PLH                                                                         Commissioner's File:  CCS 3078/04

	CHILD SUPPORT ACTS 1991-1995

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

Appellant: 		Secretary of State
Respondents:		(1) [the absent parent]
			(2) [the parent with care]
Appeal Tribunal: 	Bournemouth
Tribunal Case Ref:  	
Tribunal date:		5 May 2004
Reasons issued:	5 May 2004

     1.     	This appeal by the Secretary of State must be allowed, as in my judgment the Bournemouth appeal tribunal consisting of a chairman Mr P D McEldowney sitting alone on 5 May 2004 plainly misdirected itself and went outside its jurisdiction in purporting to impose a limit on the effect of a departure direction which it found to be justified under the Child Support Act 1991 from 28 March 2003, by reference to future amendments not yet part of the legislation applicable to this case at that date.  I set the decision aside and remit the case to a differently constituted tribunal to rehear and redetermine the absent parent’s appeal against the Secretary of State’s determination of 19 September 2003 in accordance with the relevant law in force and applicable to the assessment from 28 March 2003.  
     2.     	Apart from the way in which the tribunal chose to deal with it this was a relatively simple and straightforward case.  It concerns the maintenance for a boy now aged 7 who lives with his mother.  At all material times from 5 April 2002 there has been a child support assessment in force prescribing the amount his father, the absent parent, is liable to pay her for his maintenance needs in accordance with the 1991 Act. Initially this was £64.96 a week, but the amount has been varied up and down on several occasions as a result of different applications made by each of the parents at various dates and for various reasons.  According to the details provided by the Secretary of State to the tribunal, the absent parent’s liability as determined in accordance with the formula under the 1991 Act from the effective date of 28 March 2003 was £50.33 a week; but only seven days after that assessment had been made on 10 July 2003 it was reduced again, to £30.33 a week.  That was done by a further determination on 17 July 2003, made on a departure direction on an application by the absent parent, awarding him that substantial reduction in his statutory liability by giving him special allowances for travel to work and contact costs, and reducing by half the housing costs allowed to the boy's mother in the assessment on the ground that her new partner could contribute to them.  
     3.     	These proceedings arose out of the further departure application she thereupon made in her turn, seeking to get his liability increased again to something nearer the assessed maintenance requirement, which was £89.95 a week.  She said the travel costs now allowed to him were excessive and pointed out he was still getting a full allowance for his own (much higher) housing costs, even though he too was living with a new partner who was earning and able to contribute to them.  That resulted in the Secretary of State making the further determination of 19 September 2003 which left the allowance for his travel expenses unaltered, but reduced the housing costs by apportioning these 55% to 45% between him and his new partner according to their net disposable incomes.   Because the total amount originally allowed to him was comparatively high, the reduction to 55% had the effect of increasing his weekly maintenance liability to £61.48 from the effective date of 28 March 2003.  He appealed to the tribunal, saying that the reduction was excessive and he should be allowed 100% without his partner being included in the calculation: see his notice of appeal dated 12 October 2003 at page 44.  
     4.     	The issue for the tribunal on that appeal was thus whether it was just and equitable, in terms of section 28F Child Support Act 1991 as in force and applicable to the subsisting maintenance assessment from 28 March 2003, to give the departure direction under paragraph 5(1) of schedule 4B ibid. and regulation 27 Child Support Departure Direction and Consequential Amendments Regulations 1996 SI No 2907 reducing his allowable housing costs by 45%; against the background of a maintenance requirement of £89.95, an existing departure having already reduced those for the parent with care by 50%, and the absent parent and his new partner having a combined net weekly disposable income of £549.29 per week of which 45% was hers: see the calculation on page 4.  That question fell to be determined in accordance with the Child Support Act 1991, as amended by the 1995 Act to include the departure provisions, and the regulations as in force and applicable to this case at the effective date of 28 March 2003 and the date of the Secretary of State’s decision of 19 September 2003. 
     5.     	The legislation thus applicable did not of course include any future or proposed amendments not yet in force or applicable to this assessment for the purpose of determining the legal rights or obligations of the parties at those dates.  In particular, it did not include the major amendments to the child support scheme formula and other provisions contained in Part I Child Support, Pensions and Social Security Act 2000 which, in accordance with the express provisions in that primary legislation for their deferred and phased introduction by specific subordinate legislation only at a later date or dates, were not yet in force as regards this assessment to limit or define the child support obligations for this young boy at the dates for which they were required to be determined.
     6.     	It must follow that the tribunal chairman in this case clearly erred in purporting to apply the basic rate percentage under the new formula in the 2000 Act as if it limited (and indeed defined) what could count as “just and equitable” when looking at the effect of a departure direction applied to the formula under the present and still applicable law. He first determined, entirely correctly in my respectful view, that this was a case requiring a departure direction of the kind given by the Secretary of State, finding expressly that (1) having regard to the maintenance requirement of £89.95 the absent parent’s child support maintenance liability of £30.33 was inadequate for all practical purposes for his son’s benefit; (2) the amount was depressed by the high amount of his housing costs; and (3) his partner was in receipt of an income of her own and it was appropriate and reasonable for her to contribute to them.  
