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[2008] UKSSCSC CCS_1512_2007 (03 March 2008)

DECISION OF THE CHILD SUPPORT COMMISSIONER

The father's appeal to the Commissioner is allowed. I set aside the decision of the Colchester appeal tribunal dated 9 February 2007 as it is wrong in law for the reasons identified below. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 34 and 35 below and any further procedural directions given by a district chairman of appeal tribunals (see paragraph 34) (Child Support Act 1991, section 24(3)(d)).

The father (in the terms of the relevant legislation, the absent parent) has requested an oral hearing of his appeal to the Commissioner. I refuse that request as I am satisfied that the appeal can properly be determined without a hearing (Child Support Commissioners (Procedure) Regulations 1999, regulation 21(2)). The reason for the request was to have the opportunity to expand on some information in the documents before me. He will have that opportunity at the rehearing of his case before a new appeal tribunal. I have decided the question of law raised in the appeal to the Commissioner in his favour without the need for a hearing. A potential further point of law arose in the course of my drafting this decision. I attempted to obtain some further information from the father to see if the point would actually be a live issue before the new appeal tribunal, but failed to get over what was needed after two attempts. I have therefore mentioned the point below for the potential consideration of the parties and of the new appeal tribunal, without giving a final ruling on it.

The background

The course of events needs some careful description, which has been considerably helped by the submission dated 12 July 2007 on behalf of the Secretary of State for Work and Pensions. However, that submission did not quite follow through its own logic when suggesting that I should substitute a decision, instead of referring the case to a new appeal tribunal. The reasons for rejecting that suggestion will emerge below.

A decision was made on 8 June 2000 that the father was liable to pay child support maintenance of £84.58 per week with effect from 30 April 1998, £87.12 with effect from 12 April 1999 and £90.12 with effect from 10 April 2000. Because the author of the written submission to the appeal tribunal wrongly took the view that that decision was not the subject of the appeal, no details of the calculation of those maintenance assessments were given. It is that omission in particular that means that there has to be a rehearing.

On 20 June 2000 the father telephoned the Child Support Agency (CSA) to say that he disagreed with the maintenance assessments and in particular with the figure of his net income. Following some discussion, he offered or was asked to send in some more recent accounts. It appears that the assessments had been calculated by reference to the accounts for a partnership for the year ended 5 April 1998, as submitted to the Inland Revenue for his self-employment assessment, and which showed his partnership share of the net profit on the trading and profit and loss account as £20,378. The father had accounts for the partnership for the year ended 5 April 1999 (which showed his partnership share of the net profit on the trading and profit and loss account as £21,298), as well as for another business carried on on his own account (which showed a loss of £5,612), both of which had supported tax returns submitted to the Inland Revenue.

A form CSA 140(SA) was issued to the father on 8 November 2000, asking for sight of the partnership and self-employed pages of his self-assessment return to the Inland Revenue for the year ending 5 April 2000 or, if that was not available, the return for the year ending 5 April 1999. A copy of the actual form, supplied by the father, is at pages 101 to 103 of the papers. On 20 November 2000 the father wrote to the CSA to say that he was currently under investigation by the Inland Revenue for the year's accounts requested, so could not forward them if they were not correct or concluded. He enclosed a copy of a letter dated 17 July 2000 from the Inland Revenue thanking him for his tax return for the year ended 5 April 1999 and saying that it was intended to make some enquiries into the return. The CSA wrote to the Inland Revenue on 8 January 2001 asking for details of the father's self-employed earnings for 1999/2000 or 1998/1999. The Inland Revenue replied that it had no information about him. On 20 February 2001 a decision-maker apparently decided to refuse what she regarded as an application for supersession made on 20 June 2000, on the basis that the father had not supplied the necessary information. There is a computer record of that decision on 11 April 2001, which appears to be a late entry of the decision of 20 February 2001. It is not clear that notification of the decision was sent out.

On 8 June 2001 the father sent the CSA copies of his 1998/1999 accounts, but not of his tax return or of any notice of tax calculation, with a copy of a letter dated 18 May 2001 from the Inland Revenue saying that the enquiries were completed and that there was no need for any amendment to his self-assessment for 1998/1999. The CSA apparently took the misguided view that those accounts could not be considered because more than 24 months had elapsed from 5 April 1999 to 8 June 2001 (referring to but misunderstanding paragraph 5A(1) of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ("the MASC Regulations")).

