UK Social Security and Child Support Commissioners' Decisions

R(CS) 3/98


Mr. M. Rowland CCS/11260/1995

5.8.96

Tribunal practice - child support officer believing tribunal had erred in fact - whether tribunal entitled to give further directions

On 20 October 1994 a tribunal found as a fact that the father had a repayment rather than a pension mortgage and they remitted the case back to the Secretary of State to arrange for a child support officer to make a fresh assessment. On 1 May 1995 the child support officer applied to the tribunal for further directions under regulation 13(4) of the Child Support Appeal Tribunal (Procedure) Regulations 1992, stating that he believed the father to have a pension mortgage. On 17 July 1995, without an oral hearing, a differently constituted tribunal "clarified" the decision of the first tribunal and stated that the father's mortgage was a pension mortgage and that there was evidence that he had two pension policies. The father appealed on the basis that he had a repayment mortgage and not a pension mortgage and that he only had one pension policy.

Held, allowing the appeal, that:

directions under regulation 13(4) amounted to a free standing "decision" and might be the subject of an appeal independently of the original decision (para. 9);

regulation 13(4) enabled a tribunal to resolve an ambiguity in their original decision but it did not permit a tribunal to give directions which were inconsistent with those given originally given (para. 11);

the application under regulation 13(4) had been misconceived and the child support officer was obliged to make a maintenance assessment in accordance with the directions given by the first tribunal (paras. 1 and 12);

a child support officer had no power to review a decision of a tribunal but had the power to review any assessment made following the remission of the case by the tribunal and, therefore, a child support officer who believed a tribunal to have made a mistake of fact was obliged first to make an assessment consistent with the tribunal's decision and then immediately consider whether it might be reviewed (para. 15);

it was immaterial whether the mortgage was a repayment or a pension mortgage (para. 16).

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I grant the applicant (the father of the relevant child) leave to appeal against the decision of the Sutton child support appeal tribunal, dated 17 July 1995. I allow the appeal and I replace it with the decision which I consider the tribunal should have given:

The child support officer's application for further directions, dated 1 May 1995, is dismissed.

The consequence of my decision is that a child support officer must now make a maintenance assessment in accordance with the directions given by the child support appeal tribunal on 20 October 1994.

2. Because the application for leave to appeal gave rise to procedural points of general importance, I held an oral hearing. Neither parent attended or was represented, which is not surprising as the procedural points were probably not of much interest to either of them. The child support officer was represented by Ms. Daphne Thomas of the Office of the Solicitor to the Departments of Social Security and Health. She greatly assisted me with her helpful submissions.
3. On 11 October 1993 a child support officer determined that the father was liable to pay child support maintenance at the weekly rate of £50.03 from 24 July 1993. On review, a second child support officer determined that he was liable to pay child support maintenance at the weekly rate of £58.77 from 24 July 1993 and £58.40 from 7 February 1994. The father appealed. The child support officer preparing the submission for the tribunal drew attention to several suggested errors in the second child support officer's approach. I need refer only to one, which relates to housing costs. In his maintenance enquiry form, the father had stated that he paid mortgage interest at the rate of £328.47 per month. He had answered "No" to the question whether he had a repayment mortgage or endowment mortgage but, confusingly, when asked what type of endowment mortgage he had, instead of ignoring the question, he had ticked the box marked "Other" and then given a further description. What that description was I do not know because the official responsible for deleting all information that might lead to the identification of the father's address has thought fit to cover it with a smudge. As it now seems to be common ground that the mortgage was not an endowment mortgage and as there has been a suggestion that it was a pension mortgage, I suspect that the description referred to pension contributions. In any event, the second child support officer appears to have calculated the father's housing costs as though he had an endowment mortgage but it was submitted to the tribunal that he had a pension mortgage. At the hearing, which the father attended, it was, however, asserted that the mortgage was actually a repayment mortgage. In their decision dated 20 October 1994, the tribunal accepted that assertion and found as a fact that the father "does not have a pension mortgage, he has a repayment mortgage". The tribunal accepted the other submissions of the child support officer and remitted the case to the Secretary of State to arrange for a child support officer to make a fresh assessment.
4. Six months later, on 1 May 1995, the child support officer referred the matter back to the tribunal, relying on regulation 13(4) of the Child Support Appeal Tribunal (Procedure) Regulations 1992 and stating:

"I believe that the appellant has an interest only mortgage based on the maturity of his two personal pension policies (E7 and E8 of submission) which on maturity will pay off this loan. I enclose a copy of form CSA6 dated 20 December 1994 which confirms the above."

