DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

The decision of the Southampton First-tier Tribunal dated 15 December 2008 under file reference 203/08/01031 does not involve an error on a point of law.  

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1.		The father’s appeal to the Upper Tribunal is dismissed.  The decision of the First-tier Tribunal therefore stands.

The parties to this appeal 

2.		In the technical language of the child support legislation, the Appellant is the non-resident parent under the maintenance calculation, the First Respondent is the Child Maintenance and Enforcement Commission (or CMEC, previously the CSA) and the Second Respondent is the parent with care.  I refer to them simply as the father, the Commission and the mother respectively.   

The main issue on this appeal to the Upper Tribunal

3.		The principal issue is whether the First-tier Tribunal applied the law correctly in concluding that at the material time the couple’s daughter Olivia, who was being home-educated, was in “full-time education” and so a “qualifying child” for the purposes of child support law.  There were two further subsidiary grounds of appeal relating to a natural justice point and the tribunal’s treatment of the father’s earnings.

4.		I held an oral hearing of this appeal at Harp House on 19 October 2009.  The mother had made submissions in writing but indicated that she would not be attending the hearing.  The father appeared in person.  Mr Leo Scoon of the Office of the Solicitor to the Department for Work and Pensions appeared on behalf of the Commission, expanding upon the written submission prepared by Mr Michael Page on behalf of the Secretary of State.  I am grateful to both the father and Mr Scoon (and indeed to Mr Page) for their clear, well-structured and helpful submissions.  I regret the delay in issuing this decision, but a point which arose at the hearing required further written submissions, which have now been received and considered.

The background to the First-tier Tribunal hearing

5.	For present purposes the relevant background is as follows.   Olivia was born on 16 January 1992 and so is now aged 18.  She has had the misfortune to suffer from chronic fatigue syndrome (or M.E. – both terms are used in the papers) for some years.  As a result she has not attended school since 2003 and for part of that time at least has been receiving home tuition.  The father explained to me that he had arranged for tuition costs involved to be met by a discretionary family trust. 

6.	On 30 January 2008 the Secretary of State’s decision maker made a supersession decision.  Its effect was that the father was found liable to pay £61 a week in child support as from the effective date of 9 January 2008.  The father’s net weekly income was based on one weekly payslip dated 18 January 2008.  The decision maker also noted that, according to official records, Child Benefit was in payment for Olivia until 1 September 2008 and “she will therefore be considered a child until then”.  I observe here that Olivia was just a week short of her 16th birthday as at the effective date of the maintenance calculation and just over 16 as at the date of the decision.

7.	On 29 February 2008 the father appealed against the Secretary of State’s decision of 30 January 2008, arguing (in part) that his daughter “has not been at school for the last three years and has now reached the age of 16”.  On 15 May 2008 a different decision maker telephoned the mother and noted her statement that Olivia was receiving 6 hours a week private tuition at home and was studying for her GCSEs and that she hoped to study for A Levels as from September 2008.

8.	Both parents attended an initial tribunal hearing on 20 August 2008 before Tribunal Judge McEldowney.  In the course of this hearing the mother stated that the father had been made subject to a bankruptcy order in May 2007 and that he was awaiting discharge from that order.  The Tribunal Judge adjourned the hearing for both parents to provide further documentary evidence and for the Secretary of State to file a supplementary submission.

9.	The father then supplied a welter of documentary evidence about his earnings and outgoings, and included copies of invoices covering Olivia’s home tuition for a period from November 2007 through to July 2008.

10.	The mother wrote explaining that because of illness Olivia had been able to do very little studying between January and November 2007.  She added that Olivia had had 5½ hours home tuition weekly since November, paid for by the family trust.  The mother also appended a copy of a 4-page report by the County Council’s Children Services Department Inspection and Advisory Service (“the County Council’s report”).  The report, which followed a visit to see Olivia at home on 28 March 2008, was completed on 5 April 2008.

