UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CCS_1890_1995 (20 February 1996)

R(CS) 3/97


Mr. M. J. Goodman CCS/1890/1995

20.2.96

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 parent with care not in receipt of benefit made an application for child support maintenance under section 4 of the Child Support Act 1991 in respect of two children, a girl and a boy. A child support appeal tribunal, determining an appeal by the absent parent, ruled that the child support agency did not have jurisdiction to make an assessment for the girl until the end of a transitional period, which in this case was due to end on 7 October 1996, on the ground that there was a maintenance order or written maintenance agreement in force in respect of that child, pursuant to paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, SI 1992 No. 2644. (That provision was subsequently replaced by section 4(10) of the Child Support Act 1991 as inserted by section 18(1) of the Child Support Act 1995, which prevents consideration of an application under section 4 at all where there is a maintenance order or written maintenance agreement in force in respect of the child). The child support officer appealed to the Commissioner contending that the tribunal had no jurisdiction to decide that question, it being a matter solely for determination by the Secretary of State when deciding whether an application is effective under regulation 2(4) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, prior to the passing of the application to a child support officer to carry out the maintenance assessment.

Held, dismissing the appeal, that:

the requirements of "an effective application" for the purposes of regulation 2(4) and (5) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 are no more than that the maintenance application form is completed in accordance with the Secretary of State's instructions in the form and signed by the applicant (para. 10);

the words "…. no application may be made at any time when ... there is in force a maintenance order or written maintenance agreement ..." mean no more than that section 4 of the Child Support Act 1991 is not available to a parent with care not on benefit if there is in force a maintenance order or written maintenance agreement. It is no more than a convenient way of saying that section 4 does not apply to such a person. It does not mean that an application for a maintenance assessment on the appropriate form cannot be filled up and sent to the Secretary of State. Once such a form is received by the Secretary of State, the provisions of regulation 2(4) and (5) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 apply and the application is deemed for that purpose to be "effective" as soon as the form is filled up and the printed instructions therein have been complied with (para. 13);

[under the legislation in force at the time] it is for the child support officer to make a decision on whether a relevant maintenance order or written maintenance agreement is in force, which decision may be the subject of an application for review under section 18 of the Child Support Act 1991 and once a child support officer has given a review decision under section 18 then if either party is dissatisfied they can appeal in the normal way to a child support appeal tribunal (para.15).

DECISION OF A CHILD SUPPORT COMMISSIONER

1. I dismiss the appeal of the child support officer against the decision of the child support appeal tribunal dated 28 November 1994, as that decision is not erroneous in law: Child Support Act 1991, section 24.
2. This is an appeal to the Commissioner by the child support officer against the unanimous decision of a child support appeal tribunal dated 28 November 1994. The tribunal had heard the appeal of the absent parent, the father of Mark (born 17 June 1975) and Maria (born 26 September 1982) against a review decision of a child support officer (dated 14 December 1993) that the father was liable to pay to the mother (the parent with care) child support maintenance of £83.18 per week in respect of Maria and Mark from 5 August 1993.
3. The unanimous decision of the tribunal was as follows:

"The case is referred to the Secretary of State for a recalculation of the maintenance assessment on the grounds that there was no jurisdiction for the Child Support Agency to make a maintenance assessment for Maria but there was jurisdiction for an assessment in respect of Mark."

4. That decision by the tribunal was because the tribunal acceded to the father's contention that there applied to the mother's application the following provision of paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, SI 1992 No. 2644:

"2. ... during the transitional period [defined by paragraph 1(1) and 4 of the Schedule, effectively a period ending on 7 October 1996 in the present case] no application under section 4 of the [Child Support Act 1991] (applications for child support maintenance) in relation to a qualifying child or any 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 5 April 1993) in respect of that qualifying child or those qualifying children and the absent parent; or

(b) [does not apply to the present case]."

Identical provisions (but without reference to a transitional period) are now contained in subsection (10) of section 4 of the 1991 Act, added by section 18(1) of the Child Support Act 1995 as from 4 September 1995 (SI 1995 No. 2302). Consequently, the importance of this matter continues.

