UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CCS_1495_2005 (12 May 2006)

CCS 1495 2005

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I allow the appeal.
2. The appellant and non-resident father of the two children for whom child maintenance support is sought (and whom I call A) is appealing with my permission against the decision of the Leeds appeal tribunal on 04 02 2005 under reference U 0 01 007 2004 01949. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision (Social Security Act 1998, section 14(8) and (9).
3. I held an oral hearing of this appeal at Doncaster County Court on 27 03 2005. The Secretary of State and first respondent was represented by Mr Tim Bewley of counsel, instructed by the Solicitor to the Department for Work and Pensions. The resident parent and mother of the two children (and whom I call C) was present. A failed to attend and was not represented. As A did not indicate that he would not be attending, I adjourned the hearing for a short while in case he was late. It started half an hour after the listed time. I am satisfied that A had proper notice of the hearing and a proper opportunity to attend or be represented.
4. DIRECTIONS FOR THE NEW HEARING

A The new hearing is to be an oral hearing.

B The tribunal is to be a differently constituted tribunal from those previously involved in the appeal.

C All parties are reminded that the task of the tribunal is to decide the application made by the second respondent in this appeal for a variation of the child support maintenance payable by the appellant from the operative date of 23 07 2003. There are two valid grounds for the tribunal to consider: diversion of income and lifestyle inconsistent with income.

D The directions made by previous chairmen for production of evidence to the tribunal remain in force. All parties are warned that the tribunal may draw adverse inferences from a failure by that party to produce evidence in response to such a direction.

E If any party wishes the tribunal to consider any further documents or submissions in connection with this appeal, then the party is to send them to the appeal tribunal within one month of the issue of this decision.

F If any party wishes to produce witness evidence to the tribunal from any witness, then within one month of issue of this decision the party must notify the tribunal of the name and address of the witness, and must provide a full witness statement of the evidence to be given by the witness together with a statement signed by the witness that the full contents of the statement are true. The party shall also produce the witness at the hearing for cross-examination unless both other parties indicate that they do not challenge the statement.

These directions are subject to any directions made subsequently by a district chairman.

REASONS FOR THE DECISION

The tribunal decision

5. C applied for a variation of the nil child support maintenance assessment made against A on the grounds of diversion of income (under regulation 19 of the Child Support (Variation) Regulations 2000) and lifestyle inconsistent with income (under regulation 20 of those regulations). The Secretary of State referred the application to the tribunal for decision.
6. As is common in such cases, the tribunal on 29 09 2004 gave detailed directions to the parties, and in particular to A, about the production of information. That direction included a standard warning that failure to comply with the direction would enable a tribunal to draw adverse inferences against any party in default. As the directions had not been complied with at the time limit set, a tribunal chairman gave an extension to the time limit for compliance but then directed that the case be listed.
7. The tribunal heard the appeal with A, C and a representative of the Secretary of State present. The tribunal rightly decided that it should consider the application for a variation on the grounds of diversion of income before that of lifestyle inconsistent with income. It decided that a variation should be made on those grounds. It then quantified the diversion of income at £359.15 a week. It went on to find the amount payable as child support maintenance to be £89.79 a week. It then decided that a variation of £60 a week would be appropriate. It finally decided that there should be no apportionment of the child support maintenance on the grounds of shared care.

