UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCS_1418_2003 (14 November 2003)

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is as follows. It is given under section 24(2) and (3)(d) of the Child Support Act 1991.
2. 1. The decision of the Eastbourne appeal tribunal under references C/45/176/1999/00385 and 01136, held on 23 October 2002, is wrong in law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a rehearing. The tribunal must follow my directions given below. Otherwise, it must deal with all the issues that are raised by the appeal and, subject to the tribunal's discretion under section 20(7)(a) of the Child Support Act 1991, any other issues that merit consideration. If my power to direct a rehearing on some issues only is in doubt, the authority for it is the decision of the Court of Appeal in Aparau v Iceland Frozen Foods plc [2000] 1 All England Law Reports 228.

The appeal to the Commissioner

5. This case concerns the child support maintenance payable with respect to Elsa and Eleanor.
6. In the terminology of the child support legislation, the appellant is their absent parent under the assessment, and the second respondent is their parent with care under the assessment. I shall refer to them in those terms.
7. The tribunal had before it two appeals against the same decision of the Secretary of State. One appeal was by the absent parent and the other by the parent with care. The absent parent has appealed to the Commissioner against the decision in his case, but as I made clear when granting leave, the two decisions of the tribunal are inseparable and they are both covered by my grant of leave and my decision on this appeal.

Preliminary points

8. The parent with care has asked for an oral hearing. I have considered her request and the reason she has given (page 564). It is clear that she wants to discuss matters that are either outside my jurisdiction or more appropriate to a rehearing before an appeal tribunal rather than before a Commissioner who deals only with issues of law. In those circumstances, I refuse her request.
9. The parent with care has also written (pages 565 and 566) with some passion about the way that her case has been handled and the financial consequences of that for her. Her comments (especially point 2) suggest that as a Commissioner I am in some way connected with the Secretary of State and that I should take the history outlined by her into account in making decisions in this case, even when deciding whether to grant leave to appeal to the absent parent. Just to make it clear, Commissioners are not in any way connected with the Secretary of State. We are independent of the Secretary of State and exercise a judicial function. We are required to apply the law and cannot depart from it merely because of particular dealings that the parent with care has had with the Secretary of State or because of the financial consequences that our decisions will have for her.
10. The absent parent has responded to the Secretary of State's observations on the appeal. His comments (pages 573 to 578) say that 'the Secretary of State supports every single aspect of my appeal'. That is correct in the sense that the Secretary of State supports the appeal by submitting that the tribunal went wrong in law. However, the Secretary of State does not support the appeal in the sense of accepting that the absent parent is entitled to succeed on the merits of the points that he makes.
11. Specifically, the absent parent has invited me to make directions as to his housing costs instead of directing a rehearing before an appeal tribunal (575 and 576). I have done that on some issues, although my directions are not to the absent parent's advantage. However, that approach is not appropriate for all the issues that arise. One issue of housing costs requires investigation before a fact-finding tribunal.

The issues

12. This case raises four issues.
13. The first issue relates to what the Secretary of State persists in referring to as the 'closure' of the case. Commissioners have commented regularly on the use of this and similar language that is used by the Secretary of State and now, under the housing benefit jurisdiction, by local authorities. Only this week, I wrote in CH/1210/2003, paragraph 6:

'There is no authority for the use of the word in the legislation. It almost inevitably causes confusion and uncertainty. It does not contribute to clarity either in thought or in the application of the legislation. It would be very much better if decisions were expressed in terms of the relevant legislation. Commissioners have been making this point for years. But to no avail. I do not expect my comments to fare any better.'

This issue arises in this way. The parent with care applied for a child support maintenance assessment, but before it could be made a district judge made by consent a maintenance order for the benefit of the children under the top-up provisions in section 8 of the Child Support Act 1991. The absent parent argues that that order deprived the Child Support Agency of jurisdiction to make an assessment. The appeal tribunal decided that it did not.

14. The other issues all relate to housing costs. The absent parent argues that the following are all eligible:

•    £60,000 that the absent parent alleges is a debt owed by him to his father. There has been, but is no longer, a charge on the property.

