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[2003] UKSSCSC CCS_3553_2002 (19 June 2003)

CCS/3553/2002

DECISION OF THE CHILD SUPPORT COMMISSIONER

This is an appeal by the parent with care ("Miss R"), brought with my leave,

Introduction

In 1994 an interim child support maintenance assessment was made against the absent parent ("Mr. P") in respect of Matthew, the son of Miss R and Mr. P. By a decision made in 1998 ("the 1998 decision") a child support officer cancelled that assessment as from 1998 on the ground that Mr. P was not habitually resident in the United Kingdom. By a decision in 2001 ("the 2001 decision") the Secretary of State purported to revise the 1998 decision so as to make the cancellation operative from 1994, on the ground that the evidence on which the 1998 child support officer had acted showed that Mr. P had not been habitually resident in the UK in 1994. The Tribunal, by the decision now under appeal to me, dismissed Miss R's appeal against the 2001 decision.

In a draft decision attached to a Direction which I made earlier in this appeal I proposed to allow Miss R's appeal and to substitute my own decision setting aside the 2001 decision, on the ground that there was no power in 2001 to alter the date from which the 1998 decision took effect. Part of my reasoning was that the 1998 decision had been made not by the Secretary of State, but by a child support officer, and so had not been made by "an officer of the Department acting as such", within the definition of "official error" in Reg. 1(2) of the Social Security and Child Support (Maintenance Assessment Procedure) Regulations 1992 ("the 1992 Regulations"). That reasoning was in accordance with the decision of a Tribunal of Commissioners in R(I) 5/02, in relation to the equivalent provisions relating to social security. However, the Secretary of State contested that conclusion in a further written submission, and requested an oral hearing. The submission stated that "the interpretation of the definition of "official error" is a matter of considerable importance not merely in this case but in many other child support cases like it." At the hearing the Secretary of State was represented by Mr. Leo Scoon of the Office of the Solicitor to the Departments of Health and Work and Pensions. Neither Miss R nor Mr. P appeared or was represented.

The facts

(1) On 11 March 1994 the Child Support Agency received an application by Miss R for child support maintenance to be paid by Mr. P in respect of Matthew, then aged 9.

(2) On 15 June 1994 a Category A interim maintenance assessment was made, taking effect from 4 May 1994. That was presumably because Mr. P had not replied to the maintenance enquiry form.

(3) On 20 June 1994 the Child Support Agency received a letter dated 6 June 1994 from Mr. P's solicitors stating that "[Mr. P] is classified for all purposes as being resident abroad." That appears to have been the first intimation received by the Child Support Agency that Mr. P contended that he was resident abroad. He has consistently since maintained that he has at all times been habitually resident in Cyprus (as well as also maintaining that he is not the father of the child). Miss R has consistently maintained that he is habitually resident here.

(4) On 9 September 1998 a child support officer wrote to Mr. P as follows:

"It is my decision as a child support officer to accept that, at present, you are not habitually resident in the UK and, therefore, this case will be closed with an effective date of 2 September 1998. If, however, at a later date circumstances change, or it is proven that you are habitually resident in the UK, this case will be re-opened."

There is no other evidence in the papers as to the terms of the 1998 decision.

(5) The Secretary of State's written submission to the Tribunal stated that "this case was then re-opened from 14 April 2000". However, there is no evidence in the papers that a formal decision of any kind was made on or about that date. In particular, there appears to have been no decision at that time purporting to revise or supersede the 1998 decision, and no decision making a fresh maintenance assessment. I note that a Child Support Agency memo dated 7 March 2001 (p.81) stated: "solicitor has provided a copy of a letter dated September (9^th?) stating that the case has been closed due to the fact that NRP does not habitually reside in this country. However, was he ever informed that the case was re-opened? If so, by what means? Was there/should there have been an actual decision to re-open it, stating that the previous decision was made in error?"

(6) On 18 December 2000 the Child Support Agency wrote to Miss R informing her that a liability order was to be applied for against Mr. P in respect of arrears of £33,693.99 in respect of the period 4 May 1994 to 13 October 2000. That appears to have been on the basis that it was assumed that the interim maintenance assessment had remained on foot throughout the period from 4 May 1994.

