R(CS) 1/01
(Secretary of State for Social Security v. Foster and Anor.)
Mr. A. Lloyd Davies CCS/3749/1997
14.7.99
CA (Ward and Brooke LJJ, and Sir Christopher Slade)
4.12.00
____________________________________________________________________
Application for maintenance - court order requiring payment of school fees - whether a "maintenance order"
The parent with care made an application for maintenance of two qualifying children. An initial assessment by the first child support officer was revoked on review by the second child support officer on the grounds that the parent with care was precluded from making an application because a court order, constituting a "maintenance order" within the meaning of paragraph 2 of the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, was in force. A tribunal allowed the parent with care's appeal on the basis that the court order dealt with school fees only and was therefore not a "maintenance order". The absent parent appealed to the Commissioner, who decided that the court order required the making of periodical payments to or for the benefit of the children, and the fact that the order referred only to school fees did not cause the order to fall outside the definition of "maintenance order" in section 8(11) of the Child Support Act 1991. The Secretary of State appealed to the Court of Appeal.
Held, dismissing the appeal, that:
- under the transitional legislation no application for a maintenance assessment could be made under section 4 of the Act if a maintenance order was in force;
- the definition of "maintenance order" in section 8(11) of the Act applied to section 4;
- the duty to maintain a child included a duty to cause that child to be educated so that an order for payment of school fees was an order made under Part II of the Matrimonial Causes Act 1973;
- the Commissioner correctly concluded that the order was a 'maintenance order' within the meaning of the Act.
DECISION OF THE CHILD SUPPORT COMMISSIONER
- My decision is that the decision of the child support appeal tribunal held on 9 April 1997 is erroneous in point of law. I set it aside and I give the decision which the tribunal ought to have given, namely, that the appeal of the parent with care from the decision of the second child support officer given on 28 May 1996 should be dismissed. The effect of this decision is that the maintenance assessment raised on 11 April 1996 was made without jurisdiction and the second child support officer was correct to revoke that maintenance assessment.
- This is an appeal by the absent parent in respect of child support maintenance assessments made on him on the application of the parent with care: the qualifying children are R who was born on 11 March 1977 and J who was born on 11 May 1979. The history of this matter may be summarised as follows:
(a) The parent with care applied to the Secretary of State on 2 August 1993, under section 4 of the Child Support Act 1991 ("the 1991 Act") for a maintenance assessment to be made in respect of R and J. A maintenance enquiry form was issued to the absent parent on 8 December 1993.
(b) On 11 April 1996 the first child support officer determined that the absent parent was liable to pay maintenance in respect of R at varying rates for the period from 8 December 1993 to13 March 1996. He further decided that the absent parent was liable to pay maintenance in respect of J with effect from 13 April 1996.
(c) On 17 April 1996 the absent parent applied to the Secretary of State for the decision of 11 April 1996 to be reviewed on various grounds, most importantly for the purposes of this appeal, on the grounds that there was a court order in existence which precluded the parent with care from making a claim under section 4 of the 1991 Act.
(d) The matter was referred to a second child support officer who decided to review the decision of the first child support officer and issued a revised decision on 28 May 1996 to the effect that the maintenance assessment made by the first child support officer should be revoked, on the grounds that there was a court order in existence which precluded the parent with care from making a claim under section 4 of the 1991 Act.
(e) On 29 July 1996 the parent with care appealed the decision of the second child support officer. A chairman of a tribunal extended time and hence allowed the parent with care to proceed with her appeal.
(f) The tribunal at its hearing on 9 April 1997 allowed the appeal and remitted the case to the Secretary of State for assessments to be recalculated and to take into account the absent parent's changes of income and circumstances, and also all payments he had already made on behalf of R and J.
(g) The absent parent appeals with the leave of the chairman. The appeal is not supported by the child support officer now concerned.
