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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2001] UKSSCSC CCS_128_2001 (20 September 2001) URL: http://www.bailii.org/uk/cases/UKSSCSC/2001/CCS_128_2001.html Cite as: [2001] UKSSCSC CCS_128_2001 |
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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:
The Commissioner remitted the case to a differently constituted tribunal.
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.
"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."
"(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) …
"where, in the opinion of the child support officer, a period other than 12 months but ending with the relevant week is more representative …."
(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.
(Date) 20 September 2001 | (signed) Charles Turnbull Commissioner |