(7) The Secretary of State's submission to the Tribunal stated as follows in respect of 3 May 2001:

"The Secretary of State's decision made under section 16 Child Support Act 1991, as substituted by s.40 of the Social Security Act 1998 i.e. a revision of the assessment.

The decision maker terminated the maintenance assessment in respect of Matthew and closed the case from 4 May 1994 due to the fact that at the time the IMA A was implemented [Mr. P] was not habitually resident."

(8) The decision maker's notes, dated 2 May 2001, in respect of the decision which appears to have been made on 2 or 3 May 2001 (i.e. the 2001 decision, being the decision under appeal to the Tribunal) stated as follows (pp.24-5):

"Revision on closure date:

I have decided that this case should not have been opened. We did not have jurisdiction as NRP was/is not habitually resident. The following points have decided this:

(1) The DM that made the original decision to close this case – e/d 2.9.98 was because NRP is not habitually resident. As his decision was based on correspondence/evidence received from 1996 to 1998 and not new evidence, case should have been cancelled from initial IMA.

(2) The decision of tribunal states that NRP was not habitually resident.

(3) NRP has a farm in Cyprus and family

(4) NRP is a Cypriot National – no connections with the UK.

(5) The property in UK is not owned by the NRP but by [his wife].

The NRP is clearly not resident in the UK, but is habitually resident in Cyprus. The Appeals Tribunal confirms this.

Case to be cancelled – e/d 4.5.1994."

(That reference to an "Appeals Tribunal" has not been explained. There is no trace of any decision by an appeal tribunal in this case in or before 2001).

(9) Miss R's appeal against the 2001 decision was dismissed by the Tribunal on the ground that the Tribunal was not satisfied that Mr. P was habitually resident here.

The legal position

The Tribunal's decision was erroneous in law (and must therefore be set aside) because it did not consider whether there was any ground on which the 2001 decision could have terminated or cancelled the interim maintenance assessment with effect from 4 May 1994. The Secretary of State's representative, in his initial written submission in this appeal, submitted that the 2001 decision was made under Reg. 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. Reg. 7(1) provides that "where …. an absent parent …with respect to whom a maintenance assessment is in force ceases to be habitually resident in the United Kingdom, the Secretary of State shall cancel that assessment." By Reg. 7(3) an assessment so cancelled shall cease to have effect with effect from the date that the Secretary of State determines is the date on which the absent parent ceases to be habitually resident. Reg. 7(1) therefore only applies where there is a change of circumstances in that the absent parent, having been habitually resident at the date of the maintenance assessment, subsequently ceases to be so. That is not and has never been Mr. P's case. Nor was it the factual basis on which the 2001 decision maker purportedly acted. His notes indicate that he acted on the basis that Mr. P had never at any material time been habitually resident here. Reg. 7(1) therefore did not apply.

The 2001 decision maker appears to have considered that he was revising either the 1994 interim maintenance assessment or the 1998 decision under s.16 of the Child Support Act 1991. A revision (i.e. in this case cancellation) of the 1994 assessment under s.16 would have operated from the effective date of the 1994 assessment: s.16(3). However, the only possibly applicable ground for such a revision specified in the 1992 Regulations would have been that in Reg. 17(1)(c) – i.e. "if the decision arose from an official error."

"Official error" was (at the time of the 2001 decision) defined by Reg. 1(2) of the 1992 Regulations as:

"an error made by –

(a) an officer of the Department of Social Security acting as such which no person outside that Department caused or to which no person outside that Department materially contributed;

(b) a person employed by a designated authority acting on behalf of the authority, which no person outside that authority caused or to which no person outside that authority materially contributed,

but excludes any error of law which is only shown to have been an error by virtue of a subsequent decision of a Child Support Commissioner or the court."

"Designated authority" is defined, by reference to reg. 2(1) of the Social Security

(Work-focused Interviews) Regulations 2000, as follows:

"(a) the Secretary of State

(b) a person providing services to the Secretary of State

(c) a local authority

(d) a person providing services to, or authorised to exercise any functions of, any such authority."

