UK Social Security and Child Support Commissioners' Decisions

 


[2004] UKSSCSC CCS_2330_2003 (05 August 2004)

PLH Commissioner's File: CCS 2330/03

CHILS SUPPORT ACTS 1991-1995

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Appellant: [the absent parent]

Respondents: (1) Secretary of State

(2) [the parent with care]

Appeal Tribunal: Leicester

Tribunal Case Ref:

Tribunal date: 26 February 2003

Reasons issued: 2 April 2003

1. This appeal by the mother and absent parent of the children concerned is allowed in part, as although the decision of the chairman Mrs Mbatha sitting alone at Leicester on 26 February 2003 was right so far as it went in dealing with the arrangements for care of the children as they stood at the effective date of the original assessment on 8 January 2002, the problem is that it did not go far enough. In accordance the principles laid down by a Tribunal of Commissioners in case CIB 4751/02 and others, what the tribunal could and should have done in this case on 26 February 2003 was to go on and consider also whether there should have been any alteration in that assessment from 24 May 2002 onwards, having regard to the evidence of a possible material change of circumstances having taken place before the date of the Secretary of State's decision under appeal.
2. I accordingly:

(1) confirm the tribunal's decision as regards the period from the effective date of 8 January 2002 down to and including 23 May 2002, with the result (which is not disputed) that the original assessment in the sum of £50.52 per week is to remain in force and effect for that period;

(2) as regards the period from 24 May 2002 onwards remit the case to either the same or a differently constituted tribunal to hear and determine the question whether the care arrangements for the children had been shown by circumstances obtaining down to and including the date of the Secretary of State's decision under appeal on 5 August 2002 to have materially changed so as to require some different maintenance assessment for all or any part of that period: cf. paragraph 15 Schedule 1 Child Support Act 1991.

3. Since each of the parents wishes to give further oral evidence about the factual issues relevant to that question and the course I am taking will allow them both to do so before the tribunal, I decline the requests each of them made for an oral hearing of this present appeal which is concerned only with questions of law.
4. The history of this case is a sad example of the inability of the child support legislation to provide satisfactory answers, within a reasonable time from the weeks concerned when such answers are actually needed, to how much an absent parent should contribute to the maintenance of his or her children. Some of the difficulty is due to a system which requires the Secretary of State and the Child Support Agency to be constantly chasing a moving target: in this particular context, the care arrangements that parents make for their children which quite naturally change for all sorts of reasons from time to time, causing what are often disproportionate effects in cash terms according to whether the case happens to count as one of "shared care" under the regulations or not. Such systemic difficulties were however made a lot worse in the present case by the child support agency's erratic handling of it in 2002. The "sequence of events" described in the Secretary of State's submission to the tribunal on page 6 records no less than five separate attempts in under three months (after an initial delay of at least another three) at deciding what the children's mother was liable to pay for them from 8 January 2002. These are identified successively as an assessment decision, a supersession, a revision, another revision, and finally a revision of the second revision: the amount of the assessment swinging back and forth between £50.52 and £27.89 per week according to whether she was or was not treated as having "day to day care" of her children for more than the threshold of 104 nights per week on a hypothetical annual basis.
5. The appeal to the tribunal was against the last of those five decisions: the revision of the second revision. It was given on 5 August 2002, and purported to reduce the mother's liability back down again to £27.89 a week, retrospectively for the entire period back to the original effective date of the assessment on 8 January 2002. It was I think a plainly misguided decision, in that it purported to "revise" the assessment back to the start on the basis of information about something that only happened much later, on or about 24 May 2002, when there was a fresh supplemental agreement reached between the parties by way of settlement of a court application due to be heard on that date: see the solicitors' correspondence at pages 14 to 15 recording the agreement. Quite how such a fresh agreement could justify a revision of the assessment from the outset, rather than being the occasion for considering whether it should if necessary be altered from the date of the fresh agreement if that caused a material change, is difficult to see: yet this crucial distinction seems to have been completely overlooked by the agency's officers dealing with the case. A great deal of time and trouble could have been saved if just one, more rationally thought-out, decision could have been given and explained to the parents at that stage; and it is surprising that such an obvious defect was left unremedied when yet another decision (by my count, the 6^th in the series) was made by another officer on 27 September 2002, as recorded on page 7, that on a full reconsideration he or she was "unable" to revise the revision of the revision.
6. Although the tribunal's reasoning and analysis of the evidence relating to the care arrangements at the original effective date of the assessment on 8 January 2002 is not as clearly expressed as it might be, there is in my judgment no doubt that the right result was reached for the initial period from then to the later agreement in May. Indeed this is not disputed by the children's mother, who says in her observations in reply dated 22 September 2003 at page 80 that she is not disputing the correctness of the amount of maintenance she was paying in the period from January to May 2002, which as shown in the schedule on page 6 was the higher amount of £50.52 per week under the assessment at that time in force.
7. That original assessment had been on the basis that she was looking after the children for less than the equivalent of 104 nights a week over the material period, so this was not a case where the maintenance assessment should be reduced for "shared care". The material period for that assessment, as quite correctly recorded by Mrs Mbatha in the reasons for her decision issued to the parties on 2 April 2003 at pages 57 to 58, was prescribed by regulation 1(2) Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI No. 1815 as the 12-month period ending with the "relevant week" (which in this case was the week ending 9 January 2002), or more pertinently:

"(b) where, in the opinion of the Secretary of State, a period other than 12 months is more representative of the current arrangements for the care of the child in question, care during that period …" proportionally equivalent to 104 nights in 12 months.

