Brough v Law & Anor [2011] EWCA Civ 1183

Case No C3/2010/1932[2011] EWCA Civ 1183
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
JUDGE LEVENSON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/10/2011
Before
LORD JUSTICE PILLLORD JUSTICE RIMERLORD JUSTICE LEWISON
Between
Michael BroughAppellantSharon LawFirst RespondentChild Maintenance and Enforcement CommissionSecond Respondent
Kerry Bretherton and Dean Underwood (instructed by the Bar Pro Bono Unit) for AppellantDinah Rose QC and Jessica Boyd (instructed by Free Representation Unit) for First Respondent andTim Buley (instructed by DWP Legal Services) for Second RespondentHearing Hearing date : 14 September 2011
JudgmentLORD JUSTICE PILL :
[1]This is an appeal against a decision of the Upper Tribunal (Administrative Appeals Chamber) (Judge Levenson) dated 11 December 2009. The judge allowed the appeal of Ms Sharon Law (“the first respondent”) against a decision of an Appeal Tribunal (“The Tribunal”) held at Fox Court on 8th April 2008. The Tribunal had decided that the Secretary of State for Work and Pensions (“the Secretary of State”) had no power to continue a maintenance assessment affecting Mr Michael Brough (“the appellant”), as an absent parent, beyond 15 September 1999.[2]While the appellant and the first respondent were married, a son was born to them on 4 April 1996. The respondent made a claim for income support and was required to authorise the Secretary of State to seek child support on her behalf in respect of the child. At a time when the parties were separated, a maintenance assessment was carried out and it was decided on 15 August 1999 that, as from 4 January 1999, the appellant was in principle liable to pay child support maintenance but the actual amount of liability under the then rules was nil. The parties were divorced in 2001.

Judge Levenson summarised the findings of fact material to this appeal:

[3]“The tribunal below found that they [the parties] 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”.[4]Subsequent to the divorce, the respondent made a further claim for benefit. The Secretary of State decided on 9 July 2003 that, as from 24 January 2003, the appellant, who was by then in employment, was liable to pay child support maintenance of £94.21 a week.[5]On 14 February 2007, the appellant applied to the Secretary of State for the assessment to be cancelled, relying on the brief reconciliation in 1999. The Secretary of State agreed and cancelled the assessment as from 15 July 1999, a date amended by the Tribunal to 15 September 1999, the date on which the brief reconciliation commenced.[6]Upholding the decision of the Secretary of State, the Tribunal thought itself bound by a decision of Mr Commissioner Mesher on 23 November 1998 (R(CS) 8/99), followed by Mr Commissioner Turnbull on 22 November 2006 (UKSSCSC CCS/2332/2006).[7]The primary issue, as summarised in the written submission of the Child Maintenance and Enforcement Commission (the second respondent) is as to the meaning and effect of paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991 (“the 1991 Act”). It is as to whether the sub-paragraph applies to a situation in which the parents of “a qualifying child” under the 1991 Act are reconciled, to the extent of living together as part of the same household, for a short period so as to bring to an end a maintenance assessment made in respect of that child. If the first respondent fails on that issue, other points are taken on her behalf, with some support from the second respondent, with a view to establishing a continued liability on the appellant to pay child support.[8]For the appellant, Miss Bretherton submitted that the reconciliation, as the Tribunal described it, for a period of about 6 weeks brought to an end the maintenance assessment and everything done subsequently was a nullity. The first respondent, represented by Miss Dinah Rose QC, disputed that proposition as does Mr Buley for the second respondent. The second respondent is the successor to the functions of the Secretary of State and does not now support the view taken by the Secretary of State in 2007 and earlier.[9]There is no dispute as to the statutory provisions applying to this case. There have been statutory changes, both substantive and procedural, brought in by the Child Support, Pensions and Social Security Act 2000 (“the 2000 Act”) which changed the nature of the scheme. However, transitional provisions provided that applications for child support made before 3 March 2003 would continue to be governed by the earlier rules so that the present case is described as “an old scheme case”.[10]Section 3 of the 1991 Act as in force for old scheme cases provides, in so far as is material:
“(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 a ‘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; (b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and (c) who does not fall within a prescribed category of person. . . . (5) For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.”
