CCS/2584/2008

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal (by the mother of the child in question) is brought by leave of the chairman of the tribunal below, granted on 2nd July 2008, and it succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Fox Court (London) tribunal made on 8th April 2008 under reference 160/07/05208.

2. I substitute my own decision. This is to the effect that:

(a)	As from 4th January 1999 the father is liable to pay child support maintenance but with a nil assessment until 23rd January 2003.
(b)	As from 24th January 2003 the father is liable to pay child support maintenance at the weekly rate of £94.21 until further decision.
(c)	The decision made by the Secretary of State on or about 16th October 2007 was made in error of law and is set aside.
 
Hearing

3. I held an oral hearing of this appeal on 20th October 2009. The appellant mother attended in person and was represented by Jessica Boyd of counsel, instructed by the Free Representation Unit. The Child Maintenance and Enforcement Commission (“CEMC”), which has taken over this matter from the Secretary of State, was represented by Leo Scoon from the Office of the Solicitor to the Department for Work and Pensions. The respondent father also attended in person and was represented by Bob Pape from Child Support Solutions. I am grateful to all of them for their attendance and assistance.

Background and Procedure

4. The appellant is the mother and the second respondent is the father of a son born on 4th April 1996 while they were married to each other. It is not necessary for me to go into the history of their relationship which, so far as is relevant, is retailed in the statement of reasons from the tribunal below. Suffice it to say that it was volatile and before they finally divorced in 2001 there were periods of separation and attempts at reconciliation. Throughout the history of this matter their son has lived with his mother, the appellant in this appeal. 

5. There came a time when the mother made a claim for income support, which at that time necessitated authorising the Secretary of State to seek child support maintenance on behalf of the mother in respect of the child. An assessment was carried out and it was decided on 15th August 1999 that as from 4th January 1999, although the father was in principle liable to pay child support maintenance, the actual amount of liability under the rules was nil (probably because he was a student at that time). I put it in this way because it is important to appreciate that the decision was not that there was no liability (as might have been the case, for example, if the child were an adult). There was a continuing extant decision that the conditions of liability were satisfied, but when the required calculations were completed, the father did not in fact have to pay anything. There is, before me, no challenge to the accuracy of this calculation.

6. There is some dispute over the nature of what was happening between the mother and father during 1999, but the tribunal below found that they were reconciled and sharing a household (with their son also living with them) from 15th September 1999. By November 1999 the reconciliation was over and they separated again. There were further attempts at reconciliation but they did not really come to anything and there were no further attempts after July 2002. I adopt these findings of fact. However it seems that during these events the Child Support Agency was not kept informed of what was happening (and from the point of view of the parties this would be understandable since the father had not actually been ordered to make any payment).
 
7. In 2002 and 2003, possibly because the mother made a further claim for a means tested benefit, the Secretary of State gave further consideration to the issue of child support and on 9th July 2003 decided that as from 24th January 2003 the father was liable to pay child support maintenance of £94.21 weekly. By this time the father was no longer a student but was working. The legal nature and enforceability of this decision is at issue before me, but the calculation itself is not disputed.

8. This has been described in different ways but in effect on 14th February 2007 the father applied to the Secretary of State for the assessment to be cancelled on the basis of the brief reconciliation in 1999. On 16th October 2007 the Secretary of State agreed to this and cancelled the assessment as from 15th July 1999 (including the 2003 assessment), which the Secretary of State took as the date of reconciliation. I note at this point that on the face of it this means that the Secretary of State must have taken the view that an assessment of “nil” was still an ongoing assessment up to the point when it was cancelled.

9. On 7th November 2007 the mother appealed to the tribunal against the decision of the Secretary of State to cancel the assessment and the tribunal heard the matter on 8th April 2008. The tribunal allowed the appeal to the very limited extent of cancelling the assessment as from 15th September 1999 (rather than from 15th July 1999). The tribunal was obviously reluctant to uphold the rest of the decision but felt bound to do so because of various decisions on the law by Child Support Commissioners. Accordingly the tribunal gave the mother leave to appeal against its decision. On 3rd November 2008 the matter was transferred to the Upper Tribunal and on 30th July 2009 I directed that there be an oral hearing. Both respondents support the decision of the tribunal.

The Relevant Provisions of the Child Support Act 1991 

10. The relevant provisions of the Child Support Act 1991 as operative in 1999 read as follows:
	
	Section 1:

(1) For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.

(2) For the purposes of this Act an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.

(3) Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments.

Section 3:

(1)	A child is a “qualifying child” if – 
(a)	one of his parents is, in relation to him, an absent parent; or
(b)	both of his parents are, in relation to him, absent parents.

