DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Middlesbrough First-tier Tribunal dated 19 April 2010 under file reference 185/09/01964 involves an error on a point of law.  The First-tier Tribunal’s decision is therefore set aside.  

The Upper Tribunal is in a position to re-make the original decision under appeal.  The decision that the First-tier Tribunal should have made is as follows:

The father’s appeal to the First-tier Tribunal against the Secretary of State’s decision of 13 July 2009 that he was liable to pay £56.99 per week in child support maintenance under the 1991 Act with effect from 6 July 2009 is allowed.

The Secretary of State’s decision of 13 July 2009 is accordingly revised.  The father’s application for a supersession decision should have been allowed.  As from 1 January 2007, S’s grandmother Mrs P was no longer a “person with care” in respect of her within section 3(3)(b) of the 1991 Act.  The maintenance calculation under the 1991 Act therefore ceased to have effect from 1 January 2007 (Child Support Act 1991, Schedule 1, paragraph 16(4) and Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), Schedule 3D, paragraph 3 (as amended)).

This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The issues in this appeal

1.		At one level, the issue in this appeal is straightforward.  To use the stilted terminology of the Child Support Act 1991, a “person with care” (who, of course, may or may not also be a parent) may make an application for child support maintenance against the “non-resident parent” in respect of a “qualifying child” under section 4 of the Act.  A “person with care” is defined (in part) as a person “who usually provides day to day care for the child (whether exclusively or in conjunction with any other person)” (section 3(3)(b)).  The meaning of that underlined expression is at the core of this appeal.

2.	At another level, the issues in this case are far from straightforward.   The circumstances of this case are extremely unusual.  They may not have been in the contemplation of those who drafted the 1991 Act.  I should also make it clear that the fact that I am allowing the father’s appeal to the Upper Tribunal is no reflection at all on the commitment of the grandmother to the welfare of the child in question.  I appreciate that she (and her husband) will be upset by the outcome of this appeal, but by the end of this (necessarily rather lengthy) decision I hope she will understand why I have felt compelled to decide this appeal in the way that I have.

The people involved in this case

3.	To preserve their privacy, I refer to those involved in this case as follows:

CMEC is the Child Maintenance and Enforcement Commission, which has 
	taken over the role of the Child Support Agency (CSA)
	Mrs P is the maternal grandmother of the child in question
	Mr R is the father of the child in question
	S is the child in question
	Mr and Mrs T are the English couple now living in the United States.

4.	I should add that I accept that S’s maternal grandfather, Mr P, is as equally committed to S’s welfare as his wife, Mrs P.  However, the Child Support Agency had designated Mrs P as the “person with care”, and so for the most part I refer to her in the singular.

A summary of the background to the present appeal

5.	S was born in May 1993, so today she is almost 18.  Her parents separated before she was born and it appears that Mr R had no contact with S.  Sadly S’s mother died when S was just four years old.  S went to live with her maternal grandparents, Mr and Mrs P, who were appointed her guardians under the Children Act 1989 and a residence order was made in their favour.  She went to a local school. Mr R made an application in the county court for a contact order, but withdrew that application in late 1998. In 2003, when S was nearly 10, she was diagnosed as being severely dyslexic.  In or about 2004 Mr and Mrs P, with the approval of the county court, arranged for S to attend a specialist school in the United States and, when doing so, to stay with friends of their late daughter, Mr and Mrs T, an English couple who had emigrated to the USA some years previously.

6.	S settled into a pattern of living with Mr and Mrs T in the USA for 50 weeks of the year and returning to stay with Mr and Mrs P in the UK for a fortnight each year.  Mr and Mrs P also visited the United States for a fortnight each year to see their granddaughter.  They kept in regular telephone contact.  Mr and Mrs P sent Mr and Mrs T the child benefit and child support they received for S, along with a contribution from their pension, to help pay for S’s school fees.  It does not appear to be in dispute that the bulk of those fees were met by Mr and Mrs T, in what the First-tier Tribunal rightly described as “an act of exceptional generosity”.

The history of the child support application and the CSA decision under appeal

7.	The earliest child support maintenance assessment on file appears to date from August 2000, when S was living with her grandparents and attending a local school.  Over the next few years there were a series of changes to the maintenance assessment, leading to an assessment that Mr R was liable to pay £85.82 a week in child support as from 10 May 2004.  This was around the time that S first went to the United States.

8.	On 10 July 2009 Mr R asked the CSA to review the maintenance assessment on the basis of a change in S’s circumstances.

9.	On 13 July 2009 a CSA decision maker superseded the 2004 maintenance assessment and decided that Mr R’s child support liability was now £56.99 a week as from 6 July 2009.  Mr R queried the new assessment.

10.	On 26 August 2009 the CSA replied to Mr R’s representative in the following terms:

“You have enquired as to why the case has not been closed because the qualifying child S has been living in the United States since 2004. I can advise the qualifying child S has been/is in full time non advanced education in the United States and therefore is treated as a special case.  Mrs P (person with care) still has full responsibility for S and would normally provide day to day care for the child.”

