UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CCS_2468_1995 (27 February 1996)

 


R(CS) 1/97


Mr. D. G. Rice CCS/2468/1995

27.2.96

Maintenance assessment - section 18 review of section 19 review decision - whether "effective date" that of the section 19 review.

On 20 April 1993 the parent with care applied to the Secretary of State for a maintenance assessment to be made in respect of her two children. On 30 July 1993 the child support officer made an assessment which was effective from 1 August 1993. However, on 19 August 1993 the child support officer reviewed this decision under section 19 of the Child Support Act 1991 on the ground that it had been based on a mistake as to a material fact, namely the absent parent's housing costs, and made a new assessment with effect from 1 August 1993. On 1 September 1993 the parent with care applied for a further review under section 18 of the Act. A fresh assessment was made, also with effect from 1 August 1993.

Held that:

the effective date of the new assessment made on 19 August 1993 should have been 15 August 1993, not 1 August 1993, in accordance with regulations 31(11) and 33(3) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (para. 6);

the effective date of the assessment made on the section 18 review was also 15 August 1993. Under regulation 31(6)(a) of the 1992 Regulations where an application for review under section 18(2) was received within 28 days of the notification of the previous assessment the effective date of the new assessment was "the effective date as determined on review". In the absence of any provision to the contrary, this was the date of the previous assessment, since the natural effective date of a substituted assessment was the same as that of the assessment it replaced (para. 9).

The Commissioner allowed the absent parent's appeal and substituted his own decision.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. My decision is that the decision of the child support appeal tribunal given on 19 December 1994 is erroneous in point of law, and accordingly I set it aside. As it is convenient that I give the decision the tribunal should have given, I further decide that the appellant i.e. the absent parent, is liable as from 15 August 1993 to pay in respect of his children, Alison and Gary, child support at the rate of £94.13 per week.
2. This is an appeal by the absent parent, brought with my leave, against the decision of the child support appeal tribunal of 19 December 1994. In view of the complexity of the case I directed an oral hearing. At that hearing neither the absent parent nor the parent with care was present or represented, but the child support officer appeared by Ms. Daphne Thomas, of the Solicitor's Office of the Department of Social Security.
3. The absent parent is the father of Alison and Gary who live with their mother, the parent with care. On 20 April 1993 the parent with care applied to the Secretary of State for a maintenance assessment to be made in respect of the two children. On 30 July 1993 an assessment was made with effect from 1 August 1993.
4. However, at the instigation of the child support officer, a review was undertaken of the award under section 19 of the Child Support Act 1991. Information had been received from the absent parent's building society and insurance company relating to the mortgage payments due in respect of his house, and this suggested that the existing maintenance assessment was defective by reason of having been based on a mistake as to a material fact, namely the absent parent's housing costs. The child support officer carried out his review on 19 August 1993, and purported to apply the new assessment as from 1 August, being the date of the assessment under review. However, in doing so he erred in law. The effective date of the new assessment should have been determined in accordance with regulation 31(11) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, SI 1992 No. 1813. That provision reads as follows:

"31. (11) Subject to paragraphs (9), (10), (12), (13) and (14), where a fresh maintenance assessment is made under section 19 of the Act, the effective date of the assessment shall be the first day of the maintenance period in which the assessment is made."

5. Maintenance periods are provided for in regulation 33 of the above regulations. That regulation, as far as is relevant provides as follows:

"33. - (1) The child support maintenance payable under a maintenance assessment shall be calculated at a weekly rate and be in respect of successive maintenance periods, each such period being a period of 7 days.

(2) Subject to paragraph (6), the first maintenance period shall commence on the effective day of the first maintenance assessment, and each succeeding maintenance period shall commence on the day immediately following the last day of the preceding maintenance period.

(3) The maintenance periods in relation to a fresh maintenance assessment following a review under section 16, 17, 18 or 19 of the Act shall coincide with the maintenance periods in relation to the earlier assessment, had it continued in force, and the first maintenance period in relation to a fresh assessment shall commence on the day following the last day of the last maintenance period in relation to the earlier assessment."

