UK Social Security and Child Support Commissioners' Decisions

R(CS) 15/98


Mr. R. J. C. Angus CCS/15109/1996

23.7.97

Tribunal jurisdiction - reduced benefit direction - whether can be challenged on appeal

The parent with care, who was in receipt of family credit, failed to authorise the Secretary of State to take action to recover child support maintenance and did not reply to a notice under section 46(2) of the Child Support Act 1991. A reduced benefit direction was issued. The parent with care appealed to the tribunal for reasons relating to the welfare of the qualifying child. The tribunal allowed the appeal, deciding that a reduced benefit direction was not appropriate. The child support officer appealed to the Commissioner on the grounds that the information given by the absent parent after the direction was made could only be entertained by way of review (not on appeal) and could only be effective from when the information was given to the child support officer.

Held, allowing the appeal, that:

the making of a reduced benefit direction in the absence of representations under section 46(5) of the Act is discretionary;

the child support officer is required under section 2 of the Act to consider the welfare of the child;

an appeal is available under section 46(7) of the Act and the tribunal can take into account all information available at the date of the hearing;

the tribunal erred only on technical grounds in that the case is to be remitted to the Secretary of State for reference to the child support officer to cancel the reduced benefit direction.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. The decision of the child support appeal tribunal dated 8 December 1995 is erroneous in law. In exercise of the power conferred on me by section 24(3)(a) of the Child Support Act 1991 I give the decision which I consider the tribunal should have given which is:

(i) The appeal is upheld.

(i) The case is remitted to the Secretary of State in terms of section 20(3) of the Child Support Act 1991.

(iii) The child support officer is directed to cancel the reduced benefit direction of 27 July 1995 and advise the appropriate social security adjudication officer that it is to be treated as not having been given.

2. The child support officer appeals, with the leave of the tribunal chairman, against the tribunal's decision that the respondent, the parent with care, has shown that a reduced benefit direction would cause harm or distress to her son and that such a direction is therefore not appropriate.
3. The respondent is divorced and has the care of the son of her former marriage. Because she was in receipt of family credit the Secretary of State, in exercise of his power under section 6 of the Child Support Act 1991, required her to authorise him to take action to recover child support maintenance from her former husband. As the respondent did not comply with the requirement the Secretary of State referred the matter to a child support officer who, in the exercise of his powers under section 46 of the 1991 Act, served notice on the respondent requiring her to comply with the Secretary of State's requirement or give the child support officer a reason for her failure to do so. The respondent did not reply to the child support officer's notice within the specified period and he issued a reduced benefit direction to the family credit adjudication officer requiring him to reduce the amount of benefit paid to the claimant by the amount prescribed in the regulations. The reduced benefit direction was issued on 27 July 1995.
4. The respondent appealed on 11 August 1995. It would seem that prior to the issue of the reduced benefit direction the respondent had telephoned the child support agency to explain why she could not attend an interview on 28 March 1995, which telephone call seems not to have been recorded. Although the respondent argued in her written submissions to the tribunal that she had given all the information required of her, it is clear from the papers that, apart from that telephone call, there was no response from the claimant to the child support officer's notice until after the reduced benefit direction had been issued. The nub of the respondent's appeal to the tribunal was that, given her former husband's new family commitments, any attempt to obtain more maintenance than was payable under the existing court maintenance order would be futile and likely to result in the amount of maintenance being reduced. Also, any activity by the Child Support Agency would be harmful to her son because relations between father and son were already strained and as the new wife resented any contact between her husband and his son the intensification of that resentment which would be caused by any attempt to increase the rate of maintenance would probably result in all contact between father and son being stopped.
5. The appeal tribunal is recorded as having made the following findings in fact:

"1. [The respondent] has care of her son [D], born 20 August 1980.

A court order for maintenance is in existence in respect of D. It was made in 1987.

[The respondent] works part-time and is in receipt of family credit.

[The respondent] was sent a MAF on 21 December 1994. She did not return it. She was invited to an interview to explain why she had not returned the MAF but was unable to attend because she had started a new job and was unable to take time off work. However she did fail to reply to a subsequent letter and a reduced benefit direction was made and imposed.

[D] is aged 15 and is studying for his GCSEs. He does have some contact with his father but it is inconsistent because his father's second wife resents payment being made to [the respondent] for [D]."

The tribunal's reasons for its decision are recorded as:

"1. The CSO has correctly referred us to 55, 46 and 2 of the Child Support Act 1991 which permits reduced benefit directions in respect of parents with care who refuse to allow enquiries to be made of absent parents in connection with an assessment. However, these two sections also provide that no such direction is to be made if there is a risk of parent or child suffering harm or distress and also require account to be taken of the child's welfare.

In this case we have considered the need for contact between a teenage child and his parent, the difficulty in currently maintaining it because of resentment about maintenance, the financial effect of the RBD (family credit almost disappearing) and [the respondent's] inability to attend the interview arranged. These factors together satisfy us that harm or distress would result from opposing a RBD and we therefore allow the appeal."

