UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CCS_3488_2004 (16 February 2005)

 


DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I set aside the decision of the Derby appeal tribunal dated 6 May 2004, as it is wrong in law for the reasons given below. The case is referred to the Secretary of State for determination in accordance with the directions given in paragraph 35 below (Child Support Act 1991, section 24(3)(d)). As is explained below, I have rejected the reasons put forward in writing by the Secretary of State for the appeal tribunal having gone wrong in law, but have accepted one of the reasons put forward by the parent with care and also adopted some other reasons indicating that the decision was unduly disadvantageous to the absent parent. My directions in paragraph 35 below direct the Secretary of State what decision to give for the periods from 3 August 2002 to 30 August 2002 and from and including 23 December 2002, leaving for further determination by the Secretary of State the decision for the period from 1 September 2002 to 22 December 2002 and any re-examination of the period prior to 3 August 2002. I also in paragraph 36 request the Secretary of State to investigate the calculation of outstanding liabilities of the absent parent and any liability order or orders in the light of the decisions to be given under paragraph 35.

The background

2. The decision under appeal to the appeal tribunal was the Secretary of State's refusal on 31 March 2003 to cancel the interim maintenance assessment (IMA) of £137.01 per week that was in effect from 14 June 2001 as the result of a decision made on 12 June 2001. As carefully explained in the appeal tribunal's statement of reasons, the parent with care had applied in November 1999 for a review of the maintenance assessment then in effect. The absent parent was required by the Child Support Agency (CSA) to provide information as to his earnings and outgoings. It was considered that he had not provided sufficient information to enable the completion of the review and a category A IMA was imposed as above with effect from 14 June 2001. The absent parent appealed against the decision of 12 June 2001, but the appeal was not admitted by an appeal tribunal chairman as it was made outside the absolute 13 month time limit. The appeal tribunal of 6 May 2004 ruled, rightly, that the appeal before it could not be treated as including an appeal against the decision of 12 June 2001.
3. There was a great deal of correspondence and telephone calls between the absent parent and the CSA. The CSA took the view that sufficient information had still not been provided. A liability order was made. In a letter dated 19 June 2002 to the CSA, the absent parent said that he had decided to become unemployed and claim benefit and asked for confirmation that the penalty payments would cease. That has been taken as an application to supersede the decision of 12 June 2001 on the ground that information had been received enabling a formula maintenance assessment to be calculated from a date after 14 June 2001 (regulation 20(6) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (the MAP Regulations). A letter dated 17 September 2002 from his solicitors to the CSA said that his company had ceased trading on 30 July 2002, but gave no information about any claims for or entitlement to benefit. On 31 March 2003, the CSA wrote to the absent parent, saying that he had asked them to cancel the IMA, but that it had been decided that it could not be cancelled because the relevant information had not been supplied.

The appeal to the appeal tribunal

4. The grounds of the absent parent's appeal against that decision were drafted by his solicitors. They challenged the rightness of the original imposition of the IMA and said that the absent parent had supplied all the information he could and had since 12 June 2001 supplied updated financial information. The grounds concluded:

"Indeed notification was made to the Child Support Agency in June 2002 to the effect that he was no longer self employed and that he was now in receipt of Job Seeker's Allowance. Accordingly, the continued imposition of the interim maintenance assessment should have ceased given the relevant change of circumstances with respect to [the absent parent], which was notified to the Child Support Agency at that stage."

