THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DETERMINATION OF THE UPPER TRIBUNAL JUDGES

 

The Upper Tribunal declines to exercise its power under section 25 of the Tribunals Courts and Enforcement Act 2007 upon a reference by the First-tier Tribunal dated 18 September 2009.  The documents produced by the second respondent are transmitted to the First-tier Tribunal and the case is remitted to them to proceed as accords.

 

REASONS FOR DETERMINATION

 

1.               By notice dated 18 September 2009 a District Judge of the First-tier Tribunal made a reference to the Upper Tribunal under regulation 7 (3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the First-tier Tribunal Rules) asking the Upper Tribunal to exercise its powers under section 25 of the 2007 Act in relation to the failure of the father of children to comply with a direction to produce documents.  This was the first such reference to the Upper Tribunal.  A hearing was convened before a panel of three judges of the Upper Tribunal on 1 December 2009 to consider the matter since it involved important points of principle and practice.  At that hearing the appellant and parent with care and mother of the two children concerned appeared on her own behalf.  The non-resident parent and father of the two children did not appear despite notice being given to him of this hearing.  In terms of rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the Upper Tribunal Rules), we were satisfied that the father had been notified of the hearing and considered that it was in the interests of justice to proceed with the hearing although the father had not attended.  The Child Maintenance and Enforcement Commission was represented by Mr Simon Collins, Advocate, instructed by the office of the Solicitor to the Advocate General of Scotland.    

 

2.               On 3 June 2008, the mother (whom we shall now refer to as the appellant) made an application for child support maintenance for her two children under section 4 of the Child Support Act 1991 as amended.  A maintenance enquiry form was issued to the father (whom we shall now refer to as the second respondent) which he completed on 23 June 2008.  On 18 July 2008, the Secretary of State made a decision under section 11 of the Child Support Act 1991 as substituted by the Child Support, Pensions and Social Security Act 2000 in respect of which the second respondent became liable to pay £28 per week in respect of the two children effective from 6 June 2008.  On 11 August 2008, the appellant requested an appeal against that decision.  That appeal was considered as an application for a variation on the grounds of assets and income not taken into account, diversion of income and lifestyle inconsistent with declared income.  However, on 5 January 2009 it was decided that a variation could not be awarded and the original decision of 18 July 2008 remained in force.

 

3.               The appellant appealed to the