JH CCS 227 2016
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 06 October 2016 |
| Neutral Citation | 2016 UKUT 440 AAC |
| Subject Matter | Child support |
| Respondent | Secretary of State for Work and Pensions and LH (CSM) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 227 2016 |
| Appellant | JH |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant (“the father”), although the effective outcome of the re-made First-tier Tribunal’s decision remains the same as before.
The decision of the Leeds First-tier Tribunal dated 29 September 2015 under file reference SC007/14/01445 involves an error on a point of law. The Tribunal’s decision is accordingly set aside.
The Upper Tribunal is in a position to re-make the decision on the appeal by the father against the decision of the Secretary of State dated 7 November 2014. The decision that the First-tier Tribunal should have made is as follows. The Upper Tribunal re-makes the decision accordingly.
‘The father’s appeal against the decision of the Secretary of State dated 7 November 2014 is dismissed. The father’s shared care falls into band 3 for the relevant period, applying regulation 7(4).
The father remains liable to pay child support maintenance in the weekly sum of £101.14 effective as from 15 April 2013.’
This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction
1. This appeal is about the bright line rule that applies to shared care in the child support system. The present appeal is, in many ways, an exemplar of what many critics say is wrong with the statutory child support scheme. Two obviously intelligent and articulate parents are arguing over a matter of a night or two of shared care over the course of a year. Be that as it may, the parents are entitled to a judicial determination of their respective rights and liabilities according to the law.
2. In the family courts, decisions about the residence of children and their financial support (insofar as the courts still have the power to decide such matters) are made by judges applying a broad set of principles. Those various considerations are typically described as “guidelines not tramlines”, indicating the general direction of travel but not prescribing a particular destination. Such a discretion-based scheme obviously has both advantages and disadvantages. 3. The statutory child support scheme operates under a very different framework. The formula means the formula, with a narrow scope for variation and only a restricted role for discretion-based decisions. Thus the child support regime is, by and large, a system of tramlines, with very limited scope to jump the tracks and head in a different direction. Changing the metaphor somewhat, the child support scheme operates on a system of ‘bright line’ rules with minimal flexibility to depart from prescribed outcomes. This approach also has both (different) advantages and disadvantages.The Upper Tribunal’s decision on this appeal in summary
4. In summary, the father’s appeal to the Upper Tribunal is allowed. The decision of the Leeds First-tier Tribunal on 29 September 2015 involves an error on a point of law. The Tribunal’s decision is therefore set aside. None of the parties has requested an oral hearing before the Upper Tribunal. I am satisfied that it is fair and just to determine the case on the papers. I proceed to re-make the original decision under appeal myself. My final decision is to the same effect as that of the First-tier Tribunal decision that has been set aside, albeit I have arrived at it by a different route.
The relevant legal provisions central to this appeal 5. As noted above, this appeal concerns the proper application of the rules on shared care in child support cases. In particular, it concerns the proper application of regulation 7 of the Child Support (Maintenance and Special Cases) Regulations 2000 (SI 2001/155; “the 2000 Regulations”). 6. Under the Child Support Act 1991 (“the 1991 Act”) – or at least the version that applies to the current case – the amount of child support payable is reduced where there is shared care, providing the minimum threshold of at least 52 nights a year is met. Paragraph 7(4) of Schedule 1 to the 1991 Act (as amended by section 1 of, and Schedule 1 to, the Child Support, Pensions and Social Security Act 2000) provides as follows:
“(4) The amount of that decrease for one child is set out in the following Table –
Number of nights Fraction to subtract
52 to 103 One-seventh
104 to 155 Two-sevenths
156 to 174 Three-sevenths
175 or more One-half”
7. These various adjustments are known as “bands”. So where the child stays with the non-resident parent for between 156 and 174 nights a year inclusive, the case falls within band 3. Where the child stays over for 175 nights or more, the case becomes band 4.
8. So then the question is the period over which such shared care is measured. Paragraph 7(3) of Schedule 1 to the 1991 Act (as amended) provides that “there is to be a decrease according to the number of such nights which the Secretary of State determines there to have been, or expects there to be, or both during a prescribed twelve-month period.” Thus the Act contemplates that the decision-maker may look backwards in time, or forwards, or a combination of backwards and forwards.
9. Regulation 7(3) of the 2000 Regulations then stipulates as follows:
“(3) Subject to paragraph (4), in determining the number of nights for the purposes of shared care, the Secretary of State shall consider the 12 month period ending with the relevant week and for this purpose ‘relevant week’ has the same meaning as in the definition of day to day care in regulation 1 of these Regulations.”
10. So the default position under the 2000 Regulations is that the decision-maker looks backwards in time. This rule, however, is subject to the qualification in regulation 7(4) of the 2000 Regulations:
“(4) The circumstances in which the Secretary of State may have regard to a number of nights over less than a 12 month period are where there has been no pattern for the frequency with which the non-resident parent looks after the qualifying child for the 12 months preceding the relevant week, or the Secretary of State is aware that a change in that frequency is intended, and in that case he shall have regard to such lesser period as may seem to him to be appropriate, and the Table in paragraph 7(4) and the period in paragraph 8(2) of Schedule 1 to the Act shall have effect subject to the adjustment described in paragraph (5).”
11. It follows that the starting point must always be the degree of shared care over the period of 12 months before the “relevant week” (on which see regulation 1(2) of the 2000 Regulations) – see regulation 7(3). However, in the two types of case specified in regulation 7(4) a lesser period than 12 months may be taken, ending with the relevant week – see further the careful and comprehensive analysis by Judge Jacobs in Child Support Commissioner’s decision CCS/2885/2005 (at paragraph 20).
The practical significance of the decision on shared care 12. In the present case the dispute centred on whether the case of the couple’s two daughters fell within band 3 or band 4. The parent with care (“the mother”) said that band 3 applied (156-174 nights). The non-resident parent (“the father”) said that band 4 applied (175 nights or more). The Child Support Agency and the First-tier Tribunal (“the Tribunal”) both decided this was a band 3 case.
The background to the child support appeal
13. The father received child benefit for the older daughter and the mother received child benefit for the younger daughter. I note the mother’s observation that the father has that award notwithstanding that he is a higher rate tax payer. She assumes “he has done this to either simply stop me receiving it, to use it as a way to ‘back up’ his CSA claims, or both”. I do not need to and do not make any finding on that allegation, but I return later to the child benefit issue.
14. On 18 May 2011 the parents agreed a shared residence consent order in the county court. The consent order spelt out in extensive detail over two sides of A4 the practical arrangements for shared residence. This included a four-weekly cycle or rota of shared care in term time followed by separate provision for the Easter, summer and Christmas school holidays and again separate rules for the various school half-terms.
15. By way of background, in an earlier appeal on 25 June 2013 a First-tier Tribunal decided that both parents were ‘persons with care’ under the terms of the Child Support Act. However, that Tribunal also found that the father “provided care (as defined) to a lesser extent than [the mother] and is therefore a non-resident parent (as defined)”. It did not determine precisely how many nights of shared...
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