UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CCS_2288_2005 (03 February 2006)

 


CCS/2288/2005

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. This appeal succeeds, but essentially on a legal technicality only. In short, I am allowing the appeal and setting aside the appeal tribunal's decision but at the same time substituting my own decision as Child Support Commissioner to the same effect as that tribunal decision. The end result, therefore, is the same as before.
2. My decision is given under section 24 of the Child Support Act 1991. It is as follows:

The decision of the Fox Court appeal tribunal under reference U/42/242/2004/05022, held on 23 March 2005, is wrong in law on one point alone. I therefore set aside the appeal tribunal's decision. However, I substitute my own decision to the same effect. The appeal by the non-resident parent against the Secretary of State's maintenance calculation dated 15 January 2004 is accordingly dismissed. The effective date of that maintenance calculation is 27 October 2003, the date on which the Maintenance Enquiry Form was sent to the non-resident parent at his last known or notified address.

The issue

3. The legal issue in this case concerns the effective date of a maintenance calculation made under the Child Support Act 1991. In turn, this depends on what at first sight is a very simple question: was the Maintenance Enquiry Form (MEF) sent by the Child Support Agency to the non-resident parent's "last known or notified address". I apologise in advance for the length of this decision. However, the issue in dispute is obviously important for the parties to the appeal. It may also have much wider significance given the large number of child support assessments that are made each year. I set out my decision in paragraph 2 above; for convenience, I also summarise my conclusions on the legal issues and my reasons for my decision in this case in paragraphs 61 and 63 respectively below.

The parties to the case

4. This case concerns liability for child support in respect of a teenage girl. For convenience I will simply call her "the child", although she is probably a young woman by now. I understand that she is not aware of these proceedings. The appellant is the child's father, and the non-resident parent in the terminology of the child support legislation. I will call him "the father". The person with care is the child's maternal grandmother. She is also technically the Second Respondent in this appeal but I will call her "the grandmother". The Secretary of State is First Respondent in this appeal.

The history of the case

5. The child was born on 3 December 1989 and is a British citizen, as are both her parents. She spent several years living abroad with her mother but returned to Great Britain in July 2003 to live with her maternal grandmother, who received child benefit for her as from 27 October 2003. A week earlier the grandmother completed a Maintenance Application Form (MAF) to claim child support for the child, naming the father as the non-resident parent.
6. On the MAF the grandmother gave the father's name, his date of birth and an address in Hackney, East London with a landline telephone number. She also stated that he had last lived at that address in 1995 (i.e. some eight years previously). She also provided the following further information, which needs to be quoted in full:

"[The father] uses the given address at all times. His mother lives at this address, [the father] lived there at one time, but he is married again and might be living elsewhere. When his daughter arrived into the country, we called his mother at the given phone no. and she contacted [the father], who then rang [the child]. He gave no forwarding address or phone no. We have not heard from him since. I think he uses that address as his business and mailing address."

7. The Secretary of State, in the form of the Child Support Agency, sent a MEF on 27 October 2003 to the father at the address given by the grandmother. It then appears that, as there was no reply to the MEF, the Agency then undertook further measures, including what an Agency minute describes as a "basic trace for employment records" on 19 November 2003. This was, it seems, probably a request to the Inland Revenue (now HMRC) for relevant details they held. In any event, on 12 January 2004 the Agency faxed the father's employer with a request for further information. The employer replied on 14 January 2004 with details of the father's latest address and salary as held in their records.
8. The following day the Agency wrote to the father stating that his child support liability had been assessed at £70 per week on the basis of the salary information provided. The commendable speed of the Agency was not matched by its attention to detail, as this letter was sent to the father's address as given by the grandmother, and not to the more up to date address provided by the employer. This was followed up by a letter from the Agency to the father's correct address (as given by the employer) on 11 February 2004, stating that there were substantial child support arrears and that a Deduction from Earnings Order would be imposed if the debt was not settled. The father's argument, as I understand it, was that this letter was the first that he had heard of any child support application or assessment.
9. The father raised various objections with the Agency which could not be resolved. As a result, he lodged an appeal against the maintenance calculation with a letter dated 28 May 2004 setting out his various grounds of appeal. These grounds were then elaborated in further correspondence. The father's appeal was heard by a tribunal at Fox Court in central London on 23 March 2005. The father and grandmother both attended, as did a presenting officer from the Agency.
10. The tribunal's decision was to dismiss the father's appeal. The tribunal chairman set out his reasons on the Decision Notice issued on the day of the hearing. In summary, the tribunal rejected each of the various grounds of appeal with short reasons on each point. In relation to the effective date, the tribunal's reasoning was as follows (at paragraph 6):

"The MEF form was sent to the appellant at the home of his Mother and he claimed it did not reach him because of family differences. Today he accepted that his Mother had avenues of contact with him and as the Form was not returned through the Post Office, the Tribunal found that on the balance of probabilities the form reached the appellant. The effective date remains unchanged."

11. In this context it should be noted that the tribunal also concluded that the father "gave evidence that was found to be lacking in credibility, unsupported by witnesses that he admitted he might have called and where the Tribunal concluded that his testimony was unreliable" (paragraph 9).

