UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CCS_948_2001 (11 September 2001)

 


R(CS) 10/02


Mr. C. Turnbull CCS/948/2001

11.9.01

Maintenance assessment – more than 6 years after birth of child - whether liability barred by Limitation Act 1980

The absent parent appealed against a maintenance assessment made in 1999 in respect of a child born in 1988. The absent parent's contention before the appeal tribunal was that he could be under no liability because the child was born more than 6 years before the assessment was made, with the result that any liability was barred by section 9(1) of the Limitation Act 1980. The tribunal dismissed the appeal and the absent parent appealed to the Commissioner.

Held, dismissing the appeal, that:

the process whereby a maintenance assessment is applied for and made is not an "action" as defined in section 38(1) of the 1980 Act;

in any event no "cause of action", within the meaning of section 9(1) of the 1980 Act, accrues until the maintenance assessment has been made;

even if the cause of action could be regarded as accruing at an earlier date, it did not all accrue at the date of the child's birth but at best (from the absent parent's point of view) from day to day after the Child Support Act 1991 came into force.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the absent parent ("the Appellant"), brought with the leave of the Chairman, against a decision of the Nottingham Appeal Tribunal made on 19 July 2000. For the reasons set out below I dismiss the appeal.
2. The Appellant's appeal to the Tribunal was against a maintenance assessment made on 20 August 1999 under s.17 of the Child Support Act 1991 (i.e. on supersession of a previous assessment) that he was liable to pay the sum of £24.15 per week from an effective date of either 28 September 1998 or 11 January 1999 (it is unclear from the papers which is correct, but the precise date is not material to this appeal).
3. The child in respect of whom the maintenance assessment was made was born in 1988. The Appellant's contention before the Tribunal and on this appeal is that he can be under no liability because the child was born more than 6 years before the making of the assessment (and indeed before a maintenance assessment under the 1991 Act was first applied for), with the result that any liability is barred by s.9(1) of the Limitation Act 1980:

"An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued."

4. By s.38(1) of the 1980 Act: " "action" includes any proceeding in a court of law, including an ecclesiastical court."
5. As I explain below, by reference to the structure of the relevant parts of the 1991 Act, the Appellant's contention is clearly wrong because:

(a) the process whereby a maintenance assessment is applied for and made is not an "action";

(b) in any event no "cause of action" accrues until the maintenance assessment has been made;

(c) even if the cause of action could be regarded as accruing at an earlier date, it did not all accrue at the date of the child's birth but at best (from the absent parent's point of view) from day to day after the 1991 Act came into force.

6. I turn to the basic structure of the 1991 Act and regulations thereunder, so far as directly relevant. S.1 provides for the duty to maintain. By s.1(3):

"Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments."

7. By s.4(1) the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made with respect to the qualifying child. By s.4(2):

"Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care or absent parent with respect to whom the assessment was made applies to him under this subsection, arrange for ––

(a) the collection of the child support maintenance payable in accordance with the assessment;

(b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment."

8. By s.29(2):

"Where a maintenance assessment is made under this Act, payments of child support maintenance under the assessment shall be made in accordance with regulations made by the Secretary of State."

9. By Reg. 2 of the Child Support (Collection and Enforcement) Regulations 1992 ("the 1992 Regulations") the Secretary of State may specify that payments of child support under a maintenance assessment shall be made by the liable person (a) to the parent with care or (b) to or through the Secretary of State of (c) to or through such other person as the Secretary of State may specify.
10. S.31 provides that where any person is liable to make payments of child support maintenance the Secretary of State may make a deduction from earnings order against a liable person to secure the payment of any amount due under the assessment.
11. S.33 provides:

"(1) This section applies where ––

(a) a person who is liable to make payments of child support maintenance ("the liable person") fails to make one or more of those payments; and

(b) it appears to the Secretary of State that ––

(i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or

(ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the maintenance assessment in question.

(2) The Secretary of State may apply to a magistrates' court ….. for an order ("a liability order") against the liable person.

(3) Where the Secretary of State applies for a liability order, the magistrates' court …. shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4) On an application under subsection (2), the court …………. shall not question the maintenance assessment under which the payments of child support maintenance fell to be made."

12. By Reg. 28 of the 1992 Regulations:

"(1) An application for a liability order shall be by way of complaint for an order to the magistrates' court having jurisdiction in the area in which the liable person resides.

(2) An application under paragraph (1) may not be instituted more than 6 years after the day on which payment of the amount in question became due.

(3) …."

13. S.35 of the 1991 Act provides for the enforcement of a liability order by distress, and s.36 provides for enforcement by a garnishee or charging order made by a county court.
14. In my judgment it is clear that the process whereby a maintenance assessment is applied for and then made cannot be described as "an action to recover any sum recoverable by virtue of any enactment." The first reason is that those words, taken with the definition of "action" in s.38(1) of the 1980 Act, in my judgment apply only to proceedings in a court of law. They do not apply to the process whereby the Secretary of State determines the amount of an absent parent's liability and makes a maintenance assessment.
15. The second reason is that until a maintenance assessment has been made there is in my judgment no "sum recoverable by virtue of an enactment" to which s.9(1) can apply.
16. In R(SB) 5/91 the same view was taken in relation to the determination by an adjudication officer of a person's liability to repay overpaid benefits. It was held that the adjudication officer was not prevented by s.9(1) from deciding that overpayments stretching back more than 6 years were recoverable by the Secretary of State.
17. An application by the Secretary of State to a magistrate's court for a liability order would (but for Reg. 28(2) of the 1992 Regulations) have been an action to which s.9(1) applied. But Reg. 28(2) provides for its own limitation period, and by s.39 of the 1980 Act that Act does not apply to any action for which a period of limitation is prescribed by or under any other enactment. No sum becomes "due" for the purposes of Reg. 28(2) until, at the earliest, the maintenance assessment has been made.
18. I would further point out that, even if the process whereby a maintenance assessment is applied for and made were an "action" to which s.9(1) could apply, time under s.9(1) only runs from the "date on which the cause of action accrued." No cause of action under the 1991 Act could possibly have accrued until 5 April 1993 , when that Act came into force. That was less than 6 years before the first maintenance assessment was applied for in this case. Further, the "cause of action" would have to be regarded as accruing from day to day. Since a maintenance assessment can generally only be effective as from some date after the application for it is made (see Reg. 30 of the Maintenance Assessment Procedure Regulations 1992) the assessment could not in any event provide for payments of maintenance to be due in respect of a period before (let alone more than 6 years before) the cause of action accrued. The Appellant's submission that the entire cause of action accrued on the child's birth would therefore on any view be incorrect.
19. That indeed provides the answer to the Appellant's contention that, if s.9(1) does not apply in this case, "it would allow for the Agency to request payments from a 90 year old man for maintenance payable for his 70 year old daughter". That would not be so because the effective date of a maintenance assessment cannot generally, under Reg. 30 of the Maintenance Assessment Procedure Regulations, be earlier than the date of the application for it.
20. For the above reasons I dismiss the appeal. The Appellant requested an oral hearing of the appeal. However, I am satisfied that he has in his extensive written submissions said everything which he could usefully say in support of his appeal and that I have therefore been able properly to decide the appeal without the benefit of an oral hearing. I therefore refuse his request.

Date: 11 September 2001 (signed) Charles Turnbull

Commissioner