Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

I give the Appellant (“the father”) permission to appeal against the decision of the First-tier Tribunal (“FTT”) in Shrewsbury on 21 May 2011 under FTT reference SC002/11/01343.

 

However, the DECISION of the Upper Tribunal is to dismiss the appeal by the father.

 

 

 

 

 

REASONS FOR DECISION

 

The issue in this case

1. This case concerns the validity of a maintenance calculation made by the Child Maintenance and Enforcement Commission (CMEC). The calculation in question was made within one year of a court order settling financial provision (including responsibility for private school fees) as between the parents.

 

2. In legal terms, therefore, the case concerns the inter-relationship between sections 4(10)(aa) and 8(7) of the Child Support Act 1991 and section 18(6) of the Child Support Act 1995 and the relevance, if any, of the Court of Appeal’s decision in Secretary of State for Social Security v Foster (also reported as R(CS) 1/01).

 

The parties in this case

3. The Appellant in these proceedings is the non-resident parent (“the father”). He was the appellant before both the First-tier Tribunal (FTT) and the Upper Tribunal. The First Respondent is the Secretary of State for Work and Pensions. The Second Respondent is the parent with care (“the mother”). The parents have two boys, born in 1993 and 1995, who were at the material time both boarders at well-known independent schools.

 

The First-tier Tribunal’s decision

4. On 21 May 2012 the FTT heard the father’s appeals against two decisions of what was then CMEC (or, in this decision, simply the “Agency”). Both parents attended that FTT hearing but neither was represented. The FTT dismissed both appeals, issuing a single combined statement of reasons.

 

5. The first appeal heard by the FTT was against the Agency’s decision of 17 May 2011, revising an earlier calculation dated 5 January 2011. The revised maintenance calculation was that the father was liable to pay child support maintenance of £211 p.w. as from 6 December 2010 (and then dropping slightly to £206 a week as from 14 February 2011). This aspect of the case carries Upper Tribunal reference CCS/4115/2012.

 

6. The second appeal was against the Agency’s subsequent decision of 8 July 2011. This was a refusal to revise the 17 May 2011 decision and in particular a refusal to make a variation, on the father’s application, in respect of the payment of school fees. That second aspect of the case carries Upper Tribunal reference CCS/4114/2012. I have separately refused permission to appeal to the Upper Tribunal on that aspect of the case.

 

The proceedings before the Upper Tribunal

7. This case started as a joint application for permission to appeal. At the father’s request, I held an oral hearing at Birmingham on 15 May 2013. The father attended, represented by Mr Bob Pape of Child Support Solutions. Mr Stephen Cooper attended for the Secretary of State. The mother did not attend but I had previously indicated in case management directions that there was no need for her to do so at this stage. As I indicated at the close of the oral hearing, I am grateful to both Mr Pape and to Mr Cooper for their clear, careful and considered submissions.

 

8. The standard test for deciding whether to give permission to appeal is to ask whether the appellant’s grounds of appeal are arguable. In other words, is there a realistic, rather than an unrealistic or fanciful, prospect of the appeal succeeding (see Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538)? In deciding whether to give permission to appeal, I can also have regard to whether the issue in question needs to be considered at a higher appellate level than the FTT. That is the prime reason why I am giving permission in CCS/4115/2012 (but not in CCS/4114/2012).

9. I indicated in previous case management directions that the Upper Tribunal has the power, with the parties’ consent, to have a “rolled up” hearing, dealing with both the application and appeal (see Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rule 22(2)(c)). Mr Pape and Mr Cooper agreed to that procedure at the oral hearing. The mother had also helpfully indicated her assent in advance in writing to that course of action.

 

10. Having decided that the point in CCS/4115/2012 was at least arguable and merited consideration by the Upper Tribunal, I therefore proceed to determine the appeal proper.

