UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CCS_1937_2008 (07 October 2008)

DECISION OF THE CHILD SUPPORT COMMISSIONER

My decision is given under section 24(2) and (3)(d) of the Child Support Act 1991:

I SET ASIDE the decision of the Colchester appeal tribunal, held on 30 April 2008 under reference 919/08/00146, 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.

Before this case is listed for rehearing, it must be put before a district chairman to consider whether it is necessary or appropriate to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In particular, the chairman may wish to give directions for the production of any further evidence by either parent and for a financially qualified panel member to sit as a member of tribunal at the rehearing.

REASONS

This appeal is brought with my leave. It raises an issue that regularly arises before appeal tribunals and the Commissioners. What is the correct approach when one parent provides evidence but on condition that it is not shown to the other parent?

A. The appeal to the Commissioner

This case concerns the child support maintenance payable in respect of Sean and Sara. Their father is the appellant. Their mother is a respondent. They are, in the terminology of the legislation, their children's non-resident parent and parent with care respectively. The Secretary of State is the other respondent.

B. Background

The non-resident parent has been liable to pay child support maintenance since at least 2004. In May 2007, his liability was calculated at £46.29 a week from the effective date of 21 July 2006. The parent with care applied for a variation from that calculation on the grounds that the non-resident parent had diverted income and had a life-style that was not consistent with his declared income. The Secretary of State refused to agree to a variation and the parent with care exercised her right of appeal to an appeal tribunal.

C. The appeal to the appeal tribunal

The non-resident parent made a detailed written submission to the tribunal in which he stated that he was only able to maintain his standard of living because of his wife's financial support from two successful businesses (page 59).

A tribunal sat on 29 February 2008 and issued directions, principally directed to the non-resident parent. One of the directions was to produce evidence of his wife's income. He replied to the tribunal in a letter of 27 March 2008. This letter was before the tribunal (page 110). He stated that his wife had provided a statement of her income, which was enclosed, but had not given authority for it to be disclosed to the parent with care. Her statement was not included in the papers for the tribunal, but it was clear from the letter that that statement existed. (Her statement is now in the papers at page 124 and I will say more about it later.)

I have checked the tribunal's file and can find nothing about the evidence from the non-resident parent's wife. There is nothing to show whether it was referred to a district chairman and there is no correspondence with the non-resident parent about it. As far as I can tell from the tribunal's file and the structure of the papers, the clerk excluded the evidence from the papers and therefore from the tribunal.

The tribunal allowed the appeal at a paper hearing and agreed to a variation. The chairman provided reasons. They commented on the non-resident parent's expenditure and continued:

'There was no indication that this was paid for (in whole or part) by the [non-resident parent's] current partner.'

D. Analysis

There are limited powers to withhold evidence from one of the parties. The evidence in this case is outside those powers.

This is not a case in which evidence has been provided, but has been withheld from the tribunal by overenthusiastic masking. I dealt with that in R(CS) 3/06.

This is a case in which one parent has provided evidence on condition that the other does not see it. It would have been wrong to disclose the evidence contrary to that condition. However, the tribunal must have been aware from the documents before it that: (i) the non-resident parent was arguing that his wife funded his life-style; (ii) she had provided evidence that she had income sufficient to do so; (iii) she had done so on condition that it not be disclosed; (iv) her evidence was not in the papers; and (v) there was nothing to show that the non-resident parent had been told that it was not permissible to provide evidence for the tribunal's eyes only.

It may seem naïve, and it is, for a party to believe that evidence can be revealed to the tribunal but withheld from one of the other parties. That is so contrary to the nature of judicial proceedings that there is no excuse for anyone to believe it. However, experience shows the view is regularly held. Tribunals issues notes of guidance and some district chairmen issue directions that attempt to prevent misunderstanding about the nature of proceedings. But I am not aware of any notes of guidance that deal with this particular issue and the directions given by the tribunal at its first sitting did not anticipate that it might arise.

So the question is: what should the tribunal have done? That depends on the principles that it should have applied.

The key consideration is that parties are entitled to a fair hearing under Article 6 of the European Convention on Human Rights:

'1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.'

As part of that right, the parties must have a fair chance to put their cases to the tribunal. In the case law of the European Court of Human Rights, this is part of the requirement of equality of arms, as explained in Dombo Beheer CV v The Netherlands (1993) 18 EHRR 213:

'33. … it is clear that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to such cases as well as to criminal cases.

The Court agrees with the Commission that … "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.'

This European concept of equality of arms imposes in appropriate cases a duty on the tribunal to adopt an enabling role. This ensures, amongst other things, that the parties understand the nature of the proceedings. The application of that approach is not limited to the panel hearing the case. Much can be done, and is best done, in advance of the hearing to ensure that the parties understand what they may and may not do, as well as the significance of actions that they may take unadvisedly. The notes of guidance issued by the tribunal contribute to the avoidance of misunderstandings, as do the standard directions that I commended in CCS/2786/2005 at paragraph 5.

How should the tribunal have applied those principles? It knew that the non-resident parent's case was that his wife was funding his life-style. It knew that his wife had provided evidence in support, but did not want this disclosed. It knew that evidence was not in the papers. It should at least have checked whether there had been correspondence about disclosure. As there had been none, the tribunal should have ensured that the non-resident parent understood that the tribunal could not, as matters stood, take his wife's evidence into account. It did not do that. That was a failure of its enabling role to ensure equality of arms in the presentation of the non-resident parent's case and a violation of the Convention right in Article 6.

E. The income of the non-resident parent's wife

I said that I would say more about the statement provided by the non-resident parent's wife. Both parents have commented on this in their observations.

The statement is at page 124 and refers to an accompanying confirmation from her accountant. On granting leave, I remarked that the confirmation was still not available. There is a letter from the accountant at page 125, but this is expressed to confirm the non-resident parent's income. The parent with care mentioned this in her observations on the appeal and the non-resident parent has replied that the letter was written in error and actually states his wife's income, not his (page 148). He has produced a letter from the accountant to that effect (page 149).

The tribunal will have to find how much the non-resident parent earns and whether his life-style can be, and is, supported by his wife's earnings. In doing so, it will have to decide which of the two contradictory letters from the accountant is the more reliable. There should be contemporaneous accounting documentation available that will resolve this issue.

F. Disposal

I must set aside the tribunal's decision, for the reasons I have given.

The non-resident parent is now aware that his wife's evidence will not be considered unless it is available for all the parties and the tribunal.

In view of the nature of the issues and evidence before the tribunal, I consider that it is more appropriate to direct a rehearing before an appeal tribunal than to substitute a decision for that of the tribunal. That will allow the decision to be made with the benefit of a financially qualified panel member.

Signed on original
on 07 October 2008

Edward Jacobs
Commissioner