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[2003] NISSCSC CSC7/03-04(T) (25 March 2004)

Decision No: CSC7/03-04(T)

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Application for leave to appeal and appeal

to a Child Support Commissioner

on a question of law from a Tribunal's decision

dated 29 March 2002

DECISION OF A TRIBUNAL OF CHILD SUPPORT COMMISSIONERS

This is an application by the father and non-resident parent (who we shall hereafter refer to as "the father") of the relevant children for leave to appeal against a decision dated 29 March 2002 of an Appeal Tribunal sitting at Belfast. That Tribunal had disallowed the father's appeal relating to a departure application in connection with a child support maintenance assessment in relation to the relevant children.

The Chief Commissioner directed, in accordance with paragraph 2(1) of Schedule 4 of the Child Support (Northern Ireland) Order 1991, that the application be dealt with by a Tribunal of Commissioners as it appeared to him that the application involved a question of law of special difficulty. We held two hearings at the first of which we granted leave to appeal. In accordance with the provisions of regulation 13(1) of the Child Support Commissioners (Procedure) Regulations (Northern Ireland) 1999, we treat the application for leave as if it were an appeal, with the consent of the father and the Department given at hearing and of the mother (and parent with care) given in writing on 4 April 2003. Applying those portions of regulation 18 of the Child Support Commissioners (Procedure) Regulations (Northern Ireland) 1999 that are relevant, the father is now specified as the appellant, the Department as the first respondent and the mother (and parent with care) as the second respondent. The mother, other than furnishing the above consent, has taken no part in these proceedings. The Department was represented at the hearings by Mr McNamara of the Decision Making and Appeals Unit while the father appeared on his own behalf.

The issue before the Tribunal and before us can be stated relatively simply but it is a difficult one to resolve. The father applied for departure directions in respect of six matters in relation to his child support assessment. He was successful in respect of two of them and it is not necessary for us to mention those matters further. All further references to departure directions are to the remaining four matters. His application was unsuccessful in relation to those remaining four matters and his appeal to the Appeal Tribunal was also dismissed. The substantive merits of his application for departure directions in relation to the four outstanding matters were not investigated by the Appeal Tribunal. This was because the Tribunal decided that it was faced with a legal bar which prevented it making the directions which the father sought and that consequently any investigation into the merits was a waste of time.

The four grounds on which departure directions were sought were: -

(1) that the mother had assets capable of producing higher income;

(2) that the mother's lifestyle was inconsistent with the declared income;

(3) that the mother had unreasonably high housing costs;

(4) that the mother's housing costs could be paid by her present partner.

Had it not been for the legal bar, each of the above were cases which, if proven correct, could have formed the basis of departure directions.

The Tribunal, however, applied (as had the Departmental decision maker) the said legal bar. This was because all the departure directions which the father sought fell within regulations 23 to 29 of the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996. Regulation 9(3)(b) of those Regulations provides: -

"(3) A case shall not constitute a case under regulations 23 to 29 where the application is made –

(a) …

(b) by an absent parent where, at the date on which any departure direction given in response to that application would take effect, income support, income-based jobseekers allowance, working families' tax credit or disabled persons tax credit is or was in payment to or in respect of the person with care of the child or children in relation to whom the maintenance assessment in question is made;".

The mother is or was at the relevant time in receipt of working families tax credit (WFTC). Accordingly the Tribunal concluded that the effect of regulation 9(3)(b) was that the applications for the departure directions had to be dismissed because they fell within regulations 23 to 29. The reasoning behind this was that the phrase "in payment" in regulation 9(3)(b) had to be read as "actually in payment" so that the mere fact of payment of WFTC to the mother brought that provision into play. The Tribunal refused to take on board questions as to the correctness of the award of WFTC to the mother.

This refusal forms the basis of the father's appeal to us. He asserts that the Tribunal should not have reached its decision but should have adjourned to await the outcome of an investigation which was going on into the mother's total income. That some investigation was going on seems likely from the letter (undated) from the Child Support Agency (CSA) to the father which accompanied the OSSC1 form on which the father appealed to us. It is not altogether clear who is carrying out the investigation. The CSA states that the file was passed to an "external agency" for investigation. It is certainly not clear what stage the investigation has reached.

