UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CSCS_6_2007 (27 July 2007)

DECISION OF CHILD SUPPORT COMMISSIONER

1. This is an application to a Commissioner by the person with care for leave to appeal on a question of law from the decision of the tribunal dated 26 October 2006. Having considered the application, I grant leave to appeal. Having granted leave to appeal, I can, with the consent of the applicant and each respondent, treat and determine the application as an appeal under and in terms of regulation 13(2) of the Child Support (Commissioners) Procedure Regulations 1999. Such a consent was given by the parties to the appeal. My decision is that the decision of the tribunal given at Edinburgh on 26 October 2006 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted appeal tribunal for a rehearing.
2. This application and appeal came before me for an oral hearing, which had been requested by the appellant and has been granted by me following upon that request, on 24 July 2007. The appellant was represented by Mr Turner. The Secretary of State was represented by Mr Brown, Solicitor of the Office of the Solicitor to the Advocate General. The second respondent represented himself.
3. There was a maintenance assessment made on 6 January 2004 with an effective date of 24 September 2003 in respect of the two children of the appellant and the second respondent. The second respondent sought supersession upon the grounds of a change of circumstances, namely that he now had shared care of the two children. The request was made on 4 January 2006. A full copy of the decision made by the Secretary of State is not within the papers. There is a record of it at page 1, which indicates that the second respondent was found liable to pay £133.46 per week in respect to the two children from the effective date of 18 January 2006. However, as this change was less than £10.00 per week from the assessment in force of £124.60, there was a statutory bar to supersession by virtue of regulation 21(1) and (2) of the Child Support (Maintenance Assessment Procedures) Regulations 1992. The maintenance assessment accordingly remained at £124.60 from 18 January 2006. It is, however, apparent that in making this decision, there was a refusal to supersede the maintenance assessment upon the basis that there was shared care. This was because, on the basis of the evidence accepted by the Secretary of State, the number of nights spent by the children with the second respondent did not exceed the minimum number provided by regulation 20 of the Child Support (Maintenance and Special Cases) Regulations 1992 which applied at the material time.
4. The second respondent appealed against that decision. His appeal was heard by a tribunal on 26 October 2006 and was successful.
5. The decision made by the tribunal was in the following terms:

"Appeal is allowed. The amount of Child Support must be recalculated in accordance with the findings of the Tribunal, which are set out below. If the parties are unable to accept the recalculation they may apply to the Tribunal (but only on the question of recalculation) within 1 month of the decision.

In the calendar year 2005 the appellant had over night care for the children for 107 nights (even according to written evidence submitted by the respondent). Thus the appellant had shared care of the children in that year. His child support maintenance assessment should be altered from 04/01/06."

6. The appellant in this appeal, who is the mother of the children, sought leave to appeal against that decision. The Secretary of State, who is the first respondent, initially opposed the application for leave to appeal and invited me to dismiss it. However, his position changed before me and he now supports the application and appeal. The second respondent, who was the appellant before the tribunal, did not, with the caveat set out below, support the appeal and was content with the decision in his favour.
7. I am satisfied that the tribunal's decision erred in law. It is, I consider, fundamentally flawed. I have explained above the nature of the decision which was appealed against to the tribunal. In effect the tribunal determined that there was a change of circumstances from the decision of 6 January 2004. That decision was a final decision and one which could be altered, failing appeal, only if one of the statutory conditions for revision or supersession was satisfied and in the case of supersession was not statutorily barred by regulation 21 of the Maintenance Assessment Procedure Regulations 1992, or regulation 6B of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Thus, having allowed the appeal, it was necessary for the tribunal to approach the appeal before it in the following way. It is clear that, having accepted that circumstances had changed and that there was a basis for supersession, they required, unless barred from doing so, to carry out a supersession. It was not sufficient for them to do as they did, namely to order a recalculation of the amount of child support. Thus, the tribunal required to find out what the recalculation actually was and whether the circumstances set out in regulation 21 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 or 6B of the Decisions and Appeals Regulations applied. If the calculation disclosed that the decision may not be superseded, then that would require to be reflected in the decision of the tribunal. If there was no statutory bar to supersession, the tribunal required to carry out a supersession. The tribunal gave no consideration to supersession at all and neither the decision notice nor the statement of reasons demonstrated that this issue had been addressed. Mr Brown accepted that this failure demonstrated an error in law on the part of the tribunal. The other parties to the appeal did not dissent from this. Having identified this error in law and set aside the tribunal's decision, that is sufficient to dispose of the appeal.
8. I should perhaps however indicate that I was satisfied also that the tribunal erred in law in relation to the adequacy of reasons for their decision which formed the principal grounds of appeal by the appellant. I was not persuaded, however, that any breach of the rules of natural justice, as asserted by her, had been established. I deal with each in turn.
9. The essence of the case as to whether there had been a change of circumstances which would give rise to the supersession of the decision of 6 January 2004, was related to the issue of shared care and whether, in respect of each child, the second respondent had them for a minimum of 104 nights, which was essential for the second respondent to succeed with his appeal to the tribunal. The tribunal had taken into account the appellant's evidence in a written document presented by her at pages 82 – 84, but I accepted Mr Brown's submission that, in doing so, why the tribunal added nine additional nights of overnight care to the appellant's record of nights on which she said she had had the children, rather than eight, which is what the evidence appeared to demonstrate, is not explained by them. I accept Mr Brown's submission that the tribunal did not appear to appreciate what the appellant actually said about the school holidays. Further, the tribunal appear to have reached a conclusion that there were 107 nights spent by both children and did not deal with a material number of nights when one of the children was said to have been away at scout camp. The second respondent did not persuade me that the tribunal had not erred in law in relation to those material matters and, accordingly, I am satisfied that there was an error in law on these grounds also.
10. It is quite apparent that relations between the parents of the qualifying children are not good and there have been a number of complaints about conduct made by each against the other. The appellant had written to the tribunal in a letter dated 12 October 2006 at page 82, in which she set out why she would not attend the hearing of the tribunal. For reasons set out in paragraph 2 of the tribunal's statement of facts and reasons, the tribunal had proceeded to hear the appeal in her absence. The complaint made by Mr Turner appeared to relate to a failure by the Tribunal Service to give the appellant reassurances in relation to the conduct of the appeal, which the tribunal, in its statement of reasons in paragraph 2, had given, but only after the appellant had not attended. For myself, I can see no error in law on the approach of the tribunal. As Mr Brown pointed out, a party to an appeal cannot set out the conditions upon which that party will attend the hearing. The statutory grounds of appeal relate only to an error of law on the part of the tribunal. The tribunal cannot be faulted for its conduct of the appeal.
11. Although the second respondent was anxious for there not to be another hearing before a tribunal upon the basis that a significant time has passed since he made his application for supersession and that the situation has been causing stress to him and the children, I consider that I have no alternative but to do so. The freshly constituted tribunal will note from the content of this decision how they must approach the issue of supersession. It might be advisable for them to direct the Secretary of State to provide a calculation if they were to find that there had been shared care. If that were done in advance of the tribunal hearing, then, the tribunal would be in a position to make a decision. Of course, if the second respondent was not successful in establishing a material change of circumstances, then the calculation would be otiose. When considering the issue of the attendance of one of the children at scout camp, the tribunal should have regard to R(CS)11/02 and follow it.
12. The appeal succeeds.

(signed)

D J MAY QC

Commissioner

Date: 27 July 2007