Decision No: CSC7/94

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

Appeal to the Child Support Commissioner
on a question of law from the decision of the
Strabane Child Support Appeal Tribunal
dated 14 February 1994

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal brought by a Child Support Officer against the decision of a Child Support Appeal Tribunal and it comes by leave of the Chairman of that Tribunal.

2.	I arranged an oral hearing at which the absent parent was represented by Mr M... of Counsel instructed by Messrs H C O… & Company, Solicitors and the Child Support Officer was represented by Mrs Fearon Solicitor of the Department of Health & Social Services.

3.	The Child Support Agency made an assessment in this case and the absent parent sought a review on two grounds; one related to housing costs and the other related to his claim for an allowance in respect of having shared the care of his children with his wife.  In his letter of appeal to the Tribunal he said:-

"I would like to find out why no allowance was given for shared
care considering the information that I supplied stated that I
kept my children on average more than 2 nights per week for the
past year.  This also does not include additional afternoons and
evenings that I keep my children."

The Child Support Appeal Tribunal which heard the appeal went into the matter very thoroughly and made a finding of fact relating to that aspect of the matter as:-

"Absent parent had 3 of his children (not always to same three)
for a total of 109 nights for the period June 1992 - June 1993."

and allowed the appeal and gave directions to the Child Support Officer as follows:-
"Tribunal direct as follows:-

(1)  Child Support Officer should take into account weekly rent
paid by Absent Parent in the sum of £45.00.

(2)  Child Support Officer should take into account shared care
in calculation of maintenance on the basis that the Absent
Parent had not less than 3 of his children for not less than 
2 nights per week on average during a 12 month period ending 
with the relevant week."

and in its reasons for the decision relating to the shared care aspect gave reasons as:-

"Tribunal accept Absent Parent's evidence today in relation to
shared care and he therefore satisfies the requirements of the
Child Support (Maintenance Assessment and Special Cases) 
Regulations (Northern Ireland) 1992."

4.	The Child Support Officer sought leave to appeal and was granted leave by the Chairman of the Tribunal.  The grounds of appeal were:-

"The Child Support Appeal Tribunal erred in law in that they
misinterpreted Regulation 20 of the Child Support (Maintenance
Assessment and Special Cases) Regulations (Northern Ireland)
1992 which deals with the situation where care arrangements are
shared.

Regulation 1(2) of the above mentioned regulations provides for
the interpretation of the phrase "day to day care" as referred
to in Regulation 20 and it states:-

"Day to day care" means care of not less than 2 nights per
week on average during -

a.  the twelve month period ending with the relevant week, or

b.  such other period ending with the relevant week, as in
the opinion of the Child Support Officer, is more
representative of the current arrangements for the care
of the child in question."

Accordingly the Child Support Appeal Tribunal should not have 
referred to the total amount of nights spent by an unspecified 
number of children with the absent parent but instead should have
addressed the issue of whether each child spent at least "2 nights
a week on average" with the absent parent during the period in
question."

and in a letter written before the hearing of the appeal to the Commissioner the Child Support Officer wrote as follows:-

"On 18 May I made a written application for leave to appeal to the
Child Support Appeal Commissioner on a point of law against the
decision of the Child Support Appeal Tribunal dated 14 February 1994.
Leave to appeal was granted by the Tribunal Chairman on 23 May 1994.

I now wish to appeal against the Tribunal's decision.  My grounds 
for appeal are as follows:

At the Child Support Appeal Tribunal hearing Mr M... produced a list
of the dates he kept the children overnight during the period June
1992 to June 1993.  In the evidence recorded by the Chairperson
Mr M... stated he kept the children as often as he could - "on
average 3 children sometimes 4".

The Tribunal found as fact that Mr M... had 3 of his children (not
always the same 3) for a total of 109 nights for the period June
1992 - June 1993.

In allowing the appeal the tribunal directed the Child Support
Officer to take account of shared care in calculating the 
maintenance on the basis that the Absent Parent had not less then
3 of his children for not less than 2 nights per week on average
during a 12 month period ending with the relevant week.

I submit that the Child Support Appeal Tribunal erred in law in
that they misinterpreted Regulation 20 of the Child Support 
(Maintenance Assessment and Special Cases) Regulations (Northern
Ireland) 1992 which deals with the situation where care arrangements
are shared.