11.	The County Council’s report described Olivia’s health and home circumstances.  The author expressed the view that “she came over as an extremely bright young woman who is battling fiercely to overcome her debilitating condition”.  The report stated that she was receiving a total of 5 hours a week in home tuition from two tutors, which she supplemented with about 4 hours a week of homework activities.  Notwithstanding the likelihood of there being significant gaps in her learning, “she appears to be well adjusted, confident and single minded in her ambitions”.  The report concluded that “in these circumstances, Olivia is receiving an education that is ‘suitable to her ability and aptitude’ and therefore is in accordance with Section 7 of the Education Act 1996” (original emphasis).

12.	The Secretary of State’s supplementary submission to the tribunal argued that, as the author of the report had decided that Olivia was receiving an education that is equivalent to full time for her special circumstances, “it would be logical to conclude that she is still a qualifying child for Child Support purposes”.  The further submission also noted that the father’s P60 for the 2007/08 tax year showed that he earned a total of £26,526.68 (gross).

The First-tier Tribunal’s hearing and decision 

13.	The First-tier Tribunal, again in the person of Tribunal Judge McEldowney, reconvened on 15 December 2008 to hear the father’s appeal.  The father but not the mother attended on this occasion. The judge noted in his Record of Proceedings simply that the mother “was not attending due to illness”.  This was presumably a reference to an e-mail sent to the Regional Office in Cardiff by the mother on the day of the hearing.  In her e-mail the mother apologised for not being able to attend, owing to ill-health.  She also asked the tribunal to note two matters.  First, she claimed that the father had stopped paying child support some two or three weeks previously.  Secondly, she stated that, although the father had agreed with her that he was bankrupt in front of Tribunal Judge McEldowney at the previous hearing in August 2008, “he was in fact discharged in May [2008]” (according to the mother).

14.	It is unclear from the Record of Proceedings whether (a) the judge saw an electronic or hard copy of the mother’s full e-mail; or (b) the Southampton venue tribunal clerk informed the judge orally of its full contents; or (c) the Southampton clerk simply told the judge no more than that the mother had sent a message that she was unwell and would not be attending.  For present purposes it is not necessary for me to ascertain which scenario applied.  It seems that the father’s knowledge about the e-mail’s contents at the time was certainly limited to (c).

15.	The First-tier Tribunal dismissed the father’s appeal. The tribunal’s Decision Notice dealt shortly with the two live issues, being the father’s income and Olivia’s status.

16.	As to the father’s income, it is clear from the judge’s annotations to the father’s P60 and the Record of Proceedings that the judge started with the father’s gross annual salary and then deducted tax and national insurance to arrive at a net annual figure.  He then divided that by 365 and multiplied by 7 to arrive at a net weekly income of £421.42.  Applying the 15 per cent rate (for one qualifying child), this produced a weekly child support liability of £63.21, rounded down as required by the regulations to £63.

17.	As to Olivia’s status, the judge stated his finding that “Olivia was in receipt of education on the effective date and as such she was a qualifying child for the purposes of Child Support Legislation”.

18.	Tribunal Judge McEldowney subsequently issued a Statement of Reasons for his decision.  On the first issue, he noted the father’s argument was originally that his liability should be based on his earnings for the fortnight ending 20 January 2008, which would result in a liability of £59 a week.  At the hearing the father had accepted that the P60 provided a more representative picture of his earnings.  However, the father argued that the annual amount should be divided by 53, as his employer operated 53 payment weeks in that tax year (as was plain from his final weekly payslip).

19.	The judge set out how he had arrived at the figure of £63 for the father’s weekly liability (see paragraph 16 above), explaining that in his view was this approach “represented more accurately than any other amount the normal net weekly earnings of [the father] in the relevant week to the effective date (3/1/08 – 9/1/08).”
20.	On the second issue, the judge referred to the County Council’s report which had concluded that Olivia was “receiving an education… in accordance with Section 7 of the Education Act 1996”. This section provides as follows:

Duty of parents to secure education of children of compulsory school age 
7. – The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(a) to his age, ability and aptitude, and 
(b) to any special educational needs he may have, 
either by regular attendance at school or otherwise.

