UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CCS_2483_2004 (24 February 2005)

DECISIONS OF THE CHILD SUPPORT COMMISSIONER
1. My decisions are given under section 24(2) and (3)(a) of the Child Support Act 1991. They are:

I SET ASIDE the decision of the Birmingham appeal tribunal, held on 24 February 2004 under reference U/04/024/2003/08980, because it is wrong in law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that the Secretary of State's decision to cancel the departure direction is confirmed under regulation 32F(b) of the Child Support Departure Direction and Consequential Amendments Regulations 1996 in conjunction with regulation 32D(2)(b).

The appeals to the Commissioner

2. This case concerns the cancellation by the Secretary of State of a departure direction from the formula assessment of child support maintenance in respect of Jenna. The tribunal allowed the appeal and reinstated the departure direction. The tribunal's decision was the subject of appeals to the Commissioner by both Jenna's father (CCS/2083/2004) and the Secretary of State (CCS/2483/2004).
3. In the terms of the child support legislation, Jenna's father is her absent parent and her mother is her parent with care. I shall refer to them in those terms.

History and background

4. The parent with care applied for a departure direction on various grounds. I do not know what decision was made on the application, but both parents appealed against it to an appeal tribunal. Before the appeal was heard, the parents came to an agreement that there should be a departure direction based on the contribution by the absent parent's partner to his housing costs. The result of that agreement was given effect to by an appeal tribunal on 3 April 2003. I call this the first tribunal. There then followed a sequence of decisions. I cannot be certain, even with the help of the Secretary of State's representative, as to the precise reasons why all those decisions were made. However, their effect was this. The departure direction was implemented from 28 March 2003. However, it remained effective only until 12 June 2003. This was because on 13 June 2003 the absent parent's partner ceased work. As the departure direction was based solely on her contribution to the absent parent's housing costs, the basis of the departure direction ceased. The absent parent's partner was only out of work for a short period, but the date when she again became employed was not known at the time when these decisions were made – I accept the absent parent's explanation on this matter, which I sought with explaining the significance of the information.
5. The parent with care appealed against the decision to cancel the departure direction.
6. This appeal was heard by an appeal tribunal on 24 February 2004 by a different chairman from the one who sat on the first tribunal. I call this the second tribunal. The second tribunal directed that the departure direction be reinstated. I need to quote only two paragraphs of the chairman's reasoning:

'Section 9(2) of the Child Support Act 1991 provides that "Nothing in this Act shall be taken to prevent any person from entering into a maintenance agreement." In the present appeal, that agreement was given effect to as part of the judicial appeal process. The absent parent has treated that agreement and the decision with contempt by inducing the tribunal on 3 April to give effect to an agreement from which the absent parent sought to resile only two months later. By so doing the tribunal on 3 April were unable to make findings on further departure grounds such as the absent parent's life style and diversion of income. By so doing this tribunal cannot re-open these issues and the date of any departure direction decision would postdate the date of the original application. [The] regulations are silent on the effect of such conduct but it would be reasonable where a party to an agreement given effect by a tribunal decision seeks to withdraw from that agreement that the whole matter be placed before the same tribunal as a reference under Section 28D(1)(b) of the Child Support Act in view of the fact that the original issue concerned a departure application particularly where the grounds of appeal specifically raise grounds for a fresh departure application.

'Alternatively the matter could have been brought before the same tribunal as a liberty to apply situation where, by the time that the chairman had framed reasons the basis of the decision had already been undermined, it is highly unsatisfactory that this appeal and the related appeal have not been listed before the chairman who heard the matter on 3 April 2003. The preparation and submission of the papers by the Child Support Agency have been deficient in several respects. Tribunal decisions, record and proceedings and statements of reasons should be produced in all appeals to which they are relevant.'

Those paragraphs contain the chairman's reasoning and convey a flavour of her annoyance, also expressed elsewhere, with both the Secretary of State and the absent parent.

