UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CCS_1689_2007 (05 November 2007)

CCS 1689 2007

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I dismiss this appeal. The tribunal decision of 12 12 2006 is not wrong in law.

History

2. The appellant ("F") is the non-resident parent and father of a qualifying child for whom he was directed to pay child support maintenance. He is appealing with leave of a chairman from the decision of the tribunal under reference 228 06 00712. The tribunal on 12 12 2006 ("the second tribunal") allowed an appeal to it by the mother and resident parent
   ("N") of the qualifying child against a decision of the Secretary of State on 12 07 2005.
3. The Secretary of State allowed an application for variation of a child maintenance calculation. This increased F's liability to pay for his child from nil to £19.60 a week. This was in respect of F's housing costs being unreasonable. F appealed on the grounds that his partner's share of the housing costs had been understated. This appeal was allowed by a tribunal ("the first tribunal") on 29 03 2006. F's liability was reduced back to £8.98. N applied to appeal once F's appeal had been determined, and her appeal was admitted late. N's appeal concerned the refusal of the Secretary of State to make departure directions at that time on the grounds that F's lifestyle was inconsistent with his declared income and/or that he had diverted income.
4. On 12 12 2006 the second tribunal allowed the appeal in respect of the application on the basis of lifestyle but dismissed the application on the basis of diversion of income. It correctly did not consider the issue of housing costs. It held an oral hearing at which N attended and gave evidence and in which a presenting officer took part by video link. The tribunal noted that F had telephoned to say that he was not able to attend. The tribunal conducted a full hearing.

The current appeal

5. This appeal concerns only F's objections to the decision of the tribunal about his lifestyle. Although that decision was taken on 12 12 2006, it had been preceded by the hearing of the first tribunal involving the same child support maintenance decision and both F and N. Further, both the first tribunal hearing and the second tribunal hearing had been preceded by directions to the parties to produce information.
6. The second tribunal directed on 1 11 2006 that all the papers for the first tribunal be produced to it. It also directed that N produce evidence to support her applications. In reply, N sent in a dossier of papers about the house in which she contended F lived (including the council tax payable on it), the two cars that she contended F and his partner owned (including likely insurance costs), and other details. This was sent properly addressed to the tribunal on 21 11 2006. It is clear that those papers were received.
7. F appealed on 10 01 2007 after requesting a typed copy of the record of proceedings which he stated he could not read. The letter included new evidence about his home and cars. His letter was treated as a request for a statement of reasons and one was produced on 19 02 2007. His appeal was renewed on 19 03 2007 and granted by a chairman. The appeal letter received on 19 03 2007 added further grounds of appeal to those in the original letter. One was an allegation that the tribunal had conducted its proceedings in breach of the Human Rights Act 1998. F claimed that "any information provided to the Tribunal is required to be disclosed to the other party in advance of the hearing".
8. Before considering the appeal, I directed that F produce details of the procedural errors on which he based his application and of the rights he claimed were broken. I advised him to obtain advice before replying. As no reply had been received from F or any representative, I invited the views of both other parties two months later. I also asked both other parties to confirm who was present at the tribunal hearing on 12 12 2006. Both N and the secretary of state's representative replied promptly. They confirmed their involvement at the hearing and that F was not present. N made the points that F had been aware of all the evidence from the first tribunal hearing, and also that as F only worked part time he should have had no problem attending the tribunal. The secretary of state's representative separately made the point that F was or should have been aware of the issues from the first tribunal proceedings.
9. At this stage a firm of solicitors gave notice that they had been instructed by F. I gave leave for a late submission provided that they explained the lateness. Those submissions have now been received. The solicitors now put forward two grounds of appeal against the tribunal decision. I do not consider it necessary to delay proceedings further by inviting any comments from the other parties on these grounds.

Were the tribunal proceedings fair?

10. The application to appeal appears to have been granted because F asserted that the tribunal in some way infringed his human rights. The submissions after my direction failed to clarify this allegation as such, but did produce two arguments about fairness. The first is that "the appeal tribunal panel were not advised of [N's] valid reasons" for non-attendance". The solicitors' second ground, read with F's own grounds, suggests that there was unfairness because F was not aware before the hearing of the evidence on which the tribunal decided the case, so could not respond.

Failure to attend a tribunal hearing

11. The "valid reason" for non-attendance apparently was that F had to pick up his youngest child from nursery school at midday that day. If this was "valid" in the sense that this was the true reason, then so be it. If the contention is that these proceedings should be delayed again at the last minute because F telephoned on the morning of the hearing to say he had what appear to be entirely foreseeable problems about looking after his child after nursery school that lunchtime, then I see no validity in the point.
12. Even if a tribunal's properly notified hearing can be less important than the appellant picking up his child from nursery school (which might be the case if the child had had a sudden attack of meningitis, for example), I do not accept that this is a valid ground in this case. The tribunal's powers to proceed in the absence of a party are in regulation 49(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the Decisions and Appeals Regulations"). Its powers to adjourn are in regulation 51(4) of the Decisions and Appeals Regulations. F was aware from the first tribunal of the need to attend. He was aware of the issues being considered from the directions sent out by the second tribunal and the replies to them. I am satisfied that the tribunal considered F's absence on a proper basis within those powers and against that background. The tribunal in its statement of reasons noted that F had consented to the hearing going ahead in his absence. N in her submissions confirmed that this was the case. F did not dispute this in either of his own statements of his grounds of appeal. His complaint was that he was not aware of the evidence that the tribunal would consider in his absence. That is a different issue, and I now turn to it.