The father also made certain complaints that the chairman, at the hearing, had made certain written notes about the "ongoing fraud investigation" but that these notes were not included in the Tribunal's decision or the full statement of reasons. He submits therefore that the Tribunal failed to take into account all the evidence. He also submits that the Tribunal's "failure to disclose" these notes might prejudice his application for leave to us.

The father submits further that the Tribunal has wrongly interpreted the legislation. He submits that the interpretation of the words "in payment" in regulation 9(3)(b) as meaning "actually in payment" rather than "properly in payment" or "lawfully in payment" is unreasonable and discriminatory and that the CSA and the Appeals Service were acting on behalf of the mother and were not impartial.

The matter of the mother being informed of any investigation being carried out and any allegations of bias by the CSA or by the Appeals Service are not matters into which we can carry out an investigation. We are concerned only with whether the Tribunal erred in law. We note that there is no allegation that the Tribunal itself was biased and we can ascertain no indication than that it was other than impartial.

As regards the notes taken by the Chairman at the hearing, as such notes, by the father's own submission, were not disclosed to him, we fail to see how he can be aware of their contents. Furthermore the Chairman is not obliged to record verbatim everything which is said at a Tribunal nor is he obliged to include in the decision every note which is taken. The Chairman did record a reference to the matter being "referred to Fraud Section" We can see no merit in the ground relating to the notes.

The Department opposes the appeal. It submits, essentially, that the Tribunal's interpretation of regulation 9(3)(b) was correct in that the words "in payment" should be taken to mean "actually in payment", not "lawfully in payment". In support of this submission Mr McNamara referred to a decision of the Chief Commissioner in CSC1/01-02 and to the decision of the Court of Appeal in England in the case of Secretary of State for Social Security and another –v- Harmon and Cocks (reported in [1999] 1 WLR 163 and as an appendix to R(CS) 4/99). The decision in Harmon gave the phrase "is paid" as used in section 4 and section 6(1) of the Child Support Act 1991, the interpretation of "is actually paid" rather then "is lawfully or properly paid". The Chief Commissioner (in CSC1/01-02) followed Harmon and applied it to Schedule 1 paragraph 5(4) of the Child Support (Northern Ireland) Order 1991 and to regulation 10A(1) of the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992. Both decisions related to situations prior to the coming into force of the Human Rights Act 1998, on 2 October 2000. The Chief Commissioner did mention the risk of injustice to the absent parent in deciding, as he did, that because the parent with care was in receipt of a relevant benefit, she must, applying the above provisions, be treated as having nil income.

In the course of the two hearings which we held issues arose relating to the European Convention on Human Rights (ECHR) and to the father's rights thereunder. We were addressed on these matters orally and in written submissions. Essentially the Articles of the ECHR which, it was contended, might be involved were Article 6 (the right to a fair hearing), Article 1 of the First Protocol (the right to peaceful enjoyment of possessions) and Article 14 (prohibition of discrimination).

As regards Article 6 we do not consider that there has been any violation of the right to a fair hearing in the constitution of or procedure adopted by the Tribunal. Similarly we do not consider that giving the interpretation of "actually in payment" rather than "lawfully or properly in payment" in any way prejudiced the father's right to a fair trial in the determination of his civil rights. The father does not have a direct interest in whether or not the state pays WFTC to the mother. His interest is in the effect of the payment of that benefit to the mother on his rights to seek a departure direction lowering his child support maintenance liability. He considers that the interpretation of "in payment" to mean "actually in payment" is unjust in that his liability for child support maintenance is affected by a decision (that of the Department to award WFTC to the mother) into which he had no input. We deal with the merits of that contention later

In our view, however, that contention is founded on Article 1 of the First Protocol of the ECHR rather than Article 6. The mere giving of that particular interpretation does not violate Article 6. The claimant has had a fair and public hearing by an independent and impartial Tribunal within a reasonable time. There has not, in our view, been any violation of Article 6.

As regards Article 14 an allegation that the legislation was discriminatory was made. However this has not been substantiated. Article 14 is as follows: -

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status."

