UK Social Security and Child Support Commissioners' Decisions

THE CHILD SUPPORT COMMISSIONERS Commissioner's Case No: CCS/7555/1999 CHILD SUPPORT ACTS 1991 AND 1995 SOCIAL SECURITY ACT 1998 APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW DECISION OF THE CHILD SUPPORT COMMISSIONER MR COMMISSIONER JACOBS


 


Decision:

1. My decision is as follows. It is given under section 24(2) and (3)(d) of the Child Support Act 1991.
2. .1 The decision of the Horsham child support appeal tribunal held on 8^th March 1999 is wrong in law.
3. .2 Accordingly, I set it aside and refer the case to a differently constituted appeal tribunal for determination.
4. .3 I give the following directions to the appeal tribunal that rehears this case. The appeal tribunal must investigate and determine all of the issues raised by the parties that are within its jurisdiction, together with all other issues arising from the evidence or the circumstances of the case. In particular, the appeal tribunal must apply paragraphs 21 and 22 and follow my decisions in CCS/3543/1998 and CCS/4885/1998 (dealing with the just and equitable requirement and 'income' in regulation 40(7) of the Child Support Departure Direction and Consequential Amendments Regulations 1996). Copies of those decisions must be added to the papers.

Before this case is listed for rehearing, I direct that it must be put before a legally qualified panel member to consider whether it is necessary or desirable to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to identify the documentary evidence that should be produced for the rehearing.

The parties

5. In the terminology of the child support legislation, the appellant and the applicant for the direction is the parent with care, and the second respondent is the absent parent. I shall refer to them in those terms.

The legislation

6. This case concerns a departure direction from the formula assessment of the child support maintenance payable by the absent parent. The relevant legislation is contained in the Child Support Act 1991 and the Child Support Departure Direction and Consequential Amendments Regulations 1996. References are to those provisions unless otherwise stated.

The history of the case

7. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the parent with care with the leave of a Commissioner. The Secretary of State supports the appeal. The parents have both made observations on the appeal. Not surprisingly, those observations have not been directed at the legal issue that arises for decision.

The Secretary of State's determination of the application

8. The application for a departure direction was made under two heads: (i) unreasonably high housing costs and (ii) partner's contribution to housing costs. I need only deal with head (ii).
9. Head (ii) is governed by regulation 27. The Secretary of State determined that the absent parent's partner could contribution towards 99% of his housing costs. However, the officer concerned calculated that this would not alter the absent parent's liability for child support maintenance. So, no direction was given under this head and the application was rejected. See sections 28B(2) and 28F(4) and regulation 7.

The appeal to the appeal tribunal

10. The parent with care appealed against this decision to a child support appeal tribunal.
11. The Secretary of State submitted that a mistake had been made in calculating the effect of a departure direction under regulation 27. The officer concerned had based the calculation on a contribution of 1% from the absent parent's partner instead of a contribution of 99%. If this mistake had not been made, the minimum impact condition would have been satisfied and the Secretary of State should have considered whether it was just and equitable to give a direction.
12. On 8^th March 1999, the appeal tribunal allowed the appeal and directed that the absent parent's

Child support 'housing costs should be recalculated on the assumption that his present partner ... pays half.'

The reasons were set out on the tribunal's decision notice:

'[The absent parent's partner] earned at least as much as [the absent parent] during the period in question & it is reasonable that she should pay half the costs of their joint household.'

The implementation of the tribunal's direction

13. The tribunal's direction was implemented on the basis that the housing costs to be reduced were the restricted housing costs taken into account in the formula.
14. The absent parent challenged this, arguing that the tribunal's decision referred not to his restricted housing costs, but to his total housings costs. He argued the method of implementation reduced his housing costs by 30% instead of the 50% he had expected.
15. By this time, child support appeal tribunals had been abolished by the Social Security Act 1999 and their existing cases transferred to the new appeal tribunal.
18. The chairman was asked to clarify and wrote, on 20^th August 1999, agreeing with the absent parent:

'I wrote in my note of the hearing (page 3), although not unfortunately in the decision, that [the absent parent's] housing costs should be halved before the application of the cap.'

