GR v CMEC (CSM) [2011] UKUT 101 (AAC)

UKUT-AAC
GR v CMEC (CSM)
[2011] UKUT 101 (AAC) · 2011-03-10
[47]In my view this analysis has now been given added force by the observations of Baroness Hale of Richmond in R (on the application of Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 . Although Baroness Hale delivered a dissenting speech in terms of the outcome of that appeal, which concerned the right to enforce child support awards, her comments at paragraph 72 are in my view of general application:
“The children's carer has a direct and personal interest in enforcement which the Agency, however good its intentions, does not. Even in benefit cases, where the state does have a direct interest in enforcement, it is not the sort of interest which stems from needing enough money to feed, clothe and house the children on a day to day basis. Only a parent who is worrying about where the money is to be found for the school dinners, the school trips, the school uniform, sports gear or musical instruments, or to visit the 'absent' parent, not only this week but the next and the next for many years to come, has that sort of interest. ” 48. It follows from this analysis that rather than considering who had (in legal terms) parental responsibility for S, and effectively using that as a proxy for being the person with care, the tribunal should have focussed on who was providing the hands-on care or the “immediate, short-term and mundane aspects of care” (R(CS) 11/02, at paragraph 19), bearing in mind that “child support law is concerned with maintenance and the costs of bringing up a child are more related to the aspects of day to day care as I have analysed it than to the longer-term decisions about upbringing” (R(CS) 11/02, at paragraph 24). As I postulated at the oral hearing, it is about who puts food on the table, washes the child’s clothes, deals with the letters from school and reads a bedtime story. 49. It follows that I conclude that the First-tier Tribunal’s decision involves an error of law. It was wrong in law to conclude that “day to day care for the purposes of the Act means legal responsibility for the welfare of a child”
. Rather, the meaning of “day to day care” for the purposes of section 3(3)(b) carries the same practical connotations as Mr Commissioner Jacobs set out in R(CS) 11/02, albeit not subject to the 104 night rule which is contained in regulation 1(2) of the MASC Regulations and which applies for the purpose of those specific rules governing various special cases such as shared care. (3) The tribunal’s conclusions on the facts 50. The First-tier Tribunal found that “S’s day to day requirements are provided by Mr and Mrs T who, the Tribunal find, act as agents for Mr and Mrs P... The ultimate legal responsibility is with the English court which has approved Mr and Mrs P as entitled to exercise legal responsibility for S’s welfare.” 51. Mr Smith’s argument, in short, was that the tribunal had both applied the wrong test in law and reached a decision which, on the facts, no reasonable tribunal, properly directing itself, could have arrived at. 53. I confess that initially I was much attracted by Mr Cooper’s argument. At the outset I thought that it might be possible to uphold the tribunal’s decision on the basis that Mr and Mrs T in the United States and Mr and Mrs P in England were together providing day to day care for S, and that as the 104 nights rule applied only under the MASC Regulations, there was no reason why Mrs P might not be a “minority” person with care for the purposes of section 3(3)(b). 54. On reflection, however, I have reached the conclusion that the tribunal not only applied the wrong legal test but, had it applied the proper legal test, it had reached a decision which could not be sustained. I have reached the conclusion for three main reasons. 55. First, the test under section 3(3)(b) is of “day to day care”. The expression “day to day” itself is a matter of ordinary English usage. According to the Shorter Oxford English Dictionary , “day to day” means “continuously without interruption”. Synonyms for “day to day” are words such as everyday, habitual, routine and usual. Mr and Mrs P plainly took a very close interest in their granddaughter’s welfare but that did not mean that they were providing “day to day care”, given that sense of the term “day to day”. 56. Secondly, the tribunal’s conclusion that Mrs P was a “person with care” in respect of S robbed a key word in the definition of “person with care” in section 3(3)(b) of any real meaning: that word was “usually”. Mr Smith suggested that “usually” meant “generally” or “as a rule”. The Shorter Oxford English Dictionary defines “usually” as “in a usual or wonted manner; according to customary, established or frequent usage; as a rule”. The question posed by section 3(3)(b) was this: who usually provided day to day care for S at the material time? The only sensible answer to that question was that it was Mr and Mrs T. Mrs P plainly had parental responsibility for S (together, of course, with Mr P), she was doubtless consulted over S’s welfare, and she certainly made a financial contribution towards S’s school fees, but the reality was she from time to time or occasionally and not usually provided day to day care for S. In my view the Commission’s decision maker at the outset asked themselves the wrong question, namely who would normally provide S with day to day care (see paragraph 10 above). Absent the special arrangements for S’s education, there is no doubt but that Mrs P would “normally” provide S with day to day care. However, the test under section 3(3)(b) is who actually and usually provides day to day care in practice. 57. Thirdly, whilst acknowledging that “S’s day to day requirements are provided by Mr and Mrs T”, the tribunal’s decision was predicated on its finding that Mr and Mrs T were acting as agents for Mr and Mrs P. There is no doubt that in a broad sense Mr and Mrs T were indeed acting as agents for S’s grandparents. However, as explained above, the focus of the test for day to day care under section 3(3)(b) is on the provision of the “immediate, short-term and mundane aspects of care”. By the time in question, Mr and Mrs T were the practical day to day care providers. It is noteworthy that in R(CS) 11/02, Mr Commissioner Jacobs concluded on the facts that the non-resident parent in that case was not exercising “day to day care” over his child for the handful of nights when she was staying with other relatives. The degree of separation in the present case is clearly much more significant. There was also no suggestion in R(CS) 11/02 that any notion of agency could impute the day to day care provided by other relatives to the father so as to enable him to surmount the 104 night hurdle. 