UK Social Security and Child Support Commissioners' Decisions

R(CS) 13/98


Mr. D. G. Rice CCS/6996/1995

14.5.96

Tribunal jurisdiction - paternity dispute - whether a matter for the tribunal or court

An absent parent applied to the Secretary of State for a maintenance assessment to be reviewed on the ground that he disputed paternity and that he should not be required to make any maintenance payments until the Child Support Agency had proved by means of a DNA test that he was the father of the qualifying child. The Secretary of State referred the matter to a child support officer who refused to review the existing maintenance assessment on the ground that the absent parent had accepted paternity when he completed the maintenance enquiry form. The absent parent appealed to a child support appeal tribunal, which by a majority allowed the appeal. The child support officer appealed to the Commissioner.

Held, allowing the appeal, that:

the absent parent had, in completing the maintenance enquiry form, accepted paternity and accordingly the Secretary of State had properly referred to the child support officer the making of a maintenance assessment, which could not be cancelled on the basis that the absent parent was not the father of the child unless and until it was established by a court that such was the case (para. 6);

by virtue of Articles 3 and 4 of the Child Support Appeals (Jurisdiction of Courts) Order 1993, an appeal tribunal had no jurisdiction to determine paternity disputes (para. 6).

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. My decision is that the decision of the child support appeal tribunal given on 30 March 1995 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 appeal against the decision of the second child support officer should be dismissed.
2. This is an appeal by the child support officer brought with the leave of the Commissioner, against the majority decision of the child support appeal tribunal of 30 March 1995. In view of the novelty of the point in issue, I directed an oral hearing. At that hearing the absent parent was present, but unrepresented, whilst the adjudication officer appeared by Ms. Daphne Thomas of the Solicitor's Office of the Department of Social Security. The parent with care was neither present nor represented. I gave the Secretary of State leave to intervene in this matter, and he was treated as a respondent to the appeal. At the oral hearing, he appeared by Ms. Ruth Riggs, again from the Solicitor's Office of the Department of Social Security.
3. On 1 June 1993 the parent with care applied to the Secretary of State under section 4 of the Child Support Act 1991 for a maintenance assessment to be made in respect of her son Shane. In response to a request from the Secretary of State on
   4 August 1993, the absent parent completed form MEF. On the basis of the information contained in that form MEF, and the further form MAF completed by the parent with care on 27 August 1993, the first child support officer concluded that the absent parent was obliged to pay child support maintenance in respect of Shane at the rate of £76.61 per week. On 27 April 1994 the absent parent applied to the Secretary of State for the maintenance assessment to be reviewed on the ground that he disputed paternity, and that he should not be required to make any maintenance payments until the Child Support Agency had proved by means of a DNA test that he was the father of Shane. The Secretary of State referred the matter to the second child support officer with a view to his considering a review pursuant to section 18 of the Child Support Act 1991.
4. On 18 May 1994 the second child support officer refused to review the existing maintenance assessment, because the absent parent had "accepted paternity when he completed the maintenance enquiry form which he signed and dated
   4 August 1993". However, he did vary, from 7 February 1994 (but not for the earlier period from 29 July 1993 to 6 February 1994), the sum actually payable by the claimant, by reason of the changes in the law, reducing liability to £64.58 per week.
5. In due course, the absent parent appealed to the tribunal, who in the event by a majority allowed the appeal. The majority took the view that the denial of paternity invalidated the assessment, and that accordingly, until it had been shown that he was the actual father of Shane, no maintenance was required of him. The dissenting member of the tribunal, who was the chairman, took the view that the admission by the claimant of paternity on form MEF was sufficient to give validity to the assessment.
6. The absent parent had, in completing form MEF, accepted paternity of Shane, and accordingly the Secretary of State very properly referred to the child support officer the making of a maintenance assessment. There can be no question of cancelling that assessment on the basis that the absent parent was not the father of Shane, unless and until it is established by a court that such was the case. Certainly, an appeal tribunal has no powers in a matter of this sort. They simply cannot entertain any consideration of the issue of parentage. For, although section 20 of the Child Support Act 1991 confers the right of appeal to a child support appeal tribunal on any person who is aggrieved by a child support officer's decision:

"(a) on a review under section 18; [or]

(b) to refuse an application for such a review",

that section is modified in disputed parented cases by the Child Support Appeals (Jurisdiction of Courts) Order 1993 ("the Order"). Article 3 of the order provides as follows:

"An appeal under section 20 of the Act shall be made to a court instead of a child support appeal tribunal in the circumstances mentioned in Article 4."

Article 4 provides:

"The circumstances are that-

(a) the decision against which the appeal is brought was made on the basis that a particular person (whether the applicant or some other person) either was, or was not, a parent of a child in question, and

(b) the ground of appeal will be that the decision should not have been made on that basis."

7. Unfortunately, the tribunal in this case took it upon themselves to consider the question of the paternity of the absent parent, when they had no jurisdiction so to do. On that ground, I must set aside their decision as being erroneous in point of law. They should have given no consideration to the question of parentage, and should have left the maintenance assessment undisturbed. It will be for the absent parent to appeal to a court on the issue of parentage. How the matter proceeds from there will be for the court to determine in the light of the relevant legislation.
8. Although I have to set aside the tribunal's decision as being erroneous in point of law, there is no point in my remitting the matter to a new tribunal. I can conveniently substitute my own decision, and dispose of the matter finally.
9. Accordingly, my decision is as set out in paragraph 1.

Date: 14 May 1996 (signed) Mr. D.G. Rice

Commissioner