The appeal to the Child Support Commissioner

12. The father applied for leave to appeal from the tribunal's decision and submitted extensive and detailed grounds of appeal. This application was refused by an Appeals Service district chairman. The application was then renewed before the Child Support Commissioner, who concluded that none of these grounds were arguable as points of law with the exception of the effective date point, concerning the date of sending the MEF. Mr Commissioner Mesher granted the father leave to appeal on that basis and made a series of further directions. The father, the Secretary of the State and the grandmother have all made written observations on the appeal. In the light of those responses, Mr Commissioner Mesher directed an oral hearing to deal with the "last known or notified address" issue.
13. The oral hearing was held at Harp House in London on 24 January 2006. The father attended with his representative, Mr S Saleem (who also appeared at the tribunal). The grandmother attended with a friend, who had also been an observer at the tribunal. The Secretary of State was represented by Mr Sean Wilson of the Office of the Solicitor to the Department for Work and Pensions, accompanied by Mr C Ellis who advised on operational matters relating to the Agency. I am grateful to all those who attended for their clear arguments. I am especially indebted to Mr Wilson for his admirably clear consolidated written submission. I intend no disrespect to either Mr Wilson or to Mr Saleem by summarising their more detailed written and oral submissions below.
14. I was also conscious that Mr Saleem had had only a very limited opportunity to consider Mr Wilson's final written submission, as it had been just prepared. However, Mr Wilson's final consolidated submission essentially brought together and rehearsed arguments which had already been made in the appeal papers. The one substantial new point was that Mr Wilson now resiled from the Secretary of State's previous position, resisting the appeal, and argued that the tribunal decision was indeed wrong in law. The Secretary of State's argument was now that the tribunal had reached the right decision but for the wrong reason. Mr Wilson had indicated this change of position in a letter to the father a few days beforehand. In all the circumstances, I am satisfied that there was no prejudice to the father in respect of the Secretary of State's change of position. Mr Saleem was clearly in command of the issues and put the father's case clearly and forcefully.

The main argument put on behalf of the father

15. The main thrust of Mr Saleem's argument was that the effective date of 27 October 2003 was wrong as the father had never received the MEF. Mr Saleem argued that the Agency had been put on notice that the address stated on the MAF was unreliable. In summary, he argued that any reasonable person, on reading the information provided by the grandmother on the MAF, would have concluded that this was an unreliable address as it was eight years old, it was the address of the father's mother, and he was now married and might be living elsewhere. Mr Saleem's conclusion was that the tribunal's decision was flawed and should be set aside. In his view the effective date as determined by the Agency (and confirmed by the tribunal) was invalid, and the MEF should be reissued and any liability for child support start from a new effective date.

The main arguments put on behalf of the Secretary of State

16. As indicated above, Mr Wilson agreed with Mr Saleem that the tribunal had erred in law on the effective date point. However, he argued that the tribunal had nonetheless reached the correct conclusion. Mr Wilson advanced five main arguments: (1) the appeal tribunal's reasoning on this issue was defective in law; (2) the Secretary of State had complied with the relevant statutory provisions for determining the effective date; (3) the case law from the courts on the meaning of "usual or last known residence" in the Civil Procedure Rules was relevant, and indicated that a "reasonable diligence" test was appropriate; (4) on the facts, the Secretary of State had been entitled to send the MEF to the given address as being the father's "last known" address; (5) the provisions of the Interpretation Act 1978 were not of any assistance in resolving this issue. These arguments were elaborated on in detail in the various written submissions on behalf of the Secretary of State.

The grandmother's main arguments

17. The grandmother did not have the benefit of legal representation. However, she stated her views with great clarity and some force. She explained that, so far as she was concerned, the father had at all times always been contactable via his mother's address, for example when her granddaughter had been living abroad. When the child returned to Great Britain, it was "the most normal thing" for them to contact the father via his mother's landline telephone number at the given address. The father had then returned the call by contacting his daughter twice at the (maternal) grandmother's by telephone, but had not passed on a mobile or landline contact number for himself. They had been unable to obtain the number by dialling 1471 as the number was withheld. Implicitly, she agreed with Mr Wilson that the MEF had been properly sent to the address of the father's mother. She had told the appeal tribunal that it was, in her view, "sad that [the father] has gone to such lengths to disown his child", a point she repeated at the oral hearing before me.

The Commissioner's conclusion on the legal arguments

18. In summary, and for the reasons set out more fully below, I prefer on balance the arguments advanced by Mr Wilson, on behalf of the Secretary of State (and implicitly supported by the grandmother), to those put forward by Mr Saleem for the father.

The reason why the appeal tribunal erred in law

19. The appeal tribunal's reasoning on the effective date point is set out at paragraph 6 of its Decision Notice (see paragraph 10 above). That reasoning makes it clear (when taken together with paragraph 9 of the tribunal's decision) that the tribunal believed that the MEF had actually reached the father when sent to his mother's address. That is a finding of fact by the tribunal with which I cannot interfere, as the chairman has given adequate reasons for his conclusion. However, the further implication in paragraph 6 is that the effective date is simply determined in all cases by when the MEF actually reaches the non-resident parent. That is an error of law on the tribunal's part and means I must set aside its decision. The correct position as a matter of law is that the effective date of the maintenance calculation is the date that the non-resident parent is first notified of the application in question. This notification may be oral or written. If the notification is written, and the MEF is posted, then the date of notification is the date on which the MEF is sent by post, at least where it is posted to the non-resident parent's "last known or notified address". It was not necessary, in my view, for the tribunal to refer in its Decision Notice to the precise statutory source for the rule on the effective date for a maintenance calculation, but it did have to apply the correct legal test.

