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[2004] UKSSCSC CCS_2621_2003 (16 January 2004)

 


CCS/2621/2003

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. This appeal succeeds. The decision of the appeal tribunal sitting at Southampton on 25 February 2003 is wrong in law. I therefore set aside the tribunal's decision under section 24(2) of the Child Support Act 1991. I consider it expedient to make my own further findings of fact (as set out below in paragraphs 20 and 21). In the light of those findings I give my own decision, in substitution for that of the appeal tribunal, exercising my power under section 24(3)(b) of the 1991 Act. My decision is as follows:

The child Paul B was a qualifying child as at the effective date of 5 February 2000. The non-resident parent is liable to pay child support maintenance as from that date. Accordingly the non-resident parent's appeal to the tribunal is dismissed. It follows that the revised decision of the Secretary of State that the non-resident parent was liable to pay child support maintenance of £97.73 per week from 5 February 2000 stands. The case is remitted to the Secretary of State for further action as appropriate.

2. The central question in the case is whether the child Paul B, who lived with his mother Mrs B at the relevant time, was a qualifying child as at the effective date of 5 February 2000. If he was, then the Child Support Agency (the Agency) had jurisdiction to make an assessment of child support payable by Paul's father, Mr B, the non-resident parent. If Paul was not a qualifying child at the material time, then the Agency has no jurisdiction under the 1991 Act. In this decision I shall refer to the parties as respectively Paul, the mother and the father, so as both to ensure their anonymity and to avoid confusion (the father having been the appellant before the appeal tribunal and the mother now being the appellant before the Commissioner). This case, as with so many in the sphere of child support, has a long and unhappy history. The appeal papers reveal a history of deep mistrust and intense antagonism between the parents. For present purposes it is necessary only to summarise this history and to focus on the chronology only insofar as it is relevant to the question of determining whether Paul was a "qualifying child" at the "effective date" under the 1991 Act.
3. Paul was born on 4 February 1982. It follows that he was 18 on 4 February 2000 and 19 on 4 February 2001. At the date of this decision he is 21 but is rapidly approaching his 22nd birthday. It is not in dispute that Paul has experienced a number of (doubtless inter-related) problems over the years in connection with both his health, education and family circumstances. He was referred to the Child and Family Guidance Service in 1990, at the age of 7 or 8, as "hyperactive". In 1996 his GP referred him to a specialist for behavioural problems. At that age of 14 he was diagnosed as suffering from Attention Deficit Disorder and also from dyslexia. It also appears clear, from the medical evidence on file, that he has been adversely affected by the ongoing animosity between his parents. It seems that the mother filed for divorce in March 1998 but the parents continued to live (with Paul) in the same home until April 1999, when the father left. The parents' relationship during this latter period was understandably fraught, as indicated by the mother's county court undertaking in April 1998 not to "molest, threaten, harass or pester" the father (she now states that she was not in a fit state at that time to enter into any such undertaking) and the father being summonsed before the magistrates' court in May 1999 (it appears these proceedings were dropped). Whatever the merits of the various disputes as between the parents, clearly the resulting tension cannot have helped Paul.
4. Without prejudging the issue to be determined in this appeal, Paul's secondary education has clearly been subject to some disruption. In September 1996, when he was 14, Paul started at a private school which specialises in helping children with learning problems. Whatever the reason, there were difficulties in meeting the school fees and in February 1999 (according to the father) or March 1999 (according to the mother) Paul left that school at the age of 17. For present purposes the precise date on which Paul left is immaterial, as is the reason for his leaving (his father says he was expelled). A letter dated 23 February 1999 from the school to the father (doc 12) records that Paul had been entered in one GCSE subject only for the June 1999 examinations as "the failure to produce course work in other subjects has precluded entry". It is unclear what education (if any) Paul received during the 6 months or so following his departure from that school. However, the appeal papers show that in April 1999 he was interviewed for and offered a place at a sixth form college as from the start of the following academic year. Around this time the mother made an application for child support.
5. In September 1999 Paul duly started as a full-time student at the sixth form college, enrolling for an AS level in Accounting and for three GCSE subjects. However, he had various problems associated with his studies, resulting in him dropping the AS course on 20 January 2000 and two of the GCSEs a week later. From the college's point of view, he was a part time student as from 31 January 2000, following just one GCSE course. His last registered attendance at that class was on 13 March 2000. The college suggested that a more vocationally based course might be more appropriate for Paul. Shortly thereafter he applied to a different college (the "City College") to start a GNVQ IT course as from the start of the 2000/01 academic year. The City College's certificate (doc 65) shows that he started that course on 11 September 2000 but withdrew on 4 December 2000 and that the course involved 18 hours of classes per week.
6. Returning to the history of the child support application, on 9 February 2000 a decision maker acting on behalf of the Secretary of State decided that the father was liable to pay child support of £87.53 a week as from the effective date of 5 February 2000, which happened to be about a week after Paul had transferred to part-time student status at the sixth form college. (I interpose here that the "effective date" is the date from which liability to pay child support maintenance starts. Neither party has disputed that 5 February 2000 is indeed the effective date.) On 6 July 2001 the Secretary of State revised the earlier decision, substituting a revised weekly liability of £97.73 from the same effective date. The father appealed the July 2001 decision, arguing (1) that his son was not in full-time education at the effective date, and so was not a qualifying child; and (2) that the Agency had failed to allow for business expenses in calculating his income.
7. The appeal tribunal, comprising a single legally qualified panel member sitting alone, held an oral hearing of the father's appeal at Southampton on 25 February 2003. Both parents attended, the mother with a legal representative. The Agency was represented by a presenting officer. The tribunal heard argument for some 45 minutes and then adjourned for 30 minutes to deliberate on whether Paul was indeed in full-time education at the effective date. The tribunal then announced its decision to the effect that this was not the case and so the Agency had no jurisdiction.
8. The tribunal subsequently issued a decision notice setting out its findings and reasons for its decision. These are considered further below. The mother applied to the tribunal for leave to appeal to the Commissioner, enclosing a detailed skeleton argument prepared by Mr James Pirrie, a solicitor specialising in child support matters. The legally qualified panel member granted the mother's application for leave to appeal. The Secretary of State's representative, in a short submission (which erroneously describes this appeal to the Commissioner as an appeal by the "absent parent"), contends that the tribunal was correct to find that Paul was not a qualifying child at the effective date and therefore that the Agency had no jurisdiction. The mother has submitted a short response to the Secretary of State's comments. The father, who has been sent copies of the relevant papers by the Office of the Social Security and Child Support Commissioners, has not made any further submission on this appeal.
9. The legal framework that applies to this appeal is as follows. The Agency only has jurisdiction to make a child support assessment if there is a "qualifying child", as defined by section 3(1) of the 1991 Act. A qualifying child must, by definition, be a child. For child support purposes a "child" is not simply a person under the age of 18. Section 55 of the Act provides a three-fold definition of "child":

