UK Social Security and Child Support Commissioners' Decisions

 


File no: CCS 1925 2002

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I allow the appeal.
2. The appellant (to whom I refer as C) is the parent with care and father of a qualifying child for whom a child support maintenance assessment has been made. The first respondent is the Secretary of State. The second respondent (to whom I refer as A) is the absent parent and mother of the child. C is appealing with my permission against the decision of the Leeds appeal tribunal on 4 February 2002 under reference U 01 007 2001 03508.
3. For the reasons below, the decision of the tribunal is wrong in law. I set it aside. I refer the appeal to a differently constituted tribunal for determination in accordance with the directions given in this decision (Child Support Act 1991, section 22 (2), (3), (5)).

Background to this appeal

4. This appeal is about an application for a departure direction made by C on several grounds: diversion of income, lifestyle inconsistent with declared income, unreasonably high housing costs, partner's contribution to housing costs. The Secretary of State refused the application in August 2001 and C appealed. The assessment made before any departure was for £5.40 a week.
5. The matter came for oral hearing before a tribunal after a direction by a tribunal chairman for production of information by A before the hearing. The record of proceedings shows that a number of documents were produced to C on the day of the hearing. The record of proceedings also shows in a succinct style that there were initial procedural considerations discussed by the tribunal with the parties before the hearing began. This confirms that copies of relevant papers were given to C a few minutes before the start of the hearing, and that C said it was "o.k. to proceed".
6. There is also a long statement of the reasons for the tribunal decision. This records: that A withdrew, with the tribunal's agreement, the application based on unreasonably high housing costs; that C did not seek an adjournment; and that A did not pursue her previous request for a postponement because she did not have a representative. The tribunal then considered the other three grounds for a departure direction but found against C on each of them.

Grounds of appeal

7. The main ground of appeal was that important documents that should have been produced by A on 1 December prior to the hearing were only produced to C on the day of the hearing. C complained that he had been given only 10 minutes to look at the papers before the hearing started. That was not enough. He was offered an adjournment but, C says, the chairman strongly implied that he (C) would be unsuccessful if he applied for one. In his view, the chairman was not impartial in taking this view. He (the chairman) had taken the view that the papers produced were not complicated, but C stated they were complicated for him.
8. I granted permission to appeal to consider the grounds of appeal and in particular whether the hearing was a fair hearing.
9. The submission of the secretary of state's representative supports the appeal.

A's submission states that it was she, not C, who had an unfair hearing but she was content with the hearing going ahead with her having a representative.

10. I must also record that it is obvious from the tone of several letters from both A and C that the relationship between them is, at best, icy. However, that is not my concern. My concern is whether the tribunal dealt properly with the questions before it about whether A was paying enough child support maintenance to C for the benefit of their child.

Was the hearing fair?

11. I have concluded that the hearing was not fair. I do so partly because C was under a misapprehension about the "missing" documents. In his grounds of appeal he states "[A] did not produce the documents until the morning of the hearing." That is factually incorrect. It is clear from tribunal papers that were not included in the papers for this appeal that A did produce the relevant documents on time as directed.
12. A district chairman gave directions on 25. 9. 2001 that A was to produce specific documents and that the secretary of state's representative was to produce further documents sent by A to the child support agency. The deadline for both was 1. 12. 2001. The information that A was directed to produce related to her income. A reminder to both A and the secretary of state's representative was given by another district chairman on 15. 10. 2001. Both A and the secretary of state's representative did produce the documents by the stated date. Neither set were sent to C. The reason that A's documents were not sent to C was that she asked that they be not sent. An appeals service clerk asked a district chairman on 3. 12. 2001 for directions about the evidence. The chairman directed that any evidence from A other than medical evidence was to be made available to C. But the district chairman also gave A a short period to state what other authority she had for not having the information released to C, and if none was given then the papers should be sent to C. I do not know if this was sent to A, but nothing further happened about sending out the evidence until the day of the hearing. In other words, A produced the papers as directed (in fact a few days before the deadline in December), but C was not given sight of them until a few minutes before the hearing over two months later.
13. It should be understood that where a chairman of an appeal tribunal directs the production of relevant evidence, that evidence is only properly produced when it is made available to the other parties as well as the to the tribunal. Unless there are proper grounds for withholding the evidence from the other parties (or perhaps from all the parties), then evidence relevant to a hearing must be copied to all parties (or other parties) in proper time before any hearing.
14. Evidence and information directed from one party in a child support case can only be withheld from other parties if there is a specific basis for allowing withholding. There is the well-known provision in regulation 44 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 preventing addresses of parties from being disclosed, and also preventing indirect disclosure of the location of a party through other evidence. That must, of course, be observed. There is a provision in regulation 42 of those Regulations dealing with non-disclosure of medical evidence. That is principally designed to prevent someone learning about medical advice or evidence about herself or himself that would be harmful. There is also a more general power, and duty, to protect the welfare of any child involved in the proceedings (section 2 of the Child Support Act 1991).
15. None of those provisions apply to the production by A, as directed, of details of her income, save for the point about addresses. Her evidence should have been sent to C when received, or at least when the district chairman considered it. It was not. C did not therefore have the normal time to consider and seek advice on the evidence. Nor was C told why there was a failure to send the information to him or to give it to him until the day of the hearing. In my view that prejudices the fairness of the hearing. C was not properly informed about the position when asked whether he wanted an adjournment. Had he been told that it was a failure on the part of the tribunal clerks to send out the information, rather than a failure on the part of A to provide it, he may have taken a different view about continuing. Nor is it relevant that the chairman thought the information to be straightforward. I agree with C. That is for the individual parties to evaluate and not for the tribunal.
16. I must therefore set aside the decision of the tribunal. I do so with regret, because it is clear that the tribunal heard the case at length. But that did not repair the basis on which the case was started, and that basis was unsafe.

Directions to the new tribunal

17. The new tribunal must therefore consider again the appeal by C against the refusal to issue a departure direction on any of the four grounds put forward by C.

If C accepts, as he did at the previous hearing, that the tribunal need not consider the ground relating to unreasonably high housing costs, then the tribunal need not pursue that point. But it must consider both the application based on diversion of income and the application based on the allegation that A's lifestyle was inconsistent with her income. There is now additional evidence of her declared income in the papers. It is for C to show by any relevant evidence that her lifestyle is inconsistent with the income she declared to the child support agency.

18. Separately, the tribunal must consider if A has a partner during the relevant period and, if so, whether there should be a contribution to housing costs from that partner. I agree with the criticism of the previous tribunal's approach on this made by the secretary of state's representative in the submissions on this appeal. Until the tribunal has established that someone has a partner, within the meaning of that term in child support law, then the question of any contribution to housing costs does not arise. So the tribunal must make a clear finding of fact on that question in the light of all the evidence.

David Williams

Commissioner

19 November 2002

[Signed on the original on the date shown]