11.	That CSA explanatory letter cited regulation 27A (a typographical error for regulation 27) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (SI 1992/1815) (the “MASC Regulations”).  Regulation 27 deals with children who are boarders or hospital in-patients.  All parties are in agreement that regulation 27 was irrelevant at the time in question.

12.	Mr R lodged an appeal against the decision of 13 July 2009.  He argued that the decision was wrong on two grounds: first, that S was not a boarder, and, secondly, that she was resident in the United States and so outside the UK jurisdiction.  He continued:

“Mrs P, the grandmother, is resident in the UK. S lives in the USA with Mr and Mrs T.  She attends school as a day pupil and does not return to the UK for holidays. The legislation relied upon by the CSA does not apply because S is out of the UK jurisdiction therefore the case should be closed from 2004.  Also Mrs P cannot provide day to day care as she is in the UK whilst S is in the US.”

The First-tier Tribunal’s hearing, decision and reasons

13.	The Middlesbrough First-tier Tribunal heard the father’s appeal on 19 April 2010.  The father attended with his representative, Mr M. Smith of Durham Legal Services.  Mr and Mrs P also attended as did a CSA presenting officer.

14.	The First-tier Tribunal dismissed the father’s appeal.  The tribunal judge issued a statement of reasons for his decision.  He made detailed findings of fact, the main points of which are summarised above, and gave extensive reasons which undoubtedly testify to the judge’s careful consideration of the issues. I have only interfered with his decision with considerable reluctance.

15.	The tribunal judge rightly focussed on the central issue as being whether Mrs P was at the material time (in July 2009) a “person with care” in respect of S.  He referred to section 3(3) of the Child Support Act 1991 which states that:

“(3) A person is a “person with care”, in relation to any child, if he is a person—
(a) with whom the child has his home;
(b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and
(c) who does not fall within a prescribed category of person.”	

16.	The third limb of this definition (section 3(3)(c)) only applies to cases in which a local authority has part-time care of a qualifying child and so was irrelevant to the present case.  The tribunal judge accordingly correctly identified the two issues for decision as being (1) with whom S had her home (section 3(3)(a)); and (2) what was Mrs P’s status for the purpose of section 3(3)(b)? 

17.	On the first point, the tribunal judge correctly directed himself on the meaning of “home”, referred to the facts that he had found and concluded that S’s home was with Mr and Mrs P in the UK.  In short he regarded S’s absence from her English home as lengthy but temporary and justified by her special circumstances.

18.	In dealing with that first point, the tribunal judge also reasoned as follows:

“The Tribunal accept that Mr and Mrs P have not assented to surrender of legal or financial responsibility for S. The Tribunal accepts that S’s day to day requirements are provided by Mr and Mrs T who, the Tribunal find, act as agents for Mr and Mrs P.”

19.	On the second point, the key passage in the tribunal judge’s reasoning was paragraph 19 of the statement of reasons.  The judge understandably referred to Mr and Mrs P as acting together, as they plainly did, even though technically the CSA treated Mrs P alone as the person with care:

“19. The Tribunal finds that Mr and Mrs P satisfy the definition of a person with care under section 3(3)(b) because Mr and Mrs P usually provide day to day care for S though in conjunction with Mr and Mrs T in the period being considered in the appeal.  In the absence of the need for specific specialised education in the United States, S ordinarily resides and has her home with Mr and Mrs P who retain and maintain a direct family relationship with S and also by reason of the English court order.  Although day to day care is not defined by the Act (though it is defined by the MASC), the Tribunal find that day to day care is not to be construed for the purposes of the Act as it is to be construed for the purposes of the MASC.  Day to day care for the purposes of the Act means legal responsibility for the welfare of a child.  The ultimate legal responsibility is with the English court which has approved Mr and Mrs P as entitled to exercise legal responsibility for S’s welfare.”

The proceedings before the Upper Tribunal

20.	Both Mr R and Mr and Mrs P have made detailed written submissions on the appeal which I have taken into consideration.  CMEC’s representative, Mr Kevin O’Kane, provided a helpful written submission, which opposed the father’s appeal.

21.	Given the complexities of the case, I directed an oral hearing of the father’s appeal.  This was held at Doncaster County Court on 9 February 2011.  Mr R attended with his representative Mr M. Smith, who had appeared at the tribunal below.  Mr S. Cooper appeared for CMEC, and developed and refined Mr O’Kane’s written submissions.  Mr and Mrs P also attended.  I am grateful to them all for their submissions.

22.	Mr Smith’s argument for the father, in summary, was that the tribunal erred in law because S’s home was in the US and because Mrs P did not meet the definition of a “person with care”.  

23.	Mr Cooper’s central submission on behalf of CMEC was that although the tribunal judge might have expressed some matters rather differently, when taken as a whole the tribunal’s decision was justifiable on the facts, even if it was towards the margins.  