8. Since as found by the tribunal chairman the children's parents only separated in May 2001, a full 12-month calculation was clearly inappropriate, and indeed impossible; and she quite correctly took instead a period of six months ending with the relevant week as representative of the arrangements current at the effective date on 8 January 2002. On the basis of the father's sworn oral evidence, which she found perfectly credible and consistent with the documentary evidence about the agreed contact arrangements in force up to that time, she found that the children's mother had in fact had care of them for a total of 36 nights over the six months and as that fell short of half 104, the requirements for "shared care" were not met. On that basis she reversed the Secretary of State's most recent "revising" decision so that the maintenance assessment from the effective date of 8 January 2002 was restored to where it had been originally, £50.52 per week.
9. Thus far, the decision was in my judgment impeccable and as now accepted by the children's mother there are no grounds for challenging it: an earlier contention in her notice of appeal that any period prior to 8 January 2002 should be treated as "irrelevant" is of course quite inconsistent with the regulations when one looks at them, and she has rightly not pursued it. It is the way in which the possible effect of changes in the arrangements from 24 May 2002 onwards were dealt with, or rather not effectively dealt with, in the decision that forms the real ground of the appeal. As recorded in paragraphs 7 to 8 of the statement of reasons the chairman accepted that the care arrangements between the two parents had in fact been changed in May 2002, though she also said she formed the view that verbal agreements had not always been complied with, and quite correctly directed herself that the crucial question in determining issues of day to day care is what actually did take place, not what was expected to take place, or written down on a piece of paper.
10. As is apparent from what she said, she found the evidence about the changed arrangements inconclusive; though it has to be said the stated reasons leave it unclear exactly what period she is regarding as relevant for the calculation in that context. Since the evidence of a change in the arrangements from 24 May 2002 onwards was clearly before her, and had been before the Secretary of State's officer making the decision under appeal on 5 August 2002, it can now been seen in the light of the Tribunal of Commissioners' decision referred to above that at this point the chairman fell into error. She should have gone further into what changes actually took place from 24 May 2002 onwards, and made and recorded her own findings as to whether the children's mother counted as having "day to day care" from or after that date so as to turn the case into one of "shared care" at any point before the date of the decision under appeal on 5 August 2002, even if it had not been so originally on 8 January of that year.
11. It is correctly conceded in the further submission on behalf of the Secretary of State dated 24 March 2004 at pages 147 to 148 that the jurisdiction of a tribunal in such circumstances extends to making the correct decision that ought to have been made by the Secretary of State at the date of the decision under appeal, regardless of whether in formal terms that should have been expressed as "revising" or "superseding" whatever was in place before. In the circumstances of this case I am satisfied that the jurisdiction ought to have been exercised not only by reversing the original "revision" from the effective date of 8 January 2002 as Mrs Mbatha did, but also by addressing as a further material issue whether the Secretary of State ought on 5 August 2002 to have superseded or altered the original assessment from some later date instead.
12. The two parents' attention ought therefore to have been drawn to that as a separate point so that they could each make out a case on whether there should have been an alteration of the assessment by way of a "superseding decision" to reflect a material change of circumstances, rather than the purported "revision" right back to the original date wrongly imposed by the Secretary of State's officer. Since the children's mother was not present at the tribunal hearing (according to her the agency had taken it on itself to advise her she was bound to win, and therefore need not attend), the only practical course for the chairman to dispose of the case fairly would I think have been to adjourn for further evidence and argument on the "change of circumstances" point so that all parties had fair warning of it as a separate issue and were not taken by surprise.
13. For those reasons, although in my judgment there was nothing wrong in law in Mrs Mbatha's decision as regards how matters stood on the original effective date of 8 January 2002, she was wrong to stop at that point and the only fair course is for the case to be remitted to the tribunal now to address the further question of whether some different assessment should have been substituted for all or any part of the period from the date of the altered agreement on contact arrangements on 24 May 2002.
14. I therefore give the decision set out above, confirming the higher amount of the original assessment for the period from the effective date down to and including 23 May 2002, and remitting the case for the question of whether there should be any alteration after that date to be reheard and determined. I am sorry that the need to wait for, and give the parties an opportunity of commenting on, the Tribunal of Commissioners' decision (whose exceptional length and complexity bears witness to the difficulties caused by the 1998 Act for this and other cases) has meant that this decision has been delayed until now, and I hope that a rehearing can now be arranged in a relatively short time so the parties can finally know where they stand.

(Signed)

P L Howell

Commissioner

5 August 2004