UK Social Security and Child Support Commissioners' Decisions

R(CS) 1/02


Mr. J. M. Henty CCS/5796/1997

26.7.00

Application for maintenance - authority to the Secretary of State to take action -prescribed benefit terminating before assessment - whether application continues to have effect

The parent with care made an application under section 6 of the Child Support Act 1991 while in receipt of a prescribed benefit. Changes of status regarding benefit, and two subsequent applications, followed. Child support maintenance was then assessed. The tribunal dismissed an appeal by the absent parent because the first application was a continuous one over which the tribunal had jurisdiction. The absent parent appealed to the Commissioner.

Held, dismissing the appeal, that:

the parent with care stays within the ambit of section 6 unless there is a request to the Secretary of State under sub-section (11) to cease acting;

the only method of revising any assessment made is by way of review;

an assessment will continue until it is cancelled or jurisdiction is lost;

neither of the subsequent applications can be construed as a request to the Secretary of State to cease acting.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. The appeal is dismissed. It seems to me that, in the limited circumstances, where there is a maintenance agreement or order made before 5 April 1993, an application under s. 6 can only be terminated where the claimant comes off a prescribed benefit and makes a request to the Secretary of State to cease acting under s. 6. I express no view on any more general application.
2. This is an appeal with the leave of the chairman from the decision of a CSAT dated 6 June 1997.
3. The absent parent, the former husband, ("AP") and the parent with care, the former wife, ("PWC") were married and had two children. They were divorced and, at pages 101/3, there can be found the Order of the County Court dated 20 November 1992, which provided, among other things, that the AP should pay £15 p.w. maintenance in respect of each child until their respective 17th birthdays. It is accepted, for the purposes of section 4(10) CSA 1991, that that is a maintenance order made before 5 April 1993.
4. (i) The PWC was in receipt of a prescribed benefit, and, on 14 February 1994, she made an application for maintenance, in accordance with section 6 of the Act. This application ("the First MAF") can be found at pps. 48/62.

(ii) At a date, some time in August 1994, the PWC came off benefit. On 8 January 1995, the PWC made a further application ("the Second MAF") and, at p. 77, she stated that she had applied for Family Credit (a prescribed benefit) and, at p. 123, she is recorded as having been in receipt of that benefit down to 12 August 1995.

(iii) On 6 September 1995, a further MAF was issued ("the Third MAF"). There is a record of a telephone conversation that the CSO had with the PWC at p. 112 as follows:

" (a) [the PWC] wishes to continue as a private client

(b) will forward copy of Court Order ...

(c) agreed to complete new MAF as private client."

The letter of 7 September 1995 (p. 111) from the CSO to PWC confirms this arrangement.

(iv) On 30 October 1995, the CSO decided that the AP was liable to pay child support maintenance of £104.70 p.w. in respect of the two children, from the effective date of 1 November 1995. The second CSO refused to review that decision, since the AP had not provided any relevant further information. Whatever the position may have been about the PWC's entitlement to a prescribed benefit before, it is clear that, as at the date of the decision and at the effective date, the PWC was not in receipt of a prescribed benefit.

5. From that, the AP appealed and, on 6 June 1997, the CSAT heard and dismissed his appeal on the broad ground that the first MAF was made under section 6, and was a continuous one over which the tribunal had jurisdiction. Accordingly, the AP did not have the benefit of section 4(10) - as to which please see below.
6. Before dealing with what I regard as the substantive legal issue, I should deal with a point raised by the AP concerning section 11(1A) and 11(1B) CSA. That provides that, if an application is made under section 6 and a claim for a prescribed benefit is disallowed or withdrawn, then the Secretary of State shall treat the application as if it had not been made. Quite simply, the claim for a prescribed benefit in this case has not been disallowed or withdrawn: all that has happened is that the award has ceased. That does not trigger off the subsections.
7. I now turn to what is the substantive legal issue. On 14 February 2000, I directed an oral hearing which I held on 10 May 2000. By letter, the PWC explained that she was unable to attend. The AP attended in person, and the Secretary of State appeared by Mr. Maurici of Counsel, who helpfully provided a chronology and outline submission at the start of the hearing. I should add that, in the initial submission of 4 March 1998, the CSO supported the appeal. Following a direction by the legal officer on the effect of the decision of the Divisional Court in R v. Secretary of State for Social Security ex parte Harris (1 July 1998) - a transcript can be found at pps. 217/231 - the CSO resiled from his first submission and opposed the appeal. However, before me the Secretary of State has reverted to support of the appeal. In any event, I am most grateful to Mr. Maurici.
8. Section 6 CSA deals with applications made by persons in cases where they are in receipt of a prescribed benefit. Subsection (1) provides that such a person shall in those circumstances authorise the Secretary of State to take action to recover maintenance from the absent parent. Subsection (11) provides:

"(11) A person with care who has authorised the Secretary of State under subsection (1) but who subsequently ceases to fall within that subsection may request the Secretary of State to cease acting under this section."

9. If such a person does make a request, it seems to me that the Secretary of State ceases to act on the application. That being so, if a parent with care wished to continue with the application, there could be a further application under section 4. But if no such request is made - and the evidence, in this case, is that no such request was expressly made, the application continuing on "a private client basis" - the Secretary of State will continue to act. Moreover, once an assessment has been made, the fact that a parent with care may have come off a prescribed benefit will not affect the assessment. The assessment can only be revised on review. But, although the Secretary of State, in this case, continued on "a private client basis", nevertheless he required a new MAF to be completed. The effect of section 6 was addressed by Scott Baker J in Harris thus (227):

"It seems to me, putting matters shortly, the application under s. 6 is what presses the on button for the Secretary of State to take action under the Child Support Act in cases such as the present. Nowhere in the legislation can I find anything which presses the off button to stop matters proceeding to the point where the child support officer has to make the assessment. It could have happened if the applicant had, having come off benefit, made a request to the Secretary of State under section 6(11) but she chose not to do so and in my judgment she was perfectly entitled not to do so because, having been brought under the umbrella of the Act, as a result of being in receipt of the relevant benefit, she was entitled to remain under the umbrella to take the benefit of the legislation".

