R(CS) 4/98
Mr. M. Rowland CCS/13450/1996
19.6.97
Tribunal practice - both parents appealing against a decision of a child support officer - whether appeals to be heard together
On review, a child support officer made an assessment with effect from 13 May 1993. Both the mother and the father separately appealed against the decision. The mother's appeal was heard in her absence on 21 October 1994, although the father attended and persuaded the tribunal that the assessment should be effective from 17 July 1993 by virtue of regulation 3(5) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 because, on 15 July 1993, the father had been ordered by a court to pay maintenance to the mother. With a direction to that effect, the tribunal remitted the case to the Secretary of State. The father's appeal was heard in his absence on 9 January 1996 by a differently constituted tribunal with the mother present. That tribunal decided that they had no jurisdiction to interfere with the findings of the first tribunal and so expressed no view as to the effective date of the maintenance assessment. Nonetheless, they too remitted the case to the Secretary of State. The mother appealed, the Commissioner having treated her application for leave to appeal as an application for leave to appeal against both decisions.
Held, allowing both appeals, that:
- the two appeals against the child support officer's decision should have been heard together;
- the effect of the first tribunal's decision was to cause the father's appeal to lapse and to deprive the second tribunal of jurisdiction to decide anything;
- the first tribunal had erred because the court order was not an order "with respect to" the children and, furthermore, was not "in force" when the maintenance assessment was made on 13 July 1993, so that regulation 3(5) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 did not apply.
The Commissioner referred the case to a child support officer for determination on the basis that the effective date of the maintenance assessment was 13 May 1993.
DECISION OF THE CHILD SUPPORT COMMISSIONER
- These two appeals both arise out of a child support officer's decision dated 13 July 1993, which was varied (in a respect that is immaterial to these appeals) on review on 10 December 1993. The decisions required the father of the two qualifying children to pay child support maintenance from 13 May 1993. The mother appealed against the review decision by a letter dated 4 January 1994. The father, who had not initially received notice of the review decision because he had changed his address, appealed against the same decision by a letter dated 22 August 1994. The mother's appeal was heard in her absence (her application for postponement having been refused by a full-time chairman) on 21 October 1994. The father was present at the hearing and he persuaded the tribunal that the "effective date" of the maintenance assessment should be 17 July 1993, rather than 13 May 1993. The tribunal so directed when remitting the case to the Secretary of State for him to make arrangements for it to be dealt with by a child support officer. Meanwhile, the father's appeal continued on an entirely separate track. The mother and the child support officer were both unhappy about the decision of the first tribunal with regard to the "effective date" but the mother was advised to wait until the father's appeal was heard. The father's appeal came before a differently constituted tribunal on 9 January 1996. This time the father was absent but the mother was present. The tribunal decided that they did not have jurisdiction to interfere with the findings of the first tribunal and they expressed no view as to the effective date. Nonetheless, they too remitted the case to the Secretary of State for him to arrange for it to be dealt with by a child support officer.
- The mother applied for leave to appeal against the second decision. The only point she raised concerned the "effective date" of the first maintenance assessment. The chairman refused leave and the mother renewed her application before me. Having obtained a submission from the child support officer, I treated the application as an application for leave to appeal against the decisions of both tribunals and I granted leave to appeal in both cases. The father has not taken any part in the appeals. The "effective date" of the first maintenance assessment remains the only point raised on the appeals. The child support officer supports the mother's case.
- It is unfortunate that the Child Support Agency did not draw to the attention of the child support appeal tribunal Central Office the fact that both appeals lodged by the parents were against the same decision. It was necessary for the two appeals to be heard together. By the time the case came before the second tribunal, the decision against which the father had appealed had already been set aside by the first tribunal. The effect of the first tribunal's decision was to cause the father's appeal to lapse (which was not unfair because he had had the opportunity of having his arguments considered by the first tribunal) and to deprive the second tribunal of jurisdiction to decide anything. On that ground, I set aside the decision of the second tribunal.
- As to the "effective date" of the maintenance assessment, the normal rule is that a new maintenance assessment is effective from the date on which the maintenance enquiry form was issued (see regulation 30(2)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992). In this case the maintenance enquiry form was issued on 13 May 1993 which was the date taken by the child support officers as the "effective date" of the maintenance assessment. However, the first tribunal relied on regulation 3(5) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 which provides:
"Where a maintenance assessment is made with respect to children with respect to whom an order falling within paragraph (1) is in force, the effective date of that assessment shall be 2 days after the assessment is made."
The tribunal had before them an order made in Preston County Court on 15 July 1993 and they understood the effect of regulation 3(5) to be that the "effective date" of the maintenance assessment should also be 15 July 1993 (i.e. two days after 13 July 1993). However, the order was merely an order requiring the father to pay the mother maintenance pending suit and thereafter interim periodical payments. It was not an order "with respect to" the children. Furthermore, as the child support officer points out, the order was not "in force" when the maintenance assessment was made on 13 July 1993. On both those grounds, regulation 3(5) had no application and the tribunal erred in deciding otherwise. On that ground, I set aside the decision of the first tribunal.
- Therefore, I allow the mother's appeals. I set aside the decision of the Preston child support appeal tribunal dated 21 October 1994 and the decision of the Preston child support appeal tribunal dated 9 January 1996. I refer the case to a child support officer for determination on the basis that the "effective date" of the maintenance assessment should be 13 May 1993.
Date: 19 June 1997 (signed) Mr. M. Rowland Commissioner
