UK Social Security and Child Support Commissioners' Decisions

CCS 12682/96 (*C12/97) [1997] UKSSCSC 6 (17th March, 1997)

Commissioner's File: CCS 12682/96 (*C12/97)
Mr Commissioner Mesher
17 March 1997

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

DECISION OF THE CHILD SUPPORT COMMISSIONER

Appeal Tribunal: Bexleyheath CSAT

1. The parent with care's appeal is allowed. The decision of the Bexleyheath child support appeal tribunal dated 12 October 1995 is erroneous in point of law, for the reasons given below, and I set it aside. The appeal is referred to a differently constituted child support appeal tribunal for determination in accordance with the directions given in paragraph 17 below (Child Support Act 1991, section 24(3)(c)).

2. This appeal has generated even more than the usual volume of paper, but I shall try to keep to the points which are necessary to my decision. The case stems from the application for child support maintenance under section 4 of the Child Support Act 1991 made on 12 July 1993. The first child support officer's (CSO's) decision was made on 3 March 1994, making an assessment against the absent parent with an effective date of 28 July 1993, and a change in the assessment from 7 February 1994. A second CSO on 21 April 1994 carried out a review under section 19 of the Child Support Act 1991 and made a maintenance assessment of slightly higher amounts from the same dates. Following the further provision of information by the absent parent, a third CSO on 16 January 1995 carried out a review under section 18 in which the effective date of the first maintenance assessment was fixed as 23 December 1993, rather than 28 July 1993, and different amounts were assessed. There were changes at various dates through 1994 until an amount was set from 7 December 1994.

3. It was against that decision that the parent with care appealed to the appeal tribunal. The main points raised which were within the jurisdiction of the appeal tribunal were that her housing costs had been wrongly assessed and that the effective date of the maintenance assessment should have remained at 28 July 1993. In the written submission to the appeal tribunal the CSO said on the first point that an increase in mortgage payments had been taken into account from 7 December 1994 and that the amount of a home improvement loan taken into account was correct under the regulations. On the second point, the CSO said:

"The effective date has been calculated in accordance with regulation 30(2)(a) of the CS(MAP) Regs 1992, ie the MEF issue date. A MEF was issued on 28/07/93 however [the absent parent] did not receive it. A further MEF was issued on 23/12/93. I submit that the effective date is correct ..."

It was also said that the calculation of the absent parent's council tax was incorrect and it was submitted that the case should be remitted to the Secretary of State for the proper calculations to be made.

4. The appeal tribunal did remit the case with a direction about the absent parent's council tax and about the parent with care's mortgage. It upheld the CSO's view of the proportion of the home improvement loan to be taken into account and of the effective date of the maintenance assessment. On that last point, the chairman recorded evidence from the parent with care that the absent parent was at the matrimonial home until 30 July 1993, when he moved out, and that prior to the move he knew that the Child Support Agency (CSA) was on to him. She did not know whether he received the MEF. The appeal tribunal recorded as findings of fact:

"7. [The absent parent] left the matrimonial home on 30 July 1993 and the Tribunal did not hear any evidence to prove he received the MEF at his new address in July 1993. 8. [The absent parent] received a MEF in December 1993 it was received back completed by CSA on 11.01.1994."

In its reasons for decision it said:

"1. The effective date for the assessment is 23.12.1993 as found by the 3rd CSO ie. the date of issue of the MEF. CS(MAP) Regulations, Regulation 30(2)(a) the only evidence accepted as to receipt of a MEF related to that date."

5. I granted the parent with care leave to appeal from the appeal tribunal's decision. Initially, the CSO, in the submission dated 19 June 1996, supported the appeal in relation to the identification of the effective date. He provided the following important information:

"9. The MEF that was treated as given or sent on 28 July 1993 was not sent to [the absent parent's] last known or notified address. Instead of being sent to the matrimonial home, which was the address provided by [the parent with care] on her application, it was sent to an address it was known that he planned to occupy, and to where he later moved. In my view, MAP Reg 1(6)(b) is not satisfied in respect of the address to which that MEF was given or sent. 10. Examination of the papers on the original case has shown that on 16 August 1993 [the absent parent] wrote to CSA explaining that he had not received the MEF of 28 July 1993. However, it appears that the child support officer who conducted the Section 18 review was not aware that a further MEF was sent to [the absent parent], which he partially completed, signed, and dated 31 August 1993. While there is no record of the date of issue of this form, [the absent parent] has written in it that it came with a compliments slip which stated, "Re letter of 17 August 1993, please find enclosed a Maintenance Enquiry Form. Thank you for your cooperation."

Because [the absent parent] had not provided the necessary information to make a Maintenance Assessment, the form was referred to another office to arrange an interview with [the absent parent]. Before it was returned, the MEF given or sent on 23 December 1993 had been issued, on which [the absent parent] did provide the necessary information."

It was submitted that the effective date should be 31 August 1993. However, in the submission dated 9 September 1996, the CSO, following the representation by the absent parent that the MEF signed on 31 August 1993 was sent to him only with a compliments slip and without any covering letter, submitted that that MEF had not been "effectively served" and that the proper effective date for the maintenance assessment was 23 December 1993.

6. In order to explain why I have found that the appeal tribunal did err in law I need to look first at the legislative provisions on the effective date of maintenance assessments. That is dealt with in regulation 30 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (the MAP Regulations), which at the relevant dates 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 a 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 an effective maintenance application form ir received by the Secretary of State in a 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.

(3) The provisions of regulation 1(6)(b) shall not apply to paragraph (2)(a).

(4) Where a child support officer is satisfied that an absent parent has deliberately avoided receipt of a maintenance enquiry form, he may determine the date on which the form would have been given or sent but for such avoidance, and that date shall be the relevant date for the purposes of paragraph (2)(a)."

Regulation 8(3) is not relevant in the present case, as it applies where an interim maintenance assessment is being replaced by an ordinary assessment.

7. It is plain that regulation 30(2)(a) has to be applied, as the application for the maintenance assessment was made by the parent with care under section 4 of the Child Support Act 1991. Regulation 30(3) is very important and seems to have been overlooked in many of the submissions in this case. It has the effect that the presumption in regulation 1(6)(b) about the date of the giving or sending of a document being two days after the date of posting does not apply for the purpose of fixing the effective date of a maintenance assessment under regulation 30(2)(a), as in this case. However, it is necessary also to consider section 7 of the Interpretation Act 1978:

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

By virtue of section 23, those presumptions apply to statutory regulations as well as to Acts of Parliament. There are some difficulties in working out the effect of section 7 of the Interpretation Act 1978 in relation to regulation 30, which I shall have to come back to below. What though is clear is that it was not sufficient for the appeal tribunal simply to say that the effective date could not have been 28 July 1993, as the date of posting of the first MEF, because it had not been proved that it had been received by the absent parent. A more detailed investigation of the legal position was necessary, and it was an error of law to fail to carry it out.

8. A second error of law arises from the revelation of the sending to the absent parent of the second MEF. There was no evidence before the appeal tribunal of that having been done. However, the CSO now concerned with the appeal found the evidence in the case-papers. In those circumstances, it seems to me that it must be assumed that that evidence was within the knowledge of the CSO then concerned before the appeal tribunal hearing on 12 October 1995. If it was not within that officer's actual knowledge, it was within his or her constructive knowledge as part of the case-papers which should have been thoroughly investigated. In a Commissioner's decision on supplementary benefit, R(SB) 18/83, the Commissioner said this about the situation where only one letter out of a considerable correspondence between the claimant's accountants and the Department of Social Security were put in evidence to an appeal tribunal (paragraph 11):

"It was in my judgment entirely wrong to tender only part of this correspondence, and bearing in mind that the letters contained submissions about the valuation of the shares I think that it was inconsistent with the objectivity expected of benefit officers presenting cases to tribunals to have excluded the correspondence in any case. In Regina v Leyland Justices, ex parte Hawthorne [1979] QB 283 it was held that a decision of justices was contrary to natural justice (without the tribunal being at fault in any way) when the prosecuting authority had withheld from the accused the names of two potential witnesses. In the present case the presenting officer failed to produce evidence of which he was aware but of whose relevance I will assume in his favour he did not appreciate. The omission would have been repaired if the letters tendered by the claimant had been admitted by the tribunal, but as it has turned out I hold the tribunal decision to have been erroneous in law on this ground."