5. The written submission to the appeal tribunal on behalf of the Secretary of State set out the history and maintained the position about insufficient information having been provided, without saying anything about the effect that receipt of income-based jobseeker's allowance (JSA) would have on the calculation of an ordinary formula assessment or reporting any attempt to obtain information about benefit entitlement. When the case first came before the appeal tribunal on 4 March 2004, the absent parent could not remember the exact date his entitlement to income-based JSA began. There was an adjournment with a direction for him to produce, by 31 March 2004, evidence of that date, the date the award was made and the date on which the CSA was told of the change of circumstances. The CSA was directed to provide, by the same date, a submission dealing with the same points and with whether the IMA should have been superseded from the date on which the CSA became aware that the absent parent was in receipt of state benefits. The absent parent sent in a letter from the Department for Work and Pensions (jobcentreplus) dated 8 April 2004 stating that he had received income-based JSA for the periods from 30 July 2002 to 30 August 2002, 20 December 2002 to 1 October 2003 and 4 March 2004 to the present. The CSA provided no written submission in compliance with the appeal tribunal's directions. The presenting officer representing the Secretary of State on 6 May 2004 commendably took steps to obtain copies of computer records of the JSA awarded to the absent parent. Those records showed the claim as made on 30 July 2002, but showed the periods for which payment was made as running from 3 August 2002 to 30 August 2002, from 23 December 2002 to 1 October 2003 and then from 7 March 2004. That seems to me to be in line with the rule that there can be no entitlement to JSA for the first three days (the "waiting days") of a jobseeking period.
6. The oral submission made on behalf of the Secretary of State at the hearing on 6 May 2004 was that as from 30 July 2002 the IMA should be superseded and replaced by the minimum assessment. The parent with care suggested that income-based JSA had not been properly awarded, in view of the resources available to the absent parent, and might have been obtained by fraud.

The appeal tribunal's decision

7. The appeal tribunal allowed the absent parent's appeal. Its decision, after a correction of an accidental error, was that the category A maintenance assessment was cancelled from 29 July 2002 and that the absent parent was to pay the minimum amount of £5.40 per week from and including 30 July 2002. In the statement of reasons, the appeal tribunal adopted the principle of law that, if satisfied that income-based JSA had in fact been awarded for particular periods, it was not entitled to question whether that award had been made properly. It was found that the absent parent had been awarded income-based JSA on 30 July 2002 and that he had notified the CSA in his letter of 19 June 2002 of his intention to claim. That was all the information that was necessary in order to make an assessment, so that the condition for superseding the IMA was met.

The appeal to the Commissioner

8. The Secretary of State and the parent with care now appeal against that decision with the leave of the chairman of the appeal tribunal. It was not clear from the Appeals Service documents whether the chairman had intended to grant of leave to the Secretary of State as well as to the parent with care, although there is certainly no record of the Secretary of State's application having been refused. When giving directions on the case on 27 October 2004, Mr Commissioner Williams directed that the Secretary of State was to be the first appellant and the parent with care was to be the second appellant and that there was to be an oral hearing of the appeal.
9. The hearing took place at Doncaster County Court on 25 January 2005. The parent with care did not attend, due to ill-health, and requested that what she had previously written should be taken into account. The absent parent did attend. The Secretary of State was represented by Mr Huw James, solicitor, instructed by the Office of the Solicitor to the Department for Work and Pensions.

The legislation on the effect of payment of income-based JSA

10. Before dealing with the arguments about whether the appeal tribunal went wrong in law, it may help to set out how under the child support legislation the receipt of income-based JSA by an absent parent affects the calculation of a maintenance assessment. There is a very complicated chain. It starts with paragraph 5(4) of Schedule 1 to the Child Support Act 1991 (the 1991 Act), which requires a parent to whom any of various benefits, including income-based JSA, is paid to be treated as having no assessable income for child support purposes. If it is an absent parent concerned, that would inevitably lead to the calculation of a maintenance assessment of nil, as the calculation could never produce a liability in excess of the absent parent's assessable income. Paragraph 7(2) of Schedule 1 provides that where the amount of a maintenance assessment would otherwise be nil, the amount is to be the prescribed minimum amount (ie £5.40 per week as at July 2002). However, under paragraph 7(3), that rule does not apply in any case to which section 43 of the 1991 Act applies or in other cases prescribed in regulations. Section 43(1) provides:

"(1) This section applies where--

(a) by virtue of paragraph 5(4) of Schedule 1, an absent parent is taken for the purposes of that Schedule to have no assessable income; and

(b) such conditions as may be prescribed for the purposes of this section are satisfied."

