DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant (“the mother”), although the outcome is the same as the decision of the First-tier Tribunal under appeal.

 

The decision of the Southampton First-tier Tribunal dated 25 November 2008 under file reference 203/08/01257 involves an error on a point of law and is set aside. The Upper Tribunal re-makes the decision on the appeal before the First-tier Tribunal in the following terms:

 

The appeal by the parent with care against the Secretary of State’s decision dated 19 March 2008 is dismissed.

 

The effective date for the maintenance calculation (which was made on 19 March 2008) is 28 September 2007. That was the date on which the non-resident parent was first notified by the Secretary of State of the maintenance application made by the mother as long ago as 31 March 2006. The fact that the Maintenance Enquiry Form was given to the non-resident parent by the parent with care on 28 September 2007 did not preclude it being an effective notification within regulations 1, 5 and 25 of the Child Support (Maintenance Calculation Procedure) Regulations 2000 (SI 2001/157). It follows that the effective date was neither earlier in the course of 2006 nor later in March 2008 as at the date of notification of the eventual maintenance calculation.

 

There is no decision before the First-tier Tribunal over the previous maintenance application made in 2003 and so the tribunal has no jurisdiction over that matter.

 

There is also no issue over the quantification of the maintenance calculation made on 19 March 2008, as the non-resident parent did not lodge an in-time appeal on that matter.

 

This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

 

 

 

REASONS FOR DECISION

 

 

 

The decision in summary

 

1. Formally the mother’s appeal against the decision of the First-tier Tribunal is allowed, but this will be of little consolation to her, as the Upper Tribunal makes its own decision which essentially has the same practical effect as the First-tier Tribunal decision. I summarise my key findings at paragraph 86 below. My reasons are as follows.

 

The parties to this appeal

 

2. The Appellant is the parent with care under the maintenance calculation, the First Respondent is the Child Maintenance and Enforcement Commission (or CMEC, previously the Child Support Agency) and the Second Respondent is the non-resident parent. For convenience I refer to them throughout simply as the mother, the Agency (or the Commission, depending on the context) and the father respectively. The parents’ two children, a son (“LJ”) and a daughter (“AJ”) now both live with their mother.

 

The main issue on this appeal to the Upper Tribunal

 

3. The principal legal issue in this appeal is whether the First-tier Tribunal applied the law correctly in determining the effective date of the maintenance calculation in question (within the meaning of regulation 25 of the Child Support (Maintenance Calculation Procedure) Regulations 2000 (SI 2001/157) [“the 2000 Regulations]). In particular, the appeal turns on what is meant by the expression “notification to the non-resident parent”.

 

4. I acknowledge at the outset that this may seem to be a rather narrow way of framing the many issues in the case. However, the jurisdiction and powers of tribunals are limited by statute. Although this case has a history which goes back to 2003, the First-tier Tribunal was right to regard its role as more limited, for the reasons that follow. I also accept that on any reckoning this is a case in which both parents appear to have been poorly served by the child support system and so may have legitimate cause for feeling aggrieved.

 

The oral hearing of the appeal before the Upper Tribunal

 

5. I held an oral hearing of this appeal at Harp House in London on 22 April 2010. The mother and father both appeared in person, the mother also represented by her own father (“the mother’s representative”). Mr Leo Scoon, instructed by the Office of the Solicitor to the Department for Work and Pensions, appeared on behalf of the Commission, expanding upon three earlier written submissions prepared by the Secretary of State’s staff.

 

6. I am grateful to both parents, to the mother’s representative and to Mr Scoon for their clear and pertinent submissions. I hope they will not take it amiss if I do not refer to every single point that has been raised either in writing or at the hearing. The role of the Upper Tribunal is to focus on the fundamental issues which go to whether or not the First-tier Tribunal made a mistake in law.

 

The background to the First-tier Tribunal hearing

 

7. The parents were married in 1998. Their two children were born in 1998 and 2001 respectively. They separated in 2002. Following the mother’s application for child support, the Agency sent a maintenance enquiry form (a MEF) to the father on 28 January 2003. This would accordingly have been an “old scheme” case, as it pre-dated the reforms introduced in March 2003 (the month in which the parents’ decree absolute was issued).

 

8. The Agency and the father argue that that case was closed in late 2003 at the mother’s request, as a private agreement had been reached. The mother and her representative are adamant that no such withdrawal of the application ever took place and that the 2003 application is still “live”. However, there appears to be no dispute between the parties that the Agency took no further action between 2003 and at least 2006 (and possibly later). It is also clear that there was some form of private arrangement in place during part or all of this period (how far that private agreement was complied with at all times is a matter of dispute but is not relevant for present purposes).

 

9. The mother had various jobs but on 31 March 2006 she had to make a claim for Income Support. At that date this involved also making a claim for child support maintenance (or technically being treated as having made such a claim under section 6 of the Child Support Act 1991). The mother told the father what she had done. There was some discussion between the parties about the future of the private arrangement in the light of the Agency’s involvement. The father certainly telephoned the Agency for advice. Suffice to say, the private arrangement seems to have broken down completely at this point.

 

10. By way of completeness it should be mentioned that LJ had been living with his paternal grandmother between 2002 and 2006, although AJ had been living with her mother throughout. However, on 14 April 2006 LJ moved back to live with his mother. This was a planned move and so the child support application made on 31 March 2006 referred to both children.

 

11. Both parents had some telephone contact with the Agency during 2006. In October 2006 the father went to live (and work) in France with his then partner. He remained there until August 2007, when he returned to the United Kingdom. On his return the Agency issued a new MEF in the father’s name. They did not send him the MEF by post in the normal way, for the simple reason that they did not know his address. Instead, the Agency sent the MEF to the mother, as she had offered to act as an intermediary. There is no dispute that she gave the father the MEF on 28 September 2007 and that he completed the form on 28 October 2007.

