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[2003] UKSSCSC CCS_4451_2002 (20 June 2003)

R(CS) 1/04


Mr J. Mesher CCS/4451/2002

20.06.03

Maintenance assessment - day to day care - child at boarding school where fees met by local authority

A child, who was autistic, had been placed by the local authority under section 20 of the Children Act 1989 in a private residential school for pupils with special educational needs. He spent school holidays with his mother, who at the time of the placement was the person with care. The father appealed against the child support maintenance assessment, arguing among other things that it should be reduced under regulation 25 of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 ("the MASC Regulations") to exclude the days of residence at the boarding school. He also referred to regulation 51 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 ("the MAP Regulations"). The tribunal dismissed the appeal, concluding that, under regulation 27 of the MASC Regulations, the mother remained the person with care as, but for the placement in the boarding school, she would otherwise provide day to day care. The Secretary of State supported the father's appeal to the Commissioner, submitting that the local authority provided day to day care during term-time and that therefore regulation 25 should be applied instead of regulation 27.

Held, allowing the appeal in part, that:

the meaning of "boarding school" in regulation 27 and in the definition of "day to day care" in regulation 1(2) covered any institution which was a school and which provided overnight accommodation for some pupils (paragraphs 24 and 32);

the tribunal was entitled to conclude that the mother remained the person with care by virtue of regulation 27 but had failed to explain why it rejected the argument that the assessment should be reduced under regulation 25. The two regulations were not mutually exclusive in their application. A conclusion that the mother in this case was to be treated as the parent with care by virtue of regulation 27 did not entail a conclusion that there could not be an adjustment under regulation 25 (paragraphs 17 and 25-28);

there was nothing plain and obvious in regulation 25 to indicate that the general definition of "day to day care" in regulation 2(1), including the exception relating to boarding schools, should not be read into it. It followed that, if a person fell to be treated as providing day to day care during term-time by virtue of regulation 2(1) and was actually providing day to day care during school holidays, then the local authority could not be treated as providing day to day care at all and the necessary condition for the application of regulation 25 was not satisfied (paragraphs 29-32);

a local authority was not to be taken to be providing day to day care merely by placing a child in a boarding school in the exercise of its powers under section 20 of the Children Act 1989 and paying all the fees. Day to day care concentrated on the immediate, short-term and mundane aspects of care (R(CS) 11/02) or the direct, rather than indirect, provision of care (CCS/1324/1997) (paragraphs 34-36);

regulation 51 of the MAP Regulations did not apply, because the mother was not a person with whom the child was placed by the local authority (paragraph 28);

the tribunal also failed to deal adequately with the father's contentions on the calculation of his net income and his housing costs (paragraphs 8-16).

The Commissioner remitted the case to a differently constituted tribunal.

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. The absent parent's appeal to the Commissioner is allowed to a limited extent. The decision of the Whittington House appeal tribunal dated 15 February 2002 is wrong in law and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 38 and 39 below (Child Support Act 1991, section 24(3)(d)).

The background

2. This is one of two linked appeals to do with the maintenance assessments for the two children (Antony, born 5 November 1983, and Nicola, born 3 October 1985) of the parents concerned. I shall refer to the parents from now on as the father and the mother. The present appeal stems from the decision made on 30 March 2000, which was a revision of an earlier decision (made on a date which I cannot confidently identify) apparently carrying out a periodical review from the effective date of 18 October 1997. Nor can I confidently identify the amount of the maintenance assessment fixed in the earlier decision. The revision was carried out on the ground of official error, in that mistakes had been made in the original calculation. The revised maintenance assessment fixed the father's liability at £188.71 per week with effect from 18 October 1997. The assessments for later dates set out in the same decision were £187.04 with effect from 19 July 1998, £125.58 with effect from 15 August 1998 and £124.58 with effect from 27 March 1999. There was a subsequent assessment under separate decisions with effect from 6 May 2000, which is the subject of the other appeal to the Commissioner and is dealt with in decision CCS/4452/2002.
3. The father appealed against the decision of 30 March 2000. Four issues were raised, one of which was later abandoned. The remaining three issues were that (1) he had an additional loan or loans for house purchase which should have been taken into account, (2) the assessment did not take account of the fact that since January 1999 Antony had been placed at a residential school under the care of the local authority and was resident there for school terms and (3) his net earnings after deduction of income tax should not have been calculated on the basis of payslips for July and August 1997 but on his P60s for 1997/98 and 1998/99. There is no dispute that Antony had been diagnosed as autistic and had a statement of special educational needs. His education at a residential school in Swanage from January 1999 was paid for by the local authority of the mother's and father's residence (Waltham Forest London Borough Council). The father argued that because the local authority had part-time care of Antony, the maintenance assessment should be reduced under regulation 25 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ("the MASC Regulations") to exclude the days of residence at the school, referring also to regulation 51 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 ("the MAP Regulations" and the notes to that regulation in the 1997 edition of "Child Support: the Legislation", by Jacobs and Douglas.
4. The Secretary of State's written submission to the appeal tribunal supported the decision of 30 March 2000, although it pointed out a mistake in the calculation of the mother's exempt income (which would make no difference to the outcome) and that the calculation of the father's housing costs apparently did break down the figures for capital repayments and interest (although that also would make no practical difference to the outcome). In particular, on the effect of Antony's residence at school, it was submitted that the effect of regulation 27 of the MASC Regulations was that the mother was to be treated as having day to day care of Antony when he was resident at the boarding school.

