UK Social Security and Child Support Commissioners' Decisions

CCS 12686/96 (*C11/97) [1997] UKSSCSC 5 (7th March, 1997)

Commissioner's File: CCS 12686/96 (*C11/97)
Mr Commissioner Rowland
7 March 1997

CHILD SUPPORT ACTS 1991 AND 1995
APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER


Appeal Tribunal: Preston CSAT

[ORAL HEARING]

1. This is an appeal, brought by the father with my leave, against a decision of the Preston child support appeal tribunal dated 1 November 1995 concerning his alleged liability to pay child support maintenance in respect of a short period three years ago. At the oral hearing before me, the father appeared in person, the mother attended and was represented by her present husband, who is a solicitor, and the child support officer was represented by Ms Daphne Thomas of the Office of the Solicitor to the Departments of Social Security and Health.

2. The parents were married to each other but they separated at the beginning of 1993. They had two sons of school age. On 21 August 1993, the mother applied under section 4 of the Child Support Act 1991 to the Secretary of State for a maintenance assessment. Her completed maintenance application form was received on 26 August 1993. A maintenance enquiry form was not issued to the father until 12 November 1993. The delay is not explained in the papers but the father told me that he too had asked for a maintenance application form in September 1993. He was told that one could not be issued to him because the mother had already made an application for child support maintenance and he was recorded on the computer as the "absent parent". The uncertainty about which parent was the "absent parent" may have caused the delay in issuing the maintenance enquiry form to the father. If the father was refused a maintenance assessment form, it does not seem very satisfactory because, if there is a genuine dispute as to which parent is an "absent parent", the issue of maintenance application forms to both parents is necessary to protect their positions while the dispute is determined. Happily, I do not think that, as a result of the refusal to issue a maintenance application form to the father, any injustice has occurred in the present case because the father's income is so much greater than the mother's. There may have been some loss to the mother due to the delay in issuing the maintenance enquiry form to the father but I think it is unlikely that the loss is substantial.

3. The father has not completed and returned the maintenance enquiry form issued on 12 November 1993. He has not done so because he has argued that he is not the "absent parent" in respect of either of the boys. The child support officer first considering the mother's application took the view that no maintenance assessment could be issued until it had been resolved which parent was the "parent with care" and which was the "absent parent". He or she also took the view that determination of that issue should await a determination as to which parent was entitled to child benefit in respect of the boys. In the event, as both parents satisfied the basic conditions for entitlement to child benefit, the question of entitlement to child benefit was effectively determined by the Secretary of State exercising his discretionary power under paragraph 5 of Schedule 10 to the Social Security Contributions and Benefits Act 1992 to determine which of the parents should have priority of entitlement. He decided that the father should have priority in respect of the younger son and the mother should have priority in respect of the elder son. In consequence, in a decision issued on 13 March 1994, the adjudication officer decided that the father was entitled to child benefit in respect of the younger son from 23 August 1993 but that the mother remained entitled to child benefit in respect of the elder son from that date. It is common ground that, on the very date that that decision was issued, the elder son went to live with his father and that he was thereafter the "parent with care" of both boys. On 4 May 1994, a child support officer decided that the father was liable to pay child support maintenance in respect of the elder son from 12 November 1993 to 13 March 1994 but that an assessment could not be made because the father had not returned the maintenance enquiry form.

4. Not surprisingly, the mother complained. She was told that the failure to complete a maintenance enquiry form usually resulted in an interim maintenance assessment being made but that that could not be done in the present case because, by the time it had been determined that the father had been an "absent parent", he had ceased to be one. The mother pressed for a formal review of the child support officer's decision and, on 3 August 1994, a second child support officer decided that there were no grounds for review under section 18 of the Child Support Act 1991. The mother appealed.

5. On 16 February 1995, the case came before the Preston child support appeal tribunal for the first time. The father was not present. The tribunal allowed the mother's appeal. They found that she was the "parent with care" of both boys but "noted that no assessment can be made until [the father] returns his maintenance enquiry form". However, it transpired that the father had not had notice of the hearing and so that decision was set aside on 30 August 1995.

6. On 1 November 1995, the case came before a differently constituted tribunal. This time both parents were present. The full text of the tribunal's unanimous decision was:-

"Appeal allowed. [The father] is determined as the Absent Parent of [the elder son] in accordance with MASC Regulations 20(2)(b)(i) for the period 12.11.1993 until 13.3.1994. Secretary of State should issue a MEF for the period so that an assessment can be made for that period."

