DECISION OF THE CHILD SUPPORT COMMISSIONER
Commissioner's Case No: CCS/509/2002
- My decision is as follows. It is given under section 24(2) and (3)(a) of the Child Support Act 1991.
- 1. The decision of the Manchester appeal tribunal, held on 14th June 2001, is wrong in law.
- 2. I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
- 3. My decision is to dismiss the appeal against the Secretary of State's decision. The child support maintenance payable from and including 29th February 2000 is £59.47 a week.
The appeal to the Commissioner
- This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the Secretary of State with the leave of the tribunal's chairman.
- In the terminology of the child support legislation, the first respondent is the absent parent, and the second respondent is the parent with care. I shall refer to them in those terms.
The issue
- The issue in this case is whether or not the so-called tolerance rule applies on a supersession undertaken on the Secretary of State's own initiative. This stipulates that a change in a child support maintenance assessment can only be implemented if it makes a minimum change to the amount of maintenance payable.
- The Secretary of State made a decision on supersession as a result of a change of circumstances. The supersession was undertaken on the Secretary of State's own initiative. The decision given on the supersession increased the child support maintenance payable by the absent parent, but by less than the minimum £10 required by the tolerance rule. The absent parent appealed against the decision to an appeal tribunal, arguing that the change should not have been implemented, because the tolerance rule was not satisfied. The tribunal accepted that argument and reinstated the previous child support maintenance assessment.
The legislation
- The relevant legislation is contained in regulations 20 and 21 of the Child Support (Maintenance Assessment Procedure) Regulations 1992.
- Regulation 21 contains the tolerance rule. Paragraph (1) provides:
'(1) A decision of the Secretary of State shall not be superseded in any of the circumstances specified in the following paragraphs of this regulation.'
The following paragraphs apply that general principle to specific circumstances. In the circumstances of this case, the minimum effect necessary in order for the fresh assessment to be implemented would be £10 a week.
- Regulation 20 provides for the cases and circumstances in which a decision may be made on supersession under section 17 of the Child Support Act 1991. Paragraph (2)(a) provides:
'(2) A decision may be superseded by a decision made by the Secretary of State acting on his own initiative-
(a) where he is satisfied that the decision is one in respect of which there has been a material change of circumstances since the decision was made'.
The decision in this case was given under that provision.
- Paragraph (3) provides for supersession on an application. It provides:
'(3) Except where paragraph (8) applies, a decision may be superseded by a decision made by the Secretary of State where-
(a) an application is made on the basis that-
(i) there has been a change of circumstances since the decision was made'.
Paragraph (8) applies 'where any paragraph of regulation 21 applies'.
Its interpretation
- Regulation 21 is general in its terms. It is not expressed as subject to any limitations. That suggests that its operation is general. However, it must be read in the context of other relevant provisions. In this case, those other provisions are contained in regulation 20. There is a contrast within that regulation. Paragraph (3) is expressly made subject to regulation 21 by applying paragraph (8) to it. But there is no equivalent provision for paragraph (2). That difference within the same regulation must be significant. It suggests that, interpreting regulations 20 and 21 as a parcel, the proper interpretation of regulation 20(2) is that it is not subject to regulation 21.
- The absent parent's argument put into legal terms is that that interpretation does not produce a rational result. I disagree. It is possible to discern a rational reason why the tolerance rule should be limited to supersessions made on the application of the absent parent or the person with care. The rule relieves the parties of the tyranny of frequent, small changes to the amount of maintenance payable. It also relieves the Secretary of State to some extent of the administrative and adjudicative burdens of implementing those changes. However, supersessions on the Secretary of State's own initiative are less common than supersessions on applications. In practice, they are mainly used only to implement changes in legislation or to give effect to the periodical checks that are undertaken to ensure that the assessment is brought up-to-date. In other words, the mischief which the tolerance rule ameliorates does not exist in the case of supersessions made at the Secretary on State's own initiative
Conclusion
- It follows that the appeal tribunal was wrong to allow the absent parent's appeal. Its decision must be set aside. A rehearing is not necessary. Only one issue was raised by the appeal. I am able to give the decision that the tribunal should have given. That decision is to dismiss the appeal against the Secretary of State's decision.
| Signed on original |
Edward Jacobs
Commissioner
24th April 2002 |