5. The child support officer has appealed from that decision to the child support Commissioner on the ground that the tribunal had no jurisdiction to make a ruling on whether or not there was a written maintenance agreement within paragraph 2 of the Schedule and that that was entirely a matter for decision by the Secretary of State (for details see below). I held an oral hearing on 13 February 1996 of the child support officer's appeal, at which that officer was represented by Ms. D. Thomas of the Office of the Solicitor to the Departments of Health and Social Security. The Secretary of State was represented by Miss R. Riggs also of the Office of the Solicitor to the Departments. The absent parent (the father) and the parent with care (the mother) were also present and addressed me on the question of jurisdiction.
6. The child support officer's appeal was on the following grounds (written submission of 27 February 1995):

"It is my submission that the decision of the tribunal is erroneous [in law]. It will be my submission that the tribunal have acted outside their jurisdiction by purporting to make a decision that properly falls to be made on behalf of the Secretary of State ... it is my submission that paragraph 2 of the Commencement Order [SI No. 2644 cited in para. 4] is a provision that prevents an application being made under [section 4 of the Child Support Act 1991, applications by parents with care not in receipt of a social security benefit] until the appropriate date specified in paragraph 4 of the Commencement Order. Applications for maintenance assessments under section 4 of the Act are made to the Secretary of State. Section 11(1) of the Act requires the Secretary of State to refer any application for a maintenance assessment to a child support officer for its determination under the Act and regulations. The child support officer does not, therefore, become involved in the determination of an application until the application has been accepted and passed to him by the Secretary of State. I submit that the question of whether a valid application has been made under section 4 is a decision to be made on behalf of the Secretary of State. I submit that as part of that decision it has to be decided if a valid application can be made because of the provisions of paragraphs 2 and 4 of the Commencement Order. In my view, therefore, the question of the existence of a written maintenance agreement under paragraph 2(a) of the Commencement Order falls to be decided on behalf of the Secretary of State. In this case the appellant raised the question of the existence of a written maintenance agreement before the tribunal. The tribunal directed that further evidence should be provided and made extensive findings of fact before deciding that a written maintenance agreement existed in respect of [Maria]. It is my submission that the question of the existence of the written maintenance agreement fell to be considered by the Secretary of State before the application was accepted and passed to the child support officer under section 11 of the (Child Support Act 1991]. As the question of the written maintenance agreement did not fall to be considered by the first child support officer when making the original maintenance assessment I submit it did not fall to be considered by the second child support officer under section 18(9) of the Act and therefore [not] by the tribunal under section 20 of the Act. I submit, therefore, that the tribunal exceeded their powers by purporting to decide whether a written maintenance agreement existed in this case and therefore [by deciding] that the Child Support Agency did not have the jurisdiction to accept an application in respect of [Maria]."

I do not accept that submission as being correct in law, for the reasons set out in detail below, and I have therefore dismissed the child support officer's appeal. It was not contended in that appeal that the tribunal's decision was erroneous in any other respect, nor was there any cross-appeal by either the mother or father.

7. This particular issue as to jurisdiction has already been the subject of a "starred" decision by another Commissioner on file CCS/100/1995 [now reported as R(CS) 1/96]. At the time of this decision no application has been made for leave to appeal to the Court of Appeal against that decision. I agree with and (subject to anything said hereafter, see para.11 below) I wholly accept that decision and adopt it as reasons for my decision in this case. However Ms. Thomas on behalf of the child support officer, with whom Ms. Riggs on behalf of the Secretary of State concurred, submitted to me that the decision on file CCS/100/1995 [R(CS) 1/96] was erroneous in law and that I ought not to follow it. Another Commissioner's decision is of course of persuasive authority with me (see para. 21 of R(I) 12/75, a decision of a tribunal of Commissioners). Nevertheless, in view of the importance of this matter and the desire of the parties to have a ruling on it I have in fact considered all the matters independently ab initio.
8. Ms. Thomas cited paragraphs 11, 13 and 15 of the decision on file CCS/100/1995 [R(CS) 1/96] as containing in her submission errors of law. First she drew attention to the sentence in paragraph 11 of that decision "but, in my judgment an 'effective application' is no more than an application in proper form." That is a reference to regulation 2 of the Child Support (Maintenance Assessment Procedure) Regulations 1992, SI 1992 No. 1813, the relevant parts of which read as follows:

"2. (1) Any person who applies for a maintenance assessment under section 4 ... of the Act shall do so on a form (a 'maintenance application form') provided by the Secretary of State.

