Upper Tribunal (Administrative Appeals Chamber)

[2013] AACR 19

(IG v Secretary of State for Work and Pensions (CSM)
[2013] UKUT 70 (AAC))

Judge Mesher CCS/3468/2011

11 February 2013

 

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 On 5 December 2005 CMEC superseded the existing maintenance assessment to reduce the amount paid by the appellant for the first child and on 6 December 2005 CMEC wrote to both parents to confirm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 OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The parent with care’s appeal to the Upper Tribunal is allowed. The decision of the Leeds First-tier Tribunal dated 3 October 2011 involved errors on points of law, for the reasons given below, and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the non-resident parent’s appeal against the decision of the Child Maintenance and Enforcement Commission dated 24 October 2008, as revised on 14 January 2009 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). That decision is that that appeal is disallowed and that the absent parent is liable to pay £72 per week in child support maintenance in respect of the two then qualifying children with effect from 14 September 2005. The practical effect of that decision will be limited by the existence of a decision dated 1 July 2009 imposing a liability of £68 per week with effect from 30 June 2008 and later decisions reflecting the children’s reaching the age when they were no longer “qualifying”.

 

REASONS FOR DECISION

 

1. In the language of the child support legislation the appellant is the parent with care of the qualifying children (Aiden and Sophie-Marie) at the relevant time. From now on I shall call him the father. I shall call the non-resident parent and second respondent the mother. Most of the official action in this case has been taken by or on behalf of the Child Maintenance and Enforcement Commission (CMEC). CMEC was abolished with effect from 1 August 2012 by the Public Bodies (Child Maintenance and Enforcement Commission: Abolition and Transfer of Functions) Order 2012 (SI 2012/2007) and its functions transferred back to the Secretary of State for Work and Pensions (article 3(1)). The Secretary of State is therefore now the first respondent in the appeal.

 

2. This is what is known as a “role reversal” case. It raises some exceptionally complicated and technical issues of law about the proper interpretation of the relevant legislation. It also exposes a woeful state of affairs within CMEC in two respects. First there was an unexplained delay of several years in dealing with the father’s application for a child support maintenance calculation, which was bound to adversely affect one parent or the other and about which the First-tier Tribunal rightly made trenchant comments. Second, important documents came to light only a few days before the oral hearing of 28 January 2013 which evidenced that the course of decision-making put before the First-tier Tribunal and (until then) the Upper Tribunal was inaccurate and incomplete in a very significant way. It seems to me that the significant failure of CMEC to come up to any standard of good administration has not only had adverse consequences for both parents but has also led to the waste of a good deal of public money by giving tribunals a false basis for their considerations.

 

3. I also note by way of introduction that Aiden (date of birth 24 May 1990) ceased to be a qualifying child after 1 June 2009 and that Sophie-Marie (date of birth 17 July 1991) ceased to be a qualifying child after 7 September 2009.

 

4. Helpful written submissions on behalf of CMEC (as it then still was) took me a good way in unravelling the difficulties of the case as they were thought to be at the time, but left a number of important issues that had not been covered in submissions from any party. I therefore took the unusual step of issuing a draft decision in an incomplete state and at the same time directing an oral hearing for the discussion of the preliminary and provisional conclusions in the draft decision and of outstanding issues. Unfortunately, that direction appears either not to have been received in the appropriate office of the Secretary of State dealing with the appeal to the Upper Tribunal or the paragraph requiring the provision of further information and evidence 14 days before the date of the hearing was overlooked. It was not until enquiries were made on my instructions about the non-arrival of such information and evidence that action was taken by a representative of the Secretary of State. As a result, neither I nor the father nor the mother’s representative had sight of the written submission dated 22 January 2013 (by a slip printed as 2012) and its attachments until the morning of the oral hearing.

 

5. The father attended the hearing at the premises of Leeds Employment Tribunals on 28 January 2013 with his wife. The mother was represented by Mr Mike Smith of Durham Legal Services UK Ltd. The Secretary of State was represented by Mr Stephen Cooper, solicitor, instructed by DWP Legal Services. I am grateful to all present for their contributions and for their constructive approach in a difficult case.

