TB v SSWP & RB (CCS)

Under the original child-support scheme, a maintenance assessment may cease to have effect without a formal decision where an incontestable terminal event occurs, such as the last qualifying child attaining 19. A formal adjudication is instead required where an alleged supervening event, including loss of habitual residence, raises factual issues requiring investigation.

Pending cancellation for loss of jurisdiction, paragraph 16(5) of Schedule 1 to the Child Support Act 1991 preserves an assessment already in force. However, once an assessment has ceased to have effect because no qualifying child remains, it is no longer in force. The Secretary of State cannot then cancel it or make decisions retrospectively affecting it.

The father appealed against the decision of the Port Talbot Tribunal of 3 April 2013, which confirmed an agency decision maintaining his interim maintenance assessment until the younger of his two children reached 19 on 4 January 2007.

He had notified the agency in June 2007 that he had moved to the Republic of Ireland in August 1997. He contended that the agency had lacked jurisdiction from that earlier date because he had ceased to be habitually resident in the United Kingdom. The central issue was whether the assessment could then be cancelled retrospectively, or whether it had already ceased to have effect when the final qualifying child reached 19.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law and stood, although the Upper Tribunal reached that result by different reasoning.

2. Where an absent parent, person with care or qualifying child ceases to be habitually resident, paragraph 16(5) of Schedule 1 to the Child Support Act 1991 preserves an assessment already in force unless and until it is cancelled, or ceases to have effect under another provision. A claimed loss of habitual residence may be factually contentious. It therefore requires investigation and a formal determination capable of engaging the statutory appeal process.

3. Paragraph 16 distinguishes cancellation, which requires positive administrative action, from cessation under paragraph 16(1). Where a terminal event admits of no real argument, a formal decision is unnecessary. The final qualifying child’s attainment of 19 was such an event. The assessment consequently ceased to have effect on 4 January 2007.

4. Regulation 7 of the Maintenance Arrangements and Jurisdiction Regulations 1992 permits cancellation only of an assessment which is in force. By June 2007 there was no assessment in force to which the father’s information, or an application to convert the interim assessment into a full assessment, could attach. The Secretary of State had no statutory power to revisit decisions affecting the assessment during the earlier period.

5. The judge added, obiter, that prompt notification of a genuine jurisdictional change would ordinarily allow the person with care to seek a replacement court order. A party holding information material to a benefits or maintenance decision should put it before the decision-maker.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the decision of the Port Talbot Tribunal stood.
• Port Talbot Tribunal: on 3 April 2013, confirmed the agency decision which closed the case from the younger child’s 19th birthday.