CCS 13462 1996
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 13 May 1998 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 13462 1996 |
| Subject Matter | Child support |
R(CS) 6/99
Mr. J. Mesher CCS/13462/1996
13.5.98
Application for maintenance - undertaking in preamble of court order to make maintenance payments to children - whether a ‘maintenance order’ is in force
The parent with care (PWC) made an application under section 4 of the Child Support Act 1991 which resulted in an interim maintenance assessment. That was cancelled when a maintenance assessment was made. The PWC appealed against the cancellation and against the basis of the assessment to a tribunal, which found inter alia that a court order had been made on 15 June 1993 but that it had no bearing on the effective date of the assessment. On application by the PWC, the Commissioner granted leave to appeal to consider the effect of the court order and contemporaneous undertakings, and specifically whether there was in force a “maintenance order” within the meaning of section 8(11) of the Child Support Act 1991 so that an application under section 4 of the Act was precluded by paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992. Section 8(11) defines a maintenance order as “an order which requires the making or securing of periodical payments to or for the benefit of the child” and is made under specified legislation
In the preamble to the court order of 15 June 1993 it was recited that the absent parent undertook to continue to pay periodical payments of £10 per week to each child of the family
Held, allowing the appeal, that
1. undertakings may for some purposes be treated in the same way as orders, especially where the undertaking is an integral part of the order, although there are important differences in their nature (e.g. the requirement to carry out an undertaking stems from the undertaking, not the order) (paragraphs 8 to 19);
2. section 8(11) of the Act, however, reflects the distinction between undertakings and orders so as to exclude obligations arising out of undertakings, even where the undertaking is an integral part of the order;
3. the tribunal did not therefore err in law by failing to find that no valid application for maintenance had been made by reason of the existence of the court order.
The Commissioner thereafter identified errors of law relating to the basis of the assessment and cancellation of the interim maintenance award and remitted the case to a fresh tribunal.
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. The parent with care’s appeal is allowed. The decision of the Leeds child support appeal tribunal dated 12 December 1995 is wrong in law, for the reasons given below, and I set it aside. The case is referred to a differently constituted child support appeal tribunal for determination in accordance with the directions given in paragraph 28 below (Child Support Act 1991, section 24 (3)(c)).
2. The child support officer’s second‑tier review decision which was before the appeal tribunal was to make an assessment of child support maintenance against the absent parent from 22 October 1993. The assessment was for varying amounts from succeeding dates, finally from 8 July 1994. That assessment replaced one for a smaller amount from 6 January 1994.
3. The course of events had been that a maintenance enquiry form (MEF) had been sent by the Child Support Agency (CSA) to the absent parent, according to conflicting computer records either on 23 October 1993 or on 25 October 1993. That was sent to the address for the absent parent given to the CSA by the parent with care. As the MEF had not been returned, the CSA on 19 November 1993 sent a notice to the absent parent that if the required information was not received before 11 December 1993 an interim maintenance assessment would be made. The absent parent has said that this was the first he knew of the involvement of the CSA and that he had not received the MEF. He had moved from the address to which it had been sent in early October 1993. The absent parent telephoned the CSA some time in December 1993, bringing to their attention the existence of a court order dated 15 June 1993, but that was not before an interim maintenance assessment at the rate of £98.49 per week had been made on 13 December 1993. I am not sure from the records what effective date was initially set for the interim maintenance assessment, but on 31 December 1993 it was said to be incorrect and was changed to 11 December 1993. Following further communication from the absent parent, another MEF was sent to him on 6 January 1994. This was completed and returned. A child support officer (CSO) cancelled the interim maintenance assessment and on 21 April 1994 made the maintenance assessment with the effective date of 6 January 1994, which was then revised on second‑tier review on 12 December 1994. The difference in the effective dates reflected which of the MEFs was used.
4. The parent with care appealed against the second‑tier review decision. The points she raised were that she disagreed with the withdrawal of the interim maintenance assessment, she disagreed with the calculation of the absent parent’s income and housing costs, which she said had been manipulated by him in his favour, and that the absent parent had a partner who was living with him.
5. Both parents attended the hearing before the appeal tribunal on 12 December 1995. The appeal tribunal allowed the parent with care’s appeal, but only to the extent of remitting the case with directions that an undisputed error in apportioning her housing costs should be corrected and that the effective date of the maintenance assessment should be 25 October 1993 rather than 23 October 1993.
6. The appeal tribunal’s findings of fact were as follows:
“1. There is a conflict of evidence as to whether the original MEF was received by [the absent parent]. The CSO has investigated and has taken the view that it was received. The assessment has been conducted on that basis.
2. There is some evidence that [the absent parent] may have sought to maximise his housing costs. The CSO has not challenged this, but housing costs are capped under regulation 18(1) MASC Regulations 1992.
3. [The absent parent] has received £20,500 in respect of his share in the former matrimonial home. Some of this has been spent on refurbishment of his house. He has paid £205 off his mortgage.”
Its reasons for decision were as follows:
“1. The MEF could not have been “given or sent” to [the absent parent] on Saturday, 23 October 1993.
2. The CSO has previously obtained a P60 in respect of [the absent parent] and the calculation of wages is based on this, following the review conducted on 12 December 1994.
3. The CSO, having made an investigation has concluded that [the absent parent] received the original MEF. The effective date is now therefore 25 October 1993. There is no basis on which to alter this decision. Equally the CSO has now seen fit to cancel the interim assessment from 6 January 1994, when sufficient information about [the absent parent’s] financial circumstances was available. This was within the regulations (regulation 9(3) CS(MAP) Regulations). Following a section 18 review the CSO has back‑dated the revised assessment to the effective date (presumably under regulation 31(9) MAP Regulations). Again there is no basis for a contrary direction.
4. Regulation 18(1)(e) MASC Regulations is inapplicable. The fact that [the absent parent] has not used the substantial sum received in April 1995 in respect of his interest in the former matrimonial home in order significantly to reduce his present mortgage creates an inference that his present housing costs are not inflated “by virtue” of the previous unavailability of that lump sum. Regulation 18(1) should continue to apply.
5. The court order (made on 15 June 1993) is not specified for the purposes of section 10(1) CSA and regulation 3 MAJ Regulations 1992. Accordingly its existence does not have a bearing on the effective date.”
7. The parent with care applied for leave to appeal to the Commissioner. The grounds put forward were that there should be a full re‑assessment of the absent parent’s housing costs, weekly earnings and cohabitation status and that payment of the amount of the interim maintenance assessment should be made. The chairman of the appeal tribunal refused leave. However, I granted leave on 26 April 1996 because it seemed to me that it was arguable that a different error of law had been made.
8. The major issue in the appeal is the effect of the court order found by the appeal tribunal to have been made on 15 June 1993. It is of crucial importance because, if there was in force “an order which requires the making or securing of periodical payments to or for the benefit of” a child made under specified legislation including Part II of the Matrimonial Causes Act 1973 (definition of “maintenance order” in section 8(11) of the Child Support Act 1991) , there would not merely be an effect on the effective date of...
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