The appeal tribunal's decision

5. The appeal tribunal dismissed the father's appeal. The decision notice stated that payments made under an arrangement with the father's father were correctly excluded from his housing costs, that the mother had correctly been designated as parent with care and that the father's net income was correctly calculated from the payslips for July and August 1997. In the statement of reasons, it was said that it was clear that a loan from the father's father did not fall within any allowable category of housing costs within Schedule 3 to the MASC Regulations. It was said that, having examined the calculations, the use of the payslips for July and August 1997 was correct, as for reasons which were not clear the father could not provide details covering the relevant period. On the most important point, the effect of Antony's residence at the school, the appeal tribunal concluded:

"The Tribunal was therefore satisfied on all the evidence before it that the Decision Maker was correct to consider that Antony attends a Boarding School (although it was a placement under the auspices of the local authority) and was therefore correct in coming to the conclusion in accordance with the provisions of Regulations 27(a) and (b) of the Child Support (MASC) Regulations 1992 that Antony was a boarder at a Boarding School by reason of those circumstances the respondent who would normally provide day to day care did not do so during the course of the school terms. Regulation 27 paragraph 2 should be applied to modify section 3(3)(b) of the Child Support Act so that reference to the respondent, who would usually provide day to day care and did provide such day to day care save for the circumstances arising out of the placement of Antony at the boarding school referred to should be designated as parent with care."

The appeal tribunal had accepted the mother's evidence that Antony lived with her during all school holidays and would have lived with her if he had not been at the school, as he had before the placement had been arranged.

The appeal to the Commissioner

6. The father now appeals against that decision with the leave of a district chairman. The written submission dated 16 December 2002 on behalf of the Secretary of State did not support the appeal. In his reply the father requested an oral hearing in private of his appeal. I granted that request. The father attended. The mother did not feel able to attend. The Secretary of State was represented by Mr Leo Scoon of the Office of the Solicitor to the Department for Work and Pensions. Mr Scoon submitted that the appeal tribunal had gone wrong in law.
7. I agree that the appeal tribunal did go wrong in law, but on a much more limited basis than that put forward by the father and by Mr Scoon.

Housing costs and the unsecured loan

8. Dealing first with the point on housing costs, I conclude that the appeal tribunal did not adequately explain why it decided against the father, quite apart from a confusion in discussion of another loan for central heating which figures nowhere else in the case. However, I would not have set the appeal tribunal's decision aside on this ground alone. That is because the result reached by the appeal tribunal was the only one legally possible on the evidence. The loan from the father's father was to pay for a deposit, plus legal fees etc., in the purchase of a home in June 1998. There was an agreement for the payment of interest, but there was no security taken and no charge on the new home. The list of eligible housing costs in paragraph 1 of Schedule 3 to the MASC Regulations is a restricted one. In relation to the interest on loans, it includes only mortgages, hire purchase agreements to buy a home and loans of any kind for repairs and improvements to the home, plus loans to pay off loans which qualified under the other categories. The loan in question was not a mortgage or a hire purchase agreement and was not for repairs and improvements. The payments were not in respect of or in consequence of the use and occupation of the new home (paragraph 1(g)). Therefore, neither the interest on the loan nor capital repayments under paragraph 3(2) or (2A) could be allowed as part of housing costs in relation to exempt income in the assessments taking effect from 15 August 1998 onwards.

