Upper Tribunal (Administrative Appeals Chamber)

[2008] UKUT 27 (AAC) (03 December 2008)

 


[2008] UKUT 27 (AAC)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Brighton appeal tribunal dated 8 February 2008 under file reference 177/07/01999 involves an error on a point of law. The Upper Tribunal therefore sets aside the decision of that tribunal.

The Upper Tribunal refers the case back to a differently constituted First-tier Tribunal for rehearing.

The parties should comply with the Directions in the Schedule to this decision in preparation for the rehearing.

This decision is given under section 12(2)(b)(i) and section 12(3) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1. The appellant's appeal to the Upper Tribunal (formerly the Child Support Commissioner) is allowed. The decision of the Brighton appeal tribunal sitting on 8 February 2008 under file reference 177/07/001999 involves an error on a point of law.

2. I am not in a position to remake the decision myself. It follows that I must refer the case back to the First-tier Tribunal (formerly the appeal tribunal) to conduct a rehearing. The parties should comply with the Directions listed in the Schedule to this decision before that rehearing takes place.

The parties to this appeal and the CSA's two schemes

2. In the technical language of the child support legislation, the appellant is the non-resident parent under the maintenance calculation, the first respondent is the Secretary of State for Work and Pensions and the second respondent is the parent with care. For convenience, however, I shall refer to them in this decision as the father, the Secretary of State and the mother respectively.
3. For all practical purposes the Secretary of State's functions in relation to child support were carried out by the Child Support Agency (the CSA) and now the Child Maintenance and Enforcement Commission (CMEC). This case concerns the father's child support liability for the couple's two daughters, now aged 14 and 11, who live most of the time with their mother but also a significant amount of time with their father.
4. The legislation currently provides for two child support schemes, an "old scheme" and a "new scheme". In broad terms, cases that predate 3 March 2003 are old scheme cases and cases since that date are governed by the new scheme. The distinction is important, as there are fundamental differences in both the structures and the rules for the two schemes.
5. The mother's initial application was made on 31 January 2003. However, the effective date for the purposes of liability was 2 April 2003, a month after the new scheme came into effect. Under the relevant legislation this case is therefore dealt with under the new scheme, as contained in the Child Support, Pensions and Social Security Act 2000.

The impact of the new tribunal system on this case

6. This case started as the appellant's appeal to the Child Support Commissioner against the appeal tribunal's decision. However, on 3 November 2008 the Tribunals, Courts and Enforcement Act 2007 replaced the appeal tribunal with the Social Entitlement Chamber of the First-tier Tribunal. The 2007 Act also replaced the Child Support Commissioner with the Administrative Appeals Chamber of the Upper Tribunal with effect from the same date. These changes have been made with a view to improving the system of administrative justice as a whole.
7. A Judge of the Administrative Appeals Chamber of the Upper Tribunal has therefore decided this appeal. The reforms in the 2007 Act affect judicial and tribunal titles, and more significantly make important procedural improvements relating to the disposal of appeals. However, the changes in the 2007 Act do not affect the substantive law relating to child support liabilities.

A (relatively) short history of the background to this case

The first variation application

8. As with so many child support appeals at this level, this case has a long and unhappy history. The mother applied for child support in January 2003. She described the father as a "very wealthy individual" and provided some information relating both to his lifestyle and properties that he owned. The central events are as follows.
9. On 4 August 2003 the Secretary of State decided that the father was liable to pay a total of £52 a week in respect of his two daughters. This figure had been arrived at on the basis that the father had rental income of £24,095 and a separate self-employed business income of £7,129, totalling £31,224 (for the 2001/02 tax year). This produced a weekly net income of £454.29. As he had two children, his maximum liability was 20 per cent of this figure (£91). However, as he had shared care at that time for on average 3 nights a week, that figure was reduced by three-sevenths, resulting in a maintenance calculation of £52 a week.
10. The income data for this calculation were based on a two-line fax received from the father's accountants. The CSA appears to have taken no action and certainly no decision on the mother's January 2003 request for a variation based on the father's assets or lifestyle.