24.	Mr and Mrs P understandably did not engage with the legal technicalities of the discussion at the oral hearing, although I understood them to adopt Mr Cooper’s arguments for the most part.  They helpfully corrected a number of matters of fact that arose in the course of the hearing and restated their belief that they were providing day to day care for S.  As they rightly pointed out, had they not stepped in when S’s mother had passed away, where would S be now?

25.	My conclusion, in short, is that the First-tier Tribunal was entitled to find that S’s home remained with Mr and Mrs P at the relevant time.  However, despite the obvious care taken by the tribunal judge, and notwithstanding my admiration for all the Mr and Mrs P have done and continue to do for S, I have concluded that the statement of reasons discloses an error of law by the First-tier Tribunal in its treatment of the day to day care issue.  

Where was S’s “home” at the material time?

26.	The father’s grounds of appeal to the Upper Tribunal, as originally drafted, were not primarily directed towards challenging the First-tier Tribunal’s conclusion in respect of the location of S’s home.  At the oral hearing before the Upper Tribunal, Mr Smith sought to argue that S’s home was now with Mr and Mrs T in the United States.  However, I think the key word in the previous sentence is “now”.  In truth Mr Smith’s main arguments on this point were based on what he understood to be developments since the date of the First-tier Tribunal hearing.

27.		Whether or not Mr Smith’s understanding of the current position is accurate – and it was certainly disputed in various respects by Mr and Mrs P – is by the by.  The First-tier Tribunal was concerned with the position as at the date of the CMEC decision under appeal (i.e. as at July 2009, and not as at the date of the hearing).  I am necessarily concerned with the same earlier period.

28.	 Mr Cooper, for CMEC, argued that the tribunal was entitled to find that at the material time S’s home was with Mr and Mrs P in England, notwithstanding her long-term absence in the United States for educational purposes.  At the time in question S was temporarily, rather than permanently, absent from her home with Mr and Mrs P. He referred by analogy to the case law on the concept of being “temporarily absent from Great Britain” under the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975/563).  This demonstrated that “temporarily” was not necessarily synonymous with “not permanent”; depending on the circumstances, a temporary absence could last for several years (see especially Chief Adjudication Officer v Belmer and Ahmed, March 16, 1994, also reported as R(S) 1/96).

29.	I agree with Mr Cooper’s analysis.  The tribunal directed itself properly on the relevant law, found facts as appropriate on the evidence before it and reached a decision it was entitled to on the issue of where S’s home was at the relevant time.

Did Mrs P “usually provide day to day care” for S at the material time?

30.	The First-tier Tribunal came to three important conclusions in relation to the question of “day to day care” for the purposes of section 3(3)(b) of the 1991 Act.  The first two conclusions were on matters of law, the third on their application to the facts.  First, the tribunal judge decided that “day to day care” in the 1991 Act was not governed by the definition of “day to day care” in the MASC Regulations.  Second, the tribunal judge concluded that “day to day care for the purposes of the Act means legal responsibility for the welfare of a child.”  Third, and as to the facts, he found that “S’s day to day requirements are provided by Mr and Mrs T who, the Tribunal find, act as agents for Mr and Mrs P... The ultimate legal responsibility is with the English court which has approved Mr and Mrs P as entitled to exercise legal responsibility for S’s welfare.” 

(1) “Day to day care” under the 1991 Act and the MASC Regulations 1992

31.	The expression “day to day care”, which is used in the definition of “person with care” in section 3(3)(b) of the Child Support Act 1991 (see paragraph 15 above), is not itself defined in the 1991 Act.  The term is absent from section 54, the definition section.  However, regulation 1(2) of the MASC Regulations (as amended) provides that “in these Regulations unless the context otherwise requires”, then subject to various secondary definitions which do not matter for present purposes: 

“day to day care” means—
(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.”

32.	Mr Smith’s primary submission on this point was that the 1991 Act and the MASC Regulations 1992 were part of a complex and contemporaneous interlocking code governing child support liabilities.  As such, he argued that the definition of “day to day care” in regulation 1(2), and especially the 104 nights rule, had to be seen as qualifying the use of the same expression in section 3(3)(b) of the Act.  Moreover, on any basis Mr and Mrs P were not providing S with “care of not less than 2 nights per week on average”.

33.	Mr Cooper took a different approach.  He argued that the statutory relationship was simple: the principal test to apply in deciding who was a “person with care” was set out in the primary legislation (section 3(3)(b)) and the secondary legislation (regulation 1(2)) simply modified that concept in certain special cases, none of which applied in the present case.  Accordingly, the definition in the MASC Regulations, and in particular the “104 nights rule” (i.e. 2 nights a week on average across a year), could not cut back the true meaning of “day to day care” in section 3(3)(b), which was ultimately a question of fact for the tribunal.

