UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CIS_2455_2004 (16 February 2005)

CIS 2455 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal, but only in part for the reasons advanced by the Secretary of State. For the reasons below, the decision of the tribunal is wrong in law. The matter is referred to a different tribunal to consider the matter afresh.
2. The Secretary of State is appealing, with permission of a chairman, against the decision of the Barrow appeal tribunal on 17 March 2004 under reference U 06 061 2003 00343.
3. DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The claimant and her father are reminded that the tribunal can only deal with the appeal as at the date of the original decision in August 2002.

D The Secretary of State is directed to provide the tribunal with a new submission dealing with the points raised in this decision, and in particular with how the

Secretary of State, acting through the Child Support Agency, exercised his powers under the relevant regulations with regard to the payments of child support maintenance from the absent parent to the Secretary of State, and from the Secretary of State to the parent with care (the claimant). That submission is to be made to the appeal tribunal, and copied to the claimant and representative, within one month of issue of this decision.

These directions are subject to any later direction by a district chairman.

4. I held an oral hearing of this appeal on 6 December 2004 at Bury county court. The Secretary of State was represented by Mr Huw James for the Office of the Solicitor to the Department for Work and Pensions. The claimant was present and represented by her father, an accountant. I am grateful both to him and to Mr James for help with this appeal. I regret that the decision, because of its complexity, took longer to release than I indicated at the hearing.

The facts

5. The claimant, Ms M, has received income support for some years. Payments included an amount for her son S after his birth in June 1999. From January 2000 Ms M also received child support payment for S (for whom she was the parent with care) from S's father (and Ms M's former husband) to whom I refer as A. They were paid by A monthly to the child support agency (CSA) (for which the appellant, the Secretary of State is responsible), and promptly by CSA to Ms M. The office that paid the income support to Ms M (on behalf of the Secretary of State) was not aware that the CSA (on behalf of the Secretary of State) was also paying her child support maintenance. It was only in November 2001 that that office became aware of the other payment. When it found out, it reduced Ms M's weekly income support. There was a further decision that Ms M had been overpaid income support since the child support maintenance payments started. Ms M's father protested that it was wrong to reduce her income support because of the child support maintenance in this way. However, it appears that no effective appeal was made against those decisions so that is not before me.
6. In February 2003 A stopped making monthly child support maintenance payments. Ms M's income support was then increased. A made a payment of child support maintenance in June 2003. Ms M's weekly income support was then reduced, but the previous payments of income support were not affected. Ms M appealed against that reduction. Arguing on her behalf, her father contended that the income support should not be reduced. This was because the money received in June 2003 was arrears of child support maintenance, not a current payment. It should not be set off against current entitlement to income support. The local office did not agree. Ms M appealed. The tribunal agreed with her father's arguments and allowed the appeal. It is from that decision that the Secretary of State now appeals.
7. Because of the decision it took, the tribunal made minimal findings of fact about the payments of child support maintenance by A to the CSA or by the CSA to Ms M. The following is drawn from the appeal papers and is, for the purposes of this appeal only, assumed to be fact. I make no formal findings on these matters and they will need to be established, so far as relevant, before the appeal can be decided fully.
8. A letter from the CSA dated 15 May 2003 to Ms M states that the CSA received from A, and paid to Ms M, sums for child support maintenance on 21 January 2002 of £304.72, on 25 June, of £230, on 5 July of £230, on 12 August of £227.28, and on 14 September of £227.28. The letter does not state A's liability to pay or indicate on what dates A was liable to make payments. A further letter of 3 July 2003 states that from the effective date 26 February 2002, but implemented on 14 May 2002, A's weekly liability was £51.42. There is also (to me) a cryptic line in the letter that states under the heading "regular maintenance":

"01.06.02 to 27.06.03 = 2x4weekly at £205.68 = £411.36."

I assume, perhaps wrongly, that this means that the CSA asked A to make two payments of £205.68 on and following 1 June 2002. Most of the rest of the letter appears to be addressed to A, although it is actually addressed to Ms M.