 

12. The MEF was returned by recorded delivery to the Agency. In yet another of the catalogue of errors that has beset this case, the Agency’s case notes record that they “never received it” (possibly an official euphemism for “we lost it”). On 16 November 2007 the mother, having very wisely kept a photocopy of the MEF, telephoned the Agency and provided the relevant information over the phone. The contemporary case note adds that “no E/D [effective date] set on the system but MEF was received by PWC on 28/09/07 and passed to the NRP the same day so this is to be the E/D.”

 

13. On 19 March 2008 the Agency (eventually) made a decision and wrote to both parents. The maintenance calculation was set at £64 a week for the two children together, with an effective date of 28 September 2007, the date the mother had handed the father the MEF.

 

14. On 17 April 2008 the mother lodged an appeal. Her representative argued that the effective date of 28 September 2007 was wrong and the correct date should have been the date of the combined income support and child support claim, namely 31 March 2006.

 

15. The Agency then looked at the maintenance calculation again. In its submission to the First-tier Tribunal, the Agency accepted that its original decision was wrong, but argued that the effective date should in fact have been even later, not earlier. The submission writer stated that it should have been 19 March 2008, namely the date of the decision letter. The reason given was that the father’s receipt of the MEF on 28 September 2007, direct from the mother, did not amount to notification by the Secretary of State.

 

16. The appeal was first listed for hearing on 11 September 2008. Both parties submitted a considerable body of extra evidence both in the days before and at the hearing. The tribunal understandably adjourned the hearing. The Agency’s decision-maker provided a supplementary submission seeking to address the parties’ various points. This reiterated the argument that the 2003 case was closed and that the first time that the Agency had contacted the father in respect of the 2006 application was on 19 March 2008. The supplementary submission also noted that the father had been living in France between 2006 and 2007 and so his habitual residence might become an issue, depending on the effective date.

 

The First-tier Tribunal’s decision

 

17. The First-tier Tribunal heard the mother’s appeal on 25 November 2008. Both parents attended and gave evidence, the mother accompanied by her representative. The First-tier Tribunal dismissed the appeal. The District Tribunal Judge set out his three central findings concisely on the tribunal’s Decision Notice. These were, first, that the effective date was 28 September 2007, as the mother’s intervention in forwarding the MEF to the father did not negate the validity of the notification. Second, the fate of the 2003 application was outside the scope of the appeal and had only been raised with the tribunal a few days before the hearing. Furthermore, there was no decision on the 2003 claim before the tribunal and in any event that application had been cancelled in the light of the parties’ private agreement. Third, the father had not appealed the calculation itself and the assessment issues on the March 2008 calculation could not be re-opened at this stage. The District Tribunal Judge provided a fuller explanation for these conclusions in his Statement of Reasons.

 

18. The District Tribunal Judge subsequently granted the mother permission to appeal so that “the Upper Tribunal should consider the issue of the manner of notification to a non resident parent in respect of establishing the effective date of a maintenance assessment”.

 

The proceedings before the Upper Tribunal

 

19. The Commission’s arguments before the Upper Tribunal on this central issue have shifted, rather like those of the Agency before the First-tier Tribunal, although in a different direction. The Commission’s first written submission to the Upper Tribunal argued that there were three possible effective dates: (1) some time in 2006, because of the telephone contact between the father and the CSA then; (2) the date of delivery of the MEF by the mother (28 September 2007); or (3) the date of the decision letter (19 March 2008). It was argued that the tribunal’s failure to address option (1) was an error of law and the case should be sent back for rehearing.

 

20. Further, the Commission’s third written submission to the Upper Tribunal argued that, as a result of new evidence that had belatedly come to light from the case records, it was apparent that the father had had telephone contact with the Agency on 9 August 2006 (shortly before he left for France) to say that the mother was not the primary carer. The Commission argued that this was therefore the latest date for the notification by the Secretary of State to have taken place (i.e. option 1).

 

21. At the oral hearing Mr Scoon did not put the case for a 2006 notification with any great conviction. He certainly acknowledged that the father appeared to be aware of the existence of the application in 2006, before he had left for France. Mr Scoon also conceded frankly that there had been serious delays in dealing with the case on the part of the Agency. He appeared to accept the force of the First-tier Tribunal’s arguments for holding that the mother’s handing of the MEF to the father amounted to notification by the Secretary of State (i.e. option 2). He certainly did not suggest that option 3 was sustainable as a matter of law.

 

22. The parents’ respective arguments were much more straightforward. The mother’s case – leaving to one side the 2003 issue – was that the effective date had to be 31 March 2006 or at the very latest 14 April 2006, the date on which LJ returned to live with her, as the father had certainly been made aware of the application by that date. In short, there was no reason why she and the children should be penalised financially because of the Agency’s failings. The children’s welfare was paramount and that pointed to an effective date as close as possible to the date of the application itself, namely option 1.

 

23. The father’s submission was equally stark. He too argued that he should not be made the “scapegoat” or “fall guy”, as he put it, for the Agency’s negligence, which would be the result of the effective date being set in 2006. He said that he had been anxious to ensure maintenance matters were put on a proper footing, not least as he knew that in practice it would make arranging contact with his children less fraught and as he had no wish to see his arrears build up. He had telephoned the Agency for advice in 2006 but they had not contacted him. He had completed the MEF as soon as it was given it in the autumn of 2007 and so option 2 was the right answer. To his credit he did not suggest at any time that option 3, as advanced by the Agency before the First-tier Tribunal, and which would have been best in terms of his narrow financial interests, was either an appropriate or a fair solution.

