THE CHILD SUPPORT COMMISSIONERS

Commissioner’s Case Nos:  CCS/2731 and 3753/1997

CHILD SUPPORT ACTS 1991 AND 1995

APPEALS FROM DECISIONS OF A CHILD SUPPORT APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISIONS OF THE CHILD SUPPORT COMMISSIONER

MR COMMISSIONER JACOBS

			

Decisions:

1.	My decisions are as follows.

1.1	In so far as the Leeds Child Support Appeal Tribunal held on 25th October 1996 was dealing with the appeal against the decision made on 16th July 1994 (later called “the second decision”) and conducting the rehearing directed by the Commissioner in CCS/6/1995, its decision was wrong in law: see paragraphs 19 and 20.

1.2	Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.

1.3	My decision is given under section 24(2) and (3)(a) of the Child Support Act 1991. It is:

	The tribunal had no jurisdiction, as the appeal to the Commissioner had lapsed and his decision was without force or effect.

1.4	In so far as the Leeds Child Support Appeal Tribunal held on 25th October 1996 was dealing with the appeal against the decision made on 14th June 1995 (later called “the sixth decision”), its decision was not wrong in law. 

The parties

2.	In the terminology of the child support legislation, the appellant father is the person with care and the second respondent mother is the absent parent. I shall refer to them in those terms. The qualifying children are Simon, Timothy and Martyn.

The appeals to the Commissioner 

3.	These decisions deal with two appeals to the Commissioner against the decisions on two appeals to a tribunal. Leave to appeal in each case was given by a Commissioner. The child support officer, in the submission to the Commissioner, did not support either appeal.

4.	In view of the complex questions of jurisdiction arising on the appeals and in order to avoid if possible a further hearing before a tribunal, I directed an oral hearing, which was held on 15th April 1999. The person with care attended and presented arguments in support of the appeals. The absent parent attended with her partner. The child support officer was represented by Ms Thomas of the Office of the Solicitor of the Departments of Health and Social Security. Ms Thomas argued that one or either of the decisions might be wrong in law.

History of the cases

5.	These are two more cases that deserve to be added to the indictment against the adjudication procedures for child support. I can only sympathise with the absent parent who between October 1993 and February 1997 was given eight different assessments, all dating from the same effective date and all fixing her liability at different amounts varying from £2.20 to £33.17. The sequence of decisions is important. Shed of all unnecessary complexities, the sequence of relevant events was as follows. The amount of the assessments is not relevant.

The first decision was a series of child support maintenance assessments dating from the effective date of 11th June 1993.

The second decision was a refusal to review the first decision under section 18 of the Child Support Act 1991. An appeal was made to a tribunal against this decision (the “first appeal”).

The third decision was the decision of the tribunal allowing the appeal and giving directions. There was an appeal to a Commissioner against this decision.

The fourth decision was a series of assessments made by the child support officer to implement the third decision. Those assessments were made under section 18 of the Child Support Act 1991. They dated from the effective date of 11th June 1993.

The fifth decision was a series of assessments made under section 19 of the Child Support Act 1991. It seems that they were made because the child support officer realised that a mistake had been made in implementing the third decision. However, the decision was made under section 19 and not by way of correction under regulation 54 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. The assessments dated from 11th June 1993.  

The sixth decision was a further series of assessments made on review of the fifth decision under section 18 of the Child Support Act 1991. Again the effective date was 11th June 1993. An appeal was made to a tribunal against this decision (the “second appeal”).

The seventh decision was that of the Commissioner under reference number CCS/6/1995. The Commissioner set aside the tribunal’s decision (the third decision) and directed a rehearing of the case.

The rehearing of the first appeal and the hearing of the second appeal came before the same tribunal on 25th October 1996. The tribunal gave a single decision dealing with both appeals. Technically, there were two decisions, one dealing with each appeal. The absent parent has appealed against both those decisions to the Commissioner. That relating to the first appeal to the tribunal bears the number CCS/2731/1997 and that relating to the second appeal to the tribunal bears the number CCS/3753/1997.