The 1994 interim assessment cannot have arisen from an official error, within that definition, because the first intimation which the Child Support Agency received that Mr. P contended that he was not habitually resident in the UK appears to have been that contained in his solicitors' letter received on 20 June 1994, 5 days after the assessment was made.

A revision under s.16 of the 1991 Act of the 1998 decision could have altered the effective date of the 1998 decision – i.e. could in effect have cancelled the 1994 assesment as from 1994, rather than merely from 1998. Reg. 19 of the 1992 Regulations provided that where the date from which a decision took effect was found to be erroneous on a revision under s.16, the revision should take effect from the date on which the revised decision would have taken effect had the error not been made. Under the law as it was in 1998, if the then child support officer was satisfied that Mr. P had not been habitually resident in the UK in 1994, so that the 1994 assessment was (by virtue of s.44(1) of the 1991 Act) made without jurisdiction, he was empowered by Reg. 9(12) of the 1992 Regulations to cancel the 1994 assessment with effect from its effective date. Reg. 9(12) empowered a child support officer to cancel an interim maintenance assessment "from such date as he considers appropriate in all the circumstances" on the ground that "he is satisfied that he did not, or has subsequently ceased to have, jurisdiction to make that interim maintenance assessment."

Official error: introduction

The only possible ground, available in 2001, for revision of the 1998 decision was again that in Reg. 17(1)(c) of the 1992 Regulations – i.e that the 1998 decision arose from an official error".

In para. 26 of R(I) 5/02 the Tribunal of Commissioners said:

"Official error applies to mistakes made by "an officer of the Department …. acting as such": see regulation 1(3) [of the Social Security and Child Support (Decisions and Appeals Regulations) 1999]. The decisions made in the claimant's case in 1992 were made by an adjudication officer and an adjudicating medical practitioner acting in those capacities. Official error does not apply in terms to the 1992 decisions …."

However, in para. 16 of CG/2122/2001 Mr. Commissioner Mesher, after referring to R(I) 5/02, said:

"It was stated there that decisions made by adjudication officers under the pre-Social Security Act 1998 regime could not be revised for official error. It is not entirely clear whether the Tribunal put that on the basis that adjudication officers when making decisions were not officers of the Department acting as such or on the basis that section 8 of the Social Security Act 1998 only allows decisions of the Secretary of State to be revised. I would be very reluctant to accept either basis. Adjudication officers could only be appointed from among civil servants employed by the Department of Social Security. Although they did not act on behalf of the Secretary of State when making decisions, it seems to me that they did not cease to be officers of the Department acting as such when doing so. ……… In the addendum dated 6 January 2002 the Secretary of State's representative resiled from the reliance on paragraph 26 of R(I) 5/02 and submitted that the statement made there was per incuriam. Whether or not the statement should be followed will have to be decided conclusively in some other case. For the moment I certainly do not wish to rely on it to decide the present case against the claimant."

For myself I think that it is clear that the Tribunal of Commissioners' reasoning was the first of the alternatives which Mr. Commissioner Mesher there mentioned – i.e. that an adjudication officer was not an officer of the Department "acting as such", but rather a person acting in the separate capacity of adjudication officer. The argument before me on behalf of the Secretary of State (albeit with reference to child support, and therefore to child support officers) is that that reasoning is wrong.

In considering this argument it will be necessary for me to refer at various points to elements of the recent history of the provisions for adjudication (with particular reference to the powers to alter previous decisions) in relation to both child support and social security. For convenience I propose now to summarise that history. I shall refer to the adjudication regime which operated prior to the reforms (for the most part taking effect from various dates in 1999) effected by the Social Security Act 1998 as the "old regime" and to the regime thereafter as "the new regime".

Relevant history of adjudication provisions

Under the old regime decisions as to the making and review of child support

maintenance assessments were made by child support officers, rather than by officials acting on behalf of the Secretary of State. Departure direction decisions were, however, made by the Secretary of State – i.e. of course by officials acting on his behalf. That to some extent mirrored the position in relation to social security decision making, where most decisions were made by adjudication officers, some matters being, however, reserved for decision by the Secretary of State himself.

