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ST [2009] UKUT 181 (AAC) (16 September 2009)
Child support
tribunal practice

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

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

The decision of the Blackpool appeal tribunal dated 11 November 2008 under file reference 064/08/00123 does not involve an error on a point of law.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

The father's appeal to the Upper Tribunal is dismissed. The decision of the Blackpool First-tier Tribunal dated 11 November 2008 under file reference 064/08/00123 does not involve an error on a point of law. The decision of the appeal tribunal therefore stands.

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

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. I refer to the parties as the father, the Secretary of State and the mother respectively. The parents have two sons. I should add that the Secretary of State's functions in relation to child support were carried out by the Child Support Agency (the CSA) and are now performed by the Child Maintenance and Enforcement Commission (CMEC).

The relevant background to the appeal to the tribunal

For present purposes the relevant background is as follows. The parents separated in 2003 and the financial arrangements were settled through a court order, including an agreed order of £166 a month for child maintenance. On 21 March 2007, however, the mother (as was her statutory right) made an application to the Agency for child support for the two boys. On 2 May 2007 the Secretary of State decided that the father was liable to pay £157 a week in child support with effect from 23 May 2007.

On 18 July 2007 the Agency sent the father's employer a standard payroll enquiry form (CSF318), asking for a reply by 20 July 2007. The employer's HR department replied by fax some six weeks later on 3 September 2007. The HR Department reported that for the father's gross earnings in June and July 2007 were £2,834.88, from which were deducted tax, national insurance and a further £122.89 a month in pension contributions. The two entries for £122.89 were each asterisked. A footnote to the earnings enquiry form stated "* AVC pension deducted £1474.73". In full, the completed schedule read (ignoring empty columns) as follows:

Earnings enquiry	Earnings enquiry	Earnings enquiry
	Payment 1	Payment 2
Date earnings paid	15.06.07	15.07.07
Gross pay before deductions	£2834.88	£2834.88
If the gross pay above includes a tax credit please tick
National Insurance	£214.04	£214.04
Income Tax	£81.40 C	£127.51
* Pensions contributions	* £122.89	* £122.89
If the gross pay includes expenses, please tick
How much was included as expenses?
What were the expenses for?
Were these expenses taxable?

* AVC PENSION £1474.73

DEDUCTED

The father also notified the Agency that he had increased his pension contributions. On 5 September 2007 the Secretary of State made a further decision reducing the father's child support liability to £42 a week as from 15 August 2007.

The mother, unsurprisingly, was less than happy with this turn of events. She argued that the father was deliberately and unreasonably diverting his income in order to reduce his child support liability. So on 13 September 2007 she applied for a variation of the decision of 5 September 2007.

The father's response was that he had increased his pension contributions as he planned to retire early. On 15 October 2007 the Agency accepted that explanation and in particular that his pension contributions had increased to some £1,474 a month (56 per cent of his income), with the result that the father's net weekly income had dropped from £783.30 to £212.02. The Agency accordingly refused to change the decision of 5 September 2007. On 29 October 2007 the mother lodged an appeal.

It will be evident that up to this point matters had progressed fairly swiftly (at least in terms of the experience of many other child support cases). True, the mother complains that the father did not comply with the Agency's request for information and that a deduction of earnings order (DEO) had to be arranged in the summer of 2007. Be that as it may, only seven weeks had passed between the Secretary of State's decision to reduce the father's child support liability to £42 a week and the mother's appeal against the refusal to make a variation of that decision.

The mother's appeal to the tribunal

However, matters then slowed to a snail's pace. In the first place, the Agency took another three months to consider the mother's appeal (although it refused to change its decision). The mother's appeal was then sent to the Tribunals Service, where it was registered on 29 January 2008. A District Tribunal Judge promptly considered the file on 8 February 2008 and sensibly ordered a directions hearing. He added a note to the effect that the clerk should "advise all parties to attend as the tribunal may if it feels it has all the information it needs make a final decision at the directions hearing".

However, the Tribunals Service letter which was actually sent to the mother (and presumably also the father) conveyed quite the opposite message. It stated that she was invited "to attend a preliminary hearing. This is to discuss which issues are under dispute before the above appeal goes before a tribunal. Evidence may be taken at the preliminary hearing but no final decision made concerning the appeal. Its purpose is purely to give directions to all involved in the appeal so that it can proceed to be heard before a tribunal." A date for the preliminary hearing (6 May 2008) was given.

The mother meanwhile had sent the Tribunals Service a detailed three page letter, along with copies of supporting evidence, setting out the gist of her case. She followed this up with a letter dated 2 May 2008, stating that she was "unable to attend the preliminary hearing on the 6th of May 2008 at Blackpool, however I will be in attendance for the final hearing." Sensibly, the mother did not entrust this letter to the post but faxed a copy to the Tribunals Service on the afternoon of 2 May. She might reasonably have assumed that this mode of delivery with three clear days to spare would have been sufficient time to ensure that her letter was placed before the tribunal. If so, she was mistaken.

The first tribunal hearing at Blackpool (6 May 2008)

The Blackpool tribunal went ahead on 6 May 2008. The father attended but not the mother. The mother's letter of 2 May 2008 was not before the tribunal – apparently it was not received by the team dealing with the case until after the appeal had actually been heard. However, the fax must clearly have been received by the Tribunals Service itself on 2 May even if the recipient in that organisation failed to appreciate its significance or urgency. Not having had sight of that letter, and through no fault of his own, the tribunal judge understandably decided to proceed with the hearing and heard the father's sworn evidence. He dismissed the mother's appeal, ruling that the increased pension payments did not amount to a diversion of income.

The mother, through her then representatives, promptly applied for the tribunal's decision of 6 May to be set aside. The Regional Tribunal Judge (inevitably) approved that application on 30 May 2008, regretting the inconvenience to the father but quite properly noting that "justice requires that the decision be set aside". He ordered the case to be relisted for directions only. The father now complains about that decision to set aside but in the circumstances has no grounds for so doing.

The tribunal directions hearing at Blackpool (8 July 2008)

The directions hearing took place at Blackpool on 8 July 2008. Both parents attended. District Tribunal Judge Jones gave short but succinct directions on the day requiring the father to send the Tribunals Service by 1 September 2008 copies of specified documents, such as his recent tax P60s and confirmation of his pension contributions.

District Tribunal Judge Jones then issued a further direction on 11 July 2008, attaching a schedule of household income and expenditure, noting that the father had telephoned the Tribunals Service in Liverpool on the day of the hearing, but after it had been concluded, "to say that he did not propose to comply with any of the directions as he did not want [the mother] to see the information." The judge continued "This is not acceptable: it is not possible for this tribunal to operate on the basis that some of the evidence is not shown to the all parties. This is contrary to the rules of natural justice". The judge also warned that non-compliance ran the risk that "the tribunal is much more likely to grant the variation which [the mother] has requested".

The father then returned the schedule of household income and expenditure by the required date, explaining that "I am willing to show other documents on the day of the tribunal, as I am not willing to send confidential documents through the post (for obvious reasons). Please note this was always my intention, not as stated in Part 2 of the Direction (11 July 2008)".

On 3 September 2008 District Tribunal Judge Jones issued a further direction, requiring copies of all the outstanding documents to be sent to the Tribunals Service by 15 September 2008. The judge noted the father's explanation but described it as "not acceptable. He must produce the documents stipulated in advance of the hearing". By this point – if not before – the father must really have been in no doubt as to his obligations as regards disclosure of evidence.

On 11 October 2008 the mother wrote to the Tribunals Service with further evidence, complaining of the father's failure to comply with the tribunal's directions and asking "in the interest of justice and fairness… that any further procrastination on [the father's] part is disallowed".

The final tribunal hearing at Blackpool (11 November 2008)

A First-tier Tribunal comprising District Tribunal Judge Knipe and financial member Mr R B Crosland heard the mother's appeal on 11 November 2008, just over a year after the mother lodged her appeal. Clearly a child support tribunal hearing will inevitably take several weeks to arrange, especially if there are directions to be complied with. But a period of 54 weeks represents several bridges too far. In broad terms 3 months were accounted for by the Agency's reconsideration process, a further 4 months were wasted due to the administrative mix-up in the Tribunals Service over the purpose of the first directions hearing and another 3 months' delay appears to have been due in large part to the father's non-compliance with the judge's directions.

