Secretary of State for Work & Pensions v Menary-Smith

Income support and child support maintenance are administered by separate parts of the Department of Work and Pensions. There is heavy reliance on computers. In 2002 at least, child support maintenance was administered by the Child Support Agency which operated on behalf of the Secretary of State.

Income support is calculated as a weekly amount and paid with reference to benefit weeks. Child support maintenance is not necessarily assessed as a weekly amount. It may, for instance, be assessed and paid weekly or monthly. It may be required to be paid by the absent parent directly to the parent with care; or to the Child Support Agency who may then transmit it to the parent with care. By that means the Child Support Agency should be able to keep track of the amounts that have been paid.

If a parent with care of a child receives income support and also child support maintenance from the child’s absent parent, the general scheme of the relevant legislation is that child support maintenance is treated as income for the purpose of calculating the amount of income support.

I imagine that, if the amount of the income support to which a parent with care is entitled, apart from child support maintenance payments, is constant; and if the absent parent is required to pay child support maintenance weekly at a weekly rate and does so regularly; and if the respective computers are given the correct information, the system may operate smoothly and accurately. But what if the absent parent does not pay regularly, but gets into arrears and then makes haphazard lump sum payments? Are such payments to be taken as paying off the arrears? Or as discharging current (or perhaps future) requirements to pay child support maintenance? And to which benefit week or weeks are they to be attributed for the purpose of calculating the weekly amount of income support to which the parent with care is entitled? I am not clear whether the answer to these questions makes any ultimate difference to the amount of income support which the parent with care will eventually receive, if all payments of child support maintenance are treated as income.

The legislation which seeks to answer questions of this kind is less than completely clear. It is perhaps idle to say that it ought to be clear. Yet the legislation materially affects the week by week entitlements of parents with care to receive income support, and they and their children are by definition people who badly need the money. It is common knowledge that absent parents often get into arrears with payment of child support maintenance. It is regrettable that a combination of obscure legislation and incomplete and inaccurate presentation of the facts has brought this appeal to this court in a state in which we are unable to provide answers which will both finally determine the particular case and give guidance for future cases.

For reasons which I shall shortly explain, the appeal has proceeded on assumed facts, in outline as follows. The respondent, Georgina Menary-Smith, has a young child to whose father she was previously married. She is the parent with care of the child. She claimed and was paid income support from some date in 1998. In 1999, the child’s father, as an absent parent, was required under a maintenance assessment to pay child support maintenance at a weekly rate of around £50 and to make those payment to the Secretary of State through the Child Support Agency. The absent parent made some payments, but became in substantial arrears. On 21^st January 2002, he paid £304.72 child support maintenance. On 25^th June 2002, he paid £230 child support maintenance to the Secretary of State who transmitted it to the respondent. On 5^th July 2002, he paid another £230 child support maintenance to the Secretary of State. On 12^th August 2002, the Secretary of State attributed the payment of 25^th June 2002 as a payment of regular maintenance to the respondent as the parent with care. No element of it was treated as a payment to reduce arrears of child support maintenance. As a result, the respondent’s income support was reduced by £57.50 per week. I emphasise that these are assumed facts.

£57.50 is mathematically £230 divided by four, so that the first payment of £230 was taken to reduce the respondent’s income support by £57.50 per week over a 4 week period. This calculation did not accord with the explanation to us by Miss Lieven, who appeared for the Secretary of State, of how the legislation properly understood should operate.

It is obvious that the three assumed payments of child support maintenance in January, June and July 2002 were not regular weekly payments of the required amount. They were irregular lump sum payments, haphazard in amount. My understanding of the respondent’s general case is that the payments should have been attributed to reduce arrears of child support maintenance, and not to current or future payments of child support maintenance. I am unclear how this contention would ultimately benefit the respondent, if all payments of child support maintenance are to be set off against income support; but there may well be unexplored recesses of the statutory labyrinth which might mean that she could benefit.