 

The background

 

6. I start by setting out the background as presented to the tribunal of 4 October 2011. I mention at relevant points where errors have been revealed by the written submission of 22 January 2013. Prior to 31 August 2005 Aiden and Sophie-Marie were living with their mother and a child support assessment under the “old rules” was in force against the father as what was then called an absent parent. On 31 August 2005 Aiden left his mother’s household to move to live with his father. The father had telephoned CMEC on 26 August 2005 to say that Aiden was coming to live with him. The details taken are recorded at pages 9 to 13 and refer only to Aiden. A decision was made on 5 December 2005 superseding the maintenance assessment in force and reducing the amount to £66.97 per week in respect of Sophie-Marie with effect from 31 August 2005, to reflect the mother’s no longer being the parent with care of Aiden. On 14 September 2005 Sophie-Marie left her mother’s household to live with her father. The father said in evidence to the tribunal of 3 October 2011 that he telephoned CMEC on the day of her arrival to tell them. The tribunal made no explicit finding of fact about that in its statement of reasons, but did proceed on the basis that an application in respect of Sophie-Marie was made on 14 September 2005. Ms Powell, the author of the Secretary of State’s submission of 22 January 2013, reported that her search of the CSA case papers revealed no mention of any letters or telephone calls from the father in August or September 2005, although there was a note of a telephone call to the father on 18 October 2005 to “notify of enquiry results” with the addition “last QC went to live with NRP on 09/09/05”.

 

7. The information given to the First-tier Tribunal was that a further supersession decision was not given until 25 October 2008 (see the computer record print on page 8) terminating the maintenance assessment in favour of the mother with effect from 14 September 2005. However, Ms Powell attached to her submission of 22 February 2013 a print out of a letter dated 6 December 2005 to the mother notifying her that the child support maintenance liability for Sophie-Marie had been cancelled or ceased to have effect after 9 September 2005. The father had with him the letter of the same date notifying him of that outcome. Mr Smith was not aware of the mother’s having received the letter addressed to her. I return to those matters below when explaining my substituted decision.

 

8. What is in issue in the present appeal is the correctness or otherwise of the CMEC decision made on 24 October 2008 (see the computer record print on page 54), as revised on 14 January 2009, made under the “new rules” of the 2003 scheme, that the mother was liable to pay the father child support maintenance of £72 per week in respect of Aiden and Sophie-Marie with effect from 5 December 2005 (later stated in submissions to have been a computer-generated mistake for 14 September 2005, which was always known to be the correct date). The mother’s appeal against that decision was allowed by the tribunal of 3 October 2011, which decided that the legislation, and in particular regulation 29(1)(c)(iv) of the Child Support (Maintenance Calculation Procedure) Regulations 2000 (SI 2001/157) (the MCP Regulations), prevented the liability operating from 14 September 2005 or from any date prior to 30 June 2008. 30 June 2008 was the effective date of a decision imposing a liability of £68 per week apparently on the basis that that was the date on which the mother was notified by CMEC of a maintenance application by the father (regulation 25(3) of the MCP Regulations). Regulation 25(3) provides what can be called the normal rule about the effective date of a maintenance calculation under the new rules.

 

The relevant legislation

 

9. Regulation 29 of the MCP Regulations as in force in August 2005 and on 24 October 2008 (there were amendments with effect from 27 October 2008 mainly to remove the references to section 6 of the Child Support Act 1991) is as follows:

 

“Effective dates of maintenance calculations in specified cases

 

29. – (1) Where an application for a maintenance calculation is made under section 4 or 7 of [the Child Support Act 1991], or treated as made under section 6(3) of the Act –

 

(a) except where the parent with care has made a request under section 6(5) of the Act, where in the period of 8 weeks immediately preceding the date the application is made, or treated as made under regulation 3, there has been in force a maintenance calculation in respect of the same non-resident parent and child but a different person with care, the effective date of the maintenance calculation made in respect of the application shall be the date on which the previous maintenance calculation ceased to have effect;

