England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Thursday, 18th April 2002

1. LORDJUSTICE LONGMORE: This is an application for permission to appeal which has been adjourned by a single Lord Justice for oral hearing because he thought an oral hearing should take place before a decision is made.
2. I have had the advantage of the attendance of Miss Rebecca Wood on the application. Miss Wood has also submitted a most helpful supplementary skeleton argument to which are attached the relevant statutory provisions and regulations.
3. I am satisfied that there is no real prospect of success in this case. I will shortly set out the history of the matter and say why I have come to that conclusion. The case concerns an application made against an absent father by a mother with care for a departure direction from the formula assessment for child support maintenance. That application was successful in front of thetribunal which made its decision in the absence of the parent. The application for a departure direction was on the grounds that the absent parent was diverting his income; alternatively that his lifestyle was inconsistent with his declared income. Before the tribunal decision, a legally qualified panel member on 21st December 1999 directed the absent parent to produce specified documents within 21 days. The absent parent failed to comply with that direction. He was given notice of the date of the tribunal hearing. He did not attend and did not contact the tribunal in advance to explain his absence. The tribunal gave a departure direction on the basis that the absent parent was diverting his income. On the following day the absent parent contacted the tribunal to say that he had been unable to attend because his new girlfriend's father was dying, and that he had noted the wrong date for the hearing. The tribunal decision was given on 24th May. That contact was on 25th May. On 5th June he produced further evidence in the form of three P60s for three years of employment and a letter from the accountants for the family company for which, together with his parents, he was working. He applied for the decision to be set aside. That application was refused on 27th June.
4. The absent parent then applied for leave to appeal to the commissioner. Leave was granted to appeal on 23rd January 2001. On 3rd August 2001 the commissioner, Mr Edward Jacobs, concluded that there was no error of law on the part of the tribunal and the appeal should therefore be dismissed.
5. The statutory provision is in Section 24 (1) of the Child Support Act 1991 and provides:

"Any person who is aggrieved by a decision of [an appeal tribunal ..... ], may appeal to a Child Support Commissioner on a question of law.

(2) Where, on an appeal under this section, a Child Support Commissioner holds the decision appealed against was wrong in law he shall set it aside."

6. In essence, the commissioner decided that the tribunal had made no error of law on the information before them and that there was no right of appeal (even on a question of law) arising from the decision not to set aside the tribunal's decision because that decision was given by a legally qualified panel member, not by a tribunal, and therefore fell outside the scope of Section 24.
7. Miss Wood submits that is unfair to the applicant because there ought be - and therefore is - a power on the part of the commissioner to set aside a decision of a tribunal if there is new information which has come to light. She accepts at once that that would be a generous interpretation of the statutory provisions and, for my part, I consider that it is an impossible interpretation of the statutory provisions since there is just no scope for that to be done. There is therefore no real prospect of success in this appeal which would amount to an attempt to allow a question of fact to be the basis of an appeal. That may seem to be unjust. But Miss Wood has informed me that there are various ways in which a question of fact can be revisited by the Secretary of State in as much as an application for revision of the original decision can be made and, if that were to be accepted, that could be retrospective. Alternatively, an application can be made to the Secretary of State on the basis of new circumstances. I say nothing about the possibility of any such application being successful, but the fact those avenues are open helps to persuade me that any prospect of success, if permission to appeal were granted, would be non-existent.
8. Therefore I have to refuse permission to appeal.
Order: Application refused