When this appeal originally came before me for determination, I noted that there had been no response from the parent with care or any representative on her behalf (she had been represented at the tribunal by both solicitors and Counsel) to any communication from the Office of the Commissioners. I was concerned that the parent with care should have full opportunity of making representations on this appeal. I caused further enquiries to be made. No response was received to those enquiries. I am, however, satisfied from the information I have received that the documents in this matter have been sent by post properly addressed and pre-paid to the last notified address of the parent with care. I therefore proceed on the footing that all documentation from this Office has been properly served within regulation 24(1) of the Child Support Commissioners Procedure Regulations 1992 and regulation 8(1) of the Child Support Commissioners (Procedure) Regulations 1999.
- By virtue of the provisions of paragraph 2 in the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order the application made by the parent with care could not be made if there was then in force a maintenance order in respect of the qualifying children and the absent parent. The dispute in the present case is whether an order made in a County Court on 8 June 1988 (as subsequently amended) constitutes a "maintenance order".
- Section 8(11) of the 1991 Act relevantly provides:
"In this Act "maintenance order" in relation to any child means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under-
(a) Part II of the Matrimonial Causes Act 1973
...
and includes any order varying or reviving such an order"
The court order in question, which was a consent order, was made in the matrimonial proceedings between the parent with care and the absent parent under the Matrimonial Causes Rules. It was clearly an order which was made under Part II of the Matrimonial Causes Act 1973. Relevantly so far as the present case is concerned it provided:
"3. The Respondent [the absent parent] do pay or cause to be paid to the child of the family [J] ... as from the 22nd day of July 1986 so long as she shall continue to receive full-time education or further order interim periodical payments for herself of an amount equal to such sum as after deduction of income tax at the basic rate equals one half of the school fees (including extras) at the school the said child attends for each financial year payable monthly.
- The Respondent to pay or cause to be paid to the child of the family [R] who was born on the 11th day of March 1977 as from the 22nd day of July 1986 so long as she shall continue to receive full-time education or further order interim periodical payments for herself of an amount equivalent to such sum as after deduction of income tax at the basic rate equals one half of the school fees (including extras) at the school the said child attends for each financial year payable monthly"
[Paragraphs 1 and 2 of the order made provision for the Petitioner (the parent with care) to pay equivalent amounts to the children]. Paragraph 4 of the order was amended on 15 February 1995 by the substitution for the words following "one half" of the words "of any parental contribution required under the Assisted Places Scheme towards the payment of fees (including extra) at any school the said child attends for each financial year payable monthly". In June 1995 the order of 8 June 1988 was further varied in that the Respondent was to pay to the Petitioner for the benefit of J the sum of £30 per week until J ceased full-time education or further order.
- The question I have to consider is whether the order made in June 1988 (including its variations) falls within the definition of "maintenance order" in section 8(11). It is, as I have indicated above, clear, and indeed accepted by the parties, that the order was made under the Matrimonial Causes Act 1973. The issue that arises is whether the order (and its variations) was an order which requires "the making or securing of periodical payments to or for the benefit of the child". Before the tribunal it was submitted on behalf of the parent with care, and is submitted before me by the child support officer now concerned, that since the order provided for periodical payments for school fees only it did not represent periodical payments for the maintenance of the child. In support of this submission the child support officer refers me to section 8(7) of the 1991 Act which provides:
"This section should not prevent the Court from exercising any power which it has to make a maintenance order in relation to a child if-
(a) the child is or will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, professional vocation (whether or not while in gainful employment); and
(b) the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provisions of the instruction or training"
The child support officer submits that since there is power for a court to make an order for school fees whilst there is a maintenance assessment in force, it follows that such an order is not a maintenance order and hence, in the present case, the order made by the court did not preclude the parent with care from making a maintenance application.
- The absent parent's representative, in the course of his very well presented observations (at page 142-144), submits that in order to satisfy the relevant part of the definition contained in section 8(11) the payments in question only have to be made periodically and either to the two children or for their benefit. He submits that the payments were periodical and that they were made for the benefit of the two children and hence that the order made was a maintenance order within the statutory definition. I accept the submissions of the absent parent's representative. In my judgement the court order clearly required the making of periodical payments to or for the benefit of the children. The fact that the court order quantified the amounts of the payment by reference to school fees does not cause the court order to fall outside the definition contained in section 8(11). Indeed, contrary to the submission of the child support officer, section 8(7) reinforces this conclusion since section 8(7) clearly anticipates that a "maintenance order" as defined by section 8(11) can include an order which only requires a person to make periodical payments for some or all of the expenses incurred in connection with the provision of instruction received by a child at an educational establishment.