On 17^th March 2004, an Appeal Tribunal at Barrow decided, upon the respondent’s challenge to the decision of the Secretary of State on 12^th August 2002, that child support maintenance received by the respondent should be treated as a reduction of arrears until the arrears had been fully paid. In the period from and including 25^th June 2002, there were substantial arrears and payments made at or about that time should be treated as capital and not income on the normal basis that earlier debts are discharged before later ones. The Tribunal’s Statement of Reasons explained this decision by saying that the Tribunal was at a loss to understand the meaning of Regulation 60C of the Income Support (General) Regulations 1987 (see later in this judgment); and that, in the absence of any clear understanding of what was intended by the regulations, the normal common law rule, known as the rule in Clayton’s Case (1816) 1 Mer. 572, should apply.

It was agreed before us that the rule in Clayton’s Case has little or nothing to do with interpreting income support regulations, and that the task is to construe the regulations, however difficult that might be, rather than to resort to common law or equitable rules of following or tracing. I sympathise with the Tribunal, because the meaning of parts of Regulation 60C seems to me to be obscure to the point of near darkness. But we cannot find artificial illumination from Clayton’s Case.

By section 3(6) of the Child Support Act 1991, periodical payments which are required to be paid in accordance with a maintenance assessment are referred to in the Act as “child support maintenance”.

Regulation 25A of the Income Support (General) Regulations 1987 is to the effect that payments of child support maintenance are to be taken into account for income support purposes in accordance with regulations 60A to 60D. Regulation 60A provides that, in the Chapter of the Act in which it is, child support maintenance means such periodical payments as are referred to in section 3(6) of the Child Support Act 1991. Regulation 60B provides that all payments of child support maintenance shall, to the extent that they are not income, be treated as income and shall be taken into account on a weekly basis in accordance with following provisions. Treating payments of child support maintenance as income for income support purposes of course means that the income of the recipient of child support maintenance is increased, with the result in general that the amount of income support to which the recipient is entitled is reduced.

Regulation 60C is headed “Calculation of the Weekly Amount of Payments of Child Support Maintenance”. It provides:

“60C (1) The weekly amount of child support maintenance shall be determined in accordance with the following provisions of this regulation.

(2)

Where payments of child support maintenance are made weekly, the weekly amount shall be the amount of that payment.

(3)

Where payments of child support maintenance are made monthly, the weekly amount shall be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(4)

Where payments of child support maintenance are made at intervals and those intervals are not a week or a month, the weekly amount shall be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(5)

Where a payment is made and that payment represents a commutation of child support maintenance the weekly amount shall be the weekly amount of the individual child support maintenance payments so commuted as calculated in accordance with paragraphs (2) to (4) as appropriate.

(6)

Paragraphs (2), (3) or, as the case may be, (4) shall apply to any payments made at the intervals specified in that paragraph whether or not –

(a)

the amount paid is in accordance with the maintenance assessment, and

(b)

the intervals at which the payments are made are in accordance with the intervals specified by the Secretary of State under regulation 4 of the Child Support (Collection and Enforcement) Regulations 1992.”

It is tolerably clear that this regulation is intended to enable all payments of child support maintenance to be expressed as a weekly amount for the purpose of regulation 60B. Regulation 60D provides for the date on which child support maintenance is to be treated as paid.

The part of regulation 60C which the Tribunal was unable to understand was sub-paragraph (5). It was agreed before us that this sub-paragraph did not apply to the assumed facts upon which the submissions before us proceeded. It was Miss Lieven’s submission that sub-paragraph (4) applied, and that, for the payment assumed to have been made on 25^th June 2002, a weekly amount of £10.95 resulted from dividing £230 by 21 weeks, being the interval between 25^th June 2002 and 21^st January 2002, when the last payment of child support maintenance was assumed to have been made. £10.95 is not the weekly amount which the Secretary of State in fact calculated for the 25^th June 2002 payment of child support maintenance in this case.