In 2004 there appears to have been some further consideration, as if an application for supersession had been made in June 2001, followed by rejection of supersession on 17 August 2004 on the ground that the father had failed to supply his 2000/2001 tax return or accounts. Again it is not clear whether notification of that decision was sent out.

On 30 May 2006 a letter was sent to the father by a branch of the CSA called Old Scheme Complaints Resolution containing the following:

"You asked us to look at your case again. We cannot do this because you have not given us the information we asked for, reassessment was therefore refused on 11 April 2001."

I do not know what correspondence or discussion led up to the issue of that letter (the father has referred to a full case check and investigation). It seems to have been regarded by the CSA as a re-issue of the decision of 11 April 2001, but one that would give the father appeal rights with time running from 30 May 2006. It seems to me that the only fair interpretation of that situation is that notification of the decision of 20 February 2001 (as I think is right, rather than 11 April 2001) had not been given before that letter. The father has said that there was no prior formal notification of the decisions.

The appeal to the appeal tribunal

The father's appeal to the appeal tribunal was made in response to the letter of 30 May 2006. It was not received until 5 July 2006, but the Secretary of State accepted it despite its lateness. On the form (pages 32 to 34) he described the decision he was appealing against as "original maintenance assessment". He stated that the original assessment based on accounts for the year ending 5 April 1998 was too high and impractical and that the accounts for the year ending 5 April 1999 should be taken into account in a revision or supersession. In the box for further information he wrote:

"Self employed and running a small business on a tight budget from home, I feel that it may be necessary to apply for a `departure from formula' as it is impossible to continue this work under the current CSA maintenance assessment and its jurisdictions.

Further to this there appears to be no provision in the assessment for housing costs, living expenses, mortgages/rent and existing loans etc."

The appeal was described on the Secretary of State's written submission to the appeal tribunal as against the decision of 30 May 2006. I shall come back below to what the appeal should properly have been treated as against. The submission asserted that the refusal to supersede had been correct for the reason given in the letter of 30 May 2006 and that the issue of housing costs, living expenses and loans could not be considered within the decision under appeal and so were outside the jurisdiction of the appeal tribunal.

The father attended the hearing on 9 February 2007. The appeal tribunal consisted of a legally qualified panel member ("the chairman") and a financially qualified panel member. He repeated points about voluntary payments that should have been deducted from arrears and apparently submitted that his loss as a sole trader should be set off against his share of the profit from the partnership. The representative of the Secretary of State submitted that a supersession for change of circumstances could not take effect before the date on which the relevant information or evidence was first brought to the attention of an officer of the CSA (relying on regulation 7B(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) ("the Decisions and Appeals Regulations").

The appeal tribunal allowed the father's appeal, but remitted the case to the Secretary of State to recalculate the amount of the assessments effective from 12 April 1999 and 10 April 2000 on the basis that the father had a gross income of £23,298, not £20,378. On the decision notice, which incorporated the statement of reasons, the appeal tribunal rightly rejected the Secretary of State's arguments relying on paragraph 5A of Schedule 1 to the MASC Regulations and regulation 7B(1) of the Decisions and Appeals Regulations, although not for the best reasons that could have been given. The statement continued:

"In consequence the tribunal concluded that the figures [on the 1998/1999 accounts] should have been used. Unfortunately for the [father] the basis upon which he wished to rest his application for supersession although in accountancy terms were valid were not within the ambit of the Child Support system. The relevant regulations did not allow the offset of a loss from business A to reduce the income of business B and the basis of assessment is partnership profit and not partnership drawings.

In consequence the [father's] success in challenging the refusal to supersede is a hollow victory and the assessments will probably increase. There also remains the matter of the relevant assessments for the outstanding years between 2000 and today's date, which may also have to be revised upon the basis of more up to date figures."