Jurisdiction on the first appeal

6.	The first question is: did the tribunal have jurisdiction to rehear the first appeal? This question arises, because the decision which was the subject of the first appeal was completely replaced by a series of later assessments in the fifth and sixth decisions.

7.	Not surprisingly, only Ms Thomas had any submissions of substance on this difficult legal question. I deal only with the arguments she used.

The relevance of the social security decisions

8.	This question has been considered in social security decisions which lay down principles on the jurisdiction of tribunals and the lapsing of appeals by which it is to be answered. Ms Thomas argued that those decisions were not relevant and that principles had to be developed directly from the child support legislation.

9.	I accept that argument in part. The principles to be applied to the child support scheme must be appropriate to that scheme and consistent with the terms of the legislation. The principles developed in the social security decisions must not be transported into the child support scheme without regard to the different context.

10.	However, there are sufficient similarities between the adjudication in the two schemes to make it possible that the same or similar principles might apply. Also, the principles developed in the social security cases represent common sense and logic. So, it is not appropriate to ignore the social security decisions. It is appropriate to bear them in mind and to use them as a convenient starting point in developing the principles to apply to child support. 

Maintenance assessments and fresh maintenance assessments

11.	Ms Thomas argued that the effect on an appeal of a later decision that replaced the decision under appeal depended on whether the later decision was a maintenance assessment or a fresh maintenance assessment. These are terms used in section 18(9) of the Child Support Act 1991. Despite several attempts, Ms Thomas was unable to define with precision these terms as she was using them. She was also, when invited, unable to exemplify the distinction between them by simple, clear examples. She said that the distinction did not depend on the date from which the later assessment took effect and disclaimed any reliance on the distinction that will shortly come into effect between revision and supersession of decisions.

12.	I reject this argument on two grounds. 

12.1	First, it is too vague and imprecise to be used as the basis for the development of principles. 

12.2	Second, it is based on a false distinction and a misinterpretation of section 18(9). Section 18 deals with applications for review in a range of cases, including (i) cases where there is no maintenance assessment in force and (ii) cases where a maintenance assessment is in force. Section 18(9) provides for the assessment to be made, if appropriate, following the review. It deals with both (i) and (ii). In case (i), the child support officer makes a maintenance assessment. In case (ii), the child support officer makes a fresh maintenance assessment. This distinction appears throughout the child support legislation. A maintenance assessment made in case (i) is referred to either as a maintenance assessment or a new maintenance assessment, and a maintenance assessment made in case (ii) is referred to as a fresh maintenance assessment.

The relevant principles

13.	The relevant principles can be developed from a consideration of the various sequences of decisions that may occur. I have assumed in each case that the events occurred before the tribunal’s duty to consider a case down to the date of hearing was abolished under the Social Security Act 1998. This makes the reasoning starker. In each case, I have begun with an appeal against an assessment made on a review under section 18 (assessment 1), which was made following a review of an earlier assessment that had the same effective date.

14.	Case 1 The appeal is dismissed. There is an appeal to a Commissioner, who sets aside the tribunal’s decision. By the time of the rehearing, no further decisions have been made. The tribunal must deal with the case from the correct effective date of assessment 1 down to the date of hearing. This is the position in social security cases. There is nothing to require or justify a different principle in child support cases and much to commend taking the social security approach. 

15.	Case 2 The appeal is allowed. There is an appeal to a Commissioner, who sets aside the tribunal’s decision. In the meantime, the tribunal’s directions have been implemented in a fresh assessment (assessment 2), which has the same effective date as assessment 1. Assessment 1 has been wholly replaced by assessment 2. 

15.1	On the principles developed in social security law, assessment 1 has ceased to exist and neither the Commissioner nor the tribunal at the “rehearing” had any jurisdiction, the appeals to both the tribunal and the Commissioner having lapsed. See the decisions of the Tribunal of Commissioners in R(A) 5/89 and of the Court of Appeal in Chief Adjudication Officer v. Eggleton, given on 17th March 1995.

