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Neutral Citation Number:	2013 UKUT 70 AAC
Reported Number:
File Number:	CCS 3468 2011
Appellant:	IG
Respondent:	Secretary of State for Work & Pensions
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	11/02/2013
Date Added:	15/03/2013
Main Category:	Child support
Main Subcategory:	effective date
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 19. Child support – effective date – regulation 29(1)(c) of the Child Support (Maintenance Calculation Procedure) Regulations 2000 and role reversal by parents A child support assessment was in force against the appellant for his two children, both of whom lived with their mother. In 2005 both children moved permanently into the appellant’s home – the first on 31 August, the other on 14 September 2005. The appellant stated that he telephoned the Child Maintenance and Enforcement Commission (CMEC) on 26 August and on 14 September to let it know of the changes. On 5 December 2005 CMEC superseded the existing maintenance assessment to reduce the amount paid by the appellant for the first child and on 6 December 2005 CMEC wrote to both parents to confirm that the child support maintenance for the second child was cancelled from 9 September 2005. Thereafter, no further action was taken until 25 October 2008 when CMEC issued a further supersession decision terminating the maintenance assessment in favour of the mother with effect from 14 September 2005. This decision was revised by CMEC on 14 January 2009 when it decided that the mother was liable to pay child support maintenance of over £70 weekly to the appellant for both children from 5 December 2005 (later amended to 14 September 2005). The mother appealed against that decision to the First-tier Tribunal (F-tT). CMEC’s submission to the F-tT was inaccurate and incomplete; it confirmed the supersession decision of 25 October 2008 but failed to mention the decisions taken in December 2005 (it eventually did so in January 2013 following enquiries by the Upper Tribunal). On the basis of the information available to it, the F-tT decided that regulation 29(1)(c)(iv) of the Child Support (Maintenance Calculation Procedure) Regulations 2000 (the MCP Regulations) was not satisfied, so as to make the maintenance calculation against the mother effective from 14 September 2005, as an application for both children was not made at the same time. The appellant appealed to the Upper Tribunal against that decision. Held, allowing the appeal, that: 1. the appellant’s telephone call of 26 August 2005 was an effective application, albeit made in advance: YW v Child Maintenance and Enforcement Commission (CSM) [2011] UKUT 176 (AAC). A maintenance calculation would have been effective from the date of notification of the application to the mother. If it had been made before 14 September 2005 then the amended maintenance assessment would have been terminated under paragraph 16(4) of Schedule 1 to the 1991 Act and a maintenance calculation made effective under regulation 29(1)(c) from the date on which the previous maintenance assessment ceased to have effect (paragraph 17); 2. if no maintenance calculation had been made before 14 September 2005 then the multiple application provisions would have applied once the second application had been received by CMEC. Under paragraph 1(1) of Schedule 2 to the MCP Regulations the applications would have been a single application for both children by virtue of regulation 4(3). The problem identified by the F-tT therefore did not as a matter of law exist; the applications constituted a single application covering all the qualifying children of the previous maintenance assessment and no others. The tribunal erred in law in adopting an inconsistent position. Even if the multiple application provisions did not exist, the application for the second child was an amendment of the application for the first child as there had been no adjudication on that application. Such an amendment was allowed by regulation 3(6) of the MCP Regulations if made before a maintenance calculation was made on the initial application (paragraphs 18 to 19); 3. the F-tT’s mistake as to the existence of the decision of 5 December 2005 was an error of fact which amounted to an error of law: E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044, and R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982. Alternatively, CMEC’s failure to provide the tribunal with a relevant document within its possession was a breach of natural justice: R(SB) 18/83, paragraph 11 (paragraph 20). The judge set aside the decision of the F-tT and re-made the decision so as to confirm the CMEC decision of 25 October 2008 as revised on 14 January 2009. Editor’s note: references to CMEC throughout are also to the Child Support Agency where appropriate.
Decision(s) to Download:	[2013] AACR 19ws.doc