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 Derby First-Tier Tribunal on 1 June 2009 under file reference 034/08/02124 involves an error on a point of law.  The Upper Tribunal therefore sets aside the decision of that tribunal.

 

The Upper Tribunal re-makes the decision. The decision that the First-tier Tribunal should have made is as follows:

 

The father’s appeal against the Secretary of State’s departure direction dated 17 July 2008 and effective from 13 May 2008 is allowed in part.

 

Contact took place on 22 times in the previous year.  The cost of each total contact visit, comprising two round trips, was £54.88.  As contact occurred on 22 occasions over a year, the weekly amount was £54.88 x 22/52, i.e. £23.22.

           

The case is therefore remitted to the Secretary of State for the necessary recalculation of the maintenance assessment subject to the departure.  In doing so the element for contact costs in the father’s exempt income (and protected income) should be increased from £18.29 to £23.22 per week.

 

This decision is given under section 12(2)(b)(ii) and section 12(4) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The issue in this appeal to the Upper Tribunal

 

1.         The legal issue in this appeal is a narrow one.  The case concerns an application for a departure direction from a child support maintenance assessment on the basis of contact costs.  The question is whether the relevant law only makes allowance for contact visits that fit a rigid weekly pattern (e.g. once a week, once every two weeks etc.) and ignores fractions of a week.  In the terms of the legislation, what is meant by a “set pattern”?

 

2.         The factual dispute between the parties was equally narrow.  At the outset the father (and non-resident parent) argued that contact was once every two weeks across the year.  The mother (and parent with care) contended that the father’s contact visits were more like once every three weeks.

 

3.         The First-tier Tribunal Judge proceeded on the basis that “the provisions of the law do not allow a better fractionalisation than 2 weekly or 3 weekly” (i.e. that contact took place either fortnightly or once every three weeks).  The Tribunal Judge concluded that the father had not shown that contact had occurred over the previous year on a fortnightly basis.  The Tribunal Judge dismissed the father’s appeal and confirmed the Child Support Agency’s decision on the departure direction, which was based on contact being once every three weeks.

 

4.         My decision is that the First-tier Tribunal misunderstood and misapplied the relevant law.  The Tribunal Judge should have made findings of fact as to how often contact had taken place in the relevant year. He should then have calculated the amount to be allowed by way of a departure direction, whether that contact averaged out at once every 2 weeks, once every 3 weeks, or on some other and fractional basis (e.g. once every 2.2 or 2.7 weeks).

 

The relevant law: what is a “set pattern” in contact arrangements?

 

5.         This is a case under the so-called ‘old scheme’ that pre-dates the child support reforms introduced in March 2003.  The father applied for a departure direction on the basis of his special expenses by way of contact costs, as permitted by paragraph 2(3)(b) of Schedule 4B to the Child Support Act 1991.  Regulation 14 of the Child Support Departure Direction and Consequential Amendments Regulations 1996 (SI 1996/2907) makes more detailed provision.  In particular, regulation 14(1) provides that where “a set pattern has been established as to frequency of contact between the absent parent and a child in respect of whom the current assessment was made” certain costs are permitted “based upon that pattern and incurred by that absent parent for the purpose of maintaining contact with that child”.

 

6.         There is no express requirement in regulation 14 that the non-resident parent must show that his contact takes place e.g. once a week, once every two weeks, once every three weeks or so on, and that any fractions of a week are disregarded.  Presumably the Tribunal Judge took the view he did because of the reference in regulation 14 to a “set pattern”.  However, a “set pattern” need not mean that the contact must take place on such a rigid ‘whole week(s)’ basis.  There are at least three reasons for this.

 

7.         First, regulation 3(1) of the 1996 Regulations specifies that where “any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount”.  This provision plainly contemplates that the process of assessment will require an element of averaging out.  It does not state that amounts are only taken into account if they are actually incurred on a whole weekly basis.  As Charles J. noted in R (Qazi) v Secretary of State for Work and Pensions [2004] EWHC 1331 (Admin) (reported as R(CS) 5/04), a non-resident parent’s “allowable costs are converted to a weekly cost” (at paragraph 36, emphasis added).