Calculating the effective date of a maintenance calculation

20. In this case the MAF was completed after 3 March 2003, the date on which the child support reforms in the Child Support, Pensions and Social Security Act 2000 came into force. It follows that this is a "new scheme" case in which the child support liability is assessed on the basis of a simple percentage of the non-resident parent's net income. The relevant procedural rules are set out in the Child Support (Maintenance Calculation Procedure) Regulations 2000 (S.I. 2001 No. 157, the MCP Regulations), made under the authority of the original Child Support Act 1991 (Schedule 1, paragraph 11).
21. The starting point for setting the effective date of a first maintenance calculation in a new scheme case is regulation 25(3) of the MCP Regulations. In a situation such as this, where the application is made by a person with care, regulation 25(3) provides that the effective date "shall be the date of notification to the non-resident parent". If that were the end of the matter, there would be considerable force in Mr Saleem's arguments.
22. However, the regulations the provide a series of interlocking definitions of various phrases, rather in the manner of a set of Russian dolls – every time one is opened up, another definition appears. So the expression "the date of notification to the non-resident parent" means, unless the context requires otherwise, "the date on which the non-resident parent is first given notice of a maintenance application" (see MCP Regulations, regulation 1(2)). Again, if this were the end of the matter, it would seem to support Mr Saleem's analysis (putting to one side for a moment the tribunal's finding of fact that the father had actually received the MEF sent to his mother's home).
23. In turn, however, the expression "notice of a maintenance application" means "notice by the Secretary of State under regulation 5(1) that an application for a maintenance calculation has been made" naming the non-resident parent as the father (MCP Regulations, regulation 1(2)) . Regulation 5(1), itself in turn, provides that where an effective application has been made, then "the Secretary of State shall as soon as is reasonably practicable notify, orally or in writing, the non-resident parent" of the application and request such information as he (in practice the Agency) may require. That notice – in the form of the MEF – must also state the effective date and mention the Agency's power to make a default maintenance decision (MCP Regulations, regulation 5(2)).
24. The last link in the chain – or the last Russian doll in this nest of dolls – is the meaning of the term "notify". Mr Saleem argues, in effect, that "notifies" means some communication that reaches the non-resident parent. The tribunal also appears to have made this assumption. However, regulation 2(b) of the MCP Regulations states, except where otherwise stated, that where

"(b) any document is given or sent to any other person [meaning any person other than the Secretary of State], that document shall, if sent by post to that person's last known or notified address, be treated as having been given or sent on the day that it is posted."

25. There is no special rule in regulation 5 governing what is meant by notification. It follows that the general rule in regulation 2(b) applies. As a result, the question is not necessarily the date of receipt. What matters, where a document is sent by post, is whether the document in question – here the MEF addressed to the father – was "sent by post to that person's last known or notified address". If it was, then notification for the purposes of regulation 5(1) is treated as being "on the day that it is posted". There is no place here for the presumptions in section 7 of the Interpretation Act 1978, which are ousted by the plain words of regulation 2(b) (see further below). There is also no dispute in this case that the MEF was sent by the Agency on 27 October 2003. The critical question is whether it was sent to the father's "last known or notified address".

What is a person's "last known or notified address"?

26. This is the point at which the nest of Russian dolls in the child support legislation ends. The expression "last known or notified address" is not defined in the MCP Regulations, the Child Support Act 1991 or indeed more generally in the Interpretation Act 1978. I bear in mind the two presumptions in section 7 of the Interpretation Act 1978, but these only operate "unless the contrary intention appears". This does not mean a "contrary intention" in some other document, such as the MAF, as Mr Saleem seemed to argue, but refers to the construction of the particular legislation in issue. In my view there is such a "contrary intention" apparent in the child support legislation (Mr Commissioner Mesher's comments in R(CS) 1/99 at paragraph 11 are equally applicable in the context of the new scheme). So I reject the Interpretation Act point.
27. On the face of it, however, there is some force in Mr Saleem's further argument that an address given to the Agency in 2003, where the informant specifically states that the individual in question last lived at the address in 1995 and now "might be living elsewhere", is not that person's "last known or notified address" within regulation 2(b) of the MCP Regulations. I will now explain why I disagree by reference to the ordinary meaning of the words, the relevant case law and the policy of the child support legislation.

The ordinary meaning of the words

28. First, as a matter of simple construction, it seems clear to me that the word "last" governs both "known" and "notified" in regulation 2(b). So "last known or notified address" is legislative shorthand for "last known or last notified address". It also seems self-evident to me that under regulation 2(b) the Secretary of State can send a document either to the "last known" or the "last notified" address as seems appropriate. The statutory language, as Mr Wilson put it, is permissive. I did not understand Mr Saleem to dissent from these propositions. I also accept Mr Wilson's submission that the role of the Secretary of State is central to the meaning of "last known or notified address". In other words, this expression means the address last known by the Secretary of State or last notified to the Secretary of State. There is no further qualification in regulation 2(b). So the means by which the Secretary of State acquires that knowledge is not in itself subject to any restriction. Similarly, an address may be notified to the Secretary of State by anyone. I also take the view that a "last notified address" (as distinct from a "last known address") implies that there is a higher degree of certainty in the validity of the address. So if a non-resident parent informs the Agency of a change of address – and curiously there is no statutory obligation to do so – then we might say that it is the "last notified address". If, on the other hand, a person with care effectively says "I think this is his address", then it is a "last known address". I agree with Mr Wilson that, on the facts of this case, the given address was more of a "last known address" than a "last notified address".

The guidance in the case law

29. Secondly, it is important to consider the guidance in the relevant case law authorities. The deeming rule regarding documents being sent either to a person's "last known address" or – as in the child support context – a person's "last known or notified address", or some similar phraseology, appears in a number of statutory contexts. These include child support and social security law as well as matters in both the civil and criminal courts.

