PLH                                                                             Commissioner's File: CCS 2626/99

CHILD SUPPORT ACTS 1991 AND 1995

APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

[ORAL HEARING]

1.	My decision is that the decision of the child support appeal tribunal given on 26 January 1999 in respect of the absent parent’s daughter “L” was erroneous in point of law, as although the tribunal were correct in holding that there had at all material times been an effective maintenance application in respect of L so that a maintenance assessment for her required to be made, they erred in directing the child support officer (now the Secretary of State) that in calculating the assessment the case was not to be treated as a “special case” under reg. 23 Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI No. 1815.  
2.	The remaining issue dealt with by the tribunal, on whether the absent parent was entitled to a severe disability premium, is no longer contested; and in that respect I am satisfied that the tribunal’s decision was right.  In the result I set aside their decision and in exercise of the power in section 24(3)(a) Child Support Act 1991 substitute my own decision that at all material times for the maintenance assessment periods at issue in this case:
(a)	the making of a maintenance assessment in respect of L was mandatory under section 11 Child Support Act 1991 since an effective maintenance application had been made in respect of her; 
(b)	the case was a special case within reg. 23 cited above; and 
(c)	severe disability premium was not payable to the absent parent.  
The case is referred to the Secretary of State to recalculate the assessment or assessments so far as necessary over the whole of the relevant period back to 23 December 1996, making any necessary alterations and adjustments to take account of relevant changes of circumstances from time to time, including the birth of a further child to the appellant on 1 January 1997.
3.	This appeal by the absent parent against the tribunal’s decision has a convoluted history.  I held an oral hearing of the appeal which had been requested by the absent parent, at which he appeared and was represented by Gordon Winter, formerly his adviser at the Bradford Citizens’ Advice Bureau.  L’s mother, the parent with care, did not appear and took no active part in the appeal, and Julian Kenny of Counsel appeared for the Secretary of State. I am grateful to Mr Kenny in particular for his help in clarifying the history of the various assessments and the issues involved in the case.  
4.	The dispute is over what, if anything, the absent parent should pay by way of maintenance for his daughter L who is now aged 7, over the whole period from 23 December 1996 to the present date.  For some five years after she was born in 1983 her parents remained married and living together, but in 1998 they separated and some two years after that there were divorce proceedings brought by her father on the ground of the irretrievable breakdown of the marriage and the two years’ continuous separation.  
5.	The evidence in those proceedings showed that by that time L’s mother had another daughter “J” who had been born on 9 April 1990, but that she was not the child of L’s father:  see page 175.  A decree nisi was granted on 3 June 1991 and the ancillary orders made in the proceedings included an express declaratory order by the judge that the court was satisfied that the only child who was or might be a child of the family to whom section 41 of the Matrimonial Causes Act 1973 applied was L.  The arrangements for her welfare were found satisfactory and the marriage was finally dissolved on 19 July 1991:  see pages 200 to 203 of the appeal file.  
6.	There was clear medical evidence that L’s father had had a vasectomy operation on 7 March 1986 and remained sterile throughout the remainder of the marriage (he subsequently had a successful reversal but this was not until 1992:  see pages 150 to 168); and the express declaratory order that L was the only child of the marriage would not and could not have been made unless the judge had been satisfied by proper evidence that J was of different paternity. Otherwise there would have to have been consideration of arrangements for her welfare as a condition of the divorce going through:  see section 41 Matrimonial Causes Act 1973 as then in force.  
7.	Some six years after the divorce L’s mother was on income support and was required to make an application for child maintenance, which she did on the maintenance assessment form dated 21 September 1996 at pages 67 to 81.  In it she identified both L and J as the children of the absent parent, and this led to an initial child support assessment against him in respect of both girls, dated 21 July 1997 (pages 274 to 278) purporting to have effect from the date of issue of a maintenance enquiry form to him on 23 December 1996. 
8.	This purported assessment was plainly unlawful, as it ignored the fact that he had returned the form promptly on 16 January 1997 making clear that he only accepted the elder girl L as his daughter:  see pages 82 to 114.  In view of the absent parent’s express denial of parentage of J, the making of any maintenance assessment in respect of her was prohibited by section 26 Child Support Act 1991.  How the Child Support Agency came to make such an obviously wrong assessment after a delay of over six months from provision of the relevant information is not explained, but in any case a corrective assessment was issued some three weeks later on 14 August 1997.  This was in respect of L alone and was for a lower amount from the original effective date of 23 December 1996:  see pages 279 to 282.  
