UK Social Security and Child Support Commissioners' Decisions

R(CS) 5/00
(Secretary of State for Social Security v. Maddocks )

Mr. R. J. C. Angus CCS/3326/1997
23.3.99

CA (Morritt and Sedley LJJ, and
Sir Christopher Staughton)

21.6.00

Maintenance assessment - qualifying children - special case of person caring for children of more than one absent parent - whether same definition of 'qualifying children' applies

The first respondent, the absent parent, appealed to the Commissioner. The Commissioner followed an earlier decision of another Commissioner, who had decided the appeal on the basis that the effect of paragraph 10 of Schedule 1 to the Child Support Act 1991 is that a qualifying child within the meaning of sections 3(1) and 54 of the Act is not a qualifying child to whom regulation 23 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 can apply until the child is included in a maintenance application. The respondents appealed to the Court of Appeal.

Held, allowing the appeal, that:

the general definition of qualifying children in the Act is limited by paragraph 10 of Schedule 1 to the Act for certain purposes;

paragraph 10 applies to Part II of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 but not to Part III;

the limited class of qualifying children in paragraph 10 does not therefore apply to regulation 23 so that regulation 23 is applicable in the present case.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. The decision of the child support appeal tribunal dated 13 November 1996 is erroneous in law. I set that decision aside and, as empowered by section 24(3)(d) of the Child Support Act 1991, I refer the case to a child support officer for reassessment in accordance with the following directions:

The parties' respective incomes from earnings, pensions and Social Security benefits shall be calculated in accordance with paragraphs 9 to 13 of this decision.

The child support officer shall check that all periods of cohabitation between the second respondent and the father of the child born to them on 25 September 1995 have been taken into account and make any necessary adjustment to the maintenance assessment.

The child support officer shall deal with the cessation of the second respondent's one parent benefit in accordance with paragraph 21 of this decision and give effect to the relevant child's attainment of age 19 in accordance with paragraph 20.

The child support officer shall take account of the appellant's home improvement loan capital repayments in accordance with paragraph 22 of this decision.

The child support officer shall comply with the directions of the tribunal of 13 November 1996 in so far as those directions have not yet been put into effect and in so far as not inconsistent with my directions.

2. The appellant is the father of two children who are qualifying children within the meaning of section 3 of the Child Support Act 1991 and is, for the purposes of the Act, the absent parent of those children. The first respondent to the appeal is the child support officer now concerned. The second respondent is the mother of the children who is, for the purposes of the Act, the parent with care.
3. The appeal is taken, with the leave of a child support Commissioner, against the tribunal's decision upholding an appeal by the second respondent and remitting the case to the Secretary of State for reassessment by a child support officer in accordance with the following directions:

(a) No account is to be taken of the interest free loan taken out by the appellant for the purpose of purchasing a kitchen,

(b) The appellant's average net weekly income to be calculated on the basis that his salary was paid four weekly rather than calendar monthly,

(c) In calculating the second respondent's average net weekly income family credit at the rate in payment from 26 October 1993 to 25 April 1994 should be taken into account, not family credit applicable to any later period,

(d) The child support officer to investigate whether at any date relevant to this appeal the appellant's partner was receiving a housing allowance and, if so, that allowance to be taken into account in assessing her income if that has not already been done.

4. My decision on this appeal has been considerably delayed because one of the issues, the correct treatment of the injury element in a retirement pension, arose in an other appeal in which the child support officer had taken a view contrary to that of the child support officer concerned in this appeal. I held an oral hearing in that other appeal at which the point was argued and I have delayed my decision on this appeal until the other one could be decided.
5. In this case the second respondent, in compliance with a requirement of the Secretary of State acting under section 6 of the 1991 Act, made an application for the assessment of child support in respect of the two qualifying children on 10 November 1993. The maintenance enquiry form was not issued to the appellant until 22 November 1994 and was completed by him on 28 November 1994. On 20 July 1995 the child support officer, taking account of the birth of a child to the appellant and his partner on 25 June 1995, assessed his liability for child maintenance in respect of the two qualifying children at £17.60 from an effective date of 22 July 1995. The second respondent applied on 18 August 1995 for that assessment to be reviewed but on 10 September 1995 a second child support officer refused to review and the second respondent appealed to the child support appeal tribunal.
6. The tribunal is recorded as having made the following findings in fact:

"We find that the history is accurately summarised in paragraphs 1 to 8 inclusive of the submission. We find that the errors identified in paragraph 20 of the submission are indeed errors which require to be corrected. In particular we find that the loan taken out by [the appellant] for the purpose of purchasing a kitchen was not subject to interest, and that therefore no element of the repayments of that loan can be taken into account in assessing his housing costs. There is insufficient evidence before us to enable us to assess whether a housing allowance paid to [the appellant's] partner has or has not or should or should not be taken into account in calculating his exempt income. Otherwise the figures relied on by the child support officer in calculating the assessment are correct, and the periods chosen for assessment are appropriate.