The position under the old regime as regards the grounds for review or cancellation of child support decisions was enormously complex. There were a very large number of different provisions applicable in particular situations. There was no general power to review or revise an assessment from its effective date on the ground of official error. There were, however, provisions relating to official error in particular circumstances. For example, Reg. 31C(2) of the 1992 Regulations provided that where a fresh maintenance assessment was made on a review under s.18 or 19 of the 1991 Act by reason of ignorance or mistake of fact, "and that ignorance or mistake, as the case may be, is attributable to an operational or administrative error on the part of the Secretary of State or of a child support officer, the effective date of that assessment shall be the effective date of the assessment that has been reviewed." Again, Reg. 46 provided that where a child support officer was "satisfied that a [reduced benefit] direction was given as a result of an error on the part of the Secretary of State or a child support officer", he should cancel the direction and it should be treated as "not having been given."

Official error as such (or something equivalent to it) was not under the old regime a general ground of review of social security decisions or a general ground on which decisions made on review would operate from an earlier date than would otherwise have been the case. However, there was in Reg. 57 of the Social Security (Adjudication) Regulations 1995 a provision that in specified situations a decision increasing the amount of benefit could increase it retrospectively to the date (in effect) from which it would have been awarded had a mistake not been made. These situations were for the most part ones of error by either an adjudication officer or someone acting on behalf of the Secretary of State, but they were defined more precisely than in the general definition of "official error" which applies to-day. Reg. 57 did not make use of the wording "officer of the Department acting as such". Interestingly, perhaps, the form of Reg. 57 had become more sophisticated over time – its predecessor in Reg. 72 of the Social Security (Adjudication) Regulations 1986 had included a more general provision (which did make use of the wording "acting as such") as follows:

"that the decision under review was erroneous by reason only of a mistake made, or of something done or omitted to be done by an officer of the Department of Health and Social Security or of the Department of Employment acting as such, or by an adjudicating authority or the clerk of other officer of such an authority, and that the claimant and anyone acting for him neither caused nor materially contributed to that mistake, act or omission."

Under the new regime the structure of the adjudication mechanism was broadly the same for child support and social security. Child support officers and adjudication officers ceased to exist, all decisions being thereafter made by the Secretary of State (i.e. by officials of the Department on his behalf). The provisions for review of existing decisions contain a distinction between revision (which generally operates from the effective date of the decision being revised) and supersession (which generally operates from the date of the superseding decision). Two of the grounds for supersession are that the decision was made under a mistake or ignorance as to a material fact and that it was made in error of law. One of the grounds for revision is, as we have seen, that the decision arose from an official error.

In short, therefore, the concept of official error was introduced into the new regime, in relation to both child support and social security, as a general ground for revision – i.e. a ground on which a decision could be corrected as from its effective date and not simply from the date of the correcting decision. The previous adjudication provisions had contained provisions in which the question whether a decision was the result of an official error was of significance, but they were more limited in scope and the wording "acting as such" seems to have been absent from any of those provisions after the replacement of the Social Security (Adjudication) Regulations 1986 by the 1995 Regulations.

As far as I am aware the only piece of social security legislation operative immediately prior to the coming into effect of the new regime which made use of a defined phrase "official error" was Reg. 99 of the Housing Benefit (General) Regulations 1987 (and its equivalent in relation to council tax benefit) which defined "overpayment caused by official error" as

"an overpayment caused by a mistake made, whether in the form of an act or omission, by the appropriate authority or by an officer or person acting for that authority or by an officer of the Department of Social Security or the Department of Employment acting as such where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission."

The status of child support officers under the old regime

S.13(1) of the 1991 Act provided simply that "the Secretary of State shall appoint persons (to be known as child support officers) for the purpose of exercising functions" conferred on them by the Act or by any other enactment or assigned to them by the Secretary of State. Where functions entrusted to a Government minister or to a department are performed by an official employed in the ministry or department, there is generally in law no delegation because the official's act or decision is constitutionally that of the minister: see Halsbury's Laws of England, Vol 8(2), para. 365; Carltona Ltd. v. Commissioners of Works [1943] 2 All ER 560. It was clear from numerous provisions in the 1991 Act and Regulations made thereunder that the legislation treated a child support officer as acting not on behalf of the Secretary of State, but rather in the apparently separate capacity of child support officer. A particularly clear illustration of that was to be found in Reg. 10A of the Child Support (Information, Evidence and Disclosure) Regulations 1992, which specified in what circumstances a child support officer might disclose information held by him for the purposes of the Act to the Secretary of State. The separate capacity of adjucation officers was recognised by Commissioners, for example in R(SB) 14/88 – a decision of a Tribunal of Commissioners holding (in para. 22) that "the conclusive answer to any question as to whether there can be an estoppel is that the representation relied on by the claimant was not made by the adjudication officer who has made the decision under dispute, or with his authority, but by some other official of the DHSS."

