JF CCS 506 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 01 May 2013 |
| Neutral Citation | 2013 UKUT 209 AAC |
| Subject Matter | Child support |
| Respondent | Secretary of State for Work and Pensions and DB and DB (CSM) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 506 2012 |
| Appellant | JF |
[2014] AACR 3
(JF v Secretary of State for Work and Pensions and DB (CSM)
[2013] UKUT 209 (AAC))
Judge Wikeley CCS/506/2012
1 May 2013
Child support – receipt of benefit – whether young person is “a person in respect of whom child benefit is payable” – the meaning of the word “payable” – whether child benefit properly in payment
The appellant’s son lived with the mother (the resident parent). The appellant agreed to pay child support while his son was attending college. In December 2009 the son completed the first year of his City & Guilds course but did not return to college until September 2010. Child benefit continued in payment throughout this period. In March 2011 the son turned 19 years of age whereupon child benefit was stopped and the child support maintenance calculation closed. The appellant appealed against the decision that he was liable to pay child support for the period when his son was not attending college. The First-tier Tribunal (F‑tT) decided that the son qualified as a child under section 55(1) of the Child Support Act 1991, as child benefit remained in payment (it held that “payable” meant “actually paid”). The key issue before the Upper Tribunal (UT) was whether the word “payable” within the context of child support law meant that child benefit was (i) actually paid, (ii) payable under an award, whether that award was right or wrong, or (iii) properly or lawfully payable.
Held, allowing the appeal, that:
- in the present case the word “payable” in the phrase “a person in respect of whom child benefit is payable” in paragraph 1A of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000 (as amended) meant “properly or lawfully payable”. This was consistent both with the usual meaning of “payable” and with the way in which that word had typically been interpreted in previous decisions (paragraphs 25 to 32)
- the principle established by the Court of Appeal in Secretary of State for Social Security v Harmon, Carter and Cocks [1999] 1 WLR 163, also reported as R(CS) 4/99, namely that “paid” means actually paid not properly or lawfully paid, did not apply in this context as the language was not the same; paragraph 1A refers to whether child benefit is “payable”, not whether it is “paid”, and that decision turned on considerations which did not apply in the present case (paragraphs 23 to 24)
The judge set aside the decision of the First-tier Tribunal and remitted the appeal to a differently constituted tribunal to be decided in accordance with his Directions.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant (the father).
The decision of the Manchester First-tier Tribunal dated 31 October 2011 under file reference SC946/11/04553 involves an error on a point of law. The tribunal’s decision is therefore set aside.
The Upper Tribunal is not in a position to re-make the decision on the father’s appeal against the decision of the Secretary of State (formerly the Child Maintenance and Enforcement Commission) dated 9 March 2011.
It therefore follows that the father’s original appeal against the Secretary of State’s decision is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The re-hearing should be at an oral hearing.
(2) The new tribunal should not involve the tribunal judge who sat on the last tribunal on 31 October 2011.
(3) The District Tribunal Judge responsible for listing should consider whether Her Majesty’s Revenue and Customs (HMRC) should be joined to the appeal as a party and invited to make a submission on the issue of child benefit entitlement for the material period (see [5] below).
(4) If either parent has any further written evidence to put before the tribunal, this should be sent to the regional office of HM Courts and Tribunals Service in Liverpool within one month of the issue of this decision.
(5) The Child Maintenance and Enforcement Commission, now the Secretary of State, should be represented at the new hearing by a presenting officer.
(6) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.
These directions may be supplemented as appropriate by later directions by a District Tribunal Judge in the First-tier Tribunal (Social Entitlement Chamber).
REASONS FOR DECISION
The Upper Tribunal’s decision in summary
1. The father’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal (F-tT) involves an error on a point of law. The tribunal’s decision is therefore set aside as having no effect. Unfortunately the Upper Tribunal is not in a position to re-make the original decision under appeal. It follows that there will need to be a fresh hearing before a different F-tT.
The issue on this appeal
2. This case turns on the meaning of one word: “payable”. In summary, and in certain situations such as the present case, child support law says that a non-resident parent is liable to pay child support where child benefit is “payable” to the parent with care for the child in question. The question is whether “payable” in that context means that child benefit was (i) “actually paid”; (ii) “payable under an award, whether that award was right or wrong”; or (iii) “properly or lawfully payable”.
3. For the reasons that follow, I conclude that the proper meaning is meaning (iii). So there is a child support liability on the facts of this case where child benefit was properly or lawfully payable. At the time with which this appeal is concerned, the fact that child benefit was actually paid by Her Majesty’s Revenue and Customs (HMRC) did not mean that a child support liability arose for the same period, if such child benefit was paid in error. This was because the statutory definition of “child” for child benefit and child support purposes respectively was not the same between 2006 and 2012. Whether child benefit was in fact paid in error in this case (between 2009 and 2010) remains unclear. I also note that the definition of “child” for the purposes of both child benefit and child support has now been re-aligned by primary legislation (see [37] below).
The facts of the case
4. Most, but not all, of the facts of the case are clear from the F-tT’s decision and the case papers and are not in dispute. They are as follows. For convenience I refer to the Child Maintenance and Enforcement Commission or the Secretary of State simply as “the Agency”.
5. The parents’ son, J, was born on 8 March 1992. In March 2009, when he was just 17, the Agency decided that the father was liable to pay £60 a week in child support, with effect from 10 March 2009.
6. On 9 December 2009 J left college, having completed the first year of a City & Guilds qualification. In July 2010 the mother advised the Agency that J was “on holiday”, but planning to return to college in September 2010 and was working for a relative over the summer (unconnected with his course).
7. In September 2010 J returned to college to do the second year of his City & Guilds course. On 8 March 2011 J turned 19, and, allowing for the child benefit extension period, his mother’s award of child benefit stopped on 6 June 2011. There had been no breaks in payment of child benefit by HMRC. Meanwhile, on 9 March 2011, the Agency made a supersession decision, closing the child support maintenance calculation with effect from J’s 19th birthday, the day before.
8. The father appealed against the decision of 9 March 2011. He said that he agreed to pay child support for the period from September 2010 to March 2011,...
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