The Child Support (Northern Ireland) Order 1991

[F1 Restrictions on liability in certain cases of error] N.I.

28ZC.—(1) Subject to paragraph (2), this Article applies where—

(a) the effect of the determination, whenever made, of an appeal to a Child Support Commissioner or the court ( “the relevant determination”) is that the adjudicating authority's decision out of which the appeal arose was erroneous in point of law; and

(b) after the date of the relevant determination a decision falls to be made by the Department in accordance with that determination (or would, apart from this Article, fall to be so made)—

(i) with respect to an application for a [F2 maintenance assessment] [F3 maintenance calculation] (made after the commencement date)[F4 or one treated as having been so made, or under Article 43 as to the reduction of benefit];

(ii) as to whether to revise, under Article 18, [F5 a decision (made after the commencement date) with respect to such an assessment; or][F6 any decision (made after the commencement date) referred to in Article 18(1A)]

(iii) on an application under Article 19 (made after the commencement date) for [F7 a decision with respect to such an assessment to be superseded.][F8 any decision (made after the commencement date) referred to in Article 19(1)]

(2) This Article does not apply where the decision of the Department mentioned in paragraph (1)(b)—

(a) is one which, but for Article 28ZA(2)(a), would have been made before the date of the relevant determination; or

(b) is one made in pursuance of Article 28ZB(3) or (5).

(3) In so far as the decision relates to a person's liability[F9 or the reduction of a person’s benefit] in respect of a period before the date of the relevant determination, it shall be made as if the adjudicating authority's decision had been found by the Commissioner or court not to have been erroneous in point of law.

(4) Paragraph (1)(a) shall be read as including a case where—

(a) the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and

(b) the error of law made by the adjudicating authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.

(5) It is immaterial for the purposes of paragraph (1)—

(a) where such a decision as is mentioned in sub-paragraph (b)(i) falls to be made; or

(b) where such a decision as is mentioned in sub-paragraph (b)(ii) or (iii) falls to be made on an application under Article 18 or (as the case may be) Article 19,

whether the application was made before or after the date of the relevant determination.

(6) In this Article—

• “adjudicating authority” means the Department or a child support officer[F10 or, in the case of a decision made on a referral under Article 28D(1)(b), an appeal tribunal];

• “the commencement date” means the date of the coming into operation of Article 44 of the Social Security (Northern Ireland) Order 1998;

• “the court” means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in England and Wales, the House of Lords or the Court of Justice of the European Community.

(7) The date of the relevant determination shall, in prescribed cases, be determined for the purposes of this Article in accordance with any regulations made for that purpose.

(8) Regulations made under paragraph (7) may include provision—

(a) for a determination of a higher court to be treated as if it had been made on the date of a determination of a lower court or a Child Support Commissioner; or

(b) for a determination of a lower court or a Child Support Commissioner to be treated as if it had been made on the date of a determination of a higher court.

F1 1998 NI 10

F2 Words in art. 28ZC(1)(b)(i) substituted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 1(2)(a), 68(2); S.R. 2003/53, art. 3(1), Sch.

F3 Words in art. 28ZC(1)(b)(i) substituted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 1(2)(a), 68(2); S.R. 2003/53, art. 3(1), Sch.

F4 Words in art. 28ZC(1)(b)(i) added (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(a); S.R. 2003/53, art. 3(1), Sch.

F5 Words in art. 28ZC(1)(b)(ii) substituted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(b); S.R. 2003/53, art. 3(1), Sch.

F6 Words in art. 28ZC(1)(b)(ii) substituted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(b); S.R. 2003/53, art. 3(1), Sch.

F7 Words in art. 28ZC(1)(b)(iii) substituted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(c); S.R. 2003/53, art. 3(1), Sch.

F8 Words in art. 28ZC(1)(b)(iii) substituted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(c); S.R. 2003/53, art. 3(1), Sch.

F9 Words in art. 28ZC(3) inserted (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(d); S.R. 2003/53, art. 3(1), Sch.

F10 Words in art. 28ZC(6) in definition of "adjudicating authority" added (3.3.2003 for certain purposes otherwise prosp.) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(e); S.R. 2003/53, art. 3(1), Sch.