Decision No: CSC3/95

	THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

	Appeal to the Child Support Commissioner
	on a question of law from the decision of the
	Ballymoney Child Support Appeal Tribunal
	dated 16 August 1994

	DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal by the absent parent against a decision of a Child Support Appeal Tribunal and it comes with leave of the Chairman of that Tribunal.

2.	I arranged a hearing at which the absent parent was present but was not represented.  The Child Support Officer was represented by Mrs McCarron and the parent with care was also present but not represented.  The child resides with his mother, the parent with care.  The absent parent has remarried and is living with his new partner.  The Child Support Agency assessed the father's liability for maintenance at £32.49 from 21 December 1993, and against that decision the father appealed and the Child Support Appeal Tribunal allowed his appeal and remitted the matter to the Child Support Officer and held that the maintenance of £24.00 was payable from and including 10 February 1994 for a period of 32 weeks.

3.	The appellant sought leave to appeal on the grounds that the child stayed longer over the summer months with the father and he also had a 14 day continuous stay and also that his ex wife ran a catalogue book from which she received commission.  The Chairman of the Tribunal granted leave on that basis.

4.	At the hearing before me the absent parent argued that he was being over assessed for maintenance because the parent with care had not only Income Support but also had an income for looking after children in the afternoon and also from catalogue sales.  He argued that the fact that he had the children most weekends was not taken into account.

5.	Mrs McCarron on behalf of the Child Support Officer made a long submission prior to the hearing and I think it is helpful to set out it in detail as follows:-

		"The appellant [...] (the absent parent) has given 
		as his grounds of appeal:

			i.	"The child [...] stayed longer over 
				the summer months And he also had a 14 day 
				contineous stay."

			ii.	"also my ex-wife runs a catalogue Book of which 
				she receives commission."

		Ground I

		I would submit that the tribunal were correct in determining that 
		the maintenance assessment made on 2nd tier review was correct.

		The legislation provides for the situation where the care of a 
		qualifying child is shared.

		Regulation 20(1) and 20(2) of the Child Support (Maintenance 
		Assessments and Special Cases) Regulations (Northern Ireland) 
		1992 says:-

			"20.-(1)	Where the circumstances of a case are that -

			(a)	two or more persons who do not live in the same 
				household each provide day to day care for the same 
				qualifying child; and

			(b)	at least one of those persons is a parent of that 
				child;

			that case shall be treated as a special case for the purposes 
			of the Order.

			(2)	For the purposes of this case a parent who provides 
			day to day care for a child of his in the following 
			circumstances is to be treated as an absent parent for the 
			purposes of the Order and these regulations:-

			(a)	a parent who provides such care to a lesser extent 
				than the other parent, person or persons who provide 
				such care for the child in question;

			(b)	..................".

		The definition of day to day care is found in regulation 1 (2) of 
		the Child Support (Maintenance Assessments and Special Cases) 
		Regulations (Northern Ireland) 1992 which says -

			"day to day care means care of not less than 2 nights 
			per week on average during ...

			(a)	the 12 month period ending with the relevant week; 
				or

			(b)	such other period, ending with the relevant week, 
				as in the opinion of the child support officer is 
				more representative of the current arrangements for 
				the care of the child in question;

			and ....."

		The above definition has been amended by The Child Support and 
		Income Support (Amendment) Regulations (Northern Ireland) 1995 
		from 18 April 1995 but does not effect this case.

		The phrase "relevant week" which is mentioned in the definition of 
		day to day care is also defined in regulation 1(2) which says -

			"relevant week" means -

			(a)	in relation to an application for child support 
				maintenance -

				(i)	.............;

				(ii)	in the case of a person to whom a 
					maintenance assessment enquiry form 
					is given or sent as the result of such 
					an application, the period of 7 days 
					immediately preceding the date on which 
					that form is given to him or, as the case 
					may be, the date on which it is treated as 
					having been sent to him under regulation 
					1(6)(b) of the Maintenance Assessment 
					Procedure Regulations ..."

		The maintenance enquiry form was treated as sent to [the appellant] on 
		7 June 1993.  Therefore the relevant week in [the appellant's] case is 
		the 31 May 1993 to 6 June 1993.  The Department wrote to [the appellant] on 13 January 1994 and requested him to provide details of the nights when his son [...] stayed with him during the year ending 5 June 1993.  [The appellant] replied on 19 January and stated that "their is 
		no set dates or times kept on this when [my son] asks to come and 
		stay with my wife and myself he comes it is usually both weekend 
		nights or sometimes longer" (pages 74 and 75 of submission).  The 
		child support officer on second tier review decided that [the appellant] 
		had day to day care of [his son] for 2 nights.  Neither the child 
		support officer or tribunal had evidence before them which indicated 
		that the child [...] stayed with [the appellant] during the periods 
		stated in [the appellant's] grounds of appeal.  I cannot identify any 
		error in the tribunal decision on this issue.

		GROUND II

		Firstly I would submit that regardless of the fact that [the second respondent] (parent with care) may have an income from commission this has no bearing on the calculation of the maintenance assessment in this case because [the second respondent] is in receipt of income support and therefore is taken to have NIL assessable income by virtue of Schedule 1 paragraph 5(4).

		Schedule 1 paragraph 5(4) of The Child Support (Northern Ireland) 
		Order 1991 says -

			"(4) Where income support or any other benefit of a 
			prescribed kind is paid to or in respect of a parent 
			who is an absent parent or a person with care that 
			parent shall, for the purposes of this Schedule, be 
			taken to have no assessable income."

		Secondly I would submit that the issue of [the second respondent] having an income from commission was not considered by a child support 
		officer on second tier review and therefore would have been outside 
		the jurisdiction of the tribunal.  Thirdly, this issue was not 
		raised before or considered by the appeal tribunal.  For all these 
		reasons I would submit that there is no merit in this ground of 
		appeal. ..."

6.	I have considered all the arguments in this case and the relevant law which is set out above.  I accept the submission on behalf of the Child Support Officer that none of the grounds cited by the absent parent are valid and that there was not sufficient evidence relating to when the child stayed with him.  In addition, the other incomes which the parent with care is alleged to have had are dealt with by the legislation because once she had the Income Support then these matters could not be taken into account.  This would be a matter for the Income Support Branch to deal with.

7.	I am satisfied therefore that there are no valid grounds to hold that the Tribunal erred in law as alleged by the absent parent and I would therefore dismiss the appeal.

8.	Mrs McCarron also argued that the Tribunal had erred in law in its decision but the Child Support Agency did not seek leave to appeal and this matter was only raised before me after the absent parent had appealed.  I intend to deal only with the appeal before me, namely that by the absent parent.

	(Signed): C C G McNally
						
	COMMISSIONER

	9 May 2000