6. The effective date of the first assessment was 1 August 1993. The first period will then have commenced on that date and terminated on 7 August 1993. The next period will have commenced on 8 August 1993 and terminated on 14 August 1993. As the fresh assessment made by the child support officer under section 19 was made on 19 August 1993, the first maintenance period in relation to that fresh assessment commenced, pursuant to regulation 33(3), "on the day following the last day of the last maintenance period in relation to the earlier assessment" i.e. on 15 August 1993. And the effective date of that assessment was, pursuant to regulation 31(11), "the first day of the maintenance period in which the assessment is made". The first day of the relevant maintenance period was, as has been demonstrated above, 15 August 1993, and accordingly the effective date of the new assessment under section 19 was also 15 August 1993, not, as the tribunal said, 1 August 1993.
7. On 1 September 1993 the parent with care requested a further review under section 18 of the Act, and in the event the second child support officer, who conducted that review, made a fresh maintenance assessment. A problem has arisen as to the effective date of that assessment. The tribunal attributed to it the same date as the effective date of the original maintenance assessment, namely 1 August 1993. But were they right? The position is governed by regulation 31(6) which reads as follows:

"31. (6) Subject to paragraphs (7), (10) and (11), where an application is made under section 18(2) of the Act for a review of a maintenance assessment in force, the effective date of a fresh assessment (if one is made) following such a review shall be-

(a) where the application is received by the Secretary of State within 28 days of the notification of that assessment, or on a later date but the Secretary of State is satisfied that there was unavoidable delay, the effective date as determined on the review;

(b) subject to sub-paragraph (a), where the application is received by the Secretary of State later than 28 days after the date of notification of that assessment, the first day of the maintenance period in which the application is received."

Manifestly, in this instance the application was received within 28 days of the notification of the maintenance assessment in force, so that the effective date of the fresh assessment under section 18 will fall within (a) i.e. it will be "the effective date as determined on the review". But what exactly is meant by the above words in inverted commas? In my judgment, they can only mean that the effective date shall be such date as is determined by the child support officer in course of his review. But how is he to arrive at that date?

8. Some help in resolving this matter can be derived from consideration of regulation 31(6)(b). That deals with the case when an application is received later than 28 days after the date of the notification of the earlier assessment, and where an extension of time is not allowed. In that instance there is no discretion accorded the child support officer. He has first to identify the maintenance period applicable, and then fix as the effective date of the fresh assessment the first day of that maintenance period. It is ascertainable under a fixed formula. Not so the effective date under sub-paragraph (a) of regulation 31(6). But whereas the effective date under sub-paragraph (b) must necessarily be later than the effective date of the earlier assessment under review, this is not inevitably the case under sub-paragraph (a). Moreover, as the latter sub-paragraph is dealing with applications made within 28 days of notification of the earlier assessment, it clearly contemplates an effective date earlier than the one arising under the fixed formula prescribed by sub-paragraph (b). Were that fixed formula to apply to the facts of the present case, the effective date would be 29 August 1993. Sub-paragraph (a) contemplates an earlier effective date. Two eligible dates present themselves, 15 August 1993 and 22 August 1993. It must be remembered that what was being sought on 1 September 1993 was a review of an earlier assessment dated 15 August 1993, and it would seem to me that, unless this course is precluded by any statutory provision (and, in my view, it is not) the natural effective date of the substituted assessment should be the same as that of the assessment being replaced. Accordingly, in my judgment, the correct effective date of the new assessment arising out of the application under section 18 should be 15 August 1993.
9. It follows from what has been said above that the tribunal erred in point of law in giving to the new assessment an effective date of 1 August 1993 instead of 15 August 1993. I must on that ground set aside their decision.
10. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision. For the reasons set out above, the correct commencement date of the fresh maintenance assessment is 15 August 1993.
11. As regards the actual sum payable, I see nothing wrong with the tribunal's decision nor in his submission to the tribunal does the claimant appear to have stated exactly where he considered the calculation had gone wrong.
12. Accordingly, my decision is as set out in paragraph 1.

Date: 27 February 1996 (signed) Mr. D. G. Rice

Commissioner