UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CIS_2482_2005 (11 November 2005)


CIS/2482/2005

1. I grant leave to appeal. In accordance with the provisions of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 I treat this application as an appeal. The claimant and the Secretary of State have each agreed to this course of action. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Fox Court (London) Tribunal made on 10^th November 2004 under reference U/42/242/2004/05979. I substitute my own decision. This is to the effect that the reduced benefit direction is set aside and there is to be no consequent reduction in income support entitlement in relation to the claim made on or about 17th February and/or 3^rd March 2004. I remit to the Secretary of State questions relating to the calculation and payment of any arrears.
2. I held an oral hearing of this application on 8^th November 2005. The claimant attended in person and was represented by Mr Batten of counsel. The Secretary of State was represented by Mr Wilson from the office of the Solicitor to the Department for Work and Pensions. I am grateful to them for their assistance and for their helpful written submissions. The Secretary of State opposed both the application and the appeal and relied on the decision of the tribunal.
3. The full procedural history of this matter, together with the relevant provisions in the statutes and regulations, has been set out at length in the tribunal's full statement. I do not propose to reproduce that except insofar as is necessary to explain my own decision. Because of the basis of my decision it is not necessary to deal with the procedural arguments put forward by the parties, and I do not propose to do so. Many of the letters written by the claimant in respect of other aspects of her benefit position are rude in tone and show an unreasonable level of anger and frustration but are not relevant to the issue before me, except in one respect to which I refer below.
4. The claimant was born on 2^nd March 1972. Her son was born on 12^th July 2001. At the relevant time the claimant was living with her son as a lone parent. She had been working part time until 13^th February 2004. After stopping this work she claimed income support. On the claim form there is a question: "Do you wish to opt out of your application for child maintenance?" She ticked the box marked "Yes" and wrote: "I don't wish to pursue this. Frightened of retribution".
5. On 17^th March 2004 the claimant was visited and interviewed by one of the Secretary of State's officials. According to the (non-contemporaneous) note made by the official, she told him that the relationship with her son's father had changed after the birth of the baby and was tumultuous. "He would lose his temper but violence was not an issue". The father visited sporadically after the birth but no payments were made and the claimant had not had any contact with the father since January 2002. The claimant:

"fears that if the CSA approached him [the father] he could turn violent, after no contact for two and a half years bad feelings, she fears & is scared of possible reprisals. Others that have had bad experiences with the CSA make her fearful … She is worried about the mental and emotional well-being of [her son]. [Filling in the relevant form] would leave her trapped if he came round as she has a mortgage on the flat and it would be difficult for her to move".

6. On pages 26 and 27 there is a note made by the official of his own assessment of what the clamant had said, and this was referred to at the hearing before, but I do not think that it has any real significance at this stage.
7. On 30^th March 2004 the claimant sent in a detailed letter to the Secretary of State. In this she said, amongst other matters:

"… after the birth of my son, his father started to display symptoms that were not congenial to his past behaviour and what one would expect of a new father. He became withdrawn and his visits became less frequent and when he did visit it would conclude in arguments … His behaviour became more and more erratic and after a particular torrid incident at my home I decided that it was best he not come back as his behaviour was unpredictable and I was more concerned for the well-being of my son and me. I felt that if we continued in this vain I would develop post-natal depression or him possibly becoming violent."

8. She stated that she had learnt that her son's father was subsequently displaying signs of a nervous breakdown, that other members of his family had suffered depression, but that she had heard nothing more from him or his family since January 2002. She feared that a latter to him from the Child Support Agency would provoke suicidal thoughts or behaviour in him "or he may behave violently towards me". If this happened she would have to sell her house and move, which would cause particular problems because of her circumstances. She also referred to other cases where women had been placed in danger or fathers had committed suicide as a result of intervention by the Agency.
9. On 8^th June 2004 the Secretary of State made the Reduced Benefit Direction as from that date, and on the same day the claimant appealed to the tribunal against the decision of the Secretary of State. In a letter reproduced on pages 38 to 41 of the file, and submitted in support of her appeal (but wrongly dated 4^th April 2004), also intemperate in tone, she repeated some of her previous points but added:

"As I outlined in my last letter, once my son was born arguments became more and more frequent and the last incident was very frightening and traumatic for both my son and me. In a heated argument at my home, my child's father flung me against the wall and pushed his hand across my chest and neck so that I was unable to move. He hurled abusive words at me and once finished he stormed out of the house slamming the door behind him causing my hallway mirror to shatter. At this point my son who was a few years old was hysterical and I was left shaken. This was the torrid incident outlined in my letter, for reasons of dignity and intrusion pf my civil liberty and privacy I did not delve into the nature of the incident. For obvious reasons this is an occurrence which I would rather forget and one that I find most humiliating and sensitive to share with strangers … if I allow the DSS to contact the CSA it will have devastating effects and … my child will be at risk …".