I am told that, after the tribunal's decision, a further maintenance enquiry form was issued to the father but it was not returned. Notice of intention to make an interim maintenance assessment was also given but, on the ground that both relevant children were then living with the father, no interim maintenance assessment was in fact made.

7. The father sought leave to appeal against the tribunal's decision on the ground that the tribunal had erred in finding that he was "the absent parent" in respect of the elder son. The tribunal chairman refused leave to appeal. The father renewed his application to me and, on 3 April 1996, I granted leave, indicating that I doubted the propriety of the tribunal directing the issue of a further maintenance enquiry form but that I thought it was arguable that an interim maintenance assessment could have been made.

8. A number of issues arise on this appeal but it is convenient to deal first with the question I raised when I granted leave which is whether an interim maintenance assessment could have been, or could still be, made. At the relevant time, section 12 of the Child Support Act 1991 provided:-

"(1) Where it appears to a child support officer who is required to make a maintenance assessment that he does not have sufficient information to enable him to make an assessment in accordance with the provision made by or under this Act, he may make an interim maintenance assessment.
(2) The Secretary of State may by regulations make provision as to interim maintenance assessments.
(3) The regulations may, in particular, make provision as to -
(a) the procedure to be followed in making an interim maintenance assessment; and
(b) the basis on which the amount of child support maintenance fixed by an interim maintenance assessment is to be calculated.
(4) Before making any interim assessment a child support officer shall, if it is reasonably practicable to do so, give written notice of his intention to make such an assessment to -
(a) the absent parent concerned;
(b) the person with care concerned; and
(c) where the application for a maintenance assessment is made under section 7, the child concerned.
(5) Where a child support officer serves notice under subsection (4), he shall not make the proposed interim assessment before the end of such period as may be prescribed."

The question which arises in the present case is whether it is possible to make an interim assessment in respect of a period in the past.

9. The language of section 12 itself does not rule out the possibility of making a retrospective interim maintenance assessment. However, regulation 8(1) and (3) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 provided, at the material time:-

"(1) Where a child support officer serves notice under section 12 (4) of the Act of his intention to make an interim maintenance assessment, he shall not make the interim assessment before the end of a period of 14 days commencing with the date that notice was given or sent. ....
(3) Where the provisions of regulation 30(2)(a) or (4) apply, the effective date of an interim maintenance assessment shall be such date, being not earlier than the first and not later than the seventh day following the expiry of the period of 14 days specified in paragraph (1), as falls on the same day of the week as the date specified in regulation 30(2)(a)."

By regulation 1(2), "effective date" meant the date on which a maintenance assessment takes effect for the purposes of the Act. Regulation 30(1) and (2) provided:-

"(1) Subject to regulation 8(3), the effective date of a new maintenance assessment following an application under section 4, 6 or 7 of the Act shall be the date determined in accordance with paragraphs (2) to (4).
(2) Where no maintenance assessment is in force with respect to the person with care and absent parent, the effective date of a new assessment shall be -
(a) The date and maintenance enquiry form is given or sent to an absent parent in a case where the application for a maintenance assessment is made by a person with care or by a child under section 7 of the Act; or
(b) The date and effective maintenance application form is received by the Secretary of State in the case where the application for a maintenance assessment -
(i) is made by an absent parent; or
(ii) is an application in relation to which the provisions of regulation 3 have been applied."

Thus an interim maintenance assessment could not take effect until at least 14 days after notice has been given under section 12 (4) of the Act.

10. Regulation 8(3) was not very happily drafted. On the one hand, it appears to have been intended to make provision for an "effective date" for all interim maintenance assessments where regulation 30(2)(a) applies; on the other hand it made no provision for an "effective date" in a case where no notice had been given under section 12(4). The mother's husband argued that the consequence was that the "effective date" in a case where no notice had been given would be that provided by regulation 30(2)(a). If that is right, then it could be said that it was not "reasonably practicable" to have given written notice under section 12(4). Ms Thomas and the father argued that the consequence of no provision being made for an "effective date" in cases where notice had not been given was that it was not possible to make an effective interim maintenance assessment without giving notice, despite the terms of section 12(4) and (5). Furthermore, it was submitted that the child support officer could not give notice under section 12(4) until it had been determined which parent was the "absent parent" and that, as it had at all times been practical to contact the father, it could not be said in this case that it was not "reasonably practicable" to give him notice of an interim maintenance assessment. The arguments on both sides are to some extent circular but it may be that circularity is unavoidable when construing this legislation.

