SM v CMEC (CSM) [2010] UKUT 435 (AAC)

UKUT-AAC
SM v CMEC (CSM)
[2010] UKUT 435 (AAC) · 2010-12-08
The appellant attended and represented herself.The Commission was represented by Mr Leo Scoon, of the Office of the Solicitor to the Department for Work and PensionsThe second respondent did not attend.

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.C The tribunal is directed to consider if there is a valid appeal before it in this case.D All parties are directed to make submissions to the tribunal on the issue of the validity of the appeal by the absent parent. They are to do so within one month of the issue of this decision.E If any party has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 The appellant (“C”) is the parent with care and mother of three children for whom a child support maintenance assessment was made. She is appealing against the decision of a tribunal on an appeal to it by the second respondent (“A”). He is the absent parent of the three children as was made liable for the maintenance. The decision was made by the Child Maintenance Enforcement Commission (“the Commission”) the first respondent in the appeal.2 A was appealing against the Commission’s decision about his liability to pay child support maintenance. He contended that he and C were reconciled. Therefore there was no jurisdiction to make an assessment for the period in question.3 The tribunal accepted A’s appeal. It decided that it had no jurisdiction from 6 09 2002 to make any assessment against A. There were no qualifying children at that time. This is because it found a reconciliation at that time.4 I granted permission to appeal to C because there are difficult issues concerning temporary reconciliations raised in decisions of Commissioners and the Upper Tribunal.5 I invited the submissions of the parties on the issues of law relevant to the decision of the tribunal that it did not have jurisdiction. The Child Maintenance Enforcement Commission (“the Commission”), as respondent, supported the appeal. It drew attention to conflicting decisions of Child Support Commissioners and the Upper Tribunal on the key issue of the effect of a temporary reconciliation of the parents. It invited me to decide that the tribunal was wrong in excluding jurisdiction, and that it should have made an assessment decision. A did not respond.6 C asked for a hearing. At the hearing, Mr Scoon, for the Commission, supported the written submission already made. This supported the appeal. C explained her position. A did not attend and had not responded. I decided that he had been given proper notice and held the hearing in his absence.

The law

7 The factual decision underlying the appeal is that, as the tribunal found, A and C shared a common household on and from 6 09 2002. The question of law is the effect that had on the pre-existing child support maintenance assessment. The tribunal considered that the reconciliation ended the obligation to pay child support maintenance.8 The provision dealing with termination of assessments is in paragraph 16 of Schedule 1 to the Child Support Act 1991. Paragraph 16(1) 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 is 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 parent with care with respect to whom it was made have been living together for a continuous period of six months …”.One other subparagraph is also relevant:
“(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.”
9 It is submitted that this paragraph takes effect under section 11 of the 1991 Act. That imposes a duty on the Commission to decide any maintenance application “in accordance with the provision made by or under this Act.” There is, however, no obvious link between section 11(1) and paragraph 16. The one deals with applications. The other deals with terminations, and it is not clear that any decision is required. That creates a procedural problem that I must consider below. But the link with the section is explicit in section 11(3). This provides that Part II of Schedule 1 makes further provision with respect to maintenance assessments.10 The scope of paragraph 16(1)(a) is clear. If either the person liable to pay the assessment or the person entitled to receive it dies, then the assessment becomes ineffective. As assessments are personal to the individuals, it is not clear that this provision is more than declaratory. Paragraph 16(1)(c) is again clear and specific. “Parent” is defined by section 54 of the 1991 Act as being any person who is in law the mother or father of the child. This will link in part with section 26 of the 1991 Act, dealing with disputes about parentage. Adoption of a child may also be relevant here. Paragraph 16(1)(d) also appears to be clear. It sets a test of six months continuous living together as the threshold requirement where separated parties reach a reconciliation and start living together. But paragraph 16(1)(b) cuts across this provision and appears to deprive it of content. This is because if the absent parent and person with care are living together, and the children are living with them, then none of the children will be a “qualifying child” as defined in the 1991 Act.11 “Child” is defined by section 55 of the 1991 Act. The definition is essentially by reference to the age of the individual. “Qualifying child” is defined by section 3 of the 1991 Act, together with “absent parent”. The section provides, as relevant here:

“(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.”12 The Act does not offer any other definitions of assistance in this case. In particular there is no definition of “living in the same household”. The test has of course been discussed in this formulation and parallel formulations, such as “living together” in many court and tribunal decisions. It is essentially a question of fact.

