UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CSCS_8_2001 (03 October 2002)

 


THE CHILD SUPPORT COMMISSIONERS

Commissioner's Case No: CSCS/8/01

CHILD SUPPORT ACTS 1991 AND 1995

APPEAL FROM THE CHILD SUPPORT APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

ORAL HEARING

DECISION OF CHILD SUPPORT COMMISSIONER

1. My decision is that the decision of the tribunal held at Edinburgh on 25 April 2001 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted appeal tribunal for a rehearing.
2. This case came before me for an oral hearing on 24 September 2002. The appellant who is the absent parent or non-resident parent was represented by Mrs Scott, Advocate, instructed by Mrs McLeod of Balfour & Manson, Solicitors, Edinburgh. The first respondent who is the Secretary of State was represented by Mr Brodie, Advocate, instructed by Miss Anderson, Solicitor of the Office of the Solicitor to the Advocate General. The 2^nd respondent, who is the parent with care, was represented by Mr Maxwell.
3. The issue before the tribunal, whose decision was appealed against to me, was whether under section 44 of the Child Support Act 1991, the Secretary of State had jurisdiction to make a maintenance assessment on the appellant in respect of a child born on 18 June 1998 to the 2^nd respondent. The Secretary of State's entitlement to do so was dependent upon the appellant being habitually resident in the United Kingdom at the relevant time. The Secretary of State in a decision dated 24 June 1999, decided not to make a maintenance assessment. The reason for that was that the appellant was found not to be habitually resident in the UK at the date of the decision. The claimant sought to appeal against that decision. On 15 October 1999 a decision maker looked at the case again but was unable to revise the decision of 24 June 1999 and the appeal against the decision of 24 June 1999 continued.
4. The 2^nd respondent's appeal to the tribunal was successful. The tribunal decided:

"The Respondent was habitually resident in the United Kingdom as at 6/8/98 when the first application for child support maintenance was made and at the date of the decision under appeal."

5. The appellant has appealed against that decision.
6. In making their findings in fact the tribunal found:

"The Respondent is a Dutch national. He came to living in the United Kingdom in 1983 and became habitually resident here. He is married to a British Citizen. He is joint proprietor of the matrimonial home at [……..] Edinburgh. He is cited in the telephone directory at that address and was a regular visitor there following his separation from his wife at the end of 1996 or the beginning of 1997. He cohabited with the respondent from May to October 1997.

The respondent works for a German company but pays income tax and National Insurance in the United Kingdom. The respondent keeps a car in Edinburgh which is road taxed until May 2001."

In their reasons the tribunal also said:

"Certain facts were not disputed. The respondent was a Dutch national who had come to the United Kingdom in 1983. He was married to a British Citizen with whom he had lived at [………] Edinburgh a property of which he and his wife were joint owners. He worked for a German oil industry company working offshore out of Aberdeen. The respondent's evidence was that he left the matrimonial home in early 1997. The appellant stated that the respondent and his wife separated in late 1996. The difference in time was not significant and the precise date of separation was not material. The period during which the separation took place was clear."

The tribunal in their reasons set out the basis upon which they found that the appellant was habitually resident in the United Kingdom at the relevant time.

7. In giving reasons the tribunal said:

"In this case the fact that the respondent had for a long time been habitually resident in the United Kingdom was not in dispute."

(That was also not a matter which was in dispute before me). The tribunal continued:

"He continued in the same employment. The payslip produced by the respondent (U6) [sic V6] appeared to the tribunal to indicate that respondent paid tax and National Insurance in the United Kingdom. It bore all the hallmarks of a typical UK salary statement. It was written in English and showed the respondent's National Insurance number."

