UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CSCS_05_2008 (19 September 2008)

 


DECISION OF CHILD SUPPORT COMMISSIONER

1. My decision is that there is no competent appeal before the Commissioner. It is accordingly dismissed.
2. By direction I directed an oral hearing on the issue of whether there was any competent appeal before me. The appellant made no appearance. In the course of the hearing, the following fax was received by the Commissioner's Office in Scotland:

"We thank you for your letter with enclosure of 18 August 2008. As our client is going to be abroad on holiday on the date of the oral hearing and the solicitor dealing with this matter is unavailable, we confirm that there will be no representative on the part of the Appellant at the oral hearing, but we are content for the matter to be decided on the basis of the documentary evidence and submissions previously submitted on behalf of the Appellant".

The Secretary of State was represented by Mr Brodie, Advocate instructed by Mr Mathieson, solicitor, of the Office of the Solicitor to the Advocate General. The second respondent was represented by Mr Doxey. Regulation 22 of the Child Support Commissioners (Procedure) Regulations 1999 provides that if any party to whom notice of a hearing has been sent fails to appear at the hearing the Commissioner may proceed with the case in the parties absence or may give directions with the view to the determination of the case. The appellant and her representatives Garden Stirling Burnet, Solicitors had received the requisite notice. I decided to proceed with the case in the absence of the appellant.

3. A tribunal held on 23 August 2007 made the following decision in an appeal to it by the appellant before me.

"The appeal is disallowed.

The tribunal was satisfied that the Child Support Agency had jurisdiction in this case.

On the evidence the tribunal found that the number of nights on which the qualifying child was in the care of the appellant and stayed overnight at the same address as the appellant was less than 52 nights a year. Accordingly a reduction in the rate of Child Support maintenance payable by the appellant was not appropriate."

4. The appellant's solicitors on 23 November 2007 by fax made the following request to the tribunal:

"We confirm that our client wishes to appeal the decision of the Tribunal on a point of law. We formally therefore request a statement of reasons. We appreciate that this request comes more than one month after the issue of the decision, and would confirm that there is no fault on the part of the Appellant with regard to that."

5. What followed next is set out in the Direction by the Legal Officer to the Commissioner dated 19 March 2008. He said:

"There is as far as can be ascertained from the bundle, no record of any decision by the chairman on this point (the request for reasons) but this Office has been informed by the Tribunals Service in Glasgow that it is recorded in their computer system that the letter of 23 November was treated as having been received on 26 November. In those circumstances, the Tribunals Service has advised that the request would have been treated as out of time and would not have been seen by a chairman. The appellant was therefore issued with a letter (GAPS 948/97), which is an automatically generated letter, informing her that the request for a Statement was out of time."

6. On 21 December 2007 the appellant made an application to the chairman for leave to appeal to the Commissioner. In that letter it is said:

"We note the request for a written statement of reasons in this case has been refused by the chairman, and would wish to seek leave to appeal late in this case."

As indicated above in the direction by the Legal Officer that statement appears to be inaccurate in respect that the chairman himself did not refuse to provide a written statement of reasons. In fact, an administrative letter was sent by the Tribunal Service informing the claimant that the request was out of time.

The grounds of appeal submitted by the appellant to the chairman are contained in that letter and they are in the following terms:

"The position here is that in our respectful view, the original assessment was carried out on the basis of a clear error in law in relation to the question of jurisdiction, and the argument that we seek to put forward on behalf of our client is unanswerable, and therefore that it would be inequitable not to allow our client to pursue this appeal further".

7. The application was placed before the chairman and on 2 February 2008. The chairman granted leave to appeal to the Commissioner.
8. Thereafter a notice of appeal was submitted to the Commissioner's Office. It is recorded at pages 39 – 46. It included expanded grounds of appeal at page 42. These grounds of appeal raised matters of fact. They were as follows;

"The original assessment was carried out on the basis of a clear error in law in relation to the question of jurisdiction. In this case a Minute of Agreement was registered in the Books of Council and Session, which is equivalent to a maintenance order. The Agreement was registered prior to 3 March 2003. We accept the position would have been materially different, had the Agreement been registered after that date, but in our view, given the date of registration of the Agreement, this is equivalent to a maintenance order, and hence there is no jurisdiction on the part of the Child Support Agency in a non-benefit case. It is noted that the submissions on behalf of the Secretary of State forward that given there has been a material change of circumstances, and the elder child now lives with Mr Marshall, that then renders the Minute of Agreement no longer in force. We consider this to be fundamentally wrong in law. The Agreement is in force until such time as it is varied by the court, and does not come to an end by virtue of a material change in circumstance. Any form of variation of aliment would require to be made by way of application to the court. Therefore we would respectfully submit that the entire basis for the assessment carried out in this case is incorrect in law, and the Child Support Agency had no jurisdiction to have carried out the assessment."