- For the above reasons I allow this appeal and set the decision of the tribunal aside. My own decision is set out in paragraph 1 above.
Date:14 July 1999 (signed) Mr. A. Lloyd-Davies
Commissioner
The Secretary of State appealed to the Court of Appeal. The decision of the Court of Appeal follows.
DECISION OF THE COURT OF APPEAL
Miss N. Lieven (instructed by the Solicitor to the Department of Social Security, 31-36 York Place, Leeds LS1 2ED) appeared on behalf of the Appellant.
Mr. P. Jackson QC appeared on behalf of the Respondent.
Judgment
- LORD JUSTICE WARD: This is an appeal brought by the Secretary of State for Social Security with the permission of Sedley LJ from the decision dated 14 June 1999 made by the Child Support Commissioner, Mr. A. Lloyd-Davies, the effect of which was that the maintenance assessment raised against the children's father be revoked as having been made without jurisdiction. The point at issue in a few words is whether a periodical payments order relating only to a child's school fees is a maintenance order in respect of that child for the purposes of the Child Support Act 1991.
- The statutory framework is this. The Child Support Act 1991 set out in section 1 the duty of each parent of a qualifying child to be responsible for maintaining her. A parent is an "absent parent" if that parent is not living in the same household as the child and the parent has his home with a person who is, in relation to her, a person with care, that is to say the person with whom he has his home and who usually provides day to day care for him. Section 4 of the Act is directly material. In its relevant parts it provides as follows:
"(1) A person who is, in relation to any qualifying child ... the person with care ... may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child ...
(2) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may ..."
- ... arrange for collection and enforcement of the sum so assessed.
- I must then refer to the transitional provisions which were contained in the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992. Under those transitional provisions the transition period was defined in paragraph 1 to mean the period beginning with 5 April 1993 and ending with 6 April 1997. For the purposes of this appeal it is sufficient to state that this case falls within the transitional period. Paragraph 2 then becomes directly and importantly relevant. It provides as follows:
"Subject to paragraph 4 below, during the transitional period no application under section 4 of the Act (Applications for Child Support Maintenance) in relation to a qualifying child or any qualifying children may be made at any time when-
(a) there is in force a maintenance order ... in respect of that qualifying child or those qualifying children ..."
- Paragraph 4 does not affect this case.
- The Child Support Act 1991 was amended by the Child Support Act 1995. Those amendments for present purposes included in particular the revocation of that transitional provision arrangement but provided for the insertion of a new subsection (10) into section 4 with effect from 4 September 1995. It replicates the old paragraph 2 of the order and so we now find in the 1991 Act a new section 4(10) providing:
"No application may be made at any time under the section with respect to a qualifying child or qualifying children if-
(a) there is in force ... a maintenance order ... "
- I turn to section 8 of the Act. A firm purpose of the Act which many family lawyers have found so unattractive is to remove from the courts the power to make periodical payments in respect to the children. That is achieved by section 8 which reads as follows under the heading "Role of the courts with respect to maintenance for children":
" (1) This subsection applies in any case where a child support officer would have jurisdiction to make a maintenance assessment with respect to a qualifying child and an absent parent of his on an application duly made by a person entitled to apply for such an assessment with respect to that child.
(3) In any case where subsection (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and absent parent concerned.
(7) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if-
(a) the child is, or will be ... receiving instruction at an educational establishment ... and;
(b) the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction
(11) In this Act 'maintenance order', in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under-
(a) Part II of the Matrimonial Causes Act 1973."
- Under Part II of the Matrimonial Causes Act 1973 section 23(1)(d) provides as follows:
"On granting a decree of divorce ... the court may make any one or more of the following orders, that is to say-
...