The legislation in question (regulation 9(3)(b)) relates to all absent parents where the parent with care is in receipt of a relevant benefit. It is not expressly discriminatory and we have no indication that it is so in its effects. We therefore conclude that the legislation is not discriminatory. In any event Article 14 applies only to the rights and freedoms set forth in the Convention. In general terms it contains no free standing prohibition of discrimination but merely requires access to other Convention rights to be equal. As regards access to other Convention rights, not all forms of differentiation will amount to discrimination in Article 14 terms. To amount to such discrimination there must be different treatment of those "placed in analogous situations"(Lithgow –v- United Kingdom (1986) 8 EHRR 329). In this case we can see no discriminatory treatment between those placed in analogous situations. All absent parents where the caring parent is in receipt of a qualifying benefit (the analogous situation) are treated in the same way by the legislation.

We come now to the consideration of Article 1 of the First Protocol and do so in combination with a consideration of our duty under section 3 of the Human Rights Act 1998. This section was in force at the time of the decision under appeal to the Tribunal. We therefore are bound to obey it. Section 3(1) states: -

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

Is there any possible incompatibility with Convention Rights in giving the interpretation of actually in payment? As mentioned earlier the relevant right is Article 1 of the First Protocol to the ECHR which states: -

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

It seems somewhat strange to talk of someone being deprived of possessions where these are going to meet the cost of maintaining that person's children. The parental duty to maintain children is outlined in United Kingdom law and is perceived by most civilised societies as fundamental. However that duty is imposed by the Child Support (Northern Ireland) Order 1991 on both parents. What the father here is saying is that he is being charged with a disproportionately high share of the child support maintenance and cannot challenge same on the basis of the mother's income because she has an award of WFTC into which he has no right of input. The father's income and capital are his possessions. He is to be deprived of same only if it is in the public interest and subject to conditions provided by law. The father has no objection to paying child support maintenance as such nor did he contend that the child support scheme was not in the public interest. His view is that the particular provision in regulation 9(3)(b) leads to his paying a disproportionately high amount.

The Department argues that if the phrase "in payment" is interpreted to mean "lawfully in payment" rather than "actually in payment", there could be delays in the payment of benefit. In addition non-resident parents could be encouraged to interfere in the financial affairs of the parents with care in an unwarranted way with the added result of prolonging parental disputes.

It submits further that there are instances where a parent with care is afraid of the non-resident parent whose involvement in the financial affairs of the parent with care could breach the rights of the parent with care. No allegation was made that that was the case in the present appeal, merely that the possibility of such disputes supported the Department's contention that regulation 9(3)(b) was in the public interest.

In support of the Department's submission on the public interest points, Mr McNamara referred to the case of James and others –v- United Kingdom ECHR Case No 3/1984/75/119 as authority for the proposition that there is a wide margin of appreciation accorded to contracting states in determining what is in the public interest and that the legislature's judgment of what was in the public interest had to be respected unless it was manifestly without reasonable foundation (paragraph 46). In his submission the public interest was the welfare of the children.

Mr McNamara submitted further, relying on the case of R –v- Director of Public Prosecutions and others [1999] 4 All ER 801, that there were circumstances where it was appropriate for the courts to recognise that there was an area of judgment within which the judiciary would defer on democratic grounds to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention … "the discretionary area of judgment". See the speech of Lord Hope under the heading "The discretionary area of judgment" which begins at page 843.

We of course agree that there is a wide margin of appreciation accorded to the legislature and that there are circumstances where the judiciary must defer to the considered opinion of the legislature. However, both authorities relied upon by Mr McNamara were decided before section 3 of the Human Rights Act came into force. What we have to decide is what interpretation should and can be given to the phrase "in payment" to give effect to it in a way which is compatible with the Convention rights.

The matters put forward by the Department are valid considerations which contribute to a decision as to whether a provision is in the public interest. There is also a public interest in ensuring that benefit is not awarded where there is no entitlement to same. There is, in our view, a danger that the Department's reading of the provision (which forms part of a scheme which deprives the father of property) could lead to an interference with the father's property rights which does not achieve a fair balance between the demands of the public interest and the protection of the father's fundamental rights. We do not decide, it not being necessary or our function to do so, whether the legislative provision in question is in the public interest. Nor do we decide whether a fair balance has been struck. We must consider simply whether giving the phrase the interpretation of "actually in payment" does of necessity give an interpretation which is compatible with Convention rights. There is, in our view, a real danger that it is not in the public interest. If that interpretation is given, as Mr McNamara has acknowledged, the non-resident parent has no means of having any investigation done into the merits of the payment of the relevant benefit. Yet such payment can have very considerable financial consequences for that parent. The reading of "actually in payment" does not, in our view, give an interpretation and effect to regulation 9(3)(b) which is of necessity compatible with Convention rights.

