CCS 1664 2007
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 25 January 2008 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 1664 2007 |
| Subject Matter | Child support |
CCS/1664/2007
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision as Child Support Commissioner is as follows. It is given under section 24(2) of the Child Support Act 1991
The decision of the Cambridge appeal tribunal held on 19 February 2007 under reference 140/06/00345 is wrong in law. It follows that I set aside the tribunal’s decision.
In addition to setting the tribunal’s decision, by virtue of section 24(3)(b) of the Child Support Act 1991 I substitute my own decision as the one that the tribunal should have made on the appeal before it:
The father’s appeal against the Secretary of State’s decision of 16 August 2006 that he was liable to pay £27 a week as from 26 June 2006 is allowed and the decision of the Secretary of State revised in part. The correct effective date for this maintenance calculation was 6 April 2006. The amount of income by way of WTC payable at that date was £101. That income should be attributed to the period from 6 April 2006 to 17 July 2006 only. The matter is remitted to the Secretary of State to make the necessary calculations and implement the revised decision. The Secretary of State should then follow this revised decision with a supersession decision on the ground of change of circumstances from the date on which WTC entitlement ceased.
In the event of any dispute as to the consequential calculations flowing from this decision, the matter may be referred back to myself for final determination, or to any other Commissioner should I be unavailable.
There is, however, an important matter of unfinished business, which I explain further below. In short, the father still has an outstanding appeal to a tribunal relating to an earlier period that has not been determined.
The terminology used in the Commissioner’s decision
2. In the terminology of the child support legislation, the appellant is the non-resident parent under the maintenance calculation, the first respondent is the Secretary of State and the second respondent is the parent with care. For convenience, however, I shall refer to them as the father, the Secretary of State and the mother respectively.
The central issue in this appeal
3. The central issue at the heart of this appeal concerns the complicated interaction of the child support and tax credits systems. In summary, the Child Support Agency (CSA) calculated the father’s child support liability for a period from June 2006 on the basis that his total income from working tax credit (WTC) for that tax year (2006/07) was £101. However, Her Majesty’s Revenue and Customs (HMRC) had also decided that the father had been overpaid WTC for the previous tax year (2005/06) by some £1,235.10, which the father had repaid in a lump sum, it seems in the course of the 2006/07 tax year.
4. The question for the tribunal in this case is this: was the child support assessment as from June 2006 correctly based on the figure of an income from tax credits of £101? Or should that assessment have been adjusted to reflect the fact that the father’s tax credit entitlement for the previous tax year had been adjusted and that he had repaid £1,235.10?
A brief background to the case
5. It is clear from the file that there has been some uncertainty about the sequence of decisions in this matter. For the purposes of the present appeal the material facts are as follows. On 16 August 2006 the Secretary of State notified the father that he was liable to pay £27 a week in child support for his son from what was said to be the effective date of 26 June 2006 (see print-out at doc 65).
6. In a letter dated 25 September 2006 the father appealed “against the CSA decision not to include the sum of £1249.39 demanded from and paid back to the Working Tax Credit office” (doc 17). (This figure actually appears to have comprised the £1,235.10 overpayment for 2005/06 and an overpayment of £14.29 for another period). The CSA rejected the father’s arguments in its letter dated 10 November 2006 (doc 9). The father reiterated his arguments in a letter dated 17 November 2006 (doc 11). On 25 November 2006 the CSA obtained confirmation that the father had been paid £101.00 in total in tax credits between 6 April 2006 and 17 July 2006 (a period that included the effective date), when his claim ended (docs 13-14).
The decision of the appeal tribunal
7. The Cambridge tribunal heard the father’s appeal on 19 February 2007. The tribunal consisted of a lawyer member and an accountant member. The father attended with his representative; a CSA presenting officer was also present. The mother did not attend.
8. The appeal tribunal disallowed the father’s appeal, ruling that the father remained liable to pay £27 a week in child support with effect from 26 June 2006. In its short decision notice, issued on the day (doc 38), the tribunal made two findings. The first was that the tribunal decided that as at the effective date of 26 June 2006 the sum of £101 in WTC had been correctly included for the 2006/07 tax year as part of the father’s income. The second finding was that the father’s WTC repayment of £1,249.39 related to an earlier period, prior to 6 April 2006, and could not be retrospectively taken into account in relation to the decision under appeal before the tribunal.
9. The tribunal chairman subsequently issued a statement of reasons for the tribunal’s decision (doc 41-42), explaining the tribunal’s findings and reasons in a little more detail. On the issue relating to the WTC overpayment and repayment, the tribunal reasoned simply as follows: “For Child Support purposes, in [the father]’s hands tax credit was income and its legislation does not provide for retrospective payments paid in excess”.
The appeal to the Child Support Commissioner
10. The father now appeals to the Child Support Commissioner, with the permission of a tribunal chairman. The father’s representative has elaborated on the grounds of appeal put to the tribunal (docs 44, 47, 50-51). The mother continues to take no part in these proceedings – her only, and pointed, observation is that the appeal is a “waste of taxpayers’ money” (doc 71). That may or may not be so, but it is the Commissioner’s role to determine appeals on points of law.
What is the rate of the tax credit “payable at the effective date”?
11. The assessment of the father’s income was governed by the rules set out in the Schedule to the Child Support (Maintenance Calculation and Special Cases) Regulations 2000 (SI 2001/155). So far as income from tax credits is concerned, at the material time, paragraph 11(1) of the Schedule read as follows:
“Working tax credit
11. - (1) Subject to sub-paragraph (2), payments by way of working tax credit shall be treated as the income of the non-resident parent where he has qualified for them by his engagement in, and normal engagement in, remunerative work, at the rate payable at the effective date.”
This appeal turns on the meaning of the phrase “at the rate payable at the effective date”. Nothing turns on sub-paragraph (2) of regulation 11 in the context of this appeal.
12. The father’s representative argues that “the rate payable at the effective date” in June 2006 must take into account not just the actual £101 payment of tax credits but also the repayment in respect of the previous year’s overpayment of WTC. I am not persuaded by the three particular arguments advanced by the father’s representative in the context of this appeal.
13. His first argument is that “payable” in paragraph 11 means payable in the sense of what is legally entitled to be paid, citing the venerable authority of a statement of Sir James Romilly MR in the nineteenth century decision of Howard v James (1860) 28 Beav 523 at 528-529. I have to say I do not find the decision of Howard v James especially helpful in the present context.
14. As the Court of Appeal observed in Morton v Chief Adjudication Officer [1988] I.R.L.R. 444, also reported as R(U) 1/88, a case turning on the meaning of “payable” in relation to unemployment benefit: “The word ‘payable’ is not a term of art… It is a word which is capable of bearing different meanings in different contexts.” In that case the Court of Appeal ruled that an industrial tribunal award was “payable” if it was “due and owing” at that time, even if there was scant prospect of the award actually being met as the employer was in liquidation. I note, however, that Slade L.J. added one rider to his judgment, namely that “if the award in any case were to be followed by an appeal, the sum awarded would, I think, cease to be ‘payable’ if there was either an order staying payment of the original award, or the appeal was allowed”. I return to this point later.
15. I should add that I have also considered the decision of Mr Commissioner Jacobs in CCS/4378/2001. There the Commissioner...
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