34.	The general rule of statutory interpretation is that “an Act must stand on its own feet” (as Mr Commissioner Walker QC put it in Child Support Commissioner’s decision CCS/12806/1996 at paragraph 13).  I accept that there are circumstances in which secondary legislation may be persuasive in construing primary legislation (see F. Bennion, Bennion on Statutory Interpretation, Fifth edition (2008), §233 at pp.706-708). This is often the case where the Act and the regulations are conceived of together as a unitary scheme, as Mr Smith submits is the case here.  However, I agree with Mr Cooper that the definition of “day to day care” in regulation 1(2) is a self-contained one, designed for the particular types of shared care “special cases” in Part III if the MASC Regulations.  The qualifying preamble in regulation 1(2) to the effect that the definition applies “in these Regulations unless the context otherwise requires” (emphasis added) is important.  It might be thought that the decision of Mr Commissioner Jacobs (as he then was) in R(CS) 2/04 (at paragraph 12) might suggest to the contrary, and that the regulation 1(2) definition has universal application, as Mr Smith argues.  However, that was a case which specifically turned on the application of the shared care rules under Part III of the MASC Regulations. If the learned Commissioner’s point was meant to have any wider application as regards section 3, I respectfully disagree for the reasons above.

35.	It follows that, as a matter of law, I agree with the tribunal’s conclusion that in the circumstances of this case it could approach the concept of “day to day care” in section 3(3)(b) of the 1991 Act untrammelled by the definition of that term in regulation 1(2) of the MASC Regulations.

(2) The meaning of “day to day care” under section 3(3)(b) of the 1991 Act

36.	Mr Smith’s submission, in essence, was that in deciding whether or not Mrs P usually provided day to day care the First-tier Tribunal had placed too much emphasis on the issue of who had legal responsibility for S and paid insufficient attention to the reality of day-to-day parenting by Mr and Mrs T in the United States.  He said the tribunal should have looked at the facts overall and not focussed on the court order.

37.	Mr Cooper conceded that the First-tier Tribunal’s foray into issues of who had legal responsibility for S’s welfare was something of a “judicial red herring”, as that could not be determinative of the question of day to day care.  In my view it was significant that in his oral submissions Mr Cooper started by saying that the tribunal came close to saying that “day to day care for the purposes of the Act means legal responsibility for the welfare of a child” and then corrected himself to acknowledge that the tribunal did say precisely that (in the penultimate sentence of paragraph 19 of the statement of reasons: see also paragraph 19 above).  

38.	In my judgment that statement clearly encapsulated the tribunal’s approach to this critical issue and involved an error of law.  The fundamental question for the tribunal was whether Mrs P was a “person with care”, not whether she was a “person with parental responsibility”.  The First-tier Tribunal found as a fact that Mr and Mrs P had been appointed S’s guardians (presumably under section 5 of the Children Act 1989).  As such, they necessarily had “parental responsibility” for S (see section 5(6) of the 1989 Act).  Even if Mr and Mrs P had not been appointed guardians (and I accept that they were), they would have had parental responsibility conferred on them by virtue of the residence order in their favour (see section 12(2) of the Children Act 1989).

39.	However, the status of being the child’s guardian and having parental responsibility for a child under the Children Act 1989 does not necessarily mean that the individual in question is a “person with care” in respect of the child under the Child Support Act 1991.  The Court of Appeal made it clear in Child-Villiers v Secretary of State for Work and Pensions and Barlow [2002] EWCA Civ 1854 (a shared care case) that neither the existence of a court order nor responsibility for school fees could be determinative of who provided “day to day care”.  In normal circumstances, of course, legal parental responsibility and practical factual responsibility (and hence day to day care) go hand in hand.  So in practice formal responsibility may well be a good indicator of day to day care.  However, it cannot be decisive, which was the assumption behind the tribunal’s analysis.  For that reason the tribunal erred in law as it applied the wrong legal test.

40.	So what is the correct test for deciding whether a person “usually provides day to day care for the child (whether exclusively or in conjunction with any other person)”?  Given that the terminology of section 3(3)(b) has been on the statute book for two decades now, there is surprisingly little judicial authority on the meaning of “day to day care” in this particular context.

41.	The most helpful starting point is the decision of Mr Commissioner Jacobs in R(CS) 11/02.  The issue in that case was whether or not the non-resident parent had care of the child in question for not less than 104 nights in the year.  The father’s argument was that he had had care of his child on 105 nights in the year in question, 93 of which had been spent with him and the remainder with the child’s grandparents or aunt.  The context, therefore, was slightly different – the question was not whether he was a “person with care” within section 3(3) of the 1991 Act, but rather whether he satisfied the 104 nights rule so as to trigger the shared care provisions under regulation 20 of the MASC Regulations (and hence a reduction in what would otherwise be his child support liability).