The Secretary of State appealed against the Tribunal’s decision to a Social Security Commissioner. On 16^th February 2005, Commissioner David Williams allowed the appeal and referred the matter to a different tribunal to consider the matter afresh. Before this court, the parties agree that the Tribunal’s decision was wrong in law because the rule in Clayton’s Case was inapplicable, and that the matter should indeed be referred to a different tribunal. But nevertheless the Secretary of State sought and obtained permission to appeal the Commissioner’s decision (although there is no appeal against the resulting order) because, it is contended, the Commissioner’s decision contains errors of law; because the Commissioner’s decision in effect directs the new tribunal to decide the case in accordance with the points raised in the decision; and because, although the relevant parts of the Commissioner’s reasons were not necessary to his decision, they are nevertheless likely to be taken as correct in other cases unless this court is persuaded to say that they are wrong.

The Commissioner stated that, because of the decision it took, the tribunal made minimal findings of fact. The Commissioner then took a complicated set of assumed facts from the appeal papers, saying that he made no formal findings. These would need to be established before the appeal could finally be decided. For this reason, among others, the matter was referred to a different tribunal. It is in my view procedurally regrettable that the matter proceeded on appeal to the Commissioner, and indeed to this court, without secure relevant findings of fact. The uncertainties include, but are not limited to, the amounts and dates of various payments and the process whereby the allocation or attribution on 12^th August 2002 of the payment of 25^th June 2002 was made.

The Commissioner proceeded to discuss a variety of issues with reference to the regulations. It is only, in my view, necessary to refer to those three parts of the decision which the Secretary of State would challenge.

First, the Commissioner appears to have decided that a lump sum payment of arrears of child support maintenance was not a payment of child support maintenance for the purpose of regulation 60B, because it was not a periodical payment for the purposes of regulation 60A and section 3(6) of the 1991 Act. To that extent he considered that regulation 60B did not achieve its apparent object of treating all payments of child support maintenance as income. Miss Lieven submits that this is wrong, pointing out that section 3(6) of the 1991 Act is concerned with periodical payments “which are required to be paid in accordance with a maintenance assessment”. This, she says, encompasses a lump sum payment of arrears of child support maintenance.

Second, the Commissioner struggled with the meaning and application of regulation 60C(5). He contrasted it with regulations 60C(4) and (6), both of which refer to payments made at intervals. He concluded that paragraph 60C(5) referred to payments by an absent parent that are not made either periodically or in accordance with the terms of the requirement, but are made as an “offset” against such a payment. “Periodical” must be given its widest meaning in sub-paragraphs (4) and (6), so that a payment only falls within sub-paragraph (5) if it is not a periodical payment. It might catch one-off payments, such as an initial payment that is not then repeated. But the Commissioner could not see any other kind of payment being within the rule. Miss Lieven submits that this is confusing and wrong.

Third, the Commissioner discussed the operation of regulation 9 of the 1992 Regulations in the context of the Secretary of State’s case that the attribution made on 12^th August 2002 was properly made under that regulation. Such decision as was made may have been put into effect by someone making an entry into a computer. That raised a question of who made the decision and how. In this context, the Commissioner said that, while the power is that of the Secretary of State, he could not see the basis for the power under regulation 9 to be exercised by a decision maker in an income support office. Miss Lieven challenges this as an error of law. The power is given to the Secretary of State. It is, she says, irrelevant in law whether the power is exercised by administrative civil servants in the Child Support Agency or an Income Support Office. She refers to Carltona v Commission of Works [1943] 2 All ER 560.

