Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
Brian Dimon Peter Howes
|- and -
|Child Support Commissioners
|- and -
|Secretary of State for Work and Pensions
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Mr Clive Sheldon (instructed by the Secretary of State for Work and Pensions) for the Interested Party
Hearing date: 20 February 2007
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Mrs Justice Black :
" Subject to paragraphs (5) and (7), an application to a chairman for leave to appeal to a Commissioner from a decision of an appeal tribunal shall be made within one month of the date the written statement of the reasons for the decision was sent to the applicant."
" (1) An application to a chairman or a Commissioner for leave to appeal shall be made by notice in writing, and shall contain–
(a) the name and address of the applicant;
(b) the grounds on which the applicant intends to rely;
(c) if the application is made late, the grounds for seeking late acceptance; and
(d) an address for sending notices and other documents to the applicant.
(2) The notice in paragraph (1) shall have with it copies of–
(a) the decision against which leave to appeal is sought;
(b) if separate, the written statement of the appeal tribunal's reasons for it; and
(c) if it is an application to a Commissioner, the notice of refusal or rejection sent to the applicant by the appeal tribunal."
"1. I disagree with the calculation of my maintenance assessment. The sale of my own home should not be taken as trading profit.
2. By the findings of the tribunal my net income figure changed as of 31-08-02. Therefore arrears of £20,053.44 should be re-calculated."
He indicates that more information is to follow.
"Assuming the appeal must go ahead we understand that Mr Howes so far has done an extremely brief notice. He believes it was in time. Perhaps you could confirm whether or not that is the case."
It goes on to list a number of points of law "mostly in connection with the Tribunal's treatment of self-employed income and "development profits"" which would be raised by way of appeal. It requests that if the chairman were to decide not to set aside the original decision, three more weeks from then should be allowed "to enable properly formulated grounds of appeal" to be provided.
"….Mr Howes's 'brief notice' was received late by the CSA and The Appeals Service, notwithstanding this, as late applications may be considered, Mr Howes was invited to explain what application he sought and to provide as he stated 'more information to follow'; however he made no further contact.
Mr Howes was also informed that his representative at that time, [sic] had already notified The Appeal Service that they intended to lodge an application for leave to appeal, despite having written to them, no documents forming such an application has [sic] been forthcoming…."
It concludes that the case file had been sent to the Chairman to consider the request that she set aside her decision.
"On 9 May the Clerk replied saying that the file had been sent to the Chairman to consider the set aside request. It was further made clear that no documents constituting an application for leave to appeal had been received from Mr H's previous representative."
"(5) Where an applicant has not applied for leave to appeal within one month in accordance with paragraph (1), but makes an application within one year beginning on the day the one month ends, the chairman may for special reasons accept the late application."
"(1) An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.
(2) Subject to paragraph (3) an application to a Commissioner shall be made within one month of the date that notice of the refusal or rejection was sent to the applicant by the appeal tribunal.
(3) A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.
(4) In paragraph (3) the final date means the end of a period of 13 months from the date on which the decision of the appeal tribunal or, if later, any separate statement of the reasons for it, was sent to the applicant by the appeal tribunal."
"The applications to the chairman were made late and not accepted. I also do not accept the applications as I consider that there are no special reasons for doing so."
"B. I consider that there are no special reasons for exercising the power in reg. 9(3) of the Social Security Commissioners (Procedure) Regulations 1999 to accept either of the applications for leave to appeal notwithstanding that leave from the chairman was not sought within the required time.
As regards the application in respect of the Tribunal's decision directing that the child support maintenance be recalculated, in my judgment there was no application to the chairman for leave to appeal in a form which could have been put before the chairman for decision until receipt by the Appeals Service of the letter of 13 July 2005. That was nearly 4½ months after the Statement of Reasons had been issued – i.e. nearly 3½ months late. Even taking into account the change of representatives, the application to set aside, and the fact that the case was of some complexity, I do not think that delay of anything like that length of time was justified. It is plainly of particular importance in child support cases (where, unlike the position in social security appeals, persons other than the proposed appellant and the Secretary of State are affected) that time limits be adhered to. I do not overlook that substantially increased amounts of child support maintenance are payable in consequence of the Tribunal's decision, or that an appeal might have had some merit: I have some doubts whether the Tribunal correctly applied the provisions of paras. 2A to 5A of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992."
- The change of representatives
- The application to set aside
- The fact the case was one of some complexity
- The impact of a child support appeal to persons other than the proposed appellant and the Secretary of State (here, of course, M's mother and M) which meant that adherence to time limits was of particular importance
- The increase in the amount of child support resulting from the decision in question
- The fact that in his view the appeal might have some merit because he had doubts whether the Tribunal correctly applied the provisions of paragraphs 2A to 5A of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence