UK Social Security and Child Support Commissioners' Decisions

CCS 13455/96 (*C14/97) [1997] UKSSCSC 7 (7th April, 1997)

Commissioner's File: CCS 13455/96 (*C14/97)
Mr Commissioner Rowland
7 April 1997

CHILD SUPPORT ACTS 1991AND 1995

APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER


Appeal Tribunal: Sheffield CSAT

[ORAL HEARING]

1. This is an appeal brought by the mother of a young child against adecision of the Sheffield Child Support Appeal Tribunal dated 3 October 1995.

2. At the oral hearing of the appeal, the mother was represented by MrSimon Cox of Counsel, instructed by Mr David Thomas of the Child Poverty ActionGroup, the child support officer was represented by Mr Daniel Jones of Counsel,instructed by the Solicitor to the Departments of Social Security and Health,and the father neither appeared nor was represented.

3. It is common ground that, at the material time, the mother and thefather lived apart but shared the care of their daughter. The father receivedchild benefit in respect of her. He was in receipt of income support. Themother was working under a job-share arrangement. The father made anapplication under section 6 of the Child Support Act 1991 for a child supportmaintenance assessment. A child support officer decided that the mother wasliable to pay child support maintenance to the father at the rate of £14.44per week. A second child support officer refused to review that decision. Onappeal by the mother, the tribunal found some minor errors in the assessment andremitted the case to the Secretary of State to arrange a new assessment. However, they rejected the mother's main contention which is that she was notliable to pay child support maintenance because she was not an "absentparent". The mother now appeals against the tribunal's decision with myleave. The appeal gives rise to a difficult question of statutory constructionbut it is not necessary for me to consider the facts in any further detail.

4. The tribunal's decision, like those of the child support officers, wasmade on the basis that both the mother and the father provided "day to daycare" to the same extent and that the mother was to be treated as an "absentparent" by virtue of regulation 20(2)(b)(i) of the Child Support(Maintenance Assessments and Special Cases) Regulations 1992. So far as ismaterial, regulation 20 provides:

"(1) Where the circumstances of the case are that -

(a) two or more persons who do not live in the same household each providesday to day care for the same qualifying child; and
(b) at least one ofthose 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 fora child of his in the following circumstances is to be treated as an absentparent for the purposes of the Act and these Regulations -

(a) a parent who provides such care to a lesser extent than the otherparent, person or persons who provides such care for the child in question;

(b) where the persons mentioned in paragraph (1)(a) include both parentsand the circumstances are such that care is provided to the same extent by bothbut each provides care to a greater or equal extent than any other person whoprovides such care for that child -

(i) the parent who is not in receipt of child benefit for the child inquestion; or

(ii) if neither parent is in receipt of child benefit for that child, theparent who, in the opinion of the child support officer, will not be theprincipal provider of day to day care for that child.

(3) Subject to paragraphs (5) and (6), where a parent is treated as anabsent parent under paragraph (2) child support maintenance shall be payable bythat parent in respect of the child in question and the amount of the childsupport maintenance so payable shall be calculated in accordance with theformula set out in paragraph (4)."

Paragraphs (4), (5) and (6) make provision for the formula and I need notset them out here.

5. In order to understand the submissions in this case it is necessary forme to set out parts of the Child Support Act 1991. Section 1 provides:-

"1. (1) For the purposes of this Act, each parent of a qualifying childis responsible for maintaining him.

(2) For the purposes of this Act, an absent parent shall be taken to havemet his responsibility to maintain any qualifying child of his by makingperiodical payments of maintenance with respect to the child of such amount, andat such intervals, as may be determined in accordance with the provisions ofthis Act.

(3) Where a maintenance assessment made under this Act requires the makingof periodical payments, it shall be the duty of the absent parent with respectto whom the assessment was made to make those payments."

Section 3 provides:-

"3. (1) A child is a 'qualifying child' if -

(a) one of his parents is, in relation to him, an absent parent; or

(b) both of his parents are, in relation to him, absent parents.

(2) The parent of any child is an 'absent parent', in relation to him, if -

(a) that parent is not living in the same household with the child; and

(b) the child has his home with a person who is, in relation to him, aperson with care.

