Commissioner's File: CCS 2318/97
Mr Commissioner Mesher
23 November 1998
CHILD SUPPORT ACTS 1991 AND 1995
APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE CHILD SUPPORT COMMISSIONER
Appellant: [The absent parent]
Respondents (1) Child Support Officer (2) [The parent with care]
Appeal Tribunal: Swansea CSAT
Tribunal date: 4 November 1996
1. The absent parent's appeal is allowed. The decision of the Swansea child support appeal tribunal dated 4 November 1996 is wrong in law and I set it aside. The case is referred to a differently constituted child support appeal tribunal for determination in accordance with the directions given in paragraph 22 below (Child Support Act 1991, section 24(3)(d)).
2. The central point of law in this case is the effect of paragraph 16 of Schedule 1 to the Child Support Act 1991 ("the Act") when the absent parent and the parent with care begin to live together in the same household with a child in respect of whom a child support maintenance assessment is in force.
3. The relevant parts of paragraph 16 are subparagraphs (1) and (6):
"(1) A maintenance assessment shall cease to have effect--
(a) on the death of the absent parent, or of the person with care, with respect to whom it was made;
(b) on there no longer being any qualifying child with respect to whom it would have effect;
(c) on the absent parent with respect to whom it was made ceasing to be a parent of--
(i) the qualifying child with respect to whom it was made; or
(ii) where it was made with respect to more than one qualifying child, all of the qualifying children with respect to whom it was made;
(d) where the absent parent and the person with care with respect to whom it was made have been living together for a continuous period of six months;
(e) where a new maintenance assessment is made with respect to any qualifying child with respect to whom the assessment in question was in force immediately before the making of the new assessment.
(6) Where both the absent parent and the person with care with respect to whom a maintenance assessment was made request a child support officer to cancel the assessment, he may do so if he is satisfied that they are living together."
4. It is also necessary to look at some of the definitions in the Act. Under section 55, a person is a child if under the age of 16 or under the age of 19 and receiving full-time non-advanced education or under the age of 18 in certain prescribed circumstances. Section 3(1) provides that 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."
Section 3(2) provides that a parent of a child is an "absent parent", in relation to that child, 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."
A "person with care", under section 3(3), is a person with whom the child has his home and who usually provides day to day care for the child.
5. The problem then becomes clear. It is an essential part of the definition of "qualifying child" for the purposes of the child support legislation that at least one of the child's parents should be an absent parent. In the standard situation where the child is living with one parent in the former family home and the other parent has moved out, that condition is met. If the parent who had moved out returns to be a member of the other parent's household, it appears that the child will immediately have no absent parent and cease to be a qualifying child. Does any maintenance assessment which was in force against the former absent parent cease to have effect immediately under paragraph 16(1)(b) of Schedule 1 to the Act? Or does the assessment only cease to have effect after the parents have been living together for a continuous period of six months under paragraph 16(1)(d)?
6. In the present case, the appeal tribunal took the view that the second alternative was correct. It found as a fact that there had been a period of reconciliation between the absent parent and the parent with care from 1 August 1994 to at the latest 29 January 1995. However, since that period was less then six months, it concluded that it could give rise to no relevant change of circumstances under child support law. It said this in its reasons for decision:
"There are two matters of interpretation which it is necessary to cover briefly.
The first relates to whether or not the assessment ceased to have effect. Paragraph 16 of Schedule 1 to the Child Support Act provides that an assessment shall cease to have effect on there no longer being any qualifying child. A qualifying child is defined in section 3 and part of the definition includes the need for there to be an absent parent. On the basis that [Mr T] was living with [Mrs T] and their daughter he was not of course an absent parent. However we do not consider that in the context the words `qualifying child' can be interpreted as in section 3 of the Child Support Act. If this were the correct interpretation in this context the specific provisions in other paragraphs would be rendered redundant. In particular the provision relating to the continuous period of six months living together would be irrelevant."