The grounds of appeal

8. A submitted a 20 paragraph statement of grounds of appeal, together with a considerable number of documents of which most were additional evidence. I granted permission to appeal generally save for one issue: the alleged bias of the tribunal chairman.
9. A stated in his grounds of appeal "I do not accept the statement of reasons for decision and record of proceedings correctly reflect what was discussed. Its totally biased to [C] and no account has been made to what I was saying. I will be making a formal complaint to the Regional Chairman on the conduct of the chairman." Unfortunately, such generalised accusations of bias are all too common from losing parties in cases such as this. And the record of proceedings makes it clear that the comments of all parties were recorded, as does the statement of reasons. So the accusation of "no account" being taken was clearly factually incorrect. I directed that A produce specific details of his allegations and that I would not consider this generalised criticism without those details. A has given me no relevant details. And he failed to appear, or be represented, at the oral hearing to make good his accusation. I therefore record that I regard this accusation as totally without substance.
10. In A's absence, I went through his lengthy list of grounds of appeal with both the other parties. Some are generalised statements such as that about bias. Others are issues of fact or attempts to bring in new evidence. They are not grounds for saying that the tribunal erred in law. The grounds of appeal also overlap with each other. Having considered all the grounds of appeal raised by A, I deal only with the grounds of appeal directly relevant to this decision and its reference back to a tribunal. To avoid doubt, I formally reject any ground of appeal on which I do not otherwise comment in this decision. The issues of fact raised will be for the new tribunal.
11. I must also deal with other issues of law. The Secretary of State supported A's appeal, but not on the grounds A gave. C also dealt with some of the issues of law raised by A in her submissions to me at the hearing.

Correction of errors

12. The tribunal chairman was aware of an error in the original decision when he made the statement of reasons. The statement is extremely thorough, consisting of 8 pages of closely typed wording. The explanation is at the end of page 7. It shows that the tribunal itself recognised that it had accidentally confused the reduced rate proportions in its figures with the basic rate figures, taking into account the various relevant children. It corrected its decision by reducing the weekly amount that it found to be payable from £89.79 (its original decision) to £53.92. In its original decision, it decided that the weekly amount that it was just and equitable to direct A to pay was £60. No change was made to the final figure of £60 applied by the tribunal when it corrected the weekly amount payable.
13. If it is accepted that the tribunal had power under regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to make this correction, then the result of the correction is that tribunal used the "just and equitable" power to increase the amount of child support maintenance. Mr Bewley for the Secretary of State contended that the tribunal had exceeded its powers under regulation 56 in correcting the figures. He may or may not be right about that. I do not need to decide it. What clearly is wrong in both fact and law is that the correction leaves the final decision and statement of reasons with an internal inconsistency and with a final decision that goes beyond its powers.
14. The power to make a variation is in section 28F of the Child Support Act 1991 read with regulation 7 of the Child Support (Variations) (Modification of Statutory Provisions) Regulations 2000 (SI 2000 No 3173). Further effect is given to section 28F by regulation 21 of the Child Support (Variation) Regulations 2000. While it is arguable that these provisions give the Secretary of State and a tribunal power to reduce the actual weekly amount of child support maintenance to be directed as a result of a variation – and I do not take that argument further here – it is in my view beyond question that Mr Bewley is right that there is no power to increase the amount of child support maintenance above the amount identified as justified by one or more grounds for variation. But that is how the corrected decision of the tribunal leaves matters. The result is that the decision of the tribunal must be wrong in law in its final, corrected, result and I must set it aside. And, as I discussed with the parties at the oral hearing, this means that the matter must go back to a tribunal to consider the relevant issues again. However, I must deal with other points raised by the parties that will be relevant on the rehearing.

Use of court documents

15. A complained that the tribunal relied on a court document produced by C from the family court proceedings between them. This was in breach of Rule 4.23 of the Family Proceedings Rules 1991. I raised this point for submissions at the oral hearing. I did so as the legal position of such documents in proceedings seemed unclear after the decisions of Commissioners in CCS 4438 2001 and CCS 3749 2003.
16. When I raised the point at the oral hearing, C produced the formal authority of the relevant Count Court judge to use the documents. With the agreement of both C and Mr Bewley, I record how this was obtained. C asked the local County Court office about the need for permission to use documents from her case before the local judge for her child support claim. A court officer invited her to write to them with full details of the case and of the documents she wanted to use, giving the reason why she needed to apply. This was of course that she wished to produce the documents for her child support hearing. She did so.
17. In reply she received the following letter from a member of the Family Section of the County Court:

"Case No: […]

Case Name : […]

"Your letter dated … has been put before the District Judge who has made the following comments:

Permission for the Petitioner to use Respondents Form E in evidence at any hearing connected with her application to the child support agency and any tribunal relating thereto."

