Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CCS/2962/2009

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the non-resident parent (Mr F), brought with my permission, against a decision of a First-tier Tribunal sitting at Aldershot on 28 July 2009. For the reasons set out below I dismiss the appeal.

 

2. Notice of the making of a maintenance calculation was posted to Mr F on or about 17 February 2004. He says, and I assume for the purpose of this decision, that it did not arrive until 20 February 2004. On 19 February Mr F paid a gas bill in the sum of £225.04 which qualified as a “voluntary” payment, for the purposes of s.28J of the Child Support Act 1991, if (but only if) it was paid “before the maintenance calculation has been notified to the non-resident parent” (see s.28J(2)(b)). The Tribunal held that the gas bill did not qualify as a voluntary payment because the maintenance calculation was “notified” to Mr F when it was posted to him, and not when he received it, and therefore the gas bill was not paid before the maintenance calculation was notified.

 

3. There is nothing in the 1991 Act itself which defines when a maintenance calculation should be treated as having been notified. Indeed, the 1991 Act does not even expressly provide that a maintenance calculation must be notified. However, a decision making a maintenance calculation is made under s. 11 of the 1991 Act, and s.51 of the 1991 Act provides (so far as material) as follows:

 

“(1) The Secretary of State may by regulations make such incidental, supplemental and transitional provision as he considers appropriate in connection with any provision made by or under this Act.

 

(2) The regulations may, in particular, make provision –

 

(a) as to the procedure to be followed with respect to –

 

(ii) the making of decisions under section 11

 

(b) ……………………………………………………….

 

(i) with respect to the giving of notices or other documents.”

 

 

4. The Child Maintenance and Enforcement Commission (“CMEC”) submits that the provision governing the date of notification of a maintenance calculation, for the purpose of s.28J of the 1991, is to be found in the Child Support (Maintenance Calculation Procedure) Regulations 2000 (“the MCP Regulations”). Part VI of those Regulations is headed “NOTIFICATIONS FOLLOWING CERTAIN DECISIONS”. Regulation 23, headed “notification of a maintenance calculation”, begins by providing in sub-para. (1) that “a notification of a maintenance calculation made under section 11 ….. of the Act shall set out, in relation to the maintenance calculation in question” and there then follow a list of matters which must be set out in the written notification.

 

5. Regulation 1 of the MCP Regulations is a general commencement and interpretation provision, and reg. 2, headed (“Documents”), is as follows:

 

“Except where otherwise stated, where –

 

(a) any document is given or sent to the Secretary of State, that document shall be treated as having been so given or sent on the day that it is received by the Secretary of State; and

 

(b) any document is given or sent to any other person, 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.”

 

6. CMEC submits that reg. 2(b) of the MCP Regulations has the effect that the maintenance calculation in the present case must be treated as having been notified to Mr F on the date when it was posted to him. That was (as Mr F accepts) not later than 19 February, so that if reg. 2(b) is the governing provision the gas bill was not paid before the date of notification of the maintenance calculation.

 

7. Mr F submits, on the other hand, that reg. 2 applies only for the purpose of the MCP Regulations themselves, and not for the purpose of s.28J of the 1991 Act. He submits that as a matter of the ordinary meaning of s.28J, he was not “notified” of the making of the maintenance calculation until he received it. Further or alternatively, he says that the governing provision is s.7 of the Interpretation Act 1978, which provides as follows:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

Mr F relies on the latter part of s.7, submitting that in the present case it is proved that the notification of the maintenance calculation was not in fact delivered until 20 February.

 

8. Mr F further submits that the purpose of s.28J was to encourage the making of sensible voluntary payments by the non-resident parent, and that it would be unfair if the period within which the payments can be made ends before the non-resident parent has actual notice of the maintenance calculation, in that he might quite reasonably make a payment after the maintenance calculation was made and posted, but before it arrived.

 

9. Mr F points out that s.28J(5) contained power to make regulations concerning voluntary payments, and in particular which payments count, and that the Child Support (Voluntary Payments) Regulations 2000, made under that provision, contain nothing about the date of notification. He submits that, if there had been any intention to give the word “notified” some meaning other than that which it otherwise have, it would have been done in those Regulations.

 

10. In my judgment the question whether reg. 2 of the MCP Regulations applies for the purpose of s.28J is not straightforward. One must clearly read in to reg. 2 some qualification to the effect that it applies for the purposes of the MCP Regulations: it is clearly not a provision which is intended to apply to every document which the 1991 Act requires to be given or sent. There are some provisions of the MCP Regulations themselves which require one to determine the date when a document is notified. For example, regulation 25(3) provides that in certain cases the effective date of the maintenance calculation is “the date of notification to the non-resident parent.” That expression is defined in reg. 1 as the date on which the non-resident parent is first “given notice of” the maintenance application. That therefore requires it to be determined when the maintenance application (not the calculation) was notified, and reg. 2 would clearly come into play in relation to that.