[11]“Child” is defined, for the purposes of the Act, in section 55. It includes a person under 16 and some over 16 in full-time education. Applications for maintenance assessments can be made under sections 4 and 6 and sections 4(5) and 6(11) provide for applications to the Commission (formerly the Secretary of State) “to cease acting under this section”.[12]Paragraph 16 of schedule 1 to the 1991 Act, in so far as is material and as applied in the present case provides:
“(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; or (ii) where it was made with respect to more than one qualifying child, all of the qualifying children 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. . . . (6) Where both the absent parent and the person with care with respect to whom a maintenance assessment was made request the Secretary of State to cancel the assessment, he may do so if he is satisfied that they are living together. . . . (10) A person with care with respect to whom a maintenance assessment is in force shall provide the Commission with such information, in such circumstances, as may be prescribed, with a view to assisting the Commission in determining whether the assessment has ceased to have effect, or should be cancelled.”
For current scheme cases, provisions of that section, including paragraph 16(1)(d) and (e) and paragraph 16(6), have been repealed.[13]Miss Bretherton submitted that the meaning and effect of paragraph 16(1)(b) is clear when read with section 3 of the 1991 Act. During the short period when the parties lived together in 1999, the appellant was not “an absent parent” within the meaning of section 3(1). It followed inevitably that the child was no longer a “qualifying child” because for a child to be a qualifying child there needed to be an absent parent. Thus, by virtue of paragraph 16(1) the maintenance assessment of January 1999 ceased to have effect. The appellant was no longer subject to it and the Secretary of State had no power to make the supersession decision in July 2003 requiring the appellant to make payments under the maintenance assessment.[14]At the time, the Secretary of State accepted that argument. The substantial sum paid under the assessment by the appellant has been refunded to him.[15]The logical first step in statutory construction is to consider the language of the statute, submitted Miss Bretherton. That leaves no doubt that, during the short reconciliation, there was no qualifying child so that the maintenance assessment ceased to have effect. The respondents’ submissions required the deletion of the word “qualifying” from paragraph 16(1)(b) and that was an impermissible course for the court to take.[16]An obvious point taken against Miss Bretherton is that paragraph 16(1)(d) provided that a maintenance assessment shall cease to have effect where the absent person and the person with care have been living together for a continuous period of 6 months. It thereby deals specifically with the effect of persons living together and requires such cohabitation for a continuous period of 6 months. If a much shorter period of living together terminates the maintenance assessment under sub-paragraph (b), sub-paragraph (d) is not required. Miss Bretherton tried valiantly to envisage a situation in which (d) could still operate but with little success. Her consequential submission was that the apparent contradiction between sub-paragraphs was subsequently resolved by the repeal of sub-paragraph (d). That involved, it was submitted, a recognition that it was not required because the situation was covered by sub-paragraph (b).[17]Mr Commissioner Mesher, in 1998, adopted the submission made by Miss Bretherton in the present case. Having recited the statutory provisions, Mr Mesher posed the question at paragraph 5: “The problem then becomes clear. 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. In the standard situation where the child is living with one parent in the former family home and the other parent has moved out, that condition is met. If the parent who had moved out returns to be a member of the other parent’s household, it appears that the child will immediately have no absent parent and cease to be a qualifying child. Does any maintenance assessment which was in force against the former absent parent cease to have effect immediately under paragraph 16(1)(b) of Schedule 1 to the Act? Or does the assessment only cease to have effect after the parents have been living together for a continuous period of six months under paragraph 16(1)(d)? ” [then still in force][18]Submissions were made to the Commissioner on behalf of the Secretary of State that paragraph 16(1)(b) “would bite when there was a sufficiently settled arrangement that one could say the absent parent had become a member of the same household as the child . . . For the absent parent to become a member of the same household as the child there would have to be some settled intention as to the future”. It was also submitted that when it was not immediately clear that the absent parent was living in the same household as the child “perhaps because intentions were tentative (as where a reconciliation was being tried) or the situation was not stable, the meter under paragraph 16(1)(d) would start to run”.[19]The Commissioner answered the question he had posed, at paragraph 14:
“The notion of living in a household implies more than a mere transitory presence as in a friend or relative making a short visit. A person living in the same household as another person is part of that household and so a member of it. Membership of a household is essentially a factual matter, looking to the current arrangements of the domestic establishment. I reject the submissions on behalf of the Secretary of State and the child support officer in so far as they suggested that some particular degree of settled intention about future arrangements or stability of arrangements over a past period was necessary. All that is necessary is that the person is presently living in the household on more than a merely transitory basis.”
