UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CCS_2885_2005 (07 March 2006)

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is given under section 24(2) and (3)(d) of the Child Support Act 1991. It is:

I SET ASIDE the decision of the Fox Court appeal tribunal, held on 20 May 2005 under reference U/42/160/2005/00649, because it is wrong in law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 20(7)(a) of the 1991 Act, any other issues that merit consideration.

The issues

2. This case raises a number of issues on the interpretation and application of the shared care provisions in paragraphs 7 to 9 of Schedule 1 to the Child Support Act 1991, as amended, and regulation 7 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000. In simple terms, the law provides for the child support maintenance that would otherwise be payable to be reduced in proportion to the number of nights that the qualifying children spend with their non-resident parent.

Evidence and facts

3. As all too often, the parents are not agreed on the number of nights that each of their children spent with the non-resident parent. And, as regularly occurs, there is a dispute whether the terms of, and the arrangements for, contact set by a series of court orders are being observed. Those are factual matters that depend in part on the credibility of the parents as witnesses. Credibility is best judged after hearing and questioning both parents. I leave those matters to the tribunal at the rehearing and concentrate in this decision on the legal framework within which those factual issues have to be resolved. I encourage both parents to attend the rehearing that I have directed in order to assist the tribunal.
4. The non-resident parent is the father of Fiona and Stephanie. Their mother is their parent with care. The court made a residence order in her favour. It also made, and later varied, an order for contact between the non-resident parent and his daughters. The letters show that the parent with care was not happy about the way that contact with the non-resident parent was operating. There may be (I put it no higher than that, as I may have misunderstood the letter) a suggestion that the non-resident parent was keeping the children with him longer than was allowed. There are certainly suggestions that the parent with care was going to terminate contact until the arrangements were properly complied with.
5. It is my usual practice in child support cases to say as little about the evidence and facts as possible, limiting myself only to those matters that are necessary to understand my analysis of the law that has to be applied. Passions are often high and the exchanges between the parties heated. Parents are only too ready to identify errors of omission, commission or emphasis in any reference to contentious matters. In those circumstances, the less said the better until the case comes before a fact-finding tribunal.

How the tribunal went wrong in law

6. I need not dwell on this. It is sufficient to say that the non-resident parent gave evidence of the frequency with which his daughters stayed overnight. The tribunal did not accept that evidence, but the full statement of the tribunal's decision does not explain why. That makes the reasons inadequate and the tribunal's decision wrong in law.

The courts and the child support adjudication

7. The non-resident parent has criticised the lack of co-ordination between the courts and the Child Support Agency. It is not for me to comment on the current distribution of responsibilities for child law. I have to operate the system that has been created by Parliament. That system separates issues of residence and contact from issues of maintenance. The former are allocated to the courts; the latter are allocated to the Child Support Agency, the appeal tribunal and the Commissioners.

Overnight care

8. The shared care provisions only apply if the non-resident parent 'from time to time has care of the child overnight' (paragraph 7(2) of Schedule 1) while the 'child stays at the same address as the non-resident parent' (regulation 7(1)(b)). Only overnight care is relevant. Even if the non-resident parent has his daughters with him for the whole of a day, that day does not count if it is not accompanied by an overnight stay. Nor is the cost of care relevant. The fact that the costs of caring for a child are borne disproportionately by one parent or the other as a result of the care arrangements is not taken into account.
9. The overnight care which counts for the purposes of shared care is actual overnight care. It does not matter whether it is authorised or agreed. If the children stay overnight with their father, it does not matter whether that stay was authorised by a court order or agreed to by the parent with care. It is still overnight care. Likewise, overnight care that is authorised or agreed but not actually provided is disregarded. The reason is irrelevant. It may be due to the refusal of the non-resident parent, the child, or the parent with care or to circumstances beyond the control of any of them. All that matters is that the care was not provided. The combined effect of these points is that the contact arrangements ordered by a court or agreed to by the parents (and perhaps the child) are not decisive on the factual issue of overnight care that the non-resident parent actually provides. They are only relevant as evidence of care that was actually given, no more.

The relevant period

10. The number of nights for which a non-resident parent has shared care must be determined by reference to a period. The choice of that period may be decisive of whether there is any shared care and, if so, for how many nights.
11. The default position is that the period used is 'a prescribed twelve-month period' (paragraph 7(3) of Schedule 1). The twelve-month period is prescribed by regulation 7(3) as 'the 12 month period ending with the relevant week'. 'Relevant week' is defined by regulation 1(2). The decision under appeal was given on revision: see the Secretary of State's observations in paragraph 7 on page 86. Accordingly, the relevant week is the period of seven days immediately before the non-resident parent was notified that the parent with care had applied for a maintenance calculation: see heads (b)(i) and (a)(ii) of the definition of 'relevant week'. In this case, the non-resident parent was notified by being sent a Maintenance Enquiry Form. That was sent on 21 July 2004, which means that the relevant week is 14 to 20 July 2004.
12. In this case, the default period was not appropriate, because the parents did not live separately until May 2004. Regulation 7(4) authorises the use of a different period. However, it does not provide a general discretion to use a different period whenever that would be appropriate. It only authorises it in two circumstances. One is that there has been 'no pattern for the frequency with which the non-resident parent looks after the qualifying child for the 12 months preceding the relevant week'. The other is that 'the Secretary of State is aware that a change in that frequency is intended'. If and only if either of those conditions is satisfied, the decision-maker may use 'such lesser period as may appear … to be appropriate'.

