Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2007] NISSCSC CSC1_07_08 (25 October 2007)

Decision No: CSC1/07-08

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 17 May 2006
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. I have determined that I can decide this appeal without an oral hearing. The decision of the Appeal Tribunal is set aside for the reasons set out below.
2. The appellant is the parent with care. She was granted leave to appeal by the legal member of the tribunal on 17 May 2006.
3. The parent with care is the mother of three children. Her application for child support maintenance resulted in an order for £5.50 per week and she made an application for a Departure Direction on 1 March 2004. The application was referred to the tribunal in a date which is not clarified in the submission. The effective date of the application is 3 September 2005 for the reasons explained in the submission to the tribunal. There is no dispute about this date. The tribunal had jurisdiction to consider evidence up to the date of the final hearing.
4. The appeal was heard on three separate occasions, with the final hearing on 17 May 2006. It proved very difficult indeed to obtain reliable information about the earnings and outgoings from the absent parent. The tribunal concluded that his evidence was not reliable and doing the best it could, it assessed that a Departure Direction on the basis of lifestyle inconsistent with declared income should be granted and that the absent parent's income should be assessed at £147 per week net. A Departure Order was made for this amount. It also decided that the housing costs of the absent parent should be reduced to 40% of the mortgage payments. The tribunal rejected arguments that the absent parent diverted income or had excessive housing costs. The effect of the decision is that the Child Support Maintenance is increased to £31.17 per week.
5. The appellant was represented by her member of the Northern Ireland Assembly and he argued in his leave to appeal application to the legal member of the tribunal that the assessment of the weekly income was completely unreasonable. Leave to appeal was granted, but the legal member makes no comment on the point of law raised.
6. In the appeal, the appellant's representative relies on the issues raised in his leave application. The submission on behalf of the child support decision-maker supports the appeal on similar grounds.
7. I have great sympathy for the tribunal in this appeal as the evidence presented to it was very misleading and difficult to reconcile. It concluded that the evidence of the absent parent was unreliable. However, it then based its decision on information contained in a questionnaire completed by the absent parent, much of which was improbable and unsubstantiated. I accept that the inconsistency in the decision of the tribunal is such as to make the decision unreasonable in law and I therefore set it aside. The tribunal also erred in allowing a Departure Order for housing costs for the reasons explained in paragraph 16. It also erroneously recorded in the reasons for the decision that the mortgage payments were £325.27 per week whereas it was a monthly payment.
8. As explained above, the Department made a helpful submission to the Commissioner on 28 June 2007. That submission and the appellant's application have been sent to the absent parent and his representative. No representations or submissions have been made by, or on behalf of, the absent parent.
9. This appeal has been outstanding for a lengthy period and it is desirable that the proceedings be concluded as quickly as possible. I have power to make a decision by virtue of Article 25(3) of the Child Support Order 1991 and I propose to do so. It is unlikely that any further evidence will be forthcoming. The appellant's representative refers to additional bank statements which may clarify the absent parent's income before these proceedings commenced. This information is held outside the jurisdiction of Northern Ireland and I cannot make an order for its production.
10. Regulation 25(1) of the Child Support Departure Directions and Consequential Amendments (Northern Ireland) Regulations 1996, the Departure Regulations, provides that there is a case for a Departure Order where the level of income on which the current assessment is based is substantially lower than the level of income required to support the overall lifestyle of the non applicant. Regulation 25(2) provides that a case will not arise where the lifestyle of the absent parent is paid for by his partner. The word substantially is not a technical word and is given its ordinary meaning - CSC6/03-04(T).
11. I have derived considerable assistance from the decision of Commissioner Jacobs R(CS) 3/01 in analysing the issues in this case and I commend decision-makers and tribunals to take that decision into account when dealing with departure applications under the head of lifestyle inconsistent. The tribunal must first of all address the lifestyle of the absent parent. The tribunal found that he works for a company in Wales. His hours of work are unclear. He asserts that he works for 17 hours per week as he sustained an injury while fishing. In his mortgage application he does not suggest that he works less than full-time. He has conceded in evidence that his mobile telephone number is on the company vehicles. The tribunal seems to have concluded that he works full-time and I adopt that conclusion. He is an owner occupier having applied for and obtained a mortgage with his current partner. He runs a motor car with his partner. He has a mobile telephone. He visits his children and his mother in Northern Ireland from time to time. He has a credit card. He enjoys football and goes to some matches in Scotland. He has a bank account. He has not been refused credit.

The absent parent did not suggest that he has mounting debts and explained that he was currently repaying an old business debt. He made reference to a continuing loan from his employer but the circumstances are unclear and the tribunal appears to have rejected this evidence. I adopt its rejection.

All the evidence suggests a good if simple lifestyle with some recreation and family visits to Northern Ireland from time to time. The declared income of the absent parent is very low indeed and appears to be less than the minimum wage. The earnings of the absent parent's partner are modest and are not disputed. The tribunal concluded that the assessment of the level of income of the absent parent is substantially lower than the level of income required to support his lifestyle and I agree with that finding.

12. Taking into account documented expenses of the mortgage, Council Tax, water payments, life insurance and a television licence, the income of the couple would be reduced by over £100 a month by unavoidable outgoings. I am satisfied that the absent parent's partner could not sustain both his and her own lifestyle on the balance of their joint income as was asserted at the tribunal hearing. The tribunal rejected this argument, as implied in its decision and I agree with its conclusion. As the appellant has no debts other than an old business debt, he is not sustaining his lifestyle from any other source. The tribunal rejected his evidence that his mother and the parents of his partner support his lifestyle. I adopt that conclusion.
13. In order to assess the likely income of the absent parent, it is necessary to take into account all the expenses he is likely to incur including clothing, food, work expenses, mobile telephone charges, visits to his children and their maintenance and his share of heating, laundry and cleaning, motoring expenses, furnishing and maintaining the home and its insurance, holidays and recreation. In this appeal, the absent parent must also contribute his share of the expenses listed in paragraph 12. Apart from the documented expenses mentioned above, no specific evidence has been presented on any of these expenses other than the assertions made in the answers to the questionnaire headed household expenses.

A tribunal is entitled to take into account its knowledge of normal living expenses and make an estimate based on the findings of lifestyle which I have listed in paragraph 11 above. Taking into account the findings of the tribunal and all the evidence presented to it, I would estimate that the net income of the absent parent is unlikely to be less than £200 per week. In making a Departure Order I must take into account the terms of regulation 40(5) of the Child Support Departure Direction (Northern Ireland) Regulations. I therefore make a Departure Order for the sum of £120 per week from 3 September 2003 which will be added to the assessed income of £80 per week resulting in a total net income of £200.

14. The tribunal has already concluded that it is just and equitable to make a Departure Order. The matters to be taken into account are those set out in Article 28(F)(2) of the Child Support Order (Northern Ireland) 1991. I calculate that the child support maintenance could increase to about £80 per week as a consequence of the Departure Direction. Taking into account the financial circumstances of both parents and the welfare of their three children, I am satisfied that it is just and equitable to make such an order.
15. I uphold the conclusions of the tribunal on excessive housing costs and diversion of income.
16. It appears from the letter of 24 May 2003 from the mortgage lender to the absent parent, that the absent parent and his partner took out a joint mortgage on their home and they are both liable to make mortgage payments. The absent parent is therefore liable for half the costs of the mortgage as there is no evidence that they hold unequal shares in the property and his housing costs should be assessed accordingly. A Departure Order in respect of a contribution to housing costs by a partner is not applicable in this case and the decision of the tribunal is reversed with regard to this matter.

(signed): C MacLynn

Deputy Commissioner

25 October 2007