[20]At paragraph 15, the Commissioner referred to “a settled course of daily living”; there should be “something akin to membership of the same household”. He concluded, at paragraph 19:
“Accordingly, I find that the appeal tribunal adopted a legally wrong interpretation of paragraph 16 of Schedule 1. It should have adopted the interpretation 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. The appeal tribunal’s decision must be set aside as wrong in law.”
The Commissioner also considered practical problems which could arise if a maintenance assessment were to stay in existence while the parents were living together.[21]In 2006, Mr Commissioner Turnbull adopted the reasoning of Commissioner Mesher. He contemplated that “if two persons move into a home together, intending to live as husband and wife indefinitely, they would normally, it seems to me, become members of the same household immediately because a domestic establishment is likely to have been formed immediately. . . it is not possible even to say that persons must intend to live together for any particular time in order to become members of the same household (paragraph 9). [emphasis in original][22]Miss Bretherton further argued that what has been a settled practice since the 1998 decision should not be disturbed. Sub-paragraph (b) has survived through many amendments to the statute and Commissioner Mesher’s approach in 1998 should be upheld.[23]The word “reconciliation” was used by the Tribunal to cover the 6 weeks the parties were living together in the same household in the Autumn of 1999. It was described as a “very brief reconciliation”. The nuances arising, for example, from submissions made to Commissioner Mesher in 1998 were not considered. Analysis of the genuineness and solidity of the reconciliation would be expected in a statutory context where a child may be deprived of his maintenance assessment.[24]That was required in the old divorce law on condonation of matrimonial offences. The concept of a trial reconciliation also emerges from the Children Act 1989. Section 11(5) provides that a residence order in favour of one parent “shall cease to have effect if the parents live together for a continuous period of more than six months”. The context is different but, by analogy, the continuation of the order notwithstanding the parents living together for up to six months is noteworthy.[25]For the respondents, it was submitted that paragraph 16(1)(d) provided a statutory construction of reconciliation, that is “living together for a continuous period of six months”. It follows, it was submitted, that a lesser period of living together would not cause the maintenance assessment to cease to have effect. Paragraph (d) creates the statutory benchmark for reconciliation and deals with it expressly.[26]Though acknowledging the difficulty arising from the presence of the word “qualifying” in sub-paragraph (b), the respondents submitted that in the context of section 16(1) as a whole, a short period of living together does not have the effect of determining the assessment. It was necessary for the child to be a “qualifying child” when the maintenance assessment was made, including there being an absent parent. Sub-paragraph (b) was intended, it was submitted, to require the continuing status of the child as a child, and to consider the contingency of the child either dying or no longer being a child within the meaning of section 55. Paragraph 16(1), including sub-paragraph (b), was concerned with a possible change in status, it was submitted. The words “no longer” in sub-paragraph (b), by reference to “qualifying child”, give some support to the submission that it is status with which the sub-paragraph is concerned.[27]Each of the sub-paragraphs in paragraph 16(1) of the schedule contemplates a specific event, in (a) death, in (c) ceasing to be a parent, in (d) six months living together, in (e) a new assessment. The events have a precise and permanent effect. The more elastic notion of reconciliation does not follow that pattern. As already indicated, it was submitted that the meaning of sub-paragraph (b) attributed by the appellant renders sub-paragraph (d) redundant. On that construction, the two paragraphs are not merely inconsistent, sub-paragraph (b) undermines sub-paragraph (d).[28]Sub-paragraphs (a) and (c) would also be redundant on that construction, it was submitted, because both on death (a), and ceasing to be a parent of a qualifying child or children (for example on adoption) (c), there would no longer be a qualifying child within the meaning of sub-paragraph (b). Some weight is placed by Mr Buley, for the second respondent, on the roundabout route of definition adopted. “Qualifying child” for the purposes of paragraph 16 is defined not directly but by reference to whether a parent is absent. The circularity may have led to a failure to appreciate the possibility that the appellant’s argument would be raised, it was submitted.[29](The point was not fully argued but sub-paragraph 16(1)(a) could arguably operate to determine an assessment if the appellant’s construction of the paragraph is correct. It could arguably apply if, following the death of “the person with care with respect to whom [the maintenance assessment] was made”, there remained a “qualifying child” within the meaning of sub-paragraph (b) because some other person has become a “person with care” as defined in section 3 of the 1991 Act. That possibility does not appear to me significantly to weaken the respondents’ submissions on statutory construction.)[30]Had the meaning advocated by the appellant been intended by Parliament, it was submitted, sub-paragraphs (a) and (c) would also have been deleted as unnecessary when amendments were made. The respondents do not accept that the repeal of sub-section (d) has the effect for which Miss Bretherton contends. The repeal was one of several and a new and different scheme was created.