(2)	The parent of any child is an “absent parent”, in relation to him, if - 	
(a)	that parent is not living in the same household with the child; and 
(b)	the child has his home with a person who is, in relation to him, a person with care.

(3)	A person is a “person with care”, in relation to any child, if he is a person – 
	(a) with whom the child has his home [and] 
(b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person) …

Schedule 1 paragraph 16 (Headed “Termination of Assessment”):

(1)	A maintenance assessment shall cease to have effect – 

(a)	on the death of the absent parent, or of the person with care, with respect to whom it was made;

(b)	on there no longer being any qualifying child with respect to whom it would have effect;

(c)	on the absent parent with respect to whom it was made ceasing to be a parent of – 

(i)	the qualifying child with respect to whom it was made …

(d)	where the absent parent and the person with care with respect to whom it was made have been living together for a continuous period of six months;

(e)	where a new maintenance assessment is made with respect to any qualifying child with respect to whom the assessment in question was in force immediately before the making of the new assessment.

…

(5) Where – 
(a) at any time a maintenance assessment is in force but the Secretary of State would no longer have jurisdiction to make it if it were to be applied for at that time; and

(b) the assessment has not been cancelled or has not ceased to have effect, under or by virtues of any provision made by or under this Act,

It shall be taken to have continuing effect unless cancelled by the Secretary of State in accordance with such prescribed provision … as the Secretary of State considers it appropriate to make.

10. I observe that the legislation distinguishes between the concepts of (i) ceasing to have effect under the heading “termination” and (ii) cancellation.

The Problem With Paragraph 16(1) of Schedule 1

11. There are difficulties with the meaning and application of paragraph 16 of Schedule 1. Paragraph 16(1)(d) seems to deals with the situation where the parents have been separated (which they must have been for there to have been an absent parent) and are then reconciled (which they must have been in order to be living together) and the reconciliation lasts at least six months. It is at that point that the maintenance assessment “shall cease to have effect”. This appears to mean that it is not at any earlier point that the maintenance assessment ceases to have effect.

12. However, both respondents support the analysis adopted by the tribunal. This is that a child cannot be a qualifying child unless at least one of his or her parents is an absent parent (section 3(1) of the Act). A parent cannot be an absent parent if he is living in the same household as the child (section 3(2)(a)). Therefore, as soon as the reconciliation takes place and they start living in the same household, there is no longer a qualifying child and therefore (paragraph 16(1)(b)) the maintenance assessment ceases to have effect at that point.

13. The problem with the latter analysis is that it makes paragraph 16(1)(d) redundant and possibly meaningless; there would be no circumstances in which it could apply.

Dealing With the Problem: Decisions of the Child Support Commissioners

14. The cases to which I refer below were all decided by Child Support Commissioners who have since become Judges of the Upper Tribunal. CCS/4124/1997 was decided by Mr Commissioner Rowland on 24th August 1998. It concerned a reconciliation that lasted just over 6 months. Although he was “reluctant to determine this question authoritatively” in the circumstances of the case before him, his comments are very relevant. 

15. Mr Commissioner Rowland considered two approaches to the issue, both of which were suggested as possible by Mr Scoon, who also appeared in that case (on behalf of the child support officer). One was essentially the position that the tribunal and the respondents have adopted in the present case before me. As the Commissioner said “It is then, as Mr Scoon submitted, impossible to conceive of any case where paragraph 16(1)(d) might apply” (paragraph 13).

16. The other approach is that in paragraph 16(1)(b) the emphasis should be on the word “child”, so that it only applied when, for example, a child died or became too old to be a child. I would have unhesitatingly followed this approach had the Commissioners to whom I am referring not taken a different approach. To me the natural meaning of 16(1)(b) is that there is no longer a child who is qualifying. This would enable 16(1)(d) to be given a meaning. The Commissioner stated:

“15. There is much to be said for that submission. It seems to me that paragraph 16(1)(d) was deliberately drafted so that a maintenance assessment would continue during a period of reconciliation unless both parents requested that it be cancelled … One reason why that would be desirable is that it would mean that, after an attempt at reconciliation had broken down, the absent parent would again become liable to pay child support maintenance immediately. If a new maintenance assessment were required, the date from which it could be effective would be determined by reference to the date when a new maintenance enquiry form was issued and a short period of reconciliation might result in an absent parent escaping liability for some months after the parents had separated again.

16. On the other hand, the continuation in force of a child support maintenance assessment while parents are living together seems to me to present major difficulties during the period of reconciliation itself … It would hardly be practical to require one person to make payments to another living in the same household.”