 

The statutory framework for setting the effective date for the 2006 application

 

24. The effective date for the maintenance calculation based on the application the mother undoubtedly made on 31 March 2006 is set by regulation 25(3) of the Child Support (Maintenance Calculation Procedure) Regulations 2000. This provides that the effective date “shall be the date of notification to the non-resident parent”. The use of the word “shall” demonstrates that this rule is mandatory – there is no element of discretion or choice involved (the significance of this point will become apparent later).

 

25. According to regulation 1(2) of the same Regulations, the expression “the date of notification to the non-resident parent” means “the date on which the non-resident parent is first given notice of a maintenance application”. If the statutory definition stopped there, there would be considerable force in the mother’s argument that option 1 applied in this case, as there was no dispute that she had told the father in or around April 2006 that she had applied for child support. As a matter of common sense, the father was at that point at least “on notice” or aware of the fact that an application had been made.

 

26. However, the statutory definition does not stop there. The 2000 Regulations contain a series of definitions, hiding inside each other like Russian dolls. At the time in question, regulation 1(2) provided as follows:

 

“ ‘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, or treated as made, in relation to which the non-resident parent is named as a parent of the child to whom the application relates;”.

 

27. Regulation 5(1) in turn provided as follows at the material time:

 

“Notice of an application for a maintenance calculation

     5.  - (1) Where an effective application has been made under section 4 or 7 of the Act, or an application is treated as made under section 6(3) of the Act, as the case may be, the Secretary of State shall as soon as is reasonably practicable notify, orally or in writing, the non-resident parent and any other relevant persons (other than the person who has made, or is treated as having made, the application) of that application and request such information as he may require to make the maintenance calculation in such form and manner as he may specify in the particular case.”

 

28. Furthermore, this requirement was (and indeed still is) qualified in turn by regulation 5(2) in the following terms:

 

“(2) Where the person to whom notice is being given under paragraph (1) is a non-resident parent, that notice shall specify the effective date of the maintenance calculation if one is to be made, and the ability to make a default maintenance decision.”

 

29. The language used both in the definition of “notice of a maintenance application” in regulation 1(2) and in the statutory requirements for notice under regulation 5(1) and (2) lend more weight to the father’s argument that option 2 was the correct effective date. On this basis it was only on 28 September 2007 that he had received official notification from the Secretary of State in the guise of the MEF, albeit that this had been handed to him by the mother and not posted to him by the Agency in the usual way.

 

The policy behind regulation 25

 

30. One of the principal aims underpinning the child support legislation is that parents should meet their financial responsibilities to their children in a timely fashion. Well-publicised difficulties, not least with the Agency’s operational systems, have meant that the attainment of that overall goal has proven elusive. In any event, the legislation also has to seek to balance the sometimes competing interests of children, parents with care and non-resident parents. Setting the start date for the imposition of a child support maintenance liability is one such area of potential conflict. Typically the interests of the children and the parent with care point to that date being set as early as possible in the process, whereas the non-resident parent may have a vested interest in the date being set as late as possible.

 

31. In an earlier Child Support Commissioner’s decision, CCS/2288/2005, I put the position in the following terms (at paragraphs 43-46):

 

“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.’”

 

32. Although CCS/2288/2005 also concerned the setting of the effective date, the specific point in issue in that case was different, namely whether or not the MEF had been sent to the non-resident parent’s “last known or notified address”. However, in terms of the underlying policy of the legislation, paragraphs 43-46 of that decision are equally relevant to the circumstances of the present appeal. I would merely add that when describing (in paragraph 46 cited above) how “the effective date starts with the despatch of the MEF to the non-resident parent (or the oral notification of the application)” I was seeking to do no more than explain in plain English the combined effect of regulations 1, 5 and 25 of the 2000 Regulations. That summary was certainly not meant as a substitute for, or gloss on, the test in the regulations.

 

The First-tier Tribunal’s treatment of the effective date

 

The Tribunal’s failure to address the possibility of Option 1

 

33. Although the First-tier Tribunal noted the argument made by the mother’s representative that the effective date should be 31 March 2006, the tribunal did not then return to address the point later. The tribunal effectively ignored what I have described above as option 1. Instead, the tribunal treated the appeal as turning on whether the effective date was either option 2, the date of delivery of the MEF by the mother (28 September 2007), and as the Agency had originally concluded, or option 3, the date of the decision letter (19 March 2008), as the Agency later sought to argue.

 

34. I agree with the Commission’s submission to the Upper Tribunal that the First-tier Tribunal’s omission to address the possible application of option 1 amounted to an error of law. The mother’s representative had made the point very clearly but it had not been specifically answered by the tribunal. In addition, the father had himself conceded in correspondence that he had had some sort of contact with the Agency in the course of 2006. For example, he had explained that he had stopped making payments under the private agreement “in 2006 from the advice of the CSA due to the fact [that the mother] had made an official application”. I acknowledge, however, that this concession and one or two other similar clues were easily missed in over 200 pages of documentary evidence. Nonetheless, the tribunal’s failure to explore option 1 amounted to an error of law.

 

35. However, just because an error of law is identified does not mean that the decision of the First-tier Tribunal must necessarily be set aside. The Upper Tribunal has a discretion to exercise in deciding whether or not to do so (see section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007). I have considered carefully whether to leave the First-tier Tribunal’s decision intact, but concluded that such a course of action is not appropriate in this case, given the level of disagreement between the parties. I therefore set aside the decision of the First-tier Tribunal as it involved making an error on a point of law. I return below to how the appeal should now be resolved.