Mr Kolinsky, for the respondent, maintains that the appeal is hypothetical and academic and that it that it should not be entertained. He says that the points to which grounds 1 and 2 are directed formed no part of the Commissioner’s decisive reasoning and so do not stand as precedent. The respondent does not contend that the payment of 25^th June 2002 was not a payment of child support maintenance for the purposes of regulation 60B; nor does she now contend that it comes within regulation 60C(5). Mr Kolinsky refers to Secretary of State for Work and Pensions v Hughes (a minor) [2004] EWCA Civ 16 and urges this court to follow paragraph 18 in the judgment of Tuckey LJ in that case. As to ground 3, the application of regulation 9 is central to the respondent’s case; but its application cannot or should not be determined in a factual vacuum.

This court is abjured by the House of Lords not to decide hypothetical questions. In R v Home Secretary, ex parte Wynne [1993] 1 WLR 115, Lord Goff of Chieveley said at page 120A:

“It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in turn constitute no more than obiter dicta, expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future.”

He had earlier said at page 119G that the Court of Appeal should not have given leave to appeal in that case because the substantive argument and the appeal raised what was in truth a hypothetical question. The same, in my view, must apply to appeals to this court. The court’s business is to decide real issues which arise on facts which have been found or are capable of being determined in this court, or sometimes upon facts which are assumed in favour of a party who asserts them for the purpose of a properly structured preliminary issue. Its business is not to conduct and determine academic seminars.

Notwithstanding Mr Kolinsky’s well founded objections, we decided to hear argument at least, because the parties had spent time and energy preparing for an appeal for which permission was given and were before the court. Miss Lieven obtained instructions agreeing that the Secretary of State would bear the costs of the appeal whatever its outcome. We did not promise to decide the issues raised, and I do not consider that we should do so. I shall therefore limit myself to a few short observations which are not to be taken as any kind of precedent.

The parts of the Commissioner’s decision which are challenged were not necessary to his decision and are not therefore to be taken as precedent.

As to ground 1, I see the force of Miss Lieven’s submission. Mr Kolinsky did not advance any argument to the effect that the Commissioner was correct and he may well not be correct. But I am not prepared so to decide even hypothetically in the absence of submissions from a party who has an interest to oppose the submissions made on behalf of the Secretary of State. Any rehearing of the present case can readily proceed on the apparently agreed basis that Miss Lieven’s submission is correct.

As to ground 2, neither party submits that regulation 60C(5) would apply in this case. Miss Lieven submitted that regulation 60C(4) applied and she may be right, although the administrative complications that this might raise with successive haphazard payments of arrears of child support maintenance are acute, as this case has amply illustrated. Mr Kolinsky did not argue in opposition to Miss Lieven’s submission that regulation 60C(4) applied. I do not presently regard regulation 60C(5) as other than obscure, and Miss Lieven did not, despite valiant efforts, succeed in enlightening me.

As to ground 3, I understand that the status and effect of what may have been done on 12^th August 2002 is the nub of any real issue between the parties, and the facts have yet to be found. I do not consider that this court should embark on debating the rights or wrongs of what the Commissioner said. I do, however, note that, in refusing permission to appeal, the Commissioner himself said that he did not decide that there was no valid exercise of regulation 9 in this case. The sentence to which the Secretary of State objects is not a binding precedent and it remains to be seen whether there was or was not an effective attribution in this case under regulation 9 and, if so, what were, or should have been its consequences.

I would dismiss this appeal and concur with paragraph 54 of Carnwath LJ’s judgment as to the practical disposal of the matter. I would absolve the Commissioner who deals with the matter from deciding the case necessarily in accordance with Commissioner Williams’ obiter analysis. But I would also counsel the parties and their representatives to consider very carefully whether there is any proportionate reason why the matter needs further protracted expense. If there is no substantial benefit available to the respondent, further expense is not justified on her behalf. If there is, as I suspect, no remaining substantial issue between the parties, a further judicial decision will not help the Secretary of State administer other cases.

May LJ has summarised the assumed relevant facts. The dispute between the parties appears to come down to two issues: (i) whether the husband’s payments should have been attributed to his arrears, rather than his current or future obligations? (the “arrears issue”); (ii) if the latter, to which weeks and in what amounts should it have been allocated? (the “allocation issue”).