[31]Miss Rose referred to the policy underlying the 1991 Act, section 1 of which is headed “Duty to maintain”. Its purpose was to provide maintenance for children and it would have been surprising had Parliament intended in this context that an attempt at reconciliation would of itself deprive the child of the maintenance assessment and maintenance from a parent.[32]Miss Rose placed particular reliance on the presence of paragraph 16(6) in the schedule. It provided for a request to the Secretary of State to cancel the assessment. He may do so if he is satisfied that the parents are living together. That too would be unnecessary if the mere fact of living together itself had the effect of determining the assessment. It also gives the Secretary of State power to investigate the circumstances in which they are living together before the obligation of one parent is terminated by cancellation. That is a safeguard for the child inconsistent with determination having already occurred and is consistent with a trial reconciliation not terminating. In new scheme cases, there is also provision for terminating the assessment upon a reconciliation.[33]I do not consider that the workability aspect of the case assists the appellant. There is provision for supersession of an earlier assessment as well as the right conferred in paragraph 16(6).[34]Judge Levenson, having considered earlier decisions, spelt out, at paragraph 21, the consequence if the approach in decision (R(CS) 8/99) is followed:
“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.”

Judge Levenson concluded:

“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. 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 parents 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. 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. 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).”[36]In SM v CMEC [2010] UKUT 435 (AAC) (8 December 2010), Upper Tribunal Judge David Williams expressed support for the approach adopted by Judge Levenson in this case.[37]I agree with the conclusion of Judge Levenson and the central submissions of the respondents. Weight must be attached to the presence of the expression “qualifying child” in paragraph 16(1)(b) which requires reference to the definition of “qualifying child” in section 3. That involves a further reference to the definition of “absent parent” in section 3(2). An examination of paragraph 16(1) as a whole, however, drives me to the conclusion that it was not intended that a maintenance assessment would cease to have effect by reason of a short period of the parents living together:(i) Such a conclusion would render sub-paragraph (a) at least partially and sub-paragraph (c) totally unnecessary and would undermine sub-paragraph (d) which deals expressly with persons living together.(ii) The other sub-paragraphs in paragraph 16(1) contemplate a specific and permanent event and it is likely that sub-paragraph (b) was also intended to apply on the occurrence of a specific event, loss of status as a child, and not a transient one.(iii) The presence of section 16(6) assumed the need for an application to the Secretary of State (now the Commission) to achieve a cancellation of the maintenance assessment when the parties are living together, a provision inconsistent with cancellation merely by living together.[38]Having regard to those factors and to the underlying purpose of the 1991 Act, sub-paragraph (b) does not have the effect for which the appellant contends. In context, it is concerned with the continued status of the child as a child and does not operate to terminate immediately the maintenance assessment upon a return of the formerly absent parent to live with the parent with care.[39]Having reached that conclusion, the question arises whether the court should consider other ways in which the right of the respondent to child support might be upheld. These include a submission that a fresh maintenance application was made in 2002 and, if the earlier maintenance assessment was a nullity, there was and is a duty on the appropriate authority to make a fresh maintenance assessment as from that date. Both Mr Buley and Miss Rose discouraged us from embarking upon consideration of the other points if we are in their favour on the construction point and we decided not to consider them.[40]The complexities which arise, including as a result of the amendments to the legislation, are substantial and there may be unforeseen consequences if the court were to attempt a wide-ranging enquiry. Further conclusions we reach could have an impact on new scheme cases in circumstances where the current scheme has not been fully described and explained to the court. Having reached a conclusion in the respondents’ favour on the construction point, the court did not consider detailed submissions on other issues.[41]Paragraph 16(1)(b) having survived, it now appears in a different statutory context. I raised the question whether it might now have a different meaning. All three counsel submitted, and I see the force of the submission, that the meaning found by this court would carry through into the new context and scheme, Miss Bretherton submitting that such follow through demonstrated the absurdity of the construction for which the respondents contend. I am far from encouraging further litigation as to the meaning of sub-paragraph (b) but I do enter the caveat that it is not impossible it could have a different effect when placed in a different context. The court, adopting submissions made by the respondents, has relied heavily on the context of sub-paragraph (b) in the then enacted paragraph 16, when reaching a conclusion in their favour.[42]I would dismiss this appeal.