The father's net income and deductions from earnings

9. On the point on the calculation of net income, I also conclude that the appeal tribunal failed to give an adequate explanation of why it decided against the father's submission. The record of proceedings clearly notes the submission that the calculation of his net income on page A10 (page 12), based on the payslips for July and August 1997, showed the deduction of £1762 per month in income tax, while the P60 for the tax year 1997/98 showed total income tax deducted of £25202.40, i.e. £2100.20 per month. The father had made a conversion into weekly figures of £406.62 and £484.66. He suggested that the assessment for a long forward period should be based on net income over a longer period, and possibly 1998/99 as well as 1997/98. The appeal tribunal's reasons did not get to grips with that submission, but simply stated that the payslips for July and August 1997 were correctly taken into account, as the payslips for the period before the relevant week of 27 May 1997 to 2 June 1997 had not been provided, referring by implication to the explanation given in the written submission to the appeal tribunal.
10. That was inadequate in relation to both sub-paragraph (1) and sub-paragraph (4) of paragraph 2 of Schedule 1 to the MASC Regulations, as well as regulation 2(3). Paragraph 2(1) provides that earnings from employment are to be calculated by reference to average earnings at the relevant week. Where there was a periodical review under section 16 of the Child Support Act 1991 (as in force in 1997), the relevant week was the seven days immediately before a related request for information or evidence was sent out (head (b) of the definition in regulation 1(2)). In the present case, such a request could have been sent out on 3 June 1997 even though the new assessment would only take effect from 18 October 1997. Paragraph 2(1) then requires reference to evidence of earnings in a period of indeterminate length beginning no earlier than eight weeks before the relevant week and ending no later than the date on which the assessment is made. It is expressly provided that evidence of a person's cumulative earnings in the tax year in which the relevant week falls can be considered. However, the focus is still on average earnings as at the relevant week. If that calculation does not accurately reflect the normal amount of the person's earnings, paragraph 2(4) allows a different period to be used which will enable normal earnings to be determined more accurately, and allows future expectations to be considered. It is not though clear whether the focus is on what is normal as at the relevant week or on what is normal as at the effective date of the assessment. Finally, regulation 2(3), frequently overlooked, provides that if the person making a decision is aware of a material change of circumstances after a date or period specified in the Regulations, but before the effective date of the assessment, the change of circumstances is to be taken into account. Similarly, if the person making a decision is looking back at the proper assessment over a past period, different assessments may be made for different parts of the overall period (Child Support Act 1991, Schedule 1, paragraph 15).
11. The interrelationship and application of all those provisions is very difficult. The appeal tribunal needed to explore those issues. Its failure to do so was an error of law.
12. But the outcome of that exploration is not nearly as straightforward as suggested by the father. It is not simply a matter of substituting his higher figure for income tax to be deducted in calculating his net income and leaving everything else the same. Once one begins to unscramble the calculation of his net income over a longer period many points to do with housing costs as well as earnings and deductions have to be looked at. And, as noted below, it is part of the father's case that the assessments in force from the beginning of January 1999 should be altered. That is why I have not substituted a final decision in this case. I mention some of the problems here without suggesting any definite conclusions.
13. If one looks at the father's P60 for 1997/98 it shows total tax deducted of £25202.40 and total taxable pay of £77499.96. That figure is significantly higher than indicated by the monthly pay rate shown by the payslips for July and August 1997. Those slips showed taxable pay for each month as £5750, apparently after a deduction of £500 for the father's contribution to a group personal pension scheme (that is what I think "GP PENSION" means). It appears that those contributions were made monthly down to and including 1 July 1998 (see page M1 (71) in relation to the pension mortgage). The P60 would indicate gross earnings of £77499.96 (taxable) + £6000 = £83499.96. If one deducts from that figure the income tax and national insurance contributions shown on the P60, plus £3000 as 50% of his pension contributions in accordance with the MASC Regulations, that gives net annual earnings for child support purposes of £52137.80. The weekly figure of slightly over £1000 is thus higher than the figure of £936 per week used in the assessment with effect from 18 October 1997 which was challenged by the father. If the father's original suggestion of using the annual figures with effect from 18 October 1997 was accepted, it seems to me that both the pluses and the minuses would have to be accepted, with the result that the higher net income figure would have to be used from that date. Alternatively, it might be the case (if further evidence were provided) that the father gained a salary increase at some date during the tax year 1997/89. Then, the original net income of £936 per week might properly reflect what was normal as at 18 October 1997, but there might be an argument for calculating a further assessment from whatever date the salary, and commensurate income tax liabilities, increased.
14. The unscrambling process would also affect the calculation of the maintenance assessment in effect from 15 August 1998. The full details of the calculation of this assessment were not given in the written submission to the appeal tribunal, but the results of a decrease in the father's net income by about £100 per week and an increase in exempt income by over £200 per week, giving a decrease in the maintenance assessment from £187.04 per week to £125.58 per week, were set out. This was said to be the result of his taking out a new pension mortgage on the purchase of a new home under which he was liable to pay monthly interest of £1001.90 (after MIRAS) and the acceptance of premium payments of £22279.22 to a personal pension plan intended in part to pay off the capital. There are a number of doubts about this calculation. First, the certificate of premium payments in the year from 6 April 1998 (page M1, page 71) shows a pattern of premiums of £500 paid on 1 May 1998, 1 June 1998 and 1 July 1998, then a premium of £18155.84 on 24 July 1998 and one of £2623.38 on 23 November 1998. This looks very much as if the personal pension plan used was the group personal pension to which the father had been contributing £500 per month since July 1997 and probably before. If so, then the condition in paragraph 3(5B) of Schedule 3 to the MASC Regulations for having 25% of personal pension plan premiums count as a housing cost would seem not to have been met, because the plan was not "obtained and retained for the purpose of discharging a mortgage" and also for the purpose of securing payment of a pension (my underlining). The plan appears to have been originally obtained and joined by the father solely for the purpose of building up a pension entitlement. Even if the condition in paragraph 3(5B) was met, there must be doubt about including in the amount of premiums payable, to be used in the calculation of housing costs, premiums paid before the mortgage was taken out. The three regular monthly payments of £500 might have to come out of the calculation.
15. There are also problems about the impact on the calculation of the father's net income, as part of the general unscrambling. Under paragraph 1(3)(c) of Schedule 1 to the MASC Regulations the ordinary deduction from earnings of 50% of contributions towards a personal pension scheme is altered to 37.5% where the scheme "is intended partly to provide a capital sum to discharge a mortgage secured upon the parent's home". The first problem is that paragraph 1(3)(c) does not use the same language as paragraph 3(5B) of Schedule 3. It might be argued that as from the date on which the mortgage was taken out the scheme was intended (by the father, assuming that the intentions of the member of the scheme are what matter) partly to provide a capital sum to pay off the mortgage. Then he would only be allowed a 37.5% deduction, but might not be entitled to the increase in housing costs. It might therefore be argued to the contrary that the smaller deduction should only apply when there was a corresponding allowance for personal pension contributions in housing costs. On that basis, if the father here were not allowed 25% of the premiums as housing costs he would retain his 50% deduction from earnings. This appears to apply to whatever premiums are actually paid, but there might then be a further question whether paragraph 27 of Schedule 1 to the MASC Regulations might apply (person who has intentionally deprived himself of income or of capital which would otherwise have been a source of income for the purpose of reducing the amount of his assessable income to be treated as having the income which he would otherwise have had). See Commissioner's decision R(CS) 3/00.
16. Those are all very difficult questions, which raise issues of law on which I have had no submissions and issues of fact on which further evidence is no doubt necessary. For those reasons, the case should be referred to a new appeal tribunal, which can reach conclusions on the facts after everyone has had the opportunity to put forward arguments of law and further evidence. I give specific directions about that in paragraph 39 below.

