Mr. J. Mesher CCS/2318/1997
Maintenance assessment – whether assessment terminates when an absent parent becomes a member of the same household as the qualifying child
At some date, still in dispute before the Commissioner, the absent parent had started living in the same household (i.e. the parent with care's) as the child in respect of whom a child support maintenance assessment was in force. The central issue in the case was whether paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991 operated in those circumstances to terminate the maintenance assessment or whether it was necessary for paragraph 16(1)(d) to be satisfied. Paragraph 16 provides, in part, that a maintenance assessment shall cease to have effect - "...(b) on there no longer being any qualifying child with respect to whom it would have effect; (c)...; (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". The child support appeal tribunal held that paragraph (d) had to be satisfied before the assessment terminated. The absent parent appealed to the Commissioner.
Under section 55 of the Act 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 prescribed circumstances; under section 3(1)(a) a child is a "qualifying child" if one of his parents is, in relation to him, an absent parent; under section 3(2) 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 as the child, and (b) the child has his home with a person who is, in relation to him, a person with care; and under section 3(3) a "person with care" is a person with whom the child has his home and who usually provides day to day care for the child.
Held, allowing the appeal, that:
applying these definitions to the case where a parent who had moved out returns to be a member of the other parent's household and that household includes the qualifying child, that child will immediately no longer have an absent parent and will cease to be a qualifying child and any maintenance assessment which was in force against the former absent parent ceases to have effect immediately under paragraph 16(1)(b) without the need for the parents to have been living together for a continuous period of six months so as to satisfy paragraph 16(1)(d).
The Commissioner remitted the appeal to a fresh tribunal.
DECISION OF THE CHILD SUPPORT COMMISSIONER
"(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."
"(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.
"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."
"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."
"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). ...
- 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.
- 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.
Date: 23 November 1998 (signed) Mr. J. Mesher Commissioner