CCS/61/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.		This is an appeal by the Secretary of State, with the leave of a legally qualified panel member, against a decision of the appeal tribunal sitting at Leeds (“the appeal tribunal”) on 7th November 2000.  This is a child support matter and the respondents to the appeal are the parents of the relevant child.  The first respondent (“the mother”) is the mother and the person with care.  The second respondent (“the father”) is the father and non-resident parent.

2.		For the reasons I am about give, I allow the appeal and set aside the decision of the appeal tribunal.  In accordance with section 24(3)(a) of the Child Support Act 1991, I give decision which I consider should have been given by the appeal tribunal.

3.		The Secretary of State had received an application from the mother for a departure direction.  The application was based on a number of grounds.  Namely, in respect of assets capable of producing income or higher income, diversion of income, a life-style inconsistent with declared income, unreasonably high housing costs and a partner’s contribution to housing costs.  The Secretary of State referred that application to the appeal tribunal as he was empowered to do by section 28D(1)(b) of the Child Support Act 1991.

4.		My decision is that the mother’s application should be, and is hereby, dismissed.

5.		The mother’s application was made on the appropriate form and was dated 12th April 1998.  That date is probably erroneous because the form was received by the Child Support Agency on 19th April 1999.  The form asks an applicant various questions and it is the answers to those questions which form the basis of the application.  In answer to the question “Does the other parent have other types of assets or have control over them?”  The mother answered “Shares/Pensions”.  She was, however, unable to place any value on such shares or pensions.  In answer to a question about why she thought that the father’s life-style had become significantly inconsistent with his declared income the mother replied that he had a mobile phone as well as a BT telephone number, that he dined out on a regular basis and that he went out drinking at lunch times and in the evenings.  Asked “How do you think this life-style is supported?” the mother answered with questions of her own.  In effect, she raised the possibility that he might either be doing work that he did not declare or that he might be supported by his current partner.  In other words, the mother did not really know.  She did suggest two jobs that she thought he might have done – one of these being a labouring job.  She said that she was sure the father had diverted money to either his current partner, with whom he appears to be living, or his sister.  When asked to supply details she replied “£10,000 + shares.  Pay Visas.  Bank loans, new TV, new fridge freezer, new CD player, new cooker, shower.  Mobile Phone!!!! digital TV?”.  Asked why she thought that the father’s housing costs were unreasonably high she replied “two bedroom flat where both [the father] and his partner reside.  One bed is enough as [the qualifying child] does not stay over… why does [the father] need this?”.

6.		Quite frankly, the information supplied in that form fell far short of what the Secretary of State needed to properly consider the application.  I have little doubt that the mother harboured genuine and deeply felt suspicions that the father had more money than he said he had.  However, she had nothing concrete to go on and hoped that by making the application the father’s circumstances would be investigated and that something to his detriment and her advantage would emerge.  On 25th March 1999, she had written a letter in which she said this.
“With reference to your assessment of the above case no. I would strongly like to appeal to your suggestion that [the father] should not contribute to his sons expenses, when he can afford to run a mobile phone (telephone no. …) have digital TV, new CD player, new washer, new microwave etc.  He also has surrendered endowment policies to the value of approx. £7000.00 and received £2500.00 settlement on the property we sold.

He has not contributed to [his son’s] expenses since March 1988 when he refused to even pay the mortgage to keep a roof over his sons’ head.  I do not understand where this assessment can be fair when [the father] is out everyday at the local Public houses (The Swan, The Alexander, and The Brewery Tap all in …) and endeavours to continue smoking quite heavily.  I feel that the assessment is totally unfair.

		…

Where can an assessment of this nature be FAIR!  He is so poverty stricken that he can afford to continue life as a single man.  I would like to appeal on the grounds that [the father] is living beyond his means.  Has he also got a relationship with a person that supports him or has he been working I suggest that it could be both?”

7.		Later, in about July 1999, the mother, in response to a number of questions which she had been asked by the Child Support Agency, supplied the figures which appear at page 17 of the papers.  I do not wish to appear critical of her efforts but those figures, which are expressly headed “approximate”, do not appear to me to take matters very much further.

8.		According to the case papers, very little further seems to have happened until the reference came before the appeal tribunal on 3rd November 2000.  The appeal tribunal consisted of a legally qualified panel member sitting alone as chairman.  None of the parties, and in particular the mother, were present or were represented at that hearing.  In my judgment, the evidence before the appeal tribunal was wholly insufficient to enable that body to make any sensible decision other than to rule that the mother had failed to make out a case for any sort of departure direction.  Indeed, she had not even begun to make out a case.  The position and functions of the appeal tribunal must be appreciated.  It is an independent judicial body whose function it is to decide appeals and references on the basis of the evidence before it.  It is not an investigative body in the sense that it is empowered to carry out active investigations.  Such powers to direct investigations which it does possess are extremely limited.  It is for the parties to put before the tribunal the evidence on which they wish to rely.  In particular, where someone makes an application, it is for that person to adduce evidence which supports the application and which demonstrates that he or she is entitled to the relief sought.  This is so even where the application is one that has been referred to a tribunal by the Secretary of State.  

9.		The chairman did not, as in my judgment she should have, simply dismiss the mother’s application.  Instead, she went ahead and made number of departure directions in a wholly inappropriate form.  Those directions have been subjected to detailed criticism by the Secretary of State’s representative in his submissions dated 30th December 2002.  It is unnecessary for me to consider those criticisms in detail.  It is quite clear, first and as already indicated, that the proper evidential basis for those directions was absent.  Secondly, it is clear that they were couched in inappropriate terms.  I therefore allow the appeal and set aside the decision of the appeal tribunal.

10.		Permission to appeal was granted to the Secretary of State by a legally qualified panel member.  In granting leave, which he did on 11th December 2002, that panel member recorded that there had been no response to letters which had been sent to the parties, by which I think was meant the mother and the father, on 23rd October 2002, inviting representations within one calendar month of that date.  When the matter was first referred to me, I made directions which gave the mother and the father an opportunity to make observations.  No response has been received from either of them.  That being so, I see little point in remitting the matter for rehearing or adjourning for further evidence or anything of that sort.  In my judgment the evidence before the appeal tribunal was deficient.  That body should have dealt with the Secretary of State’s reference by dismissing the mother’s application.  I now do so.

	(Signed)	J.P. Powell
		Commissioner

	(Date)	16th June 2003