To comply with section 3(1) of the Human Rights Act we must therefore ask ourselves whether another interpretation is possible which is compatible with those rights.

We do not consider that the decision of the Court of Appeal in England in Secretary of State for Social Security and another –v- Harmon and Cocks prevents us interpreting regulation 9(3)(b) in such a way as to be ECHR compatible. The very valid considerations which led the court to consider that "is paid" meant "is actually paid" were relevant to the provisions (sections 4, 6(1) and paragraph 5(4) to the first Schedule to the Child Support Act 1991) and to the fundamental ability of the Department to make an assessment of child support maintenance. They are not of the same relevance where, as here, an assessment has already been made. Millett LJ (as he then was) giving what was in effect the judgment of the Court of Appeal, gave four numbered reasons for holding that in section 6(1) and paragraph 5(4) "paid" meant "actually paid": -

"1. It is clear that so far as payment is concerned the same test is adopted in section 6(1) and 4(1)(b). Where benefit is claimed or paid, whatever this may mean, then (i) the parent with care may not make her own application but (ii) the Secretary of State may require her to authorise him to do so. The two procedures are obviously both mutually exclusive and exhaustive. Every case must fall into one or the other. Either benefit is claimed or paid or it is not. Accordingly if "paid" means "lawfully paid" in section 6, it must do so in section 4(10)(b). But this, in my view, produces a nonsensical result. The parent with care cannot claim or be paid income support on the basis that she is entitled to it, and at the same time decline to authorise the Secretary of State to recover child support maintenance support under section 6 on the basis that she is not. By making a claim to benefit and a fortiori by receiving it, she automatically takes herself out of section 4 and into section 6. It is in my view not insignificant that in section 6 the relevant condition precedent is not attached to the power of the Secretary of State to require the parent with care to confer the necessary authority upon him, it is a condition precedent to the power of the parent with care to authorise the Secretary of State to act. She is the person who must consider whether to apply under section 4 or ask the Secretary of State to apply under section 6. She knows whether she has made a claim or is in receipt of benefit. But (unless she has made a fraudulent claim) she cannot know whether she is entitled to benefit, though if she has acted honestly she will consider that she is.

Section 6(1) refers to benefit being claimed by or in respect of the parent of a qualifying child as well as benefit being paid to or in respect of her. This shows that Parliament intended the section 6 procedure to be set in motion before the claimant's entitlement to benefit has been determined. This, to my mind, demonstrates conclusively that the invocation of the section 6 procedure cannot depend upon the validity of the claim. It is true that, as Mr Mostyn pointed out, where the child support officer is required to make the assessment before the claim to benefit has been determined, he cannot rely upon paragraph 5(4) of the first schedule, to disregard the claimant's income, for paragraph 5(4) refers to payment and not to claims. But that to my mind takes the matter no further. The position before the child support officer is no different from that which would obtain if the parent with care had not claimed benefit and was proceeding under section 4.

If the respondents' argument is correct, then every step taken under section 6(1) falls if the parent with care is not entitled to the benefit which she has claimed or is being paid. It is not, as the commissioners seem to have thought, merely a case of incorrect assessment having been made under paragraph 5(4). The Secretary of State's authority to take action to recover child support maintenance, which is derived from the parent with care, together with the service of the maintenance inquiry form and his reference to the child support officer, must all be set aside since they are all ultimately subject to the same condition precedent. The result is, if the respondents' argument is correct, that there is no effective date and no liability on the part of the absent parent to pay child support maintenance at all. The parent with care on the other hand will be entitled to make her own application under section 4 and will always have been entitled to do so, but there is no means (at this stage) by which the parent with care can have the section 6 application treated as if it had been made by her under section 4. There is machinery for doing this at a much earlier stage, but that will have been long since past. Accordingly, if the respondents' arguments are correct and on the adjourned hearing the tribunal discovers that payment of income support has been cancelled, then there is no means by which the absent parent can be required to pay child support maintenance until the parent with care makes her own application under section 4 and a new effective date is obtained. Thus the consequence of holding the section 6 application to be invalid is to deprive the qualifying children of maintenance by the absent parent, and to confer upon him an unjustified relief from all liability, which is a result which Parliament cannot to my mind conceivably have intended.