LORD JUSTICE RIMER :

[43]I agree with both judgments.

LORD JUSTICE LEWISON:

[44]I agree with the judgment of Pill LJ. I add a short judgment of my own because we are differing from previous decisions of experienced Commissioners and the previous view of the Secretary of State.[45]Michael Brough and Sharon Law married in 1995. In April 1996 their son Ryan was born. However, they separated in September of the same year. Over the next few years, there was a pattern of separation and short-term reconciliation. The period that matters for the purposes of this appeal runs from 15 September 1999 to some time in November 1999. During that period Mr Brough and Ms Law lived together in a local authority dwelling in Staffordshire. Ryan lived with them. When Mr Brough left in November 1999 any thought of reconciliation disappeared. They have not lived together since, and were divorced in 2001. Ryan has remained with his mother.[46]In 1999 Ms Law had applied for income support. This had required the Secretary of State to seek child support maintenance from Mr Brough on her behalf. On 15 August 1999 it was decided that although Mr Brough was in principle liable to pay child support maintenance in respect of Ryan, the actual amount of his liability was nil, because he was a student at the time.[47]After the final separation Ms Law made another claim for income support. She also made a claim for child support on a prescribed form. She signed it on 25 September 2002. Immediately above the signature are the words:
“This is my application for a Child Maintenance assessment.”
[48]This time the Secretary of State decided on 9 July 2003 that, as from 24 January 2003, Mr Brough was liable to make payments of £94.21 per week towards Ryan’s maintenance.[49]On 14 February 2007 (St Valentine’s Day) Mr Brough applied to the Secretary of State for the assessment to be cancelled. The ground of the application was that he and Ms Law had had a brief reconciliation between September and November 1999. Why a brief period of reconciliation some two years earlier than Ms Law’s application for child support and nearly eight years before Mr Brough’s application should matter is not obvious at first sight. However, the Secretary of State decided that it was decisive; and on 16 October 2007 cancelled the assessment as from 15 July 1999. Ms Law appealed to the tribunal. The tribunal varied the cancellation by substituting 15 September 1999 for 15 July 1999, but otherwise upheld the cancellation. Ms Law appealed again to the Upper Tribunal. By his decision dated 11 December 2009 Tribunal Judge Levenson allowed her appeal. Mr Brough now appeals.[50]The relevant legislation is the Child Support Act 1991 in the form before its amendment by the Child Support, Pensions and Social Security Act 2000. Section 1 provided:
“(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.”
[51]Section 3 provided:
“(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; (b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and (c) who does not fall within a prescribed category of person.”
[52]Section 55 provided:
“(1) For the purposes of this Act a person is a child if— (a) he is under the age of 16; (b) he is under the age of 19 and receiving full-time education (which is not advanced education)— (i) by attendance at a recognised educational establishment; or (ii) elsewhere, if the education is recognised by the Secretary of State; or (c) he does not fall within paragraph (a) or (b) but— (i) he is under the age of 18, and (ii) prescribed conditions are satisfied with respect to him. (2) A person is not a child for the purposes of this Act if he— (a) is or has been married or a civil partner; (b) has celebrated a marriage, or been a party to a civil partnership, which is void; or (c) has celebrated a marriage in respect of which a decree of nullity has been granted or has been a party to a civil partnership in respect of which a nullity order has been made.”