 

The tribunal’s preference for option 2 over option 3

 

36. If the only issue in dispute before the First-tier Tribunal had been whether the effective date was either option 2 or option 3, I would have had no hesitation in upholding the decision of the District Tribunal Judge, albeit I would not have adopted his reasoning in its entirety. The judge had found as a fact that the “first direct contact” – by which, from the context, I think he must have meant the “first direct written contact” – between the Agency and the father was in March 2008. The judge also found that the Agency had sent the MEF to the mother and that as a result of her intervention the MEF then reached the father on 28 September 2007.

 

37. The tribunal then gave the following reasons for ruling that option 2, and not option 3, was the effective date (with paragraph numbers added):

 

“17. Having considered reg. 25(3) and the relevant definitions in reg. 1(2) of the MCP Regs, I conclude that the intervention of parent with care or any other third party does not mean that the notification was not ‘by the Secretary of State’. Facilitation of delivery by another person does not in my view mean that the delivery is of no effect. Such intention is not expressly precluded and the basic point is to ensure evidence of service.

 

18. Further I concluded that the regulations are to be interpreted where they can be to favour service so a maintenance assessment can be made and an Effective Date set as near as possible to the application for the maintenance assessment. It is in the interests of the child that the date should be set as soon as properly possible: s.2 of the Act.

 

19. It follows from the terms of the regulations that any delay in processing the application as seems to be the case here following the lodging of the application at Milton Keynes JC [JobCentre] cannot in law affect the setting of the Effective Date in the absence of notification to the non-resident parent of the application made.”

 

38. On the first point at paragraph 17 of the Statement of Reasons, we have seen that according to regulation 1(2) the “date of notification to the non-resident parent” within regulation 25(3) means the date on which he is first given “notice of a maintenance application”, which in turn means “notice by the Secretary of State” under regulation 5(1), which then states that “the Secretary of State shall as soon as is reasonably practicable notify, orally or in writing, the non-resident parent …of that application”.

 

39. The District Tribunal Judge was correct to hold as a matter of law that facilitation of the delivery of the MEF by another person did not mean that the delivery was of no effect. He was also right to rule that “the intervention of parent with care or any other third party does not mean that the notification was not ‘by the Secretary of State’.” There are clearly a number of ways in which the Secretary of State might notify the non-resident parent in writing, any of which might suffice for these purposes. An Agency officer might give the non-resident parent the relevant paperwork at a face-to-face meeting. The Agency might send the notification direct to the non-resident parent in the normal post. In certain circumstances, however, the Agency might send it to a third party, such as the non-resident parent’s employer or ex-partner (as here), for it to be handed on to the non-resident parent.

 

40. If the Agency send the notification by post “to the person’s last known or notified address”, then the deeming rule for the service of documents in regulation 2 may come into play, which was at the heart of the decision in CCS/2288/2005. If the Agency send the notification by post but indirectly, e.g. via an employer or ex-partner, then regulation 2 will not come into operation, unless perhaps that address is indeed “the person’s last known or notified address”. But where some indirect postal route is used, as in the present case, a tribunal is still entitled to find on the facts that an effective notification by the Secretary of State actually took place.

 

41. The District Tribunal Judge’s second reason, at paragraph 18 of the Statement of Reasons, may be expressed too broadly. Clearly it may well be desirable as a matter of policy that the effective date is set as near as possible to the date of the application for the maintenance assessment. However, the regulations plainly focus on the date of the notification of that application to the non-resident parent, not the date of the application itself.

 

42. In addition, section 2 of the Child Support Act 1991 is not directly in point. Although section 2 is headed “Welfare of children: the general principle”, its scope is actually rather more restricted than that. The section provides that where the Agency “is considering the exercise of any discretionary power conferred by this Act, it shall have regard to the welfare of any child likely to be affected by his decision.” It follows that section 2 has no application in situations where the primary legislation does not actually vest the decision maker with a discretionary power (see R v Secretary of State for Social Security, ex parte Biggin [1995] 1 F.L.R. 851 and Brookes v Child Maintenance and Enforcement Commission [2010] EWCA Civ 420).

 

43. The setting of the effective date is not an issue which involves “the exercise of any discretionary power” under the 1991 Act. Paragraph 11 of Schedule 1 to the Child Support Act states that a “maintenance calculation shall take effect on such date as may be determined in accordance with regulations made by the Secretary of State”. This is a mandatory rather than a discretionary decision (see also paragraph 24 above). Once the proper effective date is identified, there is no choice to move it forward or backward. There is accordingly no discretion, either under the Act or indeed under the subordinate regulations, and so section 2 simply does not bite. Section 2 is not a magic wand or trump card which allows the Commission (or tribunal) to ignore the regulations, tear up the rule book and select an earlier start date for the maintenance liability which is in the children’s best interests. However, any error of law on the part of the tribunal in this respect was not material as it did not determine the outcome of the appeal.

 

44. The District Tribunal Judge’s third reason, expressed at paragraph 19 of the Statement of Reasons, is in my view an accurate statement of the law. It is clear from the discussion above that the critical date is the date of notification by the Secretary of State (by whatever means are found to be effective) to the non-resident parent. In a sense, the structure of the statutory scheme does not expect the non-resident parent to bear what would otherwise be the cost of the anticipated statutory child support maintenance liability between the date of the parent with care’s application and the date of the notification to the non-resident parent. Instead, that loss effectively falls on the parent with care, in the absence of any satisfactory private arrangement with the non-resident parent in the meantime. That is precisely why the Agency operates an ex gratia compensation scheme to make payments where complainants may have suffered financial loss due to the Agency’s inefficiency. A significant delay in notifying a non-resident parent of a maintenance application may well be one such situation.