The appeals officer on behalf of the Secretary of State immediately wrote to the chairman, suggesting that he had meant to write £21,298, as in the accounts, not £23,298, and asking for clarification. The chairman replied as follows on 8 March 2007 on a document that is now in the papers before me, although I do not know whether it was issued to the parents at the time:

"Please advise CSA that I accept their suggested figure is what appears as drawings in the accounts but [the financially qualified panel member] noted an offset for a loss from another business that the Revenue allows but the CSA Regulations did not. Please copy the relevant papers to [the financially qualified panel member] to confirm that my sums are correct."

The appeal to the Commissioner

The father applied for leave to appeal, asking for clarification of the regulations. A district chairman refused leave. The father renewed the application to the Commissioner, this time making the point that the appeal tribunal had not dealt with his argument that housing costs and living expenses should have been taken into account, and that proper accountancy procedures had not been followed. I granted leave to appeal on 21 May 2007, saying this:

"It is arguable that the appeal tribunal failed to give an adequate explanation of why it held that the [father's] gross income from self-employment for the purposes of the assessments effective from 12 April 1999 and 10 April 2000 should be £23,298, rather than £21,298. In addition, did the legislation applicable to an application for supersession apparently on the ground of change of circumstances allow any superseding decision to take effect from 12 April 1999 or 10 April 2000?"

The appeal tribunal's finding on gross receipts

The Secretary of State's submission of 12 July 2007 supported the appeal. In relation to the £2,000 discrepancy it was submitted that there was nothing in the 1998/1999 accounts to support the view that there had been a deduction for a loss from another business before calculating the father's partnership share of the net profits at £21,298. I agree. The figure for drawings was quite different and on the documents before me (which do not include the financially qualified panel member's briefing note referred to in the record of proceedings) the appeal tribunal's action on this point is inexplicable.

What was under appeal

However, the Secretary of State's submission identified a more fundamental point. The author pointed out that an application had been treated as made in the father's telephone call of 20 June 2000, within a month of the decision of 8 June 2000. Accordingly, it was to be treated as an application to revise that decision under regulation 17(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 ("the MAP Regulations"):

"(1) Subject to paragraphs (6) and (8), any decision may be revised by the Secretary of State--

(a) if the Secretary of State receives an application for the revision of a decision under section 16 of the [Child Support Act 1991] within one month of the date of notification of the decision or within such longer time as may be allowed by regulation 18."

The submission went on to consider the terms of regulation 17(1)(b), but I do not think that that was necessary, as in my view the father was not notified that the application was unsuccessful because the Secretary of State was not in possession of all the necessary evidence or information until 30 May 2006.

Again, I agree with the Secretary of State's submission. The father's telephone call was expressing disagreement with the decision of 8 June 2000, no doubt without putting that into the technical terms of revision or supersession. There was no reason to treat it as other than an application for revision.

I suspect that it was confusion about the nature of a change of circumstances that led to it being treated as an application for supersession. Regulation 17(1) of the MAP Regulations is subject to paragraph (6), which as in force from 19 June 2000 provides:

"(6) Paragraph (1) shall apply neither--

(a) in respect of a material change of circumstances which--

(i) occurred since the date on which the decision was made; or

(ii) is expected, according to information or evidence which the Secretary of State has, to occur; nor

(b) [not relevant]."

Prior to 19 June 2000, regulation 17(6)(a)(i) had referred to the date as from which the decision had effect. Officers of the CSA seem to have confused the provision of a particular piece of evidence with a change of circumstances. The circumstances refer to the actual state of the underlying facts at any particular time. Here, as at 20 June 2000, the father was not asserting that anything had changed in relation to his income in the periods relevant to the effective dates of 30 April 1998, 12 April 1999 and 10 April 2000. He was saying that the assessments with effect from all dates took account of more income than they should have done and that the latter two failed to take into account the change in his income evidenced by the accounts for 1998/1999. Even if (which I do not accept) the coming into existence of the accounts were to be regarded as a change of circumstances, rather than as evidence of the circumstances, the accountants' certificate was signed on 7 June 1999. The principle is that the scope of the power to revise is defined by the legislation in force at the date of the application to revise, but, even on the pre-19 June 2000 form of regulation 17(6)(a)(i), considering the 1998/1999 accounts in relation to the assessments effective from 12 April 1999 and 10 April 2000 would not have involved considering a change of circumstances after those dates.