18. I commend that procedure to anyone else seeking to produce court documents to an appeal tribunal or Child Support Commissioner in support of a child support application. The judge's ruling removes any doubt about the issue, and also any substance to A's various objections about the production of those documents in this case. It also removes the problems discussed in the Commissioners' decisions.

The power of the tribunal on a reference

19. Mr Bewley argued strongly that the tribunal had gone beyond its powers in another way when it made the mistaken decision that the weekly amount of child support maintenance arising from the variation was £89.79, then reduced to £53.92. Building on a written submission from the Secretary of State, he contended that the tribunal had power only to decide if there were grounds for a variation, not what that variation should be.
20. The law relating to variations was introduced into the Child Support Act 1990 by section 5 of the Child Support, Pensions and Social Security Act 2000 as the current sections 28A to 28J of the 1991 Act. An application must, on receipt, be screened by the Secretary of State to ensure that it is not only duly made but also that there are grounds for the application being made: section 28B. If the application passes this screening then section 28D provides:

(1) where an application for a variation has not failed, the Secretary of State shall, in accordance with the relevant provisions of, or made under, this Act –

(a) either agree or not a variation, and make a decision under section 11 or 12(1); or

(b) refer the application to an appeal tribunal for the tribunal to determine what variation, if any, is to be made.

…

(3) In dealing with an application for a variation which has been referred to it under subsection (1)(b), an appeal tribunal shall have the same powers, and be subject to the same duties, as would the Secretary of State if he were dealing with the application.

If the application for a variation is made while a maintenance calculation is in force, then section 28G applies. This allows regulations to be made modifying the terms of sections 28A to F for such cases. The modifications were made in the Child Support (Variations)(Modifications of Statutory Provisions) Regulations 2000 (SI 2000 No 3173). These include modifications to each of sections 28A to 28G.

21. Was there a maintenance calculation in force? The decision of the Secretary of State in this case is stated to be that A was liable to pay C £0.00 in respect of the qualifying children from the effective date 23.07.2003. Section 54 of the 1991 Act defines "maintenance calculation" as meaning a calculation of maintenance made under the Act. Section 11 defines how the maintenance calculation is to be made. The relevant subsections of section 11 in this case provide:

"(2) The Secretary of State shall (unless he decides not to make a maintenance calculation in response to the calculation, or makes a decision under section 12) determine the application by making a decision under this section about whether any child support maintenance is payable and, if so, how much."

…

(6) The amount of child support maintenance to be fixed by a maintenance calculation shall be determined in accordance with Part I of Schedule 1 unless an application for a variation has been made and agreed.

(7) If the Secretary of State has agreed to a variation, the amount of child support maintenance to be fixed shall be determined on the basis he determines under section 28F(4)."

It is clear from that that there has been a maintenance calculation in this case, whether the decision of the Secretary of State is a calculation that £0.00 is payable or whether it is, using the words of section 11(2), a calculation that no child support maintenance is payable. It follows that it is the modified version of sections 28A to 28J that apply.

22. The modified version of section 28A(1) provides (with the modifications in italics):

"(1) Where a maintenance calculation other than an interim maintenance calculation is in force, the person with care or the non-resident parent or (where the maintenance calculation was made following an application under section 7) either of them may apply to the Secretary of State for the rules by which the calculation is made to be varied in accordance with this Act.

23. The modified version of section 28F(4) referred to in section 11(7) (again with modifications in italics) is:

"(4) where the Secretary of State agrees to a variation, he shall –

(a) determine the basis on which the amount of child support maintenance is to be calculated in response to the application [ … ]

(b) revise or supersede a decision under section 16 or 17 respectively on that basis."