 

The fate of the 2003 maintenance application

 

45. The next issue to be resolved concerns the 2003 maintenance application. It is agreed that the mother made an application for child support maintenance in respect of her daughter AJ in January 2003 (LJ was not named in this application as at the time he was living with his paternal grandmother). The father and the Agency argue that that application was withdrawn by the mother in September 2003; the mother, on the other hand, says that she never withdrew that application and so it is still “live”.

 

46. The First-tier Tribunal dealt with the matter shortly. The District Tribunal Judge decided not to consider the events of 2003 in any detail and in particular refused to consider whether a maintenance calculation should have been made at the time. He gave three reasons for this conclusion: (1) the mother had not mentioned the 2003 issue in her letter of appeal and it had been raised by her representative in a letter only a week before the hearing; (2) it was far from clear that there was any decision on the 2003 application which was open to appeal; (3) any appeal would now be well out of time. The District Tribunal Judge accordingly decided that he had no jurisdiction to deal with the issue. He added that on the evidence before him he was satisfied in any event that any application or calculation in 2003 had been cancelled in the light of a private agreement between the parents.

 

47. Although the mother had not mentioned the events of 2003 in her original letter of appeal, it was not correct to suggest that those events had been raised for the first time only a week before the hearing. The mother’s representative sent several lengthy submissions to the tribunal in advance of the hearing, and had questioned the failure to make a maintenance calculation in 2003 in one such document dated two months before the hearing. So the point was not strictly late. However, the fact that the District Tribunal Judge overlooked this point does not amount to a material error of law, as his second reason was conclusive of the matter.

 

48. As to the second point, the First-tier Tribunal’s jurisdiction is limited by statute to hearing appeals against certain types of decisions (see section 20 of the Child Support Act 1991). It does not have a general power to hear all aspects of a case which may be in dispute between parties. There is no evidence at all of any decision on the 2003 maintenance application – indeed, that is in part precisely the mother’s complaint. In the absence of any decision, then it follows that neither parent had a right of appeal under section 20(1) of the 1991 Act. On that basis the question of whether any appeal now is out of time is irrelevant, as there was no underlying decision susceptible to appeal.

 

49. The mother’s representative argues that the Agency effectively decided to refuse or cancel the mother’s application late in 2003 and that that decision was never communicated to her at the time, so denying her a proper right of appeal. In legal terms, his submission is that here there was an Agency decision under section 11 of the Act not to make a maintenance calculation and that should have given rise to a right of appeal under section 20(1)(b). However, this submission misunderstands the legal framework and cannot stand in the face of the weight of the evidence.

 

50. It is not entirely clear whether the mother’s January 2003 maintenance application was made when she was on income support (and so a ‘benefit case’) or in receipt of tax credits (and so a ‘private case’). However, it seems clear that by later in 2003 she was in receipt of working families’ tax credit and so her case was by then accordingly a private application under section 4 of the 1991 Act. Regulation 3(6) of the 2000 Regulations provides that:

 

“a person who has made an effective application may amend or withdraw the application at any time before a maintenance calculation is made and such amendment or withdrawal need not be in writing unless, in any particular case, the Secretary of State requires it to be”.

 

51. It will be noted that a withdrawal may be made orally or in writing. If an application is withdrawn under regulation 3(6), the result is simply that there is no application in existence for the Secretary of State to determine. The Secretary of State’s obligation to make a maintenance calculation under section 11 of the 1991 Act only applies if there is an application to be determined. In the absence of any such obligation, it necessarily follows that there is no decision which gives rise to a right of appeal to the First-tier Tribunal.

 

52. The same point arose for consideration by Mr Commissioner Jacobs (as he then was) in CCS/2910/2001. That was an old scheme case, so the statutory framework was not exactly the same. However, Mr Commissioner Jacobs’s analysis is equally applicable in the present context of a new scheme case:

 

“16. I cannot interpret ‘refusal’ to cover the closure of a case following the withdrawal of an application. Refusal presupposes a consideration of the merits of an application. If the application no longer exists, there can no longer be a determination of its merits and, therefore, no refusal. My conclusion is that the closure of a case following a withdrawal is not susceptible to appeal to an appeal tribunal.”

53. The analysis above, of course, assumes that the mother did indeed withdraw her 2003 maintenance application. It will be recalled that the First-tier Tribunal was satisfied on the available evidence that any application in 2003 had been “cancelled” or withdrawn in the light of a private agreement between the parents. That was a decision that the District Tribunal Judge was entirely justified in reaching; indeed, it would have been positively perverse to reach any other conclusion. It is true that there is no copy of any Agency letter on file telling the parties that the case had been closed because the 2003 application had been withdrawn. However, the evidence that it was in fact withdrawn is compelling. Although he did not directly refer to them, the District Tribunal Judge presumably relied on the following three pieces of evidence.

 

54. First, there was an Agency screen print which included an entry for 11 September 2003 stating “T/call from PWC requesting case closure” followed by one for 1 October 2003 recording “Case closed. Initial never actioned as PWC wanted case closed before case was set up. Closure letters to both parties” (whether such letters were in fact ever sent or received is another matter).

 

55. Second, the father produced to the First-tier Tribunal a copy of the relevant pages from the grandmother’s diary (LJ, of course, was living with her at that time). On 12 September 2003, the day after the Agency recorded the mother as ringing to withdraw her claim, the grandmother wrote in her diary: “CSA rang for [father] – I was not amused! [Mother] rang [presumably the Agency] to cancel her claim.” The entry for 17 September 2003 read “Rang CSA [Amanda] ref [mother’s] claim. She did cancel it on Friday. Letter to [both parents] confirming.” I am satisfied as to the authenticity of these entries. Whether the grandmother was the father’s authorised representative (which the mother’s representative challenges) or not is simply not in point.