 

An outline of the material facts

11. On 5 March 2010 Worcester County Court issued a Consent Order following an ancillary relief hearing before a District Judge (at which both parents were represented by counsel). One of the recitals to the Consent Order noted that it was agreed that the father would discharge all fees payable to both schools until the boys completed their secondary education “notwithstanding that he has no paid employment” (and hence the fees would be met from capital). Clause 5 of the Consent Order accordingly made specific provision for the father to pay “periodical payments of an amount equivalent to the school fees including extras at the school each child shall from time to time attend”.

 

12. There was no other provision in the Consent Order for any other form of child maintenance. The papers include a full transcript of the hearing before the District Judge. Having noted the provision for school fees, the District Judge commented:

 

“There’s no order for any child support... and there’s no recital or undertaking with regard to that. So I just want to make sure that the basis of any child support is agreed. I assume it’s on the basis that, if and when [the father] gets proper remunerative employment, it’ll then be a matter of either agreement if CSA, if appropriate.”

 

Both counsel agreed that that was the default position.

 

13. Just over six months later, in November 2010, the father began drawing an occupational pension. The mother immediately made an application to the Agency for child support. The Agency then asked the father for financial information. The father’s response, by letter dated 10 November 2010, was to point out that a court order was in place and his understanding, as advised by his then solicitors, was that no application to the Agency for child support could be made before 5 March 2011, the first anniversary of the Consent Order.

 

14. On 5 January 2011 the Agency made a maintenance calculation to the effect that the father was liable to pay £5 a week in child support as from the effective date of 6 December 2010. Both parents challenged the Agency’s decision, but obviously for different reasons.

 

15. On 17 May 2011 an Agency decision maker revised the earlier decision of 5 January 2011, making the (much more substantial) revised maintenance calculation as set out in paragraph 5 above. The father appealed, arguing that the maintenance calculation of 5 January 2011 was a nullity, as it had been made within one year of the court’s Consent Order.

 

16. On 21 May 2012 the FTT dismissed the father’s appeal. The FTT’s decision notice noted that the sole issue was whether the Agency had jurisdiction to make the maintenance calculation. Having referred to sections 4(10) and 8(7) of the Child Support Act 1991, and section 18(6) of the Child Support Act 1995, the FTT ruled that the Consent Order did not oust the Agency’s jurisdiction before 5 March 2011. That ruling was then explained in the statement of reasons in rather more detail.

 

The relevant legislation

17. Section 4(10)(aa) of the Child Support Act 1991 (as amended by section 2 of the Child Support, Pensions and Social Security Act 2000) provides that:

 

(10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if—

...

(aa) a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made”.

 

The relevant prescribed date for this purpose is 3 March 2003.

 

18. Section 8(7) of the Child Support Act 1991 provides that:

 

“(7) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a) the child is, will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (whether or not while in gainful employment); and

(b) the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training.”

 

19. Section 18 of the Child Support Act 1995 is headed “Deferral of right to apply for maintenance assessment”. Sub-section (6) provides as follows:

 

“(6) Neither section 4(10) nor section 7(10) of the 1991 Act shall apply in relation to a maintenance order made in the circumstances mentioned in subsection (7) or (8) of section 8 of the 1991 Act.”

 

The parties’ submissions

20. Mr Pape’s primary submission, on the father’s behalf, was that the Agency had no jurisdiction to make a maintenance calculation. This was, he argued, because there was a relevant maintenance order in place at the time that the mother made her application, which was accordingly caught by the “one year rule” (section 4(10)(aa) of the Child Support Act 1991). The Court of Appeal’s decision in Secretary of State for Social Security v Foster (R(CS) 1/01) held that a court order for school fees was a maintenance order within section 4(10). Mr Pape accepted that the legislative framework had since been amended by the enactment of section 18(6) of the Child Support Act 1995. However, section 18(6) simply provided that section 4(10) of the 1991 Act did not “apply in relation to a maintenance order made in the circumstances mentioned” in section 8(7) of that same Act.