The assessment has subsequently been reviewed to take into account a transfer of property between [the appellant and the second respondent] and [the second respondent] has separately appealed that review decision".

The tribunal's reasons for its decision are recorded as:

"[The second respondent] has invited us to consider today her challenge to the review decision apparently taken in or about August 1996 to take into account in the assessment the effect of the transfer of property which occurred in 1994. We do not think it appropriate for us to make any direction in this regard. There is insufficient information available to us today to come to any conclusion on this point, and in any event it would appear to have arisen by way of a review decision subsequent to the assessment under appeal. [The appellant] has not attended today and thus has had no adequate notice of this point. [The second respondent] has told us that she has separately appealed that decision, and we think it appropriate for those issues to be considered under that appeal rather than under this.

We agree with the author of the submission that the errors identified at paragraph 20 need to be corrected, and we take the opportunity of remitting the case to direct that there be an investigation into whether an accurate figure has been used in assessing the income of [the appellant's] partner. [The second respondent has raised the question whether the housing allowance paid to her has or has not been taken into account.]

We agree with the author of the submission that the assessment is based on a fixed formula laid down by law, and neither we nor the child support officer have any jurisdiction to depart from that formula in the circumstances of this case."

7. The grounds for appealing the tribunal's decision are stated by the appellant to be that:

"The parent with care's earnings should have been calculated as at the effective date of the assessment (July 1995) and not the relevant week in November 1993;

If the second respondent did not begin living with her current partner until May 1996 then that partner should be regarded as an absent parent from September 1995, the date when their child was born, and the maintenance assessment should have been calculated to reflect the fact that there were three absent parents in relation to the children in the care of the second respondent;

The second respondent's son, J, by a further relationship became 19 on 6 November 1995 and should therefore have been removed from the maintenance requirement;

The child support officer had accepted the second respondent's statement in respect for the amount for her mortgage endowment policy without seeking confirmation from the insurance company;

One parent benefit has been included in the calculation of the second respondent's net income when she is no longer a lone parent;

The capital repayments in respect of the appellant's home improvement loan should be included in his housing costs from 22 January 1996;

The tribunal failed to take account of the statements made by the child support officer in his supplementary submission; and

The tribunal did not observe the rules of natural justice in that it took into account only the errors raised by the child support officer and the issues raised by the second respondent."

8. The first respondent supports the appeal in submissions dated 1 December 1997 and 8 June 1998. I need not set out those submissions in detail here as the points on which I either agree or disagree with them will be apparent from the following paragraphs. Submissions have been made on behalf of the second respondent. I have read those but they are so voluminous as to be unhelpful and could not be referred to in any detail here without extending this decision to an unacceptable length. Where the second respondent's submissions are accepted or specifically rejected will be apparent from the paragraphs below and where it is not apparent that I have dealt with a point raised in those submissions it is because I regard it as irrelevant, superfluous or already covered by the appellant's or the first respondent's submissions.