The second variation application

11. A year after her original application, on 22 January 2004, the mother made a further application for a variation based on the father's assets and lifestyle. She enclosed copies of Land Registry entries in relation to various properties owned by the father in East Sussex. Repeating a point she had made the previous year, she stated that he also owned a property and land in France (amounting to 40 acres).
12. This time the CSA asked the father for his comments about the variation application. He confirmed that he owned nine rental properties in England as well as a property in France, which he had been renovating at considerable cost. He compared the value of his car and boat with those owned by the mother. The CSA then took no further action on the application.
13. There were subsequent adjustments to the father's child support liability because of a new child in his own household and owing to changes to the shared care arrangements for the children who were the subject of this application. His child support liability rose to £65 a week (from 12 October 2005), reduced to £55 a week (from 21 December 2005) and then increased again to £66 a week (from 3 January 2007).

The third variation application

14. So the CSA seemed to be coping reasonably well with both changes in the number of children and the scope of the shared care. However, the CSA's competence at handling variation applications was more questionable. On 12 May 2006 the mother made a further application for a variation on the basis of assets and lifestyle. A CSA official seems to have decided that "the let properties are the NRP's [i.e. the father's] income so no variations required on this case". The logic of this assertion, let alone the legal basis for this decision, is unclear.
15. In October 2006 the father provided copies of his formal accounts for the 2005/06 tax year. These showed a net profit of £16,569 on his rental properties in England (down from £31,268 the previous year) and a net loss on his French property of £3,598. The accounts included no reference to any separate self-employed income.

The fourth variation application

16. On 22 February 2007 – more than four years after she had first tried – the mother made yet another (her fourth) variation application. This referred in detail to three grounds: assets, lifestyle and diversion of income. The CSA did not ask the father for his comments. Instead, an officer decided on 30 April 2007 that it did not "pass sift". The formal justification, as stated in a latter to the mother, was that the application failed on preliminary consideration because it did not "include full supporting evidence". The father therefore remained liable for what was then £66 a week in child support maintenance.
17. I note that the mother had in fact completed five pages of the CSA application form in some considerable detail in addition to having earlier sent in pages of Land Registry copy entries. In a later letter, the mother reported that the officer in question had said on the telephone that lack of supporting evidence "was not the reason, it was because the request was very complicated, it was better if the appeals department handled the case". If this account is accurate, it is hardly either an effective or a fair way to run a child support system.

The appeal to the tribunal

18. The mother then lodged an appeal against the refusal to allow her variation application (the decision dated 30 April 2007). At first the CSA lost her appeal letter. She then submitted a further appeal.
19. The tribunal (a legally qualified panel member, sitting alone) held a first hearing of the appeal on 11 December 2007. The mother but not the father attended. The tribunal adjourned the hearing with various directions, including one to the CSA asking it to explain why the father's rental income was not being treated as a business when the father himself described it in correspondence as his business.
20. The tribunal also directed the father to submit his full accounts, including balance sheets, for all businesses for the tax year 2001/02 onwards. In fairness it should be noted that the father largely complied with this particular direction. He produced rental accounts for both the UK and France through to the end of the 2006/07 tax year, with balance sheets for the more recent years. He also submitted separate accounts for his car importing business (originally declared as his separate self-employed income), but these showed that this business ceased trading in October 2003.
21. Taking the various accounts together, the overall picture was as shown by the following Table 1 (any loss declared is in brackets):

Table 1: Father's net income from various sources	Table 1: Father's net income from various sources	Table 1: Father's net income from various sources	Table 1: Father's net income from various sources
Tax year	UK rental property	French property	Car importing
2001/02	24,095	-	(7,632)
2002/03	25,188	-	7,129
2003/04	28,699	-	(3,642)
2004/05	31,268	(356)	(1,041)
2005/06	16,569	(3,598)	-
2006/07	18,569	760	-

The father also provided copies of his income tax liability calculations for various years, as generated by his accountants.

22. The Secretary of State's original submission to the tribunal asserted that the father's net weekly income at each of the effective dates (from 2 April 2003 through to 3 January 2007) was the same figure throughout: £454.29. There were two problems with this, neither of which was rectified by the CSA before the tribunal's final hearing.
23. The first problem was that on the basis of the father's new evidence it appeared that the accountant's 2003 fax had transposed some figures in error. It had reported the 2001/02 rental income as £24,095 and the self-employed income as £7,129. This formed the basis for the £454.29 calculation. In fact, on the father's declared accounts, the 2001/02 self-employed income should have been a loss of £7,632.
24. Secondly, and more seriously still, there had been no attempt by the CSA to provide new and revised calculations based on the evidence now provided by the father as to his income in the intervening years.
25. The Secretary of State, in a very short supplementary submission to the tribunal, simply argued as follows:

"The Inland Revenue treat [the father's] income from rent as income from Land and Property. As the Inland Revenue does not treat [the father] as self-employed with regards to income from rent, there is no provision within the child support legislation for the income from the rent to be included within the maintenance calculation as self-employed income. As such, the only way to include the properties owned by [the father] is by including them as assets in accordance with Regulation 18 of the Child Support (Variations) Regulations 2000."