The guidance in the child support case law

30. There are two earlier decisions of the Child Support Commissioners which may have some bearing on this point. Both are decisions of Mr Commissioner Mesher on cases under the old child support scheme (before the 2003 reforms) and so were decided under a different legislative framework (regulation 30 of the Child Support Maintenance Assessment Procedure) Regulations 1992 (SI 1992 No 1813), or MAP Regulations). In CCS/12682/1999, later reported as R(CS) 1/99, the Commissioner ruled that under the MAP Regulations (which govern old scheme cases) the effective date of a maintenance assessment was the date that the MEF was sent to the absent parent, and "sent" bore its ordinary meaning of "despatched". Accordingly, what mattered was the fact of the despatch of the MEF by the Agency, not its receipt by the non-resident parent. The Commissioner observed that what amounts to sending a MEF "will depend on the particular circumstances of the case" (at paragraph 12). However, the specific meaning of "last known or notified address" itself was not in issue in that case.
31. The other decision of Mr Commissioner Mesher is CCS/1154/1999. The facts of that case bear more resemblance to the present appeal. The person with care had submitted a MAF in April 1994 giving an address for the absent parent and stating that he lived at that address in "1987 (maybe after)". The MEF was sent to the absent parent at that address in September 1994. In fact, he had moved about 10 months earlier, but even so the MEF was forwarded to his new address and completed and returned by him in a matter of days. However, the absent parent argued that the 1994 MEF had not been sent to his correct address and so should not be used to determine the effective date; rather, he argued, this should be based on a subsequent MEF sent to the correct address in May 1996. In doing so, the absent parent relied on R(CS) 1/99. Mr Commissioner Mesher's conclusion, however, was as follows:

"20. I acknowledge the force of the absent parent's submission. However, what I said in CCS/12682/1999 must be considered in its context, of a case where the absent parent had not received a particular MEF. I held that regulation 30(2)(a) put the risk of non-receipt in general on the absent parent, in that if a MEF had been properly sent to the absent parent the date of sending fixed the effective date of a subsequent assessment, even though the MEF had not been received. But it was a condition of that effect that the MEF could be said to have been given or sent to the absent parent, and where posted properly addressed etc. Although I did not express it this way, that seems to me to hold a roughly fair balance between the interests of parents with care and the interests of absent parents, and in particular the interests of the children involved. The children involved should not be deprived of the benefit of the parent with care receiving child maintenance for the period starting with the issue of the MEF by the Child Support Agency merely because the MEF never arrived."

32. The Commissioner ruled that the circumstances of CCS/1154/1999 were different to those in R(CS) 1/99: the first MEF had actually been received and so "It seems to me that it would disturb the roughly fair balance which I have mentioned above if, where an absent parent has in fact received a MEF, the child involved was deprived of the benefit of the parent with care receiving child maintenance until the Child Support Agency sent out another MEF" (paragraph 21). Mr Commissioner Mesher, having stressed the importance of examining the particular circumstances of each case, then made the following comment (also at paragraph 21):

"It could therefore be argued that when a MEF is sent to the only address known to the Child Support Agency, as supplied by the parent with care, it has been "sent to" the absent parent on the date of posting if it in fact reaches him. However, I am reluctant to reach a definite conclusion on such an argument."

Again, however, the question of what was a "last known or notified address" was not directly in issue in that case.

The guidance in the social security case law

33. The equivalent provision to the child support regulation 2(b) deeming rule in the social security jurisdiction is regulation 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This also applies the date of posting rule rather than the date of receipt rule. It is, however, different in that it refers simply to posting to an individual's "last known address", rather than the "last known or notified address". Whilst there are several Commissioners' decisions on the scope of the social security regulation 2(b), none appear to deal specifically with the meaning of "last known address" in this context.
34. Similarly, regulation 2 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001 No 1002) provides in effect that a document sent by an official body to an individual is deemed to have been sent on the date on which "it was sent by post to that person's last known address". In CH/3009/2002 Mr Commissioner Williams accepted (at paragraph 12) that that regulation was in effect a statutory presumption "that a letter that has been posted with the correct address on it has been delivered." He also observed that "there is no matching presumption that a document that it was intended should be posted was in fact posted", but that is not in issue in the present case. That regulation itself replaced regulation 78(2) of the Housing Benefit (General) Regulations 1987 (SI 1987 No 1971), now repealed, which indeed referred to the broader term "that person's last known or notified address" – as used in the child support legislation. As Mrs Commissioner Fellner commented in her decision CH/1129/2004 (at paragraph 2), that meant that what counts is the date of posting, not the date of receipt: "Any risk of postal delays, or documents not reaching the addressee because he has moved on without leaving a forwarding address, is allocated to the addressee." This is consistent with the approach of Mr Commissioner Mesher in both R(CS) 1/99 and CCS/1154/1999.

The guidance in the CPR case law

35. The expression "last known address", or something close to it, also appears in a number of other legislative contexts outside of child support and social security. Most notably, the Civil Procedure Rules (CPR 6.5(6)) in the ordinary courts provide that, in certain circumstances, documents may be served by being sent to an individual's "usual or last known residence". According to Dyson LJ in the Court of Appeal's decision in Cranfield v Bridgegrove ([2003] EWCA Civ 656, [2003] 1 WLR 2441):

"The rule is plain and unqualified. We see no basis for holding that, if … the document is sent to that address, that does not amount to good service. The rule does not say that it is not good service if the defendant does not in fact receive the document. If that had been intended to be the position, the rule would have said so in terms."

36. The CPR rule was also considered by the Court of Appeal in Akram v Adam [2004] EWCA Civ 1601, where Brooke LJ observed that (at paragraph 41):

"A code which permits service by post to an individual at his usual or last known residence, and which allows such service to stand as good service unless it is known before a default judgment is entered that that method of service was ineffective provides for an accessible, fair and efficient way of administering justice, and these are all attributes much prized by Strasbourg jurisprudence."

37. Obviously these Court of Appeal decisions arise in a different context and some care must be taken in their application to child support law. The CPR also impose, in my view, a rather higher burden on the sender than the child support rules in the MCP Regulations, as they refer to documents being sent to a person's "usual or last known residence", rather than "last known or notified address". A person's "address" is not necessarily the same as their "residence", as the latter expression implies some degree of permanence as well as the fact of actually living (or residing) there, at least at some point. I am fortified in this conclusion by the very recent Court of Appeal decision in Collier v Williams [2006] EWCA Civ 20, decided since the oral hearing of the present appeal. (I should add that as this decision provides further support for the decision I had already reached, I did not regard it as necessary to invite further submissions on this latest authority on the CPR). Dyson L.J., giving the judgment of the Court, held that "We do not see how the phrase 'last known residence' can be extended to an address at which the individual to be served has never resided" (at paragraph 68).
38. In contrast, it is quite possible, and not uncommon, for an individual to reside at place A but, for various reasons, to have place B as his address. To take just one illustration: a person might live in a bedsit in a large property where mail has a tendency to go missing. He might therefore have the bedsit as his residence but use another property elsewhere (e g one occupied by a friend or relative) as his address. Social security local offices are used to handling such cases on a daily basis. In other words, in my view the child support MCP Regulations impose a less demanding test for the sender of the document than the CPR.
39. I am conscious that in Willowgreen Ltd v Smithers [1994] 1 WLR 832, Nourse LJ stated (at 836H) that:

"In ordinary parlance a person's address is a place at which written communications can be delivered to him. In order that they can be delivered to him, he must, to a greater or lesser extent, be present to receive them. The extent to which his presence is necessary to make it his address may vary, and vary significantly, with the circumstances. But if he is never there at all, it cannot properly be called his address. It can, if communications will be sent on to him from there, be called a forwarding address. But that is not the same thing as an address."

However, I note that that authority was in the context of proceedings involving a county court summons and default judgment. The Court of Appeal noted that actual personal service on a named individual had traditionally been required in such proceedings. This is not the case in the modern child support jurisdiction and so Willowgreen Ltd v Smithers may be distinguished.

40. At the oral hearing the father's representative drew specific attention to the argument that service of proceedings on a last known address which was two years old "cannot be doing justice between the parties" (Cranfield v Bridgegrove ([2003] EWCA Civ 656, [2003] 1 WLR 2441 at paragraph 96). After the hearing the father wrote to the Commissioner's Office, drawing attention both to this paragraph and to paragraph 91 of the Court of Appeal's decision, as well as to the importance of having regard to entries on the electoral register. However, the comment in paragraph 96 was the conclusion of the district judge at first instance in one of the cases under appeal, and not a ruling on a point of law by the Court of Appeal. Furthermore, the issue of whether someone is on the electoral register at a particular address cannot, as matter of law, determine whether that is their "last known or notified address" for the purposes of the MCP Regulations. I am also conscious, for the reasons set out above, that the CPR may apply a more demanding test than the MCP Regulations. Insofar as there is an issue of law involved, I therefore distinguish the Court of Appeal's decision in Cranfield v Bridgegrove in this respect.

Other guidance in the wider case law

41. I should add that since the oral hearing in this appeal I have also become aware of two further authorities which bear on this point, one from a civil context and one from criminal law. I have not invited further submissions from the parties as these authorities are not central to my reasoning. In Price v West London Investment Building Society [1964] 2 All ER 318 the Court of Appeal was concerned to identify the date on which the landlord had given the tenant notice to quit business premises. The relevant legislation provided that such notice was effective if sent by registered post to the tenant's "last known place of abode" (Landlord and Tenant Act 1927, section 23(1)). In that case the landlord, not knowing the tenant's home address, sent the notice to quit by registered post to the tenant's business address. The Court of Appeal held that for the purposes of the 1927 Act a business address could be a "place of abode". However, Diplock LJ also observed (at p 323F) that

"The reference to the 'last known place of abode' was in my view plainly put in to deal with the case where the landlord was unaware of a change of abode on the part of the tenant and in such a case a notice will be properly served if it is sent to the last place which the landlord knew as a place of abode of the tenant".

42. The expression "last known address" itself appears in a criminal law context in various legislation governing Road Traffic Act offences. In particular, certain proceedings require that a person should be notified of an intended prosecution within 14 days of the alleged offence by notice sent by recorded post to their "last known address" (Road Traffic Offenders Act 1988, section 1(1A)(c)). According to the Divisional Court in Phipps v McCormick [1972] R.T.R. 21, this means that a notice of intended prosecution should be served at a place where the defendant would normally expect to receive correspondence, being an address having some degree of permanence for him. In that case, the notice of intended prosecution for dangerous driving was sent to the defendant at his home address although the prosecutor knew that the driver was in hospital as a result of the accident concerned. The Divisional Court held that, on those facts, the defendant's home address satisfied the statutory requirements. One would also, of course, expect a rather stricter standard of proof of service to apply in a criminal matter than in the context of child support.

The underlying policy of the child support legislation

43. We must also not lose sight of the fact that the primary purpose of the child support legislation is to ensure that parents honour their obligation to maintain their children (see Child Support Act 19991, section 1). In addition the Secretary of State, when exercising any discretionary power under the Act, is required to have regard to the child's welfare (section 2).
44. The child support scheme itself envisages several stages to the assessment process. Ideally, and in the simplest of cases, these are as follows: first, the person with care submits a MAF; secondly, assuming the matter is not handled entirely by telephone, the Agency sends the non-resident parent a MEF; thirdly, the non-resident parent returns the MEF; fourthly, and lastly, the Agency makes a maintenance calculation on the basis of the information in the MAF and MEF. I emphasise here that under the new scheme the Agency has the power to inform the non-resident parent orally of the MAF, e g by telephone, and obtain further information that way. Be that as it may, child support is often a contentious matter. The date from which any child support liability should commence will also frequently be a matter of dispute.
45. Parliament (or policy makers) presumably took the view that some sort of bright line definition of the start date for child support liabilities needed to be laid down in law. It could have taken the first date above, but arguably that would have been very unfair on non-resident parents, who would then bear the full cost of delays in the Agency. It could have taken the third date, but that would have provided a perverse incentive for non-resident parents to delay returning the MEF. It would also have been unfair on persons with care and on the children concerned, as would the fourth date above.
46. In effect, in the ordinary case, Parliament opted for the second option above, so the effective date starts with the despatch of the MEF to the non-resident parent (or the oral notification of the application). As Mr Commissioner Mesher noted in CCS/1154/1999 at paragraph 20, as cited above, this represents "a roughly fair balance between the interests of parents with care and the interests of absent parents, and in particular the interests of the children involved." Moreover, as the Commissioner suggested, "The children involved should not be deprived of the benefit of the parent with care receiving child maintenance for the period starting with the issue of the MEF by the Child Support Agency merely because the MEF never arrived."
47. Using the date of sending the MEF to the non-resident parent as the start date inevitably means that arrears of child support will build up by the time the Agency makes its calculation. But, as Mr Wilson submitted, it is important to bear in mind the Secretary of State's duty under regulation 5(1) of the MCP Regulations to notify the non-resident parent of the application "as soon as is reasonably practicable". This is an important safeguard for all parties, including the child concerned. Under the new scheme, as indicated above, such notification to the non-resident parent may be orally, e g by telephone. Alternatively, it may be a written notification in the form of despatch of a MEF; if that is sent to that individual's "last known or notified address", then the date of posting is the date of notification.
48. The statutory requirement that the non-resident parent be notified "as soon as is reasonably practicable" acts as an imperative to action. The Secretary of State is not entitled simply to sit on the case until he is absolutely sure that he is certain of the non-resident parent's current address. This would be wrong as a matter of principle, given the purpose of the legislation. Such a requirement would also be impossible to operate in practice, not least as history demonstrates from the early days of the poor law to the present that there are sometimes difficulties in locating liable parents. Indeed, people generally are perhaps even more mobile these days than in former times. Instead, the Secretary of State must form a judgement as to whether he has that parent's "last known or notified address" (not, I might note, his current address). If he has, then, in the absence of oral notification, the statutory scheme requires that the MEF must be sent there "as soon as is reasonably practicable". If the Agency decides that the address cannot reasonably be described as the individual's "last known or notified address", then clearly further enquiries will have to be made to try and secure a more reliable address.
49. In this context I accept Mr Wilson's helpful submission that the Secretary of State, in the guise of the Agency, is subject to a "reasonable diligence" test. In Cranfield v Bridgegrove ([2003] EWCA Civ 656, [2003] 1 WLR 2441) the Court of Appeal did not have to decide whether "last known residence" referred to the sender's actual knowledge or constructive knowledge (i.e. what the sender could have found out with reasonable diligence). However, the Court of Appeal inclined to the latter view (at paragraph 103). H.H. Judge Havelock-Allen Q.C. expressed a similar view in Burns-Anderson Independent Network PLC v Wheeler ([2005] EWHC 575 (HC); [2005] 1 Lloyd's Law Rep 580 at paragraph 28).
50. Again, this conclusion is supported by reference to the recent Court of Appeal decision in Collier v Williams [2006] EWCA Civ 20. In their decision, the Court of Appeal referred to a recent article in the Civil Justice Quarterly on the service of claim forms by Mr Zuckerman, an academic expert on the subject. Mr Zuckerman had argued for a liberal interpretation of the phrase "last known residence" in the CPR. In his view, it meant that a party had to show that "they believed the address in question to be the defendant's last known residence and that such belief was not patently unreasonable, in the sense that the claimant did not turn a blind eye to facts that suggested otherwise" ((2005) Civil Justice Quarterly 401 at p 404).
51. The Court of Appeal disagreed on this point. Dyson L.J. expressed the Court's view as follows (at paragraph 71):

"71. What is the position where the address is one at which the individual to be served has resided at some time?  The point does not arise for decision in the present case.  But in view of the uncertainty that exists as to the meaning of "last known residence", we think that it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman.  What state of mind in the server is connoted by the words "last known"?  In our judgment, Mr Zuckerman's interpretation goes too far.  As we have said, there is an important distinction between belief and knowledge.  It is a distinction particularly well understood in the criminal law, but elsewhere too.  The draftsman of the rules deliberately chose the word "known".  In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence.   We arrive at this conclusion on the basis of what we understand the words to mean.  We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning."