 

(b) where a maintenance calculation (‘the existing calculation’) is in force with respect to the person who is the person with care in relation to the application but who is the non-resident parent in relation to the existing calculation, the effective date of the calculation shall be a date not later than 7 days after the date of notification to the non-resident parent which is the day on which a maintenance period in respect of the existing calculation begins;

 

(c) except where the parent with care has made a request under section 6(5) of the Act, where –

 

(i)                 in the period of 8 weeks immediately preceding the date the application is made, or treated as made under regulation 3, a maintenance calculation (‘the previous maintenance calculation’) has been in force and has ceased to have effect;

 

(ii) the parent with care in respect of the previous maintenance calculation is the non-resident parent in respect of the application;

 

(iii)             the non-resident parent in respect of the previous maintenance calculation is the parent with care in respect of the application; and

 

(iv)             the application relates to the same qualifying child, or all of the same qualifying children, and no others, as the previous maintenance calculation,

 

the effective date of the maintenance calculation to which the application relates shall be the date on which the previous maintenance calculation ceased to have effect;

 

(d) [need not be set out].

 

(2) [irrelevant as only applying to applications under section 6(3)].

 

(3) For the purposes of –

 

(a) paragraph (1), ‘ceased to have effect’ means ceased to have effect under paragraph 16 of Schedule 1 to the Act; and

 

(b) [irrelevant as applying only to paragraph (2)].”

 

10. Regulation 31(1) of the MCP Regulations provided at the relevant dates:

 

“(1) Where a maintenance assessment is, or has been, in force and an application to which regulation 29 applies is made, or is treated as made under section 6(3) of the Act, that regulation shall apply as if in paragraph (1) references to –

 

(a) a maintenance calculation in force were to a maintenance assessment in force;

 

(b) a maintenance calculation having been in force were to a maintenance assessment having been in force; and

 

(c) a non-resident parent in sub-paragraph (a), the first time it occurs in sub-paragraph (b), in sub-paragraph (c)(iii) and the first time it occurs in sub-paragraph (d), were to an absent parent.”

 

11. Also relevant, although not mentioned in any of my directions or in written submissions from the parties, are the provisions of regulation 4 and Schedule 2 on multiple applications. Paragraph 1 of Schedule 2 was at the relevant dates headed “No maintenance calculation in force: more than one application for a maintenance calculation by the same person under section 4 or 6 or under sections 4 and 6 of the Act”. Under sub-paragraph (1):

 

“(1) Where an effective application is made or is treated as made, as the case may be, for a maintenance calculation under section 4 or 6 of the Act and, before that calculation is made, the applicant makes a subsequent effective application under that section with respect to the same non-resident parent or person with care, as the case may be, those applications shall be treated as a single application.”

 

Then regulation 4(3) provides:

 

“(3) Where, under the provisions of paragraphs 1, 2 or 3 of Schedule 2, two or more applications are to be treated as a single application, that application shall be treated as an application for a maintenance calculation to be made with respect to all of the qualifying children mentioned in the applications, and the effective date of that maintenance calculation shall be determined by reference to the earlier or earliest application.”

 

An effective application is merely one that meets the requirements in regulation 3, under which an application need not be in writing unless otherwise directed by CMEC or the Secretary of State.

 

12. Section 4(1) of the Child Support Act 1991 provided as at the relevant dates:

 

“(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance calculation to be made under this Act with respect to that child, or any of those children.”

 

CMEC only had authority to make a calculation under section 11 on such an application (leaving aside the special case of deemed applications under section 6 where the person with care was in receipt of certain benefits). Paragraph 16 of Schedule 1 to the Act (referred to in regulation 29(3)(a) of the MCP Regulations), as maintained in force for “old rules” cases, provides in paragraph (1) that a maintenance assessment “shall cease to have effect” in a number of circumstances, none of which apply in the present case. However, sub-paragraph (4) provides:

 

“(4) Where the Secretary of State is satisfied that the person with care with respect to whom a maintenance assessment was made has ceased to be a person with care in relation to the qualifying child, or any of the qualifying children, with respect to whom the assessment was made, he may cancel the assessment with effect from the date on which, in his opinion, the change of circumstances took place.”