7. The absent parent now appeals against the appeal tribunal's decision with my leave. The child support officer in the written submission dated 25 July 1997 supported the appeal on the basis that the appeal tribunal had adopted a wrong interpretation of paragraph 16 and that the first alternative mentioned in paragraph 5 above was right. The child support officer was prepared to accept that this result left paragraph 16(1)(d) with no practical effect. It was said in paragraph 26 of the submission that the appeal tribunal:
"should have made a finding as to the date on which [Mr and Mrs T] commenced living together in 1994, which is likely to be the date on which, because [Mr T] was no longer an absent parent, there was no longer a qualifying child. I submit that the tribunal should, under the provisions of paragraph 16(1)(b) of Schedule 1 to the Act, have determined that the maintenance assessment ceased to have effect from that date. I further submit that having made the determination as to the cessation of the maintenance assessment on that date in 1994, the tribunal should have considered whether the second maintenance application form received in this case, dated 17 May 1995, should have been accepted as a fresh application. This application, if accepted, should then have been subject to findings by the tribunal as to the date of the commencement of the second period of reconciliation."
8. I directed that the Secretary of State was to be an additional respondent in the appeal and that there should be an oral hearing, because of the decision of Mr Commissioner Rowland in CCS/4124/1997. There, having set out what could be said in favour of a conclusion that a maintenance assessment should continue during the first six months of a period of reconciliation between the parents unless both requested it to be cancelled under paragraph 16(6), the Commissioner continued:
"16. On the other hand, the continuation in force of a child support maintenance assessment while parents are living together seems to me to present major difficulties during the period of reconciliation itself. This is not a problem in the present case, where the assessment under Schedule 1 is `nil' but it would be a problem in cases where there was a significant assessment. It seems hardly practical to require one person to make payments to another living in the same household. Mr Scoon [the child support officer's representative] suggested that the Secretary of State might not seek to enforce the child support maintenance assessment in respect of a period of reconciliation but that does not seem to [me] to be a wholly adequate answer. In any event, there is a more fundamental problem; the mere fact of reconciliation is likely to provide grounds for review. Quite apart from the fact that one parent would have ceased to be an absent parent, the changes in the people with whom the parents are living and the change of address of at least one of them would be likely to have an impact on the amount of the assessment. Where both parents have previously been entitled to income support, in all save the most exceptional cases, it would be necessary for one parent to claim for both of them. Those matters would require a new assessment to be made under Schedule 1 to the Act but I do not see how any such assessment can be made if there is no absent parent within the terms of section 3(2). ...
18. It might well be desirable that an absent parent beginning to live with the person with care should lead to a child support maintenance assessment being suspended rather than reviewed and that the suspension should last until they cease to live together or the assessment was terminated under paragraph 16(1)(d) or (6) of Schedule 1, whichever was the sooner. However, there is no such provision and in its absence it seems to me that paragraph 16(1)(d) and (6) are unworkable which inclines me to favour the child support officer's construction of paragraph 16 rather than Mr Scoon's alternative construction.
19. Nevertheless, I am reluctant to determine this question authoritatively without hearing submissions from the Secretary of State who might have some suggestions as to how the legislation could work in practice if Mr Scoon's alternative construction were correct."
In the circumstances of CCS/4124/1997, the Commissioner was able to decide the appeal on another point and so did not call for any submissions from the Secretary of State. In the present appeal the correct interpretation of Schedule 16 has to be decided.
9. At the oral hearing, the absent parent attended and was represented by Mr A Stephens. The child support officer was represented by Ms D Thomas of the Office of the Solicitor to the Department of Social Security. The Secretary of State was represented by Ms R Riggs of the same Office. The parent with care did not attend, but did send a letter received on 17 September 1998, which I shall mention later.
10. On the central question of legal interpretation, Mr Stephens agreed with and adopted the views expressed in the child support officer's written submission (see paragraph 7 above). He said that the appeal tribunal erred in not finding a precise date on which the absent parent became a member of the same household as the qualifying child. But even if the appeal tribunal had been right to consider only paragraph 16(1)(d) of Schedule 1, Mr Stephens submitted that it erred in law in not explaining why the evidence did not show a continuous six months of living together.
