UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCS_4452_2002 (20 June 2003)

 


DECISION OF THE CHILD SUPPORT COMMISSIONER

1. The absent parent's appeal to the Commissioner is allowed to a limited extent. The decision of the Whittington House appeal tribunal dated 15 February 2002 is wrong in law and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 13 below (Child Support Act 1991, section 24(3)(d)).
2. This is one of two linked appeals to do with the maintenance assessments for the two children (Antony, born 5 November 1983, and Nicola, born 3 October 1985) of the parents concerned. I shall refer to the parents from now on as the father and the mother. The present appeal stems from the decision made on 10 January 2001, which was a revision of an earlier decision made on 17 August 2000. That decision had been made following an application for supersession and imposed a maintenance assessment of £127.53 per week with effect from 6 May 2000. The revision was carried out on the ground of official error, in that mistakes had been made in the calculation on 17 August 2000. The revised maintenance assessment fixed the father's liability at £114.55 per week with effect from 6 May 2000. The other appeal to the Commissioner, under file number CCS/4451/2002, deals with the maintenance assessments in effect from 18 October 1997 to 11 September 1999, when the assessment went down to nil because the father had ceased work.
3. There needs to be reference to my decision in CCS/4451/2002 for the present decision to be understood. But as it turns out I can deal with this case relatively briefly as there were fundamental errors made by the appeal tribunal which I am afraid that I had not spotted at the time of the oral hearing before me.
4. The father appealed against the decision of 10 January 2001. He raised a number of points, some of which overlapped with points raised on his appeal against the decision on the earlier assessments. The Secretary of State's written submission to the appeal tribunal dealt with all those points specifically as they affected the assessment in force from 6 May 2000. Those points included the issue of the day to day care of Antony while he was at the residential school under a placement by the local authority. That was the main issue in CCS/4451/2002 and is extensively discussed there. The Secretary of State's submission also pointed out that the father's net income as at the relevant week (2 May 2000 to 8 May 2000) had been calculated incorrectly. Instead of 37.5% of the total of the premiums he paid to a personal pension plan being deducted from his earnings, 50% had been deducted. The lower deduction would leave his net income higher, tending to make the maintenance assessment higher. I note here that the calculation as from 6 May 2000 was based on the father's earnings from a new job which he had recently obtained. He appeared to be a member of a new personal pension scheme, to which his new employer also contributed. He was still making interest payments on the mortgage taken out in 1998, although the amount had altered because of the abolition of MIRAS.
5. The appeal tribunal dismissed the father's appeal. There was a separate decision notice issued for this appeal (see page 125A of the papers in CCS/4452/2002), but it was in exactly the same terms as the decision notice for the other appeal. Thus it failed to state any conclusion on the issues specifically related to the maintenance assessment in effect from 6 May 2000.
6. On the father's request for a statement of reasons a combined statement was produced covering both appeals. The statement copied in the Commissioner's papers (pages 126 to 128 of CCS/4452/2002 and pages 141 to 143 of CCS/4451/2002) carries only the tribunal reference number for the other appeal. Pages 126 to 128 of CCS/4452/2002 appears not to be a final version, as it is not signed and there are some handwritten correction. However, there is another form, with text identical to that at pages 141 to 143 of CCS/4451/2002, which carries the tribunal reference number for both appeals. I am satisfied that the chairman's intention was to issue that text as the statement of reasons in both appeals. Unfortunately, the result again is that the statement failed to deal with any of the issues specifically related to the maintenance assessment in effect from 6 May 2000. It did deal with day to day care of Antony. But it failed to say whether the appeal tribunal agree with the Secretary of State that there was nothing in most of the points raised by the father and it failed to deal with the error in the calculation of the maintenance assessment which had been put forward by the Secretary of State.
7. The father now appeals against that decision with the leave of a district chairman. The written submission dated 16 December 2002 on behalf of the Secretary of State was that the appeal tribunal had not erred in law, without differentiating the issues from those relevant to the other appeal. In his reply the father requested an oral hearing in private of his appeal. I granted that request. The father attended. The mother did not feel able to attend. The Secretary of State was represented by Mr Leo Scoon of the Office of the Solicitor to the Department for Work and Pensions.
8. I regret that at the hearing I had not spotted the defects in the statement of reasons in the present case and neither had anyone else. I have decided not to seek submissions on those points because I have decided to send the other appeal back to a new appeal tribunal for rehearing. This appeal can also go back to the same new appeal tribunal for rehearing and all parties will have the opportunity to make submissions and produce evidence then on the specific issues arising on the maintenance assessment in effect from 6 May 2000.
9. The appeal tribunal plainly went wrong in law by failing to give adequate reasons for its decision and for failing to deal with all the issues arising on the appeal in the present case. In particular, it failed to deal with the issue put to it by the Secretary of State.
10. As explained in my decision in CCS/4452/2002, where a personal pension plan has been obtained and retained for the purpose of discharging a mortgage on the home and also for the purpose of securing payment of a pension, 25% of the premiums for which the person is liable are allowed as a housing cost (Child Support (Maintenance Assessments and Special Cases) Regulations 1992, Schedule 3, paragraph 3(5B)). There was scant evidence in the papers that that was the father's purpose in joining the scheme, which seems to be a group scheme of the new employer. However, since the mortgage had originally been said to be a pension mortgage, there would seem to be little ground to challenge any assertion by the father that part of his purpose was to build up a capital sum which could be used towards paying off the mortgage eventually. There would then be little doubt that there should be a deduction of a proportion of the father's premiums from his earnings, but at the rate of 37.5% of the total, rather than 50% (MASC Regulations, Schedule 1, paragraph 1(3)(c)).
11. There is though a further complication. The calculation of the father's housing costs on page A12 of the Secretary of State's submission to the appeal tribunal (page 14) shows that he was also allowed as a housing cost £210.16 per month for payments to an ISA (an individual savings account). It was not explained how that amount was calculated, when the evidence presented in support (the valuation statement as at 31 May 2000 at page G2 (page 62)) merely showed that £7000 had been invested at some date between 30 November 1999 and 5 April 2000. The amount allowed might have been calculated by using the percentage stated in paragraph 3(5A)(b) of Schedule 3 to the MASC Regulations. But paragraph 3(5A) only applies to plans within the meaning of regulation 4 of the Personal Equity Plans Regulations 1989. ISAs are different from PEPs, although they took over when PEPs were phased out. Schedule 3 to the MASC Regulations has not been updated to take account of the change, so that paragraph 3(5A) cannot apply to ISAs. I do not think that a unit trust ISA of the kind taken out by the father can be an insurance contract within paragraph 3(5). It must therefore be very doubtful whether any housing cost at all should properly have been allowed for the payments to the ISA.
12. For the reason given in paragraph 9 above, the decision of the appeal tribunal was wrong in law. I set it aside. The father's appeal against the decision dated 10 January 2001 is referred to a differently constituted appeal tribunal for determination in accordance with the following directions.
13. There is to be a complete rehearing of his appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 15 February 2002. The hearing should be conducted by the same appeal tribunal as rehears the appeal the subject of CCS/4451/2002 and on the same date. So far as the issue of day to day care for Antony is concerned, the new appeal tribunal must follow the principles of law set out and the directions given in CCS/4451/2002. So far as the calculation of the father's net income, including the calculation of housing costs, is concerned, the new appeal tribunal must take into account the matters mentioned in paragraphs 10 and 11 above, subject to any further submissions made by any party. I need give no further directions of law beyond the reminder that the new appeal tribunal should deal with all the points raised in the appeal that remain in dispute.

(Signed) J Mesher

Commissioner

Date: 20 June 2003