As against this Mr. Maurici says that the third MAF in this case, made under section 4, distinguishes this case from that.

10. Section 4, on the other hand, applies to cases where a parent with care is not in receipt of a prescribed benefit. Subsection (10) came into force on 4 September 1995 but its predecessor, to similar effect, can be found in para. 2, Schedule 1 to the Commencement and Transitional Provisions Order 1992. I am satisfied by Mr. Maurici's researches that, at all material times since the introduction of child support, the subsection, or its predecessor, was in force. I would note that the significance of the date, 5 April 1993, is that that is the date on which the relevant provisions of the CSA came into effect.

Subsection (10) of section 4 provides as follows:

"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 written maintenance agreement made before 5 April 1993, or a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent ... "

It is quite plain that the intention was to preserve maintenance settlements negotiated or ordered before the Act came into force. The "voluntary" ability to apply for an assessment under section 4 was thus to be limited, and one can see the reason for that. There, is however, no similar provision in section 6 where the PWC is on a prescribed benefit and, in those circumstances, it is quite plain that an assessment under section 6 is not a ground for interfering with the original settlement - see Crozier v. Crozier 1994 Fam. 114.

Unless there is some route out, it seems to me that:

(i) Once a PWC is within the ambit of section 6, he or she stays there unless there is a request under subsection (11);

(ii) Once an assessment has been made, the only method of revising it is by way of review; and

(iii) An assessment will continue until cancelled (see para. 16 of Schedule 1), or jurisdiction is lost.

11. Now Mr. Maurici did suggest a route out relying, as did the first CSO on 4 April 1998, on reg. 4 of, and para. 1 of the second schedule to, the MAP Regs. That para. provides:

"1. (1) Where a person makes an effective application for a maintenance assessment under section 4 or 6 of the Act and, before that assessment is made, makes a subsequent effective application under that section with respect to the same absent parent or person with care, as the case may be, those applications shall be treated as a single application."

(Pausing there, that appears to be relatively simple and acknowledges the fact that a PWC can make more than one application before assessment. Circumstances can always change.)

" (2) Where a PCW makes an effective application for a maintenance assessment-

(a) under section 4 of the Act; or

(b) under section 6 of the Act

and, before that assessment is made, makes a subsequent effective application-

(c) in a case falling within paragraph (a) under section (6) of the Act; or

(d) in a case falling within paragraph (b) under section 4 of the Act-"

(Pausing there, it is clearly envisaged that a PWC may make a further application, before assessment, under section 6, where the original application had been made under section 4, and conversely a further application under section 4, where the original application had been under section 6.)

...

"those applications shall, if the parent with care does not cease to fall within section 6(1) of the Act, be treated as a single application under section 6 of the Act, and shall otherwise be treated as a single application under section 4 of the Act."

If there had been no pre-5 April 1993 order, there would appear to be no difficulty, for it is fully envisaged that a section 6 application can in effect be turned into a section 4 application and, conversely, the other way round. However, section 4(10) expressly provides that no application may be made under section 4 if there is in force a maintenance agreement or order before 5 April 1993.

12. As I have said, the intention of section 4(10) was to preserve the existing maintenance arrangements. I have some doubts whether it was intended that once a parent with care came off a prescribed benefit before a decision was made by the CSO, he or she could still rely on section 6 and avoid the limitation contained in section 4(10). But it seems to me that the limitation in section 4(10) must be accorded its literal meaning, with the effect that the second and third MAFs were ineffective. Moreover, if Mr. Maurici's submission relying on para. 1, Schedule 2 to the MAP Regs. escapes from that situation, it can only be by reason that the later MAF is an implied request under subsection (11) of section 6. That para. only applies to effective applications. As s. 4(10) reduced the second and third MAF's effective. I am not prepared to construe either the second or third MAFs as such a request in this case. Moreover, it will be remembered that after the second MAF the PWC went back on a prescribed benefit again for a while. The PWC's mind was not directed to that issue by the Secretary of State. He merely offered to continue on a private client basis. He did not say that thereby the claimant would, as it were, move from section 6 to section 4 and lose the benefit of s. 6. That would have to be expressly pointed out and the documents at 111 and 112 are inconsistent with such a conclusion. The tribunal were correct in this analysis. In the words of Scott Baker J in Harris, the PWC "chose not to do so [i.e. make a request under section 6(11)] and in my judgment she was perfectly entitled not to do so because, having been brought under the umbrella of the Act, as a result of being in receipt of the relevant benefit, she was entitled to remain under the umbrella to take the benefit of the legislation." If the PWC opted for the section 4 procedure, in effect, she would cease to have the protection of the Act and would be thrown back on to the maintenance provisions in the Court Order of 20 November 1992.
13. The PWC did not attend the hearing. The AP produced for the hearing a helpful summary of points to be made by him. The Secretary of State produced a most useful Chronology and Outline. Since the PWC was not present, I directed them to be served on her, granting her 14 days from receipt of the same in which to make such observations as she might wish. I also noted, in the direction, that the Secretary of State had resiled from his former position and now supported the AP's appeal. No observations have been received and accordingly I sign and send out this decision.

Date: 26 July 2000 (signed) Mr. J. M. Henty

Commissioner