9. On 23 April 2008 the first respondent made a submission in relation to the competency of the appeal. I issued a direction on 2 May 2008 asking for submissions from the appellant and the second respondent on this issue. The second respondent made a submission in respect of competence at pages 66 – 68. The appellant's solicitors responded to my Direction but did not directly present any argument in relation to the competency of the appeal. I thereafter on 27 June 2008 directed an oral hearing on the competency of the appeal.
10. It was not disputed by the parties appearing before me that the relevant statutory provisions had not been complied with. Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

"(4) Subject to paragraph 4A, a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of reasons for the tribunal's decision within one month of sending or giving of the decision notice to every party to the proceedings or within a such longer period as may be allowed in accordance with regulation 54 and following that application the chairman, or in the case of a tribunal with only one member, that member shall record a statement of the reasons and a copy of that statement shall be given to every party to the proceedings as soon as may be practicable".

Regulation 54(1) of the same regulations provides:

"The time for making an application for the statement of the reasons for a tribunal's decision may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but, subject to regulation 53(4A), no application shall in any event be brought more than three months after the date of the sending or giving of the notice of the decision of the appeal tribunal".

11. Regulation 10(1) of the Child Support Commissioners (Procedure) Regulations 1999 provides:

"10(1) subject to paragraphs (5) to (7), an application to a chairman for leave to appeal to a Commissioner from a decision of an appeal tribunal shall be made within one month of the date the written statement of the reasons for the decision was sent to the applicant."

In this case there was, as has been seen, no statement of reasons. Thus in accordance with regulation 10(1) of the Commissioners Procedure Regulations, the time limit for appealing had not yet begun to run. Further it would appear that the application made under regulation 54(1) for the extension of time was made before the expiry of the three month period but was never judicially determined.

12. Mr Brodie's submission was that notwithstanding the absence of the statement of reasons and the fact that the time for appealing had not yet begun to run the grant of leave to appeal to the Commissioner rendered the appeal contained in the notice of appeal presented to the Commissioner's Office competent. Mr Doxey on behalf of the second respondent took a contrary view.
13. Mr Brodie, in his submission that the appeal arising from the chairman's grant of leave is not rendered incompetent by the cumulative failures to conform to the statutory provisions, relied upon the decision of a Tribunal of Commissioners in the appeals CSDLA/500/2007 and CSDLA/524/2007 and the decision of Mr Commissioner Williams and CJSA/3513/2007. The decision of the Tribunal of Commissioners was related to the failure of a tribunal to conform to regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 in respect of the keeping and production of a record of proceedings. That authority does not assist as the issue there was whether the breach led to an error in law on the part of the tribunal. It was not related as in this case as to whether the proceedings were competent. The decision of Mr Commissioner Williams is more pertinent to the issue to be determined in this case. In that case a statement of reasons was not prepared because of the sudden death of the tribunal chairman subsequent to an application for a statement of reasons having been received timeously.

I set out in full what was said by Mr Commissioner Williams in CJSA/3513/2007:

"8 As a result, the decision [that of the tribunal] as quoted is left to read in isolation. And the appellant cannot produce a statement of reasons to accompany the application to appeal. The problem is essentially the same in factual terms as that discussed fully and authoritatively in R(IS) 11/99. CIB 4833 1998, to the same effect, adds useful further analysis. Those decisions deal with the primary and secondary legislation before the Social Security Act 1998 changed the procedural rules about appeals. I do not therefore adopt those decisions as applicable as they stand to the new statutory provisions. But the core issue at the heart of those decisions is the same issue as here. It is how to deal with a decision that is plainly faulty when a strict reading of the procedural rules combined with a turn of events with which the rules do not deal together prevent an appeal being processed properly.

9 This procedural problem is fully within the kinds of problem discussed by Lord Woolf MR in his leading judgment in the Court of Appeal in R v Secretary of State for the Home Department ex parte Jeyeanthan [1999] EWCA Civ 3010, [1999] 3 All ER 231. He lays down the approach to be taken to problems such as this. I do not need to set out the full judgment at length. At paragraph 11 of his analysis, Lord Woolf avoided the sharp categorisation of procedural rules as either mandatory (that is, procedures that must be followed) or directory (procedures that should be followed). His guidance on dealing with procedural defects is:

"In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances".

