UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCS_1018_2002 (21 February 2003)

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. In so far as the decision of the appeal tribunal dealt with the application for a revision, my decision is as follows. My decision is that the decision of the Bournemouth appeal tribunal, held under reference U/03/185/2001/00763 on 21^st December 2001 and 25^th January 2002, is not wrong in law.

The appeals to the Commissioner

2. In the terminology of the child support legislation, the appellant is an absent parent and the second respondent is a parent with care. I shall refer to them in those terms.
3. Although the tribunal dealt with this as a single case, it actually involved two appeals against separate decisions by the Secretary of State. They concerned two attempts to challenge the decision of a child support appeal tribunal 12^th June 1998 whereby the tribunal made a departure direction under two heads against the absent parent.
4. This case comes before me on appeal to a Commissioner against the decisions of the appeal tribunal brought with my leave, granted after an oral hearing of the application on 13^th September 2002. It concerns the refusal of an application for a revision of the child support appeal tribunal's decision.
5. The absent parent was represented at the oral hearing of the application for leave by Mr C Sutton, a solicitor. He has also made written submissions on the appeal, supplemented by written observations by Professor N Grief of counsel. The parent with care did not attend the oral hearing and has not been represented at any stage. She has made written observations on the appeal. The Secretary of State was represented at the oral hearing by Mr L Scoon of the Office of the Solicitor to the Department for Work and Pensions. Written observations were made by a lay officer of the Adjudication and Constitutional Issues Branch of the Department for Work and Pensions.

The history of the case

6. I do not need to refer to the history or background of this case. Those matters are set out in paragraphs 8 to 12 of my decision in CCS/4069/2002.

The revision challenges

7. As the case was presented to me at the oral hearing, the issue on the revision application was whether an application had been made in time. This is governed by regulation 32B of the Child Support Departure Direction and Consequential Amendments Regulations 1996. Given the date of the child support appeal tribunal's decision, the application would only be in time if the relevant date that fixes the time within which the application must be made is that of the Court of Appeal.
8. The observations of the absent parent's solicitor on the appeal have been supplemented by detailed arguments from Mr N Grief of counsel. Mr Grief points out that the absent parent did make an unsuccessful application for a revision on 15^th October 1998. He is out of time to appeal against that decision, but Mr Grief argues that this can be overcome by the same human rights arguments as apply to regulation 32B. What are those arguments?

The human rights arguments

9. At the oral hearing of the application for leave, the absent parent's solicitor made a very general argument based on unfairness. He argued that time had to run from the date of the decision of the Court of Appeal in order to avoid an unfairness to the absent parent in having to run a revision application and an appeal simultaneously. The appeal tribunal rejected that argument. So do I. The revision procedure and the appeal to the Commissioner deal with different aspects of the case. The former deals essentially with issues of fact, the latter with issues of law. It is not necessary for the two to be run simultaneously. It is sufficient for them to be initiated within the time limits. Once initiated, the Secretary of State would no doubt take the practical course of waiting for the decision on the appeal before dealing with the application for revision.
10. Mr Grief's argument is more detailed. I cannot do it justice in summary. It is set out in full on pages 864 to 869. All I will do is give an indication of its basic structure. The argument begins by setting out the general principles governing the application of the Article 6(1) Convention right and its scope. I accept those arguments. It then concedes that the time limits for appeal and revision are not in themselves unreasonable, but that there are nonetheless compelling reasons for allowing the absent parent a late appeal or application for revision outside those time limits. Those reasons are that the claimant was an unrepresented layman who was trying to negotiate a complex adjudication system.
11. I deal with the case on the basis that the absent parent was an uninformed and unrepresented person who was attempting to challenge a decision through a complex adjudication system. I do, though, note that he had legal advice and assistance when he went to the Court of Appeal, but still delayed applying for a revision for the best part of a year even after the court had dismissed his appeal.
12. I was not persuaded by Mr Grief's arguments when they were put before me. However, out of respect for their detail I decided to give the other parties a chance to comment on them. Having read those comments, I reject Mr Grief's arguments for the reasons that originally troubled me. I have not relied on the arguments of the other parties and have, therefore, not given the absent parent a chance to comment further.
13. I reject Mr Grief's argument for these reasons.
14. First, the child support adjudication procedures are complex, but it is not necessary to understand those complexities in order to challenge a decision. Legal formalities and technicalities are not allowed to defeat rights. A simple letter challenging a decision is interpreted according to its substance, not according to its form. That is true of applications to the Child Support Agency, appeals to an appeal tribunal, and applications and appeals to Commissioners. A phone call to any of those organisations will elicit advice on what to do and where help can be obtained. Their leaflets contain that information. Even without that advice, there are sources of help and advice that are widely known in the community, with or without cost. So, although the procedures are indeed complex, the way to initiate them is not. The standard that was required of the absent parent was easily attainable. Everyday in my work as a Commissioner, I deal with cases in which challenges have been made to a decision of the Secretary of State or of an appeal tribunal by those who are inarticulate and inexperienced. Some act effectively on their own; others seek help from CABx, law centres or similar organisations.
15. Second, Mr Grief's arguments would be more persuasive if this case concerned a first challenged to a decision. But it does not. It is both permissible and appropriate to take account of the fact that the attempt to revise is part of an ongoing challenge or series of challenges to the decision of a child support appeal tribunal that was itself a challenge to the decision of a child support officer. This was not a freestanding attempt to make a first challenge to a decision on a new issue. Although formally a separate proceedings, it is in substance and reality just another step in the same proceedings as the other attempts to challenge the child support appeal tribunal's decision to give a departure direction. The absent parent's Convention right must be evaluated and applied in that context.
16. Third, the child support adjudication procedures allow potentially endless challenges to decisions made in the Child Support Agency. It would not be proper for a Commissioner to seek to subvert the procedures allowed for by the legislation. However, I am entitled to take account of the advantages of there being a point of finality and an appropriate degree of certainty in the assessment of maintenance for a child. Those are legitimate aims in human rights law. And the number and range of forms in which a decision may be challenged provides more than a proportionate response to the risk that a mistake may be made in coming to a decision. In short, the law is already generous in the scope it allows to an aggrieved party to challenge a decision. An extension of those rights is not justified in human rights terms. Also, the human rights of the other party and of the children must be considered. Their interests justify retaining the limitations expressed in the legislation.

Conclusion

17. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 21st February 2003