UK Social Security and Child Support Commissioners' Decisions

Dollar v. Child Support Officer and Anor. [1999] UKSSCSC CCS_16904_1996 (24 May 1999)

R(CS) 7/99
(Dollar v. Child Support Officer and Anor.)

CA (Simon Brown, Auld and Thorpe LJJ) CCS/16904/1996
24.5.99


Deductions in place of child support maintenance – whether there is discretion on a review of a determination reached in error of law to uphold rather than to revise

On 5 June 1995, the child support officer (CSO) decided that the absent parent (AP) who was receiving income support was liable to make a contribution to child maintenance with effect from 13 June 1995. A sum amounting to 5% of his personal allowance was deducted from his income support (section 43 of the Child Support Act 1991 and regulation 28 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 "the MASC Regulations"). One of the conditions in regulation 28 for imposing liability is that the AP was not receiving any benefit mentioned in Schedule 4. The AP sought a review and then appealed the CSO's refusal to review. He argued that the CSO's failure to ask if he was receiving any payments listed in Schedule 4 to the MASC Regulations rendered the decision void notwithstanding that he was not actually in receipt of any such payments. The child support appeal tribunal dismissed the AP's appeal. The AP appealed to the Commissioner who allowed the appeal but substituted his own decision directing the CSO that the decision made on 5 June 1995 was not to be revised. Leave to appeal was granted by the Court of Appeal. The AP submitted that: 1. a liability to deductions did not arise unless and until the CSO made the relevant determination "in accordance with the provisions of the Act"; 2. the determination of 5 June 1995 was not so made and therefore could not create the relevant liability; 3. if a purported determination was flawed, as this one was, it must be reviewed and replaced; 4. the replacement decision could not have retrospective effect. The AP claimed that paragraph 7A of Schedule 5 to the MASC Regulations confirmed his arguments because it provided that the effective date of the "revised" decision was the date that it was made.

Held, dismissing the appeal, that:

a procedurally flawed decision was not necessarily defective or void. It was implicit in paragraph 7A that, on review, the relevant decision need not be revised and, if it were not revised, would continue to have effect from when it was made. The absence of an express power or specific provision in Schedule 5 for upholding on review a decision that was reached unlawfully did not mean that no such option was available to the CSO;

as the flawed decision was not void, it could be upheld or set aside depending on the view taken by the reviewing authority as to the appropriate course;

the scheme of the legislation was such that the deductions were not to be regarded under section 2 of the Child Support Act 1991 as adversely affecting the children's welfare nor was it unjust not to relieve the AP of the liability to make the payments merely because he had not been asked certain questions which, if he had answered, would not have "advantaged him one iota".


DECISION OF THE COURT OF APPEAL

The Appellant appeared in person.

Mr. J. R. McManus QC (Instructed by Office of the Solicitor, Department of Social Security, 48 Carey Street, London WC2) appeared on behalf of the Respondent.

LORD JUSTICE SIMON BROWN:

Nicholas Dollar, an absent parent within the meaning of the Child Support Act 1991, appeals by leave of this court against the order of Mr. Mesher sitting as a Child Support Commissioner on 16 December 1997. The effect of the order was to allow the appellant's appeal, but to direct that, on the subsequent review of the child support officer's original decision of 5 June 1995, that decision was not to be revised. In short, the appellant had won only a Pyrrhic victory. He was not relieved of his liability to make contributions towards child maintenance from his income support benefits to the extent and from the date originally determined, namely £2.35 per week from 13 June 1995. It is his central contention on this appeal that the original determination cannot be regarded as effective for any purposes, and certainly not so as to have effect before the date of any review; a review which, because of this appeal, has yet to take place.

With that brief introduction, let me summarise the legislative scheme and sketch in the very few facts necessary for a proper understanding of the appeal. I propose to do so only very shortly, although I am conscious of the fact that the Commissioner's own decision extended to eighteen full pages, including an appendix of six pages setting out the detailed applicable legislative provisions.

The appellant is the absent father of four children. He practised as a solicitor until 1994, when a receiving order was made against him. He then ceased practice and became entitled to income support. An absent parent on income support is taken to have no assessable income, so that his maintenance assessment is nil. However, that notwithstanding, a minimum contribution to child maintenance of five per cent (raised in April 1996 to ten per cent) of his income support personal allowance is then required of him, pursuant to section 43 of the 1991 Act and regulation 28 of the Child Support Maintenance Assessments and Special Cases Regulations 1992 ("the MASC regulations"), provided that certain criteria are satisfied. Amongst those criteria, and of particular relevance to this case, is a requirement that the absent parent be not in receipt of any specified payments or awards of the kind specified in Schedule 4 of the MASC regulations. These include payments such as incapacity and disability benefits, war pensions and other such disablement awards. Such payments and awards are, as I understand it, taken into account in calculating a person's entitlement to income support. In such cases, however, it is understandably thought inappropriate that the five per cent levy should then be imposed upon it - a levy which (I may observe) in the majority of these cases, and certainly in the instant case, redounds to the advantage of the Treasury rather than the advantage of the parent with care, who herself enjoys state benefits.