 

11. However, as far as I can see there is no provision in the MCP Regulations which depends on working out when a maintenance calculation was notified. Further, neither the 1991 Act nor the MCP Regulations appear to state in terms that a maintenance calculation must be notified; that is simply implicit. Regulation 23 of the MCP Regulations certainly does not expressly say so; it merely says that a notification of a maintenance calculation shall contain certain matters. One can therefore see considerable force in Mr F’s argument that reg. 2 does not apply for the purpose of working out, for the purposes of s.28J of the 1991 Act, when a maintenance calculation is notified.

 

12. On the other hand, one has in s.11 of the 1991 Act a general provision for the making of a maintenance calculation. As I have said, s.11 says nothing about notification. Section 11(8) says that “Part II of Schedule 1 makes further provision with respect to maintenance calculations.” Part II of Schedule 1 also says nothing about notification. The only thing which it says about the form of the calculation is (in para. 12) that “every maintenance calculation shall be made in such form and contain such information as the Commission may direct.” Then one has the general provision in s.51 of the 1991 Act for the making of regulations which I set out above.

 

13. Then one comes to the MCP Regulations. Their title suggests, of course, that they are to do with the procedure for making maintenance calculations. It would therefore not be surprising if they were to contain provisions about how and when a maintenance calculation is to be notified. One finds, as I have said, that in Part VI there are provisions introduced by the heading “NOTIFICATIONS FOLLOWING CERTAIN DECISIONS”, and in particular reg. 23, dealing with the contents of the notification of a maintenance calculation. (I agree with CMEC’s submission that reg. 23 must have been made under the general regulation making power in reg. 51 of the 1991 Act, rather than under any provision in Part II of Schedule 1 to the Act. That is confirmed when one sees that the only provisions of Schedule 1 under which the MCP Regulations were stated to be made were paragraphs 11 (relating to the effective date of a maintenance calculation) and 14 (relating to consolidated maintenance applications and calculations)).

 

14. Drawing the strands together, I would summarise the case which can be made in favour of CMEC’s contention as follows:

(i) Section 11 of the 1991 Act provides for the making of a maintenance calculation decision;

 

(ii) s.28J of the 1991 Act contains provision for voluntary payments, which depends on the payment having been made before the maintenance calculation is notified, but the 1991 Act does not contain a provision defining when notification of a maintenance calculation takes place, either for the purpose of s.28J or generally;

 

(iii) the Child Support (Voluntary Payments) Regulations 2000, made under s.28J, contain no provision as to when the maintenance calculation should be considered to have been notified, for the purposes of s.28J.

 

(iv) the 1991 Act contains power to make regulations as to the procedure to be

followed in relation to the making of maintenance calculation decisions, and with respect to the giving of notices and other documents;

 

(v) The MCP Regulations deal with matters relating to the procedure for maintenance calculations, and in particular deal in reg. 23 with the required contents of a notification of a maintenance calculation.

 

(vi) Reg. 2 of the MCP Regulations is a general provision as to the time at which documents shall be treated as having been given or sent, and the natural implication is that it was intended to apply for the purpose of determining when a maintenance calculation is notified, whenever it is necessary to do so under the 1991 Act or regulations made thereunder.

 

15. However, in my view the MCP Regulations probably do not display an intention that the general provision in reg. 2 should apply other than in circumstances when it is necessary, for the purposes of some provision in the MCP Regulations themselves, to determine when a document is given or sent. I have noted in para. 10 above one circumstance, and that is I think the main one, in which it is necessary, in order to operate the provision of the MCP Regulations themselves, to determine when the non-resident parent is “given notice of” a document (i.e. the maintenance application). I agree with Mr F that if it had been intended that the general provision in reg. 2 should apply whenever it was necessary under the 1991 Act to determine when a maintenance calculation decision was notified, that would have been made clearer.

 

16. Although this is by no means conclusive, it is plain, from provision made by other regulations made under the 1991 Act, that reg. 2 of the MCP Regulations was not intended to apply in order to determine, for all purposes, the date of notification of a maintenance calculation. For example, reg. 3A(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”) contains provision for revision of a child support decision on any ground if the application is made within one month “of the date of notification of the decision.” Reg. 1(3) defines “the date of notification” as “the date that notification of a decision of the Secretary of State … is treated as having been given or sent in accordance with regulation 2(b).” Reg. 2(b) of the 1999 Regulations is in somewhat similar terms to reg. 2 of the MCP Regulations, but the point it is that it is a provision which certainly applies for the specific purpose of determining the time within which a revision decision can be made.