 

56. Third, there was the father’s evidence that the mother had withdrawn the application because they had set up a private arrangement. He had agreed to pay his own mother £200 a month, and the grandmother would in turn keep £100 for LJ’s upkeep and give the mother £100 a month for AJ’s maintenance. Again, how far that arrangement was actually adhered to over the course of time is not for present purposes material.

 

57. There is now a fourth piece of evidence which was not before the First-tier Tribunal. The Commission has belatedly produced a copy of the handwritten clerical “Record of decisions” for 2003. Part of the entry for 11 September 2003 records that “PWC later phoned and requested we close her case as she and the NRP have come to a private agreement. PWC IRO WFTC [PWC in receipt of tax credits]. Case to be closed from 11/9/03. Closure letters to both parties.” The entry is signed by a member of staff whose first name was Amanda. Clearly this new evidence is entirely consistent with that seen by the First-tier Tribunal.

 

58. The mother, however, maintains that she never withdrew her application in 2003. She states she has no recollection of having spoken about her case with a female member of staff. She remembers ringing the Agency late in 2003 to chase her case and being told by a male member of staff that the most effective way of progressing matters was to close down her existing case, which appeared to have been mislaid, and to make a fresh application. She denies that she agreed to a withdrawal.

 

59. Both parents have asked that the Agency produce recordings of those telephone conversations in 2003 in order to resolve the matter. I decided not to make any such directions for two reasons. First, the 2003 issue was not before the First-tier Tribunal and so the Upper Tribunal likewise had no jurisdiction in the matter. Secondly, it is in any event extremely improbable that if the conversation had been recorded by the Agency it would (a) have been retained more than six years later, let alone (b) be readily located and accessible now.

 

60. All the contemporaneous evidence firmly points to the mother’s 2003 maintenance application being withdrawn by her, as the parents had come to a private agreement. That contemporaneous evidence comes from the Agency and the paternal grandmother, both of whom are relatively independent in the dispute. It is not outweighed by the mother’s now understandably hazy recollection of what may or may not have been said over six years ago in one telephone conversation. The conclusion that the application was withdrawn is also supported by the fact that there undoubtedly was some form of private arrangement in place between 2003 and 2006, brokered through the paternal grandmother’s good offices, and that there is no evidence of any other Agency activity between the closure in 2003 and the fresh application in March 2006.

 

61. I stress that strictly the matter is not for determination by the Upper Tribunal, but if it were those would be my findings of fact on the fate of the 2003 application. For present purposes it is sufficient to find that the First-tier Tribunal reached the only decision which was realistically open to it on whether or not the 2003 matter remained a live issue. It was not.

 

The Upper Tribunal’s consideration of option 1 as a possible effective date

 

62. The decision of the First-tier Tribunal being set aside (see paragraph 35 above), the next question is whether the decision should be sent back for rehearing before the same or a different First-tier Tribunal or whether the Upper Tribunal should “re-make” the decision (see section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007). This case has dragged on for quite long enough. The parties need some degree of “closure”. No new material evidence is likely to come to light. It is therefore entirely appropriate that the Upper Tribunal should re-make the decision itself.

 

63. For the reasons set out above, I am entirely satisfied that the issue of the 2003 maintenance application was never a live issue in the present proceedings. I am also satisfied that the First-tier Tribunal was right to conclude, in the circumstances of this case, that the mother’s handing over to the father of the MEF, which she had obtained from the Agency, amounted to an effective notification by the Secretary of State to him of her application (within the meaning of regulations 1, 5 and 25 of the 2000 Regulations). It follows that, subject to the possibility of option 1 applying, the effective date was the date of notification to the father by that means and so 28 September 2007.

 

64. So what of the mother’s argument that the effective date was some date in the fortnight between the date of the maintenance application (31 March 2006) and at the very latest the date that LJ moved back to live with her (14 April 2006)? Alternatively, what of the Commission’s argument, in its final written submission, that there must have been an official notification by 9 August 2006 at the latest, as on that date there was plainly some telephone contact between the Agency and the father?

 

65. I have reviewed all the voluminous submissions and the documentary evidence on file. I also had the advantage of hearing from both parents in person at the oral hearing before the Upper Tribunal. I am satisfied that they were each in their own way striving to give an accurate account of events which now took place some four years ago. I also bear in mind that the mother was obviously not a party to any telephone contact(s) that the father had with the Agency during this period and so could not give direct evidence as to their content.

 

66. I also bear in mind that the father effectively made a number of admissions which were in a sense contrary to his own interests – e.g. as to the very fact that he had had some contact with the Agency in early 2006. It would have been much easier, had he been seeking to deceive the First-tier Tribunal or the Upper Tribunal, so as to minimise his liabilities, simply to deny that he had had any contact with the Agency in the spring of 2006, not least as the Agency has been unable to produce any contemporaneous evidence of that contact. In addition, his account has essentially been consistent throughout.

 

67. On the basis of the evidence as a whole I find the following facts. The mother claimed income support and applied for child support maintenance at Milton Keynes on 31 March 2006. Within a matter of days she told the father what she had done. She asked the father to continue making payments under their private arrangement. Shortly afterwards, also in April 2006, the father rang the Agency for advice, saying that he had been told by his former partner that she had made an application for child support and that he wanted to know where he stood. This was a contact initiated by the father for general guidance. He was not told by the Agency that they had actually received the mother’s application and/or that they were processing it.