(d) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of the child of the family, or to such a child, such periodical payments, for such term, as may be so specified;"
- I turn now to the material facts of the case.
- Mr. and Mrs. Foster were married. They have two daughters, Rebecca who was born on 11 March 1977 and Joanna who was born 11 May 1979. Their marriage broke down and the children lived with their mother. She began proceedings for divorce. In those proceedings issued out of the Nottingham County Court an order was made by consent on 8 June 1988 in these terms:
"IT IS ORDERED that
- The respondent [that is Mr. Foster] do pay or cause to be paid to the child of the family Joanna ... as from the 22nd day of July 1988 for so long as she shall continue to receive full time education or further order interim periodical payments for herself of an amount equivalent to such sum as after deduction of income tax at the basic rate equals one half of the school fees (including extras) at the school the said child attends for each financial year payable monthly.
- The respondent do pay or cause to be paid to the child of the family Rebecca ..."
- There followed a similar provision in respect of her school fees.
- Paragraphs 1 and 2 of that order provided that the mother should pay the other half of the school fees to each child. It appears from the papers that they were in some business partnership together and there may have been some sound reasons for the making of that order. As it was drawn, it would suggest that one of the reasons it may be hoped that they gain some tax relief from its provisions but the Finance Act of 1988 had by section 36 removed those advantages from a time pre-dating the order, namely from 15 March 1988. One should also observe that the father was making voluntary payments for the children for their general maintenance. That order has been varied from time to time. The variations are not material.
- When Rebecca obtained an assisted place at her school, the amount was varied to cover the amount needed to be paid by way of contribution under the Assisted Places Scheme. Of greater materiality one notes that the mother of the children resorted to the Nottingham County Court, and on 6 June 1995 obtained a periodical payment in respect of Joanna that her father pay £30 a week for her benefit until she ceased full-time education.
- This appeal relates to an application made by the mother on 2 August 1993 for a maintenance assessment. She was, for these purposes, a person with care. The necessary forms were sent to the father who was, for this purpose, the absent parent. He completed those forms on 20 December 1993. It took this benighted agency until 11 April 1996 to make its decision. The first child support officer considered the facts and the evidence and concluded that Mr. Foster was obliged to pay child support maintenance to Mrs. Foster in varying sums for Rebecca from 8 December 1993 to cease on 13 March 1996 when he was to pay money in respect of Joanna in respect of 13 April 1996.
- Mr. Foster applied to the Secretary of State for the decision to be reviewed on the grounds not only that the calculations were incorrect but also that because of the order made by the county court the mother was precluded from making a claim under section 4 of the Act by virtue of paragraph 2 of the transitional provisions. On
28 May 1996 the second child support officer upheld the father's submissions and revoked the maintenance assessment. Now it was Mrs. Foster's turn to appeal although she no longer enjoyed the child support officer's endorsement. On
9 April 1997 the child support appeal tribunal was persuaded that the mother was right and that the case should be remitted to the Child Support Agency for an assessment to be made on the basis that the court order of 8 June 1998 was not a "maintenance order" in that it dealt solely with school feels. That is the position for which the Secretary of State today contends.
- It was Mr. Foster's turn to appeal again, this time to the Child Support Commissioner. He was successful for the second time. In his decision of 14 June 1999, Mr. Commissioner Lloyd-Davies said this:
"Before the tribunal it was submitted on behalf of the parent with care, and is submitted before me by the child support officer now concerned, that since the order provided for periodical payments for school fees only it did not represent periodical payments for the maintenance of the child. In support of this submission the child support officer refers me to section 8(7) of the 1991 Act [which the Commissioner then read] ...
The child support officer submits that since there is power for a court to make an order for school fees whilst there is a maintenance assessment in force, it follows that such an order is not a maintenance order and hence, in the present case, the order made by the court did not preclude the parent with care from making a maintenance application."