 

Such a decision would be made by way of a supersession on the ground of relevant change of circumstances under section 17 of the 1991 Act and regulations 6A(2) or (3) and 7B(17A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991).

 

The First-tier Tribunal’s decision

 

13. The reasoning of the tribunal of 3 October 2011, preferring the submissions of Mr Smith on behalf of the mother to those of the father and of the presenting officer on behalf of CMEC, was summed up as follows in the statement of reasons:

 

“10. The words of the legislation [regulation 29(1)(c)(iv) of the MCP Regulations] require an application to be related to the same qualifying child, or all of the same qualifying children, as in the previous maintenance calculation. This did not happen in this case. The previous maintenance calculation had been in respect of Aiden and Sophie. The application on 31.08.05 was only in relation to Aiden and the application of 14.09.05 was only in relation to Sophie. I, therefore, find that Regulation 29(1) does not apply in this case.

 

11. [CMEC] accepts that the application does not relate to both of the qualifying children but argues that it relates to the same qualifying child. The Tribunal has noted the wording of Regulation 29(1)(c)(iv) which states that ‘the application relates to the same qualifying child, to all of the same qualifying children, and no others, as the previous calculation’.

 

12. I accept [the mother’s] argument that, in order for Regulation 29 to apply an application for both (or all) children is required to be made at the same time. In this case there were 2 applications, 2 supersessions with 2 different effective dates.

 

13. [The mother] accepted that the linking provisions were not applicable in this case.”

 

14. The reference to the linking provisions was, I am sure, to the Child Support (Transitional Provisions) Regulations 2000 (SI 2000/3186), and in particular to regulation 28, under which in some circumstances an application made in 2005, which would prima facie be determined as an application for a maintenance calculation according to the “new rules” because it made on or after 3 March 2003, is to be treated as an application for a maintenance assessment and therefore to be determined under the “old rules”. That point was specifically addressed at my request on behalf of CMEC in the submission dated 13 June 2012. The conclusion that neither regulation 28 nor any other provision of the Transitional Provisions Regulations applied in the circumstances of the present case, as regulation 28(1) applies only where the relevant people and their roles have not changed, has not been queried by or on behalf of either parent. Therefore I say no more about the point. Any application made by the father in 2005 was rightly treated as an application for a maintenance calculation under the “new rules”.

 

15. The final paragraph of the tribunal’s statement of reasons was as below. I repeat it here because I agree entirely with the sentiments expressed, which I suspect are mild compared with what might have been said if it had been known that CMEC had presented the circumstances to the tribunal in an entirely misleading way:

 

“14. The matter is now before the Tribunal because [CMEC] has failed to act upon the information which was before it. This results in the very unattractive conclusion that the [mother] is not obliged to pay any maintenance for her 2 children from 14.09.05 until 29.06.08. The [father] has now been informed that, should this be the decision the Tribunal is obliged, by law, to make, [CMEC] will not compensate him in any way. This is entirely unsatisfactory. The [father] is entirely blameless and has kept [CMEC] informed of all developments at all times. He is now to be significantly penalised because [CMEC] failed to act as it should.”

 

The appeal to the Upper Tribunal

 

16. The father now appeals against the tribunal’s decision with the permission of the judge who had constituted the tribunal. The appeal was initially supported on behalf of CMEC, at least to the extent of submitting that the tribunal’s decision should be set aside, but without holding out much prospect of eventual practical success, because of the separation of the applications for the two children.