"55.—(1) For the purposes of this Act a person is a child if—

(a) he is under the age of 16;

(b) he is under the age of 19 and receiving full-time education (which is not advanced education)—

(i) by attendance at a recognised educational establishment; or

(ii) elsewhere, if the education is recognised by the Secretary of State; or

(c) he does not fall within paragraph (a) or (b) but—

  (i) he is under the age of 18, and

(ii) prescribed conditions are satisfied with respect to him."

On the facts of this case both the first and third meanings of "child" in section 55(1)(a) and (c) respectively are clearly inapplicable. The question then is whether on the facts of this case Paul fitted within the second meaning as set out in section 55(1)(b).

10. On the effective date of 5 February 2000, which happened to be the day after his 18^th birthday, Paul was clearly "under the age of 19". But was he "receiving full-time education" within the meaning of section 55(1)(b)? It will be recalled that a few days before the effective date he had moved from full-time to part-time status so far as the sixth form college was concerned. The concept of "receiving full-time education" is defined by the relevant regulations (at that time the Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI 1992 No 1813, Schedule 1, paragraph 3) as follows:

Circumstances in which education is to be treated as full-time education
    3.    For the purposes of section 55 of the Act education shall be treated as being full-time if it is received by a person attending a course of education at a recognised educational establishment and the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course, exceeds 12 hours per week, so however that in calculating the time spent in pursuit of the course, no account shall be taken of time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

11. However, this is not the end of the matter. The 1991 Act envisages that "In determining whether a person falls within subsection (1)(b), no account shall be taken of such interruptions in his education as may be prescribed" (section 55(6)). The relevant provision is paragraph 4(1) of Schedule 1 to the 1992 Regulations (paragraph 4(2) having no application in this case), which states (emphasis added):

Interruption of full-time education
    4.—(1)  Subject to sub-paragraph (2), in determining whether a person falls within section 55(1)(b) of the Act no account shall be taken of a period (whether beginning before or after the person concerned attains age 16) of up to 6 months of any interruption to the extent to which it is accepted that the interruption is attributable to a cause which is reasonable in the particular circumstances of the case; and where the interruption or its continuance is attributable to the illness or disability of mind or body of the person concerned, the period of 6 months may be extended for such further period as the Secretary of State considers reasonable in the particular circumstances of the case.

