R(CS) 1/03
Mr. E. Jacobs CCS/0901/2002
8.7.02
Tribunal jurisdiction – appeal against a decision revised under section 16 of the Child Support Act 1991 – effect of section 20(7)(b) of the Child Support Act 1991
On 1 November 2001 the Secretary of State decided that the absent parent was liable to pay child support maintenance of £31.91 per week in respect of J. and C..On 12 April 2001 the decision was revised under section 16 of the Child Support Act 1991, the revised amount payable being £54.31 per week. The effective date of each decision was 21 August 2000. The parent with care appealed to the tribunal, disputing the extent to which the absent parent had shared "day to day" care. The tribunal considered evidence of shared care for a period ending in Easter 2001 – however it purported to find that there was no dispute regarding shared care in August and November 2000. The parent with care appealed to the Commissioner and the Secretary of State supported the appeal.
Held, allowing the appeal, that:
- section 20(7)(a) prevents an appeal tribunal from taking account of circumstances which were not obtaining at " … the time when the decision or assessment appealed against was made." – therefore, when considering an appeal against a revised decision, a tribunal is prevented from taking account of changes of circumstances that occurred after the date on which the original decision was made, even if those changes occurred before the date on which the decision was revised (paragraph 11);
- section 20(7)(a) does not therefore override the limitation built into the revision process by regulation 17(6)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 which prevents a revision in respect of a material change of circumstance (such changes being a matter for the supersession procedure) (paragraphs 10 and 11);
- on the facts of this case the tribunal was not entitled to take into account changes in shared care that may have occurred after the date of the original decision on 1st November 2001 (although it was entitled to take account of later evidence of circumstances that were obtaining at the relevant time, as discussed in R(DLA) 2 and 3/01) and, in so doing it had erred in point of law (paragraphs 12 and 13);
- in relation to day to day care, the Secretary of State, and, on appeal, the appeal tribunal, should consider first, the position at the effective date of the assessment, and second, whether there was any change between that date and the date when the Secretary of State's decision is made (paragraph 15).
The Commissioner set aside the decision of the tribunal and remitted the case to a differently constituted tribunal for rehearing.
DECISION OF THE CHILD SUPPORT COMMISSIONER
- My decision is as follows. It is given under section 24(2) and (3)(d) of the Child Support Act 1991.
- 1. The decision of the Wolverhampton appeal tribunal, held on 17 October 2001 under reference U/05/054/2001/02015, is wrong in law.
- 2. I set it aside and remit the case to a differently constituted appeal tribunal.
- 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision in accordance with my analysis of the law.
The appeal to the Commissioner
- This case concerns the child support maintenance payable with respect to J and C. In the terminology of the child support legislation, the appellant is their parent with care, and the second respondent is their absent parent. I shall refer to them in those terms.
- This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the parent with care with my leave. The Secretary of State supports the appeal. Both parents have made observations on the appeal.
The issues
- The issue for the appeal tribunal was whether the absent parent had day to day care of each child. The tribunal had to answer this question: how many nights did each child spend with each parent? As so often in child support law, the key to the correct determination of this case lies in the dates.
- In this case, there are four relevant dates. On 1 November 2000, the Secretary of State decided that the absent parent was liable to pay child support maintenance of £31.91 a week for J and C. On 12 April 2001, the decision was revised under section 16 of the Child Support Act 1991. The revised decision was that the absent parent was liable to pay child support maintenance of £54.31. The effective date of each decision was 21 August 2000. Finally, there are the dates of the 'relevant week': see paragraph 18.
- These dates are relevant to two provisions: 20(7)(b) section of the Child Support Act 1991 and those dealing with day to day care.
Section 20(7)(a) - interpretation
- Section 20(7)(b) is in the same terms as section 12(8)(b) of the Social Security Act 1998. It provides:
'In deciding an appeal under this section, an appeal tribunal-
(b) shall not take into account any circumstances not obtaining at the time when the decision or assessment appealed against was made.'
- This provision is worded in the negative. That is important. It does not require an appeal tribunal to take account of all circumstances that were obtaining at the time when the decision under appeal was made. Nor does it permit it; it is not extending the tribunal's jurisdiction. It only prevents the appeal tribunal from taking account of those circumstances that were not obtaining at the relevant time. The significance of the negative wording becomes clear when the nature of the decision under appeal in this case and the limitations of the revision process are considered.
- Apart from the limitation that section 20(7)(a) imposes on a tribunal's jurisdiction, it does not affect the basic nature of an appeal, which requires the tribunal to consider afresh the decision of the Secretary of State in the light of evidence and argument before the tribunal.
