SM CCS 3144 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge D. Williams |
| Judgment Date | 08 December 2010 |
| Neutral Citation | 2010 UKUT 435 AAC |
| Subject Matter | Child support |
| Respondent | CMEC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 3144 2009 |
| Appellant | SM |
THE UPPER TRIBUNAL Appeal No. CCS 3144 2009
ADMINISTRATIVE APPEALS CHAMBER
S M v C M E C and N W
Oral hearing 6 10 2010
The appellant attended and represented herself.
The Commission was represented by Mr Leo Scoon, of the Office of the Solicitor to the Department for Work and Pensions
The second respondent did not attend.
DECISION
The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.
Directions for new hearing
A The new hearing will be at an oral hearing.
B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.
C The tribunal is directed to consider if there is a valid appeal before it in this case.
D All parties are directed to make submissions to the tribunal on the issue of the validity of the appeal by the absent parent. They are to do so within one month of the issue of this decision.
E If any party has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.
These directions are subject to any later direction by a tribunal judge.
REASONS FOR DECISION
1 The appellant (“C”) is the parent with care and mother of three children for whom a child support maintenance assessment was made. She is appealing against the decision of a tribunal on an appeal to it by the second respondent (“A”). He is the absent parent of the three children as was made liable for the maintenance. The decision was made by the Child Maintenance Enforcement Commission (“the Commission”) the first respondent in the appeal.
2 A was appealing against the Commission’s decision about his liability to pay child support maintenance. He contended that he and C were reconciled. Therefore there was no jurisdiction to make an assessment for the period in question.
3 The tribunal accepted A’s appeal. It decided that it had no jurisdiction from 6 09 2002 to make any assessment against A. There were no qualifying children at that time. This is because it found a reconciliation at that time.
4 I granted permission to appeal to C because there are difficult issues concerning temporary reconciliations raised in decisions of Commissioners and the Upper Tribunal.
5 I invited the submissions of the parties on the issues of law relevant to the decision of the tribunal that it did not have jurisdiction. The Child Maintenance Enforcement Commission (“the Commission”), as respondent, supported the appeal. It drew attention to conflicting decisions of Child Support Commissioners and the Upper Tribunal on the key issue of the effect of a temporary reconciliation of the parents. It invited me to decide that the tribunal was wrong in excluding jurisdiction, and that it should have made an assessment decision. A did not respond.
6 C asked for a hearing. At the hearing, Mr Scoon, for the Commission, supported the written submission already made. This supported the appeal. C explained her position. A did not attend and had not responded. I decided that he had been given proper notice and held the hearing in his absence.
The law
7 The factual decision underlying the appeal is that, as the tribunal found, A and C shared a common household on and from 6 09 2002. The question of law is the effect that had on the pre-existing child support maintenance assessment. The tribunal considered that the reconciliation ended the obligation to pay child support maintenance.
8 The provision dealing with termination of assessments is in paragraph 16 of Schedule 1 to the Child Support Act 1991. Paragraph 16(1) provides:
“(1) A maintenance assessment shall cease to have effect –
(a) on the death of the absent parent or of the person with care, with respect to whom it is made;
(b) on there no longer being any qualifying child with respect to whom it would have effect;
(c) on the absent parent with respect to whom it was made ceasing to be a parent of –
(i) the qualifying child with respect to whom it was made; or
(ii) where it was made with respect to more than one qualifying child, all of the qualifying children with respect to whom it was made;
(d) where the absent parent and parent with care with respect to whom it was made have been living together for a continuous period of six months …”.
One other subparagraph is also relevant:
“(6) Where both the absent parent and the person with care with respect to whom a maintenance assessment was made request the Secretary of State to cancel the assessment, he may do so if he is satisfied that they are living together.”
9 It is submitted that this paragraph takes effect under section 11 of the 1991 Act. That imposes a duty on the Commission to decide any maintenance application “in accordance with the provision made by or under this Act.” There is, however, no obvious link between section 11(1) and paragraph 16. The one deals with applications. The other deals with terminations, and it is not clear that any decision is required. That creates a procedural problem that I must consider below. But the link with the section is explicit in section 11(3). This provides that Part II of Schedule 1 makes further provision with respect to maintenance assessments.
10 The scope of paragraph 16(1)(a) is clear. If either the person liable to pay the assessment or the person entitled to receive it dies, then the assessment becomes ineffective. As assessments are personal to the individuals, it is not clear that this provision is more than declaratory. Paragraph 16(1)(c) is again clear and specific. “Parent” is defined by section 54 of the 1991 Act as being any person who is in law the mother or father of the child. This will link in part with section 26 of the 1991 Act, dealing with disputes about parentage. Adoption of a child may also be relevant here. Paragraph 16(1)(d) also appears to be clear. It sets a test of six months continuous living together as the threshold requirement where separated parties reach a reconciliation and start living together. But paragraph 16(1)(b) cuts across this provision and appears to deprive it of content. This is because if the absent parent and person with care are living together, and the children are living with them, then none of the children will be a “qualifying child” as defined in the 1991 Act.
11 “Child” is defined by section 55 of the 1991 Act. The definition is essentially by reference to the age of the individual. “Qualifying child” is defined by section 3 of the 1991 Act, together with “absent parent”. The section provides, as relevant here:
“(1) A child is a “qualifying child” if –
(a) one of his parents is, in relation to him, an absent parent; or
(b) both of his parents are, in relation to him, absent parents.
(2) The parent of any child is an absent parent, in relation to him, if –
(a) that parent is not living in the same household with the child; and
(b) the child has his home with a person who is, in relation to him, a person with care.”
12 The Act does not offer any other definitions of assistance in this case. In particular there is no definition of “living in the same household”. The test has of course been discussed in this formulation and parallel formulations, such as “living together” in many court and tribunal decisions. It is essentially a question of fact.
The facts of this appeal
13 It is not in dispute that the three children of A and C were qualifying children in the period before that relevant to this appeal. Nor is it disputed that A was and remained the absent parent to those children (while they were qualifying children) while C was their person with care and with whom they were living.
14 The tribunal decided on the evidence before it that A and C, who had separated in 2000, were reconciled in September 2002. From that time they lived together in the same household. The key findings of the tribunal on the evidence are:
“[5.5] I am satisfied that by 6 September 2002 [A] had returned to live with [c] and the children at [address]. This was not the first time that they had attempted a reconciliation. However, it was the first time that they had lived together in the same household. Their lives were fully integrated. [A] did not have another property or home. He lived with [C] and the children, in a relationship that could be described as husband and wife and father to his children… I am satisfied that they intended to reconcile, and they saw their future together as a couple. Unfortunately, it did not last. They had separated by the end of...
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Michael Brough (Appellant) Sharon Law (First Respondent) Child Maintenance and Enforcement Commission (Second Respondent)
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