- He then referred to the absent parent's well presented submissions and he concluded:
"In my judgment the court order clearly required the making of periodical payments to or for the benefit of the children. The fact that the court order quantified the amounts of the payment by reference to school fees does not cause the court order to fall outside the definition contained in section 8(11). Indeed, contrary to the submission of the child support officer, section 8(7) reinforces this conclusion since section 8(7) clearly anticipates that a 'maintenance order' as defined by section 8(11) can include an order which only requires a person to make periodical payments for some or all of the expenses incurred in connection with the provision of instruction received by a child at an educational establishment."
- So he allowed the appeal, and now the matter comes to us.
- Miss Lieven for the Secretary of State submits concisely but no less trenchantly for that that the intention of sections 8(7) and 8(11) read together leads to the conclusion that certain forms of order have to be excluded, and that what she terms for shorthand as an educational order, that is to say, one which has nothing by way of general maintenance is not a maintenance order for the purposes of paragraph 2 of the transitional provisions. She derives support for that submission from the language of section 8(11) and she seeks to distinguish between a maintenance order requiring the making of periodical payments to the child and one for the benefit of the child. Her submission is that for the benefit of the child precludes an education order falling within that definition. She fortifies her submission by drawing attention to the anomalous result, as she submits it would be, that if there is a maintenance assessment in existence, then the court can top up that amount by making the education order. It would be anomalous, she submits, that the jurisdiction of the Child Support Agency is ousted if the absent parent gets in first and has the benefit of an education order. She submits that the anomaly has now been noted, and by virtue of section 18(6) of the 1995 Act that position has been remedied.
- Mr. Jackson QC on the father's behalf submits that one needs to draw a clear distinction between the concurrent jurisdiction of the court and of the Child Support Agency. Section 4 governs the powers of the Child Support Agency and section 8 is designed to limit (with some exceptions) the power to resort to court.
- It seems to me that the power of the Child Support Agency to make a maintenance assessment is conferred by section 4. That was at the material time qualified by the terms of the Transitional Provisions Order of 1992. Thus, section 4 has to be read as if paragraph 2 of that order was incorporated into it. That is of course the position since 1995 by virtue of the new section 4(10). Those provisions are quite clear in their meaning and effect. No application can be made at any time under section 4 if there is in force a maintenance order. So the crucial question is what is a maintenance order for this purpose.
- The answer in my judgment is given by section 8(11) already set out. Two points have to be made about it, the first being that the definition applies to section 4 as well as section 8 because of the opening words "In this Act maintenance order means" (emphasis added). The second point is that the order must have been made under Part II of the Matrimonial Causes Act 1973. So the question becomes whether this order was so made. In my judgement it indubitably was. On the face of it and by its very words, it was an order that the father (who was a party to the marriage) pay to the child periodical payments for a specified time. The payments were periodical because they were expressed to be payable monthly. The amount of the sum payable was capable of ascertainment by reference to the amount of school fees due from time to time. I have no doubt at all that the duty to maintain a child includes a duty to cause her to be educated, and if by the chosen form of education for the child the fees are an incidental expense of the particular way chosen to bring up the child, they are part of the child's maintenance.
- Orders for the payment of school fees have in fact been made for decades pursuant to a succession of practice directions made with the concurrence of the Lord Chancellor. The practice direction in force when this order was made was one dated 10 July 1987 (see Practice Direction Minor: Payment of School Fees [1987] 1 WLR 1165) approving a form of order in these terms:
"It is ordered that the [petitioner][respondent] do pay or cause to be paid to the child AB as from the [blank] day of [blank] 19 [blank] until [he] [she] shall attain the age of 17 years [or until [he] [she] shall cease to receive full-time education (whichever is the [later] [earlier])] or further order periodical payments for [himself][herself]-
(a) of an amount equivalent to such sum after deduction of income tax at the basic rate equals the school fees [but not the extras in the school bill] [including specified extras] at the school the said child attends for each financial year [by way of three payments on [blank] and [blank] [payable monthly]; together with
(b) the sum of £[blank] per annum less tax payable monthly in respect of the general maintenance of the child."