No pattern of frequency

13. This applies if there is no pattern of frequency. It is not concerned with changes in the pattern, that is distribution, of the care that do not affect its frequency. If a non-resident parent has a child for two nights at the weekend but changes that to four week nights every other week, there is a change of pattern, but not a change of frequency. Similarly, there may be a change in the frequency of care without affecting the pattern of that frequency. If a non-resident parent has care of the child while the parent with care is in hospital for two weeks, there is a change in the frequency of the care, but not a change of pattern. The one off additional period is not sufficient to establish a new pattern.
14. There must be no pattern of frequency 'for the 12 months preceding the relevant week'. The important word is 'for'. Regulation 7(4) does not deal with circumstances in which there was no pattern within that period. Nor does it deal with circumstances in which there was no pattern for part of that period. It only deals with circumstances in which there was no pattern for the period, that is, for the whole of that period. In the context, it is not appropriate to read the singular 'pattern' as also including the plural 'patterns'. In other words, the context excludes the operation of section 6(c) of the Interpretation Act 1978. If it applied, this part of regulation 7(4) would only operate if there were no patterns of frequency at all within the period. That would exclude from the scope of the provision any case in which the pattern initially established had changed, which is surely the most obvious circumstance in which it is appropriate to use a different period than 12 months.
15. Broadly speaking, the 'no pattern' cases will fall into three categories: (i) where there was a pattern initially, but it was later changed to a different pattern; (ii) where there was a pattern initially, but it was later abandoned; and (iii) where there was no pattern initially, but one was later established. The tribunal will have to determine three factual questions. What were the care arrangements during the period? What patterns, if any, were established? Were changes in arrangements (a) just a varying distribution that did not affect the overall pattern of frequency, (b) temporary variations of frequency that did not affect the overall pattern or (c) a new pattern of frequency?
16. One conclusion that the tribunal might reach at the rehearing is that by the relevant week the arrangements for overnight stays and their operation were too uncertain to establish a pattern of frequency. If so, how can the tribunal take account of any pattern that was only established thereafter?

Intended change

17. A quick reading of regulation 7(4) suggests that this part of it deals with changes that are intended in the future. That would be a ground for supersession, as 'it is expected that a change of circumstances will occur' under regulation 6A(3)(a)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, this simple reading does not work.
18. I have found this part of regulation 7(4) difficult to interpret. The more closely I have analysed it, the more complex I have found it to be. In order to explain why, I have to refer to the enabling provisions under which regulation 7(3) and (4) were made.
19. Paragraph 7(3) of Schedule 1 provides for the shared care to be calculated on the basis of the number of nights 'during a prescribed twelve-month period'. Notice the scope of the prescription. It is not the length of the period that is prescribed, just the particular 12 months that form that period. Those months are prescribed by regulation 7(3) as being the '12 month period ending with the relevant week'.
20. Paragraph 9(c) of Schedule 1 provides for 'paragraph 7(3) … to have effect, in prescribed circumstances, as if the period mentioned there were other than 12 months'. Notice that, in contrast to paragraph 7(3) itself, this deals with the length of the period, not the particular months that form that period. Regulation 7(4) is made under this enabling power. That is clear from its opening words: 'The circumstances in which the Secretary of State may have regard to a number of nights over less than a 12 month period are …' Those words reflect the language of paragraph 9(c) and refer only to the length of the period. So, regulation 7(4) does not alter the end date for the period, it only alters the length of the period. Whatever the length of the period, it must end with the relevant week.
21. Let me now go back to the simple reading of regulation 7(4) – that it deals with changes that are intended in the future. That can only be the future as viewed from the relevant period, that is, after the relevant week. But, if the provision deals with changes after the relevant period, how is it possible to fix an appropriate period? If that period has to end with the relevant week, it is impossible to fix a period that reflects a change that will not by definition take effect until later.
22. The Secretary of State's representative has referred to a passage from the commentary to regulation 7(4) in Child Support: The Legislation 2005/2006:

'The first case is if there was no pattern of frequency of overnight care over that period. This applies if overnight care has been random or there has been a clear change during the 12 months. The second case is where a change in that frequency is intended to take place in the future. That does not mean that the change is intended to take place in the future. If it did, the change would be taken into account before it occurred. It means that the evidence of recent overnight care represents an intended change of frequency and not merely a temporary variation that will be averaged out over the longer term.'

