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[2008] UKSSCSC CCS_2621_2006 (04 January 2008)

CCS/2621/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Child Support Appeal Tribunal dated 13 March 2006 on Case No. U/06/900/2005/00086 is erroneous in law. I set that decision aside and, as empowered by section 24(3)(d) of the Child Support Act 1991, I refer the case to the Secretary of State for reassessment of the absent parent's liability for child maintenance on the basis that:-

(1) the interim maintenance assessment made on 25 July 1995 was effective until the receipt of the maintenance enquiry form returned by the absent parent to the Child Support Agency in February 2000 and

(2) that the information supplied by the claimant on the maintenance enquiry form and such other relevant information as the Secretary of State has acquired applies to the calculation of a maintenance assessment effective from the date upon which the interim assessment ceases to be effective.

The appellant is the father and, for the purposes of the Child Support Act 1991, the absent parent of a child who is, for the purposes of the 1991 Act, a qualifying child. The first respondent to the appeal is the Secretary of State. The second respondent is the mother of, and for the purposes of the Act, the parent with care of the qualifying child.

The appeal is taken, with the leave of a Regional Chairman of the Tribunal Appeal Service and the support of the first respondent, against the tribunal's decision setting aside the Secretary of State's decision to replace the interim maintenance assessment made on 25 July 1995 with a maintenance assessment effective from 9 January 1995 and a series of amendments to that assessment with effective dates from 18 April 1995 to 31 March 2003.

The factual background to this appeal is explained in the statement of the tribunal's reasons for its decision which is in the following terms:-

"This is a formulaic appeal in respect of an assessment made under the law prior to 8 March 2003. The tribunal included a financial member. The appellant gave oral evidence and the second respondent didn't attend.

The [absent parent] has taken little or no active part in either the assessment or the appeal process apart from in the appeal process the provision of a statement which the tribunal found did not address the issues.

The evidence before the tribunal which was accepted was that an MEF form was issued to the respondent on 9.1.95 which he did not return. As a consequence, eventually, an interim maintenance assessment (category A) was issued out of which in the absence of payments, a liability order in the sum of £20,626.07 was made which remained unenforced. However an MEF form was received by the Agency in early 2000 unexpectedly from the respondent.

On the balance of probabilities while the precise date this was received is not known the tribunal find that it was received on 14 February 2000 and it was prompted by the respondent's receipt of the liability order.

Upon receipt of the MEF the Agency carried out the procedure required by reg 8D of the maintenance assessment procedure, i.e. to replace the interim maintenance assessment with a formal assessment. It is against this procedure that the appellant appeals.

The obligation upon the Agency to carry out this process is absolute and readily understood in the case of a default of modest duration. However, here the default spans 5 years and is only addressed upon the issuing of enforcement proceedings. Further during the period of 5 years the Agency has taken into account not only the circumstances at the original issue of the MEF but a variety of changes and circumstances which had the respondent not been in default would only be actioned upon the Agency being notified. It is also clear that the appellant has been denied the ability to effectively challenge the situation.

Given the wording of reg 8 the tribunal find that they are bound by the terms of the Regulation although if pressed would say that the initial assessment only is required by reg 8 and the changes of circumstances thereafter treated as such and only taken into account from the date of notification, i.e. 14.2.00.

However reg 8D(5) provides that an interim maintenance assessment Category B can only be cancelled from when a decision maker receives sufficient information to enable him to do so.

In this case the decision maker has not received confirmatory evidence of the respondent's housing costs and has used what is termed best evidence, i.e. that which they have been told by the respondent.

The tribunal find as a fact that given the respondent's total failure to engage with the Agency for a protracted period to his advantage that evidence is unreliable and should have been rejected. The respondent seeks an assessment, he alone has the ability to supply primary evidence of his housing costs, and as a consequence he cannot complain, if by reason of his default that these details are not available.