Calculation of income

9. The appellant's complaint under this head arises from the fact that the child support officer who made the assessment under appeal calculated the respective net incomes of the parties by reference to 1995 figures for the appellant's pension and for the second respondent's family credit but used 1993 figures for the second respondent's earnings. The child support officer who made the submission to the tribunal recommended that 1993 figures should be used for the second respondent's family credit. That compounded the error in the first child support officer's approach. Firstly, the appellant's pension is not "earnings" as defined in paragraph 1(1) of Schedule 1 to the Child Support (Maintenance Assessment and Special Cases) Regulations 1992. By virtue of paragraph 9 of that schedule a pension is "other income" for the purposes of calculating net income. Secondly, as the first respondent submits, the purpose of the maintenance assessment and special cases regulations is to arrive at realistic figures for the respective incomes of the parties affected by a maintenance assessment. Paragraphs 2(1) and 16(1) of the schedule require that the initial estimate of earnings and pensions should be made by reference to the figures current in the relevant week. Paragraph 6(3) provides that the amount of family credit will be calculated by reference to the rate of benefit applicable at the effective date. In this case, therefore, the incomes of the parties derived from earnings and pensions will be calculated initially by reference to 1993 figures and that from Social Security benefits by reference to 1994 figures, the effective date of the first assessment being fixed by reference to the date of issue and return of the Maintenance Enquiry Form.
10. However, paragraph 2(4) and 16(6) of the schedule provide that where the initial calculation does not accurately reflect the normal amount of the earnings or other income of a party affected by a maintenance assessment the calculation shall be made by reference to such other period as may in the particular case enable the earnings or other income to be determined more accurately. I agree with the first respondent that "normal" as used in the schedule means what is reasonably contemporary with the period in which maintenance will be paid under the assessment in question and reasonably relevant to the circumstances of the parties in that period. I do not agree with the assertion in the submission on behalf of the second respondent that the first respondent's argument on this point is semantic. Accordingly, as the effective date of the maintenance assessment under appeal in this case is 22 July 1995 it is the 1995 figures which are applicable in respect of earnings, pensions and Social Security benefits.
11. The first respondent, in paragraph 14 of her submission of 1 December 1997, notes that Commissioner's decision CCS/15532/1996 did not seem to support her view that paragraphs 2(4) of the schedule could be invoked to justify calculating a party's income by reference to earnings figures for a period closer to the effective date of the assessment than to the relevant week. I agree that CCS/15532/1996 gives that impression but I agree also with the first respondent's suggestion that paragraph 2(4) does not seem to have been drawn to the Commissioner's notice in that case. Moreover, in CCS/2750/1995, where the corresponding paragraph 2(3) in the earlier version of the regulations was drawn to the Commissioner's attention, he adopted the approach which the first respondent now recommends in this case. It is, therefore, CCS/2750/1995 which should be followed.

Injury element in a retirement pension

12. In paragraph 38 of her submission of 1 December 1997 the first respondent makes the point that the appellant's retirement pension should have been taken into account as other income in terms of paragraph 9 of the schedule rather than as earnings. Also, she suggests that it is necessary to consider whether any part of the pension falls to be disregarded in the calculation of income by virtue of paragraph 5 of Schedule 2 to the regulations as being compensation for personal injury. The issue in the other appeal to which I refer in paragraph 4 above was whether or not the injury element in a fireman's retirement pension should be disregarded as coming within paragraph 5. That appeal is on file CCS/3510/1997 [R(CS) 2/00]. I decided in that case that the injury element in a retirement pension was not to be disregarded by virtue of paragraph 5 of the Schedule 2. I have attached to this decision a copy of CCS/3510/1997 [R(CS) 2/00].
13. Although CCS/3510/1997 [R(CS) 2/00] concerned a fireman's pension the principal of that decision applies to any retirement pension and is to be found in paragraphs 16 and 17 thereof. It is simply that payments of the injury element in a retirement pension are payments of pension and are not the same thing as payments of compensation for personal injury. In this case it seems from the submissions of the first respondent the appellant and the second respondent that subsequent to the decision of the tribunal the maintenance assessment was revised in order to exclude the injury element in his retirement pension from the calculation of the appellant's income. If there has been such a review the resultant assessment is wrong in law and would normally fall to be reviewed again to bring the injury element in the appellant's pension back into the calculation of his net income. However, I have granted to the appellant in CCS/3510/1997 [R(CS) 2/00] leave to appeal to the Court of Appeal. The child support officer should, therefore, await the Court of Appeal decision before reviewing in this respect.
14. The appellant has argued that the question of his pension is outwith my jurisdiction because by the time it had been raised in the submissions to me it had already been decided by a child support officer and section 28(4) of the 1991 Act did not apply. I do not accept that argument. The only matters which are not brought within my jurisdiction by section 24(8) are matters which are not within the ambit of the appeal. The pension question is within the ambit of the appeal to me because it was a matter with which the tribunal could have dealt but did not.