There has been no explanation of the delay between December 1994 and May 1995. Pursuant to regulation 13(5) of the 1992 Regulations, the tribunal sought written submissions from the parents. The father did not comment on the child support officer's submission but merely gave details of his new mortgage arrangements from 23 June 1995, which was when he expected to move house. On 17 July 1995, without an oral hearing, a differently constituted tribunal gave the following decision:

"The tribunal clarifies the decision of Sutton child support appeal tribunal dated 20 October 1994 as follows:

The mortgage of [the father] is not a repayment mortgage and is an interest only mortgage.

There is evidence that [the father] has two pension policies."

5. In a letter dated 2 October 1995, the father sought leave to appeal on the ground that:

"1. I have a repayment mortgage and not an interest only mortgage (proof of this is forwarded).

I only have one pension and not two as stated (copy can be obtained).

I would also like to state that at the time of this appeal, my ex wife ... was living with her boyfriend as husband and wife, and she was claiming one parent benefit. She was also working full time at Marks & Spencer, and her boyfriend was also in full-time employment. I don't think this was taken into account."

In fact, I think all the matters referred to in the last paragraph were dealt with in the submission to the first tribunal and by the tribunal itself, save for the fact that the mother's "boyfriend" was working which was not mentioned because it was not relevant. Accordingly, I need say nothing further about those matters. The issues at large concern only the mortgage and the pension contributions.

6. On 13 October 1995, the chairman of the second tribunal refused leave to appeal. The father now renews his application to me. The evidence attached to his application for leave referred to the new mortgage taken on 23 June 1995 rather than the old one. On 23 February 1996, I therefore directed the father to produce evidence relating to his old mortgage and I also directed an oral hearing so that I could hear argument on behalf of the child support officer on procedural points.
7. It is convenient for me to deal first with the procedural issues. These arise because a child support appeal tribunal does not have jurisdiction simply to replace a decision under appeal. Section 20 of the Child Support Act 1991 provides:

"(1) Any person who is aggrieved by the decision of a child support officer-

(a) on a review under section 18;

(b) to refuse an application for such a review,

may appeal to a child support appeal tribunal against that decision.

...

(3) Where an appeal under this section is allowed, the tribunal shall remit the case to the Secretary of State, who shall arrange for it to be dealt with by a child support officer.

(4) The tribunal may, in remitting any case under this section, give such directions as it considers appropriate."

Regulation 13(4) and (5) of the Child Support Appeal Tribunal (Procedure) Regulations 1992 provides:

"(4) If a child support officer to whom a case is referred by the Secretary of State under section 20(3) of the Act (procedure following a successful appeal) is uncertain, having regard to the terms of the decision and any directions contained in it, how he should deal with the case, he may apply to the tribunal or another tribunal for directions or further directions, and the tribunal may give such directions or further directions as it thinks fit.

(5) Upon receiving an application from a child support officer under paragraph (4) the clerk to the tribunal shall send a copy of it to all the other parties to the case, and the tribunal shall not give any directions or further directions on the application until those other parties have had a reasonable opportunity of making representations on it."

Section 24(1) of the Child Support Act 1991 provides:

"(1) Any person who is aggrieved by a decision of a child support appeal tribunal, and any child support officer, may appeal to a Child Support Commissioner on a question of law."