Regulation 20(1) of the Child Support (Maintenance Assessment and
Special Cases) Regulations says -

"20.-(1)  Where the circumstances of a case are that -

(a)  two or more persons who do not live in the same household
each provide day to day care for the same qualifying child;
and

(b)  at least one of those persons is a parent of that child;

that case shall be treated as a special case for the purposes
of the Order.

Regulation 1(2) of the above mentioned regulations provides for the
interpretation of the phrase "day to day care" as referred to in
Regulation 20 and it states:-

"Day to day care" means care of not less than 2 nights per 
week on average during -

(a)  the twelve month period ending with the relevant week; or

(b)  such other period ending with the relevant week, as in the
opinion of the Child Support Officer, is more representative
of the current arrangements for the care of the child in
question."

Accordingly I submit the Child Support Appeal Tribunal should not have
referred to the total amount of nights spent by an unspecified number
of children with the absent parent but instead should have addressed 
the issue of whether each child spent at least "2 nights a week on
average" with the absent parent during the period in question."

5.	At the hearing before me Mrs Fearon argued that the Tribunal was not in a position to assess a proper amount without knowing the ages of the children.  But Mr M... argued at length that there was nothing to say that an absent parent must establish that any particular child was with him at any particular day.  He said that the Agency may be faced with a problem, nevertheless they had instructions from the Tribunal which they should carry out.

6.	I have considered all that was said and I have considered all the written submissions.  One of the difficulties in this matter is that in neither the submission to the Appeal Tribunal or to me is there any reference to the reason why it is necessary to identify each child and the period each child was with the absent parent.  

7.	To discover the answer one must go to the Child Support (Maintenance Assessment and Special Cases) Regulations (Northern Ireland) 1992 and regulation 9(3) and (4) which read:-

"(3)  Where an absent parent does not have day to day care of
any relevant child for 7 nights each week but does have day to
day care of one or more such children for fewer than 7 nights 
each week, any amounts to be taken into account under sub-
paragraphs (c) and (f) of paragraph (1) shall be reduced so 
that they bear the same proportion to the amounts referred to 
in those sub-paragraphs as the average number of nights each 
week in respect of which such care is provided has to 7.

(4)  Where an absent parent has day to day care of a relevant
child for fewer than 7 nights each week, any amounts to be 
taken into account under sub-paragraph (g) of paragraph (1) in 
respect of such a child shall be reduced so that they bear the 
same proportion to the amounts referred to in that sub-paragraph
as the average number of nights each week in respect of which
such care is provided has to 7."

and regulation 9 is a regulation which relates to the amount of exempted income of the absent parent and 9(1)(g) which was referred to in 9(4) reads:-

"(g)  in respect of each relevant child -

(i)  an amount equal to the amount of the personal
allowance for that child, specified in column (2)
of paragraph 2 of the relevant Schedule (income
support personal allowance) or, where paragraph
(2) applies, half that amount;

(ii) ................."

8.	So to apportion the amount referred to in regulation 9(4) one must go to column (2) of paragraph 2 of the Income Support (General) Regulations (Northern Ireland) 1987, Schedule 2(2).  It is clear from this regulation that the income support personal allowance in respect of a child or young person varies as to whether or not the child is less than 11, not less than 11 but less than 16, not less than 16 but less than 18 and not less and 18.  There are four different amounts varying from £15.65 to £36.15. 

9.	Turning to the instant case the children vary in ages from E.. who was 6 at the time the calculations were made to K… who was 18 and there are 4 children under 11, one over 11 and under 16 and another 16.  So before one can decide the proper child support maintenance assessment one must be able to assess how that allowance is to be apportioned between the parents.  It is for that reason that it would have been necessary for the Tribunal to spell out which particular child was with the father and when.

10.	The Tribunal went into the matter very thoroughly but got no assistance whatever from the Child Support Agency's submission, because at no time was any reference made to this fact, and no reference was made to the Regulations under which this assessment was made.  I am satisfied that had it been explained to the Tribunal why it was necessary to identify the children the Tribunal would have done so.

11.	I must therefore find that there was an error in law in not so doing.   I allow the appeal, set aside the decision of the Child Support Appeal Tribunal.  I refer the matter back to be reheard, but there is no reason why it should not be heard by the same Tribunal who have made findings of fact and all that would be required would be for them to make more detailed findings; but that is a matter for others to decide.

12.	I think it would be helpful if the Child Support Agency in making submissions to Tribunals concentrated more on the relevant matters before the Tribunals but no doubt in the fullness of time this will happen.

	(Signed):  C C G McNally

	COMMISSIONER

	10 February 1995