42.	I make no apology for citing extensively from the reasoning in R(CS) 11/02.  At paragraphs 12-14 Mr Commissioner Jacobs noted that:

  “12.	    There are a number of aspects to caring for a child. There is the carer’s mental attitude towards the child, being concerned about the child’s health and welfare. Then, there is decision-making about the child. This covers everything from the immediate and mundane (like what time the child should go to bed) to the long-term and important (like education and religion). There is also the provision of the necessities of life, like food, clothing and shelter. Finally, there is responsibility for the child’s control and protection. 

13.	    Aspects of care may be divided between different people: for example, the child may be at school, on a school trip, with a babysitter or staying on a sleepover at a friend’s home. In each of these cases, some aspects of care will pass to the teacher, the baby sitter or the friend’s parents. The nature and extent of the care provided will vary according to the circumstances. But in all these examples the care involved will be immediate or, in the case of a school trip, short-term. 

14.    Aspects of care may be shared by different people. The most obvious example is when the child’s parents live together and with the child. In that case, potentially all aspects of care may have to be discussed. In other cases, only the longer-term aspects of care require agreement: for example, if the child’s parents are separated but share parental responsibility.” 

43.	Mr Commissioner Jacobs also acknowledged (at paragraph 16) that “the physical presence of the child is not necessary for the all aspects of care. That is obviously the case as far as the long-term decision making is concerned. It may also be the case for the immediate and mundane aspects of care”.  He accepted, therefore, that “there are different aspects to care, which may be divided between or shared by different persons, including the child, and those persons need not in all circumstances be in the child’s presence” (at paragraph 17). 

44.	The conclusion which Mr Commissioner Jacobs reached was as follows:

“18.	The issue for me is: what aspects of care are covered by ‘day to day care’ in the child support scheme?

19.	Day to day obviously covers overnight. This is put beyond doubt by the details of the definition in regulation 1(2), which refers to numbers of nights. Inherent in the language and the emphasis on nights is a concentration on the immediate, short-term and mundane aspects of care. That means 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. 

20.	This does not mean that the child must be in the parent’s presence at all times. Separation is not necessarily incompatible with a parent having day to day care of a child. The significance of the separation depends on its duration and purpose, and on the degree to which the parent continues to exercise control over the child and to be responsible for the child’s behaviour and protection. Some separation is almost inevitable during a stay, for example when the parent or child goes to the toilet. The duration and purpose of that separation is always compatible with day to day care. Other separation is not inevitable, but its purpose and its duration in comparison to the length of the stay are compatible with day to day care. For example, a child may go to spend an evening with a friend while staying with an absent parent. The same is the case if the child is left in someone else’s charge while the parent is absent, for example to go shopping.” 

45.	It is clear that in this passage Mr Commissioner Jacobs was analysing the meaning of the expression “day to day care” in isolation, without reference to the separate question under limb (a) of the definition in regulation 1(2) of whether such care met the 104 night rule.

46.	Finally, Mr Commissioner Jacobs dealt briefly with day to day care in the parallel context of section 3(3)(b):

“24.	     I have not overlooked the fact that day to day care is not exclusively concerned with absent parents. The definition of ‘person with care’ requires that the person must usually provide day to day care for the child. See section 3(3)(b) of the Child Support Act 1991. Nothing in my reasoning is incompatible with that other context. Child support law is concerned with maintenance and the costs of bringing up a child are more related to the aspects of day to day care as I have analysed it than to the longer-term decisions about upbringing.” 

47.	In my view this analysis has now been given added force by the observations of Baroness Hale of Richmond in R (on the application of Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48.  Although Baroness Hale delivered a dissenting speech in terms of the outcome of that appeal, which concerned the right to enforce child support awards, her comments at paragraph 72 are in my view of general application:

“The children's carer has a direct and personal interest in enforcement which the Agency, however good its intentions, does not. Even in benefit cases, where the state does have a direct interest in enforcement, it is not the sort of interest which stems from needing enough money to feed, clothe and house the children on a day to day basis. Only a parent who is worrying about where the money is to be found for the school dinners, the school trips, the school uniform, sports gear or musical instruments, or to visit the 'absent' parent, not only this week but the next and the next for many years to come, has that sort of interest.”

48.	It follows from this analysis that rather than considering who had (in legal terms) parental responsibility for S, and effectively using that as a proxy for being the person with care, the tribunal should have focussed on who was providing the hands-on care or the “immediate, short-term and mundane aspects of care” (R(CS) 11/02, at paragraph 19), bearing in mind that “child support law is concerned with maintenance and the costs of bringing up a child are more related to the aspects of day to day care as I have analysed it than to the longer-term decisions about upbringing” (R(CS) 11/02, at paragraph 24).  As I postulated at the oral hearing, it is about who puts food on the table, washes the child’s clothes, deals with the letters from school and reads a bedtime story.

49.		It follows that I conclude that the First-tier Tribunal’s decision involves an error of law.  It was wrong in law to conclude that “day to day care for the purposes of the Act means legal responsibility for the welfare of a child”.  Rather, the meaning of “day to day care” for the purposes of section 3(3)(b) carries the same practical connotations as Mr Commissioner Jacobs set out in R(CS) 11/02, albeit not subject to the 104 night rule which is contained in regulation 1(2) of the MASC Regulations and which applies for the purpose of those specific rules governing various special cases such as shared care.

