UK Social Security and Child Support Commissioners' Decisions

R(CS) 1/98


Mr. D. G. Rice CCS/4968/1995

21.6.98

Jurisdiction - Secretary of State requiring the person with care to authorise him to recover child support maintenance - whether obligation to consult absent parent

On 15 July 1994 the parent with care, who was the mother of the child, applied for child support maintenance under section 6(1) of the Child Support Act 1991. On 16 August 1994 a child support officer decided that the absent parent was liable to pay child support maintenance of £67.86 from 18 August 1994. A tribunal allowed the absent parent's appeal in part, remitting the case to the Secretary of State for him to arrange for the child support officer to reassess the child support maintenance after considering whether the correct amount had been allowed in respect of housing costs in the calculation of exempt and/or protected income. However, the tribunal rejected the absent parent's contention that the Secretary of State, when considering whether to require the parent with care to authorise him to take action to recover child support maintenance, should have enquired of the absent parent as to his views, and that by not doing so, the Secretary of State had failed to have regard to the welfare of the child contrary to section 2 of the Child Support Act 1991.

Held that:

in exercising his discretion under section 6(1)(b) of the Child Support Act 1991 as to whether to require the person with care to authorise him to take action to recover child support maintenance, the Secretary of State was not in breach of section 2 of the Act if he did not first consult the absent parent (R v. Secretary of State for Social Security ex parte Lloyd [1995] 1 FLR 856 applied). In any event, the exercise of the discretion was a matter for the Secretary of State and the adjudicating authorities had no jurisdiction to consider this issue.

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is that the decision of the social security appeal tribunal given on 7 April 1995 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide that the case should be remitted to the Secretary of State for him to arrange for the child support officer to consider whether the correct amount of exempt and/or projected income has been allowed in respect of housing costs (service charges). There was no breach of section 2 of the Child Support Act 1991.
2. This is an appeal by the absent parent, brought with my leave, against the decision of the child support appeal tribunal of 7 April 1985. At that hearing the absent parent was present, but unrepresented, whilst the child support officer appeared by Mr. K. Kimmins of Counsel instructed by the Solicitor's Office of the Department of Social Security. The person with care was neither present nor represented.
3. On 15 July 1994 the person with care, who was the mother of the child Emily, applied for child support maintenance. On 16 August 1994 a child support officer decided that the absent parent was liable to pay in respect of Emily maintenance of £67.86 from 18 August 1994. The absent parent then sought a review by the second child support officer, but on 25 August 1994 the later refused the request. In due course, the claimant appealed to the tribunal, who allowed the appeal in part, remitting the case to the Secretary of State for him to arrange for the child support officer to reassess the maintenance support after considering "whether the correct amount of exempt and/or protective income has been allowed in respect of housing costs (service charges)". That aspect of the tribunal's decision is not in dispute. However, the tribunal rejected the real ground of appeal upon which the absent parent relied.
4. The absent parent's contention was that the Secretary of State had, in requiring the person with care to authorise him to take action to recover child support maintenance from the absent parent, failed to have regard to the welfare of the child contrary to section 2 of the Child Support Act 1991. He complained that the interference on the part of the Secretary of State had damaged the relations between the person with care, his ex wife, and himself, with the result that the access which he previously had to his daughter had been curtailed, to the ultimate detriment of the daughter herself. Although the person with care had not protested against her being required to authorise the Secretary of State to take action to recover child support maintenance pursuant to section 6(1), it had been incumbent on the Secretary of State, in the absent parent's submission, to enquire of the absent parent as to what his views were, and this had not been done. Accordingly, the Secretary of State had acted without regard to the welfare of Emily in breach of section 2.
5. The same point arose in R v. The Secretary of State for Social Security Ex Parte Lloyd [1995] 1 FLR 856. In that case, the absent father applied for leave to move for judicial review in respect of a determination by the Secretary of State. Mr. Justice Ewbank disallowed the application, stating as follows:

"This is an application by a father for leave to move for judicial review in relation to a determination under the Child Support Act 1991. The point that he makes is that the mother ought not to be asked, or required, to make an application without the Secretary of State first inquiring of the father over any points he wishes to make.

The power to force the mother to make the application is, under s.6 of the Child Support Act. Section 6(2) of that Act says:

"The Secretary of State shall not require a person (the parent) to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that-

(a) if the parent were required to give that authorisation; or

(b) if she were to give it, there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result."

It is said on behalf of the father that that subsection, taken in conjunction with s. 2 of the Act, requires the Secretary of State to make inquiries, at the very best of the father, whether there is anything he wished to say on that aspect.

Section 2 of the Act provides that the Secretary of State, when considering the exercise of any discretionary power conferred by the Act, shall have regard to the welfare of the children likely to be affected by his decision.

The submission made by the father would have wide-ranging effects. It would mean in every case that when the Secretary of State required the mother to make an application, he would first of all have to ask the father whether there was anything he wanted to say about it. Section 6(3) of the Child Support Act provides that the mother can ask the Secretary of State to disregard s. 6(2) in which case s. 6(2) shall not apply. So, if the mother does not wish the Secretary of State to consider whether there are reasonable grounds for believing that there might be a risk, the Secretary of State does not even have to consider it at all. I regard the argument being put forward by the father in this case as fanciful, unrealistic and not supported by the Act. This application is dismissed."

Manifestly, in the present instance, the mother, the person with care, did not seek to prevent the Secretary of State from requiring her to apply to the child support officer for a maintenance assessment, and the Secretary of State was not required to consult the absent parent. Accordingly, the absent parent's criticism of the Secretary of State was ill-founded.

6. However, although I have explained, for the benefit of the absent parent, that the Secretary of State did not err in point of law, this is in fact not something which falls for my determination. I am only concerned with matters which come within the jurisdiction of the child support officer, and the discretion whether or not to require the parent with care to authorise the Secretary of State to take proceedings for recovery of child support maintenance pursuant to s. 6(1)(b) is the discretion of the Secretary of State, not the discretion of the child support officer. Accordingly, the tribunal, who had no greater power in this respect than the child support officer, had no jurisdiction to consider this issue.
7. Although the absent father's appeal to the tribunal, insofar as it was based on breach of s. 2, was hopeless, I do not think that the tribunal properly explained the position to the claimant. There was therefore a breach of regulation 25(2)(b) of the 1986 Adjudication Regulations, and I must set aside their decision. However it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision, and dispose of the appeal finally.
8. Accordingly, my decision, based on the reasons given above, is as set out in paragraph 1.

Date: 21 June 1998 (signed) Mr. D. G. Rice

Commissioner