9.	The absent parent then launched an appeal raising a number of issues on the assessment, in the course of which he began to contend that because he disputed the paternity of J who had been mentioned in the original application, he was relieved from any liability for paying anything in respect of his daughter L, even though her paternity was not in issue at all.  That argument has been persisted in by and on behalf of the absent father throughout these proceedings.  For the reasons given below it was always wholly without merit, and was rightly rejected by the first tribunal who heard the appeal on 15 January 1998.  They found as a fact that the application at pages 67 to 81 was an effective one to found a maintenance assessment, having been completed in accordance with the instructions of the Secretary of State and accepted by him for the purpose:  see the decision notice dated 15 January 1998 at page 25.  As they commented, the accuracy of the details given in the form and their effect on the substance of the assessment was a different issue from the formal one of whether there had been an effective submission of an application to start the assessment process going at all.  
10.	No appeal has been brought against that tribunal decision. Instead, the recalculations which that tribunal directed have given rise to the prolonged appeal process evidenced by pages 1 to 263 of this appeal file, involving the matter coming again before three further child support appeal tribunals and culminating in the decision under appeal to me, given by the Leeds child support appeal tribunal on 26 January 1999 in the terms set out in the decision notice and statement of facts and reasons at pages 260E to 263.  
11.	This tribunal again rejected, though only by a majority, the absent parent’s repeated argument that no assessment at all could have been made in respect of his daughter L because he had disputed the paternity of J.  Secondly the tribunal considered, but rejected, the alternative argument that since section 26 Child Support Act 1991 prevented the making of any maintenance assessment in respect of J because of the dispute, it necessarily followed that for child support purposes she had to be treated as having a different absent parent (there being no suggestion that her true father was living with her mother at any material time).  The consequence of that argument if it had been accepted would have been an adjustment to the amount payable in respect of L under reg. 23 of the maintenance assessments regulations cited above, since the assessment would have been one for the special case of a “Person caring for children of more than one absent parent”.  
12.	The ground on which the tribunal rejected that argument was that while they were precluded by section 26 of the 1991 Act from making any assessment in respect of J, they were also precluded from holding that reg. 23 was applicable by their own lack of jurisdiction to make any determination about her paternity, since to apply reg 23 would involve holding that J’s father was someone different from L’s: the precise question in dispute which it was not for them to decide.  As noted above, the tribunal also made a finding about the severe disability premium which affects the amount of the assessment, but is not in dispute before me.  
13.	On behalf of the absent parent at the hearing before me, Mr Winter maintained the original frontal challenge to the making of any assessment at all, even in respect of L.  The basis of this argument as I understood it was that the inclusion in the original maintenance application form of J, whose parentage was not accepted by the absent parent, had the effect of paralysing the entire child support assessment process even in respect of the undisputed child L unless and until the matter of J’s paternity had been referred to the court for a formal declaration as to paternity: section 27 Child Support Act 1991 permits either the Secretary of State or the parent with care to apply for such a declaration so as to be effective for child support or maintenance proceedings.  This being the position in respect of J, the resultant paralysis in Mr Winter’s submission extended also to any ability to make an assessment in respect of L alone, since an erroneous assessment had already been made on the original application in respect of the two girls and once that had been done it was impossible to proceed with the making of a correct assessment in respect of L alone ignoring the disputed information given in the form about J. Nor was any departure from the information given in the original form permissible: the making of the original incorrect assessment prevented any amendment to the application.  
14.	This he said followed from the provisions of reg. 2 Child Support (Maintenance Assessment Procedure) Regulations 1992 SI No. 1813. This application was not “effective” under reg. 2(4), because the inclusion of incorrect information about J meant that the form had not been completed in accordance with the Secretary of State’s instructions.  Further, even if the original application counted as effective, reg. 2(6) (which allows a person who has made an effective application to amend it by notice in writing to the Secretary of State but only before a maintenance assessment is made) prevented anyone proceeding with it after the original incorrect assessment as though it was an application in respect of L alone.  