8. It was Mrs Scott's submission that the tribunal erred in law by placing reliance upon the claimant paying tax and National Insurance in the United Kingdom. It was her submission that the payment of United Kingdom tax and National Insurance did not entitle them to use these facts to make an inference of habitual residence. The tribunal found that the claimant was working offshore from Aberdeen. He was working on the continental shelf. It is apparent from the relevant tax legislation which was not disputed that whether he was resident habitual or otherwise or not was not material in respect of liability for income tax in the United Kingdom. Mrs Scott referred me to Butterworth's tax service at paragraph 21.41 under sub-heading "2. Taxation of Non-Residents" recorded at page 133 and table 1 of Appendix 2 liability to income tax at page 134. She referred me to paragraph 19 of Schedule E of the Income and Corporation Taxes Act 1988 Part 1 recorded at page 135 and section 830 of the same Act under the sub-heading "Territorial Sea and Designated Areas". She also referred me to Tolley's National Insurance Contributions 2001-02 at pages 140-142 and Booth: Residence, Domicile and UK Taxation Sixth Edition at paragraphs 1.06 recorded at page 144. The propositions she was asserting in the citation of these statutory provisions and commentaries thereon were not disputed as a matter of law by the other parties to the appeal. Mr Brodie accepted that the payment of United Kingdom tax and National Insurance contributions was neutral in respect of the issue of habitual residence. Although on behalf of the Secretary of State, Mr Brodie was taking a standpoint of "staying above the fray" in relation to whether the tribunal erred in law, he accepted that if the tribunal took a view of the law which was inaccurate, and this inaccurate view was part of the basis upon which the decision was made, then as one of the building blocks in making the decision was wrong, that undermined the decision. Mr Maxwell accepted that the payment of United Kingdom tax and National Insurance was neutral on the issue of habitual residence.
9. I consider that as the tribunal can clearly have been seen to have relied upon the payment of United Kingdom tax and National Insurance contributions as being something which inferred habitual residence in the United Kingdom. In view of the statutory provisions and commentaries thereon referred to by Mrs Scott which were not disputed by any of the parties to the appeal, demonstrating that such payment is neutral when applying the test of habitual residence, the tribunal can be held to have erred in law. That error in itself is sufficient to render the decision of the tribunal unsafe.
10. Mrs Scott also referred me to another element of the reasoning made by the tribunal in reaching their decision. The claimant had presented evidence to the tribunal for the purposes of demonstrating that he had become habitually resident in the Netherlands. This evidence was dealt with by the tribunal as follows:

"A letter from a Dutch advocate (U3) enclosed a certified entry from the "Register of Amsterdam" which bore to show that the respondent had been resident in the Netherlands since 20^th November 1998. In Dutch law it was asserted that this was absolute and indisputable proof of one's residence. The respondent had also been summoned to vote in local authority elections to take place on 1.3.99. A letter from the same Dutch advocate (U7) declared that the respondent was resident in the Netherlands and had his permanent address and habitual residence in Amsterdam. A copy of the respondent's Dutch driving licence and identity card were also produced. The letter was dated 3.5.00. Letters dated 21^st September 1998 and 29^th October 1998 were produced (U13 and U15) which indicated that the respondent had been making enquiries about property in Amsterdam. In a written submission (Z1) dated 29 December 2000 but marked "received Edinburgh 25/4/2001" the respondent explained why he had still not purchased a property in Amsterdam.

In considering the evidence presented on behalf of the respondent, the Tribunal in the absence of the respondent had no means of testing its credibility or reliability. The tribunal felt that the evidence for the respondent should be treated with some caution. It was not unreasonable to infer that the respondent wished to avoid liability for the maintenance of his daughter and that he was aware of the advantage from that point of view of not being resident in the United Kingdom. When signing the Maintenance Enquiry form on 14/9/98 the respondent added a note that "due to the nature of my work" – I will shortly no longer be a resident in the UK". He had threatened not to pay a penny (B23) and apart from a few purchases for his daughter had not made any voluntary maintenance payments. He had denied paternity but there was no evidence that he had sought to clarify matters by DNA testing or otherwise. Indeed there was persuasive evidence in the appeal papers that the respondent did not acknowledge the paternity and wished to be involved with his daughter.

Against that background the tribunal considered the letter dated 18 April 2001 (X2) from […………..], a Dutch national which was produced on behalf of the appellant. The tribunal accepted that it might not be too difficult for a Dutch national to register at their local town hall as resident at a particular address particularly where as in this case the address of a relative was used. Having established an address in this way, it also seemed possible that obtaining a driving licence and identity card would not be too difficult.

A letter from the respondent's uncle (CC2) dated 19 December 2000 stated that the respondent lived with him for the time being, paying for board and lodging until he found his own apartment in [………….]. However, the tribunal accepted that on 3/1/99 the respondent told her that he had given his uncle's address in [……………] to get the CSA "off his back".