S.13 of the 1991 Act did not itself in terms require that the persons appointed as child support officers should be or thereby become officers of the Department of Social Security. It seems to me to have been possible, for example, that officers (i..e employees) of other departments might be so appointed. However, the persons appointed as child support officers in England were in fact always officers of the Department of Social Security. The first instrument of appointment, made on 17 December 1992, appointed as child support officers "officers of the Department of Social Security ………. specified in Schedule 1 to this Instrument". The instrument of appointment in force at the time of the 1998 decision had appointed as child support officers "(a) any person for the time being and from time to time holding the office of Chief Child Support Officer (b) officers of the Department of Social Security described in the Schedule to this Instrument (c) [relates to Northern Ireland]".

The notionally separate capacity of a child support officer meant that the same person might on the same day act both in his capacity as a child support officer and for and on behalf of the Secretary of State. A graphic illustration of this under the parallel provisions for social security adjudication occurred where the Secretary of State wished to apply to an adjudication officer under s.30(2) or (5) of the Social Security Administration Act 1992 for a review of a decision relating to disability living allowance. Those provisions applied only in the event of "an application made under this section". One commonly found the same person signing such an application on behalf of the Secretary of State and then on the same day making the decision as adjudiction officer.

Conclusions in relation to official error

I have come to the conclusion that the balance of the argument is strongly in favour of the view that a person acting in the capacity of a child support officer was "an officer of the Department acting as such" within the meaning of the definition of "official error" in Reg. 1(2) of the 1992 Regulations. (For convenience, I shall refer to this view as "Mr. Mesher's view", and to the contrary view as "the Tribunal's view"). A child support officer was clearly, on the evidence which I have referred to in para. 22 above, "an officer of the Department". Even a person who spent the entirety of his time acting as a child support officer did not cease to be an officer of the Department. He was "acting as such" in the sense that the function (or one of the functions) to which he had been assigned, as an officer of the Department, was to act as a child support officer. The question is whether the words "acting as such" were intended to restrict the definition to persons acting, as would normally be the case with officers of a department, on behalf of the Secretary of State. My reasons for giving the answer "no" to that question are as follows.

First, decisions made under the new regime can be revised by reason of an error made by a decision maker in the course of a decision making function, as well as for error by an official exercising some other function on behalf of the Secretary of State (e.g. that of assembling information). It is therefore difficult to see any reason why the legislature should in fact have intended that decisions made under the old regime should not be revised for errors by child support officers.

Secondly, that conclusion is reinforced, as Mr. Scoon submitted in his helpful address to me at the hearing, when one looks at the transitional provision in the regulations which brought the new regime into force in relation to child support.

Reg. 48(2) of the Social Security Act 1998 (Commencement No. 7 and Consequential and Transitional Provisions) Order 1999 provided:

"………………. a decision of a child support officer shall be treated as a decision of the Secretary of State made under –

(e) ……….the provision under which the child support officer made the decision;

(f) section 17 of the [1991] Act where the child support officer made the decision under section 18 or 19 of the 1991] Act."

In my judgment (in respectful agreement with the Tribunal of Commissioners in relation to the transitional provision relevant in R(I) 5/01,) that provision did not of itself necessarily have the effect that the reference in the definition of "official error" to errors by "an officer of the Department acting as such" must be read as including errors by a child support officer. The purpose of this transitional provision was to make the new adjudication provisions (and in particular those for revision and supersession), which state that they apply to decisions "of the Secretary of State", applicable to decisions by child support officers made under the old regime. If, properly construed, "an officer of the Department acting as such" is not apt to refer to former child support officers, then this transitional provision does not of itself make it so. But it does in my judgment display a general policy that the new adjudication provisions (and in particularly those for revision and supersession) should apply to decisions made by child support officers under the old regime as if they were decisions by the Secretary of State under the new retime, and thus in my judgment militates strongly against a construction which would have the effect that whereas error by a decision maker acting under the new regime is a ground for revision, error by a child support officer acting under the old regime is not.