 

68. As a result of the advice that the father received, or at least how he understood that advice, he then stopped making payments under the private agreement. In the course of this same telephone conversation in April 2006 the father also told the Agency that he was planning to move to France in October of the same year. He gave the Agency his then current UK address for contact purposes.

 

69. In my judgment there is simply no reliable evidence to support the view that this telephone contact in April 2006 amounted to a notification by the Secretary of State of the maintenance application made on 31 March 2006. It was a general enquiry for advice by the father, no less and no more.

 

70. I also find as a fact that the Agency sent the father no written notification about the mother’s application before he went to live in France (or indeed while he was living in France). The Agency has produced no evidence that it did so and the father, who is a credible witness, has denied receiving any such written notification.

 

71. The father also told me that after that initial enquiry he did not think that he had telephoned the Agency again before he left for France, or that they had telephoned him, although he did not sound completely sure on this point. At a very late stage in these proceedings, the Commission has produced what it describes as new evidence, in the form of a computer screen print, of contact between the father and the Agency on 9 August 2006, when he is said to have made a declaration that the mother was not the primary carer.

 

72. This new evidence is rather unsatisfactory. The computer screen print is presumably a record of a telephone call. It is unclear whether the father or the Agency initiated the conversation. The parent with care’s benefit status is described as “private”, which is puzzling as at that time she was in receipt of income support. There is no file reference or other identifying code on the screen print which ties up with the 31 March 2006 application. There is also no evidence at all that the father was formally notified of the 31 March 2006 application in the course of that conversation. Indeed, there is no evidence that by 9 August 2006 the Agency itself was even aware of that application, which had been made several months earlier at the JobCentre in Milton Keynes. Accordingly I cannot attach much weight to this evidence.

 

73. In making these findings, I acknowledge that under the new scheme an effective notification to the non-resident parent may be oral or in writing, as is clear from the express terms of regulation 5(1). However, it is important not to lose sight of the further requirement in regulation 5(2), namely that where a notice is given to the non-resident parent it “shall specify the effective date of the maintenance calculation if one is to be made, and the ability to make a default maintenance decision”. There is simply no evidence at all that those two crucial pieces of information were communicated to the father in the course of any telephone conversation (or conversations) with the Agency in 2006. Indeed, the documentary evidence is that by November 2007 the Agency’s records still had no effective date recorded for the March 2006 application (see paragraph 12 above). If that is right, how can the father have been notified of the effective date, as required by regulation 5(2), in the course of 2006?

 

74. In reaching this conclusion I also rely on the fact that the Commission’s new evidence also includes notes of telephone calls made by the mother on 16 October 2006 and 7 February 2007 “wanting progress on her case”. In both calls the mother reported the fact that the father was living in France. Both screen prints have been taken from a different “case context”, an old rules case involving the mother and a different former partner in relation to an entirely separate child support case. This strongly implies that there was no active case registered (in respect of the 31 March 206 application) against which the mother’s information about the father’s absence in France could be appropriately recorded. For want of anywhere else to file it, the staff member presumably filed it under a separate case involving the same parent with care but a different non-resident parent. This is rather confirmed by the note on the 7 February 2007 file that “there are no case notes in this office”. I also bear in mind that it is no secret that the administrative link between JobCentres and the Agency in processing child support maintenance applications has not always worked well.

 

75. My conclusion, therefore, is that there was no effective notification to the father by the Secretary of State of the mother’s 31 March 2006 maintenance application at any point in the course of 2006. The First-tier Tribunal should have considered the point. But on the evidence before it, and on the evidence which is available now about the circumstances at that time, the only conclusion that the First-tier Tribunal could have reached was that there was no such effective notification in 2006. I hold accordingly.

 

The habitual residence issue

 

76. For completeness, I should deal with the habitual residence issue. This would only have been relevant had the father been effectively notified of the maintenance application in the course of 2006. The question of the father’s habitual residence was not explored at the First-tier Tribunal but the Upper Tribunal has had the advantage both of seeing documentary evidence and hearing the father’s oral evidence on the circumstances surrounding his time in France. In so far as it may be necessary, I find the following facts.

 

77. By 2006 the father had been in a relationship with a French woman for two years. His French girlfriend had to return to France to go to University in the autumn of 2006. In about January 2006 they decided to go and live in France together. Their original plan had been to move in May, but this was postponed to October 2006 as they had to give notice on their tenancy, hand in and work out notice in their jobs and sort out bills and build up savings. They moved to France on 2 October 2006; at that stage the father was intending to live in France for the foreseeable future, partly as his relationship with the mother had broken down and he was not seeing his children, due to arguments about maintenance.

 

78. As events transpired, his relationship with his French girlfriend broke up after about a fortnight living in France. However, he stayed in France, working as a chef in bars in Grenoble and later in Nice, and trying to learn the language. He acquired a French social security number. He returned to the UK for a weekend early in 2007 but was unable to see the children and returned to France. In the summer of 2007 he was the victim of an assault and was hospitalised. He then decided it was not working out in France and decided to return to the UK at about a week’s notice. He arrived back in the UK in August 2007.

 

79. A person’s habitual residence depends on a number of factors, but is ultimately a question of fact. The terms “habitual residence” and “ordinary residence” are effectively used interchangeably. According to Lord Scarman in Shah v Barnet London Borough Council [1983] 2 AC 309 (at 343G-H) it means “a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration." Typically, therefore, habitual residence requires both a settled intention and actual residence for an appreciable period of time, which may be short or long, depending on the circumstances.