9. The submission to the tribunal contains the statement that: "The CSA records show that the payment of £230 received on 25.06.02 was treated by them as a payment of regular maintenance to Parent with Care, no element of it was treated as a payment of arrears (page 26)". Page 26 is part of the letter of 15 May 2003, which shows the sum of £230 paid in and paid out on 25 June 2002 the payment out being recorded as "regular maintenance to parent with care". A computer screenprint dated 07/01/03 suggests that £230.00 was paid out to Ms M on 25 June 2002 as REG SUPP TYPE 10. (A handwritten note to the income support office from CSA Accounts indicates that "Type 10" means PWC regular maintenance). No later payments to Ms M are recorded on the screenprint. Nothing else in the papers gives any indication of what A was supposed to pay or when he was supposed to pay it.
10. The papers do not contain full details of the decision of 12 August 2002. The formal decision is that Ms M is entitled to income support of £50.10 weekly, including £57.50 from child support payments. But there is no calculation of or justification for that £57.50 or of the resulting £50.10. On the basis of simple arithmetic I assume – perhaps wrongly – that £57.50 indicates that the Secretary of State attributed the £230 evenly over four weeks forward from the date of payment regardless of the underlying liability of A to pay child maintenance support. If A's weekly liability was £51.42, then a four weekly payment starting from 1 June 2002 would mean two payments of £205.68 in June as against the one payment of £230 he made. This would equate with the letter noted above on which the Secretary of State claimed to be relying.
11. The final point on which there are no findings or clear submissions is that the decision was made on 12 August 2002, the day on which A paid in £227.28 to the CSA, and the CSA paid out £206.08 to Ms M as regular maintenance and £21.20 as arrears (see page 26, as above). So as of the day of the decision under appeal the statement in the submission to the tribunal was wrong in fact on the face of the submission itself. The CSA were making payments of arrears to Ms M. Again, it is not clear why the CSA considered that £206.08 was "regular maintenance" and the balance arrears, rather than some other sum. But neither the Secretary of State nor the tribunal considered the matter beyond the date of the payment in June 2002. Nor is there anything in the papers indicating any revision or supersession of the decision of 12 August 2002 since then to take account of the payments since June 2002.
12. The papers presented to the tribunal are therefore factually deficient in several ways, not least that there is no indication of A's then current liability to make payments in the period from 25 June to 12 August 2002.

The tribunal's decision

13. I have sympathy with the tribunal, particularly if the papers before me are – as they are supposed to be – those it saw. It was confronted with a difficult question of law and with only some of the facts. It was told in the submission before it from the Secretary of State that relevant rules were set out in Appendix A to the submission. That consists of photocopies of two pages out of an unidentified book. Neither include the key rules in issue. When this first came before the tribunal, there was also no presenting officer.
14. I set out the tribunal's statement fully as it encapsulates the issues and difficulties:

This appeal concerned the amount of income support payable to the Appellant after taking into account Child Support payments. The question itself was quite simple but the solution was somewhat difficult to elicit. Put at its simplest the Appellant was owed substantial sums by way of Child Maintenance from the absent parent through the Child Support Agency. During the period of her claim for Income Support payments were made by the absent father. Should these payments be set off against the arrears … or should they be dealt with on the basis that any sum received was allocatable to the current period with any surplus being set off against the arrears. It was clear from Regulation 9 of the Arrears Interest and Adjustment of Maintenance Regulations 1992 that the Secretary of State dealing with Child Support could attribute payments as he thought fit. Was the discretion of the Secretary of State for Child Support binding on the decision maker in respect of Income Support? The Presenting Officer drew attention to Regulation 60C of the Income Support (General) Regulations 1987. [The text was set out.]

