JMe	Commissioner's File:  CCS/1324/1997

CHILD SUPPORT ACT 1991

APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

[ORAL HEARING]

1.	The absent parent's appeal is disallowed. The decision of the Central London child support appeal tribunal dated 15 November 1996 is not wrong in law and therefore stands.

2.	The one issue in dispute before the appeal tribunal was how the child support legislation applied to the particular circumstance that the "qualifying child", Amy, was a boarder at a boarding school, with all the fees being paid by the local education authority for the area in which the parent with care lived.

3.	The appeal tribunal set out the facts it found as follows:

"The facts are that Amy is not in the care of the Local Authority pursuant to an Order under the Children Act but she has been placed for her education in a residential school for children with special educational needs. Pursuant to a statement of special educational needs under the Education Acts she comes home substantial periods of time and during the last year some 20 weeks but normally at somewhat less than this it would appear and her mother cares for her. Her mother also has considerable expenses all the time even when her daughter is not there for example very substantial telephone bills, she clothes her and buys all her personal necessities and one week in each term pays for her to be brought to and from school which is 100 miles away. She also, of course, has to provide a home for her at all times whether or not she is there. The Tribunal find that she has been placed by the Local Authority in a residential boarding school which is an educational decision, the Local Authority do not care for her."

4.	Its decision on the issue in dispute was that pursuant to regulation 27 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ("the MASC Regulations") Amy was at all times in the care of her mother and that the provisions of regulation 25 did not apply.

5.	Regulation 27 provides:

"(1) Where the circumstances of a case are that--
 (a)	a qualifying child is a boarder at a boarding school or is an in-patient in a hospital; and
 (b)	by reason of those circumstances, the person who would otherwise provide day to day care is not doing so,
the case shall be treated as a special case for the purposes of the Act.
 (2) For the purposes of this case, section 3(3)(b) of the Act shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the person who would usually be providing such care for that child but for the circumstances specified in paragraph (1)."

The significance of the reference to section 3(3) of the Child Support Act 1991 is that that provision defines who is a "person with care", to whom child support maintenance can be paid. The qualifying child must have her home with the person and, under paragraph (b), the person must usually provide day to day care for the child. Regulation 25 provides:

"(1) Where the circumstances of a case are that a local authority and a person each provide day to day care for the same qualifying child, that case shall be treated as a special case for the purposes of the Act.
 (2) Subject to paragraph 3, in a case where this regulation applies
 (a)	child support maintenance shall be calculated in respect of that child as if this regulation did not apply;
 (b)	the amount so calculated shall be divided by 7 so as to produce a daily amount;
 (c)	in respect of each night for which day to day care is provided by a person other than the local authority, the daily amount relating to that period shall be payable by the absent parent (or, as the case may be, by the person treated as an absent parent under regulation 20(2));
 (d)	child support maintenance shall not be payable in respect of any night for which the local authority provides day to day care for that qualifying child.
 (3) [deals with cases where there is more than one qualifying child]."

6.	The appeal tribunal's reasons for decision were recorded as follows:

"In this case we had to consider the interpretation of Regulation 25 of the Maintenance Assessments and Special Cases Regulations. We had to consider within that Regulation whether the circumstances of this case as a Local Authority and [the mother] provide day to day care for Amy and whether therefore the provisions for Regulation 25 should apply. We have considered the provisions of Section 3 Schedule 1 to the Act and regulation 51 of the Maintenance Assessment Procedure Regulations which deal with these definitions. We note that the words "the child is looked after by a Local Authority" in the Act have the same meanings as in Section 22 of the Children Act 1989. We note in Regulation 25 a different wording is used. This Regulation is dependant on the same primary legislation only in our view the words bear the same interpretation. There is no care order. The Local Authorities do not have care of Amy at any time within the context of the Regulations and therefore Regulation 25 does not apply. She was therefore to be treated as being resident at all times with the parent with care namely [the mother]. Accordingly the appeal on this particular ground is dismissed."

The chairman also recorded that he had granted the absent parent leave to appeal to the Child Support Commissioners.

7.	The appeal was not supported by the child support officer in the written submission dated 3 June 1997. The absent parent's request for an oral hearing of the appeal was granted. Both he and the parent with care attended the hearing. The child support officer was represented by Mr Leo Scoon of the Office of the Solicitor to the Department of Social Security. I am grateful to all present for their assistance.

8.	The absent parent's argument boiled down to this in essence: since the local education authority had placed Amy in the private residential school outside its area and paid all the fees, it was providing day to day care for her for the nights which she spent at school. He submitted that the circumstances fell under regulation 25 of the MASC Regulations and that that provision should be applied instead of regulation 27 because the placement at the particular school was because of the assessment of Amy's emotional and social problems. Therefore, he said, it was not an ordinary case of a child attending a boarding school for educational reasons. He mentioned the saving in expenses for the parent with care resulting from Amy absence at school for 40 weeks of the year, which he said would make it unfair for him to have to pay the full amount of child support maintenance. The parent with care opposed that argument, stressing the continuing expenses incurred while Amy was away at school. She put the period away at 35 weeks a year.

9.	I cannot accept the absent parent's argument. That is essentially for the reasons put forward by Mr Scoon, although I do not need to discuss the points on the Children Act 1989 which were considered at the hearing and by the appeal tribunal.

10.	Mr Scoon drew attention to the definition of "day to day care" in regulation 1(2) of the MASC Regulations. There was a change in the form of the definition on 18 April 1995, but both before and after that date it contained the provision that:

"where a child is a boarder at a boarding school, or is an in-patient in hospital, the person who, but for those circumstances, would otherwise provide day to day care of the child shall be treated as providing day to day care during the periods in question."

That provision is quite general in scope. It is not restricted to circumstances where a local authority is not paying the school fees. Although under regulation 1(2) the definition does not apply where the context requires otherwise, I do not see that the context (ie the wording and operation) of regulation 25 does require otherwise. The result is that, when considering whether the condition in regulation 25(1) is met, it must first be asked if the child is a boarder at a boarding school and, if so, who would otherwise be providing day to day care. In the present case it is clear that, if Amy were not at boarding school, her day to day care would be provided by the parent with care, with whom she has her home. Thus, the parent with care is to be treated as providing day to day care for periods when Amy is away at school, as well as actually providing day to day care when she is not away at school. Therefore the local authority cannot be treated as providing day to day care at all and the condition in regulation 25(1) is not met. The appeal tribunal was correct to say that regulation 25 did not apply. I cannot accept the absent parent's submission that I should apply the definition in regulation 1(2) with some flexibility to take account of the special circumstances of the case.

11.	Nonetheless, I agree that it is often unsatisfactory to decide a case on what seems to be a technical point of legal interpretation. Even if I had not taken the view expressed in the previous paragraph, I would still have decided the appeal against the absent parent. That is because I am satisfied that, for the purposes of the child support legislation, a local authority does not provide day to day care to a child merely by placing a child at a boarding school and paying the fees. In order for the legislation to work, the provision of day to day care must refer to the direct provision of such care rather than indirect provision. The circumstance that Amy was placed at the particular school under a statement of special educational needs and that her emotional and behavioural needs were relevant to the placement as well as educational needs does not take this case out of that general approach. I express no opinion on whether or not the child support legislation ought to provide for some apportionment of a maintenance assessment in cases like the present.

12.	The appeal tribunal applied the correct legal principle and reached the correct legal result on the facts which it found. Its decision was not wrong in law. The appeal must therefore be dismissed.

	(Signed)  J Mesher    
	Commissioner

	Date:  13 January 1998