10. The claimant also referred to a person she had known who was "beaten to near death and her mother murdered by her father at the fact that he could no longer take the pressure of CSA payments". The father had subsequently committed suicide. Because of such incidents she took the view that the actions of other people were unpredictable.
11. The tribunal finally considered the matter on 10^th November 2004 and confirmed the decision of the Secretary of State. At the hearing it was also pointed out on behalf of the claimant that the victims of domestic violence tend to suffer in silence; and the fact that she was not "battered" did not take her outside the statutory protection.
12. In the Decision Notice (page 76) the key relevant statement was that "The fears which she expressed … during the hearing and in the appeal papers … were inflated out of all proportion and would, if they were genuinely entertained be no more than fanciful". However, the tribunal did not accept that such fears were genuinely entertained. This was because the account of the "violent assault" was not referred to in the original appeal papers and was inconsistent with previous evidence.
13. On 1^st July 2005 the chairman of the tribunal refused to grant the claimant for leave to appeal to the Social Security Commissioner against the decision of the tribunal. The claimant renewed her application before the Commissioner and on 30^th August 2005 I directed that there be an oral hearing of the application.
14. The key provision for the purposes of my decision is section 46(3) of the Child Support Act 1991 as amended. Subject to the satisfaction of certain other conditions:

46(3) … the Secretary of State shall consider whether, having regard to any reasons given by the [claimant], there are reasonable grounds for believing that [if he were to take action to recover child support maintenance from the non resident parent] … there would be a risk of [the claimant], or of any children living with her, suffering harm or undue distress as a result of his taking such action …

15. If the Secretary of State [or the tribunal or the Commissioner] considers that there are such reasonable grounds he shall take no further such action (section 46(4)). If the Secretary of State [or the tribunal or the Commissioner] considers there are no such reasonable grounds he may, except in prescribed circumstances, make a reduced benefit direction (section 46(5)).
16. It must be noted that the nature here of the risk of suffering harm is different from the nature of the risk of suffering undue distress. Whether there are reasonable ground for believing that there would be a risk of harm is a wholly objective test, and whether the claimant believes there would be a risk of harm is not necessarily relevant. However, distress can only be experienced subjectively. Then, the question is not whether there are reasonable grounds to justify the distress, but whether there are reasonable grounds for the Secretary of State to believe that the claimant would suffer undue distress. The meaning of "undue distress" has been discussed by the late Mr Commissioner Sanders in paragraph 10 of CCS/103711995. However, whether the distress is undue must be judged on the basis of the facts as the claimant actually believes them to be. The best evidence of this (and in most cases the only available evidence) is that of the claimant). Certainly a tribunal is entitled to disbelieve a claimant who states that she would suffer what would amount to undue distress. The question, however, is whether there are reasonable grounds (for example, credible evidence) for believing that there would be a risk of undue distress. It seems to me that a tribunal must explain very carefully why it does not believe the claimant's evidence, if that is the case. Thus the real question in this appeal is why the tribunal did not believe the claimant.
17. In its full statement, the tribunal accepted that the claimant had told the official that she and her son's father had a tumultuous relationship in that he would often lose his temper but that there had not been violence between them. It then referred to the letter of 30^th March and the "torrid" incident and noted that the claimant had not asserted that it had involved "violence of any kind". However, I observe that this is too flimsy a basis on which to find that "torrid" does not mean violent, that in a subsequent letter the claimant explained what had happened and why she had not goner into details, and that in any event undue distress need not arise from a fear of actual violence.
18. The tribunal found that the claimant was deliberately exaggerating her fears. The first reason for so finding was because the fears that she was at risk of being murdered, badly assaulted, losing her child or her home "were inflated out of all proportion" and "in some respects "fanciful". However, the claimant had not suggested that she herself was in fear of being murdered – but that this was an example of the kind of thing that had happened to others in her situation. There is also, it seems to me, a failure of logic here. In many ways the more irrational a claimant's fears, and the more disproportionate they are, the greater the risk of undue distress. To then use the irrationality and disproportionate nature of the fears as a basis for not believing that they are genuinely held undermines the whole nature of the provision. The tribunal does not appear to have given any though to the claimant's tendency to, to put it bluntly, overreact to everything, as demonstrated in her lengthy and varied correspondence.
19. The next reason given by the tribunal was the self-contradictory nature of the claimant's evidence and that it "showed marked signs of becoming more inflated at each stage of the decision making process". However, it seems to me that this must be seen in the context of, from the claimant's point of view, the decision making authorities becoming more obdurate at each stage. There is also a difficulty with what any particular person means by violence. It is quite possible that what is a technical assault will not be seen by a non-lawyer as being "violent" if there is no wound or actual bodily harm. The tribunal also rejected the explanation that the claimant "as an abused woman, felt shamed and humiliated by the incident and was originally reticent about revealing the full details because of a concern for her dignity and privacy". I see no basis for the rejection of this evidence, and no specific reason is given. It surely cannot be doubted that what the claimant describes here is a widely occurring phenomenon. Such evidence should not be rejected without the most cogent of reasons.
20. In summary, this appeal succeeds because of a failure of the tribunal's reasoning process. I see no point in referring the matter for a fresh tribunal hearing, which would only go over exactly the same ground. In the absence of persuasive evidence to the contrary, and in view of the evidence and explanations given by the claimant and the above analysis, I find that there are reasonable grounds for believing that if the Secretary of State were to treat the claimant as having applied for a maintenance calculation and take action to recover such maintenance, there would be a risk of the claimant suffering undue distress as a result.

H. Levenson

Commissioner

11^th November 2005