Upper Tribunal (Administrative Appeals Chamber)

CB v Secretary of State for Work and Pensions [2009] UKUT 100 (AAC) (03 June 2009)
Child support
tribunal practice

 


IN THE UPPER TRIBUNAL Appeal No. CCS/1465/2008

ADMINISTRATIVE APPEALS CHAMBER

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

NOTICE OF DETERMINATION OF

APPLICATION FOR PERMISSION TO APPEAL

I refuse permission to appeal to the Upper Tribunal.

In doing so I also make certain directions (see further below).

This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 5, 21 and 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

REASONS

1. There is a right of appeal to the Upper Tribunal (formerly the Child Support Commissioner) from a decision of the First-tier Tribunal (formerly the appeal tribunal) but on a point of law only (according to section 11(1) of the Tribunals, Courts and Enforcement Act 2007).
2. The appeal tribunal's decision notice is at page 736 and its detailed Statement of Reasons at pages 740-747 with an addendum at page 770. The tribunal made certain findings of fact as to the parties' income and allowable expenses for child support purposes. The non-resident parent (the applicant) has sought permission to appeal against the tribunal's decision. The tribunal also ordered that: "any party may apply to the tribunal, within 1 month of the issue of the notification of the recalculation, for the Tribunal to determine the correctness of the recalculation". The applicant has made such an application as well.
3. District Tribunal Judge Thomas, who did not chair the appeal tribunal in question, has already refused permission to appeal to the Upper Tribunal (page 757). The Upper Tribunal is not bound by her refusal and so has considered the matter afresh. However, in my judgment I agree that there is no arguable point of law in the present appeal. It follows that, like the District Tribunal Judge, I too must refuse the application for permission to appeal to the Upper Tribunal.
4. It is regrettable that this application has taken so long to determine. The tribunal hearing was about 18 months ago on 14 November 2007. The District Tribunal Judge refused leave to appeal on 19 March 2008. The then Commissioners' office did not receive the application for permission to appeal until 28 April 2008. Following detailed scrutiny of the file by a legal officer, on 2 September 2008 Mr Commissioner (now Judge) Bano directed an oral hearing of the application (page 773).
5. There was then a further considerable delay while the applicant sought to obtain exceptional funding from the Legal Services Commission, resulting in the postponement of the first date set for an oral hearing (page 774). That assistance was not forthcoming (pages 775-778) and by letter dated 20 April 2009 the applicant's representative requested that the application be dealt with on the papers. A second date for an oral hearing was accordingly cancelled. As Judge Bano has recently been appointed to a new judicial post, the file has now been transferred to Judge Wikeley for determination.
6. The applicant raises a number of potential grounds of appeal. These are set out at pages 753, 759-760 and 779. They fall into the following three main categories.

The applicant's income

7. The first ground relates to the tribunal's treatment of the applicant's income (see eg 753(i) and 753(iii)). The issues complained of were matters of fact, which were pre-eminently for the appeal tribunal to determine. The right of appeal to the Upper Tribunal is not an opportunity to re-argue the facts, but only to address a possible error of law. The appeal tribunal made findings that it was entitled to do on the basis of both the documentary and oral evidence before it and explained clearly why it had done so. For example, the tribunal found the applicant's account of his financial affairs unreliable in certain respects and explained fully why it had reached that conclusion. It also properly relied on the applicant's failure to comply with the tribunal's previous clear and detailed directions for the disclosure of evidence. I also take into account that it is not the role of the Upper Tribunal to teach the First-tier Tribunal how to weigh the evidence it hears (see Frey-Kelsey v Secretary of State for Work and Pensions [2005] EWCA Civ 511, also reported as Social Security Commissioner's decision R(IB) 6/05).

