UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCS_4386_2001 (29 August 2003)

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is that the decision of the Reading appeal tribunal, held on 24 May 2001 under reference U/04/175/2000/00401, is not wrong in law.

The appeal to the Commissioner

2. This case concerns the child support maintenance payable with respect to Daniel. Specifically, it concerns how the nights he spends in the hostel attached to his school fall to be treated under the child support legislation.
3. The appellant is Daniel's father and the second respondent is his mother. I shall refer to them in those terms.
4. The case comes before me on appeal to a Commissioner against the decision of the appeal tribunal brought with my leave. I held an oral hearing of the father's application for leave and gave detailed written reasons for granting leave. This decision must be read in conjunction with those reasons, written on 28 March 2003.

The school

5. Daniel attends a school which, to quote its literature, specialises in pupils 'who have physical disabilities and associated sensory, medical, communication and learning difficulties'. Attached to the school is a residential unit, which the school's literature describes as 'a 16 bed respite care centre, forming part of our resources, where support for pupils and their families is offered during term time, developing self-help and independence skills and supporting the school curriculum.' This unit is funded from the local authority's education budget.

The argument by Daniel's father

6. Daniel's father argues that his son is only one of a couple of children who use the residential unit for more than respite care and that he was placed in the school for care reasons rather than for educational reasons. His argument is that the care is being provided by the local authority and that his liability for child support maintenance should be apportioned accordingly.

The argument for the Secretary of State

7. The Secretary of State's argument is that Daniel is a boarder at a boarding school under regulation 27. If this regulation applies, the provision of care by the school is disregarded and Daniel is treated as being in the care of the person who would have his care if he were not at the school – his mother. Daniel's father argues that his mother would not be able to look after him if he were not at school. In support of that, he argues that Daniel was provided with accommodation in the residential unit because his mother was not able to cope with his needs full-time.

The argument for Daniel's mother

8. Daniel's mother has made written comments at both the application and appeal stage. She has not addressed the legal arguments directly. But she has commented on the facts and provided additional evidence.

The issue

9. In R(CS)11/02, I considered what was meant by day to day care when provided by a natural person. I concluded that day to day care meant the immediate, short-term and mundane aspects of care, rather than long-term strategic decisions. In this case, I have to consider whether, and if so how, a local education authority provides day to day care in that sense.

The legal basis to the father's argument

10. Daniel's father relies on regulation 25 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. In order to evaluate that argument, it is necessary to understand how that regulation fits into the overall scheme of the child support legislation.
11. It is convenient to begin with the definition of 'person with care'. This is contained in section 3(3) of the Child Support Act 1991:

'(3) A person is a "person with care", in relation to any child, if he is a person-

(a) with whom the child has his home;

(b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and

(c) who does not fall within a prescribed category of person.'

12. Day to day care is defined in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. In simple terms, it means overnight care for at least 104 nights a year.
13. Being a person with care is significant for two reasons. First, the person with care may apply for an assessment of child support maintenance. Second, the maintenance is payable to the person with care.
14. The persons excluded from the definition of person with care under section 3(3)(c) are prescribed by regulation 51 of the Child Support (Maintenance Assessment Procedure) Regulations 1992:

'(1) For the purposes of the Act the following categories of person shall not be persons with care-

(a) a local authority;

(b) a person with whom a child who is looked after by a local authority is placed by that authority under the provisions of the Children Act 1989, except where that person is a parent of such a child and the local authority allow the child to live with that parent under section 23(5) of that Act;

(c) [makes equivalent provision for Scotland].

(2) In paragraph (1) above-

"local authority" means, in England and Wales, the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London …

"a child who is looked after by a local authority" has the same meaning as in section 22 of the Children Act 1989.'