21.	The question of what constitutes efficient education is, of course, for the local education authority to decide and is a matter of opinion and degree (see R v East Sussex County Council, ex p Tandy [1998] AC 714). The judge added simply that he was satisfied that Olivia was in receipt of education recognised by the Secretary of State and that she remained a “qualifying child” on that basis.

The father’s appeal to the Upper Tribunal

22.	The father appealed on three grounds.  First, he argued that he had not been given a fair hearing as the full contents of the mother’s e-mail had not been disclosed to him (“the natural justice point”).  Second, he reiterated that the appropriate divisor for his annual income was 53, which would result in a liability of £62 a week (“the earnings point”). Thirdly, he pointed out that the County Council report had not been available to the CSA (or himself) at the date of the decision.  Moreover, he contended, just “because some other organisation is willing to accept 5 hours is sufficient does not mean that the CSA can disregard their own qualifying rules for someone else’s”.  This was a reference to the Agency’s “12 hour rule” (see further below: the “full-time education point”).

23.	District Tribunal Judge Teagle gave the father permission to appeal in general terms, but his comments indicated that he thought that the third ground of appeal and the question of Olivia’s status was the most problematic.  In particular, he asked, was the County Council’s report of April 2008 sufficient to permit the tribunal to accept that Olivia remained a qualifying child after her 16th birthday in January of that same year?

Ground of appeal 1: the natural justice point

24.	In his written grounds of appeal the father explained how at the hearing the tribunal clerk had told him that the mother was not attending, due to ill-health, and that “she had made comments and her views known to the CSA and Tribunal”.  He stated that he was not told at the hearing what these views were and so was denied a fair hearing.  The father also explained that his statement at the first adjourned tribunal hearing was correct at the time, and that he had not been informed about his discharged status until he had himself raised the matter later. 

25.	I agree with the written submissions of Mr Page and the oral submissions of Mr Scoon on this point.  The judge made no mention of either the issue of the alleged recent non-payment or the bankruptcy proceedings in his Statement of Reasons.  Although both parents doubtless regarded them as important, both matters were irrelevant to the issues before this tribunal and there is no evidence that the judge paid any regard to them.  As a result, those issues were immaterial and the father was not denied a fair hearing.  I agree, of course, with Mr Scoon’s proposition that as a general rule it is desirable that any additional evidence should be available to all the parties.  However, that assumes that the additional evidence is material.  In the present case the omission to draw the father’s attention to all the points made by the mother in this short e-mail did not result in any lack of fairness in the hearing as a whole.

Ground of appeal 2: the earnings point

26.	The father rightly did not labour this point at the oral hearing.  He agreed that the 12 month period was the appropriate period to take, given fluctuations with basic pay and overtime.  However, the father noted that 2008 was a leap year and that both his employer and HMRC operated on the basis that the 2007/08 tax year was a 53 week year.  Accordingly, he contended, 53 was the appropriate divisor, not 52.

27.	In his written submission, Mr Page noted that the 2007/08 tax year contained 366 rather than 365 days.  As a result, there was a slight miscalculation in the judge’s figures, as his arithmetic should have included the leap day in the particular circumstances of this case.  However, as Mr Page points out, the end result remains a weekly liability of £63, and so there is no material error of law in this regard.

28.	I also agree with Mr Page and Mr Scoon that paragraph 6(4) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (SI 2001/155) vests the Secretary of State, and on appeal the tribunal, with a fair degree of latitude when deciding (a) whether or not the normal approach accurately reflects the normal amount of earnings and, if not, (b) what the appropriate “such other period” should be.  As was noted in oral argument, the use of a divisor of 53 would assume a year of 371 days, which would hardly be appropriate.  I agree that the Tribunal Judge was entirely justified in taking the approach that he did, albeit that he understandably overlooked the leap day.