Unfortunately the Presenting Officer was unable to explain the meaning of this paragraph and the Tribunal was at a loss to understand its meaning. According to the Shorter Oxford English Dictionary, the word "commute" means to change altogether or exchange, to change an obligation etc. into something lighter or more agreeable. This definition did not make the meaning any clearer. The commentary in the standard textbook (Wood Poynter &c) appeared to have equal difficulty in understand how the arrears of Child Support were intended to be dealt with. In the absence of any clear understanding of what was intended by the Regulations, the tribunal took the view that the normal common law rule should apply, i.e. that repayment of a debt should be applied to the earliest debt first (the Rule in Clayton's Case). That being so the Tribunal formed the view that sums paid by the father should be allocated to the arrears and treated as capital in the hands of the appellant until such time as the arrears had been discharged. It should be said that this decision was arrived at after some considerable hesitation but the result seemed to produce a fair and reasonable solution putting the appellant in the position she would have been in had the maintenance been paid on time.

15. I have to agree with Mr James that the tribunal did not apply the rules it was required to apply. It has to make a best guess at the meaning of a rule even if (as is too often the case with social security rules) the wording is obscure, the meaning far from obvious, and the assistance offered at the hearing minimal. Tempting as that alternative is, it cannot fall back on rules of equity, common sense or justice. I set aside the decision of the tribunal (including the reference to the rule in Clayton's case, a general rule for dealing with debts).

The issues

16. There are four issues to be decided:

(1) is a payment made by an absent parent subject to a child support maintenance assessment, but at a time when the absent parent is in arrears with the payments, a "payment of child support maintenance" for income support purposes?

(2) were there payments of child support maintenance in this case?

(3) on what date or dates is or are such payments made by an absent parent to the CSA and by the CSA to a parent with care treated as being received by the parent with care for income support purposes?

(4) in this case, what payments was A liable to make and Ms M entitled to receive, and when, and what payments did A in fact make, and Ms M in fact receive, and when, in the relevant period to 12 August?

The Income Support (General) Regulations 1987

17. The rules to be applied are in the Income Support (General) Regulations 1987. The usual rules about income not from employment or self-employment are disapplied by regulation 25A and replaced by regulations 60A to 60E. I set these out in the appendix to the decision.
18. The pattern of these regulations is as follows. Regulation 60A borrows various definitions from the Child Support Act 1991. Regulation 60B states that all payments "of" child support maintenance are, or are to be treated as, income for income support purposes. Regulation 60C sets out a series of rules designed to turn a payment by an absent parent into weekly amounts. Regulation 60B requires these be treated as weekly income. Regulation 60D provides rules to set the date on which any payment of child support maintenance is treated as being made, and from which it becomes weekly income. Regulation 60E provides that the Secretary of State's power under section 74A of the Social Security Administration Act 1992 overrides these rules. Section 74A is a power for the Secretary of State to retain payments of child support maintenance paid to the CSA rather than paying them to the parent with care and reducing that parent's benefit entitlement. The power is a general power and does not depend on that parent actually getting a reduction in benefit. In this case the Secretary of State did not retain any payments from A in the relevant period, and section 74A is not relevant. As all other relevant income support rules are excluded, this should be a comprehensive code dealing with all aspects of payments made by absent parents. As we shall see, it is not comprehensive. Therein lies part of the cause of the problems in this case.
19. One problem in understanding these rules is that they refer throughout to "payments" rather than receipts. As this case is about income support, not child support maintenance, it would normally be assumed that the concern is not with the precise nature of the payment made by the absent parent under the child support rules but with what is received by the parent with care under the income support rules. However, for these purposes the income support rules require that the nature of the payment be identified rather than the nature of the receipt.
20. The key identifying provision is regulation 60C. To apply that regulation, it must first be determined whether A's payment in June 2003 (and also in July and August 2002 as those were before the date of the decision under appeal) was a payment of child support maintenance, or a payment representing a commutation of child support maintenance, or something else. Once that is determined, it must then be determined under regulation 60D when the payment is treated as being made. It is those provisions, rather than what is received or when it is received, that fix the income support treatment of the sums.

Child support maintenance

21. Regulation 60A defines child support maintenance as "such periodical payments as are referred to in section 3(6) of the Child Support Act 1991". Section 3(6) of that Act provides that:

Periodical payments which are required to be paid in accordance with a maintenance assessment are referred to in this Act as "child support maintenance".

Section 54 defines "maintenance assessment" by reference to the amounts assessed under the Act, but neither "maintenance" nor "periodic payments" are defined further.