8. Ms. Thomas' first point was that no appeal lies under section 24(1) of the Act against directions given by a tribunal under regulation 13(4) of the 1992 Regulations. She submitted that such directions do not amount to a "decision" for the purposes of section 24(1) of the Act. On the other hand, she accepted that directions given under section 20(4) are part of the decision of the tribunal giving them. I would go further. It seems to me that the only substantial decision made by a tribunal (other than the purely formal remission of the case to the Secretary of State) lies in its directions. A tribunal's findings of fact and rulings on law are effective only in so far as there is at least an implied direction that the child support officer dealing with the case following its remission must adopt those findings and rulings. I do not think that the use of the word "may" in section 20(4) implies that there will be cases when there will be no directions at all, although there are some cases where a tribunal's findings of fact or rulings on a point of law make it unnecessary to give any further express directions. As a tribunal's decision never itself replaces the decision under appeal, it can only be effective to the extent that it governs the decision to be made following a remission of the case to the Secretary of State. I cannot see any logical reason why directions given pursuant to regulation 13(4) should not be the subject of an appeal to the same extent as directions given when a tribunal first gives a decision. The scope of regulation 13(4) is such that such directions may only be a clarification of, or perhaps an extension of, the original directions (whether implicit or explicit) and it seems to me that such directions must be as much decisions, or parts of a decision, as those original directions.
9. The question that has concerned me more is whether directions given under regulation 13(4) should be treated as a free standing "decision" for the purposes of section 24(1) of the Act, or whether they should be regarded as part of the original decision. This is important because the answer determines both the date from which the time for making any application for leave to appeal runs and the scope of any appeal before a Commissioner. At first, I took the view that directions under regulation 13(4) should be regarded as supplementary to, and part of, the original decision, so that any appeal had to be made against that original decision. There is no provision in regulation 13 akin to that in regulation 16(1), having the effect that time for appealing against the decision runs only from the date directions are given under regulation 13(4). Therefore, in a case like the present where the further directions are given more than three months after the original decision, any challenge to the further directions would be out of time and it would be necessary to consider whether to extend the time for appealing. That is not an insurmountable difficulty but I have come to the conclusion that the omission from regulation 13 of a provision akin to regulation 16(1) was deliberate, and indicates that directions given under regulation 13(4) are to be treated as amounting to a free standing "decision" that may be the subject of appeal independently of the original decision. That is not to say that in many cases, an application for leave to appeal against directions given under regulation 13(4) will not also imply a desire to appeal against the original decision. In such a case, a Commissioner (or a tribunal chairman dealing with an application made within three months of the original decision) may consider whether the application or appeal should be treated also as an application or appeal against the original decision. However, in principle, there is no reason why a challenge to directions given under regulation 13(4) should necessarily imply a challenge to the original decision or why the original decision should not stand, so that the appeal must be determined consistently with it. In this jurisdiction, decisions should, in my view, generally stand unless challenged promptly. It is therefore my view that there is before me a properly constituted application for leave to appeal against the decision dated 17 July 1995 only.
10. An appeal to a Commissioner lies only on a point of law and the grounds upon which the father sought leave to appeal raise only questions of fact, rather than law. However, I grant leave to appeal because I accept Ms. Thomas' submission that the decision of the tribunal is fundamentally flawed. As all three parties have consented to my treating the application as an appeal, I will do so without obtaining further submissions.
11. I agree with Ms. Thomas that regulation 13(4) does not permit a tribunal to give directions which are inconsistent with those given originally. Therefore, the tribunal sitting on 17 July 1995 were not entitled simply to reverse a finding of fact made on 20 October 1994. The application of the child support officer dated 1 May 1995 was wholly misconceived and should not have been entertained by the tribunal. Although regulation 13 (4) permits a child support officer to make an application if he or she "is uncertain ... how he should deal with the case", that is only when the uncertainty arises "having regard to the terms of the decision and of any directions contained in it". A child support officer cannot turn to a tribunal simply to obtain advice in a difficult case. Regulation 13(4) enables a tribunal to resolve an ambiguity. That may be just a matter for clarification, but I would not rule out the possibility of a tribunal resolving an ambiguity by extending a decision. As an illustration, I can refer to CCS/5310/1995, which is fresh in my mind. In that case, a tribunal ruled that tax should be deducted from rent received by a parent for the purpose of calculating his income and they referred to paragraph 2 of Schedule 2 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. For the purposes of the ordinary case, that ruling would have been perfectly adequate and the tribunal had no reason to suppose the case was anything other than ordinary. However, the ruling was inadequate if tax on the rent had already been collected through an adjustment to the parents' PAYE tax code, because then the liability would have been taken into account under paragraph 1(3) of Schedule 1 to the relevant regulations, and paragraph 2 of Schedule 2 would not operate to allow it to be taken into account a second time. In that case, I suggested that, had the child support officer found that there had been an adjustment to the PAYE tax code, it was just the sort of case where he or she might have applied to a tribunal for further directions, qualifying or extending the original decision.
