GR CCS 1875 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 10 March 2011 |
| Neutral Citation | 2011 UKUT 101 AAC |
| Subject Matter | Child support |
| Respondent | CMEC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 1875 2010 |
| Appellant | GR |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
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.
The Upper Tribunal is in a position to re-make the original decision under appeal. The decision that the First-tier Tribunal should have made is as follows:
The father’s appeal to the First-tier Tribunal against the Secretary of State’s decision of 13 July 2009 that he was liable to pay £56.99 per week in child support maintenance under the 1991 Act with effect from 6 July 2009 is allowed.
The Secretary of State’s decision of 13 July 2009 is accordingly revised. The father’s application for a supersession decision should have been allowed. As from 1 January 2007, S’s grandmother Mrs P was no longer a “person with care” in respect of her within section 3(3)(b) of the 1991 Act. The maintenance calculation under the 1991 Act therefore ceased to have effect from 1 January 2007 (Child Support Act 1991, Schedule 1, paragraph 16(4) and Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), Schedule 3D, paragraph 3 (as amended)).
This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The issues in this appeal
1. At one level, the issue in this appeal is straightforward. To use the stilted terminology of the Child Support Act 1991, a “person with care” (who, of course, may or may not also be a parent) may make an application for child support maintenance against the “non-resident parent” in respect of a “qualifying child” under section 4 of the Act. A “person with care” is defined (in part) as a person “who usually provides day to day care for the child (whether exclusively or in conjunction with any other person)” (section 3(3)(b)). The meaning of that underlined expression is at the core of this appeal.
2. At another level, the issues in this case are far from straightforward. The circumstances of this case are extremely unusual. They may not have been in the contemplation of those who drafted the 1991 Act. I should also make it clear that the fact that I am allowing the father’s appeal to the Upper Tribunal is no reflection at all on the commitment of the grandmother to the welfare of the child in question. I appreciate that she (and her husband) will be upset by the outcome of this appeal, but by the end of this (necessarily rather lengthy) decision I hope she will understand why I have felt compelled to decide this appeal in the way that I have.
The people involved in this case
3. To preserve their privacy, I refer to those involved in this case as follows:
CMEC is the Child Maintenance and Enforcement Commission, which has
taken over the role of the Child Support Agency (CSA)
Mrs P is the maternal grandmother of the child in question
Mr R is the father of the child in question
S is the child in question
Mr and Mrs T are the English couple now living in the United States.
4. I should add that I accept that S’s maternal grandfather, Mr P, is as equally committed to S’s welfare as his wife, Mrs P. However, the Child Support Agency had designated Mrs P as the “person with care”, and so for the most part I refer to her in the singular.
A summary of the background to the present appeal
5. S was born in May 1993, so today she is almost 18. Her parents separated before she was born and it appears that Mr R had no contact with S. Sadly S’s mother died when S was just four years old. S went to live with her maternal grandparents, Mr and Mrs P, who were appointed her guardians under the Children Act 1989 and a residence order was made in their favour. She went to a local school. Mr R made an application in the county court for a contact order, but withdrew that application in late 1998. In 2003, when S was nearly 10, she was diagnosed as being severely dyslexic. In or about 2004 Mr and Mrs P, with the approval of the county court, arranged for S to attend a specialist school in the United States and, when doing so, to stay with friends of their late daughter, Mr and Mrs T, an English couple who had emigrated to the USA some years previously.
6. S settled into a pattern of living with Mr and Mrs T in the USA for 50 weeks of the year and returning to stay with Mr and Mrs P in the UK for a fortnight each year. Mr and Mrs P also visited the United States for a fortnight each year to see their granddaughter. They kept in regular telephone contact. Mr and Mrs P sent Mr and Mrs T the child benefit and child support they received for S, along with a contribution from their pension, to help pay for S’s school fees. It does not appear to be in dispute that the bulk of those fees were met by Mr and Mrs T, in what the First-tier Tribunal rightly described as “an act of exceptional generosity”.
The history of the child support application and the CSA decision under appeal
7. The earliest child support maintenance assessment on file appears to date from August 2000, when S was living with her grandparents and attending a local school. Over the next few years there were a series of changes to the maintenance assessment, leading to an assessment that Mr R was liable to pay £85.82 a week in child support as from 10 May 2004. This was around the time that S first went to the United States.
8. On 10 July 2009 Mr R asked the CSA to review the maintenance assessment on the basis of a change in S’s circumstances.
9. On 13 July 2009 a CSA decision maker superseded the 2004 maintenance assessment and decided that Mr R’s child support liability was now £56.99 a week as from 6 July 2009. Mr R queried the new assessment.
10. On 26 August 2009 the CSA replied to Mr R’s representative in the following terms:
“You have enquired as to why the case has not been closed because the qualifying child S has been living in the United States since 2004. I can advise the qualifying child S has been/is in full time non advanced education in the United States and therefore is treated as a special case. Mrs P (person with care) still has full responsibility for S and would normally provide day to day care for the child.”
11. That CSA explanatory letter cited regulation 27A (a typographical error for regulation 27) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (SI 1992/1815) (the “MASC Regulations”). Regulation 27 deals with children who are boarders or hospital in-patients. All parties are in agreement that regulation 27 was irrelevant at the time in question.
12. Mr R lodged an appeal against the decision of 13 July 2009. He argued that the decision was wrong on two grounds: first, that S was not a boarder, and, secondly, that she was resident in the United States and so outside the UK jurisdiction. He continued:
“Mrs P, the grandmother, is resident in the UK. S lives in the USA with Mr and Mrs T. She attends school as a day pupil and does not return to the UK for holidays. The legislation relied upon by the CSA does not apply because S is out of the UK jurisdiction therefore the case should be closed from 2004. Also Mrs P cannot provide day to day care as she is in the UK whilst S is in the US.”
The First-tier Tribunal’s hearing, decision and reasons
13. The Middlesbrough First-tier Tribunal heard the father’s appeal on 19 April 2010. The father attended with his representative, Mr M. Smith of Durham Legal Services. Mr and Mrs P also attended as did a CSA presenting officer.
14. The First-tier Tribunal dismissed the father’s appeal. The tribunal judge issued a statement of reasons for his decision. He made detailed findings of fact, the main points of which are summarised above, and gave extensive reasons which undoubtedly testify to the judge’s careful consideration of the issues. I have only interfered with his decision with considerable reluctance.
15. The tribunal judge rightly focussed on the central issue as being whether Mrs P was at the material time (in July 2009) a “person with care” in respect of S. He referred to section 3(3) of the Child Support Act 1991 which states that:
“(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...
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