 

17. What should have happened in this case appears to be as follows. When CMEC received the father’s telephone application for a maintenance calculation in respect of Aiden, which could constitute an effective application although made in advance of the father’s becoming the parent with care (YW v CMEC (CSM) [2011] UKUT 176 (AAC)), it should after proper verification of the factual position have made a maintenance calculation. That could have been effective, under the normal rule in regulation 25(3), from the date of notification of the application to the mother. Then, when Sophie-Marie moved to live with the father, there could have been the proper action to terminate the previously amended maintenance assessment completely under paragraph 16(4) of Schedule 1 to the 1991 Act and a maintenance calculation made in respect of her, effective under regulation 29(1)(c) from the date on which the previous maintenance assessment ceased to have effect. However, that did not happen. Even if CMEC had acted promptly, instead of with the dreadful delays which did occur, the gap of only two weeks between the moves of Aiden and Sophie-Marie was probably too short to have expected a maintenance calculation to have been made in respect of Aiden before an application was received in respect of Sophie-Marie.

 

18. Considering what did actually happen in the present case both as presented to the tribunal of 3 October 2011 and as now known, and assuming for the moment that the father made a telephone application in respect of Sophie-Marie on 14 September 2005, the multiple application provisions must come into play. As at that date, there was no maintenance calculation in force. The father had made an effective application in respect of Aiden and before the consequent maintenance calculation was made another application in respect of the same non-resident parent. The circumstances fell squarely within paragraph 1(1) of Schedule 2 to the MCP Regulations. Accordingly, the applications were to be treated as a single application which, by virtue of regulation 4(3), was made with respect to both Aiden and Sophie-Marie. The problem identified by the tribunal of 3 October 2011 (which I think was more accurately related to the words “all of the same qualifying children” in regulation 29(1)(c)(iv) rather than the words “and no others”) did not as a matter of law exist. The applications were not to be regarded as separate, but as a single application covering all the qualifying children who had been the subject of the previous maintenance assessment and no others. The tribunal erred in law in adopting an inconsistent position. None of the parties has challenged the provisional conclusion to that effect in my draft decision.

 

19. Even if the multiple application provisions had not existed, I do not see why the assumed application in respect of Sophie-Marie, in the circumstance that as at 14 September 2005 there had been no adjudication on the application in respect of Aiden, should not have been regarded as an amendment of the latter application. Such an amendment is allowed by regulation 3(6) of the MCP Regulations if made before a maintenance calculation is made on the initial application.

 

20. In my draft decision I expressed the view that the conclusion in [18] above was not sufficient on its own to indicate that the outcome of the decision of the tribunal of 3 October 2011 could not be supported. I suggested that further exploration of regulation 29(1)(c)(i) of the MCP Regulations was required in the light of the decision of 24 October 2008 apparently having been made before the decision under paragraph 16(4) of Schedule 1 to the Act terminating the father’s entire liability under a maintenance assessment (25 October 2008). However, the revelation that a decision to that effect had in fact been notified on 6 December 2005 (and therefore probably made on 5 December 2005) changes matters radically. There was the sort of error of fact by the First-tier Tribunal accepted by the Court of Appeal as amounting to an error of law in 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. The mistake as to the existence of that decision of 5 December 2005 has been established by objective and uncontentious evidence and it resulted in unfairness. Alternatively, it could be said that there was a breach of the principles of natural justice in CMEC’s not having produced to the tribunal that highly relevant document within its possession (Social Security Commissioner’s decision R(SB) 18/83, paragraph 11). On either basis the decision of the tribunal of 3 October 2011 must be set aside as involving errors of law, both under this paragraph and under [18] above.

 

The Upper Tribunal’s substituted decision

 

21. The remaining question is then what decision should be substituted by the Upper Tribunal on the mother’s appeal against the decision of 24 October 2008 as revised on 14 January 2009.

 

22. For that purpose it now does not matter whether or not the father made an application for a maintenance calculation under the new rules in respect of Sophie-Marie on 14 September 2005. There would have been no reason for him not to do so as he plainly realised the importance of informing CMEC promptly of changes of circumstances that could result in a shifting of the child support liability from him to the mother. However, even if there was no application on that date, there is a record of contact that can fairly be regarded as an application on 19 October 2005. The same questions arise as to the date from which any maintenance calculation can be effective whether the application was made on 19 October 2005 or 14 September 2005.