Day to day care

17. I come finally to the major point of principle in this appeal. That is the effect of Antony's residence at the school from January 1999. Here I am satisfied that the appeal tribunal went wrong in law by failing to explain why it rejected the father's case on regulation 25 of the MASC Regulations. It merely referred to regulation 27, which it decided operated so that the mother properly remained a parent with care. It failed to go on to deal with the argument that there should have been a reduction in the assessment. At the oral hearing Mr Scoon submitted that the appeal tribunal went wrong in law by not applying regulation 25 in preference to regulation 27 in the circumstances of the case. I reject that submission. I conclude, as explained below, that regulations 25 and 27 are not mutually exclusive in their application and, further, that in the circumstances as found regulation 25 did not apply. The appeal tribunal's error lay in its failure of explanation.
18. Regulation 27 of the MASC Regulations provides:

"(1) Where the circumstances of a case are that—

(a) a qualifying child is a boarder at a boarding school or is an in-patient in a hospital; and

(b) by reason of those circumstances, the person who would otherwise provide day to day care is not doing so,

the case shall be treated as a special case for the purposes of the Act.

(2) For the purposes of this case, section 3(3)(b) of the Act shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the person who would usually be providing such care for that child but for the circumstances specified in paragraph (1)."

The significance of the reference to section 3(3) of the Child Support Act 1991 is that that provision defines who is a "person with care", to whom child support maintenance can be paid. The qualifying child must have his or her home with the person and, under paragraph (b), the person must "usually provide day to day care" for the child.

19. Regulation 25 provides:

"(1) Where the circumstances of a case are that a local authority and a person each provide day to day care for the same qualifying child, that case shall be treated as a special case for the purposes of the Act.