The chairman's record of proceedings, as he wrote, supports this. It contains this exchange with the presenting officer:

'Chair I'm minded to allow half the housing costs.
PO Is that ½ before the limit is applied?
Chair Yes, in my view.'

19. The tribunal's direction was then implemented on that basis.

The appeal to the Commissioner

20. The parent with care appealed to the Commissioner. She argued that the direction had been correctly implemented the first time and that the reduction applied only to the restricted amount of the absent parent's housing costs.

The absence of a full statement of the tribunal's decision

21. There is no full statement of the tribunal's decision in this case, as one was not applied for within the specified time. The absence of the statement was waived as an irregularity by the Commissioner who granted leave to appeal under regulation 25 of the Child Support Commissioners (Procedure) Regulations 1999. This was only for the purposes of allowing an appeal to be made to the Commissioner. The lack of a statement is significant for other purposes. In particular, it means that I do not have a full explanation of what the tribunal did and why it did it. I can only set the tribunal's decision aside if it is shown to be wrong in law on the basis of the documents before me.

What did the tribunal's decision mean?

22. Reading the terms of the tribunal's decision in conjunction with the summary of grounds set out in the decision notice, it means what the chairman said it meant, since the grounds refer to paying half of the costs of the joint household. That makes it unnecessary to decide what power existed for the chairman to clarify the decision after the revocation of the power to do this in the Child Support Appeal Tribunals (Procedure) Regulations 1992.

The law

23. A departure direction cannot be given on the basis of a partner's contribution to housing costs unless regulation 27 is satisfied. This requires that

'a partner of the non-applicant [the absent parent] occupies the home with him and the Secretary of State considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non-applicant.'

24. If regulation 27 is satisfied, regulation 40(7) has to be considered, This provides that

'that part of the exempt income constituted by the eligible housing costs determined in accordance with regulation 14 of the Child Support (Maintenance Assessments and Special Cases) Regulations (eligible housing costs) shall, subject to paragraph (8) and (9), be reduced by the percentage of the housing costs which the Secretary of State considers appropriate, taking into account the income of that parent and the income or estimated income of that partner.'

25. Regulation 14 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 merely provides that Schedule 3 to those Regulations is to have effect for determining eligible housing costs. That suggests that the whole of the absent parent's housing costs should have been considered.
26. However, regulation 40(7) does not simply refer to 'eligible housing costs determined in accordance with regulation 14'. It refers to 'that part of the exempt income constituted by the eligible housing costs determined in accordance with regulation 14'. The amount of housing costs taken into account in a parent's exempt income is not simply that identified under regulation 14 and Schedule 3. Regulation 15 provides that

'Subject to ... regulation ... 18, a parent's housing costs shall be the aggregate of the eligible housing costs payable in respect of his home.'

Regulation 18 provides for the housing costs to be restricted if they are excessive as defined by that regulation. So, reading regulation 15 as modified by regulation 18, the result is that a parent's housing costs for exempt income purposes are the aggregate of his housing costs calculated under Schedule 3, subject to any restriction imposed under regulation 18.

27. That means that a departure direction should be expressed as a percentage reduction of the amount of the absent parent's housing costs that form part of the exempt income in the formula calculation.

Was the decision wrong in law?

28. The tribunal's decision was not properly worded in accordance with regulation 40(7). However, its meaning was clear when the decision notice is read as a whole and the matter is put beyond doubt when the record of proceedings is also taken into account. So, although it was not appropriately expressed, the decision could be implemented correctly in accordance with regulation 40(7). Nevertheless, the terms in which the decision is expressed cast doubt on whether the tribunal correctly considered the case in accordance with regulation 40(7). That makes its decision wrong in law.

Signed on original Edward Jacobs

Commissioner

4^th October 2000