11. Ms Riggs for the Secretary of State also submitted that the appeal tribunal adopted a legally wrong interpretation of paragraph 16 of Schedule 1. She said that if in paragraph 16(1)(b) "qualifying child" was given the meaning specified in section 3(1) of the Act, that would not give rise to the problem raised by the appeal tribunal. It was necessary to look carefully at the different phrases used in different parts of the Act. In her submission, paragraph 16(1)(b) would bite when there was a sufficiently settled arrangement that one could say that the absent parent had become a member of the same household as the child. However, there could be cases where the absent parent was living together with the parent with care and the situation was not sufficiently settled that it could be said that the absent parent was a member of the same household as the child. In those cases, she said, paragraph 16(1)(d) and (6) would have a practical application. She submitted that for the absent parent to become a member of the same household as the child there would have to be some settled intention as to the future, whereas paragraph 16(1)(d) was concerned with the objective facts of the matter and in effect imposed a presumption of permanence after six months of living together. She accepted that if the absent parent and the parent with care began to live together and the maintenance assessment was not terminated by paragraph 16(1)(b), that would be a change of circumstances which would affect the assessment. But she said that it was a matter of enforcement for the Secretary of State. If, as one would expect, the absent parent ceased to pay the assessment, arrears would build up, which in those circumstances the Secretary of State would not seek to recover. However, Ms Riggs did say that, if the parties later split up again, the Secretary of State might wish to enforce payment of arrears for the period of living together, so that the proper amount of the maintenance assessment for that period would need to be ascertained.
12. Ms Thomas for the child support officer submitted that paragraph 16(1)(b) of Schedule 1 applied when it was immediately clear that the absent parent was living in the same household as the child. When this was not immediately clear, perhaps because intentions were tentative (as where a reconciliation was being tried) or the situation was not stable, the meter under paragraph 16(1)(d) would start to run. But the meter might not need to run for six months before the maintenance assessment was terminated, because the membership of the household might become clear. Ms Thomas did resile from the suggestion in the child support officer's written submission that the appeal tribunal should have made findings and given directions on the maintenance application form dated 17 May 1995. She submitted, I think rightly, that all that the appeal tribunal could do, if it concluded that the maintenance assessment had been terminated under paragraph 16 on a date prior to 17 May 1995, would be to draw attention to the new application. It would then be for the Secretary of State to refer it to a child support officer under section 11 of the Act.
13. No-one at the oral hearing argued that the appeal tribunal's approach was correct in law. It is therefore necessary, bearing in mind the interests of the parent with care in this case, for me to give especial care to examining the arguments put forward.
14. I do not think that the question of interpretation, and the problem identified by the appeal tribunal, can be disposed of as easily as suggested by Ms Riggs and Ms Thomas. To be an absent parent of a child within the meaning of section 3(2) of the Act a person must not be "living in the same household with the child". Section 3(2) does not in so many words make the test that the person is not a member of the same household as child, but it must (save possibly in exceptional circumstances which I do not speculate on) come to much the same thing. The notion of living in a household implies more than a mere transitory presence, as in a friend or relative making a short visit. A person living in the same household as another person is part of that household and so a member of it. Membership of a household is essentially a factual matter, looking to the current arrangements of the domestic establishment. I reject the submissions on behalf of the Secretary of State and the child support officer in so far as they suggested that some particular degree of settled intention about future arrangements or stability of arrangements over a past period was necessary. All that is necessary is that the person is presently living in the household on more than a merely transitory basis.
15. I also reject the view that "living together" in paragraph 16(1)(d) of Schedule 1 can include looser or more tentative or provisional forms of association than living in the same household of another person. Paragraph 16(1)(d) does not require the absent parent and the parent with care to be living together as husband and wife, but it seems to me that it implies that there should be something akin to membership of the same household. To borrow the words used by the Commissioner in R(F) 2/81 in the context of the test of "living with" in the child benefit legislation, one parent must be living in the same house or other residence as the other parent and carrying on there with the other parent a settled course of daily living. It would be highly unsatisfactory if, in the child support context, important rights depended on circumstances which could not be relatively clearly identified.
16. Thus, I am satisfied that, in the circumstances of the present case, if the absent parent and the parent with care started to live together within the meaning of paragraph 16(1)(d) of Schedule 1, the maintenance assessment would terminate on that date under paragraph 16(1)(b) if the latter is given its literal meaning. I do not have to decide whether there might nonetheless be some scope for paragraph 16(1)(d) to have a practical application although paragraph 16(1)(b) applies on that basis (for instance if the child in question was not for the moment living with the parent with care). In at least the great majority of cases there will be no such scope, so that the problem of interpretation identified by the appeal tribunal does arise.