(3) A person is a 'person with care', in relation to any child, if he is aperson -

(a) with whom the child has his home;

(b) who usually provides day-to-day care for the child (whether exclusivelyor in conjunction with any other person); and

(c) who does not fall within a prescribed category of person.

(4) The Secretary of State shall not, under subsection (3)(c), prescribe asa category -

(a) parents;

(b) guardians;

(c) persons in whose favour residence orders under section 8 of the ChildrenAct 1989 are in force;

(d) in Scotland, persons having the right to custodyof a child.

(5) For the purposes of this Act there may be more than one person with carein relation to the same qualifying child.

(6) Periodical payments which are required to be paid in accordance with amaintenance assessment are referred to in this Act as 'child supportmaintenance'.

(7) Expressions are defined in this section only for the purposes of thisAct."

Section 6 provides, so far as is relevant:-

"6. (1) Where income support, family credit or any other benefit of aprescribed kind is claimed by or in respect of, or paid to or in respect of, theparent of a qualifying child she shall if -

(a) she is a person with care of the child; and

(b) she is required to do so by the Secretary of State,

authorise the Secretary of State to take action under this Act to recoverchild support maintenance from the absent parent.

....

(5) That authorisation shall be given, without unreasonable delay, bycompleting and returning to the Secretary of State an application -

(a) for the making of a maintenance assessment with respect to thequalifying child or qualifying children; and

(b) for the Secretary of State to take action under this Act to recover, onher behalf, the amount of child support maintenance so assessed."

Maintenance assessments are provided for under sections 11 and 12. Section11 provides:-

"11. (1) Any application for a maintenance assessment made to theSecretary of State shall be referred by him to a child support officer whoseduty it shall be to deal with the application in accordance with the provisionsmade by or under this Act.

(2) The amount of child support maintenance to be fixed by any maintenanceassessment shall be determined in accordance with the provisions of Part I ofSchedule 1.

(3) Part II of Schedule 1 makes further provision with respect tomaintenance assessments."

After provisions dealing with the procedure and collection and enforcement,section 42 makes provision for special cases.

"42. (1) The Secretary of State may by regulations provide that inprescribed circumstances the case is to be treated as a special case for thepurposes of this Act.

(2) Those regulations may, for example, provide for the following to bespecial cases -

(a) each parent of a child is an absent parent in relation to the child;

(b) there is more than one person who is a person with care in relation tothe same child;

(c) there is more than one qualifying child in relation to the same absentparent but the person who is the person with care in relation to one of thosechildren is not the person who is the person with care in relation to all ofthem;

(d) a person is an absent parent in relation to more than one child and theother parent of each of those children is not the same person;

(e) the person with care has care of more than one qualifying child andthere is more than one absent parent in relation to those children;

(f) a qualifying child has his home in two or more separate households.

(3) The Secretary of State may by regulations make provisions with respectto special cases.

(4) Regulations made under subsection (3) may, in particular -

(a) modify any provision made by or under this Act, in its application toany special case or any special case falling within a prescribed category;

(b) make new provision for any such case; or

(c) provide for any prescribed provision made by or under this Act not toapply to any such case."

6. Mr Cox, who made his submissions with great skill, argued that, on theproper construction of regulation 20, the present case did not fall within it. Further, or in the alternative, he argued that regulation 20 was invalid becauseit was made outside the regulation-making powers given to the Secretary of Stateunder the Act. These arguments overlap. Neither the regulation nor the statuteis free from ambiguity. A question whether a provision in subordinatelegislation is ultra vires always raises questions as to theconstruction of the primary legislation. In this case, attempting to construethe regulation raises further questions as to the construction of the statute. On the other hand, the scope of the regulation-making powers given by thestatute may have some bearing on the construction of the regulation because, ifpossible, a regulation should be given a meaning which does not render it ultravires. There is therefore a substantial risk of circularity unless onebears in mind that, at the end of the day, the regulation must be subordinate tothe statute. I therefore start with the construction of the statute.