The facts of this appeal

13 It is not in dispute that the three children of A and C were qualifying children in the period before that relevant to this appeal. Nor is it disputed that A was and remained the absent parent to those children (while they were qualifying children) while C was their person with care and with whom they were living.14 The tribunal decided on the evidence before it that A and C, who had separated in 2000, were reconciled in September 2002. From that time they lived together in the same household. The key findings of the tribunal on the evidence are:
“[5.5] I am satisfied that by 6 September 2002 [A] had returned to live with [c] and the children at [address]. This was not the first time that they had attempted a reconciliation. However, it was the first time that they had lived together in the same household. Their lives were fully integrated. [A] did not have another property or home. He lived with [C] and the children, in a relationship that could be described as husband and wife and father to his children… I am satisfied that they intended to reconcile, and they saw their future together as a couple. Unfortunately, it did not last. They had separated by the end of the year. [A] did return, but only because, as he explained, he had no where else to go.
[5.6] I make a finding of fact that between 2 September 2002 and around the Christmas period of 2002 [A] and [C] were living together as husband and wife, in the same household. Also living in the same household were their three children.”15 That finding is unambiguous. It was based on the sworn evidence of A given to the tribunal in the absence of C. C now protests that A’s evidence was not true and that the tribunal decision was not based on what actually happened. However, C did not attend the tribunal and A did. In those circumstances, as the tribunal itself said, it had uncontested sworn evidence of one party before it and no evidence from, or objection by, the other party. It was entitled to rely on that evidence at the hearing.16 The question now raised is whether it was right to do so on its findings. This is because the reconciliation was for a few weeks only – it was only a temporary reconciliation.If paragraph 16(1)(d) applies, then this short period of reconciliation should be ignored.However, if the children ceased to be “qualifying” children and paragraph 16(1)(b) applied to the exclusion of paragraph 16(1)(d), then the temporary nature of the reconciliation is irrelevant.17 Behind that is a further problem. How does paragraph 16 take effect? I have not set out here the full text of the paragraph as the rest is irrelevant to this appeal save for one point. Paragraph 16(1) provides that an assessment ceases to have effect. The balance of the paragraph provides for situations when the assessment must or may be cancelled. Cancellation requires a positive decision. What happens when there is a reconciliation but no decision?18 Part of the answer is in the Child Support (Information, Evidence and Disclosure) Regulations 1992. Regulation 6 provides that:
“Where a person with care with respect to whom a maintenance assessment has been made believes that, by virtue of section 44 or 55 of, or paragraph 16 of Schedule 1 to, the Act the assessment has ceased to have effect … she shall, as soon as reasonably practicable, inform the Secretary of State of that belief, and of the reasons for it, and shall provide any other information as the Secretary of State may reasonably require, with a view to assisting the Secretary of State in determining whether the assessment has ceased to have effect…”.
19 The wording of this regulation appears to link expressly with paragraph 16(1) as it echoes the term “ceased to have effect” and does not link with the other provisions in paragraph 16 referring to cancellation. This also suggests that the drafter expects the Secretary of State to make a determination about any cessation. This must be so because if the Secretary of State does not intend to make a determination then, at least arguably, Secretary of State has no power to seek further information, and the person with care no duty to assist.

The caselaw

20 The facts of this appeal and the approach of the tribunal below to them emphasise the problem in the drafting of paragraph 16 of Schedule 1. If this case is decided by reference to paragraph 16(1)(d), then the answer is clear. A and C did not live together for a continuous period of six months from September 2002. So under that provision there was no ground to end the maintenance assessment. But attention must also be paid to paragraph 16(1)(b). For there to be a maintenance assessment, there must be one or more qualifying children. And, arguably, for there to be a qualifying child the tests in section 3 are met. On the findings of fact here, after 2 September 2002 there were no qualifying children. All three children were, on the express facts, living together with both parents in the same household.But the Secretary of State had made no determination on this matter, as implied in the provisions above.21 The problem with these findings is obvious. Under paragraph 16(1)(b) the assessment must end immediately it is established that there are no qualifying children. Under paragraph 16(1)(d) we must wait six months. How is that conflict to be resolved?Not, in this case, by a determination by the Secretary of State because there had not been one.22 The tribunal made no findings about the procedural aspect of the appeal. The papers state that the decision under appeal was made on 8 05 2003. It was to the effect that A was liable to a nil assessment for his three children from the effective date of 2 05 2003. The appeal by A against this was not made until 22 07 2008. It appears to have been triggered by a decision dated 6 06 2008. It was admitted late. But it is not clear why. The formal submission from the Commission to the tribunal reports that “no request was made for a cancellation of the assessment at the time of the claim that the non resident parent and parent with care had reconciled in 2002. Therefore there is no record or evidence to support this point from this time.” The tribunal made no findings about this. But it had not been considered by the Secretary of State.