29.	The answer to the father’s argument is essentially this.  His employer and HMRC may well use the terminology of a 53 week year (not least as arithmetically a 52 week year only contains 364 days) for the purpose of their payroll and taxation systems.  However, the assessment of child support liabilities is ultimately governed by its own statutory code, and not by either HMRC legislation or policy or indeed the practices of employers.

Ground of appeal 3: the full-time education point

Introduction

30.	This was the father’s main bone of contention.  The father explained how he had helped to arrange home tuition for Olivia through the family trust and was at pains to show that he himself had provided financial support in other ways.  He took issue with the County Council’s report in a number of respects, discussed in detail below.  In summary, however, the father’s position was simple – he argued that his liability to maintain Olivia ended with her 16th birthday on 16 January 2008, as on that date, he argued, she had ceased to be a qualifying child as she was no longer in full-time education.

The legal framework

31.	Section 55 of the Child Support Act 1991 defines a “child” in the following terms:

55	Meaning of “child” 

(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. 

32.	There has never been any suggestion that section 55(1)(c) applied to Olivia.  It follows that she could only be a child, and thus a qualifying child, if she fell within either section 55(1)(a) or (b) (or within each of those provisions at different times).  The position is complicated by the fact that, as noted above, she was just under 16 at the effective date (9 January 2008) but just over 16 at the date of the Secretary of State’s decision (30 January 2008).

33.	There can be no dispute that at the effective date Olivia was a child by virtue of section 55(1)(a), as she was then (just) under 16. The father’s case, as summarised above, is that she ceased to be a child for the purposes of the section 55 definition on her 16th birthday on 16 January 2008.  The Commission’s case is that she remained a child after that date (and certainly as at the date of the decision) by virtue of section 55(1)(b)(ii).

The First-tier Tribunal’s findings

34.	It is important to note what the tribunal actually decided.  In its Decision Notice it simply recorded its finding “that Olivia was in receipt of education on the effective date and as such she was a qualifying child for the purposes of Child Support Legislation”. This was, by itself, not strictly accurate.  The fact was that on the effective date Olivia was under 16 and so was a child simply by virtue of section 55(1)(a).  As Mr Page submits, her educational status as at 9 January 2008 was strictly irrelevant in terms of her child support status at that date.  

35.	In his fuller Statement of Reasons, Tribunal Judge McEldowney dealt with the issue rather more fully. At one point he noted that Olivia was one week short of her 16th birthday as at the effective date, the date at which the father’s liability had to be established.  Later, however, he added that “Olivia’s status as a qualifying child on and from her 16th birthday (16/1/08) depended on whether she was (being over 16 but under 19) receiving full-time education, either by attendance at school (which she was not) or elsewhere, if the education is recognised by the Secretary of State” (emphasis added).  In that regard he relied on the County Council’s report.  In doing so, it seems clear to me that the judge was making a finding of fact as to Olivia’s position as at the date of the decision on 30 January 2008, as he posed the question as to her status “on and from her 16th birthday”.

36.	Clearly, by the date of the decision under appeal, Olivia had attained the age of 16.  It follows that the original decision maker for the Child Support Agency should have considered whether or not she remained a child for child support purposes by virtue of section 55(1)(b).  The original decision maker did not do so, but simply assumed that she was still a child as her mother still received child benefit for her.  I agree with Mr Page that it was unsafe to rely on that assumption.  The reason for that is not least that the symmetry between the child benefit and child support definitions of who is a “child” was broken by the coming into force of the Child Benefit Act 2005 in April 2006.  

37.	The 2005 Act reconfigured the definitions of “child” and “young person” for the purposes of entitlement to child benefit.  As a result, it is not possible simply to read across from one code to the other, although there is a considerable overlap between the two regimes.  Section 42 of the Child Maintenance and Other Payments Act 2008 seeks to restore the previous symmetry, but as yet that provision is not in force.  However, although the decision maker may have been mistaken in this regard, Tribunal Judge McEldowney rightly made no reference to the child benefit issue, basing his decision on a separate point, namely the County Council report.

The relevance of the County Council report

38.	The father argues that it was not appropriate for either the Agency or the tribunal to have regard to the County Council report for several reasons.

