Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No: CSC3/04-05

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995
Appeal to a Child Support Commissioner on a question of law from a Tribunal's decision dated 30 January 2004
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. This is an appeal, with a leave of a Commissioner granted on 3 November 2004, by the appellant, the non-resident parent, against the decision of the Tribunal.
2. At the hearing of the appeal before me Mrs McCormack, Solicitor, of the Law Centre (NI) represented the appellant who was present, the first respondent was represented by Mr Crilly of Decision Making Services (DMS) on behalf of the Department, while the second respondent, the parent with care, was present, although not represented.
3. On 2 June 2000 a child support decision maker, on foot of an application for child support maintenance from the second respondent, the parent with care, determined that the non-resident parent was liable to pay £44.61 per week from 25 June 1998. On 5 September 2000 an application for a departure direction was made by the parent with care on the grounds that the non-resident parent had a lifestyle inconsistent with his declared income, he had assets capable of producing income or higher income and that he was diverting income. The Department refused to give a departure direction. The parent with care appealed against this decision on 11 September 2000. The appeal tribunal decided on 28 February 2001 to give a departure direction amounting to a weekly departed liability of £79.14 from 25 June 1998. The non-resident parent's formula assessment was subsequently superseded from 20 July 2000, giving a new liability of £44.46. The current departure direction was then re-impacted (to use Mr Crilly's terminology) on this assessment which increased the departed liability to £79.14 once more from the effective date of 20 July 2000. On 3 June 2003 the non-resident parent notified the Child Support Agency that he had increased housing costs and had taken out a mortgage. As a consequence his maintenance assessment was superseded on 28 August 2003, reducing his formula liability from £44.46 to £5.50, effective from 29 May 2003. The matter was then referred to the Departures Section to consider whether or not the departure direction should be superseded. The Departure Section, considering the matter to be complex, referred it to a tribunal for determination. The Tribunal that heard the case decided that the departure direction should remain in place and, as a result, the direction was re-impacted against a maintenance assessment, increasing the total liability from £5.50 to £72.71 from 29 May 2003.
4. The non-resident parent sought leave to appeal but leave to appeal was refused by a legally qualified member on 6 July 2004. However, leave to appeal was granted by a Commissioner on 3 November 2004.
5. Mr Crilly, in written submissions, made a preliminary point in relation to jurisdiction which, if correct, must mean that any other merits in the appeal become academic. Mrs McCormack agreed that this was the correct position and, at the hearing, the second respondent, the parent with care, also fully appreciated the point that was being made and was also in agreement with the proposition being put forward by Mr Crilly.
6. Mr Crilly helpfully set out his submissions on this point in writing in a letter dated 19 October 2004 which stated, where relevant, as follows: -

"Referral

4. In this case, the decision maker in the CSA initiated a process to ascertain if a supersession of the existing departure direction was appropriate or not. I respectfully submit that, upon receipt of [the appellant's] written response, the decision maker in the CSA failed to address the issue at hand and, instead of making a decision as to whether the departure was still relevant or not, referred the matter to the Appeals Service. This referral was made under the provisions of Article 28D(1) of the 1991 Order which states:

28D-(1) Where an application for a departure direction has not failed, the Department shall –

(a) determine the application in accordance with the relevant provisions of, or made under, this Order; or

(b) defer the application to an appeal tribunal for the tribunal to determine it in accordance with those provisions.

5. Article 2(2) of the 1991 Order states that the phrase "application for a departure direction" means an application under Article 28A. Paragraph 1 of Schedule 4A to the 1991 Order defines the words "departure application" as meaning an application for a departure direction. Similarly, regulation 1(2) of the Departure Regulations holds:

"application" means, except in regulations 32A to 32G, an application for a departure direction;

6. I submit that, given the meaning attached to the word "application" in the legislation, Article 28D limits itself to applications for departure directions only under Article 28A. I further submit that, at the time of the referral, neither the parent with care nor the non-resident parent had made an application for a departure direction, or even an application for a supersession of the current departure direction. Therefore, what was referred to the tribunal was an unresolved issue which had been raised solely by the CSA. With this in mind, I respectfully submit that the CSA had no authority under the current legislative provisions to refer this matter to the Appeals Service and, consequentially, any determination made by the tribunal with regard to the existing departure is invalid as it did not have any jurisdiction to consider the issue."

7. Mrs McCormack and the parent with care agreed that Mr Crilly was correct in his contentions. Whilst Mrs McCormack's agreement was of significance, I take the view that any agreement of the parent with care, which could be considered as a concession by her, is not of any great significance, because of her non-representation, unless I am entirely content that her agreement was entirely proper. However, in all the circumstances I am convinced that Mr Crilly's analysis of the situation is entirely correct and that the agreement of the parent with care is entirely proper.
8. I conclude that the Tribunal did not have the jurisdiction to deal with the referral of an application for the supersession of the departure direction. I also conclude that the meaning attached to the word "application" in the legislation applies to an application for an initial departure direction only (Article 2(2) and paragraph 1 of Schedule 4A to the Child Support (NI) Order 1991; regulation 1(2) of the Child Support Departure Direction and Consequential Amendments Regulations (NI) 1996) and that such an application can be legitimately referred to an appeal tribunal for determination. However, I agree with Mr Crilly that there are other legislative provisions which deal with applications for the revision and supersession of departure directions, namely Article 28H of and Schedule 4C to the Child Support (NI) Order 1991. Nevertheless, it is clear that these provisions do not allow the Child Support Agency to refer such applications to an appeal tribunal for determination, nor do they bestow any statutory power on a tribunal to enable it to determine these applications in the event of a referral being made.
9. Therefore I must conclude that the Tribunal's decision is of no legal validity as it was given in excess of its jurisdiction and without any statutory authority. It therefore cannot have any legal effect. In light of this conclusion, all other substantive points adduced by and on behalf of the parties are not longer relevant.
10. In my capacity as a Commissioner hearing an appeal from a tribunal's decision which turns out to have no legal effect, I do not have powers to give directions as to the future resolution of the issues between the parties. However, I anticipate that the matter will be dealt with by the decision maker, as it ought to have been in the first place and, undoubtedly, that decision maker will have access to all the additional information that was made available to the Tribunal and to me and, accordingly, the decision maker will make his decision in accordance with the law and in light of all the evidence.

(Signed) :J A H Martin QC

Chief Commissioner

27 April 2005