But what are the consequences of a conclusion that the father's application of 20 June 2000 is to be treated as an application for revision? The decision of 20 February 2001, eventually notified on 30 May 2006, was therefore to be treated as in substance a decision not to revise the Secretary of State's decision of 8 June 2000. But whether there was a refusal to revise or a refusal to supersede, the result was to leave the assessments made by that decision in effect. The right of appeal under section 20(2) of the Child Support Act 1991, as preserved in force for cases that do not arise from the 2003 reformed scheme, lies against the amount of a maintenance assessment or the date from which it takes effect.

The Secretary of State's written submission to the appeal tribunal was therefore wrong to describe the father's appeal as against the decision notified on 30 May 2006. If an appeal could have been made against a decision it would have been against the decision of 8 June 2000, as left in place by the refusal to revise, so that the submission was wrong also to describe that decision as not the subject of the appeal. But in law his appeal was against the amounts of the maintenance assessments made in that decision. That appeal plainly encompassed the question of what the father's earnings, before the deductions for income tax, national insurance contributions and pension contributions, should be as at all the effective dates, including the effect of the 1998/1999 accounts in relation to the assessments with effect from 12 April 1999 and 10 April 2000. It also by its express terms included the father's arguments about the level of the assessments ("too high and impractical") and about how housing costs, living expenses, mortgages/rent and existing loans had been taken into account. As the appeal was not simply against the refusal of his application on the specific ground then put forward, there was no reason why his appeal against the amount of the assessments could not cover all those issues. I reject the suggestion in paragraphs 29 to 31 of the Secretary of State's submission of 12 July 2007 that those issues were not included in the grounds of appeal merely because they were put into the box for other information.

The appeal tribunal of 9 February 2007 accordingly also erred in law by failing to take the steps necessary to deal with those additional issues and the challenge to the assessment with effect from 30 April 1998. It could not have dealt with any of those issues without calling for full details of the calculation of all the assessments made by the decision of 8 June 2000 and probably giving both parents an opportunity to consider that information. But it did not give any directions to that effect and came to a decision on only one of the several issues raised in the father's appeal.

It is for that reason that I cannot simply substitute a decision as suggested in the submission of 12 July 2007, by substituting £21,298 for £23,298 in the appeal tribunal's directions. The full consideration of all the assessments made in the decision of 8 June 2000, after the necessary production and circulation of documents and evidence, will be best carried out by a new appeal tribunal, which can also have the benefit of the expertise of a financially qualified panel member.

Loss in one self-employment cannot be deducted from profits of another self-employment under paragraph 3 of Schedule 1 to the MASC Regulations

For the avoidance of doubt, I confirm that I agree with the submission of 12 July 2007 (see paragraph 27 in particular) that, if the father's earnings as a self-employed earner are to be calculated by reference to his accounts under paragraph 3 of Schedule 1 to the MASC Regulations, his loss as a sole trader cannot be deducted from his share of the profits of the partnership in calculating his earnings. Paragraph 3(4)(b)(vi) specifically prohibits the deduction from the gross receipts of any employment as a self-employed earner of losses incurred in any other self-employed employment.

Can there be a deduction or set-off under paragraph 2A or 2B?

However, there is at least a question mark over whether the representative of the Secretary of State was wrong in paragraph 28 of the submission of 12 July 2007 to say that the result would have been the same if the father's earnings were calculated under paragraph 2A of Schedule 1 to the MASC Regulations (on the basis that he has provided "the total taxable profits from self-employment as submitted to the Inland Revenue"). The decision of the House of Lords in Smith V Secretary of State for Work and Pensions [2006] UKHL 35, R(CS) 6/06, relied on in support of that submission, may not be completely decisive of the issue.

Paragraph 2A(2) of Schedule 1 to the MASC Regulations, in relation to employment as a self-employed earner, provides:

"(2) `Earnings' means the total taxable profits from self-employment of that earner as submitted to the Inland Revenue, less the following amounts--

(a) any income tax relating to the taxable profits from the self-employment determined in accordance with subparagraph (3);

(b) any National Insurance contributions relating to the taxable profits from the self-employment determined in accordance with paragraph (4);

(c) [50% of premiums paid on retirement annuity contracts or to personal pension schemes]."