52. Of course, these authorities on the construction of the CPR are not binding on me in the child support context. However, I regard the reasonable diligence test as consistent with both the objectives of the child support legislation and in particular in seeking to achieve a fair balance of interests between the various individuals concerned. It is obviously in the interests of the person with care and the child that the child support liability starts as soon as is possible. It is obviously in the interests of the non-resident parent that he is notified of the potential liability as soon as is possible. This is backed up by the statutory imperative in regulation 5(1) of the MCP Regulations. The Agency, therefore, cannot simply send the MEF to what might be termed 'any old address'. It must (and regulation 5(1) declares that the Secretary of State shall notify the non-resident parent) be reasonably satisfied that it is that person's "last known or notified address" to take advantage of the regulation 2(b) rule.
53. What if the MEF is not in fact sent to the non-resident parent's "last known or notified address"? In such a case, it seems that the special posting rule in regulation 2(b) cannot apply. As a result, the effective date will have to be determined in accordance with the MCP Regulations without the application of that rule. It follows that the effective date is the date of notification to the non-resident parent (regulation 25(3)). According to regulation 1(2), that is the date that the non-resident parent is first given notice of the maintenance application. That, in turn, means notice in accordance with regulation 5. Such notice may be oral, although that route may give rise to some difficult evidential questions of proof in itself. Alternatively, that notification may be in writing via the MEF. But, as we have seen, if that document is not sent to the "last known or notified address", then regulation 2(b) does not apply and the date of notification is not the date of posting itself. If there is a finding that, despite not being sent to the "last known or notified address", the MEF was still in fact received by the non-resident parent, then the effective date is, at the very latest, the date of its actual receipt. That would be consistent with the outcome in CCS 1154 1999, decided under the old child support scheme. However, just as what amounted to sending a MEF to a non-resident parent under the old scheme "will depend on the particular circumstances of each case" (R(CS) 1/99 at paragraph 12), so too there may still be evidential difficulties, especially where regulation 2(b) is inapplicable, in ascertaining precisely when the non-resident parent is "first given notice of the maintenance application" under the new scheme.

Applying these principles to the present case

54. I have summarised the respective arguments of Mr Saleem and Mr Wilson above. At first sight I was attracted by those of Mr Saleem. How can an address that is eight years old reasonably be taken as a "last known or notified address"? But the position in this case is not so simple. As Mr Wilson argued, there is a broad spectrum of possibilities. At one end, a given address may be very unreliable. Mr Wilson even suggested that, had the MAF in 2003 had simply stated that this was the father's address in 1995, then it would have been unreasonable to rely on it without further enquiry. That may or may not be the case and I need not decide that point.
55. However, in this case the grandmother provided a considerable amount of further information on the MAF. Even though she acknowledged that the father was now married "and might be living elsewhere", she reported that (i) he "uses the given address at all times"; (ii) he was contacted via that address as recently as July 2003, when the child returned to the country; (iii) he had given no forwarding address or phone number; and (iv) she thought "he uses that address as his business and mailing address". So this was not simply 'any old address'. The Agency was entitled to take the view that, although it could not be 100% sure of its accuracy, it was reasonably reliable. Should the Agency have taken further steps to trace his address at that time? I was advised that the Departmental Central Index (DCI), to which the Agency's staff have access, only identifies those persons currently in receipt of benefits, and so would not have shown up the father. Clearly the Agency could have made enquiries of the National Insurance Contributions Office, part of the Inland Revenue (now HMRC), but that would inevitably have taken some time.
56. I stress that the Agency was under a statutory duty to act expeditiously. In my view it also had to act with reasonable diligence in deciding whether it had a "last known or notified address". It seems to me clear that in this case that the Agency did just that. It received the MAF from the grandmother on 22 October 2003. It sent out the MEF to the father's given address on 27 October 2003. The Agency's internal guidance apparently advises staff to give non-resident parents 14 days to complete and return the MEF (there is no statutory time limit). Some three weeks after despatching the MEF, the matter was reviewed and further steps taken to trace the father taken on 19 November 2003. As indicated above, this probably involved contacting the Inland Revenue. On 12 January 2004 the Agency then contacted the father's employer.
57. The Agency has been and is subject to considerable criticism in official reports and in the press and other media for its inefficiency. Much of this criticism is undoubtedly justified. But in this case, at least in the period immediately after receipt of the MAF, it is difficult to see that the Agency acted otherwise than entirely properly. It send out the MEF to what it reasonably regarded on the available information as the father's "last known or notified address". When that elicited no response within three weeks, it then took further steps to trace the father, and within a further 7 or 8 weeks (which included the Christmas period) it had obtained information from the Revenue which identified the father's employer, and had then obtained the necessary details from that employer.

The Agency's subsequent actions

58. Mr Saleem made a number of criticisms of the Agency's conduct of this case. I have already noted the Agency's mistake in sending the maintenance calculation in January 2004 to the address of the father's mother when the employer had just provided a different address. The notification of the maintenance calculation itself was made under regulation 23 of the MCP Regulations. There is no suggestion in the legislation that it was invalidated by being misaddressed at that point. However, arguably that notification of the calculation itself could not be treated as having been given on the day it was posted as it was apparently not sent to the father's "last known or notified address". But that was not the issue before me (or the tribunal) – the issue under the appeal is the effective date of the maintenance calculation, which is governed by the date of sending the MEF to the father.
59. Mr Saleem argued that in the course of early 2004 the father had made several unsuccessful attempts to get the Agency to update his address details correctly. He further argued that as a result of the Agency's failure the father had not been given the opportunity to challenge the deduction of earnings order (DEO) within the time limit of 28 days. It is not immediately clear that this is correct, as the Agency's letter of 11 February 2004, warning him of the possible imposition of a DEO, was sent to the address which had been provided by the employer and which the father also later used himself as a c/o address in his letter of appeal. It is also the same c/o address which he has continued to use in these proceedings before the Commissioner. Be that as it may, those issues were not before the tribunal or myself. It is, of course, open to the father to take up those complaints with the Agency itself and ultimately the Independent Case Examiner.