Whether the benefit is paid within the meaning of section 6(1) and paragraph 5(4) to the parent with care, is relevant to the amount of maintenance payable by the absent parent, but it is mainly relevant to the question whether the maintenance is to be collected by the Secretary of State in order to recoup the cost of paying benefit to the parent with care. The cost to public funds and the corresponding need for recoupment by the Secretary of State on behalf of the taxpayer is the same whether or not the parent with care is entitled to the benefit which is being paid to her. Thus the statutory purpose behind section 6(1), far from requiring the word "paid" to be construed as being "lawfully or properly paid", in my judgment requires it to be construed as meaning "actually paid"."

It is in our view obvious that in a departure case the same considerations do not apply. Firstly, the Department has been authorised by the parent with care to recover child support maintenance. Secondly, there has been and remains a liability on the absent parent to pay child support maintenance. It is true that the amount which the Department can recoup from the absent parent to defray the cost to public funds of paying benefit to the parent with care could be affected and would be affected if the departure application was granted.

Does this last matter mean that we must give the phrase "in payment" in regulation 9(3)(b) the meaning of "actually in payment". It does not appear to us that it does. The departure direction would only be granted if one of the cases for it was established and only on that basis. In those circumstances the government body (whether the Revenue or the Department) could reasonably be expected to investigate the WFTC payment or other relevant award and, if an overpayment had been made due to some fault on the part of the parent with care, to recoup the overpayment. If, as Mr McNamara indicates might be the case, the authorities dealing with WFTC decline to investigate the award of WFTC that is not a justification for saddling the absent parent with the consequences.

As regards decision CSC1/01-02, that decision dealt with different provisions and with the income of the parent with care (nil) to be used in making the basic assessment of child support maintenance. The Chief Commissioner also, however, at paragraph 31 referred to the fact that the non-resident parent in that case had sought a departure direction to enable the lifestyle of the parent with care to be investigated but had been unsuccessful "as there can be no departure if on the date from which any Departure Direction would have effect" the parent with care was being paid a relevant benefit. This matter was not central to his decision but the Chief Commissioner did indicate that regulation 9(3)(b) should be read as meaning "actually in payment" rather than "correctly in payment". His decision was, however, given before the coming into force of section 3 of the Human Rights Act 1998 and the new rule of statutory interpretation contained in that section was not therefore considered. That Act must now be applied. For that reason we do not consider that the said decision requires us to give the same interpretation as the Chief Commissioner indicated to the phrase "in payment" in regulation 9(3)(b).

To give an interpretation of "in payment" to mean "not unlawfully in payment" would not interfere with the actual WFTC award. It would give the absent parent the opportunity to challenge the correctness of the award but only in a child support departure context. It would not, in our view, require the Department in every case to prove the lawfulness of the WFTC award. A presumption exists in United Kingdom law that acts of a public nature are correctly performed unless the contrary is proved. It would therefore be presumed that the award was correct unless the contrary was shown. In addition many cases will fall at an early stage for lack of reliable evidence. In short the administrative difficulties alluded to by Mr McNamara do not strike us as so insuperable as to make the scheme unworkable or as likely to create such problems that they render impossible any other interpretation than that of "actually in payment". It should be noted that even if the hurdle of showing that WFTC should not have been paid is overcome, that is only a starting point. A case for a departure direction has still to be made out. The initial hurdle is substantial. So is the burden of proving a case for a departure direction.