22. This definition imports into the income support rules the requirement that to be "child support maintenance" a payment must be (a) a periodical payment and (b) such a payment as is required under a maintenance assessment. That obviously applies where the absent parent is regularly paying a required weekly, monthly or other regular payment in the right amount and on time. What of the absent parent who does not pay an amount that he or she is required to pay, but some other amount, or who pays irregularly?
23. Regulation 60B appears to remove one problem where payment is erratic. If child support maintenance is not paid regularly, but a lump sum is paid at some point, then it could be argued that this was not a periodical payment but a payment of capital. Regulation 60B appears to avoid that outcome by treating all "payments of child support maintenance" as income. But it fails to achieve that object. If a payment is a payment "of" child support maintenance, then it must by definition be a periodical payment, and if it is a periodical payment then it must be income for income support purposes. See CIS 745 1999, following the decision of the Court of Appeal in Chief Adjudication Officer v Leeves, R(IS) 5/99. So it does not need to be treated as income. As far as I can see, regulation 60B therefore has no effective content. It does not deal with the problem of sums that are not periodical payments and are therefore not child support maintenance.

The nature of the payments made

24. This appears to place considerable importance on the meaning of "periodical payment", a term that neither the income support rules nor the child support rules define. It is a term notoriously open to more than one meaning. The strict meaning is that the payments are by reference to regular periods (for example, monthly). More loosely, it means that there are payments that recur so that there are payments in more than one period (and at the extreme that there are payments in more than one - that is, two - periods) (see the Oxford English Dictionary). I am not sure that the drafter of these regulations had a consistent view of the meaning of "periodical". I say that because of the way that regulation 60C is drafted.
25. Regulation 60C (1) builds the error in regulation 60B into this regulation also, as it provides that the regulation sets the weekly amount of child support maintenance, not (as it appears to be intended to do) the weekly amount regarded as being received by the income support claimant. That being so, a payment that is not caught by regulation 60B is not caught by regulation 60C(1) either. Nor will it be caught by regulation 60C(2) or (3) – or (even if we ignore the obvious drafting error in that paragraph of omitting the word "maintenance") regulation 60C(4). On that basis, the only rule left is that in regulation 60C(5) – the rule that the tribunal could not understand.
26. We must first look to regulation 60C(6) as this modifies paragraphs 60C(2) – (4). This provides that the rules in regulation 60C(2) – (4)

"shall apply to any payment made at the intervals specified in that paragraph

whether or not –

(a) the amount paid is in accordance with the maintenance calculation, and

(b) the intervals at which the payments are made are in accordance with the

the intervals specified by the Secretary of State …

This is a curious provision, at least in so far as it applies to paragraph (4). It is drafted to apply to " any payments", rather than payments "of child support maintenance". But as it is a subsidiary rule for interpreting paragraphs (2) to (4), I take it to mean "payments" that would otherwise be within those paragraphs save for the differences noted in this paragraph. So a payment made by an absent parent when he or she is liable to pay child support maintenance and linked to that liability will be covered by paragraph (4) if the payment is erratic but nonetheless is periodical in the widest sense of that term.

27. Regulation 60C(5) is a separate rule to the rest of regulation 60C and to regulation 60B. Its meaning might be clearer were it a separate regulation. To be within regulation 60C(5) there has only to be a payment. "Periodical" is conspicuously not present. And it deals not with payments "of" child support maintenance, but a payment that "represents a commutation of child support maintenance". I agree with the tribunal that "commutation" is not exactly the commonest term in English, and is perhaps too easily confused with the term "commuting". But I disagree with the tribunal's conclusion that its meaning is so obscure that it cannot be determined. The clues lie in the fact that we are concerned with payments by an absent parent who is required to pay child support maintenance to the parent with care and, in this paragraph, we are concerned with a payment that is not a periodical payment by the absent parent. We are not concerned with receipts. The paragraph refers to payments by an absent parent that are not made either periodically or in accordance with the terms of the requirement, but are made as an offset against such a payment. I use the term "offset" because to be a commutation rather than a voluntary payment there must be a liability – either current or (if there is any difference) past and continuing – to pay a sum equivalent to the sum actually paid.
28. That raises the question how paragraph (5) operates alongside paragraph (6). The fact that payment is erratic or of random amounts does not exclude a payment from paragraph (4) as read with paragraph (6). So to what does paragraph (5) apply? "Periodical" must be given its widest meaning in paragraphs (4) and (6), so a payment can fall within paragraph (5) only if it is not a periodical payment. It might catch one-off payments, such as an initial payment that is not then repeated, but I cannot see any other kind of payment being within the rule.
29. Regulation 60C requires a finding of fact whether a payment made by an absent parent is a payment "of" child support maintenance, or a payment "representing a commutation of" that maintenance. It has been assumed to date, but not found, that the payment in this case was in commutation. I do not see how, as a matter of law, that can be so in this case on the facts I have assumed. A was making payments erratically in terms of timing and roughly rather than exactly related to the underlying child support maintenance in terms of amount, but with significant arrears building up. If those facts are correct, the payments must as a matter of law be "periodical payments" in the wide sense of regulation 60C(6). Regulation 60C(5) is therefore irrelevant.

When were the payments made?

30. This leads to the issue on which Ms M's father protested strongly. When were the payments made? In this case, the key payment was said to be that made in June 2002 of £230, the previous payment having been made in February 2002. But A was already in arrears in February. There are also the payments made in July and August 2002.
31. The rule for determining relevant dates is regulation 60D. That sets out two rules to apply to payments "of" child support maintenance. I note in passing that there is no rule dealing with payments within regulation 60C(5), but that that is not relevant here.
32. The initial rule, (a), applies to payments "due to be paid before the first benefit week pursuant to the claim". If that is so, then the rule is that the payment is made "on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week". "Benefit week" is defined by the Income Support (General) Regulations 1987, regulation 2 and by paragraph 4 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987 as the week corresponding to the week in respect of which a benefit is paid. In effect that means for income support such day as the Secretary of State determines (paragraph 3). However, that merely determines the individual day of the week, not the week itself. That is confirmed by the other rule, (b).

Under the general rule, a payment due to be paid on or after the first benefit week is treated as paid on the first day of the benefit week in which it is paid or where that is not possible the first day of the next week. I read "relevant to the claim" in this regulation as meaning "relevant to the award on a claim", as of course a claim does not subsist beyond a decision on it since the Social Security Act 1998.

33. Assuming that the payment made in June 2002 was a payment of child support maintenance, was it "due to be paid" before or after the first benefit week pursuant to the award in question for the purposes of regulation 60D? And when were the July and August payments due to be made (particularly in so far as the CSA regarded part of the August payment as arrears). There is further ambiguity here. Does this mean due to be paid by the absent parent to the Secretary of State or due to be paid to the parent with care by the Secretary of State? The logic of relying on rules about payment by the absent parent rather than receipt by the parent with care would suggest that it is when the payment is due to be made by the absent parent. And that is how Ms M's father argued the case. It is also the focus of these regulations in general, as I have noted above. I take the view therefore that, consistent with those other rules, the focus in this regulation also is on the liability of the absent parent to pay the Secretary of State.
34. When is an absent parent due to make a payment of child support maintenance to the Secretary of State or parent with care? Section 29(2) of the Child Support Act 1991 provides that:

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

35. The regulations are those in Part 2 of the Child Support (Collection and Enforcement) Regulations 1992 (SI 1992 No 1989) (the Collection and Enforcement Regulations). Regulation 2 of those regulations empowers the Secretary of State to specify if payments are to be made direct to the parent with care or to the Secretary of State or to some other person. Regulations 3 and 4 empower the Secretary of State to specify how and at what intervals the absent parent is to make the payment. Regulation 5 then deals with transmission of payments to the parent with care. Regulation 5(1) provides for the Secretary of State to specify by which method of payment the child support maintenance is to be transmitted to the parent with care. Regulation (5)(2) provides that the Secretary of State "shall specify the interval by reference to which the payments referred to in paragraph (1) are to be transmitted to the person entitled to receive them." Paragraph (3) lays down the rule that this will normally be the same intervals as those at which the absent parent is liable to pay. On the assumed facts in this case the key payments were made by the CSA on the days the CSA received funds from A, so no difference emerged to invoke regulation 5 formally.
36. It follows that the answer to the question posed by regulation 60D is that the Secretary of State must have made a specification under regulation 4 of the Child Support (Collection and Enforcement) Regulations 1992 for a payment to be due. Unless such a specification has been made, then no sums would appear to be "due" to the parent with care. I can see nothing in the papers setting out that specification, although I assume from the above that a specification must have been made.
37. It was argued for the Secretary of State argued that the relevant provision for these purposes is not the Collection and Enforcement Regulations but the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations 1992 (SI 1992 No 1816) (the Arrears Regulations). Regulation 2 of those regulations defines "arrears of child support maintenance" by reference to section 41 of the 1991 Act. Section 41 applies where there is a maintenance assessment in effect under which the Secretary of State is authorised to recover the maintenance and "the absent parent has failed to make one or more payments of child support maintenance due from him in accordance with the assessment". Subsection (2) permits the Secretary of State, in accordance with any regulations, to keep sums recovered as arrears if because of the non-payment too much benefit was paid to the parent with care. The Arrears Regulations make that provision. This therefore links back to the Collection and Enforcement Regulations to establish if there are arrears.
38. Regulation 9 of the Arrears Regulations provides that where there are arrears of child support maintenance from an absent parent "the Secretary of State may attribute any payment of child support maintenance made by an absent parent to child support maintenance as he thinks fit."
39. The tribunal was told that the Secretary of State has decided to attribute all the June payment to current payments rather than to paying off the arrears. There was no comment on the July and August payments. Regulation 9 was explained to the tribunal in the formal submission of the Secretary of State (without reference to the relevant regulations) as follows:

10 Details of payments made and how the CSA determined they should be treated were obtained (page 34).

11 The question in this case is whether the amounts specified by the CSA as regular support should be treated as due to be paid on the days they were paid or should be treated as payments off the arrears of child support maintenance that existed at the time. In which case they should be treated as due to be paid on the date the arrears were due to be paid.

12 The decision maker determined that the payments specified by the CSA as regular maintenance payments should not be treated as payments made to clear the arrears owing. Therefore they were allocated on a forward basis for the period they were made in respect of.

("Page 34" is the computer screenprint of 7 January 2003). That submission is ambiguous on the issue of who decided that the payments were to be treated as regular payments rather than arrears. While the power is that of the Secretary of State, I cannot see the basis for the power under regulation 9 to be exercised by a decision maker in an income support office. And as "regular maintenance" is not a term of either child support law or income support law, it is not clear that the CSA had made that determination either. I do not see where in the submission made to the tribunal the Secretary of State deals properly with the issues raised by regulation 9 of the Arrears Regulations or those of the Collection and Enforcement Regulations. And until it is established when the payments were "due" for child support purposes, regulation 60D of the Income Support (General) Regulations 1987 cannot be applied.