(3) The tribunal’s conclusions on the facts

50.	The First-tier Tribunal found that “S’s day to day requirements are provided by Mr and Mrs T who, the Tribunal find, act as agents for Mr and Mrs P... The ultimate legal responsibility is with the English court which has approved Mr and Mrs P as entitled to exercise legal responsibility for S’s welfare.”

51.	Mr Smith’s argument, in short, was that the tribunal had both applied the wrong test in law and reached a decision which, on the facts, no reasonable tribunal, properly directing itself, could have arrived at.

52.		Mr Cooper, however, submitted that the application of the “day to day care” requirement was ultimately a question of fact for the tribunal, which has a considerable degree of leeway in such an assessment.  The present case, he conceded, was undoubtedly unusual.  It was, by definition, relatively unusual for any child to be educated abroad.  However, even if it was near or at the margins of lawfulness, the tribunal’s decision was one which a reasonable tribunal could properly meet.  For example, the tribunal had taken into account the following factors: S and her grandparents were together for four weeks of the year (a fortnight in the USA and a fortnight in the UK); despite the distance there was a close relationship between S and Mr and Mrs P, illustrated by the regular telephone contact; Mr and Mrs P received child benefit for S and also made a financial contribution to S’s upkeep.  Taken in the round, the tribunal was therefore entitled to conclude that Mrs P (in particular) usually provided day to day care for S, especially bearing in mind the statutory qualification that such care may be either “exclusively or in conjunction with any other person”.

53.	I confess that initially I was much attracted by Mr Cooper’s argument.  At the outset I thought that it might be possible to uphold the tribunal’s decision on the basis that Mr and Mrs T in the United States and Mr and Mrs P in England were together providing day to day care for S, and that as the 104 nights rule applied only under the MASC Regulations, there was no reason why Mrs P might not be a “minority” person with care for the purposes of section 3(3)(b).

54.	On reflection, however, I have reached the conclusion that the tribunal not only applied the wrong legal test but, had it applied the proper legal test, it had reached a decision which could not be sustained.  I have reached the conclusion for three main reasons.  

55.	First, the test under section 3(3)(b) is of “day to day care”.  The expression “day to day” itself is a matter of ordinary English usage.  According to the Shorter Oxford English Dictionary, “day to day” means “continuously without interruption”.  Synonyms for “day to day” are words such as everyday, habitual, routine and usual.  Mr and Mrs P plainly took a very close interest in their granddaughter’s welfare but that did not mean that they were providing “day to day care”, given that sense of the term “day to day”.

56.	Secondly, the tribunal’s conclusion that Mrs P was a “person with care” in respect of S robbed a key word in the definition of “person with care” in section 3(3)(b) of any real meaning: that word was “usually”.  Mr Smith suggested that “usually” meant “generally” or “as a rule”.  The Shorter Oxford English Dictionary defines “usually” as “in a usual or wonted manner; according to customary, established or frequent usage; as a rule”.  The question posed by section 3(3)(b) was this: who usually provided day to day care for S at the material time? The only sensible answer to that question was that it was Mr and Mrs T.  Mrs P plainly had parental responsibility for S (together, of course, with Mr P), she was doubtless consulted over S’s welfare, and she certainly made a financial contribution towards S’s school fees, but the reality was she from time to time or occasionally and not usually provided day to day care for S.  In my view the Commission’s decision maker at the outset asked themselves the wrong question, namely who would normally provide S with day to day care (see paragraph 10 above).  Absent the special arrangements for S’s education, there is no doubt but that Mrs P would “normally” provide S with day to day care.  However, the test under section 3(3)(b) is who actually and usually provides day to day care in practice.

57.	Thirdly, whilst acknowledging that “S’s day to day requirements are provided by Mr and Mrs T”, the tribunal’s decision was predicated on its finding that Mr and Mrs T were acting as agents for Mr and Mrs P.  There is no doubt that in a broad sense Mr and Mrs T were indeed acting as agents for S’s grandparents.  However, as explained above, the focus of the test for day to day care under section 3(3)(b) is on the provision of the “immediate, short-term and mundane aspects of care”.  By the time in question, Mr and Mrs T were the practical day to day care providers.  It is noteworthy that in R(CS) 11/02, Mr Commissioner Jacobs concluded on the facts that the non-resident parent in that case was not exercising “day to day care” over his child for the handful of nights when she was staying with other relatives. The degree of separation in the present case is clearly much more significant.  There was also no suggestion in R(CS) 11/02 that any notion of agency could impute the day to day care provided by other relatives to the father so as to enable him to surmount the 104 night hurdle.

58.	Accordingly I conclude that at the material time, had it directed itself properly according to the relevant law, the only decision the tribunal could have reached on the facts it had found was that Mrs P was not usually providing day to day care for S.  Accordingly she did not fall within the definition of “person with care” under section 3(3)(b) of the Child Support Act 1991.