 

17. CMEC has referred me to CCS/3147/08, in which the Judge concluded that a maintenance calculation was “notified”, within the meaning of s.28J, on the date of posting. However, that decision was in part based on the Judge’s view that it had been so decided in para. 25 of CCS/2288/2005, whereas that decision was concerned with the different question of the effective date of a maintenance calculation, which does depend on the specific definitions in the MCP Regulations. I therefore do not find CCS/3147/08 to be of any real assistance.

 

18. However, I am of the view (as was the First-tier Tribunal Judge who refused permission to appeal) that reg. 2 of the 1999 Regulations does apply in the present case. If provides (so far as material):

 

“Where, by any provision of the Act, of the Child Support Act or of these Regulations –

 

(a) ………………………………………………

 

(b) any notice (including notification of a decision of the Secretary of State or of an officer of the Board) or other document is required to be given or sent to any person other than an officer authorised by the Secretary of State or an officer of the Board, as the case may be, that notice or document shall, if sent by post to that person’s last known address, be treated as having been given or sent on the day that it was posted.”

 

19. That is framed as a general provision applicable to notifications required to be given under the 1991 Act (and also the Social Security Act 1998, which is the “Act” referred to at the beginning of reg. 2). Regulation 2 of the MCP Regulations begins simply with the words “except where otherwise stated, where …..”, the implication in my judgment being that reg. 2 of the MCP Regulations applies only for the purpose of the machinery of the MCP Regulations themselves. Regulation 2 of the 1999 Regulations begins with the much wider words “where, by any provision of the …… [1991 Act].” Although there is no express provision in the 1991 Act requiring a maintenance calculation decision to be notified to the parties, it is plainly implicit in the 1991 Act that there is such a requirement. The provisions of the Act plainly would not work unless there is notification. I do not accept Mr F’s contention, in his grounds for seeking permission to appeal, that reg. 2 of the 1999 Regulations applies only for the purposes of appeals and decisions relating to appeals. In my judgment reg. 2 is not limited to situations where it is necessary, when applying the machinery of the 1999 Regulations, to determine the date of notification of a decision. It seems to me that reg. 2 is deliberately framed as a general provision relating to notifications required by or under the 1991 Act.

 

20. In my judgment s.28J of the 1991 Act therefore has the effect, when read with reg. 2 of the 1999 Regulations, that the non-resident parent is “notified” of a maintenance calculation when it is posted to him.

 

21. I do not find anything in the language of s.28J, read in its context, which excludes the application of reg. 2 of the 1999 Regulations. I accept that reg. 2 will have the effect, as may have happened here, that the non-resident parent may make a voluntary payment before he has received notification of a maintenance calculation, but which cannot count. That may be harsh on him. But even if the date of notification had been the date of delivery of the letter, that could still have happened if, for example, the non-resident parent was away at the time. It was no doubt considered important, as a matter of practicality, that the Secretary of State should easily be able to ascertain when a decision is taken to have been notified, for the purpose of s.28J. That would not be so if it depended on the date of receipt. Had the intention been that voluntary payments made between the date of the sending and the date of receipt of notification should qualify, section 28J(2)(b) could have referred to the date when the non-resident parent received the notification.

 

22. I would also say that my construction arguably fits better with the terms of s.28J(1), which are as follows:

 

“This section applies where –

 

(a) a person has applied for a maintenance calculation under section 4(1) or 7(1);

 

(b) the Commission has neither made a decision under section 11 or 12 on the application, nor decided not to make a maintenance calculation; and

 

(c) the non-resident parent makes a voluntary payment.”

 

On the face of it subsection (1)(b) has the effect that the section cannot apply at all once a maintenance calculation decision has been made (as opposed to notified). I do not think that that is right, reading the section as a whole, because of the specific provision in s.28J(2)(b) that the voluntary payment must be made before the decision has been notified. But, on the footing (as I imagine normally happens in practice) that notice of a maintenance calculation decision is posted on the day when it is made, there will on the conclusion which I have reached in practice be no conflict between s.28J(1)(a) and s.28J(2)(b).

 

23. For the above reasons I must dismiss this appeal.

 

 

Charles Turnbull

Judge of the Upper Tribunal

20 April 2010