15.	I have no hesitation in rejecting these submissions.  As the first tribunal pointed out, the contention that the application was never “effective” because it included J confuses the purely formal requirements for submission of an application, which are a matter for the Secretary of State, with the substance of whether the grounds of the claim for maintenance in respect of all or any of the children detailed are factually correct, which is of course what has to be gone into in the course of considering and making the assessment itself.  Ascertaining the correctness and completeness of the substantive information given in the form is what the process of assessment is all about.  I agree with both tribunals that it would be absurd to read the reference to “the Secretary of State’s instructions” in reg. 2(4) as meaning that that process can never even start unless the substance of what is said in the form is correct in every material particular.  The scope of the Secretary of State’s “instructions” in reg. 2(4) is limited to the formalities of completing the form and submitting a valid application so as to start the whole process running; and whether these requirements have been complied with so that an effective maintenance application has been made in a particular case is a matter for him.  Here the Secretary of State plainly did accept the application since he referred it to a child support officer for assessment under section 11, and that is an end of the “effectiveness” question.  
16.	I agree with the second tribunal that the argument on reg 2(6) is equally absurd.  Again, the requirements of the Act are for the child support officer to make a proper assessment in accordance with the Act and the regulations once an effective application  has been made.  This may involve accepting or rejecting part or all of the factual allegations on which the application is based, which are matters for the person carrying out the assessment, or on appeal the tribunal, to determine.  If a claim is made in respect of two children when the legislation only permits an assessment to be made in respect of one of them, then the process of making a correct assessment may involve having to reject the part of the application relating to the other child; but that does not mean the process of making the correct assessment is paralysed, any more than if incorrect information about someone’s income is given on the original form, and in due course rejected by ascertaining the correct figures and using these for the purpose of making the assessment itself.  The suggestion that all this is in some way prevented by the provisions of reg. 2(6), which merely empower a person to make his or her own amendments in an application at any stage before an assessment has been made on it, is in my view quite unarguable.  
17.	On the second main issue as to the application of the “special cases” provisions, both Mr Winter and Mr Kenny on behalf of the Secretary of State were united in submitting that the tribunal’s approach had been wrong.   On this their argument must in my view be accepted and the absent parent’s appeal allowed.  
18.	By reg. 23 cited above which is made in exercise of powers under section 42 Child Support Act 1991, a case is to be treated as a special case for the purposes of the Act when a person (in this case L’s mother) is a “person with care in relation to two or more qualifying children”.  As Mr Kenny pointed out, “qualifying children” for this purpose has been held by the Court of Appeal in case R(CS) 5/00 Secretary of State v Maddocks (CA 21 June 2000) to bear the meaning it has under section 3(1) of the 1991 Act, namely that one of the child’s parents is an absent parent. There is no further condition that every such child is to be the subject of a maintenance assessment before it can be taken into account under reg. 23.  The consequence of that regulation applying is that in calculating the maintenance requirement under any maintenance assessment that does fall to be made in respect of any qualifying child, a proportionate reduction is to be applied to take account of the special circumstances.  This has, or may have, the effect of reducing the maintenance obligations of the absent parent of that particular child.  
19.	In my judgment that provision ought plainly to have been applied here at all material times on the facts of this present case; and it is not necessary to go into the question which so troubled the tribunal, about whether to apply it would involve them in deciding a disputed issue of paternity beyond their jurisdiction. I do however observe that this problem, if it is a genuine one, would appear to me to arise whichever way a tribunal decides the reg. 23 question in a disputed paternity case:  to hold that it is a special case under reg. 23 involves accepting that the absent parent is not the father of the other child, whereas to hold that it is not would involve accepting that he is.  
20.	The reason is not necessary to go into such conundrums in the present case is that as noted above, the declaratory order made by the County Court judge in the course of the divorce proceedings has necessarily involved a decision by a competent court that J was not the daughter of the absent parent, since otherwise her interests would have had to have been taken into account as a “child of the family” in the arrangements then made.  Such declaratory orders in divorce proceedings may with safety and propriety be taken by tribunals and those dealing with child support assessments on behalf of the Secretary of State as conclusive for practical purposes of questions of paternity of the children involved, should any such question arise at a later stage in the course of a child support application or assessment.  The tribunal in this case in my view misdirected themselves by failing to take account of the effect of the judge’s order in 1991 and on that ground I allow the appeal, set the decision of 26 January 1999 aside and substitute my own decision in the terms set out above.  The ancillary directions in my decision about the severe disability premium and the need to take account of later changes in circumstances are not disputed and I need say no more about them.

(Signed)
P L Howell
Commissioner
20 December 2000