11. Mrs Scott submitted that whilst the tribunal had gone into some detail as to why the evidence of the appellant relating to the asserted acquisition by him of habitual residence in the Netherlands did not establish such habitual residence there, they had not dealt at all with other material evidence which was indicative of him having given up habitual residence in the United Kingdom. I was referred in that connection to the steps taken by the claimant to remove his name from the electoral roll in Edinburgh. That letter is to be found at page F11 and also the correspondence with the Edinburgh City Council in respect of the local taxation. It was not disputed by either Mr Brodie or Mr Maxwell that the tribunal had failed to deal with this evidence. Mr Brodie, in particular, accepted that there had been consideration of the evidence in respect of the claimant's position in the Netherlands, but not in respect of the material matters relating to residence in Scotland. He also accepted that the matters relating to being on the electoral register and local taxation were relevant to settled intention in respect of maintaining or establishing habitual residence in a particular place. He would not be drawn as to whether the tribunal erred in law by virtue of their failure to deal with that evidence. However, I am satisfied that they did so. Their decision is thus erroneous in law on these grounds also. The evidence was material to the issue to be determined.
12. Mrs Scott also made submissions in relation to the evidence produced by the 2^nd respondent in the form of a letter at page X2, which on reading of the tribunal's statement of facts and reasons clearly influenced their decision. This evidence was produced at the hearing of the tribunal and was concerned with making comments in respect of evidence produced by the appellant in support of his assertion of the acquisition of habitual residence in the Netherlands. The appellant was not present at the hearing before the tribunal and his solicitor, Mrs McLeod was not in the position to obtain instructions upon it. Mrs Scott had initially sought to found a ground of appeal based upon a breach of a convention right under Article 6 of the European Convention of Human Rights, and also an error in law based on unfairness. In the event, however, she departed from this and effectively relied upon a "facts and reasons" basis. This was in relation to the tribunal having not set out adequately how they weighed that evidence. Mr Brodie, in his submission, said that it was a matter for me to determine whether the tribunal erred in not assessing the weight of that document. Mr Maxwell did not specifically address me on this issue. The tribunal appears in my view to have drawn conclusions from this letter which undermined the evidence led by the appellant. However, having done so, they do not in clear terms set out what they made of it. All they said was:

"Against that background the tribunal considered the letter dated 18 April 2001 (X2) from [……….], a Dutch national which was produced on behalf of the appellant. The tribunal accepted that it might not be too difficult for a Dutch national to register at their local town hall as resident at a particular address particularly where as in this case the address of a relative was used. Having established an address in this way, it also seemed possible that obtaining a driving licence and identity card would not be too difficult."

It seems to me that in these circumstances the tribunal erred in law.

13. Mrs Scott also submitted that the tribunal erred in law by virtue of an asserted failure to apply the correct legal test. It was her position that whilst she accepted that the appellant had been habitually resident in the United Kingdom, the question was "had he lost his habitual residence in the United Kingdom?" In her submission it was not necessary to establish whether he had gained habitual residence elsewhere. Whilst I agree that it was not necessary for the claimant to establish habitual residence elsewhere I am not satisfied that the tribunal did misapply the test. It is apparent from the last sentence of the tribunal's statement of reasons that they decided that the appellant had not ceased to be habitually resident in the United Kingdom. Thus the basis of their decision was not that the appellant had not acquired habitual residence elsewhere. It was that he had not demonstrated that he had not lost his habitual residence in the United Kingdom. Her argument further proceeded upon the basis that the tribunal had accepted that there was a presumption of continuous habitual residence based on the ethos of domicile which she said was not the correct approach. However, when the statement is read as a whole, I am not convinced that this was the approach which the tribunal took. Their position was as I have indicated above. In respect of what the law is and how it should be applied, I prefer to deal with this in the giving of directions to a freshly constituted tribunal following upon my decision in paragraph 1.
14. Mr Maxwell's position in the appeal was that the tribunal did not err in law. Whilst as indicated he accepted the payment of tax and national insurance was neutral he submitted that the error of the tribunal in not treating those facts are neutral should have been dealt with by supersession rather than requiring a Commissioner to deal with the matter. However, that argument does not have any substance in that the appellant by statute had a right of appeal to the Commissioner and has chosen to exercise it. If the tribunal have made an error in law in regard to the manner in which they treated the payment of tax and National Insurance contributions in the United Kingdom then it was for the Commissioner to deal with that in the appeal to him. Mr Maxwell referred me to a letter from the appellant's solicitor at page F3 which indicated that a reconciliation between the appellant and his wife had not taken place but could not be ruled out. He also referred me to a sequence of events prepared by the 2^nd respondent at page I3-4 which was presented to the tribunal which in his view indicated the fact of continued habitual residence. It was his position that the tribunal were entitled to reach the conclusion which they did on the basis of that evidence. I fully accept that both the evidence at F3 and I3-4 are material evidence in the case. However, having identified other errors in law on the part of the tribunal in the treatment of evidence before them, I cannot conclude that the mere fact that there is evidence which was presented to the tribunal, in respect of which submissions could be made to support the view of the case asserted by the 2^nd respondent, that this in itself means that the tribunal did not err in law.
15. Having determined that the tribunal's decision errs in law, I set it aside. The question then arises as to how I should dispose of the appeal. Mr Maxwell submitted that I should determine the case for myself. He pointed out that the decision appealed against to the Commissioner was a decision of the second tribunal to have considered the claimant's appeal and that the matter should not be referred to a third tribunal. It was his position that this would be unjust. However, I am satisfied that it would not be possible for me to determine the appeal on the evidence which was before the tribunal. I do not consider that it is satisfactory for an appellate jurisdiction to receive evidence and reach a conclusion thereon on matters of fact. Accordingly, I consider that the appropriate course is to remit the case to a freshly constituted tribunal with directions.
16. The issue before the freshly constituted tribunal has already been outlined and it is whether the appellant was habitually resident in the United Kingdom at the date of the decision appealed against to the tribunal namely 24 June 1999. There was an acceptance by the appellant that he had been habitually resident in the United Kingdom. This assertion was that he was no longer habitually resident. Mrs Scott was critical of paragraph 9 of R(CS)5/96 being applied by the tribunal whose decision is appealed against to me. It is a reported decision of the Commissioner and thus is one which has had the general agreement of Commissioners prior to reporting it. I propose to follow it. It is thus an authority which should be applied by the tribunal when directing themselves has in law for the purposes of determining of the factual question before the tribunal. They require to have regard to all the circumstances of the case. These circumstances would include whether there was a settled purpose to continue maintaining habitual residence in the United Kingdom. One of the factors relied upon by the appellant in relation to that matter was the separation of himself and his wife. That is certainly a factor which would fall to be taken into account and the tribunal would require to consider evidence led on that issue and weigh it along with the other evidence both supportive and competing. It was Mrs Scott's position that the onus is on the party who asserts that there is jurisdiction. In this case she submitted that is the second respondent. It was her submission that she could in doing so rely on the existing state of affairs, namely the appellant was habitually resident in the United Kingdom. It was her submission that the evidential burden may at that point shift to the appellant but that the onus is not something which remains with him throughout. Mr Brodie for the Secretary of State accepted that the onus was not on the appellant to prove that he was not habitually resident. Mr Maxwell, on the other hand, submitted that the onus was on the appellant to satisfy the tribunal that habitual residence had ceased. In my view it is clear that where there has been an existing state of affairs, namely that the appellant was habitually resident in the United Kingdom, there is an evidential burden on the appellant to demonstrate that this has ceased. Indeed that is what the appellant sought to do when responding to the maintenance enquiry. It was the assertion that he was not habitually resident in the United Kingdom which led to the decision made by the decision maker. However, I do instruct the fresh tribunal that it is not necessary for them to be satisfied that the appellant has acquired habitual residence elsewhere, though it follows that if they were so satisfied he would have ceased to be habitually resident in the United Kingdom. The tribunal in respect of what constitutes habitual residence should note and follow what was said in the case of Dickson v Dickson 1990 SCLR page 692 in the opinion of the court given by the Lord President at page 703. This is of importance if they are considering a submission and evidence from the appellant that he had required habitual residence in the Netherlands. There, it was said

"It is enough to say that in our opinion a habitual residence is one which is being enjoyed voluntary for the time being and with the settled intention that it should continue for some time. The concept is the same for all practical purposes as that of ordinary residence as described by Lord Scarman in R. v Barnet London Borough Council, ex parte Shah at pp. 342 and 343. A person can, we think, have only one habitual residence at any one time …"

It is thus possible for someone to reside in more than one place, but there can only be one habitual residence.

I should perhaps note that I was referred to the case of Nessa v the Chief Adjudication Officer 1999 1WLR 1937 and in particular to the speech of Lord Slynn at page 1942. There he said:

"With the guidance of these cases it seems to me plain that as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period. There may be cases where for the purposes of making particular legislation effective (as for founding jurisdiction), it is necessary that a person should be habitually or ordinarily resident in some state at any one time. In other words, there cannot be a gap. Whether that is so does not have to be decided here."

It is to be noted that no view is expressed as to whether there can be a gap. The view was expressed there in the context of making particular legislation effective. Here no such consideration arises as it does not matter in determining if habitual residence has ceased in the United Kingdom whether a new habitual residence has been acquired or whether there is a gap caused by that cessation and no new habitual residence having been acquired. In either case if the settled intention to remain in the United Kingdom is no longer there then jurisdiction cannot be founded. Whilst I accept that it is not necessary for the appellant to demonstrate and prove that he is habitually resident elsewhere such as the Netherlands, there is for reasons set out above an evidential burden to put it no higher than that on the appellant to show that he has ceased to be habitually resident in the United Kingdom. That appears to have been accepted by Mrs Scott and there was no dispute that the appellant had been habitually resident in the United Kingdom. The fresh tribunal will note that the payment of UK income tax and national insurance contributions is neutral in determining whether the claimant was habitually resident in the United Kingdom.

17. The appeal succeeds.

(Signed)

D J MAY QC

Commissioner

Date: 3 October 2002