(2) Maintenance application forms provided by the Secretary of State ... shall be supplied without charge by such persons as the Secretary of State appoints or authorises for that purpose.

(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 request 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 of State specifies, and if a completed application form or, as the case may be, the additional information or evidence requested is received by the Secretary of State within 14 days of the date of his request, he shall treat the application as made on the date on which the earlier or earliest application would have been treated as made had it been effective under the provisions of paragraph (4).

(6)-(7) ..."

9. Ms. Thomas cited the provisions of sub-paragraph (5)(b) of regulation 2 which stipulate that the Secretary of State could request the person making the application "to provide such additional information or evidence as the Secretary of State specifies". Ms. Thomas drew attention to the breadth of that phrase. She submitted that it was clear that the Secretary of State could request information as to whether or not there was a maintenance agreement within the 'disabling' provisions of regulation 2(a) of the above-cited Commencement Order 1992 (set out in paragraph 4 above). She also drew attention to the fact that the standard form of application for a maintenance assessment contains questions designed to elicit information as to such maintenance agreements, as also does the form (CSA3) for information to be supplied by the absent parent.
10. However, it should be borne in mind that the whole of paragraph (5) of regulation 2 applies only "where an application is not effective under the provisions of paragraph (4) ...". Paragraph (4) of regulation 2 contains an imperative provision that "... 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." (see also the definition by reference to reg. 2 of "effective application" in reg. 1). I take that to mean no more, as indeed did the learned Commissioner in paragraph 11 of CCS/100/1995 [R(CS) 1/96], than that the form should have been filled up in accordance with the printed instructions on it and signed by the applicant. It would only be if the form had not "been completed in accordance with the Secretary of State's instructions (i.e. in the form]" that the assessment would not be "an effective application". If the form has been only partially completed, the Secretary of State can ask for further information but regulation 2(4) is clearly designed to enable proceedings for a maintenance assessment to be commenced shortly and simply and at a given and easily ascertainable date (hence the reference in reg. 2(5)(b) to 14 days and backdating). I do not therefore think that paragraph 5(b) of regulation 2 carries with it the implication that the question of the existence or otherwise of a maintenance agreement in force is, so to speak a condition precedent for the Secretary of State to decide the existence of, before an application can be "effective".
11. Ms. Thomas also drew attention to paragraph 13 of the decision on the file CCS/100/1995 [R(CS) 1/96] and criticised the Commissioner's conclusion that to decide that the Secretary of State had jurisdiction to determine the maintenance agreement point would result in a situation where "... the child support officer performs no greater function than the provision of an arithmetical calculation of the assessment ...". I accept Ms. Thomas' submission that the child support officer would still have to and be able to check the accuracy of other matters involved in the form of application, even if the Secretary of State alone could decide whether or not there was a maintenance agreement in force, but that does not carry with it the proposition that the Secretary of State must be the person who has the jurisdiction.
12. On the general issue, Ms. Thomas pointed out (in this matter as indeed in all others reinforced by able argument from Ms. Riggs) that paragraph 2 of the Schedule to the Commencement Order (cited in paragraph 4 above) states that during the transitional period "... no application under section 4 of the Act ... may be made ...". Ms. Thomas stressed the words, "no application ... may be made" and contended that that indicated that the non-existence of a relevant written maintenance agreement was undoubtedly a condition precedent to the making of the application. She argued that the Secretary of State must satisfy himself on this question as to whether or not there was a relevant written maintenance agreement before he could even admit any application or refer the matter to the child support officer under section 11(1) of the 1991 Act. That sub-section provides that "an 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."