 

21. One therefore had to assess whether the Consent Order in this case fell within the terms of section 8(7). Mr Pape argued it did not. This was a case where the provision for the payment of school fees was in relation to the two boarding schools attended by the boys in question. It followed that it was not “solely” (see section 8(7)(b)) concerned with educational provision, but rather included an element for maintenance (or, as Mr Pape put it, for “food, shelter and warmth” and not solely for “instruction or training”). It followed that the normal one year rule in section 4(10)(aa) applied, and both the mother’s application and the Agency’s maintenance calculation were premature.

 

22. Mr Cooper, for the Secretary of State, noted that the Court of Appeal in Foster was concerned not just with an “old scheme” case (i.e. one that pre-dated the one year rule, introduced in March 2003), but a case which, on its facts, went back to the period even before the Child Support Act 1995 had been enacted. He acknowledged that Foster had identified a missing link in the statutory scheme, in terms of the inter-relationship between the provision ousting the courts’ jurisdiction (section 4(10)) and the court’s residual powers to make special orders (e.g. under section 8(7)). He also accepted that he could not rely on Foster as judicial endorsement of the Secretary of State’s argument that section 18(6) had “rectified the anomaly”. However, Foster was not binding on the Upper Tribunal as regards the present law under the new scheme.

 

23. Mr Cooper submitted that the new legislative framework was clear. There was an exclusion under the new child support scheme, which debarred parties to a court maintenance order from applying to the Agency in the first 12 months of the life of such an order (see section 4(10)(aa)). However, there was also an exception to that exclusion, embodied in section 18(6) of the 1995 Act – that one year rule did not apply to the special cases covered by section 8(7) (or section 8(8)) of the 1991 Act. In Mr Cooper’s submission, Mr Pape was reading section 8(7) too narrowly. Section 8(7), although commonly referred to as covering school fees orders, was not limited to tuition fees alone. Section 8(7) was expressed more broadly, in terms of “periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training” (emphasis added). It followed that the Consent Order in the present case fell within section 8(7), and so the exception in section 18(6) applied to the exclusionary one year rule in section 4(10)(aa). On that basis the mother’s application was not premature and the Agency had jurisdiction.

 

The Upper Tribunal’s analysis

24. Ingenious although they are, I am not persuaded by Mr Pape’s submissions. Ultimately, his arguments stand or fall on the significance of the word “solely” in section 8(7)(b) of the 1991 Act. At first blush, his submissions appear arguable (which is why, of course, I have given permission to appeal) – in sum, that a school fees order is, in principle, a type of maintenance order (see Foster) and that a court order for the payment of boarding school fees is not “solely” concerned with educational provision. However, I reject Mr Pape’s analysis for two sets of reasons – one set concerned with the narrower aspect of statutory interpretation, the other set concerned with the underlying policy of the law.

 

25. The narrow statutory interpretation point is this. It is axiomatic that the meaning of a statutory provision has to be understood in the light of the wording of the relevant legislative measure as a whole. Section 8(7)(b) enables courts to make maintenance orders where “the order is made solely for the purposes of requiring the person ... to meet some or all of the expenses incurred in connection with the provision of the instruction or training.” Mr Pape’s focus on the single word “solely” is unduly restricted. The key phrase is “expenses incurred in connection with the provision of the instruction or training”. Within that phrase, the expression “in connection with” indicates a degree of latitude, and so the costs concerned need not be tied rigidly to the delivery of instruction. As a matter of the plain meaning of the language used, the boarding element of fees at a boarding school constitutes “expenses incurred in connection with the provision of the instruction or training”. The instruction takes place in a residential setting, and (for a boarder at least) the provision of that education cannot take place without incurring the extra expenses relating to accommodation, food, etc.