39.	First, he points out that the report was not prepared until the spring of 2008, some two months after the date of the Agency’s decision.  The tribunal, of course, was hearing the father’s appeal against the decision dated 30 January 2008.  In broad terms this meant that Tribunal Judge McEldowney was standing in the shoes of the decision maker as at that date.  As such, it is true that the judge could “not take into account any circumstances not obtaining at the time when the Secretary of State made the decision” (section 20(7)(b) of the Child Support Act 1991, as amended).  But the judge was entitled to have regard to evidence emerging after the date of decision if it cast light on the circumstances as they were at the date of the decision (see Social Security Commissioner’s decisions R(DLA) 2/01 and R(DLA) 3/01).  In addition, as Mr Commissioner (now Judge) Jacobs noted in CJSA/2375/2000, dealing with the equivalent provision under social security legislation, the section “must be interpreted in a way that allows it to operate sensibly in cases where the Secretary of State has considered the position over a period as well as cases where only the day of decision has been considered” (at paragraph 30).

40.	In other words, the judge could not have direct regard to what Olivia was actually doing by way of educational study in March or April 2008.  But he could properly have regard to a report prepared at that same time if he regarded it as providing evidence of what her circumstances were in January 2008.  I accept that the County Council report is rather vague in places and is unspecific about some dates.  Taken as a whole, however, it seems clear to me that the report was referring to a state of affairs that had been in place for some months and certainly was in place as at 30 January 2008.  I therefore do not accept the father’s first ground for objecting to the relevance of the report.

41.	Secondly, the father submits that the County Council report was erroneous in terms of the number of hours of tuition that it reported and was therefore unreliable and of no value.  He argued that the report’s author had accepted the 5 hours a week figure rather too readily.  The father calculated, on the basis of the invoices, that the weekly figure was actually in the order of 3.5 or 3.9 hours a week, depending on the period taken. However, I note that the tutoring agency’s invoices were produced on a monthly basis, and of course over the whole period in question there would have been holiday periods.  In any event, the weight to be attached to such evidence (which was before the tribunal) was a matter for the good judgment of the tribunal.  In addition, the invoices necessarily only referred to face-to-face individual tuition and did not include set homework.  I therefore reject the father’s second challenge to the report.

42.	Thirdly, whatever the actual figure involved, the father argues that on any basis Olivia was not studying for at least 12 hours a week and therefore could not be in full-time education.  In so arguing, he relied on paragraph 3 of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000 (SI 2001/157), which reads 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 of 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.”

43.	This is however, a deeming provision, as was explained by Mr Commissioner Jacobs in CCS/1181/2005 at paragraphs 7 and 8:

	“7.   Deeming provisions can operate in either or both of two ways. They may certain what might otherwise involve difficult issues of fact or judgment. The difficulty may lie in the investigation of the issues or in their determination. In the case of paragraph 3, it puts beyond doubt that a person who meets the criteria is receiving full-time education. No further investigation or consideration is needed. Deeming provisions may also extend the scope of a provision by bringing within it circumstances that, on the wording of the legislation, would otherwise not be covered. Taking paragraph 3 as an example, it might extend the scope of section 55(1)(b) to include persons who would not, on the wording of that provision, be receiving full-time education. 

	8.   It is important to understand exactly what paragraph 3 provides. It is, as I have said, a deeming provision. Its effect is that, if the conditions set out are met, the student is a child for the purposes of the Child Support Act. However, it is not an exhaustive definition of what constitutes ‘receiving full-time education’. In other words, it provides that ‘education shall be treated as full-time if’. It does not provide that ‘education shall be treated as full-time if and only if’. It leaves open the possibility that a person who is not within paragraph 3 may nonetheless be ‘receiving full-time education’ in the normal meaning of those words.”