The applicant's housing costs

8. The second ground of appeal relates to the tribunal's treatment of the applicant's housing costs (see eg 753(ii)), and in particular a private loan and certain water charges. There is no arguable error of law as regards the former – this is an issue of fact on which the tribunal found against the applicant and explained why, referring appropriately to both the evidence and the relevant legislation that applied on those facts.
9. The position as regards the latter (the water charges) is a little more complex. The tribunal's Decision Notice refers to allowable housing costs of £200 for water charges for the first three effective dates and £100 for the last effective date. The Statement of Reasons (page 746) relies on para 1(g) of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases (MASC) Regulations 1992 as authority for their inclusion as eligible housing costs. The tribunal judge's supplementary note (page 770), issued after the decision, explains the point rather more fully, noting that they were infrastructure charges, rather than water rates properly so called (which are outside para 1(g), as is council tax, see unreported decision CSCS/13/1995, except as regards protected income). I am satisfied that overall the approach adopted by the tribunal is supported by the documentary evidence at pages 32-37 and 95.
10. There are, however, two further matters which arise here. The first is whether it is appropriate for a tribunal judge to elaborate on a Statement of Reasons in a supplementary note. I see no real difficulty in this case. This is not a case where the original Statement of Reasons was fundamentally inadequate (see eg Barke v SSETEC [2005] EWCA Civ 578). Nor is this a case where there is a significant inconsistency between the original statement and the later note. A modest elaboration of reasons is appropriate in certain cases (see eg R(M) 2/78) and indeed envisaged under the new tribunal procedural rules (see e.g. rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
11. The second point relates to a matter of arithmetic. The basic rule is that eligible housing costs for the purposes of exempt income are calculated on a weekly basis (MASC Regulations, reg 16). The case papers (eg page 95) show that the infrastructure charges were being paid in instalments at the rate of £50 a month. The tribunal have referred to sums of £200 and £100 being taken into account for water infrastructure charges. Page 95 shows that £880 had been paid by October 1996 (the same month as the last of the first three effective dates), mostly at £50 a month (pages 32-37) with £300 outstanding. Clearly the balance would presumably have been paid at £50 a month for the six months from November 1996 through to April 1997 (the month of the final effective date). The other figures on the Decision Notice (eg the parties' income and council tax liability) are presumably expressed in annual terms, given the context.
12. The figures of £200 and £100 are therefore difficult to reconcile with the documentary evidence. The actual annual amounts – in line with income and council tax – would presumably have been £600 for 1996 (12 months @ £50 pm) and £200 (4 months @£50 pm) for 1997. It would clearly have been helpful if the tribunal had more clearly expressed their intention to use annual amounts, which the Agency would then have to recalculate on a weekly basis for the formula calculation. However, I am not satisfied that this is a material error of law which in itself merits the grant of permission to appeal.
13. Moreover, in the papers forwarded by the Tribunals Service to the Upper Tribunal are the case papers for an application for liberty to apply to the tribunal brought by the father. These include a detailed account (at page 34) of the way the applicant's housing costs have been (re)calculated. This states that the infrastructure costs totalled "£300 based on the evidence provided at the hearing". This may of course refer to the oral evidence, not the documentary evidence, which may well explain the discrepancy.
14. I note in passing that the submission on the application for liberty to apply states at page 34 that no allowance was made for the housing costs for the January 1996 effective date as "the first payment… was made in March 1996". This is accurate in terms of the invoices at pages 32-37 but overlooks page 95, which shows that payments had been in place for some time and presumably before March 1996.
15. In exercising the powers I have under the Tribunal Procedure (Upper Tribunal) Rules 2008 I must have regard to the overriding objective of dealing with the case fairly and justly (rule 2). This includes acting in a proportionate fashion, avoiding delay etc. In my view it would be wholly disproportionate to grant permission to appeal on this very narrow point as to the proper quantification and attribution of the water infrastructure charges. In doing so I bear in mind that the tribunal sitting in 2007 was concerned with the parties' financial position in 1996/97 and that the parties' two children are now aged 25 and 21 respectively.

16 . Instead, once this refusal of permission to appeal has been promulgated, the appropriate next step is for a District Tribunal Judge to consider what directions need to be made on the outstanding application for liberty to apply.

16. The Agency's submission on that application states that it has been received outside of the specified time limit and therefore invites the tribunal to consider the admissibility issue first. It is not immediately obvious that this is right. The tribunal's direction expressly referred to liberty to reapply "within 1 month of the issue of the notification of the recalculation". From the associated paperwork it appears that the Agency's notification was by letter dated 19 March 2008 (page 13 of that file) and the non-resident parent replied by letter dated 28 March 2008 and received on 1 April 2008 (page 19), in which event he would appear to be in time – the time limit was not one month from the tribunal's decision. It should be possible for the tribunal to deal with any remaining uncertainty on the issue about the infrastructure charges on the substantive hearing of that application. Another possibility is that the Secretary of State may be able to make any necessary changes by way of a revision or supersession of the earlier implementation decision.

The natural justice argument

17. The third category of potential ground of appeal is essentially a natural justice complaint (see 753(iv)), namely that the tribunal chair indicated bias against the applicant by having commented on the size of the applicant's house when that was of no concern to the tribunal. There is nothing in this ground. The size of the applicant's house does not appear to have been in issue before the tribunal so the point is not material. Even if this throw-away comment was made, it is difficult to see how a remark such as this would suggest to a fair-minded informed observer that there was a real possibility of bias (Porter v Magill [2001] UKHL 67).

Conclusion

18. My conclusion is that in this case the tribunal took meticulous care, directed itself properly on the relevant law, made appropriate findings of fact on the evidence and gave adequate reasons for its decision. The slight question-mark over the treatment of the applicant's infrastructure costs cannot be elevated into an arguably material error of law. As Holman J. observed in the context of the family courts in B v B (Residence Order: Reasons for Decision) [1997] 2 F.L.R.602:

'I cannot emphasise strongly enough that a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or thorough as it might otherwise be.

19. A tribunal's typed Statement of Reasons is not usually an ex tempore judgment (i.e. one given orally and immediately after hearing the evidence), but the observations of Holman J. are just as applicable to decisions of fact-finding tribunals as they are to decisions of trial courts of first instance.
20. I therefore must refuse this application for permission to appeal. For the reasons stated above, the present application is dismissed. Further directions follow.

DIRECTIONS

(1) A District Tribunal Judge is to consider as an interlocutory matter what directions if any need to be made on the non-resident parent's outstanding application for liberty to apply dated 28 March 2008.

(2) The tribunal which considers that application at a substantive hearing should clarify as appropriate the proper treatment of the eligible housing costs for infrastructure charges, both as regards their quantification and attribution.

(Signed on the original)

Nicholas Wikeley

Judge of the Upper Tribunal

(Dated) 03 June 2009