(2) Subject to paragraph (3), in a case where this regulation applies—

(a) child support maintenance shall be calculated in respect of that child as if this regulation did not apply;

(b) the amount so calculated shall be divided by 7 so as to produce a daily amount;

(c) in respect of each night for which day to day care is provided by a person other than the local authority, the daily amount relating to that period shall be payable by the absent parent (or, as the case may be, by the person treated as an absent parent under regulation 20(2));

(d) child support maintenance shall not be payable in respect of any night for which the local authority provides day to day care for that qualifying child.

(3) [deals with cases where there is more than one qualifying child]."

20. "Day to day care" is defined for the purposes of the MASC Regulations, and unless the context otherwise requires, in regulation 1(2) as meaning:

"(a) care of not less than 104 nights in total during the 12 month period ending with the relevant week; or

(b) where, in the opinion of the Secretary of State, a period other than 12 months is more representative of the current arrangements for the care of the child in question, care during that period of not less in total than the number of nights which bears the same ratio to 104 nights as that period bears to 12 months,

and for the purpose of this definition —

(i) where a child is a boarder at a boarding school, or is an in-patient in a hospital, the person who, but for those circumstances, would otherwise provide day to day care of the child shall be treated as providing day to day care during the periods in question;

[(ii) and (iii) deal with the meaning of 'relevant week']."

There is no further definition of care or boarder or boarding school in the MASC Regulations or in the Child Support Act 1991. The Act itself has no definition of day to day care.

21. Regulation 51 of the MAP Regulations provides:

"(1) For the purposes of the Act the following categories of person shall not be persons with care—

(a) a local authority;

(b) a person with whom a child who is looked after by a local authority is placed by that authority under the provisions of the Children Act 1989 except where that person is a parent of such a child and the local authority allow the child to live with that parent under section 23(5) of that Act;

(c) in Scotland, a person with whom a child is boarded out by a local authority under the provisions of section 21 of the Social Work (Scotland) Act 1968.

(2) In paragraph (1) above—

'local authority' means, in relation to England and Wales, the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London and, in relation to Scotland, a regional council or an islands council;

'a child who is looked after by a local authority' has the same meaning as in section 22 of the Children Act 1989."

Section 22(1) of the Children Act 1989 provides that any reference in the Act to a child who is looked after by a local authority is a reference to a child who is:

"(a) in their care; or

(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970."

Section 20(1)(c) of the Act requires a local authority to provide accommodation for any child under 18 in need within its area who requires accommodation because the person who has been caring for him is prevented, for whatever reason, from providing him with suitable accommodation or care. There is a power to provide accommodation to a child even though a person who has parental responsibility is able to provide accommodation if that would safeguard or promote the child's welfare (section 20(4)). A person with parental responsibility has a veto over the provision of accommodation under section 20 (section 20(8)). A child is "in care" under the Act only if a care order has been made by a court under the Act (section 105(1)).

22. I am not at all confident that I fully understand the relationship between the powers and duties of a local authority as a local education authority and in exercising the functions which are under the legislation referred to a social services committee. However, I have concluded that, as the primary questions for me are about the meaning of the child support legislation, I know enough about local authorities' powers and what happened in the present case to deal with the questions of law before me.
23. Antony's placement was described as follows in the letter dated 26 November 2001 from a social worker in Waltham Forest's children with disabilities team (which was put before the appeal tribunal by the mother):

"Tony is a young person who is Looked After by the Local Authority of Waltham Forest because of his special educational needs. Tony requires a school that can provide a curriculum in line with autism, learning disability and communication difficulties. Such provision not being available locally the Education's Special Needs Department had to make arrangements in another borough.

In a case such as Tony's there is a need to jointly fund placements. The Social Services undertakes their responsibility by accommodating young people under Section 20 of the Children Act 1989. Tony has a placement for 38 weeks per year at [P School, Swanage]. The Social Services are involved because the school is too far for Tony to travel therefore there is a care need.

The Social Services undertakes reviews every six months while a young person is at the school. All other aspects of Tony's care are the responsibility of his parents."

That is consistent with the copy of the letter of 10 June 1998 from Antony's social worker to the father (so far as it is possible to read the only photocopy available), which said that after an updating of Antony's statement of special educational need a placement was being recommended in a specialist residential school able to provide a 24 hour curriculum specifically designed to meet the needs of children with autism. Similarly, the extract from the first review after Antony started at the school indicated that Antony's educational needs could not be met locally and that he spent all holidays with the mother. The letter dated 17 March 2003 from a principal placements officer in the Community Services Department of Waltham Forest, in reply to an enquiry from the Secretary of State, did not take matters much further. It confirmed that the placement was under section 20 of the Children Act 1989 and suggested that there was a social need because, due to Antony's disability it was difficult for his parents to care for him on a permanent basis. The placement was Social Services led. Social Services funded the care element, while Education funded the tuition element.

24. The first question which was raised by Antony's residence at the school in Swanage was whether the mother could continue to count as the parent with care, so that she could have a maintenance assessment made in her favour. The test in section 3(3)(b) of the Child Support Act 1991 is in terms of whether day to day care is usually provided. As the definition in regulation 1(2) of the MASC Regulations is only for the purposes of those Regulations, there is no test of 104 nights a year at this point. Clearly, since the mother was not personally providing Antony with day to day care for the 38 weeks of term and was not paying for his tuition or care at the school, she would seem not usually to have provided day to day care. Therefore she needed the assistance of regulation 27 of the MASC Regulations. Antony was a boarder at a boarding school. I reject the father's submission that the scope of regulation 27 is restricted to "ordinary" boarding schools or does not apply when the placement at the school is arranged by a local authority under its social services functions and the attendance at the school is not for purely educational reasons. In my judgment, the ordinary meaning of boarding school covers any institution which is a school and which provides overnight residence for some pupils. As such it can cover a wide variety of institutions. Further, in my judgment the appeal tribunal was entitled to conclude on the evidence before it that the mother would, but for the circumstance of Antony being a boarder at the school, have usually been providing day to day care. Because of the specific terms of regulation 27(2), day to day care here has the same meaning as in section 3(3)(b), without any restriction to care at the rate of 104 nights a year.
25. In those circumstances, the effect of regulation 27 of the MASC Regulations was that the mother was to remain a person with care of Antony within section 3(3)(b) of the Child Support Act 1991. The appeal tribunal was entitled to reach that conclusion. I reject Mr Scoon's submission that a conclusion that regulation 27 applies entails a conclusion that there cannot be an adjustment under regulation 25, or (conversely and more strongly) that if it is decided that a local authority is providing day to day care under regulation 25, regulation 27 cannot apply. That submission ignores the different and carefully specified purposes of the two regulations. Regulation 27 is restricted to the question of whether a person counts as a person with care. Regulation 25, which can only have a practical operation if there is a person with care, is restricted to the question of whether the amount of a maintenance assessment should be reduced to take account of the amount of day to day care provided by a local authority. I see no reason why two or more special cases under the MASC Regulations should not apply simultaneously where there is no inconsistency between the cases. And Mr Scoon's submission proves too much. If a local authority provides day to day care at a boarding school for school terms and a parent provides day to day care in the holidays (so that regulation 25 is engaged), a conclusion that regulation 27 cannot apply would mean that the parent could not receive any amount of a maintenance assessment at all because she would not be a parent with care, not usually providing day to day care. That cannot be right.
26. I admit that in an earlier decision (CCS/1324/1997) I did not specifically reject a suggestion or assumption that it was a question of either/or as between regulations 25 and 27. But I rejected the absent parent's submission there on the application of regulation 25 for other reasons. I reject the either/or proposition now. That is one reason why the appeal tribunal went wrong in law in not going on to consider regulation 25 after reaching its conclusion on regulation 27.
27. The father has submitted to me that the mother would not have usually provided day to day care when Antony was not at school, because she had had to use respite care. That does not seem to have been argued to the appeal tribunal at the hearing on 15 February 2002, so does not undermine its conclusion of fact under regulation 27. It is something which can if necessary be pursued before the new appeal tribunal (although I have noted above the local authority's understanding of where Antony spent school holidays).
28. Regulation 51 of the MAP Regulations does not prevent the mother from being a person with care. Under paragraph (1)(b) Antony was being looked after by a local authority in accordance with the definition in section 22 of the Children Act 1989. However, the mother was not a person with whom Antony was placed under that Act. The placement related only to the school. Section 23(5), mentioned in paragraph (1)(b), applies only where a child is in care, i.e. under a care order. The definition of a child who is looked after by a local authority in regulation 51(2) is only for the purposes of regulation 51. It is clear that Antony fell within the definition, by virtue of being provided with accommodation by the placement at the school, but that in itself does not have any necessary consequence for child support purposes. For the reasons given above, regulation 27 of the MASC Regulations can apply because the placement was at a boarding school. And the terms of regulation 25 must be examined carefully to see if it can apply. The notes to regulation 51 in "Child Support: the Legislation", talking of a case where a local authority has part-time care of a child falling within regulation 25, must similarly yield to a detailed examination of the regulation itself.
29. I dealt with the interpretation of regulation 25 of the MASC Regulations in decision CCS/1324/1997, another case where the child in question (Amy) had been placed by the local authority in a privately-owned residential school for children with special educational needs. The absent parent there had argued that, because the local authority was paying all the school fees, it was providing the child with day to day care during term-time. He also argued that it was not a case of an ordinary boarding school and that it would be unfair to expect him to pay for periods when the local authority was meeting all the child's costs. I rejected that argument. In paragraph 10 I referred to the exception about boarding schools in the definition of day to day care in regulation 1(2) and continued:

"That provision is quite general in scope. It is not restricted to circumstances where a local authority is not paying the school fees. Although under regulation 1(2) the definition does not apply where the context requires otherwise, I do not see that the context (ie the wording and operation) of regulation 25 does require otherwise. The result is that, when considering whether the condition in regulation 25(1) is met, it must first be asked if the child is a boarder at a boarding school and, if so, who would otherwise be providing day to day care. In the present case it is clear that, if Amy were not at boarding school, her day to day care would be provided by the parent with care, with whom she has her home. Thus, the parent with care is to be treated as providing day to day care for periods when Amy is away at school, as well as actually providing day to day care when she is not away at school. Therefore the local authority cannot be treated as providing day to day care at all and the condition in regulation 25(1) is not met. The appeal tribunal was correct to say that regulation 25 did not apply. I cannot accept the absent parent's submission that I should apply the definition in regulation 1(2) with some flexibility to take account of the special circumstances of the case."

I continued in paragraph 11:

"11. Nonetheless, I agree that it is often unsatisfactory to decide a case on what seems to be a technical point of legal interpretation. Even if I had not taken the view expressed in the previous paragraph, I would still have decided the appeal against the absent parent. That is because I am satisfied that, for the purposes of the child support legislation, a local authority does not provide day to day care to a child merely by placing a child at a boarding school and paying the fees. In order for the legislation to work, the provision of day to day care must refer to the direct provision of such care rather than indirect provision. The circumstance that Amy was placed at the particular school under a statement of special educational needs and that her emotional and behavioural needs were relevant to the placement as well as educational needs does not take this case out of that general approach. I express no opinion on whether or not the child support legislation ought to provide for some apportionment of a maintenance assessment in cases like the present."

30. Mr Scoon submitted that the approach I took in CCS/1324/1997 was wrong in law. He said first that, by arranging and financing Antony's placement at the school, carrying out its duty under the Children Act 1989 to provide him with accommodation, Waltham Forest was providing him with day to day care in term-time. There was in addition a continuing oversight of Antony's welfare and progress, educational and otherwise, through regular reviews. He said that brought the case plainly within regulation 25 if one did not look at the definition of day to day care in regulation 1(2). It did not matter that Antony was not "in care". Then he submitted that the specific effect of regulation 25 should not be undermined by the application of the boarding schools exception in the general definition of day to day care. He said that that general exception had to yield to the specific terms of regulation 25, producing a result also justified by fairness in being able to take account of the reduction of the financial burden on the mother of providing care to Antony. The father allied himself with those submissions, stressing the element of fairness.
31. There is obviously considerable force in those submissions. I would feel no particular embarrassment, as I said at the oral hearing, in declaring that I had been wrong in CCS/1324/1997. However, after careful consideration of the submissions above, I reach the same conclusions. I also give some weight to the fact that my decision in that case was given on 13 January 1998 and that there has been no amendment to the MASC Regulations since that date to reverse its effect.
32. On the boarding schools exception, I accept that there are some places in the MASC Regulations (for instance, regulation 27) where the definition of day to day care in regulation 1(2) does not apply because the context otherwise requires. But regulation 27 requires looking at a different question, related to the terms of section 3(3)(b). A case is in a separate category where a regulation simply uses as part of a formula for reaching a result a term which is given a general definition for the purposes of the whole set of regulations. There must then be something plain and obvious in the regulation concerned if the general definition is not to be applied. I find nothing plain and obvious in regulation 25 to indicate that the general definition, including the boarding schools exception, should not be read into what it provides when it uses the term day to day care. And the meaning of boarding school in regulation 1(2) is as wide as it is in regulation 27. The result in the present case is that, if the mother was to be treated as providing day to day care during term-times, because she would have provided that care if Antony were not at school, the local authority could not be treated as providing day to day care for the same period. It is inherent in the structure of the legislation that only one person or body can be treated as providing day to day care for any one day or night. Therefore, on that basis, the local authority were not providing day to day care for Antony from January 1999 and the necessary condition for the application of regulation 25 was not satisfied.
33. I have taken account of the arguments about fairness. However, the child support scheme often produces rough and ready solutions that do rough justice to one parent or the other. And fairness to all parties must be considered in the light of the duties of both parents to maintain a child and of the need to promote the welfare of the child in question. The mother argued that she had continuing expenses in maintaining a home for Antony throughout the year and in providing for some of his needs and that it would be unfair if she was deprived of child maintenance from the father for 38 weeks of the year. There is force in that point. It seems to me that it is rational, and well within the ambit of overall fairness, for Parliament to have decided to allow a person with care to continue to receive child support maintenance while a child is at a boarding school whoever is paying for tuition and maintenance.
34. A direction to the new appeal tribunal to interpret regulation 25 in that way may well be conclusive. However, in case a different view of the facts is taken, I should also deal with what I said in paragraph 11 of CCS/1324/1997 about the meaning of providing care. I confirm my conclusion there that a local authority is not to be taken to be providing day to day care merely by placing a child in a boarding school in the exercise of its powers under section 20 of the Children Act 1989 and paying all the fees. In that decision I drew a distinction between direct and indirect provision of care. I think that that distinction can be helpful. But perhaps another and better way of putting the same basic point was set out by Mr Commissioner Jacobs in reported decision R(CS) 11/02. He pointed out there that care had many aspects and concluded in paragraph 19 that it was inherent in the language and structure of the child support legislation that day to day care concentrated on the immediate, short-term and mundane aspects of care. That meant:

"deciding on the child's activities, diet and bedtime. It also means exercising control over the child's behaviour, protecting the child from harm and providing care in case of illness."

In paragraph 20 the Commissioner suggested that some kinds of physical separation between the child and the person concerned would be compatible with the person providing day to day care and some would not be.

35. I agree with what Mr Commissioner Jacobs said in R(CS) 11/02, which seems to me to follow from the structure of the child support legislation and the assumption, for instance, that while a child is at a boarding school day to day care would not be provided by either parent in the absence of some special deeming rule. That is confirmed by reported Commissioner's decision R(CS) 8/98 (particularly paragraph 19) and the decision of the Court of Appeal in Child-Villiers v. Secretary of State for Work and Pensions and another [2002] EWCA Civ 1854 (17 December 2002). Thus in the present case some aspects of Antony's care while at the school were provided by the local authority. In particular, section 20 of the Children Act 1989 is in terms of the local authority providing accommodation by arranging a placement and the local authority had a general duty to safeguard and promote Antony's welfare. However, the question of who provided the immediate, short-term and mundane aspects of his care might well produce a different answer, that those were provided by the school (or its owners, through their employees), not by the local authority.
36. Commissioners' decisions R(CS) 8/98 and R(CS) 11/02 and the Court of Appeal's decision in Child-Villiers were not referred to in written submissions or at the oral hearing. I have decided not to impose further delay by seeking comments on the relevance of those decisions, since I rely on them only in confirmation of the basic principle set out in CCS/1324/1997 (which was in the papers) and I am not substituting a final decision in the case.

Conclusion

37. For the reasons given in paragraphs 8 to 11 and 17 above, the appeal tribunal's decision is wrong in law. I set it aside. For the reasons given in paragraph 16 the father's appeal against the decision dated 30 March 2000 is referred to a differently constituted appeal tribunal for determination in accordance with the following directions.

Directions to the new appeal tribunal

38. There must be a complete rehearing of the father's appeal on the submissions made and evidence presented to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 15 February 2002. The new appeal tribunal must apply the interpretation of regulations 25 and 27 of the MASC Regulations set out above (especially in paragraphs 24, 25 and 29 to 35). I suspect that the effect of that direction, in the absence of the production of evidence which is significantly different from that already in the papers, will enable the new appeal tribunal to reach a conclusion without much difficulty on the issue of day to day care from January 1999 onwards. Similarly, I direct the new appeal tribunal to follow the legal approach set out in paragraph 8 above on the issue of the unsecured loan.
39. In relation to the calculation of the father's net income throughout the period covered by the appeal, the calculation of housing costs for the whole period and the issues set out in paragraphs 12 to 15 above, the new appeal tribunal must make a careful examination of the relevant evidence. Before the rehearing the Secretary of State must make a further written submission to the new appeal tribunal setting out his views on the legal issues raised in those paragraphs, providing copies of any additional relevant evidence already in the possession of the Child Support Agency and suggesting what further evidence from the father or the mother might be useful. The father in particular can then be in a position to consider what further evidence to put forward. It may well be necessary for a district chairman of appeal tribunals to give some directions about the production of evidence.

Date: 20 June 2003 (Signed) J Mesher Commissioner