17. The Commissioner also referred to the probability that the mere fact of the change of circumstances of the parents now sharing a household would mean that there had to be a new assessment. He continued:

“18. It might well be desirable that an absent parent beginning to live with the person with care should lead to a child support maintenance assessment being suspended rather then reviewed and that the suspension should last until they cease to live together or the assessment was terminated … However, there is no such provision and in its absence it seems to me that paragraph 16(1)(d) … [is] unworkable”.

18. In R(CS) 8/99 (CCS/2318/1997), decided on 23rd November 1998, Mr Commissioner Mesher was not “reluctant to determine this question authoritatively”. That case concerned a reconciliation that had lasted less than six months. Pointing out that it is an essential part of the definition of “qualifying child” for the purposes of the child support legislation that at least one of the child’s parents should be an absent parent, he rejected attempts to draw subtle distinctions between the concepts of “living together” (the phrase used in paragraph 16(1)(d)) and “living in the same household” and held that as soon as an absent parent of a child ceases to be an absent parent as defined in section 3(2) of the Act, the child ceases to be a “qualifying child” as defined in section 3(1), and paragraph 16(1)(b) operates to terminate the maintenance assessment then in effect, regardless of the provision in paragraph 16(1)(d) (paragraph 19 of his decision). 

19. In R(CS) 8/99 the original tribunal had dealt with the interpretation problem by deciding that the phrase “qualifying child” as used in paragraph 16(1)(b) did not have the same meaning as in section 3(1). The Commissioner accepted that this view “is justifiable and legitimate on consideration of paragraph 16 taken in isolation. It enables every part of paragraph 16 to have a practical application. A departure from the plain meaning of paragraph 16 could be justified” (paragraph 17 of his decision). However, in the wider context of the Act as a whole, such a departure could not be justified. The reasons for this were the considerations pointed out by the Commissioner in CCS/4124/1997, which I have quoted above. However, it seems to me that there is a stage missing in this analysis. In the earlier decision by Mr Commissioner Rowland the reasons quoted went to the operation of the maintenance assessment during the period of the reconciliation. They did not go to the permanent cessation of its operation. 

20. Paragraph 16(1)(d) was repealed for new cases with effect from March 2003, presumably because of the interpretation problems involved. However, I do not see how the fact of repeal for subsequent cases could affect the meaning that has to be given to paragraph 16(1)(b) or the way in which it operates for cases to which it still applies.

21. On 24th February 2006 Deputy Commissioner Wikeley decided CCS/1740/2005. This involved a reconciliation period of just over 7 months. The Deputy Commissioner followed the decision in R(CS) 8/99 but made some additional points. His first was that on the wording of paragraph 16(1) the maintenance assessment automatically ceases to have effect even without any decision to that effect being made by the Secretary of State (or whoever is the statutory decision maker). Lawyers would say that it ceases to have effect “by operation of law”. I deal with this below. The other point was his assertion that the maintenance assessment terminated from the day of reconciliation, it is not suspended, it does not revive when the reconciliation comes to an end, there is no existing decision that can be superseded, and the person with care has to make a new application if she wants child support maintenance. If this is correct, the effect on the case before me would be that the maintenance assessment and associated orders automatically came to an end with effect from 15th September 1999 and no further action could be validly taken in respect of that particular application and assessment. In CCS/4124/1997 (see above) the Commissioner had pointed out the undesirability of this because of the consequent delay in arranging an effective maintenance assessment and order.

The Parties’ Cases

22. Both respondents really rely on the position being governed by the decision in R(CS) 8/99 and CCS/1740/2005. The case for the mother seeks to put a different interpretation on things.

23. On behalf of the mother, Ms Boyd argues as follows:

(a) Paragraph 16(1)(b) does not apply to cases of brief reconciliation.

(b) Even if it does apply, supersession or revision by the Secretary of State is required. Here, it was supersession for change of circumstances and the appropriate decision to make was supersession only in relation to the period of reconciliation (or alternatively until the subsequent supersession in 2003).

(c) Even if the maintenance assessment ceased to have effect in 1999 by operation of law, the Secretary of State still had jurisdiction to make the 2003 maintenance assessment by way of supersession of the 1999 maintenance assessment. 

(d) Even if there was no jurisdiction to make the 2003 maintenance assessment, in 2007 the Secretary of State was bound by it unless entitled to cancel, revise or supersede. 

I set out this summary in deference to Ms Boyd’s work on the case, but I do not need to go further than her proposition (a). 

