UK Social Security and Child Support Commissioners' Decisions

R(CS) 14/98


Mr. M. Rowland CCS/13455/1996

7.4.97

Special case - shared care - whether regulation 20 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 is ultra vires

The mother and father lived apart at the material time, but shared the care of their daughter. The father received child benefit in respect of her, and also received income support. The mother worked part time. Upon an application by the father, a child support officer decided that the mother should pay him child support maintenance. The mother appealed to a child support appeal tribunal who found some minor errors in the assessment and remitted the case for a new assessment. However, the tribunal rejected the mother's contention that, as the child lived in the same household as her, she was not liable to pay child support maintenance because she was not an "absent parent" within section 3(2) of the Child Support Act 1991. The mother appealed to the Commissioner.

Held, dismissing the appeal, that:

the mother was to be treated as an "absent parent" by virtue of regulation 20(2)(b)(i) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992, which was not ultra vires;

the child was therefore a "qualifying child" within section 3(1) of the 1991 Act.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal brought by the mother of a young child against a decision of the Sheffield child support appeal tribunal dated 3 October 1995.
2. At the oral hearing of the appeal, the mother was represented by Mr. Simon Cox of Counsel, instructed by Mr. David Thomas of the Child Poverty Action Group, 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 the father lived apart but shared the care of their daughter. The father received child benefit in respect of her. He was in receipt of income support. The mother was working under a job-share arrangement. The father made an application under section 6 of the Child Support Act 1991 for a child support maintenance assessment. A child support officer decided that the mother was liable to pay child support maintenance to the father at the rate of £14.44 per week. A second child support officer refused to review that decision. On appeal by the mother, the tribunal found some minor errors in the assessment and remitted 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 not liable to pay child support maintenance because she was not an "absent parent". The mother now appeals against the tribunal's decision with my leave. The appeal gives rise to a difficult question of statutory construction but 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, was made on the basis that both the mother and the father provided "day to day care" to the same extent and that the mother was to be treated as an "absent parent" by virtue of regulation 20(2)(b)(i) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992. So far as is material, regulation 20 provides:

"(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 who provides such care for the child in question;

(b) where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that 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.

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

Paragraphs (4), (5) and (6) make provision for the formula and I need not set them out here.

5. In order to understand the submissions in this case it is necessary for me 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 child is responsible for maintaining him.

(2) For the purposes of this Act, an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.

(3) Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make these 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, a person with care.

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

(a) with whom the child has his home:

(b) who usually provides day to day care for the child (whether exclusively or 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 as a category-

(a) parents;

(b) guardians;

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

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

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

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

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

Section 6 provides, so far as is relevant:

"6. (1) Where income support, family credit or any other benefit of a prescribed kind is claimed by, or in respect of, or paid to, or in respect of, the parent 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 recover child support maintenance from the absent parent.

...

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

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

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

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

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

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

(3) Part II of Schedule 1 makes further provision with respect to maintenance 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 in prescribed circumstances the case is to be treated as a special case for the purposes of this Act.

(2) Those regulations may, for example, provide for the following to be special 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 to the same child;

(c) there is more than one qualifying child in relation to the same absent parent but the person who is the person with care in relation to one of those children is not the person who is the person with care in relation to all of them;

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

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

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

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

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

(a) modify any provision made by or under this Act, in its application to any 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 to apply to any such case."

6. Mr. Cox, who made his submissions with great skill, argued that, on the proper construction of regulation 20, the present case did not fall within it. Further, or in the alternative, he argued that regulation 20 was invalid because it was made outside the regulation making powers given to the Secretary of State under the Act. These arguments overlap. Neither the regulation nor the statute is free from ambiguity. A question whether a provision in subordinate legislation is ultra vires always raises questions as to the construction of the primary legislation. In this case, attempting to construe the regulation raises further questions as to the construction of the statute. On the other hand, the scope of the regulation making powers given by the statute may have some bearing on the construction of the regulation because, if possible, a regulation should be given a meaning which does not render it ultra vires. There is therefore a substantial risk of circularity unless one bears in mind that, at the end of the day, the regulation must be subordinate to the statute. I therefore start with the construction of the statute.
7. Mr. Cox's arguments were all based on the assumption that neither parent in the present case was an "absent parent" within section 3(2) of the Act. He first argued this it followed that the child was not a "qualifying child" within section 3(1) so that the conditions of regulation 20(1) were not satisfied and the case was not a "special case" within the regulation or, indeed, a case of any sort within the Act. Alternatively, he argued that regulation 20(1) was inconsistent with section 3(2) and therefore of no effect in this case. In the further alternative he argued that regulation 20 was 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 premise that, if regulation 20 applied to a case where there was no "absent parent", the regulation amounted to a purported modification within the terms of section 42(4)(a), of section 3(2). Mr. Cox argued that either the modification was ineffective, because it was not in express terms, or else the alteration was too radical 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. The power to make regulations conferred by section 42(3) is not limited by section 42(4)(a). Quite the reverse. In the absence of subsection (4), it might be argued that the power to make regulations under subsection (3) was limited to regulations consistent with other provisions of the Act. The whole point of subsection (4) is to make it plain that such a limitation is not to be imposed and that regulations may not only modify but also add to, or display, other provisions of the Act. As Mr. Jones submitted, if regulation 20 is inconsistent with section 3(2) of the Act, then, if it does not modify subsection 3(2) as permitted 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 some of them have force even if regulation 20 might have been made within the scope of section 42(4)(b) or (c).
10. In support of his argument that regulation 20 did not modify section 3(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) and referred to a passage from the judgment of Russell LJ in which he said:

