UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CCS_1876_2006 (03 October 2006)

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is given under section 24(2) and (3)(d) of the Child Support Act 1991:

I SET ASIDE the decision of the Swansea appeal tribunal, held on 31 March 2005 under reference U/03/204/2006/02234, because it is wrong in law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 20(7)(a) of the 1991 Act, any other issues that merit consideration.

The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

2. A district chairman gave leave to appeal in this case and, on its receipt by the Commissioners' office, it was referred to Mr Commissioner Lloyd-Davies, who gave case management directions. The parties have now made their observations and the case is ready for decision. Mr Lloyd-Davies has transferred the case to be in order to avoid delay.

The appeal to the Commissioner

3. This case concerns the formula assessment of child support maintenance in respect of Katie. In terms of the child support legislation, the appellant is Katie's absent parent and the second respondent is her parent with care. I shall refer to them in those terms. The Secretary of State supports the appeal. Both parents have made observations.
4. My first thought on receiving this case was to wonder why an appeal against a decision given in March 2005 was still before the Commissioners. The answer is this. The final hearing before the tribunal was on 31 March 2005. A decision notice was issued on 19 May 2005. The absent parent wrote on 10 June 2005 saying that his letter should be taken as notice of his intention to appeal and asking for a full statement of the tribunal's decision. This request was referred to the chairman, who directed on 17 June 2005 that his decision notice should stand as the full statement of the tribunal's decision. Nothing further happened until April 2006, when a solicitor wrote on behalf of the absent parent asking for leave to appeal. The district chairman accepted the application on the ground that the absent parent had indicated an intention to appeal and should have been asked if he wished to pursue that intention. The district chairman then gave leave to appeal.

History and background

5. The appeal to the appeal tribunal concerned the absent parent's income.
6. The parties first came before an appeal tribunal on 28 July 2003. The absent parent had worked and played sport in South Wales. He then moved to the North of England. The tribunal first assessed his income while in South Wales. The Child Support Agency had calculated his earnings as £188.73 net. The tribunal found that he earned a further £100 a week from sport. The tribunal recorded that, even if it had not found that the absent parent had that £100, it would have found that he had foregone that amount in order to reduce his child support liability. The tribunal then assessed the absent parent's income while he was in the North of England and found that he was receiving the same total amount.
7. I believe that the Secretary of State implemented the tribunal's decision on 13 August 2003, resulting in an assessment of £88.81 a week. On 8 April 2004, the absent parent applied for a re-assessment as he now had new housing costs, a partner and a child. This application was implemented on supersession and resulted in a nil assessment. The parent with care appealed against that decision and the parties came before an appeal tribunal on 21 October 2004. The hearing was adjourned on that day and resumed on 10 January 2005. The hearing was again adjourned on that day and resumed finally on 31 March 2005. On each occasion the tribunal consisted of the same chairman who had constituted the appeal tribunal in July 2003. The tribunal had before it detailed evidence and analysis of the absent parent's financial position. The tribunal found that he no longer had income from sport. It did not believe his evidence on the source or destination of money paid into and withdrawn from his account. It recorded:

'it is a proper inference that [the absent parent] had a substantial cash income which he has not declared. Putting an exact figure on that income is not easy. It could have been as much as £11,000 per annum or as little as £2000 (allowing for cash contributions from [his partner] at £1000 per annum). I decided that there was no good reason for departing from the situation as it was found by me to be in [the] earlier appeal, namely, that his additional undeclared income is £100 a week.'

8. Two issues arise on the tribunal's decision. First, should the same chairman have sat? Second, did he go wrong in law in calculating the absent parent's income?

Analysis 1

9. Is a chairman who has heard an appeal involving a party entitled to hear a later appeal on a similar issue? No one has suggested that the chairman in this case was actually biased. The issue is whether there was a real apprehension of bias from his previous involvement?
10. This issue was dealt with by the Court of Appeal in Lodwick v Southwark London Borough Council [2004] ICR 884. In that case, a party before an employment tribunal had objected to the chairman on the ground that he had made adverse comments about the party when he had appeared as a representative four years before. Lord Justice Pill said:

'21. Detailed guidance is given in Locabail (UK) Ltd v Bayfield Properties Limited & Anr [2000] QB 451, mentioned by the judge in his ruling, as to how the question should be approached. In the present context, I would specifically draw attention to the statement of this court, presided over by the Lord Chief Justice, at paragraph 25:

"The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party of witness to be unreliable, would not without more found a sustainable objection".