Upper Tribunal Judge Rowland’s Ruling

24. In his ruling of 25th August 2009 refusing to order that this matter be determined by a panel of three judges, Upper Tribunal Judge Rowland returned to the question of whether termination under paragraph 16 of schedule 1 to the 1991 Act requires supersession or revision. It will be recalled that in CCS/1740/2005 the Deputy Commissioner held that on the wording of paragraph 16(1) the maintenance assessment automatically ceases to have effect even without any decision to that effect being made by the Secretary of State. Judge Rowland referred to the decision in R(H) 4/08. In that case the Commissioner decided that a provision that in certain circumstances a person shall “cease to be entitled” to council tax benefit did not end entitlement by operation of law but required a supersession of a relevant decision by the local authority (the statutory decision maker in cases of such benefit). 

25. In my view there is a very good reason why a decision by the statutory decision maker, should be required and that relates to the removal of any doubt as to whether there is a right of appeal to the First-tier Tribunal in such cases. Typically the right of appeal is expressed to be against a “decision”, and to end any kind of entitlement by operation of law might be thought not to involve a decision and therefore not to carry rights of appeal. On the face of it this would be incompatible with the guarantees of article 6 of the European Convention on Human Rights, given effect in domestic law by the Human Rights Act 1998.

26. Regulation 52 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 provided that questions as to whether a maintenance assessment had ceased to have effect under the provisions of paragraph 16(1) of Schedule 1 to the 1991 Act would be referred to the child support officer (who was then the statutory decision maker in child support cases) to make a decision as to termination. That provision was repealed with effect from 1st June 1999 when the revision and supersession procedures were introduced, but it cannot be the case that it was intended by the introduction of those procedures to make paragraph 16(1) take effect by operation of law when it had not previously done so. It is much more likely that the intention was to have the new procedures apply.

27. There are also other provisions in the various regulations, to which Ms Boyd has referred in her detailed written submissions, which appear to assume that the decision continues in existence, until a further decision by the statutory decision maker, after the particular change would cause it to “cease to have effect”.

28. Thus , contrary to the submissions of the second respondent, in my opinion the decision of 15th August 1999 continued in existence until a decision maker did something about it. (The position of the first respondent on this point has been less clear.) 

The 2003 Decision

29. The 2003 assessment was treated by the Secretary of State at the time as a supersession of the 1999 assessment. The application to which it was a response was not treated as a fresh application for a maintenance assessment and no MEF was issued to the father. The position of both respondents now is that, as stated in the CMEC submission of 15th May 2009, “From when the original nil assessment ceases to have effect, then the supersession that stems from it ceases to have effect also”. However, on my analysis, the 1999 assessment was still in existence and could therefore be superseded in 2003. The CMEC submission also discussed the possibility of now treating the application that led to the 2003 assessment as having in reality been a fresh application for a maintenance assessment, but I do not need to pursue that.

The 2007 Decision

30. The decision made by the Secretary of State on 16th October 2007 to cancel the 1999 assessment must have been made by way of supersession. If the basis of the supersession was a change in circumstances (the reconciliation), and if the change in circumstances was temporary, then it follows that the 1999 assessment could only be superseded in respect of the duration of the change in circumstances. 

Conclusions

31. My starting point is the assumption that paragraph 16(1)(d) of Schedule 1 to the 1991 Act does in fact have a meaning and an application. I also adopt the view expressed by the Commissioner in paragraph 15 of CCS/4124/1997 (see paragraph 16. above). The basis of the Commissioner’s reservations was the concern expressed in his paragraph 16 at the difficulties if the assessment continues in existence while the matters are living together. As I have pointed out above, the Commissioner in R(CS) 8/99 read into this concern a significance that went beyond the problems of the operation of the assessment during the reconciliation period, and went to the permanent cessation of the assessment. 

32. It seems to me that the correct analysis is that paragraph 16(1)(b) is indeed about there no longer being a qualifying “child”, rather that being about the particular child no longer “qualifying”. This is one of the possible approaches suggested by Mr Scoon in CCS/4124/1997 and in my opinion it is the correct one. In the present case the child was still of the appropriate age and still with the parties during the period of reconciliation and therefore paragraph 16(1)(b) does not come into play.

33. However, it was the case that during the period of reconciliation the father was no longer an absent parent as defined in section 3(2) of the Act. Therefore, during the period of reconciliation there could be no duty on him under section 1(3) to make periodical payments pursuant to the maintenance assessment. If the reconciliation had lasted for at least six months, paragraph 16(1)(d) would have come into play. As the reconciliation does not last this long, and the child stayed with the mother, the father resumed the status of being an absent parent and the duty to make payments resumed (even though on the facts of the present case the amount of liability was nil until the 2003 decision). This approach meets the concerns expressed by the Commissioner in CCS/4124/1997.

34. It follows that I disagree with the conclusions of the Commissioner in R(CS)8/99 and the approach of the Deputy Commissioner in CCS/1740/2005.

35. For the above reasons this appeal by the mother succeeds.

H. Levenson
Judge of the Upper Tribunal 

11th December 2009