That passage is obscurely argued and poorly expressed, but it attempts to overcome the difficulty I have identified in order to render the 'intended change' part of regulation 7(4) effective. I do not consider that the suggested interpretation works, because the circumstances envisaged are covered, on my interpretation, by the 'no pattern' part of the provision.

23. How then are changes that occur after the relevant week taken into account? Regulation 2(4) deals with this possibility:

'In taking account of any amounts or information required for the purposes of making a maintenance calculation, the Secretary of State shall apply the dates and periods specified in these Regulations as applicable to those amounts or information, provided that if he becomes aware of a material change of circumstances occurring after such date or period, but before the effective date, he shall take that change of circumstances into account.'

The frequency of overnight care is 'information' for the purposes of this provision. It links with paragraph 15 of Schedule 1 to the Act, which allows different calculations to be made for different periods. Those periods may cover any time up to the effective date of the Secretary of State's decision. That allows a decision-maker to take account of changes in the frequency of overnight care that occur after the relevant week but before the date of decision.

24. Regulation 6A(3)(a)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 also authorises supersession for changes that will occur after the date of decision. Paragraph 15 of Schedule 1 is wide enough to allow effect to be given to such changes. That, at least, is the position so far as the Secretary of State is concerned. The appeal tribunals are prohibited by section 20(7)(b) of the Child Support Act 1991 from taking account of circumstances not obtaining at the date of the decision under appeal. Presumably, the fact that a change will occur is a circumstance that obtains at the time of the decision.
25. So far I have shown that the 'intended change' part of regulation 7(4) does not deal with changes that will occur after the relevant week. To summarise: (i) it is impossible to fix an appropriate period ending with the relevant week for these changes; and (ii) it is unnecessary to stretch the meaning of the language to achieve this result, because other provisions deal with this possibility. However, this does not mean that this part of regulation 7(4) is redundant.
26. The tenses in regulation 7(4) are important. Its operation has to be viewed from the relevant week. For the 'no pattern' part, the past tense is used and is appropriate. For the 'intended change' part, the present tense is used. Not, note, the future tense. It does not say that 'the Secretary of State is aware that a change in that frequency will occur'. It says that 'the Secretary of State is aware that a change in that frequency is intended'. I believe that that is the key to the interpretation of this part of regulation 7(4). It deals with this type of case. The parents have agreed to a change in the pattern of frequency for overnight care. But because of the distribution of that care, that change has not become apparent in the frequency of the care provided by the relevant week. Take this example. The child stays with the non-resident parent for a mixed pattern of overnight care depending on the parents' shift patterns. The parents agree that a more regular pattern would benefit the child. It may be possible in these circumstances to find a period before the relevant week that contained a distribution of care which coincides with the pattern of frequency under the new arrangement.
27. This will not allow all intended changes to be taken into account. Take this example. Suppose that the child stays with the non-resident parent for two nights each weekend throughout the year. After Easter, the parents agree to a change, so that the child will stay with the non-resident parent for two nights at weekends in term time and for half of each school holiday. If the relevant week happens to fall at the end of the summer term, the change will not be apparent from the number of nights that the child has stayed with the non-resident parent. Nevertheless, there has been a change because the parents intend this to be part of a new pattern of frequency. However, the distribution of care down to the relevant week was such that the same result will always be reached whatever the period taken. Depending on the dates of the relevant week and of the decision, this example would have to be dealt with adjusting regulation 7(4) as authorised by regulation 2(4) or directly under regulation 6A. But the effective date of the change will be earlier if it can be done directly under the authority of regulation 7(4) as it stands.

Conclusion

28. On my analysis, there are three ways in which changes in the pattern of frequency of overnight care can be taken into account. Most of the changes that have been agreed between parents can be taken into account under regulation 7(4), provided that the change is already established or is at least in the process of being established. Of the remainder, some can be taken into account by using regulation 2(4) or regulation 6A. That leaves some changes that cannot be taken into account under any of those three regulations. These have to be the subject of a separate application for supersession. The only practical difference between these three possibilities will be the effective date. Those who advise the Secretary of State may wish to consider whether regulation 7(4) is appropriately drafted and whether the factual distinctions involved justify the difference in effective dates, depending as they do on the chance sequence of dates.

The appropriate lesser period

29. The legislation provides no guidance on what constitutes an appropriate period, other than that it must be shorter than 12 months, or on the factors that should be taken into account. That is not surprising. The language is as clear as it can be. The period taken must be appropriate in the circumstances of the case.

Disposal

30. I allow the appeal, set aside the tribunal's decision and direct a rehearing. In particular, the issue for the tribunal will be the shared care of Fiona and Stephanie. The tribunal must decide that issue in accordance with my analysis of the law in this decision.

Signed on original on 07 March 2006

Edward Jacobs Commissioner