Thirdly, if the Tribunal's view were correct, it would be necessary to ask, in the case of an alleged official error in respect of a decision under the old regime, whether the error was that of a person acting as a child support officer or as an officer acting on behalf of the Secretary of State in the normal way. In many cases the answer might be clear. But, given especially the fact that the same person might be acting in both capacities at round about the same time, it would not always be so. I am inclined to lean against a construction which could lead to practical difficulties of that kind in its application.

Fourthly, for the reasons set out in paras. 29 to 34 below, a close textual analysis of the definition of "official error" (which is set out in para. 7 above), whether regarded as an entirely new provision or as one which may have been derived from earlier provisions, strongly supports Mr. Mesher's view.

If the intention had in fact been to exclude errors by child support officers, one would have expected the definition to say so expressly. Alternatively, it could have referred simply to errors "on the part of the Secretary of State" (although I suspect that even that would have contained some ambiguity, having regard to the transitional provision which I referred to above).

The definition refers to errors by an officer of the Department acting as such to which "no person outside the Department caused or ……contributed". A child support officer is clearly not "person outside the Department". On the Tribunal's view a child support officer is in, as it were, an intermediate position for these purposes. He is neither a person whose error can be an official error, nor a person who can cause or contribute to what might otherwise be such an error and so prevent it being such. Whilst it is perfectly possible that the legislature intended so complex a result, the alternative view seems much neater.

Two points of significance emerge from para. (b) of the definition of "official error, which was added by amendment as from 19 June 2000. First, the definition now extends to errors by a person "employed by" and "acting on behalf of" the Secretary of State. Sub-para. (a) of the definition is therefore arguably redundant, unless officers of the Department "acting as such" includes former child support officers, who were not "acting on behalf of " the Secretary of State, and so do not fall within (b). Secondly, (b) extends to persons "providing services to" the Secretary of State. I do not suggest that a child support officer was a person providing services to the Secretary of State within the meaning of that provision. My point is that it is difficult to see any reason of policy which would require errors by such persons to be capable of giving rise to revision, but not errors by former child support officers.

I do not see anything in the history of the provisions from which Reg. 17(1)(c)

may have been derived which really gives any support to the contention that the words "acting as such" were intended to exclude child support officers. As I noted in para. 16 above, there were some child support provisions under the old regime which provided for revision or cancellation on the ground of error in particular circumstances "on the part of the Secretary of State or a child support officer". However, the present definition of "official error" does not seem to have been derived from any of those provisions because its wording is so significantly different, so that the absence of any express reference in it to child support officers does not seem to me to be of great significance.

It seems more likely (see paras 17 and 20 above) that Reg. 1(2) was adapted from either Reg. 72 of the Social Security (Adjudication) Regulations 1986 or Reg. 99 of the Housing Benefit (General) Regulations 1999, both of which use the wording "officer of the Department ……acting as such." Reg. 72 went on expressly to include errors "by an adjudicating authority or the clerk or other officer of such an authority." "Adjudiating authority" was defined generally as including adjudication officers and appeal tribunals. Arguably, therefore, the language of Reg. 72 drew a distinction between officers of Departments "acting as such" and adjudication officers. I at one stage wondered whether this indicated that in the current definition of "official error" the words "officer of the Department acting as such" must be taken as not referring to former child support officers. However, I think it would be wrong to conclude that even in Reg. 72 the words "officer of the Department acting as such" were not thought apt to include adjudication officers. Some additional reference to adjudicating authorities was necessary in that provision because it applied to appeal tribunals (to which the current provisions for revision, and so the definition of official error, do not). In any event, the connection with Reg. 72 of the 1986 Regulations, which itself had been substantially modified by the 1995 Regulations, is in my judgment too tenuous to permit any satisfactory inferences to be drawn.