I say “appears”, because even at this stage I am left in some uncertainty as to what precisely the parties are fighting about in legal or practical terms. The problem must be commonplace: the interaction of child support and income support, in circumstances where the absent father’s payments are irregular. Presumably, administrators have to apply the law to similar situations on a daily basis. Someone must have told them (or the computers acting on their behalf) how to approach the matter. Yet after four years since the original decision, which have seen one tribunal hearing, two reasoned Commissioner decisions, and a fully argued appeal to this court, with experienced Counsel on both sides, we seem to be as far as ever from a consistent or coherent account of how the relevant regulations are supposed to work, or why it matters.

Nor is it clear to me what if any financial advantage the claimant expects from a decision in her favour. My untutored assumption would have been that, if the payments had been attributed to arrears, they would have been retained by the system to set against the husband’s previous indebtedness, rather than being transmitted to her; but that her current income support would have been increased to make good the shortfall. On that basis her current position in financial terms would have been unchanged. It appears from Counsel’s agreed note (kindly provided at my request since the hearing) that the position may not be so straightforward. Although I do not find their reasoning easy to follow, I shall proceed on the assumption that the answer to the appeal has real significance for her, as well as importance for the general operation of the system.

To understand why the case has proved so elusive, I need to start at the beginning. The decision under appeal is that of the Secretary of State dated 12^th August 2002, relating to the claimant’s entitlement to weekly income support from 26^th June 2002. The only element in issue is the deduction of “£57.50 weekly from child support payments”. That followed a payment of £230 made by the absent father, and transmitted to the mother by the CSA on 25^th June (£57.50 represented one quarter of £230). The most recent previous payment had been £304.72 on 30^th January 2002. A further payment of £230 was made on 5^th July 2002.

As far as I can judge from the papers before us, the sole substantive dispute between the parties at the tribunal stage was what I have called the arrears issue. The claimant argued that the payments “should be treated as payments of arrears, not as current income… (and) that the CSA should have attributed every regular payment to the ‘oldest debt’” (see Department Submission to the Tribunal para 10-11, recording a telephone conversation with her father; see also her response to the Commissioners – 16.9.04).

I can find no suggestion that at the tribunal stage the claimant was questioning the precise manner in which the Department had allocated the payment to current and future obligations, assuming she lost on the arrears issue. The basis of the Department’s decision was that the £230 should be split into four weekly amounts, starting from the week immediately following the payment. The Department’s Submission to the Tribunal stated simply:

“The decision maker determined that the payments specified by the CSA as regular maintenance payments should not be treated as payments made to clear the arrears owing. They were therefore allocated on a forward basis for the period they were made in respect of.”

In view of the Tribunal’s decision on the arrears issue, it was unnecessary for them to consider this calculation or the explanation.

On the arrears issue, the Department’s position has been reasonably consistent. It has relied throughout on the Secretary of State’s power under regulation 9 to attribute to maintenance due “as he thinks fit”. As to what happened in fact, it relied on a letter from the CSA dated 15^th May 2003 showing that the payment was classified as “regular maintenance”, as opposed to arrears (appeal submission para 9). I understand (from the somewhat cryptic note at the end of the letter) that the attribution is automatic:

“… it [which I assume to be a computer] will automatically pay off what’s outstanding in regular maintenance first, before arrears payments go out.”

The Tribunal did not in terms question the evidence as to the exercise of the Secretary of State’s discretion under regulation 9 in the context of child support law, but posed a new question:

“Was the discretion of the Secretary for Child Support binding on the decision maker in respect of Income Benefit?”

The presenting officer for the Department does not seem to have come equipped to answer that question. He referred the Tribunal to regulation 60C(5) dealing with commuted payments, but (in the words of the Tribunal) –

“(he) was unable to explain the meaning of that paragraph and the Tribunal was at loss to understand it.”