Section 43(1) thus leaves one little wiser (and I shall have to come back later to what the other subsections do). One has to look at the regulation prescribing the conditions under subsection (1)(b). That is regulation 28(1) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (the MASC Regulations):

"(1) Where the condition specified in section 43(1)(a) of the Act is satisfied in relation to an absent parent (assessable income to be nil where income support, income-based jobseeker's allowance or other prescribed benefit is paid), the prescribed conditions for the purposes of section 43(1)(b) are that--

(a) the absent parent is aged 18 or over;

(b) he does not satisfy the conditions in paragraph 3(i)(a) or (b) of the relevant Schedule (income support family premium) and does not have day to day care of any child (whether or not a relevant child); and

(c) his income does not include one or more of the payments or awards specified in Schedule 4 (other than by reason of a provision preventing receipt of overlapping benefits or by reason of a failure to satisfy the relevant contribution conditions)."

11. Stopping there for a moment, the result in the present case, as at the first day for which income-based JSA was paid to the absent parent, would be this. He would be deemed to have no assessable income, so that a maintenance assessment would be of nil, except that he would be subject to the rule imposing a minimum amount (paragraph 7(2) of Schedule 1 to the 1991 Act). He would only be exempted from that rule if all three of the conditions under section 43(1) and regulation 28(1) were met, as well as being deemed to have no assessable income. There is no suggestion that the claimant was receiving any of the other benefits specified in section 43(1)(c) (such as incapacity benefit and various disability benefits). Thus, as at that date he satisfied conditions (a) and (b) (as he did not have a child or young person as a member of his family or have day to day care of any child), all three conditions were met. He would therefore be exempt from the rule imposing the minimum amount. I shall have to come back below to the dates within the period that could be considered by the appeal tribunal (ending on 31 March 2003) in which the absent parent was not paid income-based JSA and from which the absent parent did have day to day care of a child (he and his new wife having had a baby on 7 January 2003, as had been mentioned in letters from the parent with care that were before the appeal tribunal).
12. In circumstances where there is exemption from the minimum amount rule because section 43(1) applies, section 43(2) must be considered:

"(2) The power of the Secretary of State to make regulations under section 5 of the Social Security Administration Act 1992 by virtue of subsection (1)(p) (deductions from benefits) may be exercised in relation to cases to which this section applies with a view to securing that--

(a) payments of prescribed amounts are made with respect to qualifying children in place of payments of child support maintenance; and

(b) arrears of child support maintenance are recovered."

Regulation 28(2) of the MASC Regulations makes the prescribed amount under section 43(2)(a) the same as the minimum amount of child support maintenance. I had to look at those rather mysterious provisions in another appeal that I decided in 1997 (CCS/16904/1996). The mystery is that section 43(2) allows regulations to be made for deducting payments in place of child support maintenance from various benefits and regulation 28(2) defines the amount of the payment in place, but there is nothing that in so many words imposes an obligation on an absent parent to make such a payment. In paragraph 21 of CCS/16904/1996 I held that the obligation arose from the general responsibility for maintaining a qualifying child imposed by section 1(1) of the 1991 Act on each parent. The absent parent in CCS/16904/1996 appealed my decision to the Court of Appeal, under the name of Dollar v Child Support Officer, reported as R(CS) 7/99. There was not a specific challenge to the holding just mentioned, but the Court of Appeal proceeded on the basis that there was a liability to make the payments identified in section 43(2). I see no reason to depart from what I said in CCS/16904/1996.