 

26. The legislation must also be interpreted in such a way as to avoid absurdity. In this context it is important to consider the legislative structure of the child support scheme as a whole. The starting point is the presumption that the Agency has exclusive jurisdiction in matters relating to child support maintenance, and that the courts cannot exercise their powers to make such orders (see section 8(3) of the 1991 Act). There are, of course, exceptions to that rule, as with school fees orders under section 8(7). However, following the logic of Mr Pape’s primary submission leads inevitably to the conclusion that section 8(7) applies only to court orders in relation to day-pupils at independent fee-paying schools and not to boarders. Boarders, says Mr Pape, fail the “solely” test in section 8(7)(b). However, if they fail the test in section 8(7)(b), I conclude that they must fail that test for all purposes, and not simply in cases when section 18(6) of the 1995 Act arises. On that basis, all those family court orders made since 1993 for the payment of school fees for boarders were made without jurisdiction, while those for day pupils were properly made. Whilst it may sometimes be difficult to divine the intent of those responsible for drafting the child support legislation, this sort of absurdity can hardly have been intended.

 

27. It is also important to have regard to the overall policy behind the child support legislation. One of the main purposes of the Child Support Act 1991 is to ensure that, where they can afford to do so, non-resident parents provide maintenance for their children. Children have to be provided for all year round, even if for part of the year they may be at boarding school. True, the child will be accommodated at boarding school and will have most meals there during term-time – but the fact remains that the parent with care will have certain fixed child-related costs which do not disappear simply because the child is away at boarding school. Mr Pape’s interpretation of the relevant legislation would mean that the mother in the present case would receive no periodical financial support from the father in respect of the children for any part of the year, whether the children were staying with her at home or away at boarding school. That simply cannot be right.

 

28. Again, the structure of the child support scheme as a whole must be taken into account. The original “old scheme”, in place for cases which started before 3 March 2003, made no special provision for cases where the non-resident parent bore some or all of the cost of private school fees. That was changed under the “new scheme” in place since that date. A non-resident parent may now apply for a variation under regulation 13 of the Child Support (Variations) Regulations 2000 (SI 2011/156). If granted, such an application enables the “maintenance” element of school fees to be offset against the non-resident parent’s net weekly income. This possibility provides an answer to the previous criticism that the scheme was unfair in failing to recognise such a contribution to the child’s essential day-to-day living costs. The father made such an application in the present case, but this was refused by the FTT. In summary, the FTT recognised that for the most part the payments of school fees were met out of capital. The FTT explained fully why it was just and equitable not to make any such variation, which is why permission to appeal to the Upper Tribunal was refused in that matter.

 

29. For these reasons I agree with Mr Cooper that the FTT did not err in law in its decision. It did not in terms refer to the Court of Appeal’s decision in Foster, but did not need to. It referred to the relevant provisions in the primary legislation and applied them correctly. Its decision discloses no error of law.

 

30. This leaves one matter of unfinished business. Mr O’Kane, in his written submission on behalf of the Secretary of State, argued that if I was against him on the jurisdictional point, then it was open to the Agency to keep the mother’s application in abeyance until after the period of 12 months had expired. In making this submission, he relied on the decision of Judge Mesher in YW v CMEC (CSM) [2011] UKUT 176 (AAC). Mr Pape disagreed; in his submission the Secretary of State faced an insuperable problem, as the mother’s application had not only been made by her but had been determined by the Secretary of State within the one year period. There was, therefore, nothing left to be kept “in abeyance”. Mr Cooper recognised that this was a strong point, to which he did not have a direct and immediate answer at the oral hearing. If the point was to become germane, he asked for the opportunity to make further written submissions. However, the point is theoretical – the “abeyance argument” need not be addressed given my finding on the jurisdictional point. It can, if necessary, be resolved on another day in a case where the point actually arises for decision. It does not do so here.

 

Conclusion

31. For the reasons explained above, I give permission to appeal to the Upper Tribunal in CCS/4115/2012 but in the result dismiss the father’s appeal. The decision of the First-tier Tribunal stands. 

 

 

 

Signed on the original Nicholas Wikeley

on 20 May 2013 Judge of the Upper Tribunal