Other arguments

60. Mr Saleem also argued that the imposition of a child support liability was very unfair in this case as the father had no knowledge that this was likely to happen. The father's last knowledge, he said, was that the child had gone to live abroad and he believed that she had been put up for adoption. He had also raised the question of paternity. However, there is no actual evidence in this case that the child was ever adopted. In addition, the tribunal was distinctly unimpressed by the paternity argument, describing it (at paragraph 4 of its Decision Notice) as a point "wholly without merit and a thinly veiled attempt to disown the child and his legal responsibilities" on the part of the father. Mr Saleem also noted that the grandmother had given no indication to the father that she would apply for child support on the child's return. However, she was under no obligation under the child support legislation to do so.

A summary of the Commissioner's conclusions on the law and their implications for the Agency's practice

61. My conclusions on the legal issues raised by this appeal, and their impact on the Agency's processes, are as follows:

(1) The effective date of a first maintenance calculation made under the new child support scheme following an application by a person with care is the date of notification to the non-resident parent (MCP Regulations, regulation 25(3)).

(2) The date of notification to the non-resident parent is governed by the definitions and rules set out in regulations 1, 2 and 5 of the MCP Regulations.

(3) The Secretary of State is required to notify the non-resident parent of the application (and various other matters) "as soon as is reasonably practicable" (regulation 5(1)). The Agency must therefore act expeditiously.

(4) The date of notification is the date on which the non-resident parent is first given notice (regulation 1(2)); if the notification is not made orally, then it must be in writing (regulation 5(1)): and, where a document is sent by the Secretary of State, it is treated as having been sent on the day that it is posted, where it is sent to the person's "last known or notified address" (regulation 2(b)).

(5) A person's "last known or notified address" is not necessarily the same as that person's "last known or notified residence", nor is it necessarily the same as that person's current address.

(6) If oral notification is not effected, the Secretary of State, on receipt of a MAF, must form a judgement as to whether any address given for the non-resident parent is reliable enough to justify sending the MEF to that address, bearing in mind regulation 5(1)). The Secretary of State need not be sure of the address beyond reasonable doubt, but needs to be satisfied on the balance of probabilities that it is likely to be an effective address. This will require consideration of all the circumstances and the exercise of reasonable diligence.

(7) If there is no reliable address, the Agency should carry out further inquiries to trace the whereabouts of the non-resident parent. Similarly, if sending the MEF to the "last known or notified address" produces no response within a reasonable time, then the Agency should likewise carry out further inquiries to trace that individual.

(8) If the MEF is not sent to the non-resident parent's "last known or notified address", applying the reasonable diligence test, then the effective date will have to be determined in accordance with the requirements of regulations 1(2), 5 and 25 but without the benefit of the posting rule in regulation 2(b). If there is evidence that the MEF was actually received, then at the very latest that must be the effective date.

62. In this context the introductory remarks of Dyson L.J. in the Court of Appeal's recent decision in Collier v Williams [2006] EWCA Civ 20 bear repetition. His Lordship stated that the Civil Procedure Rules (CPR)

"have generated an inordinate amount of jurisprudence.  This is greatly to be regretted.  The CPR were intended to be simple and straightforward and not susceptible to frequent satellite litigation.  In this area, that intention has not been fulfilled.  As a result, the explicit aims of the Woolf reforms to reduce cost, complexity and delays in litigation have been frustrated" (paragraph 1).

If the CPR were designed to be "simple and straightforward" then that is all the more so for the MCP Regulations. The child support procedural regulations affect many thousands of cases. They need to be clear and capable of ready understanding both by parents and the Agency's staff. The interpretation set out above is intended to achieve that objective in a way which is consistent with the underlying purpose of the legislation.

A summary of the Commissioner's reasons for the decision in this case

63. My decision is set out at paragraph 2 above. I have summarised my conclusions on the legal issues involved in paragraph 60 above. The result is that the appeal tribunal erred in law in one respect, and one respect only, in that it applied the wrong legal test for determining the effective date of the maintenance calculation. It wrongly took the view that the sole test of notification was the actual receipt of the MEF by the father. On the facts of this case, however, the MEF was posted by the Agency to the father's last known or notified address, and so the date of posting was the date of notification under MCP Regulations, regulation 2(b). As a result I must set aside the tribunal's decision (Child Support Act 1991, section 24 (2)). There were no other errors of law in the tribunal's decision. In the light of that there is no point in sending this case back for a rehearing by a new tribunal. Instead, I find as a fact that the MEF was sent to the father's last known or notified address (as the tribunal held) on 27 October 2003. Applying the relevant law, this date is accordingly the effective date for the subsequent maintenance calculation. I accordingly make the decision set out in paragraph 2 above under section 24(3) of the Child Support Act 1991.

(signed on the original) N J Wikeley

Deputy Commissioner

3 February 2006