[53]Paragraph 16 of Schedule 1 was headed “Termination of assessments” and provided:
“(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; or (ii) where it was made with respect to more than one qualifying child, all of the qualifying children 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.”
[54]Mr Brough’s argument, which the Secretary of State accepted and which Ms Bretherton repeated on appeal, was that the definition of “qualifying child” had to be read into paragraph 16 (1) (b) word for word. She emphasised that paragraph 16 uses the whole phrase “qualifying child” as defined in section 3 rather than simply “child” as defined in section 55. Thus a child would cease to be a qualifying child if neither of his parents was an absent parent. Since an absent parent is one who is not living in the same household as the child, it must follow that if both parents are living in the same household with the child, neither parent is an absent parent. If neither parent is an absent parent there is no longer a qualifying child. The case thus falls within paragraph 16 (1) (b) with the result that the assessment ceased to have effect. This is automatic and requires no further decision by the Secretary of State. When Mr Brough and Ms Law were briefly reconciled between September and November 1999 neither of them was an absent parent in relation to Ryan, and consequently Ryan was no longer a qualifying child. Accordingly, the assessment made in 1999 ceased to have effect, and Mr Brough had no further liability under it.[55]There is, it must be said, an inexorable logic to this argument. But since paragraph 16 (1) (d) provides for a maintenance assessment to cease to have effect at the expiry of six months after the parents have been living together, the consequence of the argument is that paragraph 16 (1) (d) is redundant. In fact it is worse than that. First, if the argument is correct it is difficult to see how paragraph 16 (1) (d) could ever operate. Let me explain. An absent parent is one who is not living in the same household as the child. A person with care is one with whom the child has his home. If an absent parent and a person with care live together, then except in circumstances that I find hard to imagine, the child must have his home with both of them and live in the same household as both of them. Accordingly, it is logically impossible for an absent parent and a person with care to live together for six months, because the formerly absent parent will cease to be absent (as defined) as soon as the cohabitation starts. The absurdity of this conclusion is obvious. Since Parliament does not pass absurd legislation, it must follow that the definitions cannot be imported word for word into paragraph 16 (1) (d). The expression “absent parent” in paragraph 16 (1) (d) must mean the parent who was the absent parent immediately before the cohabitation started.[56]Second, as Pill LJ points out, if Ms Bretherton’s argument is correct, then paragraph 16 (1) (a) is partially redundant and paragraph (c) is also redundant.[57]Accordingly, in my judgment, the inexorable reading in of the whole of the definitions proves too much. If, as I think, Parliament must have intended that an assessment would cease to have effect only at the end of six months continuous cohabitation it would contradict that plain intention to hold that in fact it ceased to have effect at some earlier point in the period of cohabitation.[58]One objection to this conclusion is that while the parents are cohabiting it would not be practical to require one person to make payments to another living in the same household; and that the mere fact that the parents had begun (or resumed) cohabitation would itself provide grounds for a review of any previous assessment. These objections were articulated by Mr Commissioner Rowland in CCS/4124/1997 and adopted by Mr Commissioner Mesher in R(CS) 8/99. These objections are relied on in order to support the proposition that the defined terms must be inexorably applied to paragraph 16 (1) (b). But if the defined terms are inexorably applied, the supposed problem disappears. This is because the duty to comply with an assessment imposed by section 1 (3) is a duty imposed on an absent parent (as defined). If the parent ceases to be absent, the duty must likewise cease. So this argument, in my judgment, carries the seeds of its own destruction. Moreover this argument would apply equally to paragraph 16 (1) (d), with the result that the duty to make payments would in effect be suspended during the period of cohabitation and cease at the expiry of six months. In CCS/4124/1997 Mr Commissioner Rowland said that it might well be desirable that an absent parent beginning to live with the person with care should lead to the suspension of the assessment. On this analysis that is exactly what happens.[59]I return, then, to paragraph 16 (1) (b). It applies to a case in which there is “no longer” a qualifying child. To my mind, that is not the same as a case in which there is “not for the time being” a qualifying child. It suggests something more permanent; such as the former child attaining the age of 16, or leaving full-time education, or marrying, or even dying. In essence, this was the reasoning of Upper Tribunal Judge Levenson, and I agree with it.[60]I, too, would dismiss the appeal.

Cited in 2 later judgments