44.	As Mr Scoon put it succinctly in oral argument, paragraph 3 does not therefore provide an exhaustive definition of what is full-time education.  In that context, it is especially important to note that by its very terms paragraph 3 only operates where the child is “attending a course of education at a recognised educational establishment”, which Olivia was plainly not.  So paragraph 3 cannot by itself rule Olivia out.  Rather, as Mr Scoon submitted, relying on CCS/1181/2005, if the time involved for the child exceeds 12 hours a week and meets the other requirements of paragraph 3, it is deemed to be full-time; if the time involved is less than 12 hours a week, it may still be full-time, depending on the circumstances.  That latter issue is a question of fact, as shown by the Tribunal of Commissioners in R(F) 2/85 on the analogous social security provision.  I therefore reject the father’s argument that because Olivia’s weekly studies did not reach the 12 hour threshold they therefore did not count as full-time education.  As Mr Page argues in the written submission, home schooling is a very different environment to the school and the same considerations will not necessarily apply in deciding what is “full-time”.

45.	Fourthly, the father contends that the County Council report was a purely internal report and that there was no evidence that it had been adopted, either by the council or by the Child Support Agency.  Mr Page and Mr Scoon, on the other hand, contend that there is no evidence that the report was not accepted, and that its adoption by the council meant in turn that it had in effect been adopted by the Secretary of State for Children, Schools and Families.

46.	In this context it is important to return to the legal question at issue before the tribunal.  As at the date of the decision, 30 January 2008, was Olivia “under the age of 19 and receiving full-time education… elsewhere, [where] the education is recognised by the Secretary of State” within the meaning of section 55(1)(b)(ii) of the Child Support Act 1991?  On the face of it, Olivia’s educational status may have been recognised by any one or more of four different public authorities: (1) the County Council; (2) the Secretary of State for Children, Schools and Families; (3) Her Majesty’s Revenue and Customs (HMRC); and (4) the Secretary of State for Work and Pensions.

47.	The decision of Mr Commissioner Jacobs in CCS/2865/2001 (at paragraph 9(e)) holds that “education is recognised by the Secretary of State” if it is recognised by any Secretary of State, as no particular Secretary of State is specified (applying section 5 of, and Schedule 1 to, the Interpretation Act 1978).  On the facts of that particular case, there was evidence that child benefit was in payment, and this was sufficient for the Commissioner to find (at paragraph 11) that the Secretary of State had recognised the education in question.

48.	The decision in CCS/2865/2001 remains good authority for the legal proposition that “education is recognised by the Secretary of State” if it is recognised by any Secretary of State.  However, the circumstances today are different in two important respects from those that applied in CCS/2865/2001.  First, the qualifying definitions for child benefit and child support respectively are not at present in full alignment (see paragraph 37 above).  That, of course, may be a temporary legislative hiccup until the relevant amendments made by the 2008 Act are brought into force. Secondly, however, child benefit is no longer the responsibility of the Secretary of State for Work and Pensions (whereas it was at the time that CCS/2865/2001 was decided). Under section 53 of the Tax Credits Act 2002, child benefit became the responsibility of the then Board of the Inland Revenue (now HMRC) with effect from April 2003. 

49.	The submission on behalf of the Commission by Mr Page (on paper) and Mr Scoon (at the hearing) was that recognition by the County Council was tantamount to recognition by the Secretary of State for Children, Schools and Families, as the County Council acted on behalf of that Secretary of State in the sphere of education.  I am not at all sure that analysis works within the specific context of section 55(1)(b).  The Secretary of State (for Children, Schools and Families) has certain general duties under the Education Act 1996 (e.g. sections 10 and 11), as do local education authorities (e.g. sections 12 and 13).  However, local education authorities have specific statutory duties in relation to ensuring that children of school age are receiving appropriate education (see Education Act 1996, sections 7, 436A and 437).  It does not appear from the statutory framework that the local education authority is acting as agent for the Secretary of State in this respect.

50.	Indeed, constitutionally it is clear that local authorities (and local education authorities) have their own independent existence under statute and their own legal duties; they do not act on behalf of the Crown.  Moreover, if the father had at the time in question written to the Secretary of State for Children, Schools and Families, inquiring whether the Secretary of State had recognised that Olivia was in full-time education, I rather suspect that the ministerial private office would have replied to the effect that that was entirely a matter for the local education authority and the father should re-direct his inquiry there. I am therefore not satisfied that Olivia’s education was recognised by the Secretary of State for Children, Schools and Families.

