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Neutral Citation Number:	2009 UKUT 262 AAC
Reported Number:
File Number:	CCS 2193 2009
Appellant:	PB
Respondent:	CMEC
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	07/12/2009
Date Added:	15/01/2010
Main Category:	Child support
Main Subcategory:	variation/departure directions: other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 22. Departure direction – contact costs – meaning of “a set pattern” The father (and non-resident parent) applied for a departure direction under the child support scheme in force before March 2003 on the basis of his special expenses by way of contact costs, as permitted by paragraph 2(3)(b) of Schedule 4B to the Child Support Act 1991. Regulation 14(1) of the Child Support Departure Direction and Consequential Amendments Regulations 1996 provides that where “a set pattern has been established as to frequency of contact between the absent parent and a child in respect of whom the current assessment was made” certain costs are permitted “based upon that pattern and incurred by that absent parent for the purpose of maintaining contact with that child”. The father argued that contact was once every two weeks across the year. The mother (and parent with care) contended that the father’s contact visits were more like once every three weeks. The decision-maker issued a departure direction, based on contact being once every three weeks and the father appealed. The First-tier Tribunal judge proceeded on the basis that the provisions of the law did not allow for fractions of weeks to be taken into account (ie that contact in this case took place either fortnightly or once every three weeks) and, concluding that the father had not shown that contact had occurred over the previous year on a fortnightly basis, dismissed his appeal. The father appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. regulation 3(1) of the 1996 Regulations specifies that where “any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount” and plainly contemplates that the process of assessment will require an element of averaging out (R (Qazi) v Secretary of State for Work and Pensions [2004] EWHC 1331 (Admin) (reported as R(CS) 5/04) cited) (paragraph 7); 2. in a case where contact took place on a regular timetable (for example once every ten days), there would be a “set pattern” within regulation 14 that could not be readily expressed in terms of whole weeks and the First-tier Tribunal judge’s approach in the present case would mean that a non-resident parent in this scenario would apparently have to settle for a departure direction based on contact taking place only once every two weeks, which is clearly wrong (paragraph 8); 3. in practice it will be difficult to adhere strictly to contact on such a regular basis and the expression “set pattern” in the context of a departure direction application for contact costs should not be read as meaning a “pattern set in stone”, but should be applied with a degree of realism and common sense, bearing in mind the practicalities of the lives of separated families (paragraphs 9 and 10); 4. the expression “set pattern” also appears in regulation 10(3) of the Child Support (Variations) Regulations 2000, which governs variation applications for contact costs under the post-2003 “new scheme” and should be read and applied in the same broad-brush fashion in both (paragraph 11); 5. the test when looking at contact over a past period is not what a court has ordered or what the parties have agreed, but what actually happened, and that has to be determined on the balance of probabilities, on the best evidence available (CSC 4/98 followed) (paragraph 24). The judge made the decision that the First-tier Tribunal should have made, finding as a fact that contact took place on 22 occasions in the relevant year and calculating the amount to be allowed by way of a departure direction.
Decision(s) to Download:	[2010] AACR 22 bv.doc