The decision of the appeal tribunal

26. The tribunal – now comprising a lawyer and accountant member – heard the mother's appeal on 8 February 2008. Again, the mother but not the father attended. The tribunal allowed the mother's appeal in part. It rejected her application for a variation based on lifestyle or diversion. However, it allowed her application for a variation on the assets ground.
27. In doing so, the tribunal made a variation order on the ground of assets that the father be regarded as having an additional income as detailed in Table 2:

Table 2: Tribunal's ruling on father's additional income under reg. 18 assets variation	Table 2: Tribunal's ruling on father's additional income under reg. 18 assets variation
Effective date	Additional annual income
2 April 2003	£43,514.00
12 October 2005	£52,621.60
21 December 2005	£52,621.60
3 January 2007	£45,460.00

The tribunal also stated that these annual sums were additional to the father's self-employed income, which was £7,129 gross as at 2 April 2003 (i.e. the income from the car importing business).

28. The tribunal explained briefly how it had arrived at the additional income figures. In short, the tribunal had started with the gross annual rental incomes as declared in the accounts for the UK (for all four effective dates) and French (for the three later effective dates) properties. For example, for the 2003 effective date the gross rental income for the last full tax year (2001/02) was £54,393. The tribunal assumed a 10% return, giving a total capital value for the properties of £543,930. This was in excess of the assets threshold of £65,000. The tribunal then applied the statutory rate of interest (currently 8%) to generate an annual additional income of £43,514.
29. The tribunal also noted that the 2005/06 balance sheets reported fixed assets of £269,647 (UK) and £190,956 (France). However, the tribunal explained that it had not relied on these figures, as they had not allowed for any increase in the equity in the various properties.

The father's appeal against the tribunal decision

30. The father – who had not attended the tribunal, and had apparently given no reason for his absence – then appealed against the tribunal's decision. He stated that his main concern was that "you are now taking my assets as my source of income instead of my rentals… You have taken my properties as non-business related assets when quite clearly they are my only source of income." He also pointed out that his car importing business had ceased in October 2003 "so how can you expect me to pay maintenance to date on earnings I have not received". He also referred to problems that he had had with the mother over arrangements for contact and shared care.
31. Mr Commissioner Mesher granted leave to appeal to the (then) Child Support Commissioner, noting various possible difficulties with the reasoning of the tribunal. The Secretary of State's representative supports the father's appeal. Both parties have made further submissions, which I have taken into account. Both parties have also asked for an oral hearing. However, I am satisfied that I can deal with this appeal to the Upper Tribunal on the papers. The place for an oral hearing is at the rehearing by the new First-tier Tribunal, which will have both legal and financial expertise.

Why the tribunal's decision involves an error of law

32. There are a series of reasons why the tribunal's decision involves an error of law. In the first place I accept both the father's grounds of appeal.
33. The fundamental error with the tribunal's decision reflects a common misapprehension about the new child support scheme. In short the thinking that underpinned the tribunal's decision went as follows. The new scheme formula only recognises certain forms of income (employed income, self-employed income, tax credits and certain pension income). The new formula does not, in as many words, expressly include rental or investment income as such. Her Majesty's Revenue and Customs (HMRC) treated the father's prime source of income for tax purposes as rental income and not as self-employed income. Therefore it was rental income and outwith the standard formula. So the answer was to apply a variation to take into account the deemed income derived from the assumed capital value of his rental assets.
34. There are a number of difficulties with this approach. In particular, it assumes that the HMRC treatment of income and expenditure is conclusive for the purposes of the child support legislation. This is not the case. It will usually be relevant and in many cases it may be decisive, but as a matter of law it cannot be conclusive (see e.g. Commissioner's decision R(CS) 6/98).
35. The correct approach is as follows. The first task is to calculate the father's net weekly income. This means the "aggregate of the net weekly income" as provided for by the Schedule to the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (SI 2001/155, "the MCSC Regulations 2000") (see paragraph 1). There is no suggestion that the father was an employed earner (in which event his income would have been assessed under paragraphs 2-6).
36. So the next question is whether he was a self-employed earner, in which case his formula income must be assessed under paragraphs 7 to 9 of the Schedule to the MCSC Regulations 2000. The fact that HMRC did not treat the father as a self-employed person and tax his rental income under what used to be Schedule D, but rather under what used to be Schedule A, is not determinative. That question must be decided according to child support law.
37. Regulation 1(2) of the MCSC Regulations 2000 defines a "self-employed earner" by reference to section 2(1)(b) of the Social Security Contributions and Benefits Act (SSCBA) 1992. This in turn defines a "self-employed earner" as:

"a person who is gainfully employed in Great Britain otherwise than in employed earner's employment (whether or not he is also employed in such employment)."

Furthermore, section 122(1) of the SSCBA 1992 defines "employment" in the following terms:

"'employment' includes any trade, business, profession, office or vocation and 'employed' has a corresponding meaning;"

38. So the question that the tribunal should have asked itself was whether the father was "gainfully employed in Great Britain otherwise than in employed earner's employment", bearing in mind that "'employment' includes any … business". Receiving rental income may or may not amount to operating a business, depending on the circumstances. Owning a single tenanted property, collecting rent and carrying out the landlord's duties did not constitute a business on the facts of R(FC) 2/92. As Mr Commissioner Jacobs has explained in R(CS) 2/06 (at paragraph 49), agreeing with Mr Commissioner Mesher in CIS/2128/2001:

"the issue is one of the proper use of language: is what the non-resident parent does within the normal signification of the word "business"? It is not just a matter of the number of people that are involved, or the number of properties that are owned, or of the number of units that are let. The tribunal must consider all the relevant circumstances of the case."

39. Some cases will be borderline. This was not one of them. The father had some 11 or so rental properties in East Sussex. The rental income was his primary source of income. He described himself as being in business renting out properties. Properly applying the relevant law, the tribunal could not realistically come to any conclusion other than that the father was self-employed in the rental business. Its failure to do so amounts to an error of law.
40. The father's income from that business fell to be taken into account under paragraphs 7 to 9 of the Schedule to the MCSC Regulations 2000. The tribunal could not then apply an assets-based variation using assumed income from these rental properties. Although there is precious little evidence of the actual equity in the properties, it seems highly likely that the capital value of the father's rental properties exceeded £65,000. However, regulation 18 of the Child Support Variations Regulations 2000 (SI 2001/156, "the Variations Regulations")) does not apply to "any asset used in the course of a trade or business" (regulation 18(3)(d)). There is a proviso to this exemption but it does not apply here, as the father's rental income formed part of his net weekly income. Again, it is difficult to see how a tribunal could decide that the properties were other than assets used in the course of the father's business. This is a further error of law.
41. I also accept the father's second ground of appeal. The father had a subsidiary self-employed income derived from importing cars. The accounts demonstrate that this business ceased trading in October 2003. There was no evidence to the contrary. Yet the tribunal carried forward his income from this business for all the following years relevant to the appeal. This involves another error of law.
42. For completeness I should add that I agree with the submissions of the Secretary of State's representative that the tribunal's decision involves several other errors of law (on the assumption that regulation 18 was applicable).
43. First, there was evidence before the tribunal from the Land Registry entries that the father's rental properties were subject to mortgages. However, the tribunal made no findings as to when these mortgages were taken out and, even more importantly, the total amount secured. This information was required in order to decide that the equity in them exceeded £65,000 in total (see regulation 18(3)(a) of the Variations Regulations). In fairness I recognise that the father had complied with the tribunal's rather loose direction "to provide valuations of the properties as at March 2003" merely by producing his balance sheets.
44. Secondly, in any event any mortgages secured on the rental properties should have been deducted in order to ascertain the weekly value of the assets in accordance with regulation 18(5) of the Variations Regulations. The tribunal therefore erred by applying the 8 per cent rate under regulation 18(5) to the (deemed) gross value of those assets.
45. Thirdly, leaving aside the business assets exemption in regulation 18(3)(d), there is no evidence that the tribunal considered whether or not the rental assets were "being retained by the non-resident parent to be used for a purpose which the Secretary of State considers reasonable in all the circumstances of the case" within regulation 18(3)(b) of the Variations Regulations.
46. I would add that it is also unclear how the tribunal assumed that the rental income from the father's properties represented a 10 per cent return on their capital value. This assumed rate of return might have been based on the tribunal's knowledge of the local rent market; if so, the basis for that figure needed to be explained. Why was it 10% rather than say 5% or 15%?
47. For all the reasons above I conclude that the tribunal's decision involves several errors of law. I have no choice but to set aside the tribunal's decision. I am not in a position to remake the decision myself. The case therefore needs to go back for a fresh hearing. Accordingly I remit the case to the First-tier Tribunal with directions for rehearing (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).
48. The parties should be aware that under rule 2(4) of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) they must help the tribunal which will conduct the rehearing to further its overriding objective of dealing with cases justly and fairly. The parties are also under a duty to co-operate with the tribunal generally. The First-tier Tribunal additionally has broad case management powers, incuding the issuing of directions, and may e.g. bar a party who fails to comply with directions from taking further part in the proceedings (see rules 5-8).
49. In making the attached Directions I echo what Mr Commissioner Jacobs said in CCS/2786/2005 at paragraph 5:

"It is common practice in the appeal tribunal for a district chairman to issue detailed directions to the parties in departure direction cases. Those directions specify the evidence that the parties must produce and fix a timetable for its production. They may also explain the evidence that the tribunal may accept and warn the parties that the tribunal is entitled to draw adverse inferences from a failure to co-operate. It would be good practice for all district chairmen to adopt the practice of giving directions. There are a number of models to choose from. The most impressive I have seen in a case was issued by Mrs Martha Street, a district chairman in Bristol. I appreciate that giving these directions requires the district chairmen to preview the case in some detail and to identify the evidence that is required. That all takes time in an already busy schedule of sittings, interlocutory work and ancillary duties. But it enhances the quality of the decision-making at the hearing."

This statement of good judicial practice is reinforced by the First-tier Tribunal (Social Entitlement Chamber) Rules 2008.

50. I could of course simply remit this appeal with the barest of directions and leave a district chairman (now a District Tribunal Judge) with the task of issuing detailed directions. However, I do not think that this would be a helpful approach given the particular circumstances of this case. I am therefore issuing detailed procedural Directions to the parties, which are listed in a separate Schedule, given their length. In doing so I acknowledge my debt to District Tribunal Judge Street, whose template directions I have adapted for the particular purposes of the present appeal.
51. I acknowledge that the attached Directions require substantially more information of the father than of the mother. However, this is inevitable as under the legislation the new scheme formula is based solely on the non-resident parent's income – the parent with care is assumed to be contributing towards the support of the children in any event. Furthermore, most of the information required for the tribunal is within the control of the father.
52. The new tribunal will need to satisfy itself that the accounts for the father's UK rental business accurately reflect the income and expenditure of that business at the relevant effective dates. The tribunal will also need to consider whether any such income falls within paragraph 7 of the Schedule to the MCSC Regulations 2000 or, if they do "not accurately reflect the normal weekly earnings", whether paragraph 8 to the Schedule applies.
53. The new tribunal should bear in mind that it is not normally possible under the law to offset a loss in one income stream against a profit in another income stream: see e.g. the decision of the Northern Ireland Chief Commissioner in R 1/96 (CSC) and the decision of Mrs Commissioner Parker in Scotland in CSCS/1/2008.
54. Once the basis of the father's formula income is established, the Tribunal should further consider whether there are any grounds for applying a variation on the basis of lifestyle, diversion or assets. In doing so it should bear in mind where the previous tribunal erred.
55. The new tribunal will, of course, have to decide the case on the balance of probabilities based on its findings of fact on the evidence before it.

Signed on original Nicholas Wikeley

on 3 December 2008 Judge of the Upper Tribunal

SCHEDULE

DIRECTIONS FOR REHEARING OF CASE BEFORE A NEW TRIBUNAL

NOTE: These Directions are all subject to any further Directions issued in the course of these proceedings by a District Tribunal Judge of the Social Entitlement Chamber of the First-tier Tribunal.

A The Clerk to the Tribunal is directed:

A1 To place the file before a District Tribunal Judge to consider the need for any further directions e.g. as to time allocation for the rehearing, the appropriate composition of the new Tribunal and time limits for the submission of evidence and/or written argument.