Failure to notify the evidence in advance

13. There are two strands to the second ground of appeal: the oral evidence at the hearing and the written evidence sent in before the hearing.
14. I reject as completely without foundation the contention that this tribunal acted unfairly because it relied in its decision on information given in the form of N's oral evidence at the hearing. The parties had all been given adequate notice of the hearing. That being so, the tribunal had authority to proceed in the absence of any or all of them and it exercised that power properly. It was entitled, and required, to make its decision on the evidence before it, including any oral evidence given at the hearing. N attended, as did the secretary of state's representative, and gave evidence. F could have attended either personally or by a representative to challenge any evidence. He did not. That was his choice. There is no infringement of any right under the common law of England and Wales, or under the European Convention on Human Rights and the Human Rights Act 1998, where a tribunal accepts oral evidence in that situation. In particular, as the solicitors should know, there are no formal general rules about prior disclosure of oral evidence at a child support tribunal hearing.
15. The second ground of appeal was that the tribunal relied on N's documentary evidence although it was only received by the tribunal a few days before its hearing. In the formal submission on F's grounds of appeal the solicitors also contended that N's evidence "was only disclosed to [F] in this current appeal" when copy papers were sent from the Commissioners' office on my direction. He had not seen it before then. I agree that the tribunal relied on N's documentation, sent in dated 21 11 2006 and datestamped as received by the tribunal on 8 12 2006. But I do not accept that F had not seen those documents until six months later.
16. As I have noted, F made several assertions of fact about the decision on 10 01 2007. This was before he had received either the typed record of proceedings or the statement of reasons. That letter contained detailed comments on the tribunal decision and the evidence on which it relied. These included the comment:

"[N] provided details of car expenses in respect of a Ford Mondeo and a Fiat Punto based on pure assumption and I comments as follows: - …

2. We have never owned a Fiat Punto!…"

There are several statements in the papers about F and his partner owning two cars. Most lack any detail about the specific kinds of car. In particular, there is nothing in the record of proceedings or the statement of reasons about this (although F had not received those reasons at that time in any event). The allegation is that the detail is wrong with regard to the Fiat Punto – an error that F would not have made. I have reread all the papers before the tribunal, and the only place where I can find this error is in N's submission to the tribunal. So F must have seen that submission before he wrote his letter dated 10 01 2007. I therefore completely reject the solicitors' allegation that their client did not see those documents until six months later. It is plainly wrong. And, for the sake of completeness, I also reject any submission in the (inconsistent) alternative that F did see the documents before 10 01 2007 but not before 12 12 2006. Given the way in which F sought to challenge the tribunal decision before even seeing its reasons or a readable (to him) record of proceedings, I have no doubt that he would have commented that he had not received such important documents at the right time if that were the case. That allegation was only made months later. I reject it.

17. For the sake of completeness, I also reject the other grounds of appeal put forward by F in his two letters. The factual issues and late evidence in the letter of 10 01 2007 are exactly that. They should have been raised by F either before or at the hearing. Nor is there any additional point of substance in F's second letter. If F had to ask his partner for details, then he had plenty of time to do so. If he had an objection to new evidence put forward on the day, then he should have made that objection on the day. By failing to attend, he removed his right to object to any new evidence. The fact that he did not give any further evidence before or at the hearing was also his choice. He cannot try and reopen the appeal because he later discovered that he made a mistake in not doing so. The appeal is without merit and I dismiss it.
18. I add a more general comment about the tribunals' duty to act fairly. That duty of fairness is also owed to the resident parent and to the child or children and to the public in general. It cannot be limited to the absent parent's idea of fairness to him or her. This appeal raises exactly the sort of claim about tribunal "unfairness" that Commissioners see too often. Adding a reference to the Human Rights Act makes it no more deserving. As I said in 2002 in CCS 2676 2001 (paragraph 10), so here:

"This is one of many cases I have seen where a party has decided not to attend the oral hearing of a departure direction case by a tribunal, and has then sought to argue after the event that the tribunal was unfair, or perverse, or in some other way in error because the tribunal did not agree with the view of the absent party. An adverse decision is the risk that any party to a child support hearing takes if he or she decides not to attend. The tribunal is not only entitled but required to reach a decision on the evidence in front of it. It is not entitled to speculate or guess. In this case [the nonresident parent] had sent in various submissions, but [the resident parent] attended. It is not surprising if the tribunal took full account of the evidence from [the resident parent], which it could test while it could not test [the nonresident parent's] evidence."

And as Commissioner Jacobs put it in CCS 2901 2001, again over five years ago:

"The proceedings before an appeal tribunal and a Commissioner are legal proceedings. They are not a game. If the absent parent is not prepared to participate properly in the proceedings, he must take the consequences…"

David Williams

Commissioner

5 11 2007

[Signed on the original on the date stated]