- As I have indicated, after the Finance Act 1988 altered the treatment of periodical payments for relief from income tax, the orders were no longer payable less tax and the formula changed to the more straightforward payment of the full amount of the school fees. The fact that the orders usually provided for an additional sum by way of general maintenance does not have the consequence that an order limited to the amount of school fees was not by itself a periodical payments order. Were it so the court would have had no jurisdiction under the Matrimonial Causes Act to make the order in the form of paragraph (a) of the practice direction.
- In my judgment the Child Support Act 1991 does not compel that conclusion either. The Act, as Mr. Jackson submits, limits the jurisdiction of the Child Support Agency to make assessments only where there is no maintenance order in force. That is common ground. If, on the other hand, a maintenance assessment is made, then section 8 which by section 8(3) is intended to exclude the power of the court from making any order at all contains in section 8(7) the exception to that general rule, and that exception is available to make an order solely for the payment of school fees. This is a permitted topping up to enable there to be recouped in excess of the amount assessed by the Child Support Agency, the additional amount covering school fees. The fact that no power is afforded to the agency to make an assessment if the parties have already in force an education order only, to adopt Miss Lieven's label, does not in my judgement mean that the clear words of the Act cannot be given their plain and ordinary meaning. I see no sufficient identifiable purpose in the Act to cause the language to be so strained as to bear exactly the opposite meaning to that which literally springs from the pages of the statute. The very fact that the 1995 Act introduced the change for which the Secretary of State now contends serves only to reinforce that until that amendment was made in 1995 the Act operated as the Commissioner found it to operate.
- In my judgment he was absolutely right in his conclusions and in the reasons he gave for them. I would dismiss this appeal.
- LORD JUSTICE BROOKE: I agree. I only wish to add a few words of my own in relation to one particularly unhappy feature of the proceedings. The original application for a maintenance assessment under the Act was made in August 1993 when the elder of these two girls was 16 and the younger 14. It was not decided until April 1996 when the elder girl was 19 and the younger girl was nearly 17. A revised decision by the second officer was taken quite speedily, but the matter did not come on before the child support appeal tribunal until 9 April 1997 when the elder girl was 20 and her sister nearly 18. The further appeal before the Child Support
Commissioner was not heard until 14 July 1999 when the elder girl was 22 and the younger girl 20.
- Leave to appeal was sought from the Commissioner five months later and refused. The proceedings were lodged in this court on 27 January 2000. We have been able to deal with this appeal in December 2000 when the elder girl is 23 and the younger girl is 21. Over seven years have elapsed since the proceedings were started. Elementary principles of procedural fairness, as explained in decisions of the European Court of Human Rights in relation to Article 6(1) of the European Convention of Human Rights when a determination of civil rights is in question, seem to demand that matters of this kind are processed more expeditiously in future by those who are responsible for providing the internal appeal system under this statutory scheme.
- In recent years the courts have been astute to speed up the handling of civil litigation. In my judgment it is highly desirable that if this statutory scheme remains in place, similar steps should be taken to improve the efficiency and expedition of the appeal process within it.
- So far as the substance of the appeal is concerned, I agree that it should be dismissed for the reasons given by Lord Justice Ward.
- SIR CHRISTOPHER SLADE: I agree with both judgments. I would summarise what I see as the insuperable obstacles facing the appellant on this appeal in a very few sentences. The order of 8 June 1988 was in my judgment plainly a "maintenance order" requiring the making of periodical payments for the benefit of the two children made under Part II of the Matrimonial Causes Act 1973, within the meaning of section 8(11) of the 1991 Act. Section 8(7) of the 1991 Act does not in my judgment enable any different interpretation to be given to the construction and effect of section 8(11) in relation to the facts of the present case.
- Accordingly, in my judgment, when the mother's application was made on 2 August 1993, there was in force a "maintenance order" in respect of the children. By 2 August 1993, the transitional period designated by the 1992 order, which had begun on 5 April 1993, was already in force. It inevitably follows in my judgment that paragraph 2 of the 1992 Order precluded the making of the application which was made on 2 August 1993 and rendered that application wholly invalid.
- I would concur with my Lords in dismissing this appeal.
Order: Appeal dismissed; costs of £80 to be paid by appellant.