7. Mr Cox's arguments were all based on the assumption that neither parentin the present case was an "absent parent" within section 3(2) of theAct. He first argued that it followed that the child was not a "qualifyingchild" within section 3(1) so that the conditions of regulation 20(1) werenot satisfied and the case was not a "special case" within theregulation or, indeed, a case of any sort within the Act. Alternatively, heargued that regulation 20(1) was inconsistent with section 3(2) and therefore ofno effect in this case. In the further alternative he argued that regulation 20was ultra vires, having been made outside the scope of section 42(4)(a)of the Act.

8. The second and third of those arguments were both based on the premisethat, if regulation 20 applied to a case where there was no "absent parent",the regulation amounted to a purported modification, within the terms of section42(4)(a), of section 3(2). Mr Cox argued that either the modification wasineffective, because it was not in express terms, or else the alteration was tooradical to be a modification within the terms of section 42(4)(a).

9. I do not accept the premise upon which those arguments were based. Thepower to make regulations conferred by section 42(3) is not limited by section42(4)(a). Quite the reverse. In the absence of subsection (4), it might beargued that the power to make regulations under subsection (3) was limited toregulations consistent with other provisions of the Act. The whole point ofsubsection (4) is to make it plain that such a limitation is not to be imposedand that regulations may not only modify but also add to, or disapply, otherprovisions of the Act. As Mr Jones submitted, if regulation 20 is inconsistentwith section 3(2) of the Act, then, if it does not modify subsection 3(2) aspermitted by section 42(4)(a), it was made within the scope of section 42(4)(b)or (c). However, that does not entirely defeat Mr Cox's arguments because someof them have force even if regulation 20 might have been made within the scopeof section 42(4)(b) or (c).

10. In support of his argument that regulation 20 did not modify section3(2), Mr Cox relied on the decision of the Court of Appeal in McKiernon v.Secretary of State for Social Security (26 October 1989, unreported) andreferred to a passage from the judgement of Russell LJ in which he said:

"Where a statute enables the Secretary of State by regulations tomodify any provision contained in primary legislation, the appropriatemodification should be expressly stated in the statutory instrument and is notto be inferred or implied from the content of the regulation."

I have no doubt that the same approach must be taken where regulations addto, or disapply, provisions in primary legislation. However, the context of thepresent case is very different from that being considered in McKiernon. In McKiernon the purported modification had been made without anyreference to the provision being modified so that, as the Master of the Rollspointed out, it was unclear whether the Secretary of State had modified it orwhether he had simply ignored it. In the present case, the subordinateprovision was clearly made under section 42. That much was common ground. Itwas to make provision for a "special case" and was clearly designed toadapt the provisions of the Act. That the Secretary of State had section 3 inmind is clear from the terms of the regulation which uses both the phrase "qualifyingchild" and the phrase "absent parent" and it is even clearer whenone looks at the other regulations in the statutory instrument. The whole pointof the regulation is that it does expressly state the extent to which it adaptsthe Act. The problem is not that the adaption is not expressly stated,but that it is not clearly stated. I shall come to the construction ofthe regulation shortly.

11. Mr Cox further submitted that the power to modify - or, as I prefer toput it more broadly, adapt - the Act is to be construed narrowly. Generallythat is so, but in the present case section 42(4) suggests that the constructionis to be fairly wide. However, I accept that there must be limits. The powerto make regulations under section 42 cannot be used to subvert the whole purposeof the Act or to make provision beyond the scope of its long title. Furthermore, the Act must be read as a consistent whole and there may beprovisions within it which have the effect of limiting the scope of section 42. Mr Cox sought to argue that regulations under section 42 could not adapt the "basicprinciples" set out in sections 1 to 10 of the Act. I do not accept thatargument. Section 42(4) permits the adaption of any provision made bythe Act. If a distinction between sections 1 to 10 and the rest of the Act hadbeen intended, that would have been made clear.