What has gone wrong in law in this case

7. The trouble began with the first tribunal. The decision of that tribunal is not under appeal before me, but I need to say something about it.
8. That tribunal implemented an agreement between the parties. On an appeal (although not on a referral), section 20(7)(a) of the Child Support Act 1991 allows a tribunal to limit its consideration to issues raised by the appeal. If the parties raise only one issue, the tribunal need not consider any other issue. There can, therefore, be no objection to the tribunal accepting the concurring submissions of the parties that there should be a departure direction on one head of an application only. But …
9. For a start, the tribunal had to act within the limits of the powers available to it in law. One of the limitations on those powers was that it only had power to consider circumstances obtaining at the time of the decision under appeal: section 20(7)(b) of the Child Support Act 1991. It decided that the effective date of its decision should be the date of the hearing, 3 April 2003. (In fact, the Secretary of State implemented the tribunal's decision with an effective date of 28 March 2003. I assume that was the first day of the maintenance period in which the hearing took place.) I do not know how the tribunal could have identified that effective date consistently with the Child Support Departure Direction and Consequential Amendments Regulations 1996 and the limitation in section 20(7)(b), but it is not within my power on this appeal to correct it.
10. Moreover, as I have said already, the tribunal's only power in respect of the agreement between the parties was to accept it as a concession relevant to the issues arising for decision. The chairman of the second tribunal described the agreement of the parties as a maintenance agreement which had been given effect by the decision of the first tribunal. Let me take that comment in stages. It may be correct to describe what the parties agreed as a maintenance agreement. Personally, I do not interpret it in that way, but I will assume for the sake of argument that it is properly so called. Even accepting that description, it did not allow the tribunal to give effect to it by a judicial process outside the statutory process of formula assessments and departure directions. Tribunals are statutory bodies. They have jurisdiction only to the extent that it is conferred by law and they must act in accordance with the powers given to them. A tribunal has no power simply to record an agreement of the parties. That is permissible for a court exercising a family jurisdiction, but not for an appeal tribunal.
11. The chairman of the second tribunal also referred to section 9 of the Child Support Act 1991. That deals with maintenance agreements. It provides for their existence outside the child support scheme and their effect on the applicability of that scheme. It does not give a tribunal any jurisdiction over those agreements. In particular, it does not authorise maintenance agreements to be given some overriding effect within the scheme by being incorporated in a tribunal's decision. Quite the reverse. Section 9(4) provides:

'Where any agreement contains a provision which purports to restrict the right of any person to apply for a maintenance assessment, that provision shall be void.'

The parties' agreement did not purport to have that effect, but if the decision of the first tribunal had the effect attributed to it by the second tribunal, it would effectively achieve a similar result by preventing the further operation of the statutory scheme.

12. The chairman of the second tribunal also suggested that the case should have been referred to a tribunal under section 28D(1)(b) of the Child Support Act 1991. That allows the Secretary of State to refer an application for a departure direction to an appeal tribunal to be determined. The existence of an application that has not been decided is a condition precedent to the exercise of the power conferred by the section. Once the application has been determined, it can no longer be referred. The condition precedent to a referral no longer obtains.
13. Finally, the chairman of the second tribunal suggested that the case should have been referred to the tribunal under the liberty to apply power. That is a useful power which allows a tribunal to deal with issues arising from the implementation of its decision. The change in the formula assessment and its effect on the departure direction given under the tribunal's decision affected the tribunal's decision, but that effect did not arise from its implementation. Subsequent decisions were separate from the tribunal's decision and carry their own right of appeal to an appeal tribunal. They are outside the scope of this power.
14. In short, the bases on which the second tribunal sought to maintain the continuing effect of the first tribunal's decision were misplaced. Its decision cannot stand.
15. What the second tribunal should have done was to apply the child support legislation in order to determine whether the Secretary of State was correct to cancel the departure direction. I now turn to that issue.

The cancellation issue

16. The power to cancel is conferred by regulation 32F for the Child Support Departure Direction and Consequential Amendments Regulations 1996:

'The Secretary of State may cancel a departure direction where-

(a) regulation 32A(1) applies and he is satisfied that it was not appropriate to have given it; or

(b) section 32D applies and he is satisfied that it is no longer appropriate for it to continue to have effect.'

