AS-v-Department for Social Development (CS) [2013] NICom 52

Decision No:  CSC3/13-14

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Appeal to a Child Support Commissioner
on a question of law from a Tribunal’s decision
dated 27 January 2012

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is a non-resident parent’s application for leave to appeal from an appeal tribunal sitting at Londonderry on 27 January 2012.

2.	I granted leave to appeal and I held a hearing of the appeal on 2 July 2012.

3.	For the reasons I give below, under Article 25(2) and 25(3)(d) of the Child Support (NI) Order 1991, I set aside the decision of the appeal tribunal and I remit the appeal for redetermination by a newly constituted tribunal.

REASONS

	Background

4.	The applicant is the non-resident parent (hereinafter called “the father”) of four children.  The parent with care (“hereinafter called “the mother”) of the children made an application for child support maintenance on 11 April 2011.  The Department for Social Development (the Department) through its agency the Child Maintenance and Enforcement Division sought information from the father on 18 April 2011.  He responded that his income was variable and that his earning opportunities were restricted because he cared for the two older children in the afternoons when the mother was at work.  Based on the information it received the Department assessed that the father was liable to pay the mother £65 per week in child maintenance from 18 April 2011.  He appealed, but the appeal tribunal disallowed his appeal.

5.	He requested a statement of reasons for the tribunal’s decision.  This was issued on 2 July 2012.  Through solicitors he requested leave to appeal to the Child Support Commissioner.  Leave to appeal was refused by the legally qualified member (LQM) of the tribunal in a determination issued on 21 August 2012.  On 21 September 2012 his application to a Child Support Commissioner for leave to appeal was received.

	Submissions

6.	The grounds of the father’s application for leave to appeal are that:

	(i)	he was looking after the children in the family home until January 2012;

	(ii)	he is employed on an irregular basis with the result that the income figures used for calculating his income were not reliable.

7.	The mother and the Department were invited to make observations on the father’s grounds of application.  The mother responded that the father’s allegations were untrue and that she had not received any child maintenance from him.  Mr Crilly responded for the Department.  He submitted that the tribunal had erred in law for reasons connected to the treatment of a tax rebate received by the father in March 2011.  He suggested that an alternative approach to calculation of his income should have been adopted.

8.	Noting in particular the submissions of the Department, I considered that there was an arguable case that the tribunal had erred in law and I granted leave to appeal.  I decided to hold an oral hearing of the appeal.  The parties were notified of the time and place of hearing by a notice issued on 30 May 2013.

	The tribunal’s decision

9.	The tribunal whose decision is challenged before me heard evidence from the father and the mother, and heard submissions from the Department.  In disallowing the appeal, on the issue of assessment of the father’s income, it has said:

“The Appellant contends that the assessment of his average weekly income is both inaccurate and unjust.  The Department is obliged to calculate income in accordance with the legislation.  Pages 6 and 7 of the written submission provide an explanation as to how the Department has arrived at its calculation.  The information used has been supplied by the Appellant.  The Tribunal has examined the assessment in the light of that information and is satisfied that the Department has correctly applied the legislation to the facts to arrive at a figure of £260.27 net weekly income for the correct relevant week, i.e. 11.04.11 to 17.04.11.  There is therefore no merit in this challenge to the Department’s assessment.”

10.	On the issue of the father’s submission that he was caring for the children, the tribunal has said:

“At the hearing of the appeal he claimed to be sleeping at the family home on a regular basis in the period used by the Department to assess his weekly income.  [The mother] told the tribunal that they were living apart at the same house until 13.01.12.  She referred the Tribunal to an interim non-Molestation Order dated 23.01.12 excluding the Appellant from the family home.

The Department has relied on Regulation 7 of the Child Support (Maintenance Calculation and Special Cases) Regulations (NI) 2001.  This states that a night will count for the purposes of shared care where the non-resident parent has care of a qualifying child overnight and the child stays at the same address as the non-resident parent.  A non-resident parent is defined as a parent who is not living in the same household with the child [Article 3(2) of the Child Support (NI) Order 1991].  Although the term household is not defined in the legislation, the Tribunal is satisfied, on the evidence that the Appellant was, from at least 3.05.11 living at an address different from that of the qualifying children…  Although there is evidence to indicate that the Appellant stayed at the address of the qualifying children on a number of occasions, the Tribunal is satisfied that he is not living in the same household as the children, the children have their home with [the mother], the Appellant has not had care of the children overnight at his address.”