24. The only modification to section 28D as set out above is that the reference to sections 11 and 12 are replaced by references to sections 16 and 17. The texts of section 16 and section 17 of the Act were substituted by the Social Security Act 1998, section 40, to replicate the provisions in that Act for revising and superseding decisions of the Secretary of State on social security benefit matters. Section 16 deals with revisions, and section 17 with supersessions. There has been, as Mr Bewley accepted in argument, a considerable amount of litigation about the way in which the supersession provisions of the 1998 Act work for social security purposes. In my view that same thinking must apply to child support decisions given the source of the provisions under which revision and supersession decisions are now to be made for child support purposes. I cannot see any clear argument that the procedure to be applied for child support cases by the Secretary of State in making a revision or a supersession is different in nature, though not in terminology, from that for social security decisions.
25. The one difference in the procedure of the Secretary of State since the 1998 Act (though not before it) is the power of the Secretary of State to refer a decision on an application for a variation to a tribunal under section 28D(1).
26. On the basis of the approach for which the Secretary of State contends, a revision or supersession is the fifth stage of a five stage process, and an application under section 28A must first go through four prior stages:

Stage 1 is the decision that an application is "duly made" under section 28A.

Stage 2 is the screening stage, or preliminary consideration, under section 28B. Once the Secretary of State has decided that an application is not to be rejected at stage 2, he must choose the approach to stages 3 to 5.

Stage 3 is the decision whether a variation is agreed.

Stage 4 is the decision about the basis of the variation. In practice, this will interact with stage 3.

Stage 5 is the decision making the revision or supersession.

Under the modified version of section 28D(1)(a) stages 3 to 5 appear to be taken together by the Secretary of State. Under the modified version of section 28D(1)(b) the Secretary of State may "refer the application to an appeal tribunal for the tribunal to determine what variation, if any, is to be made". However, as Mr Bewley accepted, that language is not so readily applied to a decision to revise or supersede as it is to make an original variation decision. This is because there have to be two decisions in parallel about variation: first, are there grounds to make a substantive variation of the underlying decision; second, are there procedural grounds to make a revision or supersession?

27. In the view of the Secretary of State, section 28(1)(b) refers stages 3 and 4 to the tribunal, but not stage 5. That is, the tribunal must decide if it agrees to a variation. If it agrees to a variation, it must determine the basis on which the amount is to be calculated. But it does not have the power to make the third and operative decision to revise or supersede the main calculation. That must be referred back to the Secretary of State. Mr Bewley accepted that there is no clear provision mandating that reference back. However, he argued that this must be the consequence of the procedural structure. The reference back is not at the option of the tribunal in the same way as the tribunal may remit part of an appeal to the Secretary of State under section 20(8) of the 1991 Act.
28. Mr Bewley reinforced the written submission of the Secretary of State on this point. He drew attention to the need to take account of the wording in the modified form of section 28A. The application referred to the tribunal is an application to the Secretary of State "for the rules by which the calculation is made to be varied". Put another way, the application for a variation is not an application for a revision or supersession under sections 16 or section 17 even though it may lead to that result, but only an application under section 28A for the basis on which such revision or supersession be determined.
29. I heard no contrary argument to the submissions for the Secretary of State, as neither A nor C was professionally represented and neither took any point relevant to this issue. But I have difficulty in accepting the argument. I do not see how a tribunal can fully perform its referred function of deciding whether there should be a variation in a case such as this, where the application is for a revision or supersession, without deciding at the same time whether there are grounds for revision or supersession. The reality will be that the decisions about the procedural and substantive variations will involve making findings about the same issues of fact. I also see a problem in separating out and taking a proper decision about whether a variation is just and equitable as an element of a revision or supersession. It seems to me that a proper consideration of whether the variation is just and equitable demands at least some knowledge of what the decision at stage 5 is to be. So the tribunal must have at least some idea about it. And if it must have some idea, it must also have a correct idea for it to exercise its discretion judicially. So why should it not take that decision properly so as to avoid any injustice?
30. In considering these arguments, I bear in mind that there is no equivalent power to refer decisions to a tribunal either in social security cases or tax credits cases. While there used to be other such powers, this power now stands alone.
31. I also bear in mind that the practice currently adopted by the child support agency in handling references is not the only approach it could adopt, nor in my view the best. The fact that the agency decides to use its powers to recommend seems currently to mean that it then abdicates all input to the decision beyond copying some of the papers to the tribunal and sending an officer to the tribunal. This submission demands that the agency be reintroduced at a later stage, and that the reference to the tribunal be limited to the middle stages of decision making. I do not see any administrative or legal logic in the agency declining to have anything to do with part of the decision making process and then demanding exclusive rights to a later part, subject to an appeal.
32. The other advantage of the tribunal completing the whole decision in cases like this is that it avoids creating a separate decision that can give rise to a second appeal to a different tribunal.
33. Further, on this view the tribunal would have the power to refer the calculation back to the agency if that proves to be necessary or expedient to move matters forward on an application. Mr Bewley was of the view that once a matter was referred, no part of it could be referred back. I agree that the tribunal cannot avoid a substantive reference by ducking the whole decision and sending it all back. And it must retain the duty to make a full decision if asked. But I do not see why a tribunal cannot, if that is the best way forward, take decisions in principle or on the available evidence, then refer any final aspect back to the agency, provided that if there is any disagreement at that stage between the agency and the other parties then the matter must be referred back to the tribunal for formal decision.
34. I therefore do not agree with the submissions on behalf of the Secretary of State that the tribunal in this case erred in principle in considering and taking a full decision on the issue of revision or supersession. In my view it did what it should have done on the reference. That reasoning is not undercut because in this case the tribunal made an unfortunate mistake.

