Secretary of State for Social Security v Harmon; Same v Carter; Same v Cocks
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MILLETT,LORD JUSTICE MUMMERY,LORD JUSTICE BELDAM |
| Judgment Date | 05 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0605-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | SSTRI 97/0688/1 |
| Date | 05 June 1998 |
[1998] EWCA Civ J0605-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand
London WC2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand
London WC2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Lord Justice Millett
Lord Justice Mummery
Lord Justice Beldam
Lord Justice Millett
Lord Justice Mummery
Lord Justice Beldam
Lord Justice Millett
Lord Justice Mummery
SSTRI 97/0688/1
SSTRI 97/0689/1
SSTRI 97/0690/1
MR M SHAW [MISS K GALLAFENT—judgment ] (Instructed by Mr PKJ Thompson, Solicitor to the Department of Social Security, London WC2A 21S) appeared on behalf of the Appellant
MR N MOSTYN QC (Instructed by Messrs Cripps Harries Hall, Kent TN1 1EN) appeared on behalf of the Respondent
MR M SHAW [MISS K GALLAFENT—judgment ] (Instructed by Mr PKJ Thompson, Solicitor to the Department of Social Security, London WC2A 21S) appeared on behalf of the Appellant
The Respondent did not attend and was not represented
MR M SHAW [MISS K GALLAFENT—judgment ] (Instructed by Mr PKJ Thompson, Solicitor to the Department of Social Security, London WC2A 21S) appeared on behalf of the Appellant
The Respondent did not attend and was not represented
Friday, 5 June 1998
These three conjoined appeals are brought by the Secretary of State for Social Security with the leave of Simon Brown LJ from three decisions of the Child Support Commissioner (Mr Commissioner Rice in the cases of Cocks and Carter; Mr Commissioner Angus in the Case of Harmon). All the decisions were in favour of the absent parent. Mr Commissioner Rice followed an earlier decision of his own in Baverstock, and Mr Commissioner Angus followed the decisions of Mr Commissioner Rice. The absent parents were all unrepresented below. In order to ensure that the appeals should be fully argued before us, the Secretary of State has agreed to pay the costs of the absent parents in this Court on an indemnity basis in any event. Only Mr Harmon has taken advantage of this offer, and we are indebted to Mr Mostyn QC for the careful and thorough argument which he has presented, technically on Mr Harmon's behalf, but in reality for all three respondents.
The three appeals all raise the same short but important question, which is concerned with the relationship between the Child Maintenance Support system and the Social Security benefit system. In order that the question may be understood, it is sufficient in the first instance to refer to the terms of two sections of the Child Support Act 1991 ("the Act") as amended.
Section 4(1):
"A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child, or any of those children."
Subsection (10) of the section, inserted by section 18(1) of the Child Support Act 1995 provides:
"No application may be made at any time under this section with respect to a qualifying child or any qualifying children if -
…
(b) benefit is being paid to, or in respect of, a parent with care of that child or those children."
Benefit is defined by subsection (11).
Section 6(1):
"Where income support, … family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if -
(a) she is a person with care of the child; and
(b) she is required to do so by the Secretary of State,
authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent.
…
(5) That authorisation shall be given, without reasonable delay, by completing and returning to the Secretary of State an application -
(a) for the making of a maintenance assessment with respect to the qualifying child or qualifying children; and
(b) for the Secretary of State to take action under this Act to recover, on her behalf, the amount of child support maintenance so assessed.
(6) Such an application shall be made on a form ('a maintenance application form') provided by the Secretary of State."
For convenience I shall in this judgment adopt the statutory language and refer to the parent with care as if she were always the mother, and the absent parent as if he were always the father. Of course that is not necessarily the case. The parent with care can equally well be the father, and the absent parent can equally well be the mother.
It will be seen that a parent with care who is not in receipt of benefit may make her own application for child support maintenance under section 4. If she does so, she remains in charge of the procedure at every stage. Where she is in receipt of benefit, however, she may not make an application under section 4 but may be required by the Secretary of State to authorise him to recover child support maintenance on her behalf in respect of a qualifying child from the absent parent. If such a requirement is made, the person with care is obliged to give the requisite authority to the Secretary of State. If she does not do so, the child support officer may in due course make a reduced benefit direction under section 46. The purpose of this statutory machinery is to prevent a parent who is in receipt of benefit from leaving financial responsibility for the child with the state instead of claiming child maintenance support from the absent parent. The application is still made by the parent with care, but it is made at the instance of the Secretary of State, who takes responsibility for the entire procedure. If the application is successful and the Secretary of State recovers child support maintenance from the absent parent, the benefit of the payment enures to the Secretary of State (that is to say, the taxpayer); for although the social security benefit is not in practice reduced by the amount of child maintenance support, any maintenance payments made by an absent parent collected by the Secretary of State may be retained by him: see section 74A of the Social Security Administration Act 1992, inserted by section 25 of the Child Support Act 1995.
Section 6(1) attaches two conditions precedent to the ability of the parent with care to give the requisite authority to the Secretary of State. The two conditions which must be satisfied before the Secretary of State can be authorised to take action to recover child maintenance support from the absent parent are, first, that the person giving the requisite authority is the parent with care of a qualifying child; and secondly, that income support or other benefit of a prescribed kind is either being claimed by or in respect of the parent with care, or is being paid to or in respect of her. The principal question in these appeals is whether there is implicit in section 6(1) a further condition that the benefit in question is benefit to which the parent with care is entitled.
Once an effective application for child support maintenance has been made, the procedure is for the Secretary of State to give notice of the application to the absent parent and send him a maintenance inquiry form. The absent parent is required to complete the form and return it to the Secretary of State. If he does so within four weeks, the effective date (which is the date from which his liability if any to pay child support maintenance runs) is eight weeks after the receipt of the maintenance inquiry form. If he fails to complete and return the form within the four weeks, then the effective date is the date on which he received the form. Thus he has an incentive to complete and return the form within the time limited, since this delays the date from which he can be required to pay child support maintenance.
Once the form is returned and has been considered by the Secretary of State, the application is referred by him to a child support officer, and it is his duty to deal with the application in accordance with the Act and the regulations made thereunder (see section 11). The child support officer is a judicial or quasi-judicial officer who acts independently of the Secretary of State. Thereafter the Secretary of State has no further part to play in the assessment procedure, although he comes back into the picture when it comes to collection.
The assessment is made by the child support officer in accordance with schedule 1 to the Act. For this purpose it is necessary for him to determine, amongst other things, the assessable income of each parent. Where, however, either parent is in receipt of prescribed benefit, he or she is taken to have no assessable income: see paragraph 5(4) of the first schedule to the Act which provides:
"Where income support or...
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