•    £42,500 that the absent parent raised in order to pay the parent with care a lump sum on divorce. The money was raised by mortgage on the former matrimonial home that was in his sole name. The parent with care's only formal legal connection with the home was a caution that she registered against it.

•    £7,500 legal fees relating to the payment of the lump sum and perhaps other divorce costs.

The appeal tribunal decided none of these was an eligible housing costs.

How the tribunal went wrong in law?

15. The tribunal went wrong in law, because it misread the evidence. It was confused, understandably, by the way that the evidence was presented in the papers. There was a statement by the absent parent's father. The tribunal read this as a draft statement only and it is clear from its reasoning that it attached significance to that fact. It clearly believed, and said, that there was no evidence from the absent parent's father. That was wrong. That mistake must have affected how the tribunal analysed the evidence as to the alleged £60,000 debt. And it may have affected it to such an extent that it would have come to a different conclusion on this issue if it had understood the evidence.
16. So, the tribunal went wrong in law. Its decision must be set aside.

Is a rehearing necessary?

17. Yes, but not on all issues. This case goes back a number of years. I would prefer to substitute a decision for that of the appeal tribunal rather than remit it for rehearing. However, I cannot do that for all the issues. Specifically, the circumstances surrounding the alleged £60,000 debt are so murky that an oral rehearing before a fact-finding tribunal is appropriate. However, I am able (and do) direct the tribunal on the other three issues that are raised on appeal to the Commissioner.

The closure issue

18. This issue is governed by section 4(10)(a) of the Child Support Act 1991. This provides that an application cannot be 'made' if there is a maintenance order in force. In the circumstances of this case, that provision does not bar the making of a child support maintenance assessment. There are two reasons:

•    First, the application was 'made' before the district judge made the consent order. It had, it is true, not been decided, but that is a different stage.

•    Second, the order for paying maintenance for the children was expressly made under a provision of the Child Support Act that is compatible with, indeed presupposes, a child support maintenance assessment. Despite the wide definition of a maintenance order in section 8(11), it cannot be that an order that is compatible with and presupposes an assessment operates as a bar to one being made.

19. I direct the tribunal that there was jurisdiction to make the assessment.

The £42,500 issue

20. This is governed by paragraph 4(1)(a) of Schedule 3 to the Child Support Act 1991. This provides that a housing cost is eligible if it was 'necessarily incurred for the purpose of purchasing, renting or otherwise securing possession of the home'.
21. There is no evidence of the basis on which the parties agreed to, or the district judge confirmed, the sum of £42,500. The court had power to transfer the whole, or part, of the absent parent's interest in the property to the parent with care regardless of the fact that it was in his sole name. So, it is possible to surmise that, at least in part, the sum stood in the place of the transfer of an interest to her. However, there is no evidence. All that the evidence shows is that there was a debt that arose from the court order and that it was discharged by means of money raised on mortgage. It may be that the absent parent could only have raised the money by selling or mortgaging his home. But that does not mean that it was raised for the purpose of securing possession of the home within the meaning of paragraph 4(1)(a). I read those words as requiring that the possession should be in doubt or at risk before the expenditure is incurred. Without that doubt or risk, there is no basis for it being 'secured'. The debt arose separately from the home. The money was raised to discharge it. It could, let us suppose, only be raised by being secured on the property. On that basis, the most that can be said is that the absent parent could only avoid selling his home by incurring the mortgage costs. But merely avoiding having to sell his home is not the same thing as securing possession of it. His possession is only at risk by virtue of the funding arrangement that he has chosen to pursue. It is not sufficient that the possession should be at risk as a result of the very transaction that gives rise to the cost the eligibility of which is in issue.
22. Another way of looking at this issue, with the same result, is that the decision to raise the money by mortgage rather than by sale was one of choice. And that element of choice means that the cost was not 'necessarily' incurred.
23. I direct the tribunal that this sum is not an eligible housing cost.

The £7,500 issue

24. This sum is related either to the costs of the divorce proceedings generally or specifically to the costs of raising the money to comply with the consent divorce order. Either way, it is related to the £42,500 loan and falls with it.
25. I direct the tribunal that this sum is not an eligible housing cost.

Summary

26. I allow the appeal and direct a rehearing, subject to my directions above.

Signed on original

Edward Jacobs Commissioner 14 November 2003