At the final hearing on 11 November 2008 the mother but not the father attended. A presenting officer from the Commission (formerly the CSA) was also there. The tribunal clerk reported that the father had telephoned the Liverpool office to indicate that he was unable to attend and the hearing should proceed in his absence. The tribunal proceeded to hear the mother's appeal.

The tribunal decided to allow the mother's appeal, but only in part. The tribunal refused to make the variation that she sought on the basis of diversion of income, inconsistent lifestyle or assets. However, the tribunal ruled in its Decision Notice that the underlying maintenance calculation had to be reassessed, as it found that the father had been making pension contributions of only £122.89 a month, not £1,597.62 a month (i.e. £122.89 + £1,474.73). District Tribunal Judge Knipe subsequently refused the father's application to have the decision set aside and issued a Statement of Reasons for the tribunal's decision.

On the crucial issue of the father's pension contributions, the tribunal explained its reasoning as follows:

"the Secretary of State had interpreted the sum of £1,474.73 as being a monthly contribution to pension whereas it seemed clear that this was in fact an annual figure, and that the monthly figure was only £122.89.

If £122.89 is multiplied by 12 the result is £1,474.68, which is almost exactly the figure stated to be 'AVC pension deducted' on page 53 whereas on page 9 of the [Secretary of State's] response it is stated that [the father] contributed to a personal pension at the rate of £1,474.73 every month, which in the view of the tribunal was clearly wrong."

The father's appeal to the Upper Tribunal

District Tribunal Judge Knipe refused the father's application for permission to appeal to the Upper Tribunal, which the father then renewed before the Upper Tribunal direct. The father stated that he was asking "for a new appeal/hearing at an Upper Tribunal, regarding my pension contributions (and therefore my CSA assessment). I can't believe the lower tribunal at Blackpool failed to recognise my pension contributions even when evidence was presented to them."

The father also complained that a CSA representative was present at the hearing. There is nothing in the latter point as under the First-Tier Tribunal procedural rules representatives of the Commission are entitled to attend hearings as the decision maker is a respondent and so a party to the appeal and hence has a right to be heard (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules (2008/2685), rules 1(3) and 28).

In support of his application for permission to appeal from the tribunal's decision, the father supplied a copy of a printout of a schedule of his company pension scheme contributions. This stated that he had indeed made AVC payments of £1,474.73 a month in each of the four months from June to September 2007 and that he had furthermore increased the monthly contribution to £1,675.80 a month for the 10 months from February 2008 to November 2008. However, there appeared to be no AVC payments made between October 2007 and January 2008. This document would have complied with District Tribunal Judge Jones's direction (d) on 8 July 2008. It was not before the tribunal on 11 November 2008 because the father had not produced it by then. It was not received by the First-tier Tribunal until 22 December 2008.

The father's application for permission to appeal was received by the Upper Tribunal on 25 March 2009. The Upper Tribunal secretariat wrote to the Liverpool office of the Tribunals Service for the full case file on the same date. An urgent reminder letter was sent on 20 April 2009. The file finally arrived on 27 April 2009 and was referred to me on 5 May 2009. I granted the father permission to appeal on 7 May 2009 as the point regarding the tribunal's treatment of the evidence relating to AVC payments seemed to be arguable.

Mr Kevin O'Kane, the Secretary of State's representative in these proceedings (and so in effect the Commission's representative) has provided a helpful and detailed submission on the appeal. In summary, he argues that the tribunal reached a decision which he was entitled to do on the evidence before it (a critical qualification) and so invites the Upper Tribunal to dismiss the father's appeal.

The mother has also made a written submission strongly opposing the father's appeal. She puts her case in the following terms:

"From the date of the first directions notice [the father] was given, in my opinion, a very generous 12 weeks in total to produce the evidence to prove he was paying what he stated into his pension. He was allowed to procrastinate and delay the proceedings through his non-compliance. He was given clear written possible consequences of his behaviour on two separate occasions…Through his own contempt and arrogance towards the tribunal procedures he chose not to produce the evidence requested.