As the decision maker is not in possession of the respondent's housing costs he cannot make a correct assessment and as a consequence of the interim maintenance it must stand until 14.2.00 the date of receipt of his MEF. The respondent is a Director of a limited company and in addition to his salary draws bonuses.

The decision maker was, however, incorrect to add a dividend payment at 14.2.00 as that dividend was not payable until after that date.

The respondent's salary is however to include the detailed dividends as indicated for the two remaining effective dates.

The tribunal draws adverse inferences from the respondent's conduct and as a consequence do not accept the housing costs without independent evidence. As a consequence the respondent's housing costs are to revert to those where independent evidence has been given namely those as at 25.3.96.".

The statement of the absent parent's grounds for appealing the tribunal's decision to a Commissioner does not identify any error in law in the tribunal's decision. It is largely his explanation of why he did not co-operate with the Child Support Agency until February 2002, a complaint about alleged delays on the part of the Agency in dealing with the information which he eventually supplied and an explanation of his financial difficulties.

In a written submission of 5 September 2006 the Secretary of State's representative argues firstly that it was an error in law for the tribunal to reject the absent parent's evidence of his housing costs because they were undocumented and that the tribunal should not have drawn adverse inferences from the absent parent's conduct without giving him advance warning of its intention to do so. The Secretary of State's representative is, of course, correct when he says that evidence should not be rejected simply because it is undocumented. But a tribunal is obliged to take a view as to the reliance which can be put on a party's undocumented evidence and in this case the tribunal was quite entitled to conclude that the absent parent had been recalcitrant and that his undocumented evidence, therefore, carried little or no weight. I think that the reference in the statement of the tribunal's reasons to the drawing of adverse inferences is no more than the use of over technical language to reiterate the point already made that the tribunal did not regard the absent parent as a reliable witness.

The second point on which the Secretary of State's representative submits the tribunal's decision is erroneous in law is the tribunal's seeming imposition of a limit to the time within which the absent parent could provide the information which would enable the Secretary of State to replace the interim assessment with an assessment and that the level of maintenance fixed by the interim assessment could not be altered to reflect changes in circumstances notified to the Agency only belatedly and only because of the issue of a liability order. Also the tribunal's direction that the interim maintenance assessment should be reinstated was inconsistent with its direction that the absent parent's housing costs should be taken to be those which the maintenance enquiry form indicated applied from 25 March 1996 and which had been verified by the Agency, not those on which the original interim assessment was based in 1995. Paragraph 15 of Schedule 1 to the 1991 Act authorised the Secretary of State to make separate maintenance assessments in relation to different specified periods. If the tribunal was satisfied that the absent parent had, in the maintenance enquiry form, supplied satisfactory information about his housing costs from 25 March 1996 but not for those payable from 9 January 1995 to 25 March 1996 it should have applied regulation 8(6) and (7) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 by virtue of which the interim maintenance assessment ceased to have effect on the date on which the Secretary of State received the information which enabled him to make a maintenance assessment with effect from 25 March 1996. The tribunal, suggests the Secretary of State's representative, may have made the right decision for the wrong reasons.

In his written submission of 4 October 2006 the solicitor for the parent with care makes three basic points. Firstly, the Secretary of State is not entitled to forget about the liability order for £20,626.07 issued by the court in 2000 because the absent parent's debt crystallised on the issue of the order. Secondly, the effect of regulation 8(d) of the Maintenance Assessment Procedure Regulations is that the interim maintenance assessment remained effective until the Secretary of State was provided with the information which would have enabled him to make a maintenance assessment effective from the date of issue of the maintenance enquiry form. Thirdly, if the tribunal was right to direct reinstatement of the interim maintenance assessment but had done so for the wrong reasons the Commissioner should make his own decision that the interim assessment remained in effect for the period until the maintenance enquiry form was returned.