51.	For the reasons already indicated, the fact that child benefit had remained in payment does not, of itself, decide the matter.  In addition, section 4(1) of the Commissioners for Revenue and Customs Act 2005 provides that the Commissioners for Her Majesty’s Revenue and Customs and the officers of Revenue and Customs together now constitute a non-ministerial government department called Her Majesty's Revenue and Customs (HMRC).  Although the Commissioners “act on behalf of the Crown” (section 1(4) of the 2005 Act), the HMRC Commissioners do not fall within the statutory definition of one of Her Majesty’s Principal Secretaries of State.  So, for both those reasons, recognition by HMRC did not, in my view, amount to recognition by the Secretary of State within section 55(1)(b).

52.	Of the four options outlined in paragraph 46 above, this leaves only the possibility that Olivia’s education was recognised by the Secretary of State for Work and Pensions.  There is no formal document on file embodying such recognition.  I am also conscious that in the past the departmental practice has been to issue some formal certification as to whether education otherwise than at school was recognised or not (see e.g. Commissioners’ decisions R(F) 1/93 and CF/24/1994).  At the time those cases were decided, however, there was a clear demarcation between the respective roles of the adjudication officer and the Secretary of State, a distinction which was abolished by the Social Security Act 1998.  Moreover, neither the statute nor the regulations appear to prescribe any particular format for such recognition to take.

53.	In the present case the Secretary of State for Work and Pensions’ original submission to the First-tier Tribunal relied on the information supplied by the mother about Olivia’s education as evidence that she was still receiving full-time education and so a child for child support purposes.  The supplementary submission to the tribunal below adopted the County Council report to the same end.  Indeed, Mr Page and Mr Scoon also relied on that report in their submissions.  I have already formed the view that the County Council’s report referred to Olivia’s circumstances as at the date of the decision in January 2008.  That being so, it seems to me that throughout the history of this case the Secretary of State for Work and Pensions has effectively recognised that Olivia was receiving full-time education at the material time.  On that basis I conclude that the tribunal was right to decide that Olivia remained a child as at the date of the Secretary of State’s decision within the terms of section 55(1)(b)(ii).

54.	In forming this view I am also conscious that, by virtue of regulation 27 of, and paragraph 2 of Schedule 2 to, the Security and Child Support (Decisions and Appeals) Regulations 1999 there is no right of appeal against “a decision of the Secretary of State to recognise education provided otherwise than at a recognised educational establishment”.  That exclusion is made under the Social Security Act 1998 but applies only in the context of child benefit claims.  Where it applies, any challenge to the Secretary of State’s decision to recognise (or not to recognise) particular educational provision lies by way of judicial review, and not by appeal to a tribunal (see CF/3565/2001).  The father in the present case had a right of appeal against the Secretary of State’s supersession decision dated 30 January 2008 (see section 20(1)(a) of the Child Support Act 1991).  However, in the statutory provisions governing child support appeals there is no rule equivalent to paragraph 2 of Schedule 2 to the 1999 Regulations.  There is, therefore, no parallel provision which makes the Secretary of State’s recognition decision in the child support context non-appealable.  On that basis the father was entitled to dispute the recognition issue before the First-tier Tribunal.

55.	I also need to consider the position if I am wrong in my conclusion that the tribunal was entitled to take the view it did of the question of Olivia’s educational status.  For the reasons that follow, I conclude that Olivia would have remained a qualifying child in any event, even if the father was right in arguing that Olivia was no longer to be regarded as being in full-time education as at both her 16th birthday and as at the date of the decision.  

What if Olivia had actually been found to have ceased full-time education?

56.	The submissions following the oral hearing focussed on the potential application of paragraph 5 of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000. It is clear from the heading to that paragraph that it can only apply in the situation where a young person has “ceased to receive full-time education” (as the father argued was the case here).