12. Before I consider further the validity of regulation 20, I shall try toconstrue it. As I have mentioned, Mr Cox argued that it had no application ifneither parent was an "absent parent" within section 3(2) of the Act,because paragraph (1) requires that the child be a "qualifying child"and section 3(1) provides that a child is a "qualifying child" only ifthere is, in relation to the child, an "absent parent". He submittedthat a literal construction required that paragraph (1) be regarded as definingthe circumstances in which the "special case" arose and thatparagraphs (2) and (3) were to be regarded as the consequences flowing from thecase being a "special case". Accordingly, a child could not beregarded as a "qualifying child" merely by virtue of a parent beingtreated, under paragraph (2), as an "absent parent". Furthermore, hepointed out that section 3(1) made no reference to a person "treated asan absent parent" and that regulation 20(2)(b) contained a reference to "personsmentioned in paragraph (1)(a)" which would introduce an element ofcircularity if the regulation applied in a case where there was no absent parentwithin section 3(2).

13. I do not regard any of those arguments as being conclusive. It ispossible to construe the regulation sensibly by reading paragraph (2) as, inpart, defining the circumstances in which paragraph (1) applies, rather than asbeing merely a consequence of paragraph (1) applying. The lack of reference insection 3(1) to a person "treated as an absent parent" is unimportantif the treatment of a person as an "absent parent" has the effect thathe or she is simply regarded as an "absent parent" for the purposes ofsection 3(1). The reference in paragraph (2)(b) to "persons mentioned inparagraph (1)(a)" does not introduce complete circularity because, in everycase in which paragraph (2)(b) is relevant, one parent will be treated as an "absentparent".

14. Nonetheless, Mr Cox's construction of regulation 20 is a possible oneand he has demonstrated that the regulation is ambiguous, if he is right in hisbasic premise that there is no "absent parent" in a case like thepresent. I therefore turn to consider whether that premise is correct.

15. As Edward Jacobs and Gillian Douglas observe in their commentary onsection 3 of the Act in Child Support: The Legislation, section 3(2)refers to "living in", "household" and "home" noneof which concepts are defined anywhere in the legislation and all of which arecapable of more than one meaning, depending on the statutory context in whichthey appear. It is arguable that a child whose care is shared equally by twoparents has a home with each parent and can be said to be living in thehousehold of each parent, even when staying with the other. On the other hand,it is arguable that section 3 contemplates that a child has only one home. Itis also arguable that a child is not living in the household of one parent whenabsent from that household but present in, and living in, the household of theother parent.

16. Mr Cox accepted that regulation 20 expressly contemplates that at leastone of the people providing "day to day care", as defined inregulation 1(2), might be a parent and that, if his construction were right butregulation 20 were to be given any effect at all in such a case, that parentwould necessarily be an "absent parent" within section 3(2) of theAct. If that is so, it follows that some people providing "day to day care"would be "absent parents" and some would not. It is possible thatthat might be so because a distinction could be drawn between a child who merelystays in a household with a parent and one who lives with aparent and has his or her home there. Indeed, there might be a case for drawingsuch a distinction. However, it seems to me that, in the context of thislegislation, it is inconceivable that the Secretary of State intended that suchfine distinctions should be drawn when they would, in many cases, be highlycontentious. No-one could describe this legislation as simple, but it does seemdesigned to produce fairly clear-cut answers to most cases so that a relativelyjunior child support officer is able to apply the law. In particular, theformula is designed to focus attention on abstract notions of a child'srequirements and those of the parents, rather than focusing on what the parentsactually provide for the child. If it were necessary for a child supportofficer to consider whether a child stayed or lived with a parent, questionsabout what was actually provided would be reintroduced.

17. That seems to me to be a powerful argument in favour of the view thatregulation 20(2) is intended to act in substitution for section 3(2) in so faras any parent providing "day to day care" is concerned and that, ifthere is no other "absent parent", the child is nonetheless aqualifying child within section 3(1) if a parent is treated under regulation20(2) as being an "absent parent".

