UK Social Security and Child Support Commissioners' Decisions

 
R(CS) 9/02


Mr. E. Jacobs CCS/1646/2001

5.9.01

Departure direction – whether tribunal has jurisdiction when formula assessment is superseded and appealed

A maintenance assessment based on the formula was in force in 1996. The absent parent applied for a departure direction in 1997 and a direction was given. The formula assessment was supeseded in 1999. The departure direction was said to be unaffected because "the Secretary of State decided that it was not appropriate to cancel the departure direction and consequently it continued to have effect". The parent with care appealed to a tribunal, which confirmed the decision not to cancel the direction. The parent with care appealed to the Commissioner. On granting leave, the district chairman drew attention to the problems that were arising with appeals that raised departure direction issues following the making of a fresh formula assessment.

Held, dismissing the appeal, that:

there are two schemes, in respect of formula assessment liability and departure directions, which are inter-related and which may produce separate decisions to which rights of appeal attach;

a tribunal has jurisdiction only over the decision which is the subject of the appeal;

there will not always be a departure direction decision when a formula assessment decision is made because the Secretary of State is entitled to consider the direction, in the absence of any application from the parties, and to allow the direction to continue as before;

there was a departure direction decision in this case, and the tribunal were entitled to consider it and to decide that the direction should not be cancelled.

The Commissioner suggested the approach to be taken by tribunals faced with a similar situation, and rejected the parent with care's grounds of appeal dealing with other matters.

DECISION OF THE CHILD SUPPORT COMMISSIONER

Decision:

1. My decision is that the decision of the Southampton appeal tribunal, held on 22 November 2000, is not wrong in law.

The issue

2. This case concerns the interrelation of the two child support schemes: the formula assessment and the departure direction schemes. The issue is the jurisdiction of an appeal tribunal when the effect of a departure direction is continued into a fresh formula assessment.

The appeal to the Commissioner

3. In the terminology of the child support legislation, the appellant is the parent with care, and the second respondent is the absent parent. I shall refer to them in those terms.
4. This is an appeal to a Commissioner against the decision of the appeal tribunal brought with the leave of a district chairman of tribunals. The Secretary of State does not support the appeal. The parents have both had a chance to make observations on the appeal.
5. The parent with care set out detailed grounds of appeal. However, she did not make detailed observations on the Secretary of State's observations. Instead, she asked for an oral hearing as 'there are may questions I would like answered.' I refuse the request for an oral hearing, as I am satisfied that the appeal can properly be determined without one. An appeal to a Commissioner lies only on a question of law. It is not the opportunity to ask questions about the fairness of the child support schemes or about the facts of the case or the circumstances of the parties. Leave was only granted on one issue by the district chairman. He has, of course, no power to limit the scope of an appeal by the terms on which he granted leave. However, the points made by the parent with care in the application for leave were not sufficient to justify leave being granted.

The history of the case

6. I do not know the early history of this case. That does not matter, because it is not relevant. It is sufficient to start in December 1996. There was in force at that date a formula assessment of the absent parent's liability for child support maintenance. In September 1997, the absent parent applied for a departure direction from that assessment and a direction was given by the Secretary of State that reduced the formula assessment from the effective date of 4 December 1996.
7. In 1999, a fresh formula assessment was made on supersession. That raised the issue of what should happen to the departure direction. The Secretary of State decided that it should continue. According to the decision under appeal as set out on page 3, 'the Secretary of State decided that it was not appropriate to cancel the departure direction and consequently it continued to have effect.' This is confirmed by the statement on page 6 that the changes that led to a fresh formula assessment had not affected the departure direction.
8. The parent with care appealed to an appeal tribunal. The appeal was presented to the tribunal as concerning the departure direction and that is how the tribunal dealt with it.

