UK Social Security and Child Support Commissioners' Decisions

 


R(CS) 2/03


Mr. C. Turnbull CCS/7436/1999

6.6.01

Maintenance assessment – special case of parent caring for children of more than one absent parent - whether deceased parent is "absent parent"

The parent with care had four children, who were living with her and her husband. The father of the eldest was the absent parent, the father of the youngest was her husband and the father of the other two was dead. A maintenance assessment was made against the absent parent. The absent parent argued on appeal that the deceased father was an "absent parent" for the purpose of regulation 23 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 and that the relevant elements of the maintenance requirement should therefore be reduced by reference to there being more than one absent parent.

Held, dismissing the appeal, that:

the definition of "absent parent" for the purpose of regulation 23 was that in section 3(2) of the Child Support Act 1991, and the natural meaning of the wording of section 3(2) and regulation 23 was not apt to include a deceased parent (paragraphs 15-16);

there was nothing in the scheme of the legislation that required the provisions to be given anything other than their natural meaning (paragraphs17-18);

while the precise philosophy behind regulation 23 was not very clear, an examination of its likely purpose seemed to be in favour of the natural meaning, rather than a meaning which would include a deceased parent (paragraph 24).

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the absent parent ("Mr. W"), brought with the leave of the Chairman, against a decision of the Nottingham Child Support Appeal Tribunal made on 27 August 1999. For the reasons set out below I dismiss the appeal.
2. Mr. W and the parent with care ("Mrs. Sn S") never lived together, but had a short relationship which resulted in the birth of B, now aged 14. Mrs. S then lived with Mr. C, by whom she had two further children, R (now aged 12) and M (now aged 10). A short while after the birth of M, Mrs. S and Mr. C separated, and Mr. C died about a year later, in about 1991. Mrs. S then married Mr. S, by whom she has a child, Z. At all times material to this appeal Mr. and Mrs. S have been living together with the 4 children, B, R, M and Z. Those 4 children are therefore the children of 3 different fathers, of whom one (Mr. W) is the absent parent against whom the maintenance assessment under appeal has been made, one is dead and the third is (or was at the material time) living with Mrs. S.
3. On 29 January 1999 a child support officer decided, on an application by Mr. W for a review of a decision which had been made on a periodical review of a maintenance assessment, that the revised amount of the assessment payable by Mr. W in respect of B was £59.24 per week from the effective date of 7 October 1998 and £58.61 per week from 9 November 1998.
4. Mr. W appealed against that decision. At the Tribunal hearing his solicitor raised for the first time a point which the Tribunal decided against him, and which forms the ground for this appeal. The point is broadly this.
5. Regulations 23(1) to (3) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ("the MASC Regulations") provide (summarising their effect very broadly) that where the children living with the person with care include the children of two or more absent parents, the amounts of those elements of the "maintenance requirement" formula specified in regulation 3(1)(b) and (c) are to be divided among the number of absent parents. So, if there are two absent parents, in calculating the maintenance assessment in respect of the child or children of each of those parents only half the amounts specified in regulations 3(1)(b) and (c) are to be included in determining the figure for the "maintenance requirement" (which is itself one of the elements which must be calculated in arriving at the amount of the maintenance assessment).
6. The argument on behalf of Mr. W in this appeal is that those provisions apply just as much where one of the fathers is dead (and, so it is argued, "absent") as where he is alive but no longer living with the parent with care. I reject that argument.
7. Sections 3(1) and (2) of the Child Support Act 1991 provide:

"(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."

8. Section 11(2) of the 1991 Act provides that the amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1, and section 11(3) provides that Part II of Schedule 1 makes further provision with respect to maintenance assessments.
9. Paragraph 1 of Schedule 1 contains the formula for the calculation of the "maintenance requirement", one element of which is "AG", which is to be calculated by adding up various "prescribed amounts." Those amounts are prescribed in regulation 3 of the MASC Regulations, by reference to certain amounts specified in Schedule 2 to the Income Support (General) Regulations 1987. The amount prescribed in regulation 3(1)(b) is commonly referred to as the "parent as carer" amount, and the amount in regulation 3(1)(c) as the "family premium".
10. Paragraph 10 of Schedule 1 to the 1991 Act 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."

11. Regulation 23(1) of the MASC Regulations provides:

"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."

