UK Social Security and Child Support Commissioners' Decisions

R(CS) 2/02


Mr. E. Jacobs CCS/3184/1999

7.11.00

Departure direction - costs arising from long-term illness or disability - whether financial assistance includes social security benefits

The absent parent applied for departure in respect of costs arising from long-term illness or disability under regulation 15 of the Child Support Departure Direction and Consequential Amendments Regulations 1996. He was in receipt of disablement benefit. The Secretary of State deducted that benefit to calculate the net costs allowable because it was "financial assistance" within the meaning of regulation 15(3)(a). On appeal the tribunal confirmed that decision. The absent parent appealed to the Commissioner.

Held, allowing the appeal, that:

there is scope for regulation 15(3)(a) to operate if social security benefits are not covered by it;

two social security benefits are expressly dealt with in regulation 15(3)(b);

"financial assistance" for the purposes of regulation 15(3)(a) does not therefore include social security benefits.

DECISION OF THE CHILD SUPPORT COMMISSIONER

Decision

1. My decision is as follows. It is given under section 24(2) and (3)(d) of the Child Support Act 1991:

1 The decision of the Truro child support appeal tribunal held on 20 January 1999 is wrong in law.

2 Accordingly, I set it aside and refer the case to the Secretary of State for determination.

3 I direct the officer who determines this case on behalf of the Secretary of State to proceed in accordance with my interpretation of regulation 15(3)(a) of the Child Support Departure Direction and Consequential Amendments Regulations 1996. The officer will not be bound by the findings of fact made by the child support appeal tribunal, but may find them helpful in deciding whether to give a departure direction.

The appeal to the Commissioner

2. This case concerns an application for a departure direction from the formula assessment of child support maintenance. In the terminology of the child support legislation, the appellant is the absent parent and the applicant for the direction, and the second respondent is the parent with care. I shall refer to them in those terms.
3. This is an appeal to a Commissioner against the decision of the child support appeal tribunal brought by the absent parent with the leave of the tribunal's chairman.
4. The Secretary of State's written submission did not support the appeal. However, in view of the issue that arose I directed an oral hearing. It was held before me in London on 7 November 2000. Neither parent was able to attend. However, the Secretary of State was represented by Mr. L. Scoon of the Office of the Solicitor to the Departments of Health and Social Security. I am grateful to him for his argument.

The issue for decision

5. The absent parent applied for a departure direction in respect of the costs arising from a long-term illness or disability under regulation 15 of the Child Support Departure Direction and Consequential Amendments Regulations 1996. The costs relevant to an application under that head are the net costs. That means the extra costs arising from the disability in respect of specified matters, for example mobility and clothing, less certain monies available to the parent to meet those extra costs. The issue for me is whether the claimant's disablement benefit is to be deducted from his extra costs in reaching the net figure.
6. The Secretary of State deducted the amount of this benefit from the costs alleged to arise from the claimant's disability on the basis that it was "financial assistance received from any source in respect of his long-term illness or disability" (see regulation 15(3)(a)).
7. The absent parent argued that this was wrong, as the disablement benefit was taken into account as his income under the formula assessment. So, he argued, the same money was to be available both to pay child support maintenance and to meet the costs arising from his disability. The submission to the tribunal agreed with this argument, but submitted that the absent parent had not provided evidence of extra costs.
8. The child support appeal tribunal, however, confirmed the refusal to give a departure direction, recording that "we could see no way that we could reasonably apply a different interpretation to the regulations". The Secretary of State's written submission supported the tribunal's decision.

The Secretary of State's argument at the oral hearing

9. At the oral hearing, Mr. Scoon resiled from the Secretary of State's previous submission. He argued that although the wording of regulation 15(3)(a) was wide, it did not include disablement benefit or any other form of social security benefit. He gave two reasons.
10. The first reason was that "financial assistance" is not a phrase that is appropriate to include benefits and is not used in this way in legislation. He gave two examples of sources of financial assistance. One example was voluntary and charitable contributions, which are (wholly or partly) disregarded under paragraph 19 of Schedule 2 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. The other example was payment under an insurance policy. So, there is scope for regulation 15(3)(a) to operate even if social security benefits are not covered by it.
11. The second reason was that regulation 15(3)(b) expressly deals with disability living allowance and attendance allowance, which would not be necessary if those benefits were already covered by "financial assistance" in head (a).
12. I accept that argument, which avoids the apparent contradiction of expecting the same money to be available to finance both child support maintenance under the formula assessment and the extra costs of disability.
13. Although it is irrelevant to my decision, I note that my interpretation accords with the policy intention behind regulation 15(3).

Summary

14. The tribunal's decision was wrong in law, because it misinterpreted regulation 15(3)(a) of the Child Support Departure Direction and Consequential Amendments Regulations 1996. So, it must be set aside. I consider it more appropriate to refer the case to the Secretary of State for determination on the basis of my interpretation of regulation 15(3)(a) rather than to an appeal tribunal for a rehearing. If either parent is dissatisfied with the Secretary of State's decision, there is a right of appeal against it to an appeal tribunal.

Date: 7 November 2000 (signed) Mr. E. Jacobs

Commissioner