Effect of the birth of the second respondent's child on 25 September 1995

15. The appellant's contention is that the fact that the birth certificate of the child born to the second respondent on 25 September 1995 quotes one address for the second respondent and for the father of the child indicates that the mother and father were cohabiting before and after the birth of their child and that the household's resources should be calculated accordingly. However, the appellant argues also that if the second respondent and the child's father were not cohabiting at that time, the father should, from the birth of the child, be regarded as a third absent parent in relation to the children in the care of the second respondent. The result of that, the appellant thinks would be an adjustment of the maintenance requirement in respect of the two qualifying children to comply with regulation 23 of the MASC Regulations.
16. I agree with the first respondent that the statement of a common address on the child's birth certificate is an indication of the parents' possible cohabitation but not proof of cohabitation. I agree also that as the effective date of the assessment is 22 July 1995 any change of circumstances on 25 September 1995 could be given effect only from the later date. Nevertheless, as the assessment has to be revised the child support officer should now investigate the question of the date from which the second respondent and her partner cohabited and make any adjustment to the assessment which is appropriate in the light of his findings.
17. In CCS/8065/1995 it was decided that the effect of paragraph 10 of Schedule 1 to the 1991 Act is that, a qualifying child, within the meaning of sections 3(1) and 54, is not a qualifying child to whom regulation 23 of the MASC Regulations can apply until it is included in a maintenance application. There is nothing in the papers to indicate that the second respondent's child born on 25 September 1995 has ever been included in a maintenance application. CCS/8065/1995 was set aside by the Court of Appeal but that was by consent of the parties, not after consideration of the issues, and without any indication of the reasons for the setting aside. I assume, therefore, that the consents to the setting aside were for reasons relating to the facts of the case and that the Commissioner's decision remains good law.
18. The first respondent argues that as the parent with care in CCS/8065/1995 was acting under section 4 of the 1991 Act she could choose whether or not to make a maintenance application and could choose which children to include in it whereas the second respondent in this case was required by the Secretary of State, acting under section 6, to apply for maintenance and had no choice as to the children to be included. This case is, therefore, the first respondent argues, distinguishable from CCS/8065/1995. I do not think that there is such a distinction. As I understand the facts of this case no application for an assessment has been made in respect of any of the second respondent's children other than those of whom the appellant is the father. Until an application is made in respect of those other children no maintenance assessment falls to be made with respect to them, notwithstanding that the Secretary of State has invoked section 6 of the 1991 Act. Therefore the restriction on the children who are "qualifying children" for the purposes of the calculation of maintenance assessments effected by paragraph 10 of Schedule 1 to the 1991 Act (explained in CCS/8065/1995) applies in this case and regulation 23 of the MASC regulations cannot be applied to the maintenance requirement of the appellant's qualifying children until one or more of the other children in the care of the second respondent become the subject of a maintenance application or applications.

Second respondent's endowment policy

19. I agree with the first respondent that the child support officer was not obliged to verify the details of the endowment policy with the insurance company and can rely on the second respondent's information on that matter unless he has reason to think that it may be incorrect. It is, of course, open to the appellant to produce, if he has it, evidence contradicting the second respondent's evidence in relation to the policy.

Relevant child attaining age 19.

20. I agree with the first respondent that if, as the appellant states, one of the second respondent's children by her earlier relationship attained the age of 19 on 6 November 1995 that child would from that date no longer be a relevant child for the purposes of the Child Support legislation and the second respondent's exempt income would have to be adjusted from that date. As the first respondent submits, the relevant change of circumstances which results from this takes effect only from 25 September 1995 i.e. subsequent to the effective date of the current assessment. However, as the assessment requires to be revised the child support officer should look into this matter and make any necessary revision with effect from that date.

One parent benefit

21. As the first respondent submits, the second respondent's one parent benefit is, by virtue of paragraph 6 of Schedule 1 to the MASC Regulations, income for the purposes of calculating the second respondent's net income. If payment of that benefit stopped on 6 November 1995 her net income fell to be recalculated. Again the change post dates the effective date of the current assessment but should be taken into account in the child support officer's revisal of that assessment.

Home improvement loan

22. I agree with the first respondent that as at the date of its hearing the tribunal was correct not to allow as part of the appellant's housing costs the repayments of capital on his home improvement loan as the legislative change which permitted such payments to be taken into account as housing costs was not made until 21 January 1996, some time after the effective date of the current assessment. However, as that assessment now has to be reviewed the child support officer should allow the capital repayments as from 22 January 1996.

Child support officer's supplementary submission to the tribunal

23. I agree with the first respondent that the tribunal does not seem to have taken account of the additional submission made to it by the child support officer then concerned or matters raised by the appellant himself. That was an error in law on the part of the tribunal.
24. For the foregoing reasons the appeal succeeds in as much as I have set the tribunal's decision aside and my decision and directions are in the paragraph 1 above.