15.2	This cannot be the case in child support. If it were, every appeal to a Commissioner from a decision by a tribunal allowing an appeal would lapse as a result of the child support officer implementing the tribunal’s decision. Ms Thomas submitted that this result should be avoided and argued that it would be inconsistent with the European Convention on Human Rights and Fundamental Freedoms. I prefer to rely on the close and inextricable link between the tribunal’s directions and the decision implementing those directions, and on the simple fact that the social security principle would largely render nugatory the power of appeal to Commissioners given by section 24 of the Child Support Act 1991. So, the appeal to the Commissioner must survive the making of assessment 2 and that assessment must fall when the tribunal’s decision is set aside.

16.	Case 3 The appeal is dismissed. There is an appeal to a Commissioner, who sets aside the tribunal’s decision. By the time of the rehearing, a child support officer has made another assessment (assessment 2) under section 17 of the Child Support Act 1991, the effective date of which is later than that of assessment 1. 

16.1	In social security, the tribunal’s jurisdiction at the rehearing is limited to the period from the correct effective date of assessment 1 to the day before the effective date of assessment 2. See the decision of the Commissioner in CM/91A/1993, paragraphs 8 and 10.

16.2	This principle is equally applicable in child support cases. First, the Commissioner in CM/91A/1993 relied on the principle that there cannot exist at one time two decisions governing the same period, regardless of whether those decisions are the same or different. That principle was laid down by a Tribunal of Commissioners in R(I) 9/63, paragraph 18 and applied by another Tribunal of Commissioners in R(A) 5/89. As far as I know, it has never been doubted. It is evident common sense and applies in child support as it applies in social security. Second, the same result is produced by considering the matter from the point of view of jurisdiction. A tribunal only has jurisdiction over decisions made under section 18. Assessment 2 was not made under section 18. Even if it had been the subject of review under that section leading to assessment 3, the appeal with which the tribunal is concerned is against assessment 1, not against assessment 3. If the tribunal allows the appeal at the rehearing and its directions deal with matters that are equally applicable during all or part of the period governed by assessment 2, the child support officer who implements the tribunal’s decision under section 18 is authorised by section 18(6A) to carry the effect of those directions through into assessment 2.

17.	Case 4 The appeal is allowed. There is an appeal to a Commissioner, who sets aside the tribunal’s decision. In the meantime, the tribunal’s directions have been implemented in a fresh assessment (assessment 2), which has the same effective date as assessment 1, and that assessment has been reviewed under section 17 of the Child Support Act 1991 leading to a fresh assessment (assessment 3) from a later effective date. As the Commissioner has set aside the tribunal’s decision, assessment 2 falls with it (paragraph 15.2). As assessment 3 was made following a review of assessment 2, does it fall as well?

17.1	In social security, there is no clear answer to this question. It depends on the circumstances of the case, in particular on the legal basis for the review and the particular questions determined in consequence of the review. See the decision of the Commissioner in CDLA/805/1994, paragraph 9.

17.2	The social security reasoning cannot be transported into child support, because of the different terms of the legislation. There is an argument that assessment 3 must fall with assessment 2. Assessment 3 could not have been made unless there was the necessary minimum change from the amount of assessment 2: see section 17(6)(b) and regulations 20 to 22 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. So, it could be argued that assessment 3 should fall and a fresh decision be taken on whether that requirement is satisfied. However, my conclusion is that assessment 3 stands free of the process that led to it being made and, therefore, of assessment 2. First, the wording of section 17(6): assessment 3 was a “fresh” assessment made “on completing” a review. These words show that assessment 3 was not made as part of the review. Second, sections 17(4A) and (7) and 18(6A) deal with this sequence: assessment A is under view, but while the review is in progress assessment B is made, either replacing assessment A or limiting the period covered by it. The provisions allow the review to continue against assessment A in so far as it is not replaced and against assessment B. They are based on the assumption that assessment B will not automatically fall if assessment A is replaced. Third, this result reduces the uncertainty that would arise if assessment 3, and perhaps a series of further assessments, had to be unravelled. Ms Thomas correctly pointed out that there was no provision in child support law that decisions were final. (Section 46A now provides for this, but only from 4th March 1999.) Nevertheless, finality and certainty in financial obligations are desirable objectives of legal policy. It is appropriate, if the language permits, to interpret legislation to minimise this uncertainty. (The same reasoning applies if assessment 3 is made under section 16 or section 19 rather than section 17.)