18. Mr Cox, however, further argued that, if that were so, regulation 20would be ultra vires because it would have the effect of prescribing aparent who satisfied the conditions of section 3(3)(a) and (b) as not being a "personwith care". That, he submitted is forbidden by section 3(4)(a). The ChildSupport (Maintenance Assessments and Special Cases) Regulations 1992 were notmade under section 3(3)(c) but it may be arguable that section 42(3) is to beregarded as qualified by section 3(3)(c), although a similar argument wasrejected by the Court of Appeal in Regina v. Secretary of State for SocialSecurity, ex parte Rouse (1993, unreported). The difficulty facing Mr Coxon this argument is that regulation 20 does not purport to make any provision asto who is to be a "person with care" in a case to which it applies. The consequence is that, if a person who is a "person with care" undersection 3(3) of the Act is treated as an "absent parent" underregulation 20(2), he or she does not thereby cease to be a "person withcare". A "person with care" is a person entitled to apply for amaintenance assessment but there is nothing in the Act to say that he or she isentitled to receive the payments. Regulation 2(1)(a) of the Child Support(Collection and Enforcement) Regulations 1992 permits the Secretary of State tospecify that payments shall be made "to the person caring for the child"and, while a "person with care" is likely to be such a person, theremay well be others.

19. It is true that, under the terms of the Act, a "person with care"is not liable to make payments of child support maintenance because thatliability falls only on an "absent parent", but the formula inregulation 20(4) has the effect of reducing the liability of a parent, treatedas an "absent parent" under regulation 20(3), so as to take account ofthe fact that he or she is providing "day to day care". Mr Cox arguedthat the Act relieved a "person with care" from any duty to providefinancial maintenance because he or she was providing the care. I do not acceptthat that is so. The Act contemplates a case which is not a "special case"and where the "absent parent" does not provide "day to day care". It is only right that, in such a case, the formula for assessing the liabilityof the "absent parent" to pay child support maintenance should nottake a great deal of account of the financial resources of the "person withcare", but it does not follow that it is not assumed that the "parentwith care" incurs some financial cost. If the child support officer'sconstruction of regulation 20 is correct and it applies to a case where the twoparents both provide "day to day care", the formula in regulation20(4) takes account of the ability of both parents to make financialcontributions to the maintenance of the child, as well as taking into accountthe extent to which each does provide "day to day care". That seemsto me to make proper provision for a "special case" in a mannerconsistent with the broad purpose of the Act and I do not consider thatregulation 20(3) is inconsistent with the purpose of section 3(4)(a).

20. My one reservation about the child support officer's construction ofregulation 20 is that it does produce some fairly anomalous results. On thatconstruction, the formula in paragraph (4) has the effect that, in a case wherethe only carers are the parents and each parent provides "day to day care"to an equal extent, the absent parent is liable to pay child support maintenanceonly if his or her ability to do so, as judged by the application (withmodifications) of the usual formula provided for under Schedule 1 to the Act, isgreater than that of the other parent. That seems fair. What seems strange isthat in a case where the other parent is more able to afford to maintain thechild, that other parent should be relieved of any liability to do so even tothe extent provided under the formula in paragraph (4), merely because he or sheis in receipt of child benefit. Mr Cox described the operation of regulation20(2)(b) as "capricious". Mr Jones conceded that its effect could be "unsatisfactory". I am inclined to agree with both of them.

21. I have not found this to be an easy case. However, it helps if onestands back from the detail and looks at the broad practical effects of theopposing arguments. It is clear that the Act itself makes no attempt to makeprovision for child support maintenance to be paid in a case where the child'sparents live apart but both provide care for the child. If one of the parentswere to be regarded as an "absent parent", the formula in Schedule 1makes no provision for reducing the amount of child support maintenance payableto the other parent to reflect the expense incurred in providing care for thechild. If neither parent were to be regarded as an "absent parent",the Act imposes no liability upon one to pay child support maintenance to theother, however unequal might be the extent of care they provide and howeverunequal their resources. In my view, it is inconceivable that Parliament shouldnot have given the Secretary of State the power to make regulations to providefor a case where both parents provide care and that the Secretary of Stateshould not have exercised those powers, whether or not one of those parents wasan "absent parent" within section 3(2) of the Act.

22. I have therefore come to the conclusion that, despite its defects,regulation 20 of the Child Support (Maintenance Assessments and Special Cases)Regulations 1992 is validly made and has been correctly applied in the presentcase.

23. I dismiss the mother's appeal.

(Signed)

M Rowland
Commissioner
7 April 1997