6. The statutory provisions which are relevant to the child support officer's appeal against the tribunal's decision are sections 2 and 46 of the Child Support Act 1991 and regulation 42 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. Section 2 states:

"Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision."

Section 46 provides for the case where a parent with care fails to comply with the requirements of the Secretary of State under section 6(1). The provisions of that section in issue here are:

"(2) A child support officer may serve written notice on the parent requiring her, before the end of the specified period, either to comply or to give him her reasons for failing to do so.

(3) When the specified period has expired, the child support officer shall consider whether, having regard to any reasons given by the parent, there are reasonable grounds for believing that, if she were to be required to comply, there would be a risk of her or of any children living with her suffering harm or undue distress as a result of complying.

(4) ...

(5) If the child support officer considers that there are no such reasonable grounds, he may give a reduced benefit direction with respect to the parent.

(6) ...

(7) Any person who is aggrieved by a decision of a child support officer to give a reduced benefit direction may appeal to the child support appeal tribunal against that decision.

(8) ...

(9) ...

(10) Reasons given in response to notice under subsection (2) may be given either in writing or orally."

7. Regulation 42 makes provision for the review by a child support officer of existing reduced benefit directions. It states:

" (1) Where a parent in respect of whom a direction is in force or some other person gives the Secretary of State reasons:-

(a) additional to any reasons given by the parent with care in response to the notice served on her under section 46(2) of the Act for having failed to comply with the obligations imposed by section 6 of the Act; or

(b) as to why the parent with care should no longer be required to comply with the obligations imposed by section 6 of the Act,

the Secretary of State shall refer the matter to a child support officer who shall conduct a review of that direction ("a review") to determine whether the direction is to continue or is to cease to be in force.

(2) Where a parent with care with respect to whom a direction is in force or some other person gives a child support officer reasons of the kind mentioned in paragraph (1), a child support officer shall conduct a review to determine whether the direction is to continue or is to cease to be in force.

(2A) ...

(2B) ...

(3) ...

(4) Where the child support officer who is conducting a review considers that the parent concerned is no longer to be required to comply with the obligations imposed by section 6 of the Act, the directions shall cease to be in force on the date determined in accordance with paragraph (5) or (6), as the case may be.

(5) Where the direction is in operation, it shall cease to be in force on the last day of the benefit week during the course of which the reasons specified in paragraph (1) were given ...

(6) ...

(7) ...

(8) ...

(9) A parent with care who is aggrieved by a decision of a child support officer following a review may appeal to a child support appeal tribunal against that decision.

(10) Sections 20(2) to (4) and 21 of the Act shall apply in relation to appeals under paragraph (9) as they apply in relation to appeals under section 20 of the Act.

(11) ..."