 

8.         Secondly, in another family situation contact might take place like clockwork and without fail on a regular timetable (for example once every 10 days).  This would obviously be a “set pattern” within regulation 14 but could not be readily expressed in terms of whole weeks.  Clearly, once every 10 days is about three times a month or 36.5 times each year.  The Tribunal Judge’s approach in the present case would mean that a non-resident parent in this scenario would apparently have to settle for a departure direction based on contact taking place only once every two weeks, which is clearly wrong.

 

9.         Thirdly, and most importantly, real families live in the real world.  As Ms S Powell, who now acts for the Child Maintenance and Enforcement Commission, points out, in practice it will be difficult to adhere strictly to contact on such a regular basis.  Illness, other family commitments and festive occasions may well affect contact arrangements.  This is one reason why family courts are typically reluctant to make detailed orders regarding contact, not least in the hope that parents can develop a workable arrangement between themselves with a degree of flexibility.

 

10.       The child support system, and especially the ‘old scheme’, is often criticised for being unduly rigid.  There are, of course, some ‘cliff edges’ or ‘bright line’ rules.  For example, under the ‘old scheme’ a non-resident parent does not qualify for any ‘shared care’ reduction in the basic assessment unless he or she has day to day care for at least 104 nights in the preceding year (or, in the post-2003 ‘new’ scheme, 52 nights a year). But tribunals should not strive to read unwarranted inflexibility into the legislation.  The expression “set pattern” in the context of a departure direction application for contact costs should not be read as meaning a “pattern set in stone”.  Rather, the term needs to be applied with a degree of realism and common sense, bearing in mind the practicalities of the lives of separated families.

 

11.       The expression “set pattern” also appears in regulation 10(3) of the Child Support (Variations) Regulations 2000 (SI 2001/156), which governs variation applications for contact costs under the post-2003 ‘new scheme’.  In other respects there are, of course, a number of differences between the rules governing contact costs in the departures and variations schemes respectively.  However, on the face of it the expression “set pattern” should be read and applied in the same broad-brush fashion in both schemes.

 

The disposal of this case

 

12.       It follows that in the present case the First-tier Tribunal erred in law.  The tribunal’s decision is set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

 

13.       Ms S Powell, for the Child Maintenance and Enforcement Commission, who supports the father’s present appeal, suggests that the Upper Tribunal should send the case back for rehearing by a new tribunal.

 

14.       I disagree.  In my judgment this is precisely the sort of case in which the Upper Tribunal should re-make and substitute its own decision for that of the tribunal.  I say that for the following reasons.

 

15.       The father made his application for a variation in May 2008, although the Child Support Agency’s involvement goes back to about 2002.  The Agency’s decision maker made her decision in July 2008.  The tribunal made its decision nearly a year later in June 2009.  If the matter is remitted to a new tribunal, it is unlikely to be heard before February or March 2010, nearly two years after the original application.  There have been two previous hearings of the appeal.  The mother did not attend on either occasion and, given the distance involved, is unlikely to attend a re-hearing.  She has probably said all that she wishes to say about the matter in her correspondence about this appeal.  The First-tier Tribunal found that neither parent had kept any contemporaneous records about contact.

 

16.       In the light of all these circumstances, a new First-tier Tribunal is unlikely to be better placed than the Upper Tribunal.  It would have to resolve the appeal on the basis of essentially the same evidence as is now available.  I also bear in mind that one of the watchwords of the tribunal system is proportionality.  Given the limited disagreement between the parties, and hence the limited amount at stake here, it makes sense to resolve the matter now in an attempt to provide some finality.  In doing so I can make any decision the First-tier Tribunal could have made and may make such findings of fact as are appropriate (section 12(4) of the 2007 Act).

 

 

The available evidence about the frequency of contact

 

17.       On his departure application form the father stated that contact took place at a “minimum of every 2 weeks”.  He also said that his daughter stayed with him, on average, for two nights on each visit but that the actual number ranged from a minimum of one night to a maximum of 14 nights. The mother, in her response, said that “sometimes his visits are a month apart, and he never makes up for lost time with his daughter”.  When telephoned by the Agency’s decision maker, she stated that contact took place on average every 3 weeks.