12. The tribunal's decision notice records that "it is accepted that Paul ceased full time education on 31.01.2000 when he gave up his existing full-time studies and commenced on a part time course as the hours of instruction or tuition did not exceed 12 hours". This concession was clearly correct in the light of the evidence available to the tribunal. Thus the issue for the tribunal was whether paragraph 4 of Schedule 1 to the 1992 Regulations applied. The Record of Proceedings shows that the presenting officer supported an 8-month extension (in other words, the Agency's view was that the period between February and September 2000 was covered by paragraph 4). The mother's representative is recorded as having made a number of points, including the impracticability of starting a new course in the third term and the fact that any college would be shut between July and September in any event. Reference was also made to Paul's personal circumstances. There was clearly a disagreement between the parties at the hearing as to whether the September 2000 course (wrongly noted as September 2001 in the record of proceedings at one point) was properly viewed as full-time education. (Although the father appeared in his submission dated 5 November 2002 at doc 86 to concede that the City College course was "qualifying education".)
13. The tribunal's decision was to reject the mother's argument (and, by implication, the presenting officer's submission) that the period from February to September 2000 could be disregarded. The tribunal reasoned as follows on the nature of the break from studies:

"The period was not an interruption, but an ending of full time education followed by a subsequent starting again. In between there was a short period of part time education and an ending of education on 13.03.2000, which proceeded [sic] the Easter holiday. No education was undertaken in the summer term and it is said that Paul started again in full time education in September 2000. The course he started in September 2000 was a different subject and type of course from which he had undertaken to January 2000. No finding was made on whether Paul actually started his new course in September 2000.

The Tribunal accepts that Paul had ADHD, Dyslexia and suffered emotionally. This was seen by the Tribunal as the reason why Paul was unable to continue in full time education, rather than a reason why the period between February 2000 and September 2000 should be ignored. He did not take a break from his course but rather ended it at one establishment and then 7 months later is said to have started another full time course at another establishment. This is not an interruption but rather an end of full time education and a start again. The Tribunal did not have to take a decision on whether Child Support Maintenance could be claimed from September 2000."

14. The Secretary of State's representative now asserts that the tribunal was right to reach this decision, but makes no reference to the potential applicability of paragraph 4. I do not find her submission in any way persuasive.
15. Mr Pirrie, for the mother, has presented a detailed skeleton argument to the effect that the tribunal misdirected itself on the law and its application to the facts of this case. He helpfully suggests that the chronology of the case be seen in two stages, stage one being from the effective date to 11 September 2000 (when Paul started at the City College) and stage 2 being from then to the end of any potential liability. I agree that this is a helpful way of analysing the situation.
16. As Mr Pirrie submits, the central issue in relation to stage one is whether the interruption provision in paragraph 4 applies. In this context he helpfully refers to the commentary in Jacobs and Douglas Child Support: The Legislation 2001/2002 (5^th edition, p 167), which suggests:

"School holidays (provided the person intends to return to education afterwards), illness and delays associated with moving house or school are obvious examples of delays with reasonable causes. The six month period may be extended where the interruption or its continuance is attributable to the illness or disability of mind or body of the person concerned. The extension may be for such period as is reasonable in the circumstances. The illness or disability need not have been the original cause of the interruption; it is sufficient if it merely prolongs an interruption. The tribunal will need to find facts as to the duration of the interruption and the reason for it. The reasons for decision will need to record that the tribunal gave its mind to the question of the reasonableness of the cause and where appropriate, the extension of the six month period."