In so far as it is permissible to draw any inference at all, it seems most likely that the definition in Reg. 1(2) was drawn from Reg. 99 of the Housing Benefit (General) Regulations 1987. Decisions in respect of housing benefit were at that time made by local authorities, whose mistakes were expressly included in the definition of official error. It seems to me highly unlikely that the purpose of the words "acting as such" in that provision was to exlude mistakes by adjudication officers. For one thing, that provision includesd mistakes not only by officers of the Department of Social Security, but also by officers of the Department of Employment (and by a more recent amendment the Commissioners of Inland Revenue) "acting as such". Those bodies did not have decision makers acting in a separate capacity who can have been intended to be excluded. I think that the words "acting as such" may have been included originally simply to emphasise that the error must be by the officer when acting as an officer of the Department by which he was employed, and not in some other capacity (e.g. perhaps on temporary secondment to another Department).

Must I nevertheless follow R(I) 5/02?

I am persuaded that I need not and should not do so, for 2 main reasons. First, I take the view, looking at the way in which the Tribunal summarised the arguments before it in paras. 23 to 25 of R(I) 5/02, that Mr. Mesher's view was not actually argued before the Tribunal. Both sides appear to have proceeded on the footing that the view which the Tribunal took as to the effect of the words "acting as such" was correct. The point therefore appears in effect to have gone by default before the Tribunal. The argument on behalf of the claimant seems to have been based simply on the transitional provision. Secondly, the Tribunal does not appear to have been referred to the amendment of the definition of "official error" (as from 19 June 2000) by the addition of para. (b), which in my judgment (see para. 31 above) is of some significance as regards the effect of the words "acting as such". I therefore hold that mistakes by former child support officers are capable of falling within the definition of "official error".

Did the 1998 decision arise from an official error?

In R(SB) 10/91 it it was said by Mr. Commissioner Goodman that Reg. 72(1) of the 1986 Adjudication Regulations included only "clear mistakes of fact or law in relation to an actual issue in a given case at a time when the officer of the relevant Department etc. was actively required by his duties under the social security legislation to arrive at a decision or take some administrative act. It certainly does not impose a general duty on the officers etc. of the Department of their own accord constantly to keep all cases under review in order to see whether or not any particular exempting regulation might apply." In R(SB) 2/93 Mr. Commissioner Skinner said that "the mistake envisaged by [Reg. 72(1)] is a clear and obvious mistake made by the officer of the Department on the facts disclosed to him or which he had reason to believe were relevant." In CH 5485/02 Mr. Commissioner Howell applied those authorities in relation to the definition of "official error" in Reg. 99 of the Housing Benefit (General) Regulations 1987. However, I give the new tribunal the obvious caution that it is important not to treat those formulations of Commissioners as if they were themselves a replacement for the statutory wording, which refers simply to an "error" by the relevant officer. Further, the current definition of "official error" in respect of child support and social security, in expressly excluding "any error of law which is only shown to have been an error by virtue of a subsequent decision of a Commissioner or the court" (wording which was not present in the statutory provisions under consideration in those cases), in my judgment makes clear that all other errors of law are included. There may well be errors of law which cannot be said only to have been shown to be an error by a subsequent decision of a Commissioner or the Court, but which were nevertheless not "clear and obvious."

It is unclear whether the evidence in the papers before me (and before the Tribunal) includes all the evidence which was before the 1998 child support officer. I strongly suspect that it does not. First, the 2001 decision maker's notes say that the 1998 decision was "based on correspondence/evidence received from 1996 to 1998 and not new evidence." Yet there is, as far as I can see, no correspondence or other evidence in the papers which dates from either 1996 or 1997. Secondly such evidence in the papers as was before the child support officer in 1998 seems remarkably scanty. It consists, in fact, of little more than bald assertions by Mr. P's solicitors that he was habitually resident in Cyprus and by Miss R that he is habitually resident here. Because more evidence as to what was before the child support officer in 1998 may well be available, I consider it desirable to remit this matter to a new tribunal, rather than attempting to substitute my own decision. I would point out that the actual reasoning of the 2001 decision maker was on any view partly fallacious, since his notes state that Mr. P had "no connections with the UK". He plainly had substantial connections here, in that his wife and family were living here, he has dual nationality, and was continuing to pay national insurance contributions here.