 

18.       There is a widespread belief amongst First-tier Tribunal Judges that Child Support Agency decision makers believe whatever they were last told.  Whether or not that is the case, the decision maker in the present case concluded that contact took place every three weeks.  No reasons were given, other than that information from both parents had been considered.

 

19.       The father’s letter of appeal stated that “the access varies however on average over a year it is every two weeks”.  He added that in a previous appeal hearing, where he had sought to establish shared care, the mother had stated that he only had the children (in practice one daughter) for “some 45 nights” a year, well below the 110 nights threshold required for shared care.  At the tribunal hearing on 1 June 2009 the father told the Tribunal Judge that “occasionally I miss the fortnightly contact…[sometimes] she [the mother] went on holidays… generally it is fortnightly”.

 

20.       Since that hearing the father has provided a short letter from his new wife.  She states that when her husband’s daughter comes to stay “on the vast majority of occasions this is a two (2) weekly visit”.  The father in his appeal to the Upper Tribunal confirms that “there are occasions when holidays etc do interrupt a regular fortnightly visit, but the vast majority of occasions I have access and travel on a 2 weekly basis”.

 

21.       The mother, in her submission to the Upper Tribunal, points out that she has only been away on holiday three times in the last eight years, for periods of between four days and two weeks at a time.  She complains that this appeal is “another delaying tactic” on her ex-husband’s part.

 

22.       The father, for his part, has reiterated in his final submission that 2 weekly visits are “the norm whilst accepting family commitments prevent this being like clockwork”.

 

23.       Finally, it is not in dispute that the parents live 98 miles apart.  Each contact visit involved the father driving to the mother’s, collecting one of his daughters and returning home, and then returning her to the mother’s and driving back.  The two round trips total 392 miles.  On the basis that a litre of fuel costs £1.099, and given a mileage rate of 14 pence per mile, this means that each contact double round trip cost £54.88.

 

The Upper Tribunal’s approach to and findings of fact

 

24.       The task of a tribunal is “to deal with what the situation actually is rather than what the situation ought to have been” (Northern Ireland Commissioner’s decision CSC 4/98, at paragraph 20).  So the test when looking at contact over a past period is not what a court has ordered or what the parties have agreed.  It is what actually happened.  That has to be determined on the balance of probabilities, on the best evidence available.

 

25.       The degree of disagreement between the parties here is actually relatively modest.  The father does not claim that contact took place fortnightly without fail.  Although the mother initially told the Agency decision maker that contact was on average once every three weeks, her later comments are more to the effect that contact did not take place fortnightly.  She is, understandably perhaps, more concerned with what she sees as the father’s unwillingness to play a greater part in the lives of his daughters.

 

26.       I am satisfied that contact did not take place as frequently as fortnightly (26 times a year).  I am also satisfied that contact did not take place as infrequently as once every three weeks (17 times a year).  In the absence of contemporary documentary evidence, such as the sort of detailed calendars and diary entries that some parents produce, I have to make the best assessment I can on the available evidence.

 

27.       I acknowledge that both parents may be seeking to put the best possible slant on their evidence.  I have concluded that the parties’ mutual understanding is that contact should be fortnightly but that this was not always possible because of holidays, illness and other commitments.  I note the mother has not disputed the father’s assertion that in the previous shared care proceedings she stated that the daughter stayed with him for “some 45 nights” a year.  I also accept the father’s contention that those visits averaged out at 2 nights on each occasion.  On that basis, and on the balance of probabilities, I have decided that contact took place slightly closer to once every two weeks than once every three weeks.  I therefore conclude that contact took place 22 times a year.

 

The Upper Tribunal’s re-made decision

 

28.       The First-tier Tribunal should have allowed the father’s appeal, at least in part.  The decision which it should have made is as set out at the start of this decision of the Upper Tribunal.

 

 

 

 

 

 

Signed on original                                        Nicholas Wikeley

on 7 December 2009                                    Judge of the Upper Tribunal