     7.     	However the chairman's reasoned decision of 5 May 2004 at pages 54-55 then proceeded, without making any further finding on whether the apportionment of those costs on the basis of their two net incomes was itself reasonable, to assess what he understood to be the impact of the departure direction in terms of the new legislation, saying:
“2.3  Against that background the Tribunal found that the Departure Direction allowed by the Secretary of State, to increase the Appellant’s liability to £61.48 (more than double), ws draconian and excessive, and that it was neither just nor equitable to him or his partner.
2.4	 The Tribunal set out to achieve a fairer outcome to all concerned from the Departure Direction, and in considering the extent to which its impact would be just and equitable, it took note of the radical reforms of child support maintenance legislation brought in by the Child Support, Pensions and Social Security Act 2000, with effect from 03/03/03, as well as all matters to have regard to under s.28F of the Act.
2.5	 Among those reforms was the abolition of the old child support maintenance assessment formulae, of which parents’ Housing Costs were a consituent part, and the Departure Direction provisions for “Partner’s contribution” to such costs (which had consequently become irrelevant), and their replacement with the new, simpler formula now in effect for new cases since 03/03/03 only.
2.6	 The new formula was enacted because Parliament considered it to be more just and more equitable to parents and children affected by separation than the old regime.
2.7	 That the new formula has not been applied to this case is due to an administrative decision, which does not detract from Parliament’s decision itself, so this Tribunal adopts the new formula as its yardstick of justice and equity in relation to the impact of Departure Directions such as the one concerned in this case.
2.8	 In that way the approach taken by the Tribunal to the “just and equitable” test was to limit the effect of the Departure Direction to the difference between the respective outcomes of the old and the new formulae.”
Accordingly he calculated that under the new formula the basic rate percentage of 15% of the non-resident parent’s net weekly income for one qualifying child would be £46 per week and applied that as a top limit, holding that the child support maintenance liability should be increased by the departure direction from £30.33 up to £46 only.
     8.     	In my judgment, the Secretary of State’s appeal against that decision as being wrong in principle is entirely justified, and the decision must be set aside as erroneous in law.   It seems to me a matter for political or social, rather than legal, debate whether the use of a new and greatly simplified formula in the 2000 Act can imply anything one way or the other on whether the result will turn out more just or equitable in a particular case than the present rules with their greater complication but wider scope: it might perhaps equally well be supposed that Parliament was prepared to accept some rather rougher justice in individual cases in the interests of greater practicality and expediency overall. But however that may be, and confining oneself just to basic statutory interpretation, it is plainly the case that Parliament intended, and expressly provided, for the new formula and the new limits on a non-resident parent’s maintenance liability to become applicable only when introduced, from some future date by further subordinate legislation (and even then in a phased way rather than a sudden complete cut): see sections 29, 86 of the 2000 Act.  In fact, no regulations under the delegated legislative powers in the 2000 Act to make the new formula apply to cases with existing assessments such as this one have yet been made, and according to the Secretary of State’s submission no decision has yet been made to do so.  Unless or until that position changes and the law governing child maintenance obligations under assessments such as this one does come to be altered, there can be no doubt of the intention and the express will of Parliament in the primary legislation that the full scope of the existing provisions must continue to apply.  
     9.     	Consequently there can in my judgment be no doubt that the Secretary of State is correct in saying that the tribunal chairman misdirected himself in regarding the way he should determine the departure issues before him under the old legislation as limited by provisions not yet in force in the new. I have every sympathy with his apparent exasperation that tribunals, and much more importantly the parties before them, are currently subjected to two different and inconsistent child support regimes for no better reason than administrative inability to get a computer system to work properly.  However it was I am afraid beyond his proper judicial function to decide in effect that because he considered the reasons for the present state of affairs unsatisfactory, he would remedy the absence of actual legislation by starting to apply the new provisions or at least some aspects of them for himself anyway.  
     10.     	In addition, I accept the Secretary of State’s submission that the tribunal’s stated reasoning about the harshness and “inequity” of this particular departure direction is additionally flawed as it appears to overlook the fact that the £30.33 per week liability was itself the result of a substantial departure from the normal formula in the absent parent’s favour.  The difference in the figures on the formula itself, without the 50% disallowance already imposed on the parent with care's housing costs, is much less marked and that would have been the rational basis of comparison. 
     11.     	I therefore accept the submissions by Mr B A Wilson on behalf of the Secretary of State dated 26 August 2004 at pages 75 to 78, that the tribunal decision was erroneous in law.  I set it aside and remit the case in accordance with section 24(3)(c) Child Support Act 1991 to a freshly constituted tribunal for redetermination of the original appeal by the absent parent against the departure direction given by the Secretary of State on 19 September 2003.  That is in my judgment the only fair course I can take as the various factual and other issues affecting the departure direction under section 28F in this case need to be considered completely afresh by a tribunal of fact properly directing (and confining) its mind to the relevant legislation: that is the presently applicable legislation, not the amendments that have not yet been brought into force for such cases as this.

(Signed)

P L Howell
Commissioner
16 June 2005