Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC CSC 2-95 (22 December 1995)

 


Decision No: CSC 2/95

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991 CHILD SUPPORT
Appeal to the Child Support Commissioner on a question of law from the decision of Belfast Child Support Appeal Tribunal dated 9 January 1995
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the parent with care, Mrs Carol A..., appeals against the decision of Belfast Child Support Appeal Tribunal allowing her appeal against the refusal of the Child Support Officer to conduct a second-tier review of the maintenance assessment dated 15 September 1994, and directing that such a review be carried out. In the record of the Tribunal's decision the following statements appeared in the section set aside for material findings of fact:-

"The original decision of 15 September 1994 is erroneous in law as

(1) The business start grant had been included in the calculations.

(2) The housing costs allowed to Mr A... were incorrect as Mr A... was not an owner/occupier and is not responsible for a mortgage."

2. Despite her success before the Appeal Tribunal, Mrs A... sought and was granted leave to appeal to the Commissioner on the following grounds:-

"The Tribunal failed to apply the correct law by

(i) allowing VAT of £1,442.00 as an expense against the AP (absent parent) when the AP was not VAT registered and had not disclosed any VAT payments in his accounts;

(ii) allowing motor expenses of £5,338.00."

I note in passing that the Appeal Tribunal did not reach a decision on either of these matters.

3. In her written observations on the appeal Mrs McCarron, the Child Support Officer now concerned with the case, by letter dated 1 May 1995, submits that the Tribunal were right in finding that the business start-up grant had been incorrectly included in the absent parent's net income and that accordingly the decision to allow the appeal and remit the case to the Department was correct. She maintains however that the Tribunal's finding in relation to the absent parent's housing costs was incorrect and that such costs were properly allowable. Mrs McCarron makes no comment upon the grounds relied upon by Mrs A...; which is perhaps not surprising in view of the fact that, as already noted, the Appeal Tribunal did not make any decision concerning either of them. Although she disagrees with the Tribunal's conclusion in relation to the absent parent's housing costs, Mrs McCarron submits that they were only required to decide whether or not there were grounds to review the original decision under Article 20(6) of the Child Support (Northern Ireland) Order 1991. Having correctly decided that there were grounds for review and having failed to give any directions other than that a review was to be carried out, Mrs McCarron suggests that in conducting such review the Child Support Officer would be required to look afresh at all the issues and would not be bound by any findings of fact made by the Tribunal or by the reasons for their decision. In conclusion, she submits that the Tribunal's error in relation to the absent parent's housing costs had no bearing upon the outcome of the case and that their decision should stand or simply be replaced by another to the same effect.
4. The absent parent's observations on the appeal are set out in his letter of 5 April 1995. He accepts, as indeed he had acknowledged at the Tribunal hearing, that he is not registered for VAT; but he maintains that he is entitled to the motoring expenses claimed. Again, I would point out that the Tribunal did not purport to make any decision on either of these two matters, and I cannot see how, at this stage, any dispute concerning them could be regarded as a valid ground of appeal. The absent parent further submits that the Tribunal erred in relation to his housing costs; but were correct in stating that payments under the Business Enterprise Initiative Scheme should not have been included in his income.
5. I held an oral hearing at which Mrs A..., who was present, was represented by Mrs McP... of Counsel. The Child Support Officer in attendance was Mrs McCarron. The absent parent had indicated in advance that he did not intend to be present or represented.
6. Mrs McP... was fully prepared to discuss the issues concerning the absent parent's business grant and housing costs; but I first raised the question of the stage at which any decision on these or other issues could or should be challenged. Mrs McCarron's view was that, because the Appeal Tribunal had merely directed the carrying out of the review which had originally been denied to Mrs A..., the proper time to appeal against any feature of the maintenance assessment was after that review had been carried out. Although the legislation was not altogether clear on the point, she was of the opinion that, when an appeal is allowed and a case is subsequently dealt with by a Child Support Officer under Article 22(3) of the Order, the action then taken by the Child Support Officer should be regarded either as a review under Article 20, if as in the present case no such review had previously been conducted, or as an extension of any previous Article 20 review. This would enable any person dissatisfied with the decision to appeal directly to an Appeal Tribunal without first having to trigger the right of appeal by applying yet again for an Article 20 review. I can see the force of this argument, certainly in so far as it applies to cases like the present one, where the appeal is against a refusal to conduct an Article 20 review, and I accept that there is no good reason why, in any circumstances, the procedures should be further complicated by requiring an intending appellant to trigger the right of appeal by applying for such a review. It does seem to me, however, that the entire appeal procedure is unnecessarily complicated and is potentially the source of repeated hearings. As I see it, there is in theory no reason why the same case might not pass backwards and forwards between Appeal Tribunal and Child Support Officer in a succession of appeals, as new points of difference are conjured up by the parties. In an effort to prevent that from happening, I would suggest that Appeal Tribunals should endeavour to identify and consider all potential points of dispute and record their decision in respect of each of such points in the form of a specific direction to the Child Support Officer. I appreciate that Tribunals will not always have sufficient information to enable them to decide all issues at a single hearing and that a choice may have to be made between an adjournment and leaving some issues unresolved; but they should do their best to cover as much ground as possible, make their decisions clear, and record them in the form of specific directions.
7. So far as the present case is concerned I agree that, because the Tribunal's decision was confined to the allowing of the appeal and a direction that a review was to be conducted, it was not erroneous in point of law. I do not consider that the Tribunal's statement concerning the inclusion of the absent parent's business grant and the disallowance of his housing costs were in reality "findings of fact". However, as they were included in the record of the Tribunal's decision I think it right that I should indicate that, without having heard detailed argument on either point, I am inclined to the view that the Tribunal were right on the question of the business grant and wrong on housing costs.
8. For the reasons given I dismiss this appeal. It will now be for the parties, and in particular the parent with care, to decide whether the decision on review directed by the Appeal Tribunal is acceptable or should be the subject of a further appeal. As I indicated at the hearing, if it proves necessary to do so I will give favourable consideration to the acceptance of a late application for leave to appeal.

Signed): R R Chambers

CHIEF COMMISSIONER

22 December 1995