58. Accordingly I conclude that at the material time, had it directed itself properly according to the relevant law, the only decision the tribunal could have reached on the facts it had found was that Mrs P was not usually providing day to day care for S. Accordingly she did not fall within the definition of “person with care” under section 3(3)(b) of the Child Support Act 1991. A thought experiment: what if S lived with friends at the other end of the UK? 59. A simple thought experiment, or hypothetical example, provides support for the conclusion arrived at above. Assume a scenario in which the facts are exactly the same as in the present case with the sole exception that Mr and Mrs T (“the de facto foster parents” for the purposes of this example) live not in the United States but in England, but at the other end of the country from Mr and Mrs P (“the grandparents”), and that S attends a school near Mr and Mrs T and lives with them for all bar two weeks of the year. This would mean they were habitually resident in the UK and so able to apply for child support in their own right. What then would the position under the Child Support Act be? Who would be the person with care for the purposes of making a claim against the father? 60. The 1991 Act clearly contemplates that a child may have more than one home: indeed, section 42(2)(e) expressly permits regulations to be made covering the situation where “a qualifying child has his home in two or more separate households”. So in this scenario both the de facto foster parents and the grandparents would be persons “with whom the child has [her] home” within section 3(3)(a). The next question would be who usually provided day to day care for the child within section 3(3)(b). The only answer to that question would be the de facto foster parents. They usually provided day to day care for the child in conjunction with the grandparents and the grandparents occasionally provided day to day care for the child in conjunction with the de facto foster parents. 61. On that basis, the de facto foster parents would be the persons with care, not the grandparents. It is difficult to see as a matter of logic how the grandparents’ position should be any different or “better off” because the de facto foster parents happen to be living in the United States in the present case. 62. However, would the position be any different in this alternative scenario if the threshold for “usually” is properly judged to be lower and both the de facto foster parents and the grandparents were found to be persons with care within section 3? The legal position would then fall to be decided by reference to the special cases provisions in the MASC Regulations. The only possible provision that might apply is regulation 24, which deals with the situation where “ two or more persons who do not live in the same household each provide day to day care for the same qualifying child”, where neither carer is a parent. However, that provision only applies where both carers provide “day to day care” within the meaning of regulation 1(2). In other words, both sets of carers would have to meet the 104 nights rule. As the grandparents would not do so, the case would not be a special case for the shared care rule under regulation 24. Again, it is hard to see how the position of the grandparents can be improved by the fact that the other carers are actually in the United States. 63. In this respect there is a certain logic or symmetry in the child support scheme. A non-resident parent, subject to the old scheme, who has day to day care of his child for less than 104 nights a year is subject to a full child support liability with no discount for his actual shared care (as was the case in R(CS) 11/02). This hypothetical example shows that similarly a carer who does not meet the 104 nights a year test will likewise not be eligible to claim child support, despite the fact they do provide some care for the child in question. The child benefit issue 64. I have not overlooked the fact that Mrs P received (and indeed may well still receive) child benefit for S. Receipt of child benefit may be a relevant factor but again cannot be determinative. The reason for this is that the test of entitlement to child benefit is different. The principal condition for that benefit is that the adult concerned “is responsible for” the child (Social Security Contributions and Benefits Act (SSCBA) 1992, section 141). Moreover, a person is responsible for a child for child benefit purposes if he or she either has the child living with him in the week in question or (subject to certain conditions) is contributing to the cost of providing for the child (SSCBA 1992, section 143(1)). The basis of the award of child benefit to Mrs P in the present case is not entirely clear, but it could plainly be justified on the latter ground. If it was on the former ground, the statutory test is different to that of “day to day care”. The habitual residence issue 65. I have also not overlooked the question of S’s habitual residence. In his original application, Mr R suggested (in as many words) that S was no longer habitually resident in the UK. If so, of course, the Commission would not have jurisdiction to make a child support maintenance calculation (Child Support Act 1991, section 44(1)(c)). That argument does not appear to have been pursued before the First-tier Tribunal and was certainly not argued before the Upper Tribunal. In the circumstances of this appeal it is not appropriate to re-open that issue. I just observe that it is possible as a matter of law to be habitually resident in two jurisdictions at the same time. There is also the argument that a child takes her habitual residence from the person with whom she lawfully lives, in which context a court order may be relevant. I also note Mrs P’s point that today S remains a British citizen and is in education in the United States subject to visa requirements which prohibit her from engaging in paid work there. 66. It follows from the reasons above that Mr R’s appeal must be allowed. The decision of the Middlesbrough First-tier Tribunal dated 19 April 2010 under file reference 185/09/01964 involves an error on a point of law. The First-tier Tribunal’s decision is therefore set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. 67. Having set aside the tribunal’s decision, I must either remit the case to the First-tier Tribunal for re-hearing or “re-make the decision” myself (section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007). It is not sensible to remit the case for re-hearing, given the time that has elapsed and as it is highly unlikely that any new evidence will emerge (and there is always the risk that any new evidence will be coloured by the likely consequences). I therefore proceed to re-make the decision myself. 68. The Commission’s decision under appeal to the First-tier Tribunal was its decision of 13 July 2009 that Mr R was liable to pay £56.99 per week with effect from 6 July 2009. That latter date was selected as the decision followed the father’s request for a supersession on 10 July 2009, and the normal rule is that a supersession decision takes effect from the beginning of the relevant maintenance period (in practice the week in which the application was made): see section 17(4) of the Child Support Act 1991. 69. For the reasons above, my decision is that there was no jurisdiction at that date to make that maintenance calculation as Mrs P was not a “person with care” with respect to S. Paragraph 16(4) of Schedule 1 to the Child Support Act 1991 provides as follows: “ Where the Secretary of State is satisfied that the person with care with respect to whom a maintenance assessment was made has ceased to be a person with care in relation to the qualifying child, or any of the qualifying children, with respect to whom the assessment was made, he may cancel the assessment with effect from the date on which, in his opinion, the change of circumstances took place.” 70. A termination decision under paragraph 16 requires a revision or supersession decision to give it effect ( SL v Child Maintenance Enforcement Commission (CSM) [2009] UKUT 270 (AAC) at paragraphs 24-28). As the present case concerns a change in circumstances, a supersession rather than a revision decision is appropriate. The question then is when the supersession decision should take effect. The general rule is as at the date of the application: see section 17(4) of the Child Support Act 1991, referred to above. 71. However, there are exceptions to this general rule, as provided for in regulations made under section 17(5) of the 1991 Act. In particular, paragraph 3 of Schedule 3D to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (as inserted by regulation 4 of the Child Support (Miscellaneous Amendments) Regulations 2009 (SI 2009/396)) deals with certain situations where (according to the heading) the “ Decision [is] backdated to when the change occurred”. 72. Paragraph 3(b) provides that: “Where the ground for the supersession decision is that a relevant change of circumstances of the following kind has occurred, the decision takes effect from the beginning of the maintenance period in which the change occurred— … (b) the person with care ceases to be a person with care in relation to a qualifying child…” 73. So the critical issue is the date when the change occurred, i.e. the date on which Mrs P ceased being a person with care for the purposes of section 3 of the Child Support Act 1991. Mr R, of course, has sought to argue that that change took place right back in 2004. I do not think that can be right, as plainly Mrs P was very much a person with care immediately before S’s first trip to the United States and she did not cease meeting the test under section 3(3)(b) overnight. What is “usual” is a question of fact but takes time to evolve. Equally I do not think it can be right that Mrs P’s status as a person with care did not cease until July 2009, when the father made his application. 74. This is ultimately a question of fact in the light of all the available evidence in the case. On the basis that S first went to the United States in 2004, I think it is fair to say that by the end of 2006 the point had come by which it was not possible to say that Mrs P continued to meet the statutory test for a person with care under section 3(3)(b). I accept that there is an element of arbitrariness about selecting such a time, but this is the best that can be done on the evidence. I also take into account the continued contact between S and her grandparents and S’s age in making that decision. I therefore conclude that Mrs P ceased being a person with care by 31 December 2006. The result is that the statutory child support liability ceased on that date. As from 1 January 2007 Mrs P was no longer a person with care. Other types of child maintenance 76. In making such an order the court must have regard to a number of factors (see paragraph 4 of Schedule 1), although in practice the child support formula under the 1991 Act may be used as a benchmark ( GW v RW [2003] EWHC 611 (Fam) ). Although orders under Schedule 1 normally cease on a child’s 18 th birthday, they can go beyond that date in special circumstances (see paragraphs 2 and 3). In certain cases the court may even make an order where the child is found to be living outside England and Wales (paragraph 14). It may well be that one way of looking at any child support paid since January 2007 is that it reflects a liability under Schedule 1 to the Children Act 1989. While such issues are outside the jurisdiction of the First-tier and Upper Tribunal, they are an important part of the background to this case. 77. For the reasons explained above, the decision of the tribunal involves an error of law. The Upper Tribunal therefore allows the father’s appeal and sets aside the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The Upper Tribunal re-makes the decision in the terms set out at the start of these reasons (section 12(2)(b)(ii) of the 2007 Act). Signed on the original Nicholas Wikeley on 10 March 2011 Judge of the Upper Tribunal

Cited in 3 later judgments