11. It seems to me to be of some importance that section 12(4) and (5) required notice to be given before an interim maintenance assessment is made. The purpose of this was presumably to enable the absent parent to avoid the interim maintenance assessment by providing the information required by the child support officer. Although there was no prohibition on the making of an interim maintenance assessment if it was not "reasonably practicable" to give written notice, there would be few cases where the presumed purpose of subsections (4) and (5) would have been met if such notice had not been given. The failure to make any provision for an "effective date" when written notice is not given may have been due to the draftsman of the Regulations failing to appreciate that there might be some cases where the purpose of the legislation would not have been frustrated if any interim maintenance were made without written notice but it seems to me to be more likely that it was deliberately intended to ensure that no interim maintenance assessment was made without such notice.

12. Furthermore, if my understanding of the purpose of section 12(4) and (5) is right, the question whether it was "reasonably practicable" to give written notice must be judged solely by reference to whether it was practicable to warn the parent of the making of the assessment before it was made rather than whether it is practicable to warn him before "the effective date". It has not been suggested that there would ever have been any practical difficulty in giving the father notice of intention to make an interim maintenance assessment and, in those circumstances, I am satisfied that it was always reasonably practicable to give him notice and that an interim notice of assessment could not take effect until he had been given such notice. As an interim maintenance assessment was based on the maintenance requirement of the qualifying child at the time an assessment was effective and as the maintenance requirement included amounts in respect of the parent with care, it follows that it ceased to be possible to make an interim maintenance assessment in the present case on 13 March 1994, because the father had not been given the appropriate notice before then and he then became himself the "parent with care" of both boys. I therefore substantially accept the arguments of Ms Thomas and the father on this point.

13. However, I do not accept that the child support officer was powerless when faced by the father's refusal to return the maintenance enquiry form while the question of whether he was the "absent parent" remained unresolved. Firstly, although it was quite appropriate in this case for the child support officer to decline to make either an ordinary maintenance assessment or an interim maintenance assessment until after the question of whether the father was the "absent parent" had been resolved, there is no reason why the child support officer should not have given notice of an intention to make an interim maintenance assessment before that question was resolved so that, once it had been resolved, an interim maintenance assessment could be made with some retrospective affect. It is true that section 12(4)(a) requires notice to be served on the "absent parent", but I do not see why notice should not be served on a person reasonably suspected of being an absent parent. If it transpires that he or she was not the "absent parent", then the notice and any subsequent interim maintenance assessment would be ineffective. The father was under a statutory duty, imposed by regulation 6(1) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, to complete and return the maintenance enquiry form within 14 days. The mere fact that there was a genuine dispute as to who was the "absent parent" was not a proper reason for him refusing to return the maintenance enquiry form. Regulation 6(1) places the duty to complete and return the form upon "any person who has received a maintenance enquiry form". The child support officer was entitled to give notice of an intention to make an interim maintenance assessment which would have effect if the father turned out to be an "absent parent", as a means of persuading him to comply with the duty to return the maintenance enquiry form.

14. Secondly, the fact that the father had not returned the maintenance enquiry form did not prevent the child support officers or the tribunals from seeking the relevant information from other sources so that an ordinary maintenance assessment could be made. I find it more than a little surprising that the child support officers and the tribunals thought that a mere refusal to return a maintenance enquiry form could enable an absent parent to avoid any payment of child support maintenance. The obvious first source of information for the child support officers was the mother. Even if she did not know precise details of the father's income, she would have been able to give the child support officers sufficient information to enable them to calculate his income with reasonable precision because it happens that he was a serving officer in the Armed Forces. The second tribunal could go one better because the father himself appeared before them and they could, and should, have asked him the relevant questions. The presenting officer should have attended the tribunal equipped with a blank maintenance enquiry form to assist them. I have no doubt that the father would have answered questions asked by the tribunal as he answered the questions I asked him.

15. In my view, the tribunal sitting on 1 November 1995 erred in law simply because they appear to have accepted that the father's refusal to complete a maintenance enquiry form prevented a maintenance assessment being made and, in consequence, they failed to ask any questions which would have enabled them to determine his financial circumstances so that a maintenance assessment could be made.

16. The father also challenged the tribunal's finding that he was the "absent parent" in respect of his elder son. On the other hand, the mother submitted that the tribunal had failed to make any finding as to whether or not he was the absent parent in respect of their younger son. Each parent submitted that, on the evidence before the tribunal, the tribunal should have found that the other parent was the "absent parent" in respect of both children. The only "finding of fact" recorded by the tribunal was:-

"The respondent [father] was the absent parent of [the elder son] for the period 12.11.1993 to 13.3.1994 in accordance with the regulations."

