The appeal to the Commissioner
Jurisdiction to make a maintenance assessment
"No application may be made at any time under this section with respect to a qualifying child or any qualifying children if-
(a) there is in force ... a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent".
"an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under [various statutes]."
See sections 8(11) and 54 of the Child Support Act 1991. There is no doubt that the order was made under a relevant statute. The question is: did the order require the making of periodical payments to or for the benefit of Matthew and Helen?
The court order
The term refers to
court order the document as a whole
undertakings the recitals to the order
order the orders made by the court with the consent of the parties.
The relevant undertakings are:
"AND UPON [the parent with care] undertaking not to apply to the Court for an increase in the Order for Periodical Payments at paragraph 5 hereunder.
"AND UPON [the absent parent] undertaking and agreeing that in the event of:
(a) the Periodical Payments Order at paragraph 5 hereunder ceasing by virtue of the re-marriage of [the parent with care] and/or
(b) a Child Support Agency assessment upon him being made at a rate less than £90.00 per week in aggregate, he shall make further payment to [the parent with care] for the benefit of the children so that she shall receive from him, directly or otherwise, at least £90.00 per week."
Despite the layout of the second undertaking, the words that I have put in italics must relate to both eventualities: (a) and (b).
"5. [THE ABSENT PARENT] shall pay or cause to be paid to [the parent with care] the sum of £90.00 per week such [sic] sum shall be reduced by fifty per cent on the occasion of one of the children ... ceasing full-time education and all payments shall cease on the occasion of the second child to cease [sic] full-time education. Provided however in the event that hereafter there shall be made payments by [the absent parent] under assessment by the Child Support Agency the sums payable pursuant to this Order shall be abated by the amount of those payments.
6. THE FOREGOING provisions and undertakings shall be in full and final settlement of each parties' [sic] claim against the other to Lump Sum or Property Adjustment Orders and it is hereby directed, pursuant to Section 29 1(A) of the Matrimonial Causes Act 1973 that [the parent with care] shall not be entitled to apply for an extension of the term of the Order at paragraph 5 hereof."
The tribunal's decision
Questions of interpretation
The competing interpretations of the court order
Maintenance for Matthew and Helen
"It was - and always has been - our client's understanding, as well as ours, that the interpretation of the Order is that the payments are for the benefit of the children."
This interpretation is in line with a sentence from a letter written by the parent with care's solicitors before the court order was made. They wrote to the absent parent's solicitors (page 120):
"Pending any CSA assessment your client will make payments in respect of the children at the rate of £90.00 per week."
"It is clear however from the tenure [sic] of the agreement that the payments are in respect of the children. We have quoted in full above the terms of the preamble to the order where reference is made to a possible decrease in the order should a Child Support Agency assessment be made at a rate of less than £90 per week. The inescapable conclusion from this is that the £90 per week is in respect of the children even though the payments are made to [the parent with care]. This would seem to be reinforced by paragraph 5 where provision is made for the sum of £90 per week to be reduced when either of the children cease full-time education."
"I submit that it is difficult to see how the payments are solely in respect of [the parent with care] and then reduce or cease when they [sic] children cease full-time education."
Maintenance for the parent with care
The interpretation and operation of the order
The interpretation of "maintenance order"
The error of law in the tribunal's decision
Signed: Edward Jacobs
Date: 1st December 1998