17. The appeal tribunal's view, that "qualifying child" in paragraph 16(1)(b) does not have the meaning given by its definition in section 3(1) of the Act, is justifiable and legitimate on consideration of paragraph 16 taken in isolation. It enables every part of paragraph 16 to have a practical application. A departure from the plain meaning of paragraph 16 could be justified. However, I conclude that in the wider context of the Act as a whole such a departure cannot be justified.
18. If a maintenance assessment were to stay in existence for the first six months of an absent parent's returning to live in the same household as the parent with care and the child in question, that would raise fearsome problems of calculating the assessment in those changed circumstances, when there is no longer an absent parent. I endorse what was said by Mr Commissioner Rowland in paragraph 16 of decision CCS/4124/1997 about the problems in calculating income and in cases where income support was in payment. I add the difficulty which arose in the present case of how to deal with the absent parent's housing costs if accommodation elsewhere is retained when the absent parent moves into the parent with care's household. The suggestion on behalf of the Secretary of State that those problems could be removed by the exercise of the Secretary of State's discretion whether or not to enforce payment of arrears seems to me incoherent and unacceptable. The parties to the operative maintenance assessment are entitled to know where they stand on the important and onerous statutory obligations under the child support scheme. And the position put forward was that the Secretary of State might later wish to enforce arrears incurred in a period of living together, so that the proper amount of the assessment during a period of living together would have to be ascertained. In short, I conclude that, if the appeal tribunal's interpretation were right (and in the absence of any express provision for the suspension of maintenance assessments during periods of living together), the child support legislation would be unworkable.
19. Accordingly, I find that the appeal tribunal adopted a legally wrong interpretation of paragraph 16 of Schedule 1. It should have adopted the interpretation that, as soon as an absent parent of a child ceases to be an absent parent as defined in section 3(2) of the Act, the child ceases to be a qualifying child as defined in section 3(1) and paragraph 16(1)(b) operates to terminate the maintenance assessment then in effect. The appeal tribunal's decision must be set aside as wrong in law.
20. That raises the question of whether I can substitute a decision on the appeal against the child support officer's decision of 1 March 1996, on the basis of the facts found by the appeal tribunal. Mr Stephens submitted that I should take that course and that the appeal tribunal had clearly found as a fact, based on sufficient evidence, that the absent parent had started living in the same household (ie the parent with care's) with the child in question on 1 August 1994. The maintenance assessment made in the child support officer's decision of 15 August 1995 with effect from 28 April 1994 should therefore terminate on 1 August 1994. That was despite the fact that the absent parent in his letter dated 29 December 1996 applying for leave to appeal said that the period of reconciliation started on 17 July 1994. Ms Thomas and Ms Riggs were content to leave it to me whether to substitute a decision or to refer the case back.
21. I have concluded that I should not substitute a decision. First, the appeal tribunal did not make a finding of fact on the date on which the absent parent started to live in the parent with care's household, as opposed to the date on which the period of reconciliation started, which may not be the same thing. Second, the appeal tribunal did not clearly and positively make a finding of fact on the date on which the period of reconciliation started. Its approach was that, if the date of 1 August 1994 were accepted, there would not have been a continuous period of six months' living together. Third, the parent with care in her letter received on 17 September 1998 has said that the period of reconciliation started on 30 September 1994 and that in that period the absent parent never lived in her home. The facts are plainly still in dispute and should be determined after another hearing before an appeal tribunal.
22. Accordingly, I refer the absent parent's appeal against the child support officer's decision of 1 March 1996 to a differently constituted child support appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new appeal tribunal. The new appeal tribunal must apply the interpretation of paragraph 16 of Schedule 1 to the Act set out in paragraph 19 above and the approach to "living in the same household" set out in paragraph 14 above. Many of the points in dispute before the appeal tribunal of 4 November 1996 may now have been resolved, or may not arise if the new appeal tribunal determines that the maintenance assessment effective from 28 April 1994 is terminated by virtue of paragraph 16(1)(b) of Schedule 1 from a particular date. Therefore, I give no further directions of law, except that the new appeal tribunal will, if it decides that paragraph 16(1)(b) of Schedule 1 operates from any date, have no jurisdiction on the present appeal to make determinations in relation to any period after that date.
23 November 1998
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