CCS/3452/2007

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. The appellant is the father and non-resident parent and the second respondent is the mother and parent and person with care, of a son who, at the relevant times, was a qualifying child for the purposes of the child support legislation. The mother and father have not lived together during the period to which this appeal relates. The appeal is brought by my leave, granted on 5th December 2007 and it succeeds. In accordance with the provisions of section 24 of the Child Support Act 1991 I set aside the decision made by the Ashford (Kent) tribunal on 23rd March 2007 under reference 151/06/00642. 

2. I refuse the request made by the mother for an oral hearing of this appeal. From the file it appears that the request for an oral hearing is motivated mainly by the desire to air factual disputes and does not seem to be aimed at securing a discussion of the technical and limited principal issue of law which has arisen in this matter. I am satisfied that the appeal can be determined properly without a hearing.

3. I substitute my own decision. This is to confirm the decision made by the Secretary of State on 3rd July 2006 refusing to supersede (by way of variation on the grounds of inconsistent lifestyle) an order made on 11th November 2005 that the father was liable to pay £32 weekly child support maintenance in respect of their son with effect from 11th November 2005. My decision is without prejudice to the jurisdiction of the Secretary of State to make any decision for any period subsequent to 3rd July 2006 based on any other ground or change of circumstances (see for example the submission from the Secretary of State of 18th June 2008, reproduced on page 198 of the file).

4. My decision is based on relatively narrow legal issues and it is not necessary to go into the whole history of the matter or to comment on other factual points raised that are not relevant to those issues or that relate to subsequent events. 

5. The appeal to the tribunal was brought by the mother against the decision of the Secretary of State to which I have referred in paragraph 3 above. The grounds of the application for variation, which was made by the mother on 7th March 2006, and the father’s response, are summarised in the original submission to the tribunal from the Secretary of State. That submission also included, in its discussion of the father’s income, information that he was in receipt of working tax credit of £9.51 weekly and child tax credit of £42.21 weekly (see page 11 of the file). 

6. The tribunal considered the matter on 23rd March 2007 and allowed the mother’s appeal. It found that the father’s lifestyle was consistent with a gross income of £30,000 and remitted the matter to the Secretary of State to recalculate liability on that basis. However, the tribunal’s statement of reasons (pages 128 to 129) made no reference whatsoever to the father’s receipt of tax credits.

7. On 1st June 2007 the District Chairman of the tribunal refused to set aside the decision of the tribunal and on 16th August 2007 the Regional Chairman of the tribunal refused to grant the father leave to appeal against the decision of the tribunal. He now appeals by my leave granted on 5th December 2007. The Secretary of State supports the appeal. The mother supports the decision of the tribunal.

8. Section 28F of the Child Support Act 1991 governs the powers of the Secretary of State to agree to a variation on an application under the provisions of section 28A. Section 28F(3) provides that the Secretary of State shall not agree to a variation (my emphasis) if he is satisfied that prescribed circumstances apply. Regulation 7(1) of the Child Support (Variation) Regulations 2000 lists the prescribed circumstances, and these include in regulation 7(5)(b):

7(5)(b) the non-resident parent is in receipt of working tax credit under section 10 of the Tax Credits Act 2002.

The emphasis is mine. The question then is whether it is enough that the father is in receipt of working tax credit at the relevant time, or whether the prescribed circumstance is that he has to be “properly” or “lawfully” in receipt of the tax credit. The mother’s case is that the father was not properly entitled to this tax credit because inaccurate information had been supplied to the tax credit authorities about his means.

9. In Department or Social Development v MacGeagh [2005] NICA 28 (reported as R 2/05(CS)) the Court of Appeal in Northern Ireland considered a very similar issue in relation to regulation 9(3)(b) of the Child Support Departure Directions etc Regulations (Northern Ireland) 1996, which stated:

9(3)(b) A case shall not constitute a case [under the relevant regulations] where the application is made by an absent parent where, at the date on which any departure direction given in response to that application would take effect, … working families’ tax credit, or disabled persons’ tax credit is or was in payment to or in respect of the person with care of the child …

Again the emphasis is mine. The Court decided unambiguously and unanimously that “in payment” means what it says and does not mean “lawfully in payment”. In so doing it expressly overturned a decision by a Tribunal of Commissioners to the opposite effect.

10. In technical terms I am not strictly bound to follow the Northern Ireland Court of Appeal, but in its decision it referred to the decision of the Court of Appeal in England and Wales in Secretary of State for Social Security and Another v Harmon, Carter and Cocks [1999] 1WLR 163 (R/CS 4/99 – “the Harmon case”) which reached a similar conclusion in relation to the meaning of words in section 6 of the 1991 Act (which deals with obtaining child support maintenance from the non-resident parent when the parent and person with care is in receipt of an income-related benefit such as income support). In particular it referred to the desirability of a simple and straightforward test which can be applied with ease by those making child support decisions on behalf of the Secretary of State and which need not delay the assessment.

11. A similar issue arose in the housing benefit case of R v South Ribble Council ex parte Hamilton 33 HLR 104 – “the Hamilton case”). In that case, entitlement to housing benefit was dependent on entitlement to income support. The claimant had been awarded income support but the Court of Appeal upheld the refusal of the local authority to award housing benefit because the claimant had assets that had not been disclosed on the income support claim. The Court of Appeal was of the view that legislation should not be construed so as to enable a person to profit from his or her own fraud.

12. In CCS/4070/2006 (to be reported as R(CS) 3/08) the Commissioner was again considering section 6 of the 1991 Act (on which, see paragraph 10 above). The mother was in receipt of income support and the father became liable to make child support maintenance payments. Then the mother was convicted of a criminal offence relating to obtaining income support and other benefits by fraud. The father appealed against the order that he pay child support maintenance, on the grounds that the mother had never in reality been entitled to the income support and other benefits that she was receiving. The Commissioner was faced with a conflict between the decisions in the Harmon case and the Hamilton case but distinguished them from each other on the basis that the former dealt with alleged fraud and the latter dealt with known fraud (there having been a criminal conviction). On that basis she applied the rule in the Hamilton case to the facts of the case before her.

13. In CCS/3744/1998 I had refused to draw a distinction between cases of alleged fraud and cases of known fraud and I applied the principle of the Harmon case to both types of case. I accept that this approach cannot survive the decisions in the Hamilton case and in R(CS)3/08. Nevertheless, unless there has actually been a criminal conviction (or, possibly, an admission of fraud during the course of tribunal or court proceedings), then in my view the position in Harmon (and MacGeagh) continues to apply. If fraud is suspected or alleged, there are other avenues for that to be investigated. Child support appeals are already bedevilled by the frequency of vituperous allegations between the parties, which often have no real relationship to the matters that have to be determined. The tribunal considering a child support appeal will rarely be in a position to investigate allegations of the fraudulent obtaining of other benefits, although if allegations are made, then the relevant authority (the Secretary of State in the case of income support, HMRC in the case of tax credits, the local authority in the case of housing benefit and council tax benefit) should carry out the appropriate investigations and make appropriate decisions in relation to those benefits. 
14. For the above reasons this appeal by the father succeeds and I make the decision set out in paragraph 3 above.

H. Levenson
Commissioner

10th September 2008