In those difficult circumstances, and in the absence of any help from the standard textbook, the Tribunal with some “considerable hesitation” applied the “normal common law rule” (i.e. “the rule in Clayton’s case”) that repayment of a debt should be applied to “the earliest debt first”; and accordingly held that the father’s payment should be –

“allocated to the arrears and treated as capital in the hands of the Appellant until such time as the arrears had been discharged” (emphasis added).

The Department appealed with leave of the tribunal. The main thrust of the grounds of appeal (dated 28^th April 2004- bundle p 117) was to challenge the tribunal’s finding that the payment should be treated as “capital”. That was said to be contrary to regulation 60B, under which all payments of “child maintenance” are to be treated as “income”, even if they are not. The grounds gave the Department’s view of the relevant provisions: (i) the payment had been classified by the CSA as “regular maintenance” rather than arrears, under regulation 9; (ii) regulation 60D(2) governed the date when the payment was to be treated as paid; (iii) regulation 60C(4) (Footnote: ¹ ) governed the calculation of the weekly amount in respect of a payment which “was part of a set of payments which have not been made either weekly or monthly”.

These grounds were expanded in a written submission to the Commissioners, dated 18^th June 2004. In particular, the written submission explained the effect of applying regulations 60D(2) and 60C(4) to the case, which resulted in a change from the allocation adopted before the Tribunal. The regulation required the weekly amount to be determined by dividing the payment by the number of weeks in the interval. As the number of weeks since the previous payment on 30^th January was 21, the weekly payment should be revised from £57.50 to £10.95(£230/21); and the first amount should be allocated to the week beginning, not 26^th June, but 19^th June (the first day of the benefit week in which the payment was transmitted to the mother). There is no indication in the submission whether this revised allocation was thought to be more or less beneficial to the claimant.

The grounds of appeal, and the written submission in support, appear to have been drafted by someone who knew his way round the regulations, and had thought carefully about the case. As I understand it, from Miss Lieven’s responses to our questions (though this was not clear from her skeleton), the Department’s case today remains substantially as there presented. Unfortunately, those important documents seem thereafter to have dropped out of sight. They were not mentioned in terms by either Commissioner who considered the matter. I do not understand why not. The notice of appeal is required to state the grounds of appeal, and that surely should be taken as setting the agenda for consideration by the Commissioners (cf in another context Miftari v Secretary of State [2005] EWCA 481). I accept that in this jurisdiction a more flexible approach may sometimes be needed particularly for unrepresented litigants.

The appeal first came before Commissioner Jacobs. He gave directions for an oral hearing, and discussed some of the issues. I do not propose to review his discussion, since it was overtaken by the later decision. I note three points. First, on the point identified by the Tribunal (whether the regulation 9 attribution was binding also for income benefit purposes) he gave a strong hint of his view:

“… would it not be surprising if the Secretary of State’s attribution were not binding on the Secretary of State’s decision-maker for social security purposes? What is the alternative?” (para 41)

As I understand it, the claimant does not now argue that the regulation 9 decision, assuming it was validly made, is inapplicable to income support. Secondly, the Commissioner recorded his understanding that there was “no factual dispute”, and that it was not therefore necessary to direct a rehearing (para 30). Thirdly, he seems to have accepted that to treat the payments as capital would be contrary to regulation 60B, but he did not think this was the correct reading of the decision (para 37).

The oral hearing was held by Commissioner Williams at Bury County Court on 6^th December 2004. The Department was represented by someone from its solicitor’s office; the claimant by her father, who is an accountant. We have no record of the proceedings, or any written note of the arguments. We do not even know whether the Department’s representative referred to its own written submission. The Commissioner’s decision was dated 16^th February 2005. He started by expressing sympathy for the Tribunal, observing that the papers presented to them were “factually deficient” (para 12), but he agreed with the Department’s representative that the Tribunal had erred by relying on the rule in Clayton’s case, and the decision must be set aside (para 15). That provided the basis for him to give his own view as to how the matter should be approached. In doing so, he made several critical references to the Department’s submission to the Tribunal, but none to its submission to the Commissioners.

