R(CS) 4/03

Mr. C. Turnbull	CCS/128/2001
20.12.01
Maintenance assessment – day to day care – whether period other than 12 months must end with relevant week 
The Secretary of State made a maintenance assessment on the footing that the absent parent (AP) had shared care of the child. The parent with care (PWC) disputed this. On appeal to the Commissioner, it was argued on behalf of the PWC that for the purpose of determining whether there was shared care a period other than 12 months (chosen as more representative of the current arrangements for the care of the child under regulation 1(2)(b) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992) must end with the “relevant week”.
Held, allowing the appeal, that:
1.	the tribunal had erred in failing to give reasons for preferring the written assertions of the AP to those of the PWC and to state the period it had used and the number of days it found the child spent with the AP;
	
2.	the alternative period under regulation 1(2)(b) need not end with the relevant week (paragraph 13);	
	
3.	 “current” referred to the effective date of the maintenance assessment (paragraph 13); 	

4.	in regulation 1(2)(a) “ending with the relevant week” meant ending on the last (not the first) day of that week (paragraph 14).

The Commissioner remitted the case to a differently constituted tribunal.

1.	This is an appeal by the parent with care (“Mrs. C”) against a decision of the 
Leeds Appeal Tribunal made on 18 October 2000. For the reasons set out below 
that decision was in my judgment erroneous in law. I allow the appeal, set aside 
the Tribunal’s decision and remit the matter for redetermination by a tribunal not 
comprising the Chairman of the Tribunal. The new tribunal must apply the law as 
set out in paragraphs 13 and 15 below.

2.	The Tribunal’s decision was to dismiss Mrs. C’s appeal against a decision of the Secretary of State, made on 6 July 2000, that the absent parent (“Mr. C”) was liable to pay £53.24 per week in respect of the maintenance of the daughter of Mr. and Mrs. C (“R”) from the effective date of 14 March 2000. Mr. and Mrs. C had separated on 17 October 1999. This was the first maintenance assessment under the Child Support Act 1991 which had been made in respect of R.

3.	Mrs. C appealed to the Tribunal because she contended that the Secretary of State had been wrong to calculate the assessment on the footing that Mr. C had shared care of R. Mr. C stated on his maintenance enquiry form that R stayed with him for an average of 2 nights a week. Mrs. C disputed that on her Appeal Form. The Secretary of State’s written submission to the Tribunal stated that in the face of the conflicting evidence the Secretary of State was unable to determine whether shared care was appropriate, and requested the Tribunal to decide the issue. The Tribunal had before it, in addition to that evidence, a letter from Mr. C received on 13 September 2000, but it heard no oral evidence. 

4.	The Tribunal’s Decision Notice, which it described as also being a full statement of reasons, read:

“I accept and adopt the submissions of the CSA contained in the papers before me.
The Appellant has produced no evidence to refute the Respondent’s claim that [R] spends 104 nights per year with him.”

5.	That decision was erroneous in law in that no reason was given for preferring Mr. C’s written assertions to those of Mrs. C. It was further erroneous in law in that, in the circumstances of this case, the Tribunal ought to have stated (i) the period which it was using for the purpose of determining whether R spent 104 nights per year with Mr. C. and (ii) the number of nights during that period which it found R spent with Mr. C.

6.	It is further submitted on Mrs. C’s behalf in this appeal (i) that the period which must in this case be looked at is that from 17 October 1999 (when Mr. C left the matrimonial home) to 11 January 2000 (the beginning of “the relevant week”) and (ii) that I should myself find that R did not stay with Mr. C overnight at all during that period. 

7.	The first of those submissions raises a point of some importance on the meaning of the relevant provisions. The question is whether Mr. C provided “day to day care” for R. By regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 “day to day care” means:

“(a)  care of not less than 104 nights in total during the 12 month period ending with the relevant week; or

(b)	where, in the opinion of the Secretary of State, a period other than 12 months is more representative of the current arrangements for the care of the child in question, care during that period of not less in total than the number of  nights which bears the same ratio to 104 nights as that period bears to 12 months,

and for the purposes of this definition – 
(i)	…

(ii)	in relation to an application for child support maintenance, “relevant week” shall have the meaning ascribed to it in head (ii) of sub-paragraph (a) of the definition of “relevant week” in this paragraph;
(iii)	…

8.	The definition of “relevant week” applicable under (ii) is the period of 7 days preceding the date on which the maintenance enquiry form is sent to the absent parent (i.e. in this case the week from 11 to 17 January 2000).

9.	The question arising on the definition of “day to day care” is: must a period of other than 12 months, chosen under limb (b) of the definition, be a period “ending with the relevant week”? 