R(CS) 8/99

23 In this reported decision Commissioner Mesher dealt with the problem of the interpretation of paragraph 16(1), but not its operation. He took the view that, in effect, paragraph 16(1)(b) was to be considered separately from paragraph 16(1)(d). If the relevant children ceased to be qualifying children as defined in section 3 of the 1991 Act, then paragraph 16(1) operated. This was so whether or not the absent parent and person with care had been living together only for a short period. The Commissioner summarised his interpretation as follows:
“17 The appeal tribunal’s view, that “qualifying child” in paragraph 1691)(b) does not have the meaning given by its definition in section 3(1) of the Act, 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. However, I conclude that in the wider context of the Act as a whole such a departure cannot be justified.”
This decision was relied on by the tribunal below in this appeal.

SL v Child Maintenance and Enforcement Commission

24 This problem has been before the Upper Tribunal and its predecessor, the Child Support Commissioners, on more than one occasion since then. Most recently Upper Tribunal Judge Levenson considered it in SLvCMEC [2009] UKUT 270 (AAC) . The facts in that case were of a couple who were reconciled on a number of occasions after an initial decision to live apart. None of the reconciliations lasted six months. The judge was therefore faced with exactly the same conflict between paragraph 16(1)(b) and paragraph 16(1)(d) as in this appeal.25 The judge noted that several other decisions had been made about this problem. The first was by (then) Commissioner Rowland in CCS 4124 1997, the decision being made in 1998. It concerned a reconciliation of just over six months. This was followed by the reported decision of (then) Commissioner Mesher in R(CS) 8/99, in which CCS 4124 1997 was discussed. AS Judge Levenson noted, R(CS) 8/99 was followed by (then) deputy Commissioner Wikeley in CCS 1740 2005.26 Judge Levenson discussed the reasoning of the Commissioners in each of these three decisions in some detail. But he disagreed with the conclusions in both R(CS) 8/99 and CCS 1740 2005. He did so because:“[32] … the correct analysis is that paragraph 16(1)(b) is about there no longer being a qualifying “child”, rather than being about a particular child no longer “qualifying” …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) did 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 I 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 …”

The views of the Commission

27 In this appeal I heard legal argument only from the Commission. Mr Scoon submitted that in considering whether I should now follow the decision of Judge Levenson, or should instead revert to the previous authorities on the meaning of paragraph 16(1), I should consider how the alternatives would operate. He submitted that I should continue to follow R(CS) 8/99.28 At the same time, Mr Scoon submitted that I should find that the tribunal had nonetheless erred in law. And on this point he argued that Judge Levenson was right. The issue is whether a decision was needed to activate paragraph 16(1). In CCS 1740 2005, noted by Judge Levenson, the Commissioner commented that the paragraph operates as a matter of law and that no decision or determination was needed.29 In a submission I do not need to detail here, but which is set out fully in the papers, Mr Scoon argued that there must be a determination to give effect to the cessation of the assessment. It cannot just end. But at the same time this was not something brought within the “new” forms of decision-making taken into child support law from the Social Security Act 1998. So there was no requirement of a supersession and of consideration of its attendant provisions about form and date of effect. Fairness requires a decision to be made, not least so that there is an appealable issue between the two private parties involved in a child support dispute of this kind. He submitted that this followed from the requirements of natural justice and fairness, as reinforced by article 6 of the European Convention on Human Rights.