The new tribunal must of course take into account all the evidence which is put before it as to the basis on which the child support officer acted in 1998. It might find that that was an "error" by that child support officer if, for example, (i) he believed that, even if Mr. P was in 1994 not habitually resident here, he only had power to cancel the interim assessment as from 1998 or (ii) he made the 1998 decision on hopelessly inadequate information and in circumstances where he ought to have sought further information (with at least some reasonable prospect of obtaining it) or (iii) there was no reasonable basis on which he could have concluded, on the material before him, that Mr P was habitually resident here in 1994 but had ceased to be so by 1998. As regards this latter possibility, however, I would comment that the fact that Mr. P had, between 1994 and 1998, taken no procedural steps to challenge the 1994 assessment by way of review and appeal would seem to me to be some evidence that there may have been a change in the position between 1994 and 1998. It is not necessarily enough for the new tribunal to be of the view that on balance it would, on the information available in 1998, probably have concluded that Mr. P had not in 1994 been habitually resident here. That does not demonstrate an "official error". The new tribunal may decide that the evidence now available as to the reasoning of and evidence before the 1998 decision maker is insufficiently complete to enable it to be satisfied that the 1998 decision arose from an official error.

If the new tribunal finds that there was no official error, it should allow Miss R's appeal and simply set aside the 2001 decision. As I see it (although I have no juridisiction to decide the matters dealt with in the remainder of this paragraph) that would leave the matter as follows. The interim maintenance assessment remained in effect in respect of the period from 4 May 1994 to 2 September 1998. The decision of 9 September 1998 terminated the assessment, but with effect only from 2 September 1998. So far as I am aware there was no appeal against that decision by Miss R. Although it was stated that "the case was re-opened from 14 April 2000", there appears to be no evidence before me that any decision was made which had the effect that an assessment was required to be treated as existing again, whether from 2 September 1998 or 14 April 2000. It would therefore seem that the end result of allowing Miss R's appeal would be that an interim maintenance assessment was on foot in respect of the period from 4 May 1994 to 2 September 1998, but not thereafter. The arrears in respect of that period would remain capable of enforcement, subject to any time limit problems or other difficulties which there may be. It seems to me that Mr. P's remedy, if he contended that the 1994 interim maintenance assessment was made without jurisdiction because he was not habitually resident, was to ask for a review of it and then to appeal against it, but he does not appear to have adopted at any rate the latter step.

If (but if only if) the new tribunal decides that the 1998 decision did arise from official error, it must then go on to decide whether, and if so how, the 1998 decision should be revised. That will involve deciding afresh whether Mr. P was habitually resident in the UK from 1994 to 1998. In so deciding it must take into account all the evidence before it (including that which has come into existence since 1998) as to Mr. P's habitual residence between 1994 and 1998. It must of course ignore the findings of the previous tribunal on that issue.

In order to simplify the possibilities I will assume that the new tribunal finds the position as regards habitual residence to have remained unchanged between 1994 and 1998.

If the new tribunal's finding is that Mr. P was not habitually resident in the UK, it

If, on the other hand, it finds that he was habitually resident in the UK, the possibilities are (a) that it should revise the 1998 decision by replacing it with a decision that the 1994 should not have been cancelled (even from 1998) and (b) that it should simply set aside the 2001 decision (which would leave the position as described in para. 39 above – i.e. with the cancellation operating only as from 1998). (a) seems logically correct, but it would seem to have the effect of retrospectively imposing liability on Mr. ) for the period since 1998, and I am doubtful whether it can be right. I do not think it right to attempt to give any direction about this because it has not been argued before me. If it arises, the Tribunal must do its best, with the assistance of such further submissions as are made to it.

I give the following direction in relation to the rehearing: the Secretary of State is within 28 days of issue of this Decision to lodge with the Appeals Service a further submission in relation to the matters in para. 36 to 43 above, annexing all such further information before the 1998 child support officer as is not already in the papers.

(Signed) Charles Turnbull

(Commissioner)

(Date) 19 June 2003