A thought experiment: what if S lived with friends at the other end of the UK?

59.	A simple thought experiment, or hypothetical example, provides support for the conclusion arrived at above.  Assume a scenario in which the facts are exactly the same as in the present case with the sole exception that Mr and Mrs T (“the de facto foster parents” for the purposes of this example) live not in the United States but in England, but at the other end of the country from Mr and Mrs P (“the grandparents”), and that S attends a school near Mr and Mrs T and lives with them for all bar two weeks of the year.  This would mean they were habitually resident in the UK and so able to apply for child support in their own right.  What then would the position under the Child Support Act be?  Who would be the person with care for the purposes of making a claim against the father?

60.	The 1991 Act clearly contemplates that a child may have more than one home: indeed, section 42(2)(e) expressly permits regulations to be made covering the situation where “a qualifying child has his home in two or more separate households”. So in this scenario both the de facto foster parents and the grandparents would be persons “with whom the child has [her] home” within section 3(3)(a).  The next question would be who usually provided day to day care for the child within section 3(3)(b).  The only answer to that question would be the de facto foster parents.  They usually provided day to day care for the child in conjunction with the grandparents and the grandparents occasionally provided day to day care for the child in conjunction with the de facto foster parents.

61.	On that basis, the de facto foster parents would be the persons with care, not the grandparents.  It is difficult to see as a matter of logic how the grandparents’ position should be any different or “better off” because the de facto foster parents happen to be living in the United States in the present case.

62.	However, would the position be any different in this alternative scenario if the threshold for “usually” is properly judged to be lower and both the de facto foster parents and the grandparents were found to be persons with care within section 3?  The legal position would then fall to be decided by reference to the special cases provisions in the MASC Regulations.  The only possible provision that might apply is regulation 24, which deals with the situation where “two or more persons who do not live in the same household each provide day to day care for the same qualifying child”, where neither carer is a parent.  However, that provision only applies where both carers provide “day to day care” within the meaning of regulation 1(2).  In other words, both sets of carers would have to meet the 104 nights rule.  As the grandparents would not do so, the case would not be a special case for the shared care rule under regulation 24.  Again, it is hard to see how the position of the grandparents can be improved by the fact that the other carers are actually in the United States.

63.	In this respect there is a certain logic or symmetry in the child support scheme.  A non-resident parent, subject to the old scheme, who has day to day care of his child for less than 104 nights a year is subject to a full child support liability with no discount for his actual shared care (as was the case in R(CS) 11/02).  This hypothetical example shows that similarly a carer who does not meet the 104 nights a year test will likewise not be eligible to claim child support, despite the fact they do provide some care for the child in question.

The child benefit issue

64.	I have not overlooked the fact that Mrs P received (and indeed may well still receive) child benefit for S.  Receipt of child benefit may be a relevant factor but again cannot be determinative.  The reason for this is that the test of entitlement to child benefit is different.  The principal condition for that benefit is that the adult concerned “is responsible for” the child (Social Security Contributions and Benefits Act (SSCBA) 1992, section 141).  Moreover, a person is responsible for a child for child benefit purposes if he or she either has the child living with him in the week in question or (subject to certain conditions) is contributing to the cost of providing for the child (SSCBA 1992, section 143(1)).  The basis of the award of child benefit to Mrs P in the present case is not entirely clear, but it could plainly be justified on the latter ground.  If it was on the former ground, the statutory test is different to that of “day to day care”.

The habitual residence issue

65.	I have also not overlooked the question of S’s habitual residence. In his original application, Mr R suggested (in as many words) that S was no longer habitually resident in the UK.  If so, of course, the Commission would not have jurisdiction to make a child support maintenance calculation (Child Support Act 1991, section 44(1)(c)).  That argument does not appear to have been pursued before the First-tier Tribunal and was certainly not argued before the Upper Tribunal.  In the circumstances of this appeal it is not appropriate to re-open that issue.  I just observe that it is possible as a matter of law to be habitually resident in two jurisdictions at the same time.  There is also the argument that a child takes her habitual residence from the person with whom she lawfully lives, in which context a court order may be relevant.  I also note Mrs P’s point that today S remains a British citizen and is in education in the United States subject to visa requirements which prohibit her from engaging in paid work there.

The Upper Tribunal’s decision and the effective date of the change

66.	It follows from the reasons above that Mr R’s appeal must be allowed. The decision of the Middlesbrough First-tier Tribunal dated 19 April 2010 under file reference 185/09/01964 involves an error on a point of law.  The First-tier Tribunal’s decision is therefore set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
  
67.	Having set aside the tribunal’s decision, I must either remit the case to the First-tier Tribunal for re-hearing or “re-make the decision” myself (section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007).  It is not sensible to remit the case for re-hearing, given the time that has elapsed and as it is highly unlikely that any new evidence will emerge (and there is always the risk that any new evidence will be coloured by the likely consequences).  I therefore proceed to re-make the decision myself.

