UK Social Security and Child Support Commissioners' Decisions

[1995] UKSSCSC CCS_9_1994 (15 May 1995)

R(CS) 1/95


Mr. D. G. Rice CCS/9/1994

15.5.95

Tribunal practice - appellant not attending a hearing before a child support appeal tribunal - whether attendance obligatory

The appellant has appealed to a child support appeal tribunal against a child support officer's refusal to review the amount of his child support maintenance. He stated that he would not be attending the hearing but that he wished the tribunal to consider further evidence (which he sent in an accompanying letter). The tribunal dismissed his appeal on the ground that he had not attended the hearing.

Held that:

the attendance of the appellant is not a prerequisite for the determination of an appeal by a child support appeal tribunal. This is implicit in the Child Support Appeal Tribunals (Procedure) Regulations 1992 (see for example, regulation 11(3) and (6)).


DECISION OF THE CHILD SUPPORT COMMISSIONER

1. My decision is that the decision of the child support appeal tribunal given on 9 June 1994 is erroneous in point of law, and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.
2. This is an appeal by the absent parent ("the appellant") brought with my leave, against the decision of the child support appeal tribunal of 9 June 1994.
3. The appellant appealed to the tribunal against the decision of the child support officer that he was liable to pay from 13 September 1993 child support maintenance of £26.26 per week in respect of his son. He had requested a review of that decision, but the child officer concerned refused on 11 January 1994 to carry out any such review. Accordingly, the appellant appealed to the tribunal. He did so broadly on the basis that he could not afford the sum in question in view of his expenses, which he specified in some detail.
4. Prior to the hearing, the appellant was sent a form that contained a series of questions, to which he was invited to reply "Yes" or "No" as appropriate. In answer to the question "Will you be coming to the hearing?" he replied "No". It was stated on that form that if his answer was "No" the appeal would be heard in his absence. In answer to further questions he intimated that he did not wish to withdraw his appeal, that no one could be coming to speak on his behalf, but that he wished to give further evidence. Moreover, he sent with that form a letter complaining that, although the child support officer had reviewed the original amount payable by the appellant and reduced it with effect from 7 February 1994 from £26.26 per week to £16.48, this review had not been implemented and demands were still being made of him at the old rate.
5. The appellant did not attend the hearing, and the tribunal dismissed his appeal on the ground of his absence. They said as follows:

"The tribunal considered that as the appellant had not appeared or provided any explanation as to his absence ... the appropriate course was to dismiss his appeal."

They did not consider the merits of the case stating:

"There were no findings of fact as no evidence was heard."

Clearly, the tribunal proceeded on the basis that the attendance of the appellant was obligatory, or at least an explanation for his absence was called for, in which latter event presumably the tribunal might be willing to adjourn the hearing to enable the appellant to appear on a later occasion.

6. The appellant complains that he received no intimation that his attendance was essential. He had been induced to believe by the form which had been sent to him prior to the hearing, and which he had completed, that, if he did not attend, the tribunal would simply deal with the matter in his absence on the evidence before it. Moreover, he pointed out that he had given further information in his letter, which undoubtedly he had. Manifestly, on any footing there had been a clear breach of natural justice, in that the appellant had been induced to believe that his attendance was not essential, and on that ground alone I would be obliged to set aside the tribunal's decision as being erroneous in point of law.
7. However, I am concerned with a more fundamental misconception on the part of the tribunal, the belief that, irrespective of what the appellant was told in any correspondence sent to him, his attendance was a prerequisite of any determination. Although there would seem to be no specific provision in the child support legislation expressly stating that, where an appellant does not attend the hearing before the child support appeal tribunal, the appeal will nevertheless, notwithstanding his absence, be adjudicated upon on the evidence before it, such a rule would seem implicit in the Child Support Appeal Tribunals (Procedure) Regulations 1992. For example, regulation 11(3) says as follows:

"At any hearing any party to the proceedings shall be entitled to be present and be heard."

The clear implication is that a party need not be present, but that this will not affect the hearing of the appeal. More explicit is the language of regulation 11(6):

"If a party to the proceedings to whom notice has been given under paragraph (2) fails to appear at the hearing the tribunal may, having regard to all the circumstances including any explanation offered for the absence, proceed with the appeal notwithstanding his absence or give such directions with a view to the determination of the appeal as it may think proper."

Again, the clear implication is that the attendance of the appellant is not essential. The tribunal clearly has the power to hear the matter in the absence of the appellant; it may however, instead of dealing with the matter at once "give such directions with a view to the determination of the appeal as it may think proper", presumably adjourn the hearing to enable the appellant, if he wishes so to do, to attend. But what is clear is that the appeal has to be determined. There may be an adjournment or some other delay, but the appeal must in due course be determined, and if the appellant does not wish to appear, so be it. The appeal must still be adjudicated upon.

8. Accordingly, there can be no doubt that in proceeding on the basis that it was entitled to dismiss the appeal owing to the absence of the appellant, the tribunal erred in point of law on a fundamental issue, and on that ground also I must set aside its decision.
9. I direct that the appeal be reheard by a differently constituted tribunal who will, if the appellant does not attend, and has intimated no intention of attending which might call for an adjournment, proceed to determine the appeal on the evidence before it.
10. Accordingly I allow this appeal.

Date: 15 May 1995 (signed) Mr. D. G. Rice

Commissioner