Conclusions

30 I must record that in considering this case I had the considerable benefit of the analysis by Mr Scoon, who has much experience in this area. But I heard no other legal argument. He asks me to follow R(CS) 8/99 in part only, and SLvCMEC in part only, recognising that the two cannot fully stand together. I have, in respect to his argument, set out the issues in this decision while not repeating the lengthy analysis undertaken in the decisions to which I was rightly referred.31 But, as often happens in these difficult cases, on reflection the problem appears here to be created by an entirely different issue. This is, or purports to be, a late appeal made in 2008 about an assessment in 2003 where the grounds of appeal relate to facts in 2002. How is it that the tribunal came to be asked to decide in 2009 about facts that occurred in 2002?32 I am told that the application to appeal was granted late. I have heard no argument about whether that grant was valid, or why it was admitted late. It is asserted in the submissions to the tribunal below that it was accepted under regulation 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. I do not see how that can have happened. Regulation 32 provides unequivocally that late applications can be allowed but that “no appeal shall in any event be brought more than one year after the expiration of the last day for appealing under regulation 31”. Regulation 31 requires that an appeal be made against a decision within, generally, one month.33 The assumption on which this appeal was based appears to be that the decision in question was a decision in 2003. This was a decision about the level of an assessment made, it was argued, after the events of 2002. I can see no ground in the papers on which it can be considered as an admissible appeal in 2008. However, as I say, I heard no argument on this point and the tribunal has not considered it. There appears to have been some other decision that triggered the application but I do not know the details. What is the alternative? The alternative is that no decision is needed. If so, perhaps by implication, it is arguable that there is no time limit on challenging the operation of paragraph 16. While that might be arguable, it is not what the Commission told the tribunal had happened.34 The problem of excessively late appeals is something not considered in any of the decisions to which I was referred. Nor was regulation 6 of the Information Regulations. But I must consider both as factors relevant to this appeal. Unless clear law requires it, it cannot be in the interests of any individual, or of the public, to have assessments or calculations of child support challenged many years later on the grounds of an alleged cessation when no one gave any notification of the relevant events at the time and no one, internally or externally, invited the Secretary of State or Commission to make any contemporary determination about an alleged cessation. Such an approach completely undermines the certainty of decision making in this vexed area and thwarts the operation of the finality rule in section 46A of the 1991 Act.35 I conclude from this that Mr Scoon is right to argue that there should be a decision or determination by the Secretary of State to trigger the application of paragraph 16(1) in connection with any particular child support maintenance assessment (or, now, calculation).It also triggers the start of the time limit for appealing. This may be based on an application to the Commission or a notification to the Commission under the provisions considered in this decision. Or it could be taken by the Commission under its more general powers. It is not a supersession but a determination of the circumstances that trigger paragraph 16. However, the appeal rules will then apply to it. For those reasons, I disagree with the comment that paragraph 16(1) can operate as a matter of law and without any decision or determination.36 On that basis, I must set aside the decision of the tribunal below. I do so because no consideration was given by the tribunal to the validity of the appeal before it, although the papers plainly suggest no valid permission could be given. The appeal must be referred to a new tribunal to consider if there is a valid appeal before it. I refer it to a tribunal to consider this as this should be considered in the light of any necessary findings of fact and with the benefit of submissions from the Commission and the representatives for A who made the late application to appeal and, of course, any comment from C or any representative for her.37 I should also indicate my view on what was originally the main issue in the appeal, although it may now be irrelevant. I find the arguments rehearsed by Judge Levenson persuasive. While my natural starting point is to follow a reported decision, I note that the Commissioner taking that decision rested his decision on the basis that the matter was plainly open to argument but was to be resolved by reference to the context of the provision within the Act as a whole. In this case I have had to consider aspects of that context not put in issue in that decision or, indeed, the other decisions that took a similar view to that decision. The outcome should be practical. It should require a determination by the Commission. That should take into account evidence taken from the parties under the Information Regulations. That suggests that there must be a determination. That should, in a case such as this, be based on the assumption that all parts of paragraph 16(1) were intended to have effect, in particular, in the context of the duty to inform the Commission about the circumstances.38 I therefore follow Judge Levenson in interpreting paragraph 16(1)(b) in a way that gives effect to paragraph 16(1)(d). The reference in that paragraph is to be interpreted as a reference to a “child” as defined in the 1991 Act and who is or may be “qualifying” rather than to the narrower definition of “qualifying child” in section 3. I consider that the problems rehearsed in earlier decisions about the suspensory effect of paragraph 16(1)(d) do not outweigh the other practical issues illustrated by this appeal. However, I do so conscious that this question may not arise for decision in this case for the reasons set out above.39 I make directions for further submissions to the tribunal at the start of this decision.

David Williams

Upper Tribunal Judge

8 12 2010

[Signed on the original on the date stated]

Cited in 1 later judgment