68.	The Commission’s decision under appeal to the First-tier Tribunal was its decision of 13 July 2009 that Mr R was liable to pay £56.99 per week with effect from 6 July 2009.  That latter date was selected as the decision followed the father’s request for a supersession on 10 July 2009, and the normal rule is that a supersession decision takes effect from the beginning of the relevant maintenance period (in practice the week in which the application was made): see section 17(4) of the Child Support Act 1991.

69.	For the reasons above, my decision is that there was no jurisdiction at that date to make that maintenance calculation as Mrs P was not a “person with care” with respect to S.  Paragraph 16(4) of Schedule 1 to the Child Support Act 1991 provides as follows:

“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.”

70.	A termination decision under paragraph 16 requires a revision or supersession decision to give it effect (SL v Child Maintenance Enforcement Commission (CSM) [2009] UKUT 270 (AAC) at paragraphs 24-28).  As the present case concerns a change in circumstances, a supersession rather than a revision decision is appropriate.  The question then is when the supersession decision should take effect.    The general rule is as at the date of the application: see section 17(4) of the Child Support Act 1991, referred to above.

71.	However, there are exceptions to this general rule, as provided for in regulations made under section 17(5) of the 1991 Act.  In particular, paragraph 3 of Schedule 3D to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (as inserted by regulation 4 of the Child Support (Miscellaneous Amendments) Regulations 2009 (SI 2009/396)) deals with certain situations where (according to the heading) the “Decision [is] backdated to when the change occurred”.  

72.	Paragraph 3(b) provides that:

“Where the ground for the supersession decision is that a relevant change of circumstances of the following kind has occurred, the decision takes effect from the beginning of the maintenance period in which the change occurred—
…
(b) the person with care ceases to be a person with care in relation to a qualifying child…”

73.	So the critical issue is the date when the change occurred, i.e. the date on which Mrs P ceased being a person with care for the purposes of section 3 of the Child Support Act 1991.  Mr R, of course, has sought to argue that that change took place right back in 2004.  I do not think that can be right, as plainly Mrs P was very much a person with care immediately before S’s first trip to the United States and she did not cease meeting the test under section 3(3)(b) overnight.  What is “usual” is a question of fact but takes time to evolve.  Equally I do not think it can be right that Mrs P’s status as a person with care did not cease until July 2009, when the father made his application.

74.	This is ultimately a question of fact in the light of all the available evidence in the case.  On the basis that S first went to the United States in 2004, I think it is fair to say that by the end of 2006 the point had come by which it was not possible to say that Mrs P continued to meet the statutory test for a person with care under section 3(3)(b).  I accept that there is an element of arbitrariness about selecting such a time, but this is the best that can be done on the evidence.  I also take into account the continued contact between S and her grandparents and S’s age in making that decision.  I therefore conclude that Mrs P ceased being a person with care by 31 December 2006.  The result is that the statutory child support liability ceased on that date.  As from 1 January 2007 Mrs P was no longer a person with care.

Other types of child maintenance

75.		Although my conclusion is that Mr R no longer had a liability under the Child Support Act 1991 with effect from 1 January 2007, that is certainly not the same as saying that he had no liability to pay child maintenance for S.  The reason for this is that a parent’s liability under the 1991 Act is only one way in which he may be required to meet the costs of maintaining his child.  Where the 1991 Act does not apply, the ordinary civil courts may make an order for financial relief for a child under section 15 of and Schedule 1 to the Children Act 1989.  An application under those provisions may be made by a guardian or someone with a residence order, such as Mrs P (see paragraph 1(1) of Schedule 1). The court may make e.g. an order for periodic payments or for a lump sum (paragraph 1(2) of Schedule 1) and those powers may be exercised at any time (paragraph 1(3) of Schedule 1).

76.	In making such an order the court must have regard to a number of factors (see paragraph 4 of Schedule 1), although in practice the child support formula under the 1991 Act may be used as a benchmark (GW v RW [2003] EWHC 611 (Fam)).  Although orders under Schedule 1 normally cease on a child’s 18th birthday, they can go beyond that date in special circumstances (see paragraphs 2 and 3).  In certain cases the court may even make an order where the child is found to be living outside England and Wales (paragraph 14).  It may well be that one way of looking at any child support paid since January 2007 is that it reflects a liability under Schedule 1 to the Children Act 1989.  While such issues are outside the jurisdiction of the First-tier and Upper Tribunal, they are an important part of the background to this case.

Conclusion

77.		For the reasons explained above, the decision of the tribunal involves an error of law.  The Upper Tribunal therefore allows the father’s appeal and sets aside the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The Upper Tribunal re-makes the decision in the terms set out at the start of these reasons (section 12(2)(b)(ii) of the 2007 Act).  

Signed on the original				Nicholas Wikeley
on 10 March 2011					Judge of the Upper Tribunal