18.	Case 5 The appeal is allowed. There is an appeal to a Commissioner, who sets aside the tribunal’s decision. In the meantime, the tribunal’s directions have been implemented in a fresh assessment (assessment 2), which has the same effective date as assessment 1, and there has been another fresh assessment (assessment 3) that also has the same effective date as assessment 1. 

18.1	In social security, the effect of assessment 3 is completely to replace assessment 1, with the result that assessment 1 can no longer be the subject of an appeal. See paragraph 15.1. So, if assessment 3 is made before the appeal to the Commissioner was decided, that appeal lapses, and if it is made after that but before the rehearing by the tribunal, the appeal to the tribunal lapses.

18.2	The same principle applies in child support law. It follows inexorably from the logic of the reasoning in Case 3. Looked at from the point of view of the period over which the tribunal has jurisdiction, as the time between the effective dates of the assessments reduces so does the period over which the tribunal has jurisdiction. When there is no gap at all, there is no period left for the tribunal to consider. Looked at from the point of view of the subject of the appeal, assessment 1 no longer exists and cannot form the subject of an appeal. Ms Thomas argued that a different result could be produced by reference to section 18(6A). However, that provision only operates while “a child support officer is conducting a review”. Neither the tribunal nor the Commissioner is conducting a review. The tribunal is considering whether assessment 1 was correctly made in fact and law, and the Commissioner is considering whether the tribunal’s decision was wrong in law. Section 18(6A) would not operate until the case came to a child support officer following the rehearing. That cannot happen unless both the Commissioner and the tribunal had jurisdiction to deal with the appeal. So, it operates too late to overcome the lack of jurisdiction. (The position would be the same if the tribunal had dismissed the appeal and there was no assessment 2.)

18.3	Section 20A deals with the lapsing of appeals to tribunals. It does not apply in this case. It only applies from the time that an appeal is brought under section 20 until it is heard. It does not apply while an appeal to a Commissioner is in progress, as that appeal is not brought under section 20. It may or may not be the case that the operation of section 20A revives once the case comes back to a tribunal for rehearing. It is not necessary to decide this question, as all the relevant events in this case occurred before the Commissioner gave his decision in CCS/6/1995.

19.	This reasoning applies to this case like this. When the first appeal to the tribunal was brought and originally decided, the tribunal had jurisdiction over the second decision and, through that decision, over the first decision. When the appeal was made against the third (tribunal’s) decision to the Commissioner, the Commissioner had jurisdiction. This jurisdiction was not affected when the tribunal’s directions were implemented by the fourth decision. However, when the fifth and sixth decisions each replaced the first decision from its effective date before the Commissioner made his decision in CCS/6/1995, the appeal to the Commissioner lapsed. The result was that his decision was without force or effect and the tribunal at the rehearing had no jurisdiction to deal with the first appeal.

20.	The tribunal’s decision did not distinguish between the two appeals. In so far as it was dealing with the rehearing of the first appeal, it had no jurisdiction to do so and its decision was wrong in law. There was only one decision open to the tribunal: that it had no jurisdiction to deal with the first appeal. I give this decision in paragraph 1.3. 

21.	No Commissioner derives satisfaction from declaring a decision by another Commissioner to be without force or effect. This is particularly so in view of the time and effort that the file shows was devoted to the case by all concerned. However, I have not been able to identify any principle that would allow the decision to have effect. Fortunately, the sequence of decisions in this case, while not unique, is unusual in that almost every assessment dated from the same effective date. These principles are most likely to cause an appeal to a Commissioner to lapse when there is an appeal to the Commissioner against a tribunal’s decision, but before it is heard, there is a successful appeal to another tribunal against the decision implementing the tribunal’s directions, leading to a fresh assessment covering the whole of the period dealt with by the first tribunal. I held that an appeal to the Commissioner lapsed in these circumstances in CCS/1535/1997, paragraph 22.