I cannot see how the tribunal's decision can be classed as an error in law, when they simply concluded their decision based on the evidence before them. Surely whether their interpretation of the evidence was right or wrong it cannot be classed as an error of law. [The father] has been non-compliant throughout this tribunal process, in my opinion to uphold this appeal would make a mockery of the whole system."

The father has made further observations complaining about the tribunal's decision, the mother's behaviour and the Agency's conduct. The Upper Tribunal is only concerned with the first of these. In this respect he has reiterated his complaint that the tribunal was wrong to treat his pension contribution as an annual rather than a monthly figure.

The Upper Tribunal's reasons for dismissing the father's appeal

In short, the Upper Tribunal accepts the arguments advanced by Mr O'Kane and the mother respectively and so dismisses the father's appeal. In doing so, two questions need to be addressed.

First, did the tribunal make adequate findings of fact and explain sufficiently why it decided that the father's monthly pension contributions were only £122.89 a month and not £1,474.73 (or indeed £1,597.62) a month?

Secondly, does it matter that the father has now produced what appears on the face of it to be compelling evidence that, contrary to the tribunal's conclusions, the sum of £1,474.73 was indeed a monthly and not an annual figure?

Question 1: the tribunal's findings and reasoning

I gave the father permission to appeal in this case for one reason and one reason alone. I regarded it as arguable that the tribunal erred in its analysis of the employer's reply about the father's pension contributions on the earnings enquiry form.

It is plain from the case file that prior to the tribunal hearing both the Secretary of State and the mother assumed the £1,474.73 figure was a monthly rather than an annual amount. That was why the Agency decision maker decided that there had been a dramatic reduction in the father's assessable net weekly income and why the mother had in turn applied for a variation on the basis of a diversion of income.

When considering the father's application for permission to appeal, I likewise assumed from the fact that all the other figures on the earnings enquiry form were expressed in monthly terms that the single footnoted AVC figure, asterisked to both June and July, was similarly a monthly sum. I also assumed it was a separate figure because one might possibly expect contractual occupational pension contributions and AVCs to be recorded separately on such a schedule.

However, Mr O'Kane for the Commission refers to the tribunal's observation that the £122.89 figure, when multiplied by 12, produced an annual figure which was almost exactly the same as the £1,474.73. He continued as follows, in answer to my observations on granting the father permission to appeal:

"However, I submit there appears to be no reason why, if the AVC pension contribution of £1474.73 was indeed a monthly figure in addition to the pension contribution of £122.89 per month, the said AVC pension deduction could not have been written inside the pension contribution box, but below the sum of £122.89 for both June and July, with an asterisk alongside to denote that it was an AVC pension deduction.

I submit the annotation of AVC pension deduction at the bottom of the page with asterisks for June and July could be taken to denote that the £122.89 was the monthly deduction of AVC pension totalling £1474.73 per annum which would be in keeping with the tribunal's findings on this issue.

Clearly there are conflicting views regarding the interpretation of the evidence before the tribunal regarding the AVC pension contribution, but I submit the tribunal has adequately explained how and why they reached their determination, based upon their interpretation of the evidence that was before them, and no error of law is revealed on that point."

On reflection, this analysis must be right. It is axiomatic that the evaluation of evidence is a matter for the fact-finding tribunal, not for an appellate tribunal or court. The question for the Upper Tribunal is not whether the tribunal's findings of fact were the right ones to make on the evidence before it. Rather, the question is whether they were findings which the tribunal was entitled in law to make on the evidence before it. On that basis, the tribunal's decision in this case must stand. I repeat, the question is not whether an Upper Tribunal judge would have reached the same decision on the same evidence. But does it matter that the father has now produced further evidence relating to his pension contributions?

Question 2: the father's new evidence

As explained above, the father has now produced what appears to be compelling evidence that, contrary to the tribunal's conclusions, the sum of £1,474 was indeed a monthly figure, and not an annual figure, at least for part of the period involved. He adds that since the tribunal hearing he has also shown this to a Commission officer at a "face-to-face" meeting and that his evidence of the higher amount has been accepted.