Date: 23 March 1999 (signed) Mr. R. J. C. Angus
Commissioner

The Secretary of State appealed to the Court of Appeal. The decision of the Court of Appeal follows.


 


DECISION OF THE COURT OF APPEAL

Miss N. Lieven (instructed by Department of Health and Social Security, London WC2A 2LS) appeared on behalf of the Appellant.

The Respondent did not attend and was not represented.

LORD JUSTICE MORRITT:

25. Sir Christopher Staughton will give the first judgment.

SIR CHRISTOPHER STAUGHTON:

26. This is as Lord Diplock would have said a simple case, up to a point. Mrs. Bryan, who features as the second respondent to this appeal, although she is not here today, has a total of five children by three different fathers. The first two I shall refer to as "J" and "N". J was born in 1976, so that by the time of the events with which we are concerned he was out of the reach of child support. The second child was N. Mrs. Bryan then married Mr. Maddocks and had two children by him, "H" and "A", who were born in 1986 and 1989. Mrs. Bryan and Mr. Maddocks parted in September 1992. Thereafter, Mrs. Bryan had a child on 25 September 1995 by another father who, it is found, was not living with her at the time material to this case. Mr. Maddocks also had another child by a different cohabitee.
27. In November 1993 Mrs. Bryan applied for child support to be assessed and paid to her by Mr. Maddocks in respect of the two children, H and A, of which they were both the parents. It was assessed by a child support officer in the sum of £17.60 I take that to be per week. The mother appealed to the child support appeal tribunal. A decision was rendered on 12 November 1996. It was that the assessment should be remitted to a child support officer with directions on a number of points. Those are not material for present purposes. From that decision Mr. Maddocks appealed to a child support Commissioner, Mr. Angus. His appeal again was allowed, and the case was again referred to a child support officer for reassessment on a number of points. One of those points was that the child support officer should follow the decision of another Commissioner, Mrs. Commissioner Heggs, in Harper v. Child Support Officer to which I will refer in a moment.
28. Mr. Commissioner Angus said about that decision:

"It was decided that the effect of paragraph 10 of Schedule 1 to the 1991 Act is that, a qualifying child within the meaning of sections 3(1) and 54 is not a qualifying child to whom regulation 23 of MASC Regulations can apply ..."

29. He then goes on to say that the decision:

"... was set aside by the Court of Appeal but that was by consent of the parties, not after consideration of the issues, and without any indication of the reasons for the setting aside. I assume, therefore, that the consents to the setting aside were for reasons relating to the facts of the case and that the Commissioner's decision remains good law."

30. So Commissioner Angus followed the previous decision of Commissioner Heggs. We have to now consider whether both of those decisions were right in law or not. The Secretary of State applied for and was granted permission to appeal to this Court. He argues that Mrs. Heggs' decision was wrong, and says that it was overruled by this Court.
31. The issue involves consideration of the legislation. Section 3 of the Child Support Act 1991 provides:

"3(1) A child is a "qualifying child" if–

(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.

(2) The parent of any child is an 'absent parent', in relation to him, 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."

32. Broadly speaking, and I emphasise that, we are dealing here with children (1) who are living with somebody who has care of them; and (2) one of whose parents at least is not living in the same household.
33. Section 42 provides:

"(1) The Secretary of State may by regulations provide that in prescribed circumstances a case is to be treated as a special case for the purposes of this Act.

(2) Those regulations may, for example, provide the following special cases - (e) the person with care has care of more than one qualifying child and there is more than one absent parent in relation to those children."

34. So there is a special case when there are two or more qualifying children with a person who has care of them and there are at least two absent parents in relation to those children; that is the special case, or maybe. Section 52 is the section which deals with the regulations.
35. One then turns to Schedule 1 which is headed Maintenance Assessments. Part I calculates child support maintenance. Paragraph 10 at the end of Part I provides:

"References in this Part of this Schedule to 'qualifying children' are to those qualifying children with respect to whom the maintenance assessment falls to be made."