57.	Paragraph 5(1) provides that where a young person has ceased full-time education, then she is to “be treated as continuing to fall within section 55(1) of the Act up to and including the week including the terminal date”.  The “terminal date” is defined by paragraph 5(2) and (3).  This requires one first to identify the “upper limit of compulsory school age”, which in is defined in turn by reference to section 9 of the Education Act 1962 (see paragraph 5(4)(a)).  Section 9 has since been replaced by section 8 of the Education Act 1996, which permits the Secretary of State to set the school leaving date by Order.  The school leaving date is now the last Friday in June: see Education (School Leaving Date) Order 1997 (SI 1997/1970).  It follows, as Mr Page submits, that the school leaving date for Olivia was 27 June 2008.  As such, the applicable terminal date under paragraph 5(3)(c) was, in principle, the first Monday in September.

58.	It follows that if Olivia was not in full-time education as at her 16th birthday, then she would anyway have remained a qualifying child for child support purposes by virtue of the deeming rule in paragraph 5 of Schedule 1 until 1 September 2008.  So, even if the father had succeeded at the tribunal on the main plank of his argument – namely that Olivia had in practice ceased full-time education by her 16th birthday – the outcome of the appeal would still have been disadvantageous to him.  This is because as at the date of the decision the tribunal would have been bound to have concluded that she remained in full-time education because of the operation of paragraph 5.  This is without prejudice to any argument that might have been mounted by the parent with care on the basis of paragraph 4, which applies to interruptions of full-time education in the event of matters such as illness.

Subsequent developments

59.	Finally, I note that the father has in fact (since the events in question) received a letter from the Commission dated 14 September 2009 which states that Olivia’s child support calculation ceased to have effect from 12 January 2009, because on that date she had “left full-time education”.  He lodged an appeal against that decision, arguing that Olivia ceased to qualify for child support as at the date of her 16th birthday.  I should emphasis that that particular decision does not fall part of the current proceedings before the Upper Tribunal, although of course the comments above may have some bearing on that issue.

Conclusion

60.	I reject the father’s arguments for all the reasons set out above.   As regards the first ground of appeal, there was no breach of natural justice in connection with the mother’s e-mail.  As regards the second point, the tribunal was entitled to take the view it did of the father’s average earnings. There was admittedly a minor arithmetical error in the calculation of his net weekly income, given the leap year, but this made no difference to the outcome and so was not a material error of law.  The tribunal was therefore correct to assess the child maintenance liability as £63 a week as from 9 January 2008.

61.	As regards the third ground of appeal, the terms of the tribunal’s Decision Notice do appear to conflate the separate issues under section 55(1)(a) and (1)(b) of the Child Support Act 1991 when looking at the position as at the effective date. The Statement of Reasons, however, correctly identifies the real dispute as being Olivia’s status as at the date of the Secretary of State’s decision.  To that extent I do not agree with the submission on behalf of the Secretary of State that the tribunal may have erred in not addressing Olivia’s status as a qualifying child after she reached the age of 16.

62.	It could be argued that the conflation of the separate issues under section 55(1)(a) and (1)(b) on the Decision Notice, which was not itself remedied in the Statement of Reasons, might amount to an error of law.  However, I am not satisfied that this was a material error of law which would justify setting the tribunal’s decision aside.

63.	This is because Olivia was clearly a qualifying child at the effective date because she was then under 16 by virtue of section 55(1)(a).  She was being educated in the same manner both before and after her 16th birthday and so section 55(4) was satisfied.  The tribunal was also entitled to take the view that she remained a qualifying child as at the date of the Secretary of State’s decision as she then fell within section 55(1)(b)(ii).  Even if the tribunal was wrong on that point, Olivia would in any event have remained a qualifying child as at that latter date because of the effect of paragraph 5 of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000.

64.	I therefore dismiss the father’s appeal.

Signed on the original				Nicholas Wikeley
on 9 February 2010					Judge of the Upper Tribunal