Paragraph 2B is also relevant. When a parent cannot provide the figure under paragraph 2A(2) or when that figure has been revised by the Inland Revenue, but the parent can provide a copy of his tax calculation notice:

"the earnings of that earner shall be calculated by reference to the income from employment as a self-employed earner as set out in the tax calculation notice issued in relation to his case, and if a revision of the figures included in that notice has occurred, by reference to the revised notice."

Under paragraph 2C, if it is not reasonably practicable for the parent to provide information as to his total taxable profits in the form submitted to or issued by the Inland Revenue, "earnings" has the same meaning as in paragraph 3. Finally, under paragraph 5A(3), if the paragraph 2A figure does not accurately reflect the person's normal weekly earnings, then paragraph 3 can be applied.

The problem specifically raised in the Smith case was to do with capital allowances. Where self-employed earnings are calculated under paragraph 3 of Schedule 1 to the MASC Regulations, the deduction from gross receipts of any capital expenditure or any amount for the depreciation of any capital asset is specifically prohibited by paragraph 3(4)(b)(ii) and (iii). However, in reaching the figure to be entered in box 3.92 of the self-assessment tax return current at the time, labelled "Total taxable profits from this business", certain capital allowances were to be deducted. The nature of the business carried on by the absent parent in that case meant that the capital allowances were very large. The Court of Appeal had decided that on the introduction of paragraph 2A etc into Schedule 1 to the MASC Regulations in October 1999, the phrase "total taxable profits" in paragraph 2A(2) had to interpreted as meaning the figure entered in box 3.92 on the tax return. The House of Lords, by a majority of three to two, overturned that decision and restored the decision of the Child Support Commissioner that capital allowances in accordance with income tax legislation should not be deducted for the purposes of paragraph 2(2A).

Lord Walker of Gestingthorpe said this at paragraph 63:

"I do not attach to box 3.92 anything like as much weight as Ward LJ did. I am prepared to assume in favour of the respondents that a form very like that used for Mr Smith's 1999/2000 and 2000/01 tax returns would have been in use when the amending regulations were drafted in 1999. But I am not prepared to assume that the draftsman (presumably working in-house in the Department for Work and Pensions) had such a form before him, and deliberately copied the words `Total taxable profits' from box 3.92. If that was his deliberate intention, he was not only making a change of substance in relation to capital allowances but also introducing further possible inconsistency with paragraph 3 in the treatment of losses from other accounting periods, or from other trades. I regard it as over-literal, and not in line with the modern approach to statutory construction, to attach so much weight to the coincidence of the use of three words - `total taxable profits' - which amount to a composite expression of uncertain meaning, without regard to the context and consequences of that reading."

Thus Lord Walker did expressly recognise the potential problem where a parent made a loss in one self-employment but a profit in another, as did Lord Rodger in the minority (paragraph 18). Lord Walker plainly suggests that, for consistency with the ruling on capital allowances, such a loss must be left out of account for the purposes of paragraph 2A(2) of Schedule 1 to the MASC Regulations. And presumably the majority of their Lordships must be taken as also having decided that, so far as capital allowances went, the same approach had to be taken to the meaning of "income from employment as a self-employed earner as set out in the tax calculation notice" in paragraph 2B(1). Both the minority Law Lords regarded those words as rather less ambiguous than "total taxable profits" in a context in which it would clearly be wrong to allow a different test of substance under paragraph 2B just because a parent could not produce a copy of the tax return under paragraph 2A. The majority did not, so far as I have found, mention paragraph 2B, but cannot be taken to have allowed a different approach under that provision.

The slight difficulty is that, although losses from other trades were mentioned in Smith, the actual circumstances before the House of Lords involved only one trade. It might just be arguable that the words "total taxable profits from self-employment" in paragraph 2A(2) have to be construed as referring to total taxable profits from all forms of self-employment, not from each separate employment separately and that the House of Lords did not consider that argument as it was not raised on the circumstances before them. It could then be argued that, if a tax calculation notice gives a figure for total income from self-employment (in a multi-employment case) or the tax return requires a figure for overall taxable profits rather than in each business and offsetting of losses in one business against profits in another is allowable for income tax purposes, those figures should be used.