The tribunal’s jurisdiction on the second appeal

22.	Ms Thomas argued that the tribunal in dealing with the second appeal had no jurisdiction to deal with points that had been raised and dealt with in the first appeal. As the first appeal has lapsed, there is no reason to limit the tribunal’s jurisdiction in this way. It is obviously appropriate to allow to be raised in the second appeal all the points that could no longer be raised in first appeal. In any event, I would have decided that there was no bar to the same point being raised again for the reasons I gave in CCS/1535/1997, paragraphs 22 to 37.

The absent parent’s housing costs

23.	Three questions arise about the absent parent’s housing costs. They arise in this way. The absent parent and her new partner both work. His earnings are approximately three times hers. They have a mortgage, which has obviously been granted mainly on the basis of the partner’s income and could not be supported by the absent parent’s income alone. Nonetheless, the legislation provides that the costs of the mortgage are the absent parent’s housing costs: see paragraph 4(1)(b) of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. The person with care objected to this result. This issue is best tackled now by applying for a departure direction under regulations 26 and 27 of the Child Support Departure Direction and Consequential Amendments Regulations 1996, but that option was not available at the time with which these cases are concerned.

Paragraph 27 of Schedule 1

24.	The Commissioner in CCS/6/1995, paragraph 17 said that the application of paragraph 27 of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 had to be considered. This would allow income to be attributed to the absent parent if she had intentionally deprived herself of income, or of capital that would otherwise be a source of income, with a view to reducing the amount of her assessable income. The argument was that the property was larger and more expensive than necessary. Paragraph 27 does not help the person with care in this case. 

25.	So far as income is concerned, the absent parent did not deprive herself of income by the purchase of the property. Her income was not affected by the purchase. It was the same before as after. The most that she had done was to alter the way that she used her income.

26.	So far as capital is concerned, I agree with Ms Thomas that the tribunal’s conclusions on this cannot be faulted. The evidence did not support an assertion that the absent parent acted from an improper motive.

Paragraph 31 of Schedule 1

27.	The person with care argued that the case was covered by paragraph 31 of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. This would allow income to be attributed to the absent parent if her partner was making payments of her housing costs on her behalf. The words "on behalf of" a parent were considered by the Commissioner in CCS/1318/1997, paragraph 16. He concluded that a payment was made on behalf of a parent if the person making the payment undertook liability as agent of the parent or discharged a liability of the parent as her agent. To regard the absent parent’s partner as paying her share of the housing costs as her agent is an unrealistic analysis of the financial arrangements in a relationship. Also, the partner is doing no more than discharging his own joint and several liability: CCS/6/1995, paragraph 20. Paragraph 31 does not help the person with care in this case.

Third party influence

28.	The person with care’s main argument was that the operation of the child support legislation was skewed in his case by the third party influence (his words) of the absent parent’s partner and in particular by his income. He argued that the legislation should be interpreted so as to read out this influence.

29.	He set out his reasoning in detail at the oral hearing and illustrated it with examples of maintenance assessments that would be made in different circumstances. In order to demonstrate the flaws in his reasoning, it is sufficient to set out the basic structure of his argument. It was this. He argued that the third party influence permitted by the legislation was irrational and not authorised by the Child Support Act 1991. His argument began with section 1 to the Act, which imposes a duty on each parent to maintain their children, and with section 2, which imposes a duty to consider the welfare of children affected by decisions involving discretions. He also drew attention to section 52(4)(c), which authorises regulations to impose discretions in respect of any matter. He demonstrated that the income of the absent parent’s partner had the effect of increasing her housing costs beyond what she could afford on her own income, thereby reducing her assessable income and, therefore, the amount of her liability to child support maintenance. He argued that the legislation should be interpreted as giving a discretion to restrict the amount of her housing costs in order to remove the third party influence and give proper effect to the duty imposed on her by section 1. He cited family law cases that emphasised the importance of considering a child’s welfare.