	Relevant legislation

11.	The most relevant provisions to a determination of the present appeal are the following.  Firstly, a definition of “non-resident parent” appears at Article 4(2) of the Child Support (NI) Order 1991 (“the 1991 Order”).  This provides that:

	(2) The parent of any child is a non-resident 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 liability to make maintenance payments on the part of a non-resident parent is established by Article 5 of the 1991 Order, which reads:

	5.—(1) For the purposes of this Order, each parent of a qualifying child is responsible for maintaining him.

	(2) For the purposes of this Order, a non-resident parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Order.

13.	On the question of shared care, the 1991 Order provides for adjustment of child support liability to reflect shared care.  Regulation 7 of the Child Support (Maintenance Calculation and Special Cases) Regulations (NI) 2001 (“the 2001 Regulations”) further provides:

	7.—(1) For the purposes of paragraphs 7 and 8 of Schedule 1 to the Order a night will count for the purposes of shared care where the non-resident parent—

		(a) has the care of a qualifying child overnight; and

		(b) the qualifying child stays at the same address as the non-resident parent.

	(2) For the purposes of paragraphs 7 and 8 of Schedule 1 to the Order, a non-resident parent has the care of a qualifying child when he is looking after the child.

14.	In relation to the calculation of income, paragraph 6 of Schedule 1 to the 2001 Regulations provides:

	6.—(1) Subject to sub-paragraphs (3) and (4), the amount of earnings to be taken into account for the purpose of calculating net income shall be calculated or estimated by reference to the average earnings at the relevant week having regard to such evidence as is available in relation to that person’s earnings during such period as appears appropriate to the Department, beginning not earlier than 8 weeks before the relevant week and ending not later than the date of the calculation, and for the purposes of the calculation or estimate the Department may consider evidence of that person’s cumulative earnings during the period beginning with the start of the year of assessment (within the meaning of section 832 of the Income and Corporation Taxes Act 1988) in which the relevant week falls and ending with a date no later than the date when the calculation is made.
	…

	(4) Where a calculation would, but for this sub-paragraph, produce an amount which, in the opinion of the Department, does not accurately reflect the normal amount of the earnings of the person in question, such earnings, or any part of them, shall be calculated by reference to such other period as may, in the particular case, enable the normal weekly earnings of that person to be determined more accurately, and for this purpose the Department shall have regard to—

		(a) the earnings received, or due to be received from any employment in which the person in question is engaged, has been engaged or is due to be engaged;

		(b) the duration and pattern, or the expected duration and pattern, of any employment of that person.

	Hearing

15.	The father attended the hearing to present his appeal.  The Department was represented by Mr Crilly of Decision Making Services.  The mother did not attend the hearing and had not indicated prior to the hearing that she intended to attend.  I decided that I should proceed with the hearing in her absence.

16.	The father had two main submissions.  These were that the calculation of his income was inaccurate and led to a disproportionately high maintenance figure.  He submitted that his current monthly net income was in the region of £500, with a maintenance figure of some £230 per month, leaving him insufficient money to live on.  Furthermore, he submitted that he had been wrongly assessed as liable to pay maintenance from April 2011 while he continued to reside with his children in the family home for up to six days each week until January 2012.

17.	Mr Crilly for the Department indicated in his submissions before the hearing and at the hearing that he had misgivings about the method of calculation of the father’s income.  In particular, he questioned the omission of figures for the month of March 2011.

18.	In the course of the hearing he adopted a critical view of the tribunal’s approach to the question of whether the father remained a member of the same household as the children during the period from April 2011 to January 2012.  He questioned the adequacy of the tribunal’s findings on this issue.

	Assessment

19.	The right of appeal from a decision of the Department relating to child support gives exactly that – a right of appeal.  It is not a review of the Department’s decision, which is not to be shown any particular deference, but a process of applying the law to the facts as determined by the tribunal.