12. Regulations 23(2) and (3) then state the consequences, as regards the calculation of the "maintenance requirement", if the case is a special case within regulation 23(1). I attempted to summarise that effect, very broadly, in paragraph 5 above. Regulation 23(4) provides for a variation, where the case is a special case within regulation 23(1), of the normal rules for calculating the parent with care's assessable income.
13. Does regulation 23(1) apply in the situation where one or more of the children living with the person with care are the children of a person who is dead, as opposed to alive but not living with person with care? In my judgment it does not.
14. It was held by the Court of Appeal in Secretary of State for Social Security v. Maddocks (21 June 2000, unreported) [now reported as R(CS) 5/00] that the relevant definition of "qualifying child", for the purpose of regulation 23(1), is that in section 3(1) of the 1991 Act, rather than that in Paragraph 10 of Schedule 1 to that Act. That means that regulation 23 can apply in calculating the liability of absent parent A even though no maintenance assessment has actually been made (or applied for) in respect of the children of absent parent B. The definition of "absent parent", for the purpose of regulation 23(1), must therefore be that in section 3(2) of the 1991 Act.
15. I start with the natural and ordinary meaning of the words in regulation 23(1) and section 3(2). In my judgment the reference in section 3(2)(a) to the situation where "that parent is not living in the same household with the child" is not apt to include a parent who is not living in the same household because he is dead. Those words in my judgment imply that the parent is alive. If deceased parents were intended to be included, it is in my judgment likely that different wording would have been used. I bear in mind here that the case of a parent dying is not one of such rarity that it is unlikely to have been contemplated. The strong inference must be that the definition of absent parent in section 3(2)(a) was not intended to include a deceased parent.
16. Further, the wording of regulation 23(1)(b) itself – "in relation to at least two of those children there are different persons who are absent parents … ", phrased as it is in the present tense, is in my judgment even less apt to refer to a deceased parent.
17. I turn, therefore, to consider whether anything in the scheme of the legislation requires those provisions to be given something other than their natural meaning.
18. The first and most significant use of the term "absent parent" in the legislation is in section 1 of the 1991 Act, imposing a duty on the absent parent with respect to whom a maintenance assessment is made to make the payments required by the assessment. A maintenance assessment obviously cannot be made against a deceased parent (and indeed paragraph 16(1) of Schedule 1 to the 1991 Act provides that a maintenance assessment ceases to have effect on the death of the absent parent with respect to whom it was made). That is by no means conclusive, because it would have been possible for the general definition of absent parent to have included deceased parents, but for deceased parents to have been implicitly excluded in the meaning of that expression as used in section 1. But the use of the term in section 1 is of such prominence that the fact that it cannot there include a deceased parent is in my judgment of some significance as regards the meaning of the term generally.
19. Mr. W's solicitors rely heavily on what they say is the purpose behind regulation 23, and seek to draw support from paragraph 22 [paragraph 20 in the original transcript] of the judgment of Sir Christopher Staughton in Maddocks where, referring to the argument put forward by counsel for the Secretary of State in that case, he said:

"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."

Sir Christopher Staughton went on to say in the next paragraph that that argument, plus one other, persuaded him that the reference to "qualifying children" in regulation 23(1) was not limited to children in respect of whom a maintenance assessment had actually been made or applied for.

20. However, the effect of the construction favoured by the Tribunal is not that Mr. W is being made liable for Mrs. S's other children. It is merely that no proportionate reduction is made of the relevant elements in the formula for calculating the "maintenance requirement" by reason of the fact that Mrs. S is also caring for children of a deceased father.
21. The Tribunal said that:

"The purpose of [regulation 23] was to avoid a parent with care of children born as the result of more than one relationship and where more than one relationship had broken down receiving the benefit of more than one maintenance requirement."

22. That needs some qualification in that it is only certain elements of the maintenance requirement formula which are reduced. Further, Mr. W's solicitors rightly point out that regulation 23 applies not only in the case where no maintenance assessment has been made or applied for against the other absent parent, but also applies even if that other absent parent could not have an assessment made against him, or even if it is clear that the amount of such an assessment would be nil.
23. However, it cannot be argued that regulation 23 displays an intention that, whenever a parent with care is also caring for children whose other parent is not the person whose maintenance liability is being assessed, the relevant elements in the maintenance formula should be reduced by reference to the number of such other parents. For example, there is no such reduction where the other parent is still living with the person with care. So, in the present case there is no reduction on account of the fact that Mrs. S is also caring for Z, because Z's father, Mr. S, is still living with Mrs. S and so is not an absent parent.
24. I do not think that the precise philosophy behind regulation 23 emerges with any great clarity, but an examination of its likely purpose seems to me if anything to be more in favour of the definition of "absent parent", as used in regulation 23(1), being given its natural meaning, rather than a meaning which would include a deceased parent. The broad intention may well have been that the reduction of the relevant elements in the formula should take place when the parent with care is also caring for the children of another absent parent, on the footing that a maintenance assessment might also be made against him, but for simplicity the mere existence of such a parent brings regulation 23(2) into play, so that no inquiry as to whether such an assessment could or would in fact be made is to be conducted.
25. For the above reasons the Tribunal in my judgment rightly concluded that the fact that Mrs. S was caring not only for the child of Mr. W, but also for the children of Mr. C, who had died, did not cause regulation 23 to apply.

Date: 6 June 2001

(signed) Charles Turnbull Commissioner