He identified four questions of his own (para 16), in summary: (1) is a payment made by an absent parent who is in arrears a payment of “child support maintenance”; (2) were there such payments in this case; (3) on what date or dates were they treated as received by the mother for income support purposes; (4) what payments was the father liable to make and what payments did he in fact make in the period to 12^th August 2002? As I understand the structure of his reasoning (see particularly para 20), the first two questions were relevant to deciding whether there were in fact any relevant payments, the governing provisions being regulations 60B and 60C. The third and fourth questions, governed by regulation 60D, were relevant to deciding on their attribution to particular weeks.

He answered the first two questions in the negative, on the basis of his reading of regulations 60B and 60C. Those answers are the subject of the first and second grounds of appeal to this court.

It was in the course of the Commissioner’s discussion of the third question that, for the first time, he appeared to question whether the regulation 9 power had been properly exercised at all. The context of this part of the decision is important. The reference to regulation 9 comes at the end of a long passage under the heading “When were the payments made?” The relevance of this appears from the Commissioner’s reference to what he refers to as “the two rules” in 60D: 60D(1) (a) and (b). Under those rules, as he rightly said, the timing question would have depended on when the June payment was “due to be paid”.

That, however, is not the criterion under 60D(2), on which the Department was relying in its grounds of appeal. That depends simply on when the payment is “transmitted by the Secretary of State”. Unfortunately, the Commissioner seems to have overlooked that provision. It does not even appear in the version of the regulations which he appended to his decision. (Footnote: ² ) It seems to me therefore that the whole of the following discussion, including his comments on regulation 9, may have been based on a false premise.

To decide when the payment was “due to be paid” he found it necessary to consider the various regulations under the Child Support Act 1991, governing the nature and timing of payments by an absent father of child maintenance (the Child Support (Collection and Enforcement) Regulations 1992, regs 2-5), and also regulation 9 of the Arrears Regulations. On the latter, he commented on the CSA letter of 15^th May 2003, relied on in the Department’s Submission to the Tribunal:

“That submission is ambiguous on the issue of who decided that the payments were to be treated as regular payments rather than arrears. While the power is that of the Secretary of State, I cannot see the basis for the power under regulation 9 to be exercised by a decision maker in an income support office. And as “regular maintenance” is not a term of either child support law or income support law, it is not clear that the CSA had made that determination either. I do not see where in the submission made to the tribunal the Secretary of State deals properly with the issues raised by regulation 9 of the Arrears Regulations or those of the Collection and Enforcement Regulations. And until it is established when the payments were ‘due’ for child support purposes, regulation 60D of the Income Support (General) Regulations 1987 cannot be applied.” (para 39)

Finally, in a passage headed “Application to this case”, he addressed the calculations which formed the basis of the original decision. He observed that there could be no basis for the amount of £57.50, adopted in the original decision, because it exceeded the father’s then current weekly liability which he calculated as £51.42. He made no reference to the revised figure of £10.95 adopted in the Department’s submission to the Commissioners.

He considered that, on his view of the relevant provisions, the material provided to the Tribunal was inadequate to arrive at a conclusion, in particular because it was not possible to establish when the payment was “due”. The purpose of the remission, as he made clear in the last paragraph of the decision, was to fill this perceived gap. The Tribunal required -

“…clear evidence from the Secretary of State about how, if at all, the various child support powers of the Secretary of State have been exercised with regard to (the father’s) payment liability and payments as at the date of the original decision… - and in particular when, as a matter of law, payments made by the (father) were ‘due’.” (para 42, emphasis added)

As I have said, the latter point would be relevant if 60D(1)(a) or (b) were determinative, but not under 60D(2).