"Lawfully" paid

13. I should also say as a preliminary matter that I follow and apply the decision of the Court of Appeal in Secretary of State for Social Security v Harmon and other cases [1999] 1 WLR 163, reported as R(CS) 4/99. It was held there that, in deciding whether a parent was paid a prescribed benefit for the purposes including those of paragraph 5(4) of Schedule 1 to the 1991 Act, the question in child support cases was only whether the benefit was actually paid, not whether it was lawfully paid. Mr James very properly drew my attention to the decision of a Northern Ireland Tribunal of Commissioners in CSC7/03-04. There, in the slightly different context of an application for a departure direction, the Commissioners held that "in payment" meant "lawfully in payment". There is an appeal in that case to the Northern Ireland Court of Appeal, under the name of MacGeagh, which is due to be heard at the end of April 2005.
14. However, the decision in the present case should not be deferred to await the outcome of that appeal. First, even if the Northern Ireland Court of Appeal were to uphold the decision in CSC7/03-04 in a way that indicated that it considered the decision in Harmon etc to be wrong, that would merely leave a conflict between the two decisions. I would be bound to follow Harmon as a decision of the Great Britain Court of Appeal. Second (and the main reason), even if the law allowed consideration in the present case of whether income-based JSA had been properly or lawfully awarded from 3 August 2002, there should only be an investigation if there were some fairly specific contentions made, preferably backed by evidence, indicating that the award was wrong. Here, the parent with care's contentions about the award of income-based JSA seem to have been based on general suspicions about the absent parent's financial dealings and the possibility that he might have been fraudulent and/or concealed income and on his lifestyle (eg running a Mercedes car) not being consistent with living on benefit. Especially as the value of personal possessions (such as a car) is disregarded for purposes of entitlement to income-based JSA, those contentions fall well short of what would justify any investigation, if it were allowed, of whether the benefit was properly awarded.

The Secretary of State's grounds of appeal

15. I can now consider the respects in which the Secretary of State submits that the appeal tribunal went wrong in law. It is said first that, although the appeal tribunal was right to conclude that the IMA was to be superseded under regulation 20(6) of the MAP regulations, it was wrong to give a superseding decision that the absent parent was liable to pay the minimum amount of £5.40 from and including 30 July 2002. The conditions for that liability were not met, only the conditions for deductions from benefit of payments in place of child support maintenance. One can have little general sympathy with the Secretary of State on this issue. First the officers of the CSA ignored the potential relevance of an award of income-based JSA to the absent parent in making the decision of 31 March 2003 and in making the written submission to the appeal. Then the specific directions of the chairman of the appeal tribunal to deal with the issue in a further submission were disregarded. The presenting officer at the hearing on 6 May 2004 suggested, according to the chairman's records of proceedings (page 581), that the assessment should be changed from 30 July 2002 to the minimum amount payable. Now the Secretary of State complains that the appeal tribunal was wrong to give the decision that had been submitted on behalf of the Secretary of State to be the proper one. That is not an attractive stance.
16. I would not have overturned the appeal tribunal's decision merely because the same amount to be paid, £5.40 per week, was given the wrong label. But there was a more substantial point put forward for the Secretary of State. This was that, if the absent parent's liability from 30 July 2002 was only to make a payment in place of child support maintenance, not that there should be a maintenance assessment at the minimum rate, that liability could only be given effect through deduction from benefits. Accordingly, in its nature, a decision under section 43(2) of the 1991 could only be given effect for a period forward from the date on which it was made and could not be given effect for a past period. Thus, it was said, although the IMA was to be superseded with effect from 30 July 2002, it could only be replaced from that date by a child support assessment of nil. Deductions from benefit in accordance with section 43(2) of the 1991 Act could not start before 6 May 2004.
17. I reject the Secretary of State's submission. It follows from what I have held in paragraph 12 above that the liability to make a payment in place of child support maintenance arises independently of the mechanism established under section 43. The mechanism of deduction from social security benefits is a convenient one and no doubt in the great majority of cases a decision that section 43 applies will be made with a view to future deductions being made. But in my judgment that is only one mechanism for giving effect to the underlying liability under the 1991 Act (see the reference in section 43(2) to social security regulations being made "with a view to securing" that the required payments are made). I see no reason why in circumstances such as those before the officer acting on behalf of the Secretary of State on 31 March 2003, a decision should not be made on supersession of a past decision and having effect from a past date, if the rules on the effective dates of superseding decisions allow it, that there was a liability to make payments in place of child support maintenance under section 43 and regulation 28 of the MASC Regulations. That being so, it was also within the power of the appeal tribunal hearing the appeal against the decision of 31 March 2003.
18. There is no doubt that, if a ground of supersession of an IMA under regulation 20(6) of the MAP Regulations is made out, the superseding decision takes effect from the week in which the information necessary to make a formula assessment is received. Regulation 20(6) provides:

"(6) An interim maintenance assessment may be superseded by a decision made by the Secretary of State where he receives information which enables him to make a maintenance assessment calculated in accordance with Part I of Schedule 1 to the Act for a period beginning after the effective date of that interim maintenance assessment."

Regulation 23(12) provides:

"(12) Where the Secretary of State supersedes a decision in accordance with regulation 20(6), the superseding decision shall take effect as from the first day of the maintenance period in which the Secretary of State has received the information referred to in that paragraph."

That is also consistent with regulation 8D(5) of the MAP Regulations:

"(5) Subject to paragraph (6), an interim maintenance assessment shall cease to have effect on the first day of the maintenance period during which the Secretary of State receives the information that enables him to make the maintenance assessment or assessments in relation to the same absent parent, person with care and qualifying child or children, calculated in accordance with Part I of Schedule 1 to the Act."

Paragraph (6) does not appear to add anything relevant to the circumstances of the present case, but further confirms that where the information received does not enable a formula assessment to be calculated from the beginning of the period covered by an IMA, the IMA only ceases to have effect from the week from which an assessment can be calculated in the light of the information.

19. Thus, the appeal tribunal had power to supersede the IMA, and to make in its place a decision that the absent parent was liable to make payments (at £5.40 per week) in place of child support maintenance from the week in which information about the receipt of income-based JSA was received. However, at this point there is a significant weakness in the appeal tribunal's reasoning. The appeal tribunal relied on the absent parent's letter of 19 June 2002, but that merely stated an intention to claim some unspecified benefit in the future. That cannot in my view be regarded as information that one of the particular benefits specified in and under paragraph 5(4) of Schedule 1 to the 1991 Act was in payment from a particular date following an award. Only such specific information would enable a maintenance assessment of nil to be calculated. Then none of the other documents before the appeal tribunal mentioned the receipt of income-based JSA (certainly not the solicitors' letter of 17 September 2002) until the grounds of appeal to the appeal tribunal dated 19 August 2003. They asserted, wrongly, that the absent parent had notified the CSA in June 2002 that he was in receipt of JSA. The appeal tribunal's decision that sufficient information had been received by the Secretary of State on 30 July 2002 to enable him to calculate a formula maintenance assessment of nil had a flawed basis.
20. However, the appeal tribunal's decision should not be overturned on that ground. That is because of regulation 8D(8) of the MAP Regulations:

"(8) Where the information or evidence referred to in paragraph (6)(a) or (b) is that there has been an award of income support or income-based jobseeker's allowance, the Secretary of State shall be treated as having received that information or evidence on the first day in respect of which income support or income-based jobseeker's allowance was payable under that award."

In my judgment, the rule contained in that provision applies generally for the purposes of the MAP Regulations, including regulations 20 and 23. The reference to paragraph (6) of regulation 8D is only to information enabling a formula assessment to be made. Accordingly, the Secretary of State was deemed to have received the information about the award of income-based JSA to the absent parent on 3 August 2002 (which I have concluded from the computer records was the first day for which benefit was payable). The appeal tribunal was in substance right about the date of effect of its decision, although it did not identify the right legal basis. The discrepancy of a few days is something that I can correct in my decision and that might not on its own have justified setting aside the appeal tribunal's decision.

21. The upshot of all that is that I reject the substance of the grounds put forward for the Secretary of State for saying that the appeal tribunal's decision ought to be set aside as wrong in law.

The parent with care's grounds of appeal

22. I look first at the grounds raised in the parent with care's letter dated 26 July 2004. She submitted that the IMA should have remained in effect until the absent parent had produced the information that had been asked for before he went onto JSA. I see the thinking behind that submission, but it does not work in the light of the legislation discussed above. An IMA ceases to have effect and must be superseded when the Secretary of State has received information enabling a formula maintenance assessment to be made. Information that income-based JSA has been awarded and is being paid to an absent parent is such information, because it inevitably means that there must, from the first day of the period of payment, be a maintenance assessment of nil. And the Secretary of State is deemed to have received that information at the beginning of the period of payment under the award, whenever he actually learned about it. It is, though, clear, to respond to another of the parent with care's points, that the IMA was to remain in effect for the period from 14 June 2001 down to (as I consider accurate) 2 August 2002. The superseding decision could only operate from 3 August 2002 onwards. The parent with care also raised the question of the amount payable by the absent parent for the period before 14 June 2001, effectively saying that an IMA for failing to provide required information should have been made at an earlier date, given that her application for review was made in March 1999. The chairman of the appeal tribunal rightly recognised that that was not something that could be dealt with in an appeal against the decision of 31 March 2003, although he asked the CSA to address the question urgently. I cannot take that matter any further.
23. The parent with care's final ground in the letter of 26 July 2004 was that there were substantial periods after 30 July 2002 in which the absent parent was not in receipt of income-based JSA (see the evidence mentioned in paragraph 5 above). The appeal tribunal was only able to take into account the circumstances obtaining down to 31 March 2003 (section 20(7)(b) of the 1991 Act). Within that period, the absent parent was not paid income-based JSA from 1 September 2002 to 22 December 2002. At the oral hearing, the absent parent explained that he was attending a college course for that term. For those days, the rules discussed above deeming the absent parent to have assessable income of nil would not apply. His actual income would have to be looked at. The IMA could not "revive" for that period. The IMA imposed from 14 June 2001 had ceased to exist because of the payment of income-based JSA from 3 August 2002 and had to be superseded. The issue for the appeal tribunal was what decision to make in its place. If there was then to be any question of an imposition of any IMA from any date after 3 August 2002 there would have to be a separate decision by the Secretary of State.
24. The appeal tribunal dealt with the period from 1 September 2002 to 22 December 2002 as follows in its decision notice:

"It appears from information I have received today that there have been breaks in [the absent parent's] claim for Jobseeker's Allowance since he claimed on 30.07.02. It appears to me that enquiries ought to be made to establish when and whether [the absent parent] notified the Agency when he ceased to claim JSA so that the CSA can consider whether to supersede the decision I now make."

In my judgment that was not a proper way to dispose of the appeal. The appeal tribunal had to consider what was the proper decision for the whole period before it. It was not adequate, or fair to the parent with care, to give a decision in favour of the absent parent on one factual basis from 30 July 2002 and then say that it was for the CSA to consider whether there should be a supersession in relation to a period prior to 31 March 2003, when it was known that for some part of that period the factual basis did not hold good.

Other points of law

25. Apart from the error of law that I have identified above, there are two other aspects of the evidence before the appeal tribunal that were not dealt with properly.
26. The first is that the absent parent had submitted that the IMA should not have been imposed in the first place and that, even if its initial imposition could not be challenged in law, he had given further and adequate financial information after 14 June 2001. The appeal tribunal made this statement in the decision notice:

"It also appears to me, although it was outside the scope of the appeal, that there was little merit in [the absent parent's] substantive argument that he had provided sufficient information so that he should not have had an Interim Assessment imposed in the first place. I do not feel that [the absent parent] has made a full and frank disclosure of his circumstances and I would like to think that the CSA will be rigorous in its future dealings with [the absent parent]."