It is just arguable that, in the light of the tribunal chairman's note of evidence and of the submissions made to the tribunal, one can deduce what the tribunal's reasoning was but I need not embark on any such textual analysis in order to determine whether the tribunal chairman recorded an adequate statement of the reasons for the tribunal's decision, because I have set aside the decision on another ground.

17. At the hearing before me, I indicated that I would determine myself the question of who was the "absent parent" in respect of each child and I heard some oral evidence on the point. It was common ground that both boys were at boarding school as weekly boarders and so did not stay with either parent overnight during the week during term time. It was also common ground that the younger son stayed for a slightly greater number of nights with his mother than with his father. As to the elder son, the mother thought that he stayed with her for slightly more nights than with the father and the father thought that he stayed with him for slightly more nights than with the mother. I do not for one moment consider that either parent was deliberately trying to mislead me but it is hardly surprising that their recollections should not be entirely accurate after three years and I suspect that their records are not entirely accurate either, due to arrangements being altered at the time.

18. At that time, regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 provided:-

"'Day to day care' means care of not less than two nights per week on average during -
(a) the 12 month period ending with the relevant week; or
(b) such other period, ending with the relevant week, as in the opinion of the child support officer is more representative of the current arrangements for the care of the child in question;
and for the purposes of this definition, where a child is at a boarding school or is an in-patient in a hospital, the person who, but for those circumstances, would otherwise provide day to day care of the child, shall be treated as providing day to day care during the periods in question."

Regulation 20(1) and (2) provided:-

"(1) Where the circumstances of a case are that -
(a) two or more persons who do not live in the same household each provides day to day care for the same qualifying child; and
(b) at least one of those persons is a parent of that child, that case shall be treated as a special case for the purposes of the Act.
(2) For the purposes of this case a parent who provides day to day care for a child of his in the following circumstances is to be treated as an absent parent for the purposes of the Act and these Regulations -
(a) a parent who provides such care to a lesser extent than the other parent, person or persons provides such care for the child in question;
(b) where the persons mentioned in paragraph (1)(a) include both parents under circumstances as such that the care is provided to the same extent by both but each provides care to a greater or equal extent than any other person who provides such care for that child -
(i) the parent who is not in receipt of child benefit for the child in question; or
(ii) if neither parent is in receipt of child benefit for that child, the parent who, in the opinion of the child support officer, will not be the principal provider of day to day care for that child."

I need not set out the remaining paragraphs of regulation 20. It is sufficient to say that they provided a special formula for assessing child support maintenance in a case where both parents provided day to day care, the payments being made by the person deemed to be the absent parent under paragraph (2).

19. The father's argument was that, as he was paying the school fees for the boys, he should be regarded as having "day to day care" for them during term time. However, the definition of "day to day care" in regulation 1(2) makes it abundantly clear that consideration must be given only to where the child spends (or is deemed under the definition to spend) his nights. Financial considerations cannot be taken into account at this stage in the process of establishing a liability to pay child support maintenance. That is not to say that the fact that the father was paying the school fees may not have had some relevance to the application for child support maintenance but I shall come to that later.

20. The child support officer's decision was based on an application of regulation 20(2)(b)(i). The mother's husband submitted that the child support officer had not really investigated whether the parents provided day to day care "to the same extent" and argued that the mother provided more. There is some force in the submission that neither the child support officers nor the tribunals have really considered regulation 20(2)(a). He further submitted that one should ignore the nights spent at boarding school. However, that is precisely what the latter part of the statutory definition of "day to day care" does not allow. Those nights must be attributed to one or other parent. It seems to me that, in a large number of cases, it is quite impossible to determine with which parent the child would have been living if not at boarding school because the question is entirely hypothetical, but I must try and apply the legislation.

21. I do not think that it can have been contemplated by the legislator that a child support officer should consider what residence order would have been made under the Children Act 1989 on the hypothesis that the child had not been at boarding school and the parents had not been able to agree with whom the qualifying child should live. Something of a broad brush must be applied, having regard to the actual pattern of contact at weekends and holidays but bearing in mind that that may be influenced by the proximity of one parent to the school and the issue must be determined on the hypothesis that the children were not at the boarding school.

22. The discrepancies between the parents' evidence were not great. The father said that the general idea was that the boys should spend roughly equal amounts of time with each parent. The mother denied that that was so, but it seems to me that that was more or less what was achieved. In those circumstances, I take the view that, in this particular case, the term-time nights should be attributed to each parent so that, overall, each parent may be regarded as providing "day to day care" to the same extent. I also find as a fact that the elder son spent precisely equal numbers of nights with each parent when not at school. I do not know whether the Secretary of State made his decision in respect of child benefit on the basis of the amount of time he thought each boy spent with each parent or simply on the basis that it was fair to award child benefit for one boy to one parent and for the other boy to the other parent. In either event, it seems to me that the decision of the Secretary of State in relation to child benefit was eminently sensible and that the application of regulation 20(2)(b)(i) of the Child Support (Maintenance & Special Cases) Regulations 1992 provides a fair result in the present case. The mother was the absent parent in respect of the younger son and the father was the absent parent in respect of the elder son.

23. The father told me that, if I ruled that he was an absent parent, he would return the maintenance enquiry form to the Child Support Agency Centre. I ask him to do so within 14 days of the issue of my decision. I record here that he told me that, at the relevant time, he was a Wing Commander in the Royal Air Force. He lived with his partner at the weekends in her rented accommodation and made some contribution to the general costs of the household by paying for some of the shopping. During the week he lived rent free in the officer's mess at the station where he was then based, although he had to pay for his food. His salary was calculated on a daily basis by reference to his seniority but it was paid monthly at the beginning of each month, the net payment being £2,250 in December 1993, £2,226 in January 1994, £2,284 in February 1994 and £2,124 in March 1994. Strictly speaking, the payments relevant to the calculation of child support maintenance would have been those made in earlier months. He was not sure of the precise gross salary. He believed that he did not make any superannuation payments. In addition to his basic salary he received an education allowance amounting to £1,750 for each boy per term. He had no other income other than the child benefit he was eventually awarded. He paid the school fees of £2,005 per term per child with an additional £50 to £60 in respect of music tuition for the elder child. I make no findings on any of these matters.

24. I will, however, say something further about the school fees. The mother's husband submitted that they were actually paid by the Royal Air Force. I do not think that that is the correct legal analysis. I have not seen the terms under which the education allowances were paid, but it seems to me to be probable that those allowances were "remuneration...derived from...employment" and so fell to be treated as earnings under paragraph 1(1) of Schedule 1 to the Child Support (Maintenance Assessment & Special Cases) Regulations 1992. There is no provision for taking the payment of fees into account within the assessment of child support maintenance. It is one of the unfortunate consequences of the division of jurisdiction in respect of assessment (which is within the jurisdiction of child support officers) and collection and enforcement (which are within the jurisdiction of the Secretary of State) that no-one responsible for assessment in the Child Support Agency seems able to give guidance to parents as to the way that matters not relevant to assessment are regarded for the purposes of collection. The Child Support Agency's Collection and Enforcement Manual remains unpublished and even Ms Thomas, who regularly represents child support officers, was wholly unable to explain how the Secretary of State treats payments of school fees. As my jurisdiction stretches no further than that of a child support officer, I cannot state categorically how the Secretary of State will or should treat the payment of school fees in the present case. However, it may be arguable that the payment of school fees by an "absent parent" in respect of a period when the "parent with care" is treated as providing "day to day care" to the qualifying child should be regarded as a payment of child support maintenance. In this case that would mean that half of the school fees paid in respect of the elder son would be treated as a payment of child support maintenance.

25. Both parents have referred to the justice of their cases. In order to consider whether my decision creates any injustice, I have made some very rough calculations on the back of an envelope on the basis of the evidence as to the parents' means which is available to me and on the assumption that the Secretary of State would take the approach to school fees that I have suggested. My calculations suggest that the father would be liable to pay a modest additional amount of child support maintenance. That would not seem to be an unfair result given the disparity between his income and that of the mother but also having regard to the relatively few days which the children spent with her. The calculations also suggest that the father's additional liability for maintenance would have been even less - and might well have been nil - had I accepted the mother's contention that he was the "absent parent" in respect of both boys. That is because the formula for assessing child support maintenance does not result in an assessment that is twice as high if there are two qualifying children rather than one, but the school fees in respect of both boys would then, on my assumption as to the Secretary of State's approach, have been relevant. That would not necessarily have been an unreasonable result either, because cases where payments of school fees are in issue are among those where it is anticipated that it might be necessary to make application to a court to supplement the amount of child support maintenance payable under the Child Support Act 1991 (see section 8 of that Act). Whether my assumption as to the Secretary of State's approach or my calculations are correct is probably something I shall never know, but at least I am not conscious that my decision will cause injustice.

26. I set aside the decision of the Preston child support appeal tribunal dated 1 November 1995. I refer the case to another child support officer for determination on the basis that the father was the "absent parent" of his elder son, but not of his younger son, for the period from 12 November 1993 to 13 March 1994.

(Signed)
M Rowland
Commissioner
7 March 1997