UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCS_4760_2002 (24 February 2003)

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is as follows. It is given under section 24(2) and (3)(a) of the Child Support Act 1991.
2. 1. The decision of the Coventry appeal tribunal under reference U/04/033/2002/00483, held on 25^th June 2002, is wrong in law.
3. 2. I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
4. 3. My decision is that the absent parent's appeal to the appeal tribunal is not misconceived. However, having considered the merits of that appeal, I confirm the decision of the Secretary of State and dismiss the appeal to the appeal tribunal.

The appeal to the Commissioner

5. In the terminology of the child support legislation, the appellant is the absent parent, and the second respondent is the parent with care. I shall refer to them in those terms.
6. The case comes before me on appeal to a Commissioner against the decision of the appeal tribunal brought with my leave. The Secretary of State does not support the appeal. The parent with care has not responded to the invitation to make observations on the appeal.

The issue

7. The issue in this case is whether the absent parent's appeal to an appeal tribunal was misconceived in the sense that it 'is … obviously unsustainable and has no prospect of success'. See the definition in regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The appeal

8. The absent parent submitted an appeal to an appeal tribunal. The terms of the appeal complained that a sum of £3,316.04 was unreasonable as a result of delay caused by maladministration.
9. An appeal tribunal has no jurisdiction over the payment of arrears owing under a maintenance assessment. However, it has jurisdiction to determine whether those arrears are properly due. If they are not, there are no arrears. To that extent, and to that extent, only the tribunal has power to deal with arrears. In so far as the appeal related to the collection of arrears, it was therefore outside the tribunal's jurisdiction.
10. Further, the appeal complained of maladministration. That is also outside the tribunal's jurisdiction. The issue for the tribunal is whether the Secretary of State has correctly applied the law. So long as that has been done, the standard of the service provided by the Child Support Agency is no concern of the tribunal's. That is not to say that it is not important. It is important, but it has to be dealt with by the Independent Case Examiner or the Parliamentary Commissioner for Administration (the Ombudsman). In so far as the appeal related to the standard of administration, it was therefore outside the tribunal's jurisdiction.
11. However, whether an appeal is misconceived must be determined by its substance and not solely by the words in which it is expressed. Parents are not expected to know the details of the limits on the powers and jurisdiction of an appeal tribunal. An appeal may expressed as a complaint about administration or about the collection of arrears. But underlying this may be a criticism of the application of the law. In so far as there was such an issue underlying the absent parent's appeal, it was within the tribunal's jurisdiction.

What the tribunal did

12. The appeal was lodged with the Child Support Agency and forwarded to the appeal tribunal to consider whether it was misconceived. It came before an appeal tribunal, which decided that it was misconceived on the ground that:

'Arrears are outside the jurisdiction of the Tribunal.'

13. However, that decision was set aside on procedural grounds by the regional chairman. The case then came before a different appeal tribunal. As originally recorded, this tribunal decided that the appeal raised an issue as to whether the correct effective date had been used, which might have affected the amount of the arrears. There was then an intervention by a district chairman, who appears to have thought that the tribunal had no power to make that decision. The chairman was persuaded to change the decision to a simple declaration that the appeal was misconceived. That is how the decision was presented to me on the application for leave to appeal.
14. Was the alteration to the decision valid? The tribunal had no power to alter its decision once it had been promulgated by issuing the decision notice. So, it could only have been done under the power to correct accidental errors in the way the decision was recorded: see regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. I have doubts about whether there was a proper and effective use of that power in this case. See the decision of Mr Commissioner Goodman in CM/264/1993, paragraph 17.
15. However, I accepted the alteration as valid, and granted leave on the ground that it was arguable that the tribunal went wrong in law by failing to interpret the letter of appeal as a challenge to the effective date of the decision. I went on to warn the parties that if I allowed the appeal, I would give my own decision rather than direct a rehearing. The Secretary of State has made observations with this in mind.

Did the tribunal go wrong in law?

16. Yes, it did. At least, it did as the decision stands after the intervention of the district chairman. The tribunal was entitled to look beyond the terms of the appeal to the substance of the complaint. Underlying it was an issue that was within the tribunal's jurisdiction, a complaint about the correctness of the effective date, as the tribunal originally identified. The tribunal should have decided that the appeal was not misconceived.

What decision should I substitute?

17. As the tribunal went wrong in law, I must set aside its decision. I substitute my own decision that the appeal is not misconceived. However, I can go further. On the basis that the appeal raised an issue about the correctness of the effective date, I can deal with that issue. The Secretary of State has explained that the effective date used on the supersession to which the appeal ultimately related was the terminal date on which one of the absent parent's children ceased to be a qualifying child for the purposes of the child support scheme. I accept the Secretary of State's explanation at pages 49 and 50. On the basis of that explanation, I dismiss the absent parent's appeal to the appeal tribunal.

The absent parent's observations on the appeal

18. I have read the absent parent's observations on the appeal. He still sees the case, quite understandably, as about the collection of arrears. The matters he refers to are, however, as I have explained, not within the tribunal's jurisdiction or mine. They are matters that relate to the quality of administration, which is something separate and apart from the correctness in law of the decision that was made. Those complaints can be dealt with, but not through the appeal process.

Signed on original

Edward Jacobs Commissioner 24th February 2003