 

23. As already noted, the ordinary rule in regulation 25(3) of the MCP Regulations does not help the father, because of the inordinate delay on the part of CMEC. Of the other provisions supplying special rules for the effective date, only regulation 29(1)(c) is potentially relevant. The concentration has been on head (iv), which is not now a problem for the reasons set out in [18] above. But head (i) needs careful consideration. A crucial date for the purposes of head (iv) is the date on which an application for a maintenance calculation is made. How is that date to be determined in the case of multiple applications? Regulation 4(3) does not say that the deemed single application is to be treated as made on the date of the earlier or earliest application, merely that the effective date of a resulting maintenance calculation is to be determined “by reference to” the earlier or earliest application. In the context of regulation 29(1)(c) as a whole, and in particular the requirement in head (iv) for the application to cover all the qualifying children covered by the previous calculation/assessment, it seems to me that the point at which the deemed single application reached that stage would be particularly relevant. That therefore points to the test in head (i) being applied as at the date of the father’s application in respect of Sophie-Marie on 14 September 2005 or 19 October 2005.

 

24. As at either date, there had been a maintenance assessment in force but there had not yet been a decision that it ceased to have effect. It is now known that such a decision was made no later than 6 December 2005, terminating liability under the assessment after 9 September 2005. Is that enough to meet the condition that in the eight weeks immediately preceding the date the application is made the previous maintenance calculation/assessment has ceased to have effect?

 

25. Regulation 29(1)(c)(i) could be read as requiring that the decision that the previous maintenance assessment or calculation has ceased to have effect was made before the application for a maintenance calculation by the new parent with care. However, in my judgment it is proper to take account of the position as it had been established to be at the time that the maintenance calculation was made. Here, as at 24 October 2008, the position established in law was that the previous maintenance assessment had ceased to have effect in the period of eight weeks immediately preceding either 14 September 2005 or 19 October 2005. It does not involve any particularly strained interpretation to read regulation 29(1)(c)(iv) as covering such circumstances. I also find the following factor rather powerful. If the correct interpretation were that the decision that the previous maintenance assessment or calculation has ceased to have effect has to be made before the application by the new parent with care, that would penalise a person in the position of the father here who acted promptly in bringing the change in residence of the qualifying children to the attention of the child support authorities, coupled with a request for the transfer of the child support liability. No-one in such circumstances could reasonably be expected to realise, unless very specifically instructed, that there needed to be a separate application for a maintenance calculation, in the present case after the decision notified on 6 December 2005, if the parent with care wanted to be sure that the new maintenance calculation could run on from the date on which the previous maintenance assessment or calculation ceased to have effect. That interpretation would also put the new parent with care at the mercy of the efficiency or otherwise of the child support authorities in carrying out the necessary supersession of the existing maintenance assessment or calculation notifying the new non-resident parent of the application for a maintenance calculation by the new parent with care. That would be a very undesirable state of affairs.

 

26. I therefore do not have to decide the rather difficult question that had appeared to arise: what if CMEC had done things in the wrong order in October 2008? If CMEC had made the maintenance calculation on 24 October 2008 before deciding on 25 October 2008 that the previous maintenance assessment ceased to have effect from 9 September 2005, could the reasoning above still have applied? One would have been very reluctant indeed to allow the incompetence of CMEC to penalise the father in such circumstances, but the route to that result is not entirely obvious. As it is, the purported decision of 25 October 2008 can be dismissed as a thing writ in water, only done on the erroneous assumption (caused by CMEC’s own sloppy record-keeping) that the previous maintenance assessment had not already been brought to an end.

 

27. Mr Cooper for the Secretary of State submitted that regulation 29(1)(c)(i) was satisfied in the circumstances of the present case as now known and I did not understand Mr Smith for the mother to dissent from that. For the reasons given above, I conclude that that is so. The result is that the maintenance calculation made on 24 October 2008 and revised on 14 January 2009 was required to take effect from the date on which the previous maintenance assessment ceased to have effect. I do not need to trouble whether the correct date is 9 September 2005 or 14 September 2005. The father would be content with the latter date and with a decision upholding the CMEC decision of 24 October 2008 as revised on 14 January 2009. The result is that the mother’s appeal against that decision must be disallowed.