Other issues

35. The tribunal's error arose because it noted, and then forgot, that A had other relevant children. I draw this to the attention of the new tribunal so it does not repeat that error. I agree with A's grounds of appeal in so far as they emphasise this point.
    
36. A also raised, in a number of different ways, points about the absence of evidence and the powers of a tribunal to act without that evidence. His comments show that he holds two common misconceptions about the powers of a tribunal to act on evidence. First, if a tribunal directs evidence, and a party refuses to produce it, then the tribunal may draw adverse conclusions from the absence of that evidence provided that it does so fairly. In this case two sets of directions about further information were sent to the parties. On the directions of 29 09 2004 the tribunal clearly warned:

"If those directions are not followed, the tribunal will be able to draw adverse inferences against the party in default."

A's ground of appeal attempting to challenge this is without foundation. The tribunal was fully entitled both to issue that warning and to act on it.

37. A's other misconception is linked to this. A appears to believe that the tribunal cannot act if it does not have all the evidence that might be available. That also is entirely wrong, whether or not the tribunal issues a warning about information requested specifically. The tribunal should make reasonable enquires of all parties about evidence if it considers that this is required for it to perform its task properly. But the primary duty to produce evidence is on the parties. And if, as in this case, the tribunal has made reasonable efforts to identify and get the evidence, then it should make its decision on the evidence it has at the date of the properly notified hearing.
38. I reject, for the same reason, the proposition that the tribunal should have summonsed A's wife to give evidence. If A wanted his wife to give evidence then he should have asked her to come with him to the tribunal.
39. A's attempt to object to other evidence being produced - because C did not see it - also has no substance. For the record, C made it clear that she was entirely happy that the tribunal looked at the evidence produced at the last minute by A without her commenting. In any event, that is for her, not A, to challenge, and she specifically told me that she has no criticism of the tribunal on this point.
40. I see no need to go through any other of the lengthy list of grounds of appeal filed by A as he did not appear to speak to them. Many of them were issues of fact not law, and some were repetitive of others. I formally reject any other ground of appeal that is or purports to a submission that the tribunal erred in law in some other way.

Summary

41. The error by the tribunal in the way it handled the calculation of the final amount to be awarded against A is such that the decision of the tribunal must be set aside for error of law. It must go to a new tribunal. That tribunal must decide the whole reference again. In doing so, it should take into account all the evidence so far produced, including all evidence recorded in the record of proceedings of the previous tribunal.
42. I have given directions to the parties about the production of witnesses and further evidence. The new tribunal may draw any appropriate adverse evidence from the absence of clearly relevant evidence to support any assertion made by any party in deciding the reference.

David Williams

Commissioner

12.05.2006

[Signed on the original on the date stated]