10 That guidance was endorsed by the House of Lords the following year in Attorney General's Reference No 3 of 1999 [2001] 2 AC 91. Lord Steyn, giving the leading judgment, set out his approach to the procedural issue in that appeal (at
p 117):

"My Lords, I acknowledge at once that reasonable minds may differ as to the correct interpretation of a subsection which has no parallel in PACE or any other statute. Nevertheless, there do seem to be secure footholds which may lead to a tolerably clear answer. It is not along the route adopted by the prosecution of asking whether the relevant provision is mandatory or directory. In London and Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 WLR 182, and 188-190, Lord Hailsham of St Marylebone L.C. considered this dichotomy and warned against the approach "of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments." In R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All.
E.R. 231, at 237A-B, Lord Woolf, M.R. now Lord Chief Justice, echoed this warning and held that it is "much more important to focus on the consequences of the non-compliance." This is how I will approach the matter."

11 Their Lordships recently returned to the issue in Seal v Chief Constable of South Wales Police [2007] UKHL 31, Lord Woolf being a member of the House for that decision. The question was whether an individual could bring an appeal under section 139 of the Mental Health Act 1983 without leave of a High Court judge. Lord Woolf (at paragraphs 33 and 34) set out the guidance of Lord Hailsham in the Aberdeen again and noted that both counsel accepted his own guidance based on that approach as authoritative in Seal. He noted that the guidance (cited above) applied in "all the circumstances, Parliament not having made clear what were to be the consequences of non-compliance with the statutory requirement" (paragraph 33). But His Lordship was, with Baroness Hale, in the minority in the decision. Lord Bingham gave the leading judgment for the majority of the House. He commented that the argument of counsel based on Jeyeanthan had "considerable force". But he concluded that in that case the clear wording of section 139 made the requirement of leave one that could not be sidestepped or ignored. He also noted that the failure of the claimant in that case was not a failure to obtain leave (which, his Lordship considered, could be granted retrospectively) but to act within the generous time limit allowed.

12 I take from those endorsements (and the regular citation of Jeyeanthan in other courts and tribunals - see for example R(H) 1/07) that Lord Woolf's guidance about the application of Lord Hailsham's principles to jurisdictions such as this is the approach that I am to adopt. There is a procedural defect here. A party asked for a statement of reasons within the appropriate time. That statement was not, and cannot now be, given to the party. Technically that is a breach of regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"). It is a breach that cannot be remedied by a tribunal and for which the regulations provide no alternative. If the chairman who determined the application and I were both to reject the application simply because there could be no statement of reasons, an arguable result would be that the claimant's appeal was left substantively undetermined with neither the claimant nor the Secretary of State able to take matters further. So the parties will be denied their rights of appeal and the claimant any undetermined entitlement he had to benefit. That cannot be a fair outcome, and is not to be applied unless Parliament has made it clear that that is the approach to be taken.

In my view, the terms of this legislation do not make that clear. This is a result of faulty regulatory drafting, not of an explicit and unambiguous section in an Act as in Seal.

13 The approach of "doing what is just" is delivered by the fairness and practical sense of R(IS) 1/99 and similar decisions in this statutory context as well as the context in which they were made. The test in R(IS) 11/99 is: are the grounds of appeal justiciable without any full statement of the tribunal's reasons? Without going beyond the unusual context of this case, I consider that is how I should approach this appeal in order to achieve the result to be pursued following Lord Woolf's analysis."

14. It is however to be noted that there are substantial differences between that case and the present. First the chairman before whom the application for leave to appeal to the Commissioner was placed refused it. It was the Commissioner himself who decided to grant leave to appeal in the absence of the full statement. (See paragraph 16). Further the Commissioner in that case found that the tribunal decision was ambiguous and incomplete on it's face and there was accordingly an obvious error in law on the part of the tribunal. Mr Commissioner Williams also prefaced his conclusion, as can be seen from paragraph 8, that he was seeking to find a solution as to how to deal with a decision that was plainly faulty. In the instant case the appellant has asserted that the tribunal erred in law in relation to the issue of jurisdiction of the Child Support Agency. However, that proposition was not accepted by the other parties to the appeal. Thus the decision was not indisputedly and plainly faulty. In addition in the instant case there was a failure by the appellant's solicitor to act timeously to ask for a statement within one month and to ask for an extension to the period of one month at the very last minute and no judicial determination of that request had been made. Mr Brodie accepted that Mr Commissioner Rowland in R(IS) 11/99 in paragraph 16 had indicated that the Commissioner, had without a full statement, no jurisdiction to entertain an application for leave under the regulations applying at the time but that there was a way under regulations then in force that the Commissioner was able to obviate the bar by other means.