It was no doubt correct that the propriety of the original imposition of the IMA was outside the scope of the appeal, but the absent parent had also argued that he had subsequently provided sufficient information to enable a maintenance assessment to be made (independently of the effect of the award of income-based JSA). That could be a ground for the IMA ceasing to have effect and for a supersession to take place. The officer making the decision on 31 March 2003 could have considered supersession on that basis from any date subsequent to 14 June 2001 and was not limited to the period from 20 June 2002 or from 30 July 2002. The appeal tribunal was in the same position and should have recorded a conclusion on the specific contentions made by the absent parent, although it appears from the statement above that the conclusion would have been against the absent parent.

27. The second additional error of law relates to the evidence that the absent parent and his new wife had a baby in January 2003. In a written response to the absent parent's appeal against the decision of 31 March 2003, the parent with care mentioned that the absent parent had married in April 2002 (page 62). In further evidence put forward on 23 February 2004, she mentioned that the first birthday of the child of the absent parent and his wife was 6 January 2004. At the oral hearing, the absent parent told me that the date of birth was in fact 7 January 2003.
28. The significance of that information is that from 7 January 2003 the absent parent would not have satisfied all three conditions in regulation 28(1) of the MASC Regulations, because he would have had day to day care of a child and would have satisfied the conditions for an income support family premium. Therefore, section 43 of the 1991 Act would not apply, so that no amount in place of child support maintenance would be payable from that date and paragraph 7(3) of Schedule 1 to the 1991 Act would exempt the absent parent from having a maintenance assessment of the minimum amount through the operation of section 43. However, paragraph 7(3) also operates in other cases that are prescribed in regulations. Regulation 26 of the MASC Regulations provides, so far as relevant:

"(1) Where the circumstances of a case are that--

(a) but for this regulation the amount prescribed in regulation 13(1) would apply; and

(b) any of the following conditions are satisfied--

(i) [income of the absent parent includes one or more of the payments or awards specified in Schedule 4];

(ii) an amount to which regulation 11(1)(f) applies (protected income: income support family premium) is taken into account in calculating or estimating under paragraphs (1) to (5) of regulation 11, the protected income of the absent parent;

[(iii) and (iv)]; or

(v) the absent parent is a person in respect of whom N (as calculated or estimated under regulation 7(1)) is less than the minimum amount specified by regulation 13(1),

the case shall be treated as a special case for the purposes of the Act.

(2) For the purposes of this case--

(a) the requirement of paragraph 7(2) of Schedule 1 to the Act (minimum amount of child support maintenance fixed by an assessment to be the prescribed minimum amount) shall not apply;

(b) the amount of the child support maintenance to be fixed by the assessment shall be nil."

29. That is fairly convoluted, but the absent parent would be within regulation 26(1)(a) and (b)(ii) from 7 January 2003. If it were not for regulation 26, the minimum amount of child support maintenance would apply and he would satisfy the conditions of entitlement to an income support family premium. The result under regulation 26(2) is that the maintenance assessment must be nil, rather than the minimum amount. As the appeal tribunal was considering the period down to 31 March 2003, its decision prima facie applied to all of the period from 30 July 2002 to 31 March 2003. It was wrong in law to give a decision that the maintenance assessment should be of the minimum amount of £5.40 for days from 7 January 2003 onwards (or that a payment of the same amount in place of child support maintenance should be made). After a short adjournment for consideration and the taking of instructions, Mr James agreed on behalf of the Secretary of State that the appeal tribunal had gone wrong in law in that way and that regulation 26 applied with effect from 7 January 2003.

