UK Social Security and Child Support Commissioners' Decisions

R(CS) 2/97


Mr. M. J. Goodman CCS/8/1994

20.2.96

Estoppel - agreement with liable relatives officer to pay maintenance for three years - whether assessment of child support maintenance permissible during that period

The father of two children had entered into an agreement with a liable relatives officer to pay maintenance in respect of the children at a fixed rate for three years from August 1991. The mother applied for child support maintenance and an assessment was made effective from 15 October 1993. The father applied unsuccessfully for a review. A tribunal allowed his appeal in part but rejected his argument that the child support officer was not entitled to make an assessment that was effective during the three year period. They did so because they considered that the statement of the liable relatives officer was an assurance or a promise rather than a statement of fact and, as such, could not form the basis of an estoppel. They also considered themselves bound by R(SB) 8/83 in which it was held that an estoppel cannot prevent a statutory duty from being carried out. The father appealed to the Commissioner, asking whether R(SB) 8/83 was a definitive decision.

Held, dismissing the appeal, that:

assurances as to the future are capable of creating an "equitable" estoppel, Robertson v. Minister of Pensions [1949] 1 KB 227, but an estoppel cannot prevent a duty enjoined by statute from being carried out, Maritime Electric Company v. General Dairies Ltd [1937] AC 610 (paras. 13 to 15);

any decision (whether on child support or not) by a Commissioner is absolutely binding, so far as its legal principles are concerned, on child support appeal tribunals and is of high persuasive effect on other Commissioners, R(I) 12/75 (para. 16).

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I dismiss the appeal of the absent parent against the decision of the child support appeal tribunal dated 3 June 1994 as that decision is not erroneous in law; Child Support Act 1991, section 24.
2. This is an appeal to the child support Commissioner by the absent parent who is the father of Alexander and Bethany, aged 12 and 19 at the relevant time. Alexander and Bethany are in the care of their mother. The appeal is against the unanimous decision of a child support appeal tribunal (dated 3 June 1994) which was considering an appeal by the father against a refusal by the child support officer to review a decision of an earlier child support officer (dated 13 October 1993), to the effect that the father was liable to pay maintenance in respect of Alexander and Bethany at the rate of £82.21 per week from 15 October 1993.
3. The tribunal allowed the appeal in the following terms:

"1. We allow the appeal.

The child support maintenance assessment of 13 October 1993 was made in ignorance of the material fact Alexander and Bethany stayed with their father for at least two nights each week and for one week in the summer.

We remit the case back to the Secretary of State so that it may be referred to a child support officer to carry out a review under Section 18 of the Child Support Act 1991.

The officer will need to investigate the full extent to which the children stay with [the parent with care] as the details contained in [the note of evidence and the tribunal's findings of fact] represent the minimum of nights for which [the father] has care of his children."

4. The father does not seek to challenge any of those matters in the tribunal's decision and indeed they still stand because I have dismissed the appeal against the tribunal's decision. However, the father does strongly challenge one further aspect of the tribunal's decision namely its rejection of his contention made, both on appeal to the tribunal and on appeal to the Commissioner, that the child support officer's maintenance assessment should not have commenced until the expiry of a three year period (commencing in August 1991) for the duration of which the father had agreed with the liable relatives officer of the local office of the Department of Social Security to pay maintenance of £43.33 per week in respect of the children. That varied (either expressly or impliedly) an earlier court order for maintenance made on the divorce of the father and mother. The father's contention is that he entered into this arrangement with the liable relatives officer in good faith and was assured that the arrangement would last for three years before it was again reviewed. The liable relatives officer was involved because the mother was in receipt of income support. Furthermore, the father insists that he incurred financial commitments based on this arrangement with the liable relatives officer, which he would not necessarily have undertaken if he had thought that the three year period would not be adhered to.
5. The problem arose of course, because before the expiry of the three years period, the legislation embodied in the Child Support Act 1991 and regulations thereunder came into force on 5 April 1993. The mother being in receipt of a social security benefit i.e. income support (and subsequently family credit) came within section 6 of the Child Support Act 1991 by which she was obliged to ask the Secretary of State to refer the matter to a child support officer for a maintenance assessment.
6. The tribunal dealt with this matter as follows. The chairman's note of evidence records that the father gave sworn evidence to the following effect:

"Had court order. Augmented by liable relatives letter. Liable relative's officers were ill-informed. In August 1991 arrangement (I took it to be binding) to increase payments, but with no further change for three years. My increase was a very generous one. Liable relatives initial calculation was for £62 but did not pay that much. I was told I was in a three year cycle. Should I have reverted back to my court order on day child support came into force. Have been paying assessed amount."

7. The presenting officer, having said that the child support officer did not regard these matters as grounds for a review added, "With regard to liable relative's officers' statement no dispute to the statement was made. In line with guidelines at the time. No legislation at the time on three year review." The claimant then added "liable relatives people wanted same details as [Child Support] Agency does. Act had been passed at time I increased my payments. Benefits cases like mine only came about because of my ex-wife being on benefit and because my name begins with B.".
8. The tribunal made the following finding of fact:

"The payments required to be made by [the father] under the court order were increased after discussion with the officers of the Liable Relatives Department in August 1991. [The father] was told at that stage that the assessment would run until 1994."

9. In dealing with this point in their reasons for decision the tribunal said:

"In his letters and before us [the father] argued that the assurance that he was given by the liable relatives officer that there would be no further change to his maintenance payments until 1994 should be binding on the child support officer. Phrased in legal terms he was arguing that the child support officer was estopped by the assurance given by the liable relatives officer. We reject that argument. First, estoppel applies to statements of fact. In this case the statement made by the liable relatives officer was an assurance or a promise rather than a statement of fact. Moreover we are bound by the decision of the Commissioner in R(SB) 8/83 which decides that estoppel cannot prevent a statutory duty from being carried out."

10. The father has put in detailed grounds of appeal on this point, in his letter dated 2 August 1994, reading as follows:

"I respectfully ask the Commissioner the following:

Was the decision of R(SB) 8/83 a definitive decision, thus ensuring a case such as mine can go no further?

Although there are similarities between my case and R(SB) 8/83 there are essential differences, namely that the liable relatives officer was not making an assurance or promise, but following the policy at the time.

May I reiterate the point I made in my letter to the tribunal chairman, namely that as long as my case was dealt with between April 1993 and April 1996 (the dates when social security cases will be taken up in Child Support Law) then I am not seeking to prevent a statutory duty from being carried out. The point here is that if the liable relative officer's three year review cycle was left to run its course, I would be assessed within the stated period, (I should have been liable for a reassessment in August 1994)."

11. I will endeavour to deal with each of those matters. First, I should emphasise that the child support Commissioner is a wholly independent judicial authority, quite separate from the Child Support Agency and from the tribunal structure. The child support Commissioner must impartially apply the law applicable to the facts of any particular case. The Commissioner is not an administrative authority nor has he any administrative powers over the Agency or the Departments.
12. Appeal to the Commissioner from the decision of a child support appeal tribunal lies (under section 24 of the 1991 Act) only on its being shown that the tribunal erred in law. On pure issues of fact the decision of the tribunal is final. However, in the present case there is no doubt that the father has raised an important legal point in connection with the tribunal's decision, by which he contends that the child support officer was legally bound to honour the arrangement made by the father with the liable relatives officer that there would be no review of maintenance payments for three years from August 1991. Such a contention is sometimes referred to as invoking the legal rule of "estoppel" which concerns a statement which is intended to cause the recipient of the statement to act on it, with the result that the recipient does act on it in arranging his affairs (particularly to his detriment). Then the maker of the statement is "estopped" from denying the truth of that statement in any proceedings by the recipient of the statement against the maker of the statement. As was said in one of the leading cases on the point, the principle of estoppel acts as "a shield not a sword" (Combe v. Combe [1951] 2 KB 215).
13. The tribunal in this case based its decision partly on the ground that:

"First, estoppel applies to statements of fact. In this case the statement made by the liable relatives officer was an assurance or a promise rather than a statement of fact."