36. The detailed provisions in Part I of the Schedule all relate to the calculation of the maintenance. There are a number of formulae provided for that purpose and a number of matters which are to be prescribed specifically set by the regulations.
37. Paragraph 10 of Schedule 1 limits the reference to qualifying children, which has in general the meaning attributed to it in section 3(1), to a class of qualifying children, that is to say those qualifying children with respect to whom the maintenance assessment falls to be made. It has been said that there are two definitions in the Act which are different. I would not approach it in that way. I would say that the general definition is in section 3(1), but that is limited in the way and to the extent provided in paragraph 10 of Schedule 1 for certain purposes.
38. I then turn to the regulations, which are called The Child Support (Maintenance Assessments and Special Cases) Regulations 1992 made by the Secretary of State for Social Security. There are various powers to make regulations in the Act and in the Schedule. Part 1 of the regulations is headed "General". Then there is Part II headed "Calculation or Estimation of Child Support Maintenance". That deals with details relating to the formulae in Schedule 1 of the Act in a number of respects. Part 3 of the regulations is headed "Special cases". That contains regulation 23:

"(1) Where the circumstances of a case are that...

(a) a person is a person with care in relation to two or more qualifying children; and

(b) in relation to at least two of those children there are different persons who are absent parents or persons treated as absent parents by regulation 20(2);

that case shall be treated as a special case for the purposes of the Act."

39. There are then in sub-paragraph 2, 3 and 4 provisions of the considerable complication which have the effect, we are assured by Miss Lieven, that where the regulations apply and there is more than one absent parent the burden on one of the absent parents will be reduced from what it otherwise would be.
40. The problem in this case is that Mrs. Commissioner Heggs, who was followed by Mr. Commissioner Angus, took the view that the definition or, as I would say, the limited class of qualifying children described in paragraph 10 of Schedule 1 should be applied when considering regulation 23. The effect of that would be in this case that there were not two absent parents, because only the children H and A were the subject of the maintenance application and they were the children only of Mr. Maddocks and Mrs. Brown; so there was only one absent parent if the limited class of qualifying children in Schedule 1 applies to regulation 23. The contrary view is that the words "qualifying children" in regulation 23 are not affected by paragraph 10 of Schedule 1. They do not have to be in the limited class. All they need to be is qualifying children within the definition of section 3(1).
41. It can be said in favour of the latter argument that the limited class in Schedule 1, paragraph 10, is evidently to be applied when considering Part II of the regulations which deals with calculation of child support maintenance and provides the details to be applied in operating Schedule 1. One looks, for example, at paragraph 3(1)(a) of the regulations which provide:
42. "The amounts to be taken into account for the purpose of calculating AG in the formula set out in paragraph 1(2) of Schedule 1 to the Act are-

(a) with respect to each qualifying child, an amount equal to the amount specified in column (2) of paragraph 2 of the relevant Schedule for a person of the same age (income support personal allowance for child or young person)".

43. Evidently "qualifying child" in that sub-paragraph has to be a qualifying child in the limited class provided by paragraph 10 of Schedule 1.
44. So if the limited class applies to Part II of the regulations, should it not also apply to Part III? One might have thought at first sight that that must be the case; but Miss Lieven has explained to us that Part III in dealing with special cases is quite distinct from Part II which is filling in the details in Part I of Schedule 1. She puts forward two arguments in support of that conclusion.


 


45. First, she says that paragraph 10 of Schedule 1 expressly says:

"References in this Part of this Schedule."

46. It is reasonable to apply that to Part II of the regulations which are supplementing Part I of the Schedule but not further than that. Secondly, she says that in general, children should be supported by their parents, and an absent parent should not be made liable for other children of which he is not the parent. That is a general principle; it seems good sense, although I go very far from saying that it applies in all respects either in this legislation or anywhere else.
47. The effect of those arguments has persuaded me that the limitation in paragraph 10 of Schedule 1 does not apply to regulation 23 in Part III of the regulations. The effect of that is that regulation 23 does apply in this case because there are children of two different absent parents and the provisions of regulation 23 take effect to impose some limit on the amount that Mr. Maddocks has to pay. Accordingly I would reverse the decision of Mr. Commissioner Angus on that point and remit the case to the child support officer with the additional direction that regulation 23 is to be applied. The effect of that is also that I disagree with the decision of Mrs. Commissioner Heggs.
48. We were invited to consider the effect of what happened in Harper v. Child Support Officer. It was taken before this Court by consent. The decision was set aside and the provisions were made in a consent order; but for my part I would not enter on that today.

LORD JUSTICE MORRITT:

49. I agree.

LORD JUSTICE SEDLEY:

50. I also agree.

Order: Appeal allowed; no order for costs.