Mr Brodie made submissions to me in the context of what was said by Mr Commissioner Williams in CJSA/3513/2007 under reference to the authorities referred to therein. It is apparent when considering the issues Mr Commissioner Williams took more account of what was said by the minority of the House of Lords in Seal –v- Chief Constable of South Wales Police rather than that of the majority. Whilst that case was concerned principally with the requirement under section 139(2) of the Mental Health Act 1983 in relation to the requirements of leave to bring actions against the persons specified in section 139(1) of the Act, the majority of the House set out the approach to be adopted to statutory provisions whilst setting out conditions in relation to the requirements for the bringing of an appeal or making application for leave. The issue was encapsulated by Lord Bingham of Cornhill in his speech where he said (at paragraph 18):

"While, therefore, I incline to favour the Chief Constable's reading of section 139(2), I do not think the answer to a question such as this should ordinarily turn on a detailed consideration of the language used by Parliament in one provision as compared with that used in another. The important question is whether, in requiring a particular condition to be satisfied before proceedings are brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claim should fail to comply with the requirement; but not nullifying the proceedings: see R v Soneji [2205] UKHL 49, [2206] 1 AC 340,
para 23. To answer this question a broader inquiry is called for".

Lord Bingham then went on to say:

"I would respectfully echo and endorse the principle enunciated by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286, which implicitly underpinned the argument for Mr Seal:

'It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is … a 'fundamental rule' from which I would not for my part sanction any departure.'

But the words first introduced in section 16(2) of the 1930 Act ("No proceedings, civil or criminal, shall be brought") appear to be clear in their effect and have always been thought to be so. They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before. They were re-enacted with knowledge of the effect the courts had given to them. To uphold the decision of the three courts which have already considered the issue in this case and decided it in accordance with a clear consensus of professional opinion is not to sanction a departure from what Viscount Simonds rightly considered to be a fundamental rule."

It is apparent that in taking the view which they did the House had regard to the Parliamentary intention of the relevant statutory provisions and the clarity with which the intention was expressed.

It is that rather simpler approach which I consider I am bound to follow in relation to the statutory provisions which required to be applied in the instant case.

15. Mr Brodie did not appear to demur from the fact that what Parliament intended within the statutory scheme was that the appeal to the Commissioner was one related to error in law only. The regulations provided that the tribunal against whose decision appeal is sought must provide the reasons for its decision which include the findings in fact upon which it relied. The statutory provisions also provided that any appeal would be taken within a reasonable time. Such a statement was intended to enable the Commissioner to properly carry out his appellate function, which in the present case he would be unable to do as he had no indication of the factual basis upon which the tribunal determined the appeal.

Findings in fact as to the content and effect of the minute of agreement and the issue of shared care were essential to the decision which the tribunal required to make. The grounds of appeal as presented to either the chairman or in the notice of appeal would not be justiciable in the absence of the tribunal's findings in fact. It has to be appreciated that in child support cases the issue is not just one between the appellant and the Secretary of State but also the second respondent whose interests must be taken into account. The statutory scheme is designed to avoid stale appeals and provide a framework within which the appellate jurisdiction can properly determine an appeal on a point of law before it and to provide the respondents with protection with that Parliament intended them to receive. Thus in making the inquiry referred to in Seal I have reached the conclusion I have as I would in the absence of a statement been unable to determine the appeal. In doing so I appreciate that my conclusion might not be consistent with the pragmatic solution adopted by Mr Commissioner Williams in the unfortunate circumstances which arose in CJSA/3513/2007. However, I do not consider as was suggested by Mr Commissioner Williams that the requirements were as he put it as "a result of faulty regulatory drafting". The intention is quite clear when the nature of the right of appeal and the powers of disposal of an appeal by the Commissioner given by the Act are taken into account.

16. Mr Brodie accepted that if I had taken a contrary view that would not have been an end of the matter. This is because even if the appeal was competent the notice of appeal would not have met the requirements of regulation 14(2) of the Procedure Regulations because of the absence of the statement of reasons. I would then have had to consider whether to waive the irregularity in the notice of appeal under regulation 25 of the Procedure Regulations which would have involved the exercise of a discretion in all the circumstances. I should indicate that I would have been unlikely to have done so in the circumstances outlined above. It is however not necessary nor would it be possible in the absence of further submission to be more definite than that.

(signed)

D J May QC

Commissioner

Date: 19 September 2008