The original section 43 decision, that the appellant should make this five per cent contribution to his children's maintenance via the Treasury, is assumed to have been made on 5 June 1995, with effect from 13 June 1995, and to have been notified to him in August 1995. What was wrong with the decision, let me indicate at once, was not that the appellant was in fact in receipt of any sort of Schedule 4 payments or awards: it has long been common ground that he never has been. The child support officer's error was rather in failing to have asked the relevant questions of the appellant to determine one way or the other whether this particular requirement was or was not satisfied. There was, in short, a procedural failure in reaching the decision.

The Commissioner's conclusion on the point is to be found in paragraph 23 of his decision, as follows:

"I am also satisfied on the evidence that the child support officer when making the decision of 5 June 1995 did not give consideration to whether the condition in regulation 28(1)(c) of the MASC regulations - that the absent parent's income did not include one of the payments or awards specified in Schedule 4 to the Regulations - was met."

Schedule 5 to the MASC regulations provides, so far as is relevant:

"[1. In this Schedule -

(a) "relevant decision" means a decision of a child support officer given under section 43 of the Act (contribution to maintenance by deduction from benefit) and regulation 28. . .

. . . ]

2. A relevant decision may be reviewed by a child support officer, either on application by a relevant person [that includes this appellant]. . .

(a) if it appears to him that the absent parent has at some time after that decision was given satisfied the conditions prescribed by regulation 28(1) or, as the case may be, no longer satisfies those conditions; or

(b) if it appears to him that the relevant decision was wrong in law or was made in ignorance of, or based on a mistake as to, a material fact.

. . .

6. Where a child support officer has made a decision under regulation 28 or paragraph 2 . . . any relevant person may apply to the Secretary of State for a review of that decision. . .

. . .

[7A. If, on a review under paragraph 2 . . . or 6, the relevant decision is revised ("the revised decision") the revised decision shall have effect -

(a) if the revised decision is that no payments such as are mentioned in section 43 of the Act are to be made, from the date on which the event giving rise to the review occurred: or

(b) if the revised decision is that such payments are to be made, from the date on which the revised decision is given.]"

The Commissioner's decision here was that the relevant decision was "wrong in law" for the purposes of paragraph 2(b) of Schedule 5. As he said in paragraph 25 of his decision:

"I agree that the decision of 5 June 1995 was legally flawed. A question which the child support officer was required to consider before making the decision had not been considered."

It followed, he held, that the child support officer had erred in her later decision by which she had declined to review the assessment, and so too had whoever dealt with a second proposed review; and that the Child Support Appeal Tribunal had in turn been wrong in law on 10 July 1996 in having dismissed the appellant's appeal from the decisions refusing review.

The Commissioner, however, was entitled, and felt able, to give the decision which the appellate tribunal itself should have given, which was to allow the appeal with the following directions:

"(a) the child support officer is to carry out a review. . .

(b) the revised decision to be given on that review is that the child support officer's decision dated 5 June 1995 that section 43 of the Child Support Act 1991 applies to the absent parent falls to be reviewed under paragraph 2(b) of Schedule 5 . . . on the ground that it is wrong in law, but that on review the decision is not to be revised."

Central to the Commissioner's decision was that the flaw in the child support officer's decision had not rendered it void.

It is interesting at this stage to note the particular ground upon which this court (Otton and Ward LJJ) gave leave to appeal last June. Ward LJ noted that paragraph 7A of Schedule 5 was:

". . . to the effect that if the revised decision is such that payments are to be made, they are to take effect from the date on which the revised decision is given."

He continued:

"It seems to me therefore to be arguable that, if the June decision was made in error of law, then the only decision, which is good in law, permitting the deduction from income support, would be such decision as is made when the matter finally gets back to the reviewing child support officer at some date in the future."

Arguable though the point appeared to be, it now seems plain that the argument fails. The provisions of Schedule 5, taken together, demonstrate that there is a distinction between reviewing a decision and revising a decision on review. There may well be grounds for review, such as error of law, but no grounds then for revising the decision on review - perhaps because, as here, the error of law was procedural and, on the admitted facts, the carrying out of the required investigation would have led to precisely the same deductions as those provided for by the decision under review.

What then are the arguments which Mr. Dollar now advances on this appeal? They have been placed before us, both in written form and by oral submission, in very considerable detail and with many refinements. I shall seek to deal with the substance of the main submissions, but I fear that Mr. Dollar may feel that I have done scant justice to certain aspects of them.

His first argument I understand to run essentially as follows. (i) There can be no liability to a deduction from income support unless and until the child support officer makes the relevant determination "in accordance with the provisions of the Act". (ii) The determination of 5 June 1995 was not so made and accordingly could not create the relevant liability. (iii) If a purported determination is flawed, as this one was, it must be reviewed and replaced. (iv) The replacement determination cannot have retrospective effect. Let me quote from the last sentence of paragraph 25 of Mr. Dollar's skeleton argument:

"Para. 7A does of course expressly confirm this situation by providing that the effective date of the 'revised' or replacement decision is the date it is made."