12. In any event, in my view, the tribunal on 17 July 1995 should simply have dismissed the child support officer's application as misconceived. I therefore set aside the tribunal's decision and substitute my own decision to that effect.
13. I have considered whether I should treat the father's application for leave to appeal against the decision dated 17 July 1995 as having been also an application for leave to appeal against the decision dated 20 October 1994. However, I will not do so for two reasons. Firstly, I agree with Ms. Thomas that, as it seems to have been precisely the reversal of a finding of fact by the tribunal sitting on 20 October 1994 that led to the father seeking leave to appeal against the decision of 17 July 1995, it would be wrong to imply a desire to appeal against the earlier decision. Secondly, I do not think that anyone will be assisted in the long run by my looking in any detail at the decision given on 20 October 1994. The differences between the parties seem either to be irrelevant or else may properly be dealt with by the child support officer who must now make an assessment pursuant to the decision of that tribunal.
14. There is no peg upon which I may hang directions, but I think the child support officer is entitled to an explanation as to what he or she should do if satisfied that the decision of the tribunal given on 20 October 1994 was based on a mistake of fact. So are the parents. This remains an issue in this case because the evidence produced by the father pursuant to my direction suggests that the old mortgage was in fact "conducted on an interest only basis" after all. It appears that it was contemplated that it would be linked to a pension scheme, but whether that ever happened remains unclear.
15. A child support officer has no power to review a decision of a tribunal. However, he or she has power to review any assessment made following the remission of the case by the tribunal. It therefore seems to me, as it did to Ms. Thomas, that a child support officer who believes a tribunal to have made a mistake of fact is obliged first to make an assessment consistent with the tribunal's decision and then immediately consider whether it may be reviewed. I am not sure that this will always produce a very satisfactory result, particularly as regards the "effective date" but, in the present case, I do not think that there is really any difficulty because I doubt any review would lead to a different maintenance assessment.
16. Indeed, I do not think that this case should present any problem to the child support officer at all. Ms. Thomas was unable to help me as to the reason why the child support officer thought it mattered whether the father had a repayment mortgage or a pension mortgage. There does not ever seem to have been any question as to the amount of monthly mortgage payments. There is no evidence that any part of those monthly mortgage payments represented pension contributions, pension contributions relating to pension mortgages are usually paid separately. Nor, unless the smudge on the maintenance enquiry form covers anything other than a reference to pension payments, has there been any serious suggestion that there were additional endowment policy contributions. For the purposes of calculating a parent's "exempt income", it does not matter whether the monthly mortgage payments were interest or capital. It is true that only interest payments are relevant in calculating a parent's "protected income" but, in the present case, even if the father's "protected income" is calculated on the basis that the whole of the mortgage payments consisted of interest (paradoxically, the assumption most favourable to him), the amount of his "protected income" is too low to affect his liability for child support maintenance. In those circumstances, I find it quite impossible to understand why the child support officer ever made the application dated 1 May 1995. Even if such an application would otherwise have been appropriate, I do not think it should have been made unless the child support officer could show the tribunal that it had some practical value.
17. Nor does the second issue raised in the father's grounds of appeal raise any difficulty although some clarification of the facts may be required. It does not matter to how many pension schemes the father contributes, it is the total amount of his contributions that is important. As to that, the first tribunal made no finding, so the question is at large. I note that, in the submission to the first tribunal, the child support officer referred to monthly payments of £15.71 (which the second child support officer had taken into account in full as though they were endowment policy payments) whereas the father said in his maintenance enquiry form that he paid £61.75 per month to a personal pension scheme. The answer to this discrepancy may be hidden by the smudge on the maintenance enquiry form. It is possible that the smaller sum refers to additional pension contributions which the father was required to make when he took out his mortgage and which may or may not have been included in the larger sum, but that is pure speculation on my part. Unless the child support officer already holds more information than I have, some clarification of the facts will be necessary before a maintenance assessment is made. In any event, as was submitted to the first tribunal, only half of any pension contributions should be taken into account, whether or not they are related to a mortgage.
18. I hope that the child support officer will now deal with this case as soon as possible. Despite the length of my decision, the case appears relatively straightforward and it is now over a year and a half since it was remitted by the first tribunal to the Secretary of State.

Date: 5 August 1996 (signed) Mr. M. Rowland

Commissioner