15. As these categories of person cannot be persons with care, they cannot apply for an assessment. Nor is the maintenance payable to them. However, they are capable of providing day to day care. Otherwise, it would not be necessary to exclude them from being persons with care. This has these consequences.
16. If the local authority usually provides day to day care, there can be no person with care. This is subject to the possibility of a provision that modifies the definition of person with care. Regulation 27A of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 contains a modification. It applies if 'a qualifying child who is in the care of a local authority in England and Wales is allowed by the authority to live with a parent of his under section 23(5) of the Children Act 1989'. If that condition is satisfied, the effect is that section 3(3)(b) of the 1991 Act is modified to apply to the parent with whom the child is allowed to live.
17. If the local authority provides day to day care to a lesser extent, regulation 25 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 applies. This applies if a 'local authority and a person each provide day to day care for the same qualifying child'. If that condition is satisfied, the effect is that there is an apportionment between the local authority and the person with care, and child support maintenance is not payable for the period when the local authority has day to day of the child.

How do Daniel's circumstances fit into that legislation?

18. According to section 22(1) of the Children Act, a local authority looks after a child in two circumstances. First, when the child is in the local authority's care. Second, when the local authority provides accommodation for the child in the exercise of functions that stand referred to the authority's social services committee. The accommodation must be provided for a continuous period of more than 24 hours: section 22(2).
19. In either case, the local authority must accommodate and maintain the child. It may do that by placing the child with a suitable person, maintaining the child in a home, or making other appropriate arrangements. It may also allow the child to live a parent, someone with parental responsibility for the child, or someone in whose favour a residence order has been made. See section 23(1), (2), (4) and (5).
20. The evidence on this is clear. Daniel is not looked after by the local authority. He is not in the local authority's care. Nor is he provided with accommodation by the local authority under one of its social services functions. His accommodation in the school's hostel is funded from the education budget.
21. It follows that Daniel has not been placed with the school under section 23 of the Children Act. Nor has he been allowed to live with his mother under that legislation when he is not in the hostel.
22. The only way in which the argument used by Daniel's father can succeed is if the funding of the hostel from the local authority's education budget involves the local authority in some way undertaking Daniel's day to day care.
23. Daniel's accommodation in the hostel at his school was funded from the local authority's education budget. Put another way, it was funded by the local education authority. That raises the difficult issue: what is the relationship between that authority and the local authority? The answer is provided by section 12 of the Education Act 1996. That section provides that the local education authority is the relevant local authority.
24. I am at one with Mr Commissioner Mesher when he wrote in paragraph 22 of his decision in CCS/4451/2002:

'I am not at all confident that I fully understand the relationship between the powers and duties of a local authority as a local education authority and in exercising the functions which are under the legislation referred to a social services committee.'

However, as far as I can tell, the effect of section 12 of the 1996 Act is this.