So does this undermine the whole basis of the tribunal's decision? The short answer is no. It is not within the powers of the Upper Tribunal to consider new evidence which was not placed before the First-tier Tribunal in determining whether that tribunal erred in law in reaching its decision on the evidence before it (see the decision of Mr Commissioner Jacobs (as he then was) in CCS/4687/2000).

In his submission Mr O'Kane refers to an earlier decision of my own sitting as a Deputy Child Support Commissioner, under file reference CCS/4048/2004. In that case the appellant father challenged a tribunal's finding that he was the controlling influence in a small family company. He sought to rely on letters from the company's managing director (his own father) and the firm's accountants which he had not produced at the tribunal hearing itself. In my decision, dismissing the father's appeal, I pointed out that appeals to the Child Support Commissioner (now the Upper Tribunal) lay only on points of law. I added that:

"the appeal tribunal, not the Child Support Commissioner, is the pre-eminent fact finding body. The letters produced by the father relate to issues of fact. They were not before the tribunal. That is not the tribunal's fault; it is the father's fault. It is not as if the father was 'ambushed' and might have some argument that he was denied a fair hearing. On the contrary, the issues in this case were plain from a very early stage" (paragraph 19).

In the course of that decision I continued further as follows:

"21. In this context the observations of Mr Commissioner Jacobs in CCS/2901/2002 are relevant. In that case the non-resident parent refused to provide copies of his business accounts on the basis that his partner would not consent to their disclosure. As the Commissioner observed, "If he will not provide this evidence, then the tribunal will not be able to take it into account" (paragraph 14). The Commissioner continued as follows:

'15. The proceedings before an appeal tribunal and a Commissioner are legal proceedings. They are not a game. If the absent parent is not prepared to participate properly in the proceedings, he must take the consequences. In particular, the tribunal will have to decide whether the circumstances of his refusal to make evidence properly available entitled it to draw adverse inference about his income and other circumstances.'

22. I repeat: these proceedings are legal proceedings. As Mr Commissioner Jacobs puts it in admirably plain and succinct English, "they are not a game". In particular, an appeal to the Child Support Commissioner must be on a point of law. To follow Mr Commissioner Jacobs's analogy, it is not a replay. Or, to mix metaphors, the father cannot now start producing new rabbits out of a hat because he does not like the result. In this case the father had ample opportunity to produce evidence to support his case at the hearing. He declined to do so, for no good reason, and so must face the consequences. He cannot rely on his own failure to produce relevant evidence and now complain that the tribunal's conclusions have no evidential basis."

Mr O'Kane and the mother both argue that the same reasoning applies in the present case. I agree. It is too late, for these proceedings at least, for the father to seek to introduce new evidence; he must produce all his evidence before (in the sense of both in advance of and in front of) the tribunal. Moreover, any party must co-operate with the tribunal so as to further the overriding objective of dealing with cases fairly and justly (rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules (2008/2685)).

The case management directions issued by District Tribunal Judge Jones were quite clear. The father declined to comply with those directions and insisted on producing evidence in person at any hearing. He then did not attend the crucial hearing and failed to apply in good time for a postponement or adjournment. The tribunal did not err in law in proceeding as it did.

Conclusion

The mother has not cross-appealed against the tribunal's decision to dismiss her variation application. However, given the conclusion it reached on the underlying maintenance calculation, the tribunal did not err in law in dismissing the mother's application. Even had the mother's application for a variation been considered on its merits, the decision of Mr Commissioner Mesher (as he then was) in CCS/289/2008 meant that it was difficult to see how the diversion ground under regulation 19(4) could apply on the facts of this case. I merely note that regulation 19 has now been amended by regulation 4 of the Child Support (Miscellaneous and Consequential Amendments) Regulations 2009 (SI 2009/736), which appears to be designed to reverse the effect of decision CCS/289/2008. However, the new version of regulation 19(4) only came into force on 6 April 2009. It follows that it could not have been applied by the Blackpool tribunal in this case.

I dismiss the father's appeal for the reasons set out above.

Signed on the original Nicholas Wikeley

on 16 September 2009 Judge of the Upper Tribunal