B The Secretary of State is directed within one month of receipt of this Upper Tribunal decision:

B1 To prepare a supplementary submission for the tribunal indicating how the Agency would now calculate the father's weekly net formula income for the effective dates of 2 April 2003, 12 October 2005, 21 December 2005 and 3 January 2007, based on the documentary evidence as to accounts for 2001/02 to 2006/07 submitted by the father in correspondence dated 20 December 2007 and 11 January 2008 (docs 158-196);

B2 To explain further in that supplementary submission what action, if any, has been taken on the father's notification dated 24 April 2008 that he had care of his children for 125 nights in the calendar year 2007;

B3 To send a presenting officer to attend the oral hearing.

C The mother is directed within one month of receipt of this Upper Tribunal decision:

C1 To send any further documentary evidence on which she intends to rely at the rehearing to the Tribunals Service (see further General Directions to all parties below).

D The father is directed within one month of receipt of this Upper Tribunal decision:

D1 To provide the balance sheets for his accounts for his UK rental business as at 5 April 2002, 2003 and 2004 (which were missing from the accounts provided on 20 December 2007);

D2 To provide copies of his Inland Revenue/HMRC final Notices of Assessments for the tax years 2001/02 to 2005/06 inclusive (and not simply his accountants' calculations as to his tax liabilities);

D3 To provide a schedule of all properties owned by him or held on his behalf, other than his own home, as at the last effective date under appeal of 3 January 2007. This should include the estimated capital value of each property as at that date, the amount of any mortgage or other charge secured on each such property, along with the nature of any tenancy granted in respect of each such property and the weekly amount of such rent (with documentary evidence in support);

D4 Copies of annual mortgage statements for all properties for the year 2006;

D5 To provide copies of statements for all bank accounts, savings and building society accounts and Individual Savings Accounts (ISAs) for the calendar year 2006;

D6 To provide copies of all credit card statements for the calendar year 2006;

D7 To provide full details, with supporting evidence, if it is claimed that any part of the cost of the lifestyle of the father's household is funded from

(i) savings or borrowings;

(ii) wife's / partner's income, savings or borrowings;

(iii) income other than earnings;

D8 To bring his current passport to the rehearing of the Tribunal, along with any other passport that he has used since January 2003.

Applications to vary Directions

These directions are intended to help the parties to understand what documents are needed and to help you explain their cases to the tribunal. If a party cannot comply, they will need to do the best they can and be ready to explain any difficulty to the Tribunal at the rehearing. Parties can ask for the directions to be varied by writing to the Tribunals Service as explained below.

General Directions to all parties

56. Any application to vary any of these Directions should be made in writing by 31 December 2008 to Tribunals Service, Copthall House, 9 The Pavement, Grove Road, Sutton, SM1 1DA headed 'Application to District Tribunal Judge to vary Directions in Rehearing Ref 177/07/01999'.
57. Parties should send any further documentary evidence on which they intend to rely at the rehearing to the Tribunals Service regional office at Sutton within one month of receipt of this upper Tribunal decision. Parties should mark correspondence clearly with their own surname and Rehearing Ref 177/07/01999.
58. Parties should include with any further evidence a numbered and indexed list of all documents submitted, together with a short explanation of any document that is not self-explanatory.
59. The originals of any document must be brought to the hearing
60. Evidence must relate to the effective dates in the decision under appeal. Parties should note that under the law the Tribunal considers the decision under appeal and not the effect of any changes since then.
61. Parties must inform the Tribunals Service if there are any dates when they cannot attend a hearing. When a date is given, the case will usually go ahead on that date. It is not likely to be put off to a later date.

General warnings in respect of evidence

The Tribunal's overriding objective is to deal with cases fairly and justly. Parties to these proceedings are under a legal duty to help the Tribunal further that objective and to co-operate with the Tribunal generally. This means the Tribunal requires full and frank disclosure of relevant evidence.

The Tribunal will decide the case on the evidence before it. The Tribunal may accept or reject evidence and may decide the facts by drawing inferences from the evidence or from any failure to comply with directions to produce evidence. So, if parties do not provide the evidence and explanations required, the Tribunal may decide the case against them.

Evidence relied on must be before the Tribunal at the full hearing. The parties cannot rely on any further time being available to prove the facts they rely on. The Tribunal will consider documents produced and referred to but cannot be assumed to take into account any documents that are not referred to or not adequately explained by the parties. After the hearing, once the decision has been given, it will be too late to give more evidence.