I am not sure that that statement is entirely correct in law. In Robertson v. Minister of Pensions [1949] 1KB 227, for example it appears to have been decided that "equitable estoppel" is capable of applying also to assurances as to the future (in that case the future payment of war disability pension).

14. However, the second ground on which the tribunal based its decision is as follows:

"Moreover, we are bound by the decision of the Commissioner in R(SB) 8/83 which decides that estoppel cannot prevent a statutory duty from being carried out."

15. That statement is, in my view, undoubtedly correct and that is why in the ultimate I have dismissed the father's appeal against the tribunal's decision. Estoppel and statutory duty have been considered in the context of the social security legislation on a number of occasions by Commissioners e.g. R(P) 1/80 (a decision of the then Chief Commissioner) and R(SB) 8/83. Uniformly the Commissioners have applied in the social security context the general rule of law laid down by the Judicial Committee of the Privy Council in Maritime Electric Company v. General Dairies Limited [1937] AC 610 that "an estoppel cannot prevent a duty enjoined by statute from being carried out" (para. 14 of R(P) 1/80). The reasoning behind all these cases is that if Parliament lays down rules of law by Acts of Parliament or authorises the making of such rules by regulations, then the Acts and Regulations represent the law of the land. It is not possible for anyone who is administering or applying that law to waive or vary that law by statements which have a contrary effect to what the law actually is in the legislation.
16. Bearing those matters in mind, I now return to the specific questions posed by the father in his grounds of appeal (see para. 9 above) and I refer to them in the order in which they occur. First there is the query as to whether R(SB) 8/83 is a definitive decision. The answer to this is that any decision (whether on child support or not) by a Commissioner is absolutely binding, so far as its legal principles are concerned, on child support appeal tribunals and is of high persuasive effect on other Commissioners (see paras. 16 to 22 of R(I) 12/75, decision of a tribunal of Commissioners). I should, however, add, for the reasons which I have indicated in detail in paragraph 13 above that, in applying to child support law the rule that estoppel cannot affect a statutory duty I am not just applying R(SB) 8/83 but am applying general principles of law as laid down for example by the Judicial Committee of the Privy Council in the above-cited Maritime Electric Company case.
17. Further, in his letter of 2 August 1994, the claimant in effect suggests that there was no legal reason why the particular maintenance assessment in regard to him could not have been left until August 1994, when the three year period agreed with the liable relatives officer would have run out. However section 6 of the 1991 Act imposes an imperative duty upon a parent with care and indeed upon the Secretary of State which duty came into force as soon as the Act came into force (i.e. on 5 April 1993). If what the father complains of is the administrative practices by which the Secretary of State decided the order in which to deal with benefit related child support cases then for the reasons that I have indicated above I cannot interfere. Estoppel could not affect the imperative provisions of section 6 coming into force on 5 April 1993. As to the point made by the father that the liable relatives officer "was not making an assurance or promise, but following the policy of the time", that would, if anything, weaken any contention as to estoppel but in any event I have already dealt with the overall nature of estoppel, pointing out that it might apply to an assurance as to the future but cannot in any circumstances apply in the context of statutory duties.
18. Lastly, I deal with a point which was made in a subsequent passage in the father's letter of 2 August 1994 when he asked that the Child Support Agency should make a refund of what he alleges is an overpayment of maintenance made by him from April 5 to October 15, 1993 (the latter date being the expiry of the three years review period agreed with the liable relatives officer). He bases this on a contention that on 5 April 1993 he should have "reverted to paying the maintenance sum of £30.80 per week (as directed by the 1988 Court Order)." That is not, however, a matter which comes within my purview on an appeal (for the reasons given in detail above) and I cannot comment on it.

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

Commissioner