 

80. The mother’s representative pointed to his personal experience of having lived abroad for extended periods in his professional career but still being habitually resident in the UK. I agree that this is entirely possible. The critical point, however, is that the issue is fact-specific. In the present case all the circumstances point to the father having abandoned his habitual residence in the UK and taking up an equivalent residence in France within a very short period of time.

81. It is clear from the authorities that habitual residence can be lost in a single day (see Re J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562). Similarly, in Macrae v. Macrae [1949] P. 397, where the issue was whether the magistrates’ court had jurisdiction under the Summary Jurisdiction (Separation and Maintenance) Acts 1895 to 1925, Somerville, L.J. held (at p. 403):

“Ordinary residence can be changed in a day. A man is ordinarily resident in one place up till a particular day: he then cuts the connection he has with that place – in this case he left his wife, in another case he might have disposed of his house or anyhow left it and made arrangements to make his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for at any rate an indefinite period, then as from that date in my opinion he is ordinarily resident at the place to which he has gone.”

 

82. On the facts of the present case, had it been material, I would have concluded that the father had abandoned his habitual residence in the UK on 2 October 2006, the day that he left for France. This conclusion is reinforced by the fact that despite the fact that his relationship with his French girlfriend broke down very shortly afterwards, he remained living and working in France for a further 10 months before deciding to return to the UK. I agree with Mr Scoon’s submission that at the time the father went to France, he was intending to go permanently, and the fact that he changed his mind later did not alter that original intention.

 

83. As the father’s habitual residence in the UK ceased on 2 October 2006, then in principle any jurisdiction the Agency had to make a maintenance calculation would have ended at that point (Child Support Act 1991, section 44(1)). Given the findings on other issues, I need not resolve the potential difficulties that this might have caused in the present case had the Agency in fact both notified the father and made a calculation promptly. Suffice to say that I can see the force of Mr Scoon’s submission that a cessation of habitual residence would have meant the Agency’s jurisdiction would also have ended, and could only have been revised by a fresh maintenance application on the father’s return. However, I stress that I do not need to resolve that question. As it is, he resumed habitual residence in the UK in August 2007 and both at the date he received the MEF and at the date the Agency made its maintenance calculation he was habitually resident in the UK.

 

84. I recognise the point made by the mother that a non-resident parent may be able to avoid the Agency by simply deciding to leave the UK and go and live abroad. However, that is the effect of section 44 of the 1991 Act, which is subject to very narrow exceptions. In such cases, as the Commission has no jurisdiction, the courts may still have jurisdiction to make a child maintenance order. I also acknowledge that cross-border enforcement of such a civil order in practice under the Maintenance Orders (Reciprocal Enforcement) Act 1972 may not be easy. However, the Official Solicitor has a special unit devoted to the Reciprocal Enforcement of Maintenance Orders (see further http://www.officialsolicitor.gov.uk/os/remo.htm).

 

The arrears of child support maintenance

 

85. The First-tier Tribunal and Upper Tribunal do not have jurisdiction over the enforcement of maintenance calculations. Ultimately that is a matter for the courts. The father’s complaint that the Commission has failed to itemise any arrears accurately and has taken enforcement action in respect of arrears when there have been ongoing proceedings over the setting of the effective date are matters he will have to pursue with the Commission. At least this decision establishes that the effective date for the application made on 31 March 2006 was 28 September 2007.

 

Summary

 

86. For the benefit of the parties I summarise my various findings on the law and facts as follows:

 

(1) The First-tier Tribunal erred in law because it should have considered whether the Agency had effectively notified the father, in the course of 2006, about the 31 March 2006 maintenance application;

 

(2) For that reason and that reason alone the decision of the First-tier Tribunal must be set aside;

(3) The Upper Tribunal re-makes the decision on the appeal that was before the First-tier Tribunal and concludes that there was no effective notification by the Agency to the non-resident parent in the course of 2006; instead the date of notification and hence the effective date was 28 September 2007;

 

(4) The First-tier Tribunal was correct to hold as a matter of law that facilitation of delivery of the MEF to the non-resident parent by another person did not mean that the delivery was of no effect. The tribunal was also right to rule that “the intervention of parent with care or any other third party does not mean that the notification was not ‘by the Secretary of State’”;

 

(5) A withdrawal of a maintenance application may be made orally or in writing. If an application is withdrawn under regulation 3(6) of the 2000 Regulations, the result is simply that there is no application in existence for the Secretary of State to determine under section 11 of the 1991 Act. In the absence of any such obligation, it necessarily follows that there is no decision which gives rise to a right of appeal to the First-tier Tribunal;

 

(6) The 2003 maintenance application had been withdrawn by the parent with care and there was no decision in relation to that application which gave rise to any right of appeal to the tribunal. The First-tier Tribunal was accordingly correct to rule that it had no jurisdiction in relation to any dispute over the fate of the 2003 application.

 

(7) In so far as it is relevant, the father’s habitual residence in the UK ceased on 2 October 2006 but resumed again in August 2007.

 

Conclusion

 

87. I allow the appeal for the reason set out above at paragraph 35 but re-make the decision to the same practical effect, for the reasons set out more fully above. I acknowledge that this will be a bitter disappointment for the mother and her representative. However, for the reasons set out above the fate of the 2003 application was not a matter over which either the First-tier Tribunal or the Upper Tribunal has jurisdiction. Furthermore, the effective date for the father’s liability for child support under the maintenance calculation (eventually) made on 19 March 2008 was 28 September 2007. The father is not at fault for the apparent inefficiency of Jobcentre Plus and/or the Agency in failing to register and process the maintenance application undoubtedly made by the mother on 31 March 2006.

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 10 May 2010 Judge of the Upper Tribunal