UKSSCSC CCS_1324_1997 (13 January 1998)
JMe Commissioner's File: CCS/1324/1997
CHILD SUPPORT ACT 1991
APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE CHILD SUPPORT COMMISSIONER
"The facts are that Amy is not in the care of the Local Authority pursuant to an Order under the Children Act but she has been placed for her education in a residential school for children with special educational needs. Pursuant to a statement of special educational needs under the Education Acts she comes home substantial periods of time and during the last year some 20 weeks but normally at somewhat less than this it would appear and her mother cares for her. Her mother also has considerable expenses all the time even when her daughter is not there for example very substantial telephone bills, she clothes her and buys all her personal necessities and one week in each term pays for her to be brought to and from school which is 100 miles away. She also, of course, has to provide a home for her at all times whether or not she is there. The Tribunal find that she has been placed by the Local Authority in a residential boarding school which is an educational decision, the Local Authority do not care for her."
"(1) Where the circumstances of a case are that--(a) a qualifying child is a boarder at a boarding school or is an in-patient in a hospital; and(2) For the purposes of this case, section 3(3)(b) of the Act shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the person who would usually be providing such care for that child but for the circumstances specified in paragraph (1)."
(b) by reason of those circumstances, the person who would otherwise provide day to day care is not doing so,
the case shall be treated as a special case for the purposes of the Act.
The significance of the reference to section 3(3) of the Child Support Act 1991 is that that provision defines who is a "person with care", to whom child support maintenance can be paid. The qualifying child must have her home with the person and, under paragraph (b), the person must usually provide day to day care for the child. Regulation 25 provides:
"(1) Where the circumstances of a case are that a local authority and a person each provide day to day care for the same qualifying child, that case shall be treated as a special case for the purposes of the Act.
(2) Subject to paragraph 3, in a case where this regulation applies(a) child support maintenance shall be calculated in respect of that child as if this regulation did not apply;(3) [deals with cases where there is more than one qualifying child]."
(b) the amount so calculated shall be divided by 7 so as to produce a daily amount;
(c) in respect of each night for which day to day care is provided by a person other than the local authority, the daily amount relating to that period shall be payable by the absent parent (or, as the case may be, by the person treated as an absent parent under regulation 20(2));
(d) child support maintenance shall not be payable in respect of any night for which the local authority provides day to day care for that qualifying child.
"In this case we had to consider the interpretation of Regulation 25 of the Maintenance Assessments and Special Cases Regulations. We had to consider within that Regulation whether the circumstances of this case as a Local Authority and [the mother] provide day to day care for Amy and whether therefore the provisions for Regulation 25 should apply. We have considered the provisions of Section 3 Schedule 1 to the Act and regulation 51 of the Maintenance Assessment Procedure Regulations which deal with these definitions. We note that the words "the child is looked after by a Local Authority" in the Act have the same meanings as in Section 22 of the Children Act 1989. We note in Regulation 25 a different wording is used. This Regulation is dependant on the same primary legislation only in our view the words bear the same interpretation. There is no care order. The Local Authorities do not have care of Amy at any time within the context of the Regulations and therefore Regulation 25 does not apply. She was therefore to be treated as being resident at all times with the parent with care namely [the mother]. Accordingly the appeal on this particular ground is dismissed."
The chairman also recorded that he had granted the absent parent leave to appeal to the Child Support Commissioners.
"where a child is a boarder at a boarding school, or is an in-patient in hospital, the person who, but for those circumstances, would otherwise provide day to day care of the child shall be treated as providing day to day care during the periods in question."
That provision is quite general in scope. It is not restricted to circumstances where a local authority is not paying the school fees. Although under regulation 1(2) the definition does not apply where the context requires otherwise, I do not see that the context (ie the wording and operation) of regulation 25 does require otherwise. The result is that, when considering whether the condition in regulation 25(1) is met, it must first be asked if the child is a boarder at a boarding school and, if so, who would otherwise be providing day to day care. In the present case it is clear that, if Amy were not at boarding school, her day to day care would be provided by the parent with care, with whom she has her home. Thus, the parent with care is to be treated as providing day to day care for periods when Amy is away at school, as well as actually providing day to day care when she is not away at school. Therefore the local authority cannot be treated as providing day to day care at all and the condition in regulation 25(1) is not met. The appeal tribunal was correct to say that regulation 25 did not apply. I cannot accept the absent parent's submission that I should apply the definition in regulation 1(2) with some flexibility to take account of the special circumstances of the case.
(Signed) J Mesher
Date: 13 January 1998