regulation 2 only if that information or evidence is needed to enable-

(b) a decision to be made as to whether a child support officer has jurisdiction to make a maintenance assessment under section 44 of the Act"

15. The provision does not expressly state that the decision shall be made by the child support officer, but in the light of section 44 I can give no other construction to regulation 3(1)(b). The jurisdiction to make or refuse an assessment falls to the child support officer, the obtaining of information to enable the child support officer to make that decision falls to the Secretary of State. Now, if a child support officer has jurisdiction to refuse to make a maintenance assessment where the conditions of section 44 apply, I do not see why he cannot exercise a similar refusal where the terms of paragraph 2(a) of the Transitional Provisions apply.
16. Accordingly, in the present case the tribunal of 12 October 1994 were right to assume the jurisdiction to decide whether or not there was a written maintenance agreement. However, in concluding that there was a written maintenance agreement between the parties and that in consequence there was no jurisdiction to make an application by reason of paragraph 2(a) of the Transitional Provisions, the tribunal failed to give adequate reasons for their conclusion. It was very much a matter of dispute as to whether or not there was a written agreement and the tribunal have merely stated their conclusion, without explaining how they arrived at it. Accordingly on that ground I must set aside the decision of 12 October 1994. Further, as regards the earlier decision of 6 July 1994, this is incomprehensible and clearly cannot stand. It too must be set aside as being erroneous in law. Accordingly, I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to all the matters set out above.
17. I allow this appeal.

Date: 19 October 1995 (signed) Mr. D. G. Rice

Commissioner