"Where a statute enables the Secretary of State by regulations to modify any provision contained in primary legislation, the appropriate modification should be expressly stated in, the statutory instrument and is not to be inferred or implied from the content of the regulation."

I have no doubt that the same approach must be taken where regulations add to, or disapply provisions in primary legislation. However, the context of the present case is very different from that being considered in McKiernon. In McKiernon the purported modification had been made without any reference to the provision being modified so that, as the Master of the Rolls pointed out, it was unclear whether the Secretary of State had modified it or whether he had simply ignored it. In the present case, the subordinate provision was clearly made under section 42. That much was common ground. It was to make provision for a "special case" and was clearly designed to adapt the provisions of the Act. That the Secretary of State had section 3 in mind is clear from the terms of the regulation which uses both the phrase "qualifying child" and the phrase "absent parent" and it is even clearer when one looks at the other regulations in the statutory instrument. The whole point of the regulation is that it does expressly state the extent to which it adapts the 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 of the regulation shortly.

11. Mr. Cox further submitted that the power to modify, or, as I prefer to put it more broadly, adapt, the Act is to be construed narrowly. Generally that is so, but in the present case section 42(4) suggests that the construction is to be fairly wide. However, I accept that there must be limits. The power to make regulations under section 42 cannot be used to subvert the whole purpose of 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 be provisions 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 "basic principles" set out in sections 1 to 10 of the Act. I do not accept that argument. Section 42(4) permits the adoption of any provision made by the Act. If a distinction between sections 1 to 10 and the rest of the Act had been intended, that would have been made clear.
12. Before I consider further the validity of regulation 20, I shall try to construe it. As I have mentioned, Mr. Cox argued that it had no application if neither 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 if there is, in relation to the child, an "absent parent". He submitted that a literal construction required that paragraph (1) be regarded as defining the circumstances in which the "special case" arose and that paragraphs (2) and (3) were to be regarded as the consequence flowing from the case being a "special case". Accordingly, a child could not be regarded as a "qualifying child" merely by virtue of a parent being treated, under paragraph (2), as an "absent parent". Furthermore, he pointed out that section 3(1) made no reference to a person "treated as an absent parent" and that regulation 20(2)(b) contained a reference to "persons mentioned in paragraph (1)(a)" which would introduce an element of circularity if the regulation applied in a case where there was no absent parent within section 3(2).
13. I do not regard any of those arguments as being conclusive. It is possible to construe the regulation sensibly by reading paragraph (2) as, in part, defining the circumstances in which paragraph (1) applies, rather than as being merely a consequence of paragraph (1) applying. The lack of reference in section 3(1) to a person "treated as an absent parent" is unimportant if the treatment of a person as an "absent parent" has the effect that he or she is simply regarded as an "absent parent" for the purposes of section 3(1). The reference in paragraph (2)(b) to "persons mentioned in paragraph (1)(a)" does not introduce complete circularity because, in every case in which paragraph (2)(b) is relevant, one parent will be treated as an "absent parent".
14. Nonetheless, Mr. Cox's construction of regulation 20 is a possible one and he has demonstrated that the regulation is ambiguous, if he is right in his basic premise that there is no "absent parent" in a case like the present. I therefore turn to consider whether that premise is correct.
15. As Edward Jacobs and Gillian Douglas observe in their commentary on section 3 of the Act in Child Support; The Legislation, section 3(2) refers to "living in", "household" and "home" none of which concepts are defined anywhere in the legislation and all of which are capable of more than one meaning, depending on the statutory context in which they appear. It is arguable that a child whose care is shared equally by two parents has a home with each parent and can be said to be living in the household 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. It is also arguable that a child is not living in the household of one parent when absent from that household but present in, and living in, the household of the other parent.
16. Mr. Cox accepted that regulation 20 expressly contemplates that at least one of the people providing "day to day care", as defined in regulation 1(2), might be a parent and that, if his construction were right but regulation 20 were to be given any effect at all in such a case, that parent would necessarily be an "absent parent" within section 3(2) of the Act. 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 that that might be so because a distinction could be drawn between a child who merely stays in a household with a parent and one who lives with a parent and has his or her home there. Indeed, there might, be a case for drawing such a distinction. However, it seems to me that, in the context of this legislation, it is inconceivable that the Secretary of State intended that such fine distinctions should be drawn when they would, in many cases, be highly contentious. No one could describe this legislation as simple, but it does seem designed to produce fairly clear cut answers to most cases so that a relatively junior child support officer is able to apply the law. In particular, the formula is designed to focus attention on abstract notions of a child's requirements and those of the parents, rather than focusing on what the parents actually provide for the child. If it were necessary for a child support officer to consider whether a child stayed or lived with a parent, questions about what was actually provided would be reintroduced.