8. At the hearing of the appeal the child support officer was represented by Miss R. Bamforth of the Solicitor's Office, Department of Social Security. I am grateful to her for her assistance. The respondent did not appear and was not represented. That was because the respondent can now see no point in the appeal. She is no longer in receipt of any benefit which would trigger the operation of section 6 of the 1991 Act, is employed and has no address for her former husband who has moved to Amsterdam with his new family to work. The child support officer had explained in earlier correspondence that he did not wish to withdraw the appeal because he considered that there was a question of law of general importance to be decided.
9. The child support officer's grounds for appeal are that by virtue of section 46(3) of the Act and regulation 42(5) of the Maintenance Assessment Procedure Regulations, once the time for making representations against a proposed reduced benefit direction has expired and the direction has been made any information or representations about the appropriateness of the direction can be entertained only by way of review under regulation 42 and can be given effect only from the date on which the grounds of review were made known to the child support officer. In this case the appeal to the tribunal was against a decision under section 46(5), not under regulation 42, and information advanced subsequent to the date of the reduced benefit direction should not have been accepted as material to the tribunal's decision. The child support officer's submission on his appeal simply adopts those grounds of appeal.
10. Miss Bamforth argued that section 46(3) provides that when the time for the claimant to make representations against a proposed reduced benefit direction has expired the child support officer shall decide whether there are reasonable grounds for believing that there would be a risk of the parent with care or any children living with her suffering harm or undue distress as a result of her compliance with a section 6 requirement. The child support officer is required by section 46(3) to base his decision on the representations made by the parent. There is no discretion. The decision must be based on the information then extant. In this case the parent gave no reasons against the making of a reduced benefit direction. Therefore, the correct procedure for challenging the direction which was made in the absence of any such reasons is review under regulation 42. The direction having been made does not cease to exist and can be terminated only by way of a review. When the original decision to make a reduced benefit direction is appealed the appeal tribunal requires to look at the reasons against the making of a direction which were extant at the time of the child support officer's decision. Reasons emerging subsequently are matters to be considered by review procedure.
11. Miss Bamforth submitted that I should find that the tribunal's decision was erroneous in law for the reasons advanced by her and the child support officer and that, as the evidence did not indicate that any risk of harm or undue distress to anyone would result from the respondent's compliance with a section 6 requirement, I should make my own findings in fact to that effect and substitute my own decision for that of the tribunal. However, she accepted my suggestion that if I upheld the appeal on the basis of her argument I could direct the child support officer to carry out a review under regulation 42. My first reaction to Miss Bamforth's argument was that the appeal should succeed. However, on reflection I do not think that on a proper reading of section 46 the right of appeal provided by that section is subject to the restriction for which she argued.
12. Firstly, the grounds for not making a reduced benefit direction under section 46 are not limited to those reasonable grounds for not doing so which emerge from a consideration of representations made by the parent. Subsection (3) of section 46 certainly obliges the child support officer to consider whether there are such grounds in the light of the parent's representations but under subsection (5) he has a discretion to make or not make a direction in the absence of such reasonable grounds. The operative words are "may ... give ... a direction". That is in contrast to subsection (4) which provides that if there are such reasonable grounds the officer "shall ... take no further action". It is, therefore, wrong to say that in the absence of a case for not doing so from the parent the officer must make a direction. Further, by virtue of section 2 of the Act where the child support officer exercises a discretion he has to consider the welfare of any child who might be affected by his decision. Therefore, even if the parent has not timeously provided a child support officer with information which would give him reasonable grounds for believing that there would be a risk of her, or any children living with her, suffering harm or undue distress as a result of her compliance with a section 6 requirement the child support officer is required to consider the matter for himself as part of the general consideration of the welfare of any child who might be affected by his proposed direction. It is, therefore, open to the parent with care or any other person aggrieved by the making of a direction to appeal under subsection (7) on the grounds that the child support officer has not been aware of or has not given adequate consideration to the likely adverse effects of the direction on the welfare of a particular child.
13. Neither section 20 nor section 46(7) specifies any limitation on the grounds on which a person aggrieved by a child support officer's decision may challenge it. The normal principles, therefore, apply to a tribunal's consideration of the appeal. The question for the tribunal is whether or not the direction should have been made. In deciding that question the tribunal can take account of any evidence available to it at the date of its hearing even although that evidence may not have been available to all the parties at the date on which the direction was made or is evidence which could have been produced to the child support officer during the subsection (2) specified period.
14. Although the point was not put to me in argument I have considered whether a parent who has neglected to respond to a section 46(2) notice is a person aggrieved for the purposes of subsection (7). "Person aggrieved" has been the subject of much judicial interpretation. In general it means a person whose interests are affected by the actings in question. I can see from the authorities no general rule that a person who has not resisted the actings at some pre-appeal stage opportunity automatically loses the status of person aggrieved. In any case, under section 46 the parent's opportunity to object to a proposed direction is for the benefit of the children as much as for the parent so even if the parent did lose her own aggrieved status through failing to protect her interests she would still be vicariously aggrieved in respect of the children for whose welfare she is responsible.
15. I do not accept that a reduced benefit direction can be brought to an end only by way of review. The right of appeal under section 46 does not arise until the direction has been made. There is no provision for suspension of the direction pending the disposal of an appeal. The direction, therefore, comes into existence and is effective as soon as it is made and remains so throughout the appeal process. It follows that a tribunal's decision that the direction should not have been made must have the effect of discharging the direction. Section 46 does not specify the process by which the direction will be discharged. It merely applies subsections (3) and (4) of section 20. Therefore on upholding an appeal the tribunal requires to remit the case to the Secretary of State for reference to the child support officer and direct that the child support officer will cancel his direction and inform the appropriate social security adjudication officer of the cancellation.
16. My conclusion is, therefore, that the tribunal did not err in law in taking account of evidence not produced until after the reduced benefit direction in question had been made but where the tribunal has erred is that it has not, as required by section 46(8) as read with section 20(3), remitted the case to the Secretary of State. It has merely said that a reduced benefit direction is not appropriate. I have to set the tribunal's decision aside for that somewhat technical reason.
17. As already noted above, Miss Bamforth asked me to make the decision which in her view the tribunal should have made, namely, that it was not established on the evidence that there was a risk of harm or undue distress to the respondent's son, or remit to the child support officer to carry out a review under regulation 42. However, for the reasons given below, I have come to the conclusion that I can accept the tribunal's findings in fact and in exercise of my power under section 24(3)(a) make the decision which it should have made on the basis of those facts.
18. I agree with Miss Bamforth that the evidence as to the harm or distress which the respondent's son was likely to suffer might be said to be thin but the respondent's written evidence that the absent parent's wife was likely to become even more hostile to the payment of maintenance in respect of his son and to there being any contact between father and son was evidence which the tribunal was entitled to accept. Whether or not that evidence established on the balance of probabilities that compliance with the section 6 requirement would give rise to a risk of harm or undue distress to the son was a matter of judgment for the tribunal. I see no error in the tribunal's evaluation of the evidence or in its exercise of that judgment and there is, therefore, in my view no need for me to depart from the tribunal's conclusion that there was such a risk.
19. For the foregoing reasons the child support officer's appeal succeeds to the extent that the tribunal's decision is set side. My substituted decision and directions are in paragraph 1 above.

Date: 23 July 1997 (signed) Mr. R. J. C. Angus

Commissioner