UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CSCS_4_2008, [2008] UKSSCSC CSCS_04_2008

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[2008] UKSSCSC CSCS_04_2008 (20 August 2008)

DECISION OF CHILD SUPPORT COMMISSIONER

My decision is that there is no competent appeal before me. Thus the purported appeal by the appellant is dismissed.

This case came before me for an oral hearing on 18 August 2008. The appellant represented herself. The Secretary of State was represented by Mr Brodie, Advocate, instructed by Miss McCurry, Solicitor, of the Office of Solicitor to the Advocate General. The second respondent represented himself.

The history of this case is that the Tribunal made their decision at page 247 allowing an appeal by the appellant in this appeal and finding that it was just and equitable to give a departure direction. The Tribunal gave that decision on 30 August 2007. The appellant wrote two letters to the Tribunals Service, the latter being on 1 October 2007 in which she indicated that she wished to make an appeal. She also requested a statement of the Tribunal's reasons for this decision. She indicated before me that she received a statement of reasons on 20 January 2008. Following upon receipt of that statement of reasons, the appellant did not make an application for leave to appeal to the Chairman. She said that if she had she would have a copy of it. She accepted that she did not. She said that she could assert that she had written such a letter but that it had not been received. She did not seek to say that. There is no application for leave to appeal to the Chairman by her in the papers. Thus, I consider that it is established that no application for leave to appeal to the Chairman was made by her.

The second respondent wrote a letter which is recorded at page 254 – 258 to the clerk to the Tribunal. That letter, when read as a whole, does not appear to be a letter seeking leave to appeal but rather a letter anticipating an application for leave to appeal by the appellant. The second respondent indicated

"The Tribunals decision was I believe correct in law, albeit that they also arrived at their findings using as they stated common knowledge, appeal papers and the not so accurate evidence from my ex-wife".

He went on to say

"In conclusion I felt it necessary for me to go into such detail regarding this submission of evidence which I hope will assist with your decision whether or not to grant another Tribunal Appeal as requested by my ex-wife."

He did not produce any other correspondence with the Tribunal.

What followed is set out in full below:

"For the attention of the Chairman

LEAVE TO APPEAL

(REFERRAL FOR A DECISION)

ABOUT THE CHILD SUPPORT DEPARTURES APPEAL FOR [Mrs J G P}]

I attached a leave to appeal application.

Please record your decision on the attached form.

Danika Connor

Clerk to the Tribunal

APPLICATION FOR LEAVE TO APPEAL

Appeal Tribunal Venue: Edinburgh

Date of Appeal Tribunal's decision: 30/08/2007

Tribunal Reference No.: 091/06/01906

Appellant's name: [Mrs J G P]

LTA applicant's name: Other party

SECTION A SET ASIDE AS ERRONEOUS IN LAW

1. There is before me an application for Leave to Appeal to the Commissioner.

2. In exercise of my jurisdiction I set aside the decision of the Appeal Tribunal, on the ground that it is erroneous in point of law. I refer the case for determination by a differently constituted Tribunal.

3. I have identified the following error of law.

4. I direct as follows.

SECTION B SET ASIDE AS AGREED ERRONEOUS IN LAW

I set aside the Appeal Tribunal's decision because each of the principal parties to the case has expressed the view that the Appeal Tribunal's decision is erroneous in point of law. ?

SECTION C

The application for leave to appeal is refused. ?

SECTION D

The application for leave to appeal is granted. ?

Any comments on the case are set out below

SECTION E

Treat the application as a setting aside request for procedural error ?

Chairman's signature (signed Susan Boyd)

Date 6.2.08

6. The appellant also received the following letter from the clerk to the Tribunal:

Dear [Mrs P]

About your CHILD SUPPORT DEPARTURES appeal

On 17/01/2008 I received an application for permission to appeal to the Commissioner against the Tribunal's decision made on 30/08/2007.

The Chairman has considered the application and decided to refuse permission to appeal against the Tribunal's decision.

If the applicant wishes to continue with their appeal, they may do so by contacting the Commissioners office directly.

If you need to contact me, please quote your national insurance number which is at the top of this letter.

Yours sincerely

Danika Connor

Clerk to the Tribunal"

That letter was dated 7 February 2008.

It is apparent from what I was told, that the reference on that letter to the application received on 17 January 2008 did not come from the claimant. It is likely to have been the letter from the second respondent of 14 January 2008 referred to above. It would thus appear that the Tribunal made a purported refusal of an application for leave to appeal by the second respondent which when his letter is read as a whole appears not to have been such an application. It is also apparent from the reference that "the appellant" referred to therein was the appellant in this appeal and that before the Tribunal, and that the LTA applicant's name was in fact the second respondent.

The appellant in this appeal then submitted an application for leave to appeal to the Commissioner which is at pages 262 – 267. Attached to the application for leave to appeal was the letter of 7 February 2008 from the Clerk to the Tribunal to her and the letter to the Tribunal Chairman, the reference to the Tribunal Chairman and the interlocutory decision made by the Tribunal Chairman on the purported application for leave to appeal by the second respondent to the Chairman.

The Commissioners' Office, understandably in my view having regard to the manner in which the letter to the claimant and the reference and interlocutory decision are set out, by mistake processed the case as application for leave to appeal to the Commissioner where the appellant had already been refused by leave by the Chairman. I proceeded to deal with the application on that basis.

Section 24(6) of the Child Support Act 1991 provides

"(6) no appeal lies under this section without the leave –

(a) of the person who constituted, or whilst the Chairman of, the appeal tribunal when the decision appealed against was given or of such other person as maybe determined in accordance with regulations made by the Lord Chancellor; or

(b) subject to and in accordance with regulations so made, the Child Support Commissioner."

Regulation 11(1) of the Child Support Commissioners (Procedure) Regulations 1999 provides

"11(1) an application to a Commissioner for leave to appeal against the decision of the appeal tribunal may be made only where the applicant has sought to obtain leave from the Chairman and leave has been refused or the application has been rejected."

That requirement is peremptory. Both Mr Brodie and the second respondent have submitted that this made the appeal before me, notwithstanding my purported grant of leave, incompetent. Mr Brodie said that the failure went beyond mere irregularity which could be corrected by me. He said that this issue went to fundamental competence. With that submission I agree. The appellant considered that I should not treat the appeal as incompetent. She indicated that she had made her intentions in relation to appeal clear all along. She also believed that the interlocutory refusal of leave applied to her. She indicated that it was not her fault that the Tribunal and Child Support Agency had, in her words, "erred in law in the way they dealt with this case." For myself, I can fully understand how the appellant had been misled into making the application direct to the Commissioner without first having made the necessary application to the Chairman. However, as this is a matter of competency, I am satisfied that I cannot obviate the statutory provisions in order to hear submissions on the appeal. The appellant was anxious that I should hear her submission on the merits and again I can understand that she might be frustrated if I did not do so. However, Mr Brodie submitted, I think correctly, that there would be no purpose in hearing submissions on the merits if I had taken the view that the appeal was incompetent. It is open to the claimant to make a late application for leave to appeal to the Commissioner to the Chairman as she is not yet cut off by the 13 months absolute time bar. It is not for the Commissioner to give her advice on this and to tell her how to proceed and she would be advised to take further advice if she was disposed to take this course of action. I have, in the circumstances, made the decision I have in paragraph 1.

(signed)

D J May QC

Commissioner

Date: 20 August 2008