17. That seems to me to be a powerful argument in favour of the view that regulation 20(2) is intended to act in substitution for section 3(2) in so far as any parent providing "day to day care" is concerned and that, if there is no other "absent parent", the child is nonetheless a qualifying child within section 3(1) if a parent is treated under regulation 20(2) as being an "absent parent".
18. Mr. Cox, however, further argued that, if that were so, regulation 20 would be ultra vires because it would have the effect of prescribing a parent who satisfied the conditions of section 3(3)(a) and (b) as not being a "person with care". That, he submitted is forbidden by section 3(4)(a). The Child Support (Maintenance Assessments and Special Cases) Regulations 1992 were not made under section 3(3)(c) but it may be arguable that section 42(3) is to be regarded as qualified by section 3(3)(c), although a similar argument was rejected by the Court of Appeal in Regina v. Secretary of State for Social Security, ex parte Rouse (1993, unreported). The difficulty facing Mr. Cox on this argument is that regulation 20 does not purport to make any provision as to 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" under section 3(3) of the Act is treated as an "absent parent" under regulation 20(2), he or she does not thereby cease to be a "person with care". A "person with care" is a person entitled to apply for a maintenance assessment but there is nothing in the Act to say that he or she is entitled to receive the payments. Regulation 2(l)(a) of the Child Support (Collection and Enforcement) Regulations 1992 permits the Secretary of State to specify 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, there may 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 that liability falls only on an "absent parent", but the formula in regulation 20(4) has the effect of reducing the liability of a parent, treated as an "absent parent" under regulation 20(3), so as to take account of the fact that he or she is providing "day to day care". Mr. Cox argued that the Act relieved a "person with care" from any duty to provide financial maintenance because he or she was providing the care. I do not accept that this 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 liability of the "absent parent" to pay child support maintenance should not take a great deal of account of the financial resources of the "person with care", but it does not follow that it is not assumed that the "parent with care" incurs some financial cost. If the child support officer's construction of regulation 20 is correct and it applies to a case where the two parents both provide "day to day care", the formula in regulation 20(4) takes account of the ability of both parents to make financial contributions to the maintenance of the child, as well as taking into account the extent to which each does provide "day to day care". That seems to me to make proper provision for a "special case" in a manner consistent with the broad purpose of the Act and I do not consider that regulation 20(3) is inconsistent with the purpose of section 3(4)(a).
20. My one reservation about the child support officer's construction of regulation 20 is that it does produce some fairly anomalous results. On that construction, the formula in paragraph (4) has the effect that, in a case where the 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 maintenance only if his or her ability to do so, as judged by the application (with modifications) of the usual formula provided for under Schedule 1 to the Act, is greater than that of the other parent. That seems fair. What seems strange is that in a case where the other parent is more able to afford to maintain the child, that other parent should be relieved of any liability to do so even to the extent provided under the formula in paragraph (4), merely because he or she is in receipt of child benefit. Mr. Cox described the operation of regulation 20(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 one stands back from the detail and looks at the broad practical effects of the opposing arguments. It is clear that the Act itself makes no attempt to make provision for child support maintenance to be paid in a case where the child's parents live apart but both provide care for the child. If one of the parents were to be regarded as an "absent parent", the formula in Schedule 1 makes no provision for reducing the amount of child support maintenance payable to the other parent to reflect the expense incurred in providing care for the child. If neither parent were to be regarded as an "absent parent", the Act imposes no liability upon one to pay child support maintenance to the other however unequal might be the extent of care they provide and however unequal their resources. In my view, it is inconceivable that Parliament should not have given the Secretary of State the power to make regulations to provide for a case where both parents provide care and that the Secretary of State should not have exercised those powers, whether or not one of those parents was an "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 present case.
23. I dismiss the mother's appeal.

Date: 7 April 1997 (signed) Mr. M. Rowland

Commissioner