25. The two authorities are not separate legal entities. The same organisation is both authorities. That seems to me to be the effect of the wording of section 12. Put into legal terminology, there is a single legal entity that acts in two different capacities: as a local authority, exercising powers given to the local authority as such; and as a local education authority, exercising powers given to that authority as such. In a similar way, a person may act both personally and as agent for someone else, although that analogy is not exact.
26. I have come to the conclusion that when the child support legislation refers to a local authority, that does not include the functions of the local education authority. I have reached that conclusion for three reasons.
27. First, legislation distinguishes the two functions. The functions which stand referred to a local authority's social services committee are specified by legislation to be those functions. See, for example, Schedule 1 to the Local Authority Social Services Act 1970. And when legislation refers to a local education authority function, it does so in those terms and not in terms of the local authority. See, for example, sections 9, 13, 13A, 14, 15A, 15B, 16, 17, 18 and 19 of the Education Act. I have not been able to find a single instance to the contrary. A particularly clear example of the distinction being maintained is section 36 of the Children Act. This deals with education supervision orders. They are made by a court on the application of a local education authority. But before making an application, the local education authority must consult the social services committee of the relevant local authority. That local authority may, of course, be the local authority that is, under the Education Act, the local education authority. This is a clear legislative recognition of the distinction between the separate functions of a local authority and a local education authority. It is also a clear use of distinctive legislative language to identify the separate capacities in which the local authority may operate. Against that background of legislative drafting, I would not expect a reference to a local authority in the context of care to include a reference to the local authority in its capacity as a local education authority.
28. Second, the powers and duties of a local education authority are different from those of a local authority's social services function. A local education authority has no power to provide day to day care for a child within the meaning of the child support legislation. It may fund a boarding place for a child at a school. But that is not providing care. The school may provide care, but not the local education authority. That authority is not concerned with care. It is concerned with education provision. Its involvement with care is different from that conferred on the local authority in exercise of its social services functions. It lacks the direct and immediate concern with care that is apparent in those functions. Any accommodation that it funds is ancillary to the main purpose of providing education.
29. Third, there is authority. Mr Commissioner Mesher has decided that a local authority only provides day to day care if it is provided directly rather than indirectly: see CCS/1324/1997, paragraph 11. I respectfully agree with the distinction that he was attempting to draw in that case, although I am not persuaded that the language of direct and indirect provision is sufficient to convey the distinction. My concern is that it may not sufficiently take account of the different ways in which a local authority may provide for the accommodation and maintenance of a child under section 23(2) of the Children Act. In CCS/4451/2002, paragraph 34, Mr Mesher was kind enough to suggest that my approach in R(CS) 11/02 was 'perhaps another and better way of putting the same basic point'. This remark confirms my suspicion that Mr Mesher and I are struggling to find appropriate language in which to draw the same distinction.

The Secretary of State's argument

30. The local authority's argument is that Daniel is at a boarding school. If this is correct, regulation 27 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 is relevant. It applies if two conditions are satisfied: (a) the child must be 'a boarder at a boarding school' (b) with the result that 'the person who would otherwise provide day to day care is not doing so.' If those conditions are satisfied, the effect is that section 3(3)(b) of the 1991 Act, which defines person with care, is modified to apply to the person who would otherwise usually be providing day to day care for the child.
31. Regulation 27 must include boarding school places funded both privately and from public funds. There is nothing in its language or in its context to limit it to private funding. If the place is provided from public funds, those funds will come from the local education authority. Mr Commissioner Mesher came to the same conclusion in respect of funding in the exercise of a local authority's social services functions: see CCS/4451/2002, paragraph 24.
32. Mr Commissioner Mesher has written that 'the ordinary meaning of boarding school covers any institution which is a school and which provides overnight residence for some pupils': CCS/4451/2002, paragraph 24. I confess to being in two minds whether the combination of school and hostel in this case are sufficient for the school to be boarding school. However, I do not have to resolve this issue, because the outcome is the same whether or not regulation 27 applies. Daniel's mother is his person with care, whether regulation 27 applies or not.
33. Assuming that the school is boarding school, how does regulation 27(2) apply? If a child is at boarding school, the school has day to day care of the child. Otherwise, regulation 27 would be unnecessary. If Daniel is a boarder at a boarding school, I have to consider who would usually be providing day to day care if he were not. Daniel's mother argues that she would be providing his care. His father argues that she would not, because could not cope. He argues that this was the reason why Daniel was sent to his school – so that he could be accommodated in the school's hostel.
34. I have concluded that Daniel's mother is correct. She would be providing his day to day care if he were not staying in the school's hostel. She is the natural person who would provide that care. His father has not suggested that he would be able to provide it. As to the father's assertion that the mother could not manage, there is no evidence to support that assertion in respect of the time with which this appeal is concerned. So, taking an overall view of the matter at the relevant time, Daniel's mother would be providing day to day care if the school were not.
35. Assuming that the school is not a boarding school, what is the position? The evidence shows that Daniel is often absent from school because of his health. Even if the school were providing day to day care on the nights when he stayed in the hostel, his mother would still be the person who usually provided day to day care for the purposes of section 3(3)(b) of the Child Support Act.

Conclusion

36. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 29 August 2003