The more substantial practical difficulty is that, not only do I have no evidence of the form of tax returns and tax calculation notices generally or of the income tax rules on offsetting losses in other businesses, but I do not have before me any copies of the father's self-assessment tax return for 1998/99 or his tax calculation notice for that year. Those are what I asked for in my direction dated 18 October 2007, in order to see if there was really a live issue in this case of a discrepancy between a figure for total taxable profits on the tax return or for income from employment as a self-employed earner on the tax calculation notice and the father's share of the partnership profits at £21,298. If there were a live issue, then I would have sought submissions from the Secretary of State on the argument outlined in paragraph 30 above.

However, the father first reacted to that direction by writing that, although all the information requested was available, he was only prepared to bring it in person to the Commissioners' office for an oral hearing, with the suggestion that he did not want details disclosed to the CSA through the Secretary of State or to the mother. A legal officer then wrote to the father on my instructions, to say that I wanted to see the documents before deciding if the expense and delay of an oral hearing was justified and suggesting that any sensitive data like national insurance numbers could be blanked out. The father replied in a letter dated 8 January 2008 that he would supply the documents only if assured that they would not be copied to any third party without his consent. I am not sure how far his objection was to disclosure to the mother and to the CSA, rather than to others. If it was, such an arrangement is of course completely incompatible with the principles of natural justice and the requirement of a fair hearing for all parties to the appeal. I am also not sure how far I have succeeded in explaining that what is wanted is copies of the tax return for 1998/99 as submitted to the Inland Revenue and of the tax calculation notice, since the father was still referring in his latest letter to "accounts" and other data.

I have decided not to spend any more time in pursuing my direction of 18 October 2007. Instead, I shall refer the case to a new appeal tribunal for rehearing on the following basis. The position under Chapter 2 of Schedule 1 to the MASC Regulations as in force from 4 October 1999 is that the primary source for the calculation of earnings from self-employment is "total taxable profits" as submitted to the Inland Revenue, ie on the tax return, backed up by the income from employment as a self-employed earner stated on the tax calculation notice. Only if it is not practicable for the person to supply such evidence or if the result does not reflect normal weekly earnings is it permissible to consider profit and loss accounts. As the evidence currently stands, although I do not think that it could really be said to be impracticable for the father to produce copies of his tax return and/or tax calculation notice, no doubt no-one would quibble with the use of the partnership accounts in default of his providing those copies. The matter is therefore in his hands. If he wishes to pursue some argument like that outlined in paragraph 30 above, that reference to his tax return or tax calculation notice for 1998/99 or later years would produce a lower figure of earnings from self-employment than that produced by reference to the accounts under paragraph 3 of Schedule 1 to the MASC Regulations, then it is up to him to produce those documents to the new appeal tribunal and to make that argument. In that case, the new appeal tribunal will have to consider and rule on the legal merits or otherwise of the argument. If the father does not produce those documents, then the new appeal tribunal can proceed by reference to the partnership accounts and my ruling in paragraph 24 above.

The Commissioner's decision on the appeal and directions

For the reasons given in paragraphs 16 and 22 above, the decision of the appeal tribunal of 9 February 2007 is set aside as wrong in law. The father's appeal against the amount of the maintenance assessments made in the Secretary of State's decision dated 8 June 2000 is referred to a differently constituted appeal tribunal for determination in accordance with the directions below. In the light of my rulings in paragraphs 17 to 23 above about the scope of the appeal, and in particular paragraphs 20 and 21, and of what I have said in paragraph 33 above, the district chairman of appeal tribunals who looks at this case after it is received back from the Commissioners' office should consider what directions to give as to the provision of further evidence from the CSA and from the parents, as well as about any other relevant matters. It seems to me that it would be helpful for a financially qualified panel member to be part of the new appeal tribunal.

There is to be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 9 February 2007. The new appeal tribunal must apply the ruling in paragraph 24 above if it calculates earnings under paragraph 3 of Schedule 1 to the MASC Regulations. If it calculates earnings under paragraph 2A or 2B, it must consider and adjudicate on any submission of law put forward or adopted by the father. The evaluation of all the evidence and submissions will be entirely a matter for the judgment of the new appeal tribunal.

(Signed) J Mesher

Commissioner

Date: 3 March 2008