Permission to appeal was refused by the Commissioner, on the grounds in effect that he had not made an appealable decision on any issue, but merely remitted the matter to find the necessary facts. Permission was granted by Waller LJ. The grounds of appeal have been outlined by May LJ in summary that the Commissioner erred in his application of (i) regulation 60B (ii) regulation 60C (iii) regulation 9. No separate point has been taken on the apparent oversight under 60D. Mr Kolinsky (instructed by the solicitor to the Child Poverty Act Group) says that (i) and (ii) are academic, and (iii) cannot be decided until the facts have been found. This position surprised me, since I would have expected the CPAG to be as keen to have these issues sorted out as the Department.

I am not convinced that (i) is academic in the ordinary sense. 60B was the Department’s answer to the Tribunal’s finding that the payment was “capital”, and was at the heart of its grounds of appeal to the Commissioner. In my view, the Commissioner was almost certainly wrong on this issue, for the reasons advanced by Miss Lieven. However we have not had full argument, and it may be safer not to reach a final view.

I would not in any event wish to express a concluded view on 60C, without hearing fuller argument, and so long as it remains uncertain whether there is any issue of substance between the parties. I can understand the theoretical basis of the Department’s revised methodology, based on 60C(4). I find the rationale less clear. I do not at present understand the policy reason for basing the calculation of future allocations on the haphazard intervals between lump-sum payments in the past. However, if the claimant is content with the revised approach (as compared to that adopted in 2002), and if other claimants are likely to be in a similar position, there may be no issue requiring resolution by the Commissioner.

As to regulation 9, which is relevant to the arrears issue, both parties before us accepted the decision of the Commissioner that the matter should be remitted to the Tribunal to determine further facts. It was not at all clear to me what further facts they expected to emerge. The factual issues raised by the Commissioner’s decision related to decisions made by the Department in 2002. Even if they are thought relevant, any evidence about them will have to be found in the Department’s own records. I find it difficult to imagine that there is anything new to be learnt, after four years. If there is, I cannot understand why it has not been discovered and disclosed in the period since the Commissioner’s decision. In any event, if either side wanted to rely on new facts, the time to raise that issue was at the time directions stage before Commissioner Jacobs. It is regrettable that more has not been done by the lawyers on both sides to sort out any remaining factual issues, so as to enable this court finally to resolve the matter.

As it is, I accept that we cannot now decide the matter finally. However, it may help if I indicate my present thinking. I cannot at present see any persuasive answer to the Department’s case as it has been since the beginning. It seems to be common ground that regulation 9 gave the Secretary of State power to attribute payments to arrears if he thought fit; but, on the only evidence before us, he did not do so. We have been shown no legal reason why that decision should not be effective for income support as well as child support maintenance, nor any evidence that it was not validly made. In the absence of such evidence, the presumption must be that it was valid (see e.g. Standard Commercial Property Ltd v Glasgow City Council [2006] UKHL 50 para [74], per Lord Brown).

Against this background I do not accept that the right course is to remit to the Tribunal, or that we are bound by the parties’ agreement that this part of the Commissioner’s order should stand. The Tribunal is likely to find its intended role very unclear. The case needs sorting out, if at all, at Commissioner level. That is best done, in my view, by remitting it to the Chief Social Security Commissioner, or his nominee. (It would be helpful if the resources of the CPAG could extend to providing assistance for that purpose, as they have done in this court.) He should be able, with the co-operation of the parties, and in the light of our judgments, to identify the outstanding issues of fact or law (if any), and give directions to resolve them as simply and speedily as possible. In my view, in the highly unusual circumstances of this case, our powers under CPR 52.10 are wide enough to enable us to do that, even if we have not felt able to reach a definitive view on any of the points raised by the grounds of appeal. In this respect, I agree with May LJ’s concluding remarks in paragraph 28 of his judgment.

In conclusion, I too would dismiss the appeal except to the extent indicated in my previous paragraph.