In my view the same essential principle applies to child support cases and the CSO. In consequence, since the evidence about the second MEF could have had an effect on the decision, its withholding from the appeal tribunal rendered the appeal tribunal's decision (without any fault on its part) contrary to natural justice and hence erroneous in point of law.

9. For those reasons, the appeal tribunal's decision dated 12 October 1995 must be set aside. At an earlier point in the proceedings I thought that there was an inconsistency between what the appeal tribunal decided about the proportion of the home improvement loan which could be taken into account in the parent with care's housing costs and the evidence given. But the apparent inconsistency turns out to be the result of a typing error in the chairman's note of evidence (see page 267), so no more need be said about that. To explain why I have concluded that the appeal must be referred to a new appeal tribunal, and to give guidance to that new appeal tribunal, I need to look at regulation 30(2)(a) of the MAP Regulations in more detail.

10. Looking at the words of regulation 30(2)(a) in their ordinary and natural meaning (without considering any statutory presumptions), in my judgment they make the effective date of a first maintenance assessment the date on which a MEF is given, in the sense of being handed over, or sent, in the sense of despatched, to the absent parent. There is authority, if any is needed, that the ordinary meaning of "send" is "despatch" (Nash v Ryan Plant International Ltd [1978] 1 All ER 492, 496), but it is also clear that there may be contexts in which the word "send" can refer to receipt or to the whole process of despatch, transmission and receipt of something. The context of regulation 30 as a whole reinforces the ordinary meaning. In particular, there is a very clear distinction between the rule in regulation 30(2)(a), referring to the date on which a MEF is given or sent, and regulation 30(2)(b), referring to the date on which a MEF is received by the Secretary of State. That indicates that in regulation 30(2)(a) something different from receipt is intended. Regulation 30(4) introduces some doubt, in its reference to a date on which a MEF would have been given or sent were it not for the absent parent's deliberate avoidance of receipt of a MEF. But that does not undermine the meaning of "sent" in the rest of regulation 30, because deliberate avoidance of receipt may cause the CSA to delay despatching a MEF or to attempt, but fail, to do something which amounts to "sending to" the absent parent.

11. Is there any statutory provision which requires a different meaning to be given? It has already been noted that regulation 1(6)(b) does not apply to regulation 30(2)(a). The only other potentially relevant provision is section 7 of the Interpretation Act 1978. Section 7 contains two presumptions. The first is that service of a document is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document. The second is that service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. But that second presumption can only be applied after the true meaning of the relevant statutory provision about serving a document has been ascertained (R v Secretary of State for the Home Department, ex parte Yeboah [1987] 3 All ER 999 and R v Appeal Committee of County of London Quarter Sessions, ex parte Rossi [1956] 1 QB 682). If the true meaning is that it is the date of despatch which is crucial rather than the date of receipt, the presumption has no application and, for instance, proof that the relevant document was never received does not in itself undermine a conclusion that it was sent on a particular date.

12. Thus, the legal position under regulation 30(2)(a) of the MAP Regulations is that, providing that a MEF can be said to have been "sent to" an absent parent, the effective date of the maintenance assessment is the date of despatch of the MEF, whether or not the MEF was received by the absent parent. Returning for a moment to the decision of the appeal tribunal of 12 October 1995, that explains in more detail why the appeal tribunal was wrong to concentrate on whether there was evidence in this case of the first MEF having been received by the absent parent. But in order for that rule to apply, it must be shown that what has been done by the CSA amounts to sending a MEF to the absent parent. Normally there will be no doubt that that has been done, and on what date. However, in cases of doubt the terms of the first presumption in section 7 of the Interpretation Act are helpful. Where the post can be and is used, the envelope containing the MEF must at least be properly addressed, pre-paid and posted. In those circumstances service (which would include sending, in the sense of despatch) is deemed to have been effected. A similar standard would have to be applied in proving without the help of any presumption that a MEF had been sent to an absent parent. Thus, for example, if by mistake the wrong address was taken out of records which contained the correct address and put onto the envelope containing the MEF, the MEF would not have been "sent to" the absent parent. What does or does not amount to sending a MEF to the absent parent will depend on the particular circumstances of each case.