17. I regard this commentary as sound guidance both as to the generality of assessing the issue of reasonableness in terms of any interruption in the child's full-time education and as to the decision-recording requirements imposed on tribunals. In this case Mr Pirrie argues that the tribunal wrongly found that Paul had terminated (and then re-started) his studies rather than interrupted them. I agree. The question for this tribunal was whether Paul was "receiving full-time education" at the material time for the purposes of section 55(1)(b) of the 1991 Act and, if not (as here), whether any interruption in that education could be disregarded under paragraph 4 of Schedule 1 to the 1992 Regulations. The tribunal's reasons demonstrate that it asked itself a rather different question. According to the tribunal, "The course he started in September 2000 was a different subject and type of course from which he had undertaken to January 2000." Thus, in the tribunal's view, Paul "did not take a break from his course but rather ended it at one establishment and then 7 months later is said to have started another full time course at another establishment. This is not an interruption but rather an end of full time education and a start again." This implies that the tribunal was focussing its inquiry too closely on whether Paul was undertaking the same course of study. But the fundamental question was not whether Paul was following the identical programme – the question was whether he was experiencing an "interruption" in his (otherwise full-time) "education", not an interruption in a particular course of study. I therefore find that in this respect the tribunal misdirected itself on the meaning of an "interruption" of full-time education. This amounts to an error of law which requires me to set aside its decision.
18. I might add that there appear to be no previous Commissioners' decisions on the construction of paragraph 4. However, I note that the child support provision governing the interruption of full-time education was modelled very closely on the parallel rule that applies in the context of child benefit (Child Benefit (General) Regulations 1976 (SI 1976 No 965) regulation 6, now Child Benefit (General) Regulations 2003 (SI 2003/493) regulation 6). The child benefit rule, in turn, was based on the former family allowance legislation. The relevant child benefit and child support provisions are expressed in virtually identical terms. Although the drafting of the family allowance rule was different in some respects, the case law authorities decided under that provision are regarded as being of assistance in determining child benefit entitlement. For example, I note that the phrase "illness or disability of mind or body" in the former family allowance legislation has been replicated for the purposes of both child benefit and child support. In these circumstances, it is reasonable to have regard to the family allowance authorities also in the context of child support.
19. The family allowance rule was discussed in Commissioner's decision R(F) 3/60. The child in that case had severe learning difficulties. He left a special residential school in the summer of 1958, having reached the school leaving age. His parents wanted his education to continue, but an appropriate place at a new school was not found until January 1959. At issue was entitlement to family allowance from October 1958 (the point at which the previous entitlement expired under the then rules) and January 1959. (I note that under the then law there was no distinction as between periods of interruption of less than 6 months as against gaps of 6 months or more.) The Commissioner held that the boy could be treated as still in full-time education but for his "illness or disability of mind or body" within the then legislation. The Commissioner ruled that the boy's "disability of mind seems undoubtedly to have caused difficulty and delay in placing him in a new school, and I hold that he would have been undergoing full-time instruction in a school from the end of the summer holiday of 1958 but for his disability of mind" (paragraph 8). Although I do not rely on this authority for my own decision, it is certainly consistent with the outcome I have reached in this case.
20. I therefore set aside the tribunal's decision as erroneous in point of law under section 24(2) of the Child Support Act 1991. For the detailed reasons given by Mr Pirrie in his submission on the mother's behalf, I conclude that the evidence points overwhelmingly to the conclusion that there was indeed an interruption of Paul's full-time education between February and September 2000. I pay particular heed to the facts that on leaving the sixth form college steps were taken to find Paul a more appropriate college place, that it would have been unrealistic to expect him to able to recommence studies in the summer term, and that he therefore resumed his education at the earliest available realistic opportunity. I also take into account the serious health and family circumstances faced by Paul. I consider it expedient to make my own further findings of fact to this effect. In the light of these findings, my conclusion is that both the interruption and its continuance were in part at least "attributable to the illness or disability of mind or body of the person concerned" and that "in the particular circumstances of the case" it is reasonable to extend the period of 6 months to cover the total period of the interruption from February to September 2000.
21. As regards stage two, as Mr Pirrie puts it, and for the avoidance of doubt, I also make a finding of fact that Paul was in actual full-time education from 11 September to 4 December 2000. The father appeared to dispute this at the hearing, judging from his comment as noted in the record of the tribunal proceedings. Previously, however, he had conceded the point in his letter at doc 86. Moreover, the City College has issued a certificate to the effect that Paul was in full-time education (doc 65) and I am entitled to regard that as presumptively accurate in the absence of compelling evidence (rather than mere assertion) to the contrary (by analogy with Commissioners' decisions R(SB) 40/83 and R(SB) 41/83).
22. The question then is when the father's child support liability in this case ended under the 1991 Act. I find this to be the Monday after Paul's 19^th birthday, i.e. 6 February 2001, applying the rule laid down in paragraph 5(1)(b) of Schedule 1 to the 1992 regulations.
23. Given its conclusion that Paul was not a qualifying child, the appeal tribunal understandably did not address the father's second ground of appeal. This was that his liability had been assessed on his gross profits as a self-employed earner, i.e. before deduction of business expenses. I therefore have to decide whether to send the appeal back for a rehearing on this point. In my view, given all the circumstances of this case, it is expedient for me to make my own findings of fact on this second issue. Nothing would be served by sending this matter back for rehearing other than further prolonging the sorry saga of this appeal. My conclusion on this point is that the Agency has correctly used the father's profit and loss account for the year ended 5 April 1999 and in doing so has based its calculation on net rather than gross profits, so allowing for business expenses within the child support provisions. I therefore conclude that the assessment was correctly made and that the Secretary of State's original decision, as revised, still stands.
24. My decision is therefore as follows:

The child Paul B was a qualifying child as at the effective date of 5 February 2000. The non-resident parent is liable to pay child support maintenance as from that date. Accordingly the non-resident parent's appeal to the tribunal is dismissed. It follows that the revised decision of the Secretary of State that the non-resident parent was liable to pay child support maintenance of £97.73 per week from 5 February 2000 stands. The case is remitted to the Secretary of State for further action as appropriate.

I note from the file that at an earlier stage the Secretary of State instituted proceedings in the magistrates' court for a liability order under the 1991 Act but subsequently discontinued those proceedings. It is for the Secretary of State to decide what action, if any, should now be taken in the light of my decision above.

(Signed) N J Wikeley

Deputy Commissioner

(Date) 16 January 2004