30.	The person with care’s argument was intelligent, well-constructed and clearly stated. As he admitted, he was not a lawyer. I agree with Ms Thomas that from a lawyer’s point of view, the argument is flawed. 

30.1	The child support legislation must be interpreted as a whole. The duty imposed in section 1 refers to the duty imposed by the legislation as a whole. It takes its content from the rest of the legislation. It does not dictate or control the contents of that legislation. It does not provide a means by which parts of the legislation can be dispensed with or modified. 

30.2	The duty to consider the welfare of children likely to be affected applies only to discretions. There is no discretion that is relevant in this case. Section 52(4)(c) authorises matters to be made the subject of discretions, but that only gives the Secretary of State power to do this when making regulations. It does not require any particular matter to be the subject of a discretion. It does not provide a means by which mandatory parts of the legislation can be converted into discretions.

30.3	The calculation of the absent parent’s housing costs is governed by the mandatory provisions of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 and there is no power for a child support officer, tribunal or Commissioner to do anything other than apply them as they stand.

31.	The person with care objected to Ms Thomas’s suggestion that his argument was in substance a political objection to the child support scheme. I accept that the person with care does not see his argument in this way and believes that the legislation should be interpreted as he suggested. However, the only way that his argument could be given effect to is politically through amendment to the legislation. 

Adjournment and breach of natural justice

32.	The person with care argued that the proceedings before the tribunal had been in breach of natural justice. The tribunal had dealt with the case without seeing documents relating to the absent parent’s circumstances that were relevant to the case. The tribunal dealt with the absence of the documents by allowing the appeal and directing that they be obtained in order to verify the relevant details. The person with care argued that the tribunal should have adjourned for the documents to be produced so that he could have an opportunity to comment on them before a decision was made. 

33.	At the oral hearing, the person with care accepted that he had realised that the lack of the documents might be a problem, but that he had not asked for an adjournment. 

34.	It is not unusual for the parties to the proceedings before a tribunal to fail to bring relevant documents to the hearing. The tribunal must then decide whether the case is a suitable one for proceeding without the documents, either by relying on the oral evidence or by giving directions that the documents be produced. If it is not, the tribunal must consider adjourning for the documents to be produced. The appropriate course will depend on all the circumstances of the case.

35.	The extent to which a tribunal is expected to assist a party depends on the circumstances, being at its highest in the case of an unrepresented and inarticulate party who does not understand the legal issues arising: see the decision of the Commissioner in R(I) 6/69, paragraph 7. In this case, there was no breach of natural justice. The person with care realised at the time that an adjournment to allow him to see and comment on the documents might be appropriate, but he did not ask the tribunal to adjourn. The person with care who appeared before me at the oral hearing was astute and capable of identifying and protecting his own interests. I doubt that the tribunal formed a different impression. He might not know the precise legal procedures, but he was sufficiently informed and intelligent to raise the matter with the tribunal. He did not do this. In these circumstances, there was no reason for the tribunal to do other than it did.

The tribunal’s directions

36.	At the oral hearing, I asked Ms Thomas to address me on the adequacy of the tribunal’s directions. They were worded as directions that verification of information should be obtained. They did not state what was to be done with the information once verified or what was to be done if verification was not forthcoming. I asked if this was sufficient.

37.	Ms Thomas argued that the directions were sufficient, because there had to be read into them the requirement for the child support officer to act in accordance with the child support scheme. Leaving matters to a child support officer in this general way will not always be a proper use of the power to give directions. There will be cases in which more specific guidance is required. However, I accept the argument that in the context of this case the tribunal was merely saying that the assessment could stand if and only if verification was produced, leaving the officer to work out the consequences of verification not being provided in accordance with the child support scheme.

Summary

38.	In short, the practical effect of my decisions is that the absent parent’s liability to child support maintenance is to be determined by reference to the directions given by the tribunal on 25th October 1996, subject to any subsequent assessments.

Signed:	Edward Jacobs
		Commissioner

Date:		26th April 1999