10.	It is important to note that, prior to an amendment as from 1999 contained in the regulations which brought into force the relevant provisions of the Social Security Act 1998, the opening words of limb (b) read as follows: 

“where, in the opinion of the child support officer, a period other than 12 months but ending with the relevant week is more representative ….”

11.	So the amendment did not simply replace the reference to a child support officer with a reference to the Secretary of State. It also removed the words “but ending with the relevant week.” There are, I think, only 3 possible explanations for the removal of those words: (i) that it was accidental; (ii) that it was thought that they were unnecessary – i.e. that the meaning would remain the same even without them; (iii) that the intention was to change the meaning –  i.e. so that the period chosen need no longer end with the relevant week.

12.	If limb (b) had always been in its present form, I would have been inclined to construe it as meaning that the period “other than 12 months” must end with the relevant week. That is I think the more natural meaning. The fact that limb (b) expressly states that the period can be of something other than the 12 months specified in limb (a), but does not state that that period can end on a date other than the end date required in limb (a), would probably have implied that, although the length of the period can be altered, the end date cannot. 

13.	However, taking into account the history of the enactment I reach the conclusion that the period chosen under limb (b) of the definition of “shared care” in regulation 1(2) of the 1992 Regulations need not end with the last day of the “relevant week.” My reasons are these:

(1)	I think that the third of the possible reasons (see paragraph 11 above) for the amendment is by far the most plausible. In particular, I do not think it likely that the draftsman would have thought that it was so clear that removal of the words would leave the meaning unchanged that he could safely remove them without altering the meaning;

(2)	I accept that if limb (b) has the meaning which I now favour there is an oddity. This is that, if the Secretary of State is satisfied that a period of 12 months is “representative of the current arrangements for the care … ”, but not the period of 12 months ending with the relevant week, he could not take that other 12 month period; whereas if the period thought to be more appropriate is of more or less than 12 months, it need not end with the relevant week. That is an oddity which in my view simply has to be accepted. It is of no importance in practice in that it can be circumvented by the Secretary of State opting for a period of slightly more or less than 12 months. 

(3)	My construction of limb (b) seems to me to be likely to enable the Secretary of State to choose a period “more representative of the current arrangements for the care of the child in question”, and thus to enable limb (b) to fulfil its broad purpose, in many more cases than would the alternative construction. That raises the question of the meaning of “current arrangements”. The time to which the word “current” refers would seem to me to be the effective date of the maintenance assessment. In the present case, for example, that date was 3 March 2000, whereas the “relevant week” ended on 17 January 2000. A period ending later than the “relevant week” may in many cases enable a period more representative of the “current arrangements” to be selected.

(4)	The reason for specifying the “relevant week” as the end date in limb (a) (and in limb (b) as previously enacted) may have been one of convenience. In the standard case of an application for a maintenance assessment by the parent with care, “relevant week” is defined by reference to the date when the maintenance enquiry form is sent. The Secretary of State should therefore by definition have information which is sufficiently up to date to enable him to determine the position during any period ending with the relevant week. But once one widens the enquiry in order to enable a more “representative” period to be chosen, the case for sticking with the same end date arguably becomes much weaker.

14.	A small further point is that, under limb (a), the period referred to is “the 12 month period ending with the relevant week.” In my judgment that means the 12 month period ending on the last (not the first) day of that week. If I had accepted the submission that a period selected under limb (b) must end with the relevant week, the end date would therefore have been 17 January 2000, not 11 January 2000.

15.	What is the effect of my conclusions on the submissions of Mrs. C (set out in paragraph 6 above)? It is that I reject submission (i). The period of 12 months ending with the relevant week would plainly not be appropriate in this case. Mr. C did not leave until 17 October 1999, some 9 months into that period, so that limb (b) of the definition of “day to day care” undoubtedly has to be applied. The period chosen under limb (b) must clearly begin no earlier than 17 October 1999. But a new tribunal may conclude that a period ending later than 17 January 2000 (the end of the “relevant week”) is more representative of the “current arrangements” for the care of the child. I do not have the evidence to enable me satisfactorily to determine that question. The matter must therefore be remitted to a fresh appeal tribunal.

16.	I should also state that, even if I had accepted submission (i), I would not have felt it right to attempt to determine how many nights, if any, R spent with Mr. C between 17 October 1999 and 17 January 2000 without the parties having the opportunity to present further, and in particular oral, evidence. I would therefore in any event have remitted the case to a new tribunal.

(Date)	20 September 2001	(signed) Charles Turnbull 
Commissioner