- The decision under appeal was that made on 12 April 2001. It revised the decision of 1 November 2000. The revision process in this case was governed by section 16 of the Child Support Act 1991 and regulation 17 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. Regulation 17(6)(a) prevents a revision in respect of a material change of circumstances. Those changes are exclusively dealt with under the supersession procedure.
- So, the nature of an appeal prevents an appeal tribunal dealing with an appeal against a decision that has been revised from taking account of changes of circumstances that occurred after the date when the original decision was made, even if it occurred before it was revised. Section 20(7)(b) does not affect that. Its negative wording preserves that position. It does not override the limitation built into the revision process by regulation 17(6)(a).
Section 20(7)(a) – applied to this case
- The appeal tribunal considered evidence of shared care for a period ending in Easter 2001. The revised decision was made on the last working day before Easter. The tribunal was not entitled to take account of changes that may have occurred after the date of the original decision on 1 November 2000. It was entitled to take account of later evidence of the circumstances that were obtaining at the relevant time. See my interpretation of section 12(8)(b) in R(DLA) 2 and 3/01. Later evidence may be relevant to test whether or not a particular pattern of care had been established by the relevant date. But it is difficult to imagine a case in which evidence covering a period of more than 5 months after the relevant date would be relevant to the pattern of care at that date.
- The tribunal went wrong in law by taking the evidence of this later period into account in the way that it did.
Day to day care
- 'Day to day care' and the related 'relevant week' are defined in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.
- The law on day to day care contains a number of complex provisions about dates. It is wise to bear in mind the purpose that the dates serve. The issue of day to day care breaks down to two questions for the Secretary of State and, on appeal, the appeal tribunal. First, what was the position at the effective date of the assessment that is being made? Second, was there a change between that date and the date when the Secretary of State's decision is made? (Remember that in the case of a revision, the date of the decision in question is the date of the original decision.)
- These questions are deceptively simple. Answering them presents all sorts of problems for tribunals. They have to unravel the facts from evidence that is affected by one or more of the following: the tricks of memory; inaccurate recollection; plans that were made but later changed; expectations that never materialised; and outright lies. Naturally, the tribunal will begin by identifying the extent to which the parties are agreed. In this case, the full statement of the tribunal's decision records that there was no dispute that there was shared care as at both August and November 2000. If that was the case, then there was no dispute for the tribunal to resolve, because (as I have just explained) those are the only dates with which the tribunal was concerned. In fact, the tribunal was wrong in this. Page 11 shows that the parent with care agreed to shared care being taken into account in order not to hold up the assessment and on the understanding that later changes could be taken into account. Day to day care was disputed by the parent with care's evidence. The tribunal went wrong in law by overlooking this.
- The complexities of the provisions dealing with dates are not there for their own sake. They are there to help the decision-maker and the tribunal reach a correct answer to the first question: what was the position at the effective date of the assessment that is being made? An example makes the point clear. The provisions direct attention first at the period of a year ending with the relevant week. However, many changes in the arrangements for care may have taken place during that year. Taking account of the whole year would average out the changes. But that would not help fix the extent to which day to day care was shared at the effective date. In order to determine that, a shorter period should be used, as the legislation allows, in order to eliminate day to day care under a pattern of provision that no longer obtained at the effective date.
- The correct approach is this. Begin by identifying the relevant week. The Secretary of State has identified that as the week of 21 to 27 June 2000. Then, take an overview of the shared care for the period of 12 months ending with that week. If there are no significant changes within that period, day to day care can be determined by reference to the whole period. If there has been a change, the part of the period before the most recent change should be eliminated. Day to day care can then be determined by reference to the remainder of the period. Finally, any changes after the effective date and before the date of decision can be identified and taken into account under paragraph 15 of Schedule 1 to the Child Support Act 1991. The only problem that this analysis creates arises if there has been a change between the relevant week and the effective date. The period will be short, so the chances of this happening are small. But it can happen. An imaginative use of paragraph 15 can prevent any unrealistic assessments based on out of date arrangements for day to day care. I respectfully disagree with CCS/128/2001 - I am not persuaded that the amendment to the definition could have the effect suggested by the Commissioner.
Conclusion
- I allow the appeal and direct a rehearing of the case so that day to day at the relevant times may be investigated and determined. I hope that both parents will be able to attend, as the questioning of the parties is valuable in resolving the conflicts of evidence in day to day care cases. They should bring to the hearing any contemporaneous documentary evidence they may have made of the nights that J. and C. spent with the absent parent.
| Date: 8 July 2002 |
(signed) Edward Jacobs
Commissioner |