13. I cannot see that this argument was necessarily put to the learned Commissioner who decided CCS/100/1995 [R(CS) 1/96] in these terms or that he dealt with that particular point in his decision. There is of course some force in Ms. Thomas's argument. However, I have come to the conclusion that the words "... no application may be made at any time when ... there is in force a ... written maintenance agreement ..." mean no more than that section 4 of the 1991 Act is not available to a parent with care (not on benefit) if there is in force a written maintenance agreement etc. It appears to me that it is no more than a convenient way of saying that section 4 does not apply to such a person, who could therefore apply, if at all, only under section 6 (persons receiving benefit). It cannot mean that an application for a maintenance assessment on the appropriate form cannot be filled up and sent to the Secretary of State; it is clear that that is not the meaning. Once such a form has been received by the Secretary of State then the provisions of paragraph 2(4) and (5) of the above cited Procedure Regulations apply and the application is deemed for that purpose to be "effective" as soon as the form is filled up and the printed instructions therein have been complied (see above).
14. I therefore reject Ms. Thomas' and Ms. Riggs' contentions that the words "no application may be made ..." infer that an application cannot be effective at all until the Secretary of State has looked at it to see whether or not there is in force a written maintenance agreement made before 5 April 1993. The answer to that question can indeed be complex and it must be to put the cart before the horse to indicate that that question must be answered before even a maintenance assessment application, made under section 4, can be considered.
15. It follows, in my view, that the correct procedure for determination of the question whether or not there is a written maintenance agreement in force (made before 5 April 1993) is as follows. The application form and the other parent's response form ask for details of written maintenance agreements, formal or informal. Of course in the ordinary way the officers of the Child Support Agency will look at the answers to those questions. Those officers may, as happened in this case, interview one or both parties or make written enquiries of them. But when once this is done, the existence or otherwise of such an agreement is then a question for a child support officer to have referred to him. It is the child support officer who must make a decision on the point (see sections 11-18 of the 1991 Act). I note that subsections (1)(a) and (6) of section 18 provide that a review "where ... an application for a maintenance assessment is refused" (subs.(1)) has to be undertaken by a child support officer (subs.(6)). Compare paragraph (3) of regulation 24 of the Maintenance Assessment Procedure Regulations (SI 1992 No. 1813, added by S.I. 1993 No. 913) which refers to a situation where "a child support officer refuses an application for a maintenance assessment on the grounds of lack of jurisdiction." When once a child support officer has given a review decision under section 18, then if either party is dissatisfied with it they can appeal in the normal way to a child support appeal tribunal under section 20 of the 1991 Act with appeal therefrom (with leave) to a child support Commissioner (under section 24 of the Act).
16. That procedure is a parallel in fact to what occurs with social security adjudication. The Departmental officers gather the information in the first instance but then submit the information they have gathered to an adjudication officer upon whom lies the duty to make the actual decision, and there is then appeal to a social security appeal tribunal. I see nothing in the child support legislation to suggest that the scheme is meant to be otherwise. Moreover, there are no equivalents in the child support legislation to sections 17, 18 and 19 of the Social Security Administration Act 1992 which make specific provision for the determination of certain questions by the Secretary of State with right of appeal to the High Court on legal questions and a right to ask for review (section 19). There is also a provision requiring the Secretary of State on request, to give grounds for his decision (regulation 15(2) of the Social Security (Adjudication) Regulations 1995, S.I. 1995 No. 1801).
17. It cannot, in my view, have been intended in the absence of such provisions in the child support legislation, that there should be a separate jurisdiction for the Secretary of State to decide such questions as the one at present in issue (whether or not there is a maintenance agreement etc.) without any machinery analogous to that that is provided by the social security legislation in relation to Secretary of State's decisions. Consequently I must dismiss the child support officer's appeal in this case. I should add that everything that I have said in this decision applies equally to the decision of the question whether there is a maintenance order in force, thus involving the prohibition of application under section 4 of the 1991 Act (see a "starred" decision on Commissioner's file CCS/11/1994).

Date: 20 February 1996 (signed) Mr. M. J. Goodman

Commissioner