The decision on the appeal to the Commissioner

30. For the reasons given in paragraphs 24, 27 and 30 above, I set aside the appeal tribunal's decision as wrong in law.
31. I am not in a position to substitute a complete decision on the absent parent's appeal against the decision of 31 March 2003. That course had been suggested on behalf of the Secretary of State, but on the basis (that I have rejected) that a decision imposing a liability under section 43 of the 1991 Act could not take effect before 31 March 2003. As my conclusion is that a liability under section 43 imposed by way of a superseding decision could have taken effect from 3 August 2002, I would have to consider the circumstances in the whole period from that date to 31 March 2003. In the period from 1 September 2002 to 22 December 2002, the result is not controlled by the payment of JSA, but I do not have evidence of the claimant's actual income for the purposes of a formula assessment for that period. So I cannot deal with the whole period before me.
32. An alternative would be to refer the case to a new appeal tribunal with directions. That would also give the absent parent an opportunity to re-argue his case that he had supplied sufficient financial information before 3 August 2002. However, at the oral hearing, he set his face against such a course. He said that he wanted closure on the whole issue and could not bear to have to argue everything out again at yet another hearing, even though he did not accept that he should have been made to pay the amount fixed in the IMA. It is also the case that there would have to be further investigation by the CSA in relation to the period from 1 September 2002 to 22 December 2002 before any new appeal tribunal would have the material on which to come to a decision.
33. The combination of those factors leads me to conclude that the best outcome is for me to refer the case to the Secretary of State for determination, in effect to determine afresh what should have been done by the officer who made the decision of 31 March 2003. Both parents will then have the right of appeal to an appeal tribunal against whatever decision is made.

Directions to the Secretary of State

34. That reference is subject to the following directions of law:

(a) The Secretary of State is to decide that the IMA imposed by the decision dated 12 June 2001 ceases to have effect and is to be superseded under regulation 20(6) of the MAP Regulations with effect from 3 August 2002;

(b) the Secretary of State is to decide that the superseding decision for the period from 3 August 2002 to 31 August 2002 is that the amount of child support maintenance is nil, but the absent parent is liable to make a payment of £5.40 per week in place of a payment of child support maintenance, under section 43 of the 1991 Act and regulation 28 of the MASC Regulations;

(c) the Secretary of State is to decide that the superseding decision for the period from 23 December 2002 to 6 January 2003 is to the same effect;

(d) the Secretary of State is to decide that the superseding decision for the period from and including 7 January 2003 is that the amount of child support maintenance is nil and that the absent parent is not liable to make any payment in place of a payment of child support maintenance under section 43 of the 1991 Act and regulation 28 of the MASC Regulations (and is to determine, according to the next subsequent date from which a maintenance assessment has come into effect by virtue of another decision, the period for which the decision under this sub-paragraph has a practical operation, subject to the possibility of use of the power to supersede for a change of circumstances);

(e) in relation to the period from 1 September 2002 to 22 December 2002, the Secretary of State is to make a decision as to the amount of child support maintenance after determining, following an investigation to obtain the necessary evidence, the amount of the absent parent's income as at the relevant week in relation to that period (see the definition of "relevant week" in regulation 1(2) of the MASC Regulations, which indicates that the week should be fixed according to the change of circumstances taking effect on 1 September 2002); and

(f) in relation to the period prior to 3 August 2002, the Secretary of State is to consider again, in the light of the request made in the absent parent's letter of 19 June 2002, whether he had provided sufficient evidence that the interim maintenance assessment should cease to have effect under regulation 8D(5) of the MAP Regulations at any earlier date.

35. One of the absent parent's prime concerns expressed at the oral hearing was that he had been made subject to liability orders covering a period or periods after 30 July 2002 that were based on the weekly amount of the IMA in force from 14 June 2001 and had not taken into account the appeal tribunal's decision bringing the IMA to an end with effect from 30 July 2002. I request that the Secretary of State should investigate that matter in conjunction with the making of the decisions directed in the previous paragraph and ensure that any outstanding liabilities on the part of the absent parent are recalculated in line with those decisions.

(Signed) J Mesher

Commissioner

Date: 16 February 2005