I cannot accept this argument. In so far as it rests on the proposition that any procedurally flawed decision is not one taken "in accordance with the provisions of the Act" and therefore is necessarily defective or void, I would reject it, as did Mr. Commissioner Mesher. I recognise, of course, that the jurisdiction being exercised here is that of statutory review and appeal rather than judicial review. Whilst, however, I would be inclined to accept that there is no discretion in the appellate body (as, indeed, appears implicit in the Commissioner's own decision, whereby he formally allowed the appeal), I see no reason why that should have the effect of excluding any element of discretion in the reviewing body. Where, as for example here, a legal flaw is entirely venial and not prejudicial to anyone's interests, it seems to me on the contrary highly desirable and appropriate that there should be a discretion on review.

In so far as Mr. Dollar's argument rests upon the assertion that paragraph 7A requires the conclusion for which he contends, that argument too I would reject. Rather it seems to me implicit in paragraph 7A, first, that on review the relevant decision need not be revised (or 'replaced', as the appellant would have it) and, second, that if it is not revised, it will continue to have effect from when it was made. The appellant argues that because there is no specific provision in Schedule 5 for upholding on review a decision reached unlawfully, therefore no such option is available to the child support officer. I disagree. I am not persuaded that the absence of such an express power (which he contrasts to the position under sections 18 or 19 in respect of maintenance assessments) casts the light he asserts on Schedule 5.

The appellant's second argument is that the review procedure leaves no scope for upholding a defective decision. There is, he submits, simply no discretion not to set it aside. This argument is essentially a repetition of the first. I would reject it for the same reason as the first. Given that the flawed decision is not void, it can in my judgment be upheld or set aside depending upon the view taken by the reviewing authority as to the appropriate course.

That brings me to the appellant's third argument, which is that any such discretion should be exercised in his favour rather than, as the Commissioner has directed, against him. In this regard he prays in aid two particular considerations. First, he says that whoever exercises the discretion is required by section 2 of the 1991 Act to "have regard to the welfare of any child likely to be affected by his decision" and that the welfare of his children would be benefited by his being relieved of this liability. He is seeing his children on a regular basis, including staying access, and would be financially better able to entertain them if he were allowed to enjoy 100 per cent rather than only 95 per cent (or, from April 1996, 90 per cent) of his income support.

The second point he takes under this head is that unless the decision is set aside he will have suffered injustice through being subjected to unlawful deductions over recent years; and this, moreover, through the incompetence of the child support officer. She, in common apparently with all other child support officers, has been routinely failing to ask the relevant questions in respect of Schedule 4 payments and awards. Mr. Dollar indeed goes so far as to assert that the Secretary of State does not come before the court with clean hands, having consistently over the years not merely operated an incompetent system, but made misleading statements in that regard.

For my part I would reject all these contentions. The scheme of the legislation is plainly such that these five per cent or ten per cent deductions are not to be regarded
 


as adversely affecting the children's welfare. That such deductions are consistent with the children's welfare is necessarily implicit in the legislation. Nor does it seem to me in the least unjust that the appellant should be held liable to make these payments and not be relieved of them merely because he was not asked certain questions, the asking and answering of which would not have advantaged him one iota. In my judgment, the only reasonable and therefore permissible exercise of the discretion here was that dictated by the Commissioner's decision, namely to leave the original determination unrevised and in force.

Mr. Dollar seeks finally to advance a fourth contention, which is that the decision of 5 June 1995 was void and of no effect. I fail to see this as a discrete argument. Rather it seems to me one which I have already rejected when dealing with the earlier arguments. It is suggested that because when the decision was taken the child support officer had no information in respect of the regulation 28(1)(c) requirement, ie as to the appellant's position under Schedule 4, she could only properly have concluded that no determination could have been made for a deduction from his income support. That, however, seems to me essentially a reassertion of his earlier arguments as to voidness and ineffectiveness, simply with a different shade of lipstick.

Much of the argument has, I confess, seemed to me at times almost theological in its complexity. Realistically, there is but one point on this appeal: is there or is there not a discretion, on review of a determination reached in error of law, to uphold rather than revise or replace it? Unless only the court is required to strike down the decision here as void, I for my part have no doubt that it should stand. I share the Commissioner's view that there is a power on review to leave the initial decision intact. It is not in my judgment to be regarded as void.

Finally Mr. Dollar invites our attention to a passage in C B Lewis' "Judicial Remedies in Public Law" at page 292:

". . . the courts should not refuse relief unless the same decision would undoubtedly be reached irrespective of the error, and there is a clear countervailing public interest in not quashing the decision."

He does not, of course, concede that the discretion arises here in the first place; but if it does he asserts that, applying those principles, this particular decision should be quashed and not allowed to stand. I disagree. There can be no doubt that this same decision would undoubtedly have been reached had the child support officer carried out the procedural step omitted, and to my mind there is in this case a plain public interest in not quashing this determination. I see no possible reason why this appellant should gain at the expense of the general body of taxpayers merely because of the omission to have asked the pertinent questions, the answer to which would merely have confirmed the decision made. I would reject all the many arguments advanced before this court and dismiss this appeal.

LORD JUSTICE AULD: I agree

LORD JUSTICE THORPE: I agree.

Order: Appeal dismissed