Application to this case

40. On the facts I have assumed, the CSA letter of 3 July 2003 states that A's liability was to pay £51.42 weekly from 26 February 2002. It also states that A was asked to make "2 x 4weekly at £205.68" between 01.06.02 and 27.06.03 (which I take to mean 27.06.02). That makes arithmetical sense, if not by reference to the calendar. If that is correct – and the letter is by no means clear – A's then current liability was to pay £51.42 a week by four-weekly payments. As no payment was made by A until the £230 on 25 June 2002, I do not see how that can be fully attributed to A's then current liability of £205.68 for four weeks for the simple reason that it exceeds it. If so, the Secretary of State cannot have paid the sum out to the parent with care under regulation 5 as a current payment only as there was no power to do so under any of the powers set out above. So the payment, whatever it was called by the CSA, must have been at least in part a payment of arrears by A to the CSA and by the CSA to Ms M. It follows that there is no basis on which to attribute it to Ms M at £57.50 a week. The same analysis would be true for the July payment. Further explanation would be needed to understand the division of the August payment where there is accepted to be an element of arrears. So the tribunal must establish when the relevant payments were "due". It can then apply regulation 60D, and then to the extent appropriate regulation 60C, to them.
41. If my assumptions from the documentary evidence in the papers are factually correct, it must follow that the decision of the Secretary of State is based on incorrect information from the CSA, or alternatively incorrect actions by the CSA or an incorrect understanding of those actions. As I do not have a proper basis to make the relevant findings of fact, I cannot say what the correct decision of the tribunal should be and must send the matter back to a tribunal to establish those facts.
42. My guidance to the tribunal is that it should look at the matter again in the light of this decision once it has been given clear evidence from the Secretary of State about how, if at all, the various child support powers of the Secretary of State have been exercised with regard to A's payment liability and payments as at the date of the original decision in this case (12 August 2002) - and in particular when, as a matter of law, payments made by A were "due". This requires a new submission from the Secretary of State.

David Williams

Commissioner

16 February 2005

[Signed on the original on the date shown]

APPENDIX:

The Income Support (General) Regulations provision on child support maintenance

The following provisions were inserted into the main Regulations by SI 1993 No 846 with effect from 19 April 1993. Amendments to 2001 are shown. Subsequent amendments to take account of the new child support system (by SI 2000 No 2176 and SI 2001 No 158, which do not apply in this case) are ignored.

Child Support

25A Regulations 29, 31, 32, 40 and 42 and Chapter VII of this Part shall not apply to any payment which is to be calculated in accordance with Chapter VIIA of this Part (child support).

CHAPTER VIIA CHILD SUPPORT

Interpretation

60A In this Chapter –

"child support maintenance" means such periodical payments as are referred to in section 3(6) of the Child Support Act 1991

"maintenance assessment" has the same meaning as in the Child Support Act 1991 by virtue of section 54 of that Act

Treatment of child support maintenance

60B [Subject to regulation 60E]^[1]all payments of child support maintenance shall to the extent that they are not payments of income be treated as income and shall be taken into account on a weekly basis in accordance with the following provisions of this Chapter.

Calculation of the weekly amount of payments of child support maintenance

60C (1) The weekly amount of child support maintenance shall be determined in accordance with the following provisions of this regulation.

(2) Where payments of child support maintenance are made weekly, the weekly amount shall be the amount of that payment.

(3) Where payments of child support maintenance are made monthly, the weekly amount shall be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(4) Where payments of child support^[2] are made at intervals and those intervals are not a week or a month, the weekly amount shall be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(5) Where a payment is made and that payment represents a commutation of child support maintenance the weekly amount shall be the weekly amount of the individual child support maintenance payments so commuted as calculated in accordance with paragraphs (2) to (4) as appropriate.

(6) Paragraphs (2), (3) or, as the case may be, (4) shall apply to any payments made at the intervals specified in that paragraph whether or not –

(a) the amount paid is in accordance with the maintenance assessment, and

(b) the intervals at which the payments are made are in accordance with the intervals specified by the Secretary of State under regulation 4 of the Child Support (Collection and Enforcement) Regulations 1992.

Date on which child support maintenance is to be treated as paid

60D A payment of child support maintenance is to be treated as paid –

(a) in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is paid or the first day of the first succeeding benefit week in which it is practicable to take it into account.

[Disregard of payments treated as not relevant income

60E Where the Secretary of State treats any payment of child support maintenance as not being relevant income for the purposes of section 74A of the Social Security Administration Act 1992 (payment of benefit where maintenance payments collected by the Secretary of State), that payment shall be disregarded in calculating a claimant's income.]^[3]

Note 1   Inserted by SI 1996 No 940 with effect from April 19, 1996.    [Back]

Note 2    The word “maintenance” which should follow at this point is missing from the Queen’s Printer’s text of this regulation. The omission is assumed to be faulty drafting or printing.     [Back]

Note 3   Regulation 60E added by SI 1996 No 940 with effect from April 19, 1996.     [Back]