20.	The statement of reasons for the tribunal’s decision places direct reliance on the Department’s submission at pages 6 and 7 when justifying its assessment of the maintenance payable by the father.  What the Department’s submission says is “The Decision Maker shall have regard to such evidence as is available in relation to that person’s earnings during such period as appears appropriate to him.  This may begin no earlier than 8 weeks before the relevant week and end no later than the date of the calculation and for the purposes of that calculation of estimate, the Decision Maker may consider evidence of that person’s cumulative earnings during the period beginning with the start of the year of the calculation in which the relevant week falls and ending with a date no later than the date the calculation was made”.  The calculation is then set out in a tabular form by the Department’s submission writer, based upon pay slips from December 2010, January 2011, February 2011, April 2011 and May 2011.

21.	The language used by the Department which is adopted by the tribunal relates to paragraph 6(1) of Schedule 1 to the 2001 Regulations.  The “relevant week” for the basis of this calculation would be the week from 11 April 2011 to 17 April 2011.  However, it is not explained why figures for December 2010 and January 2011 are taken into account when they fall before the period eight weeks before the relevant week.  The reference to the start of the year in which the relevant week falls is to the relevant tax year commencing on 6 April 2011, which does not enable the months of December 2010 and January 2011 to be considered.  It is not explained why figures for March 2011 are omitted when they fall within the relevant eight weeks.

22.	In the light of these anomalies, I would speculate that the Department has used the alternative method of calculation set out at paragraph 6(4) of Schedule 1.  In order for this to apply the Department, or in this case the tribunal, would need to determine that figures obtained by the paragraph 6(1) method does not reflect the normal earnings of the person in question.  Under paragraph 6(4), it could then calculate income based on a period which enabled normal weekly earnings to be determined more accurately.

23.	It is not clear from the statement of reasons whether the tribunal has based its assessment on paragraph 6(1) of Schedule 1 to the 2001 Regulations, or whether it has instead used paragraph 6(4).  If basing its decision on paragraph 6(4), I would expect that it should make it clear that this is what it has done, and consider that it should have explained why it considered that the paragraph 6(1) method would not result in an accurate calculation of normal weekly earnings.

24.	In the absence of some explanation, it is not clear why the March 2011 figures are omitted by the tribunal.  Nor is it clear what method of calculation has been adopted by the tribunal.  This leaves a nagging doubt in the mind of the reader that the tribunal has not independently applied itself to the questions of fact and law before it, but rather has “rubber stamped” the decision of the Department.  I feel sure that this is not what the tribunal has done, but it is important that justice is seen to be done, and in the absence of clear reasons for its decision I find that it has erred in law.

25.	A second issue has been argued by the father.  This concerns the question of whether he was involved in the shared care of the children until January 2012 at the former matrimonial home and whether he was sleeping there up to six nights each week as he claimed.  In her evidence to the tribunal the mother said “He was living in the house until 13.01.12”.  The father said that he was there because the mother was working full time, and he was involved in caring for the children.  In his submissions to me he gave convincing oral evidence of this, pointing to the fact that one of the children attended an early morning swimming club which required a parent to take him there twice weekly at 5.30am while the other children were asleep.  Rather than have the other children left alone at home he stayed at the house and either the mother or he took the child to the club.  The least implication would be that there was an element of shared care which had the potential to lead to an adjustment of the maintenance figure for the relevant period under paragraph 7 of Schedule 1 to the 1991 Order.  The greater implication might be that the father was not someone who fell within the definition of non-resident parent at the week of assessment.

26.	In determining this question the tribunal placed weight on the fact that the father had his own address.  It found that he did not care for the children at that address.  However, that was nowhere claimed, and nor was it necessary to establish an element of shared care.  In the light of evidence from the mother that he was still staying in the same house as the children, it was enough that he had overnight care of a qualifying child at the same address as the child.

27.	In terms of whether he was a non-resident parent at all during the period from 18 April 2011 to 13 January 2012, the question was whether he was still a member of the same household as his children in his former domestic home.  To determine whether he was a member of a household with his children, this required investigation of matters such as financial responsibilities and domestic responsibilities.  I do not consider that the tribunal has adduced sufficient evidence to determine these issues adequately.

28.	Accordingly, I find that it has erred in its determination of the question of whether the father was a non-resident parent at the relevant period or whether he had shared care of the children.

29.	I set aside the decision of the appeal tribunal.  I remit the appeal for redetermination by a newly constituted tribunal.

(signed):  O Stockman

Commissioner

18 July 2013