The possibility of disputes and interference in the affairs of the parent with care has been mentioned by Mr McNamara. This departure application is not a dispute which affects the award and payment of the relevant benefit to the parent with care. That is between that parent and the Department and is not the concern of the non-resident parent. As regards parent and parent disputes, one already exists in that the parent with care has sought a departure direction on a case or cases directly related to the lifestyle or finances of the parent with care. It does not seem to us that the possibility or duration of disputes or of interference would be greatly increased by the absent parent being able to produce evidence that the award of the relevant benefit was unjustified. Such evidence is likely to overlap that which has brought about the departure application. The lack of expertise of the child support adjudicating authorities in the conditions of entitlement to the relevant benefits may create some difficulties. However, these can be overcome with training and consultation with other branches by child support authorities. In any event the evidential burden indicated above is likely to mean that many cases will not require detailed consideration of the conditions of entitlement to the various benefits. In addition we can see no reason why, if the public interest is the avoidance of disputes, departure applications are permitted on the above grounds to non-resident parents where the parent with care is not in receipt of a qualifying benefit. We do not consider that Mr McNamara's point about interference by the non-resident parent in the affairs of the parent with care is any less valid when the parent with care is not being paid a relevant benefit. Nevertheless, in those circumstances departure applications are permitted.

In summary: -

(1) We have considered giving the words "in payment" in regulation 9(3)(b) the reading of "actually in payment" as has been done with those or similar words in other legislation. To comply with section 3(1) of the Human Rights Act we must read and give effect to regulation 9(3)(b) in a way which is compatible with the Convention rights. We consider whether the deprivation of property effected by regulation 9(3)(b) is in the public interest only for the purpose of and to the extent of enabling us to decide whether the above reading fulfils our obligation under section 3(1).

(2) We are not convinced that the public interest demands the above reading. We are of the view that if that reading is given there is a real danger that the effect of the regulation will not be compatible with the rights under Article 1 of the First Protocol to the Convention.

(3) Our obligation under section 3(1) is a positive one. As Carswell LCJ, delivering what was in effect the judgment of the Court of Appeal in Northern Ireland, stated in the case of Foyle, Carlingford and Irish Lights Commission -v- McGillion [2002] NI86: -

"It is incumbent upon us by virtue of section 3 of the Human Rights Act 1998 to read and give effect to legislation in a way that is compatible with the Convention rights."

He then proceeded to construe a legislative provision relevant to that as the directory rather than mandatory, describing the construction as: -

"contrary to the previous case-law, whose binding authority is overridden by the 1998 Act."

If it is possible for us to do so, we must read and give effect to the legislation in a way which is compatible with the Convention rights. We conclude that another reading is possible and that the words "in payment" should be read as meaning "not unlawfully in payment", thereby enabling the relevant authorities to investigate whether the conditions of entitlement to the relevant benefit are satisfied.

(4) We consider that this reading would not render the scheme unworkable, would not violate the rights of the father or the mother and would not do violence to the meaning of regulation 9(3)(b). We therefore consider that it is possible for us to give this reading, and proper in all the circumstances for us to do so, as this reading is, in our view, compatible with the Convention rights.

We come now to consider who should make the decision as to whether the relevant benefit was "not unlawfully" in payment. In our view this should be the child support adjudicating authorities.

We have stated above that the payment of WFTC to a parent with care is not affected by a non-resident parent seeking a departure direction on regulation 23 to 29 grounds. Of course information supplied in connection with an application for a departure direction may lead another branch of the Department to investigate or ask the Inland Revenue to investigate the correctness of that payment. However, what is being considered here is a child support departure application, not whether WFTC should be stopped or a recoupment sought. The departure application must be dealt with by the child support authorities. In the course of that they can decide whether the non-resident parent has shown that the payment of the relevant benefit was unlawful. Their decision on that matter will bind all parties to the child support departure application. It will not invalidate the child support assessment nor will it affect, of itself, the award of WFTC.

The Tribunal in this case did, in our view, err in interpreting regulation 9(3)(b) to mean "actually in payment" rather than "not unlawfully in payment". We set its decision aside for that reason. We do not consider that this is a case where we can give the decision which the Tribunal should have given. We remit this matter to a differently constituted tribunal for rehearing. We direct that new Tribunal to interpret "in payment" in regulation 9(3)(b) to mean "not unlawfully in payment". The burden of showing that WFTC was not lawfully in payment will fall on the father. He will also have the burden of proving a case for a departure direction. The order in which those matters are considered is for the new Tribunal in this or any similar case. It can be safely left to the discretion of the Tribunal particularly as an overlap is possible between the evidence relating to entitlement to WFTC and that relating to a case for a departure direction. The father wins his appeal.

(signed):J A H Martin QC

Chief Commissioner

(signed):M F Brown

Commissioner

(signed):J P P Powell

Deputy Commissioner

25 March 2004