13. At this point the information available to me (the object of vigorous blanking-out of names and addresses) is insufficient for me to go on and say how those legal rules apply to the particular circumstances of the present case. That is why there must be a reference to a new appeal tribunal. On page T40, the copy of the first page of the parent with care's maintenance application form, the name of the partner who she said was living with her until the end of July 1993 has been blanked out, but there seems no dispute that that was the absent parent. The parent with care's address has also been blanked out. The CSO now concerned confidently submitted the following in the submission dated 19 June 1996:

"9. The MEF that was treated as given or sent on 28 July 1993 was not sent to [the absent parent's] last known or notified address. Instead of being sent to the matrimonial home, which was the address provided by [the parent with care] on her application, it was sent to an address it was known that he planned to occupy, and to where he later moved."

It may be that that is not in dispute, but in view of the importance of establishing the effective date of the maintenance assessment, evidence needs to be produced showing the address to which the MEF was despatched on 28 July 1993 (and incidentally, since the words "MEF issued 27.7.93" have been written on the first page of the maintenance application form, the evidence of the date of despatch needs investigation). It appears that the reminder letter of 11 August 1993, to which the absent parent responded on 16 August 1993 (page T146), was sent to his new address, but some more direct evidence of the addressing of the first MEF is desirable.

14. The new appeal tribunal will need to examine all the evidence available, including that about the circumstances and timing of the absent parent's move from the matrimonial home to his new address, and consider whether a MEF was properly sent to the absent parent on 27 or 28 July 1993 so as to establish one of those dates as the effective date of the maintenance assessment. If it concludes that one of those dates is established, later dates do not need to be examined. If it concludes that neither of those dates is established, then later dates do need to be examined.

15. In the submission dated 19 June 1996, the CSO now concerned with the case revealed that a second MEF was sent to the absent parent following his letter of 16 August 1993 and was partially completed and signed by him on 31 August 1993. The CSO submitted that the MEF should be treated as having been given or sent on 31 August 1993, which should be the effective date of the maintenance assessment. However, in the supplementary submissions dated 9 September 1996 and 13 November 1996, the CSO took the view that the second MEF issued in August 1993 was not effectively served on the absent parent, so that the date of issue of the third MEF, 23 December 1993, had to be taken as the effective date of the maintenance assessment. That was because the second MEF was apparently sent without any covering letter naming the child of which the absent parent was alleged to be the father (see pages 274, 280 and 295) and without the "Help Notes" referred to on the MEF or a written request that the form be completed and returned for the purpose of enabling the maintenance assessment to be proceeded with. I do not think that there is much in any of those points, remembering that the test under regulation 30(2)(a) of the MAP Regulations is when the MEF was sent. On the first point, it is absolutely clear from the absent parent's letter of 16 August 1993 that he knew and appreciated that the parent with care's application was for a maintenance assessment in respect of their son Oliver. The absent parent in that letter also asked the CSA to send him a MEF so that he could fill it in. Any absence of a request to complete the second MEF when it was sent out can scarcely amount to a non-compliance with regulation 5(2) of the MAP Regulations. It is in any case clear from regulation 5(2) that the request is a different thing from the MEF itself. That leaves the absence of the Help Notes. I do not know if they can be said to be an integral part of the MEF or whether they are something separate. That is a matter which will have to be investigated by the new appeal tribunal if it reaches the stage of having to ask whether a MEF was sent to the absent parent in August 1993 and, if so, on what date.

16. If the new appeal tribunal finds for the purpose of regulation 30(2)(a) that a MEF was sent to the absent parent neither in July 1993 nor in August 1993, then it seems that there is nothing to fall back on except the third MEF sent on 23 December 1993.

17. The directions to the new child support appeal tribunal are that there must be a complete rehearing of the appeal from the decision of the third CSO dated 16 January 1995. The main issue will be the effective date of the resulting maintenance assessment, on which the legal guidance given above must be followed. The CSO should provide evidence of the results of the enquiries directed to be made by the appeal tribunal of 12 October 1995. The parties are reminded that the scope of the present appeal and the rehearing by the new appeal tribunal is limited to the maintenance assessments made in the CSO's decision of 16 January 1995 and does not extend to any later maintenance assessments.

(Signed)
J Mesher
Commissioner
17 March 1997