Jurisdiction

9. On granting leave, the district chairman drew attention to the problems that were arising with appeals that raised departure direction issues following the making of a fresh formula assessment.
10. The original child support scheme was based on a formula assessment of liability. Later, the departure direction scheme was added. The two schemes are interrelated in that a departure direction overrides the formula assessment by increasing or decreasing the absent parent's liability. However, there are separate adjudication arrangements for the two schemes. These different arrangements produce separate decisions, each of which has appeal rights attached.
11. Take this simple example. An application is made by a parent with care for a child support maintenance assessment. A formula assessment is made to determine the absent parent's liability. The assessment results in a decision against which either the parent with care or the absent parent may appeal to an appeal tribunal. The absent parent then applies for a departure direction from the formula assessment. A decision will be given, against which either parent may appeal. So, if there is an effective application, whether for a formula assessment or a departure direction, there will always be a decision given on it and that decision can be the subject of an appeal.
12. On an appeal, the tribunal has jurisdiction only over the decision that is the subject of the appeal. So, if an appeal relates to a departure direction decision, the tribunal has no jurisdiction to consider the application of the formula. An appeal is limited to the terms in which a direction should be given, if at all.
13. What happens when the formula assessment comes to an end and is replaced by a fresh assessment? Broadly, there are three possibilities. First, the departure direction might no longer be appropriate, in which case it can be cancelled: see regulation 32F(b) of the Child Support Departure Direction and Consequential Amendments Regulations 1996. Second, a departure direction might still be appropriate but in different terms, in which case a fresh departure direction can be given on supersession: see regulation 32D. Third, it might be appropriate for the departure direction to continue in the same terms, in which case it remains in force and is carried out in respect of the fresh assessment. The decision on the departure direction is separate from the fresh assessment and is the subject of separate appeal rights.
14. If the Secretary of State always gave a departure direction decision whenever a fresh assessment was made, there would always be a decision against which an appeal could be made. Unfortunately, that will not necessarily happen. The reason lies in regulation 32F. This provides that

'The Secretary of State may cancel a departure direction where ––

(b) regulation 32D applies and he is satisfied that it is no longer appropriate for it to continue to have effect.'

So, the operation of regulation 32F is tied to regulation 32D. Some of the provisions of that regulation apply only if an application has been made. Other provisions allow the Secretary of State to act without an application. So, if an application for a departure direction to be cancelled has been made, a decision will always be given and an appeal can be made. But if the Secretary of State merely considers the matter without an application and determines that the departure direction should continue as before, a decision may not be given. If that happens, there is no decision against which an appeal can be made.

15. This analysis is a more detailed version of the suggestion I put to the Secretary of State in my case management directions on this appeal. The Secretary of State accepted that it was correct.

Did the tribunal exercise its jurisdiction correctly?

16. Yes, it did.
17. The way that the decision under appeal was set out and explained in the submission to the tribunal suggests that a decision was given that the departure direction was not to be cancelled. That decision was 'with respect to a departure direction' and as such was appealable by virtue of paragraph 3(1)(a) of Schedule 4C to the Child Support Act 1991. The full statement of the tribunal's decision shows that the tribunal considered whether there was any ground on which the departure direction could be cancelled and decided that there was not. I find no mistake of law either in the tribunal's decision or in reasons that it gave for it.

What should a tribunal do in this type of case?

18. The district chairman has asked me to give guidance on how this type of case should be handled. I have no power to give what would be in effect a practice direction for this type of case. However, my analysis of the law suggests the approach that should be taken.
19. 1. Ideally, the Secretary of State should always give a departure direction decision when a fresh assessment is made. That would allow either party to challenge the departure direction by way of appeal.
20. 2. If an 'appeal' is made following a fresh formula assessment and the grounds are wholly or partly related to the departure direction, the district chairman must identify whether the Secretary of State has given a decision with respect to the departure direction.
21. 3. If one has been given, the appeal is against that decision.
22. 4. If one has not been given, the tribunal has no jurisdiction to deal with the issues raised on the departure direction. The case should be referred to the Secretary of State so that the 'appeal' can be treated as an application for a supersession of the departure direction decision and possible cancellation of the departure direction. That application will generate a decision that can be the subject of an appeal.

Other issues

23. The issues raised by the parent with care in her grounds of appeal to the Commissioner have been dealt with by the Secretary of State's observations in paragraphs 7 to 11 on pages 85 and 86. I need add nothing to the observations in those paragraphs and gratefully adopt them as my reasons for rejecting the parent with care's arguments.

Conclusion

24. I dismiss this appeal.

Date: 5 September 2001 (signed) Edward Jacobs

Commissioner