I consider that principle to be an important one in the administration of justice and one which applies with at least as much force to previous adverse comments upon a representative as upon a party or witness. A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be and, it is claimed in this case, is shown.'

11. So the position is this. The fact that the chairman had previously made a decision adverse to a party does not entitle that party to a differently constituted tribunal. Nor does the fact that the chairman has previously been involved in a decision concerning that party. The issue is whether a fair-minded and informed objective observer who was familiar with legal culture and traditions would believe that there was a real possibility of bias. As part of legal culture and tradition, the observer would know that judges are experienced in approaching cases afresh regardless of previous dealings with the parties. In this case, I can see no legitimate reason for an objective observer to suspect bias.
12. So much for the law. However, there is more to good practice than law. Commissioners sometimes feel, when they have dealt adversely with a claimant on a number of occasions, that it would be better for further cases to be dealt with by a different Commissioner. This is not because they feel they may be biased or that there is an objective possibility of bias. It is rather that the claimant may well feel that a further adverse outcome is inevitable. Transferring a case to a different Commissioner contributes to the claimant's confidence in the fairness of the procedures. Whatever the law, chairmen are entitled to act in the same way. I am sure that they do in practice and, if resources allow, they should not feel obliged to hear a case just because the law says that they may.

Analysis 2

13. Did the chairman go wrong in calculating the absent parent's income?
14. I begin by expressing my sympathy with the chairman. He did not believe the absent parent's evidence that he had declared all his income. As a result, he had to assess the parent's income in the teeth of his denials. Precision is impossible in those circumstances and Commissioners do not expect it. But although precision cannot be attained, guessing is not permissible. The legislation requires the tribunal to calculate or estimate the parent's income. Guessing is not compatible with either calculation or estimation. The process must be a rational one that is based on some principles of reasoning from the evidence available and the probabilities. And the duty, if asked, to provide adequate reasons ensures that this process must be capable of explanation. I cannot tell from the reasons given by the chairman why he assessed the absent parent's income at the figure that he did. He identified the bracket as between £2,000 and £11,000 a year. I have not attempted a financial analysis of the evidence, but from what I have gathered the correct amount depended on how much his partner was contributing to his bank account. It should have been possible for the chairman to identify some reason for fixing on a particular contribution that was capable of explanation. So my conclusion is that the tribunal did go wrong in law. Either the chairman did not approach the assessment of the absent parent's rationally or he did not explain the approach that he took adequately.
15. I have considered one way that might explain and justify the chairman's approach. He had calculated the absent parent's earnings at the earlier tribunal. That decision had been implemented. The decision under appeal at the later tribunal was made on supersession of the previous decision. One analysis is that the absent parent had not produced evidence that was sufficient to show that there had been any change of circumstances in respect of his income since the earlier tribunal. On that basis, the chairman could have left the income calculation as he had previously found it to be. However, on consideration, I do not believe that the decision can be justified in that way. For a start, that is not how the chairman has presented it. Second, the chairman accepted that there had been a change of circumstances in that the absent parent no longer had income from sport. That change required a fresh consideration of the likely income, because the previous calculation had been based on income from sport.
16. Another possible explanation is that the chairman used £100 a week (£5,200 a year) because that is close to the £5433.64 suggested by the analysis undertaken on behalf of the parent with care. That would be a permissible approach, but it is not how the chairman has explained his decision.

The income of the absent parent's partner

17. I draw the tribunal's attention to the comments on this issue by the Secretary of State (page 374, paragraph 9), the parent with care (page 377), and the absent parent's solicitor (page 379).

Disposal

18. I allow the appeal, set aside the tribunal's decision and direct a rehearing.

Signed on original on 03 October 2006

Edward Jacobs Commissioner