I am in substantial agreement with the submission for the parent with care. Because of the effect of the Maintenance Assessment Procedure Regulations the matter of the liability order is for the appeal tribunal and for me somewhat academic. The calculation of the liability for child maintenance is entirely a matter for the Secretary of State and for those to whom an appeal can be made under the 1991 Act. The court to which an application for a liability order is made has no jurisdiction to consider the correctness of the maintenance assessment under which the liability has arisen (Farley v. Secretary of State for Work and Pensions and Another ([2006] UK HL 31 and [2006] 3 All ER 935). As the order is in favour of the Secretary of State it is for him to enforce it and as questions relating to the collection of child support maintenance are not within the jurisdiction of the tribunals or the Commissioners neither are questions relating to the enforcement of a liability order. I think that if a parent with care is aggrieved by the Secretary of State's failure to enforce such an order the remedy is in judicial review.

As both representative's argue, reg 8D of the Maintenance Assessment Procedure Regulations is relevant to this case. So also is regulation 30A. Of reg 8D it is paragraph (6) as read with (7) which is relevant. Paragraph (6) states:-

"Where the Secretary of State has insufficient information or evidence to enable him to make a maintenance assessment calculated in accordance with Part I of Schedule 1 to the Act for the whole of the period beginning with the effective date applicable to a particular case, an interim maintenance assessment made in that case shall cease to have effect –

(a) on 18 April 1995 where by that date the Secretary of State has received the information or evidence set out in paragraph (7); or

(b) on the first day of the maintenance period after 18 April 1995 in which the Secretary of State has received that information or evidence.".

Paragraph (7) provides that the information or evidence referred to in paragraph (6) is that which enables the Secretary of State to make a maintenance assessment for a period beginning later than the effective date in the particular case, namely, the date of issue of the maintenance enquiry form.

Paragraph (1) of regulation 30A provides:-

"Subject to regulation 33(7), where a new maintenance assessment is made in accordance with Part I of Schedule 1 to the Act following an interim maintenance assessment which would cease to have effect in the circumstances set out in regulation 8D(6), the effective date of that maintenance assessment shall be the date upon which that interim maintenance assessment ceased to have effect in accordance with that regulation.".

It seems to me, therefore, that regulation 8D and regulation 30A are dovetailing provisions which, read with the provisions empowering the making of maintenance assessments and interim maintenance assessments, provide that if a parent of a qualifying child fails to provide the information which enables the Secretary of State to make a maintenance assessment the Secretary of State can make an interim maintenance assessment and if at a later stage the parent concerned provides information which would enable the Secretary of State to make an assessment for part of the period covered by the interim assessment the interim assessment ceases to have effect from the day on which the information is provided and the Secretary of State can make a new maintenance assessment which takes effect from the same date.

The tribunal was, therefore, correct to direct that the interim maintenance assessment should stand until the date on which the maintenance enquiry form was returned to the Agency by the absent parent. It was inconsistent with that direction for the tribunal to make a further direction to the effect that the housing costs payable from 1996 should apply throughout the entire period of the interim assessment and it is on account of that error that I have set the tribunal's decision aside but I have made my own decision directing the Secretary of State to make an assessment on the basis that the interim maintenance assessment remains in effect until the date of the receipt of the maintenance enquiry form.

I do not readily see in the papers any specific request by the solicitor for the parent with care for an oral hearing of this appeal but it is plain from his submission and other correspondence that he assumes that there will be such a hearing. However, as my decision in effect sustains the case for the parent with care that the interim assessment should not be replaced there would be little point in an oral hearing and it is better that the matter should go back to the Secretary of State, without the delay which an oral hearing would entail, for him to continue with the collection of what is due under the interim maintenance assessment and take account of the tribunal's observations on the absent parent's income insofar as they are relevant to the new assessment. If the solicitor for the parent with care has any observations on that matter he can put them to the Secretary of State.

For the foregoing reasons the appeal succeeds, inasmuch as I have set the tribunal's decision aside, and my decision and directions are in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 4 January 2007