17. The Secretary of State's submission to the tribunal says that the Secretary of State acted under regulation 32F(a). That power is connected to regulation 32A(1), which deals with revisions of decisions. The Secretary of State's representative accepts that there was no power to revise in this case. He argues, though, that the cancellation could only be effective under regulation 32F(b). This is connected to regulation 32D, which deals with supersession of decisions. It authorises the supersession of all decisions, including those made by appeal tribunals. One ground of supersession is that there has been a change of circumstances since the decision was made: regulation 32D(2)(b). I am grateful to the Secretary of State's representative for translating the computer printout of decisions that were made, which shows that it was based on a change of circumstances. The cancellation of the departure direction was authorised under regulation 32F(b) in conjunction with regulation 32D(2)(b), subject to one issue of interpretation.
18. Assume that the change of circumstances occurred after the decision of the first tribunal but before its decision was implemented. (This is one possible analysis of the record of decisions made in this case. I cannot be sure of which decisions were made in which terms on which dates, even with the help of the Secretary of State's representative.) On this assumption, the issue is this. When a tribunal gives a departure direction on an appeal, is the operative decision that of the appeal tribunal or that of the Secretary of State implementing the tribunal's decision?
19. The Secretary of State submits that the operative decision on a departure direction given on an appeal is made by the appeal tribunal. I accept that submission. My reasons are these. The child support legislation provides for both formula assessments and departure directions. They are separate. That is clear from the original decision-making structure in 1996, when departure direction were introduced. At that time, the formula assessments were made by child support officers and departure direction were given in the name of the Secretary of State. Child support officers were seen as officers whose function was to determine child support liability and who operated independently of the Secretary of State. In this respect, they were comparable to social security adjudication officers. The departure direction took the form of a direction from the Secretary of State to the child support officer to depart from the formula assessment in the way specified in the direction. The child support officer then made a further formula assessment that took account of the departure direction; that assessment determined the amount of child support maintenance payable by the absent parent. The separate decision-making and separate processes show that the two schemes were separate.
20. In 1999, the decision-making in child support was altered so that all decisions were made in the name of the Secretary of State. However, that did not alter the substance of the departure direction scheme as created in 1996. It remains a separate scheme from the formula assessment scheme.
21. When an appeal tribunal hears an appeal relating to a departure direction, it stands in the position of the Secretary of State's decision-maker who made the decision under appeal. The tribunal can give any decision that the decision-maker could have given at the date of the decision. If it decides to give a departure direction, it must specify the basis on which it is made, the amount and the effective date. If those matters are not specified, the decision is not complete. If they are, it is. And if it is, there is nothing for the Secretary of State's decision-maker to do under the departure direction scheme. All that is required is for a decision-maker to alter the formula assessment in compliance with the departure direction. On the assumption that I made in paragraph 18, the decision that implemented the departure direction was not a departure direction decision but a formula assessment decision. As the departure direction was given by the appeal tribunal, the cessation of work by the absent parent's was a change of circumstances that occurred after that date for the purposes of the power to supersede.

Other issues

22. There are some other minor issues that I should mention.
23. First, I said in paragraph 4 that I did not explain to the absent parent the significance of when it became clear that his partner was going to resume work. The significance was this. If this had been known before the cancellation of the departure direction, the decision-maker could have reimposed the departure direction from the date when she returned to work. However, as this date was not known at the time, the decision-maker could not take it into account. And the appeal tribunal was prevented by section 20(7)(b) of the Child Support Act 1991 from taking account of circumstances that changed after the decision under appeal was made. This also deals with a point made by the parent with care: the decision-maker did not act in mistake or ignorance of fact at the time when the decision under appeal was made, because the date when the partner returned to work was not then known.
24. Second, the absent parent has asked about a decision that was made in September 2003. The unsatisfactory answer to his question is this. I cannot explain it, as I do not have the necessary information to do so. However, I can say that it is not the decision that was under appeal to the appeal tribunal and that it was, therefore, outside both the tribunal's jurisdiction and mine.
25. The parent with care has made a number of points in her final observations. I consider that they are all covered by my reasoning above.

Conclusion

26. I can understand the concern of the chairman of the second tribunal that the judicial process of tribunals should be respected by both the Secretary of State and the absent parent. However, the child support legislation expressly confers powers that allow decisions to be changed to take account of new circumstances. The respect properly due to any decision, whether of the Secretary of State, an appeal tribunal or a Commissioner, can only be determined in the context of the powers conferred. What the chairman sought to do was outside those powers.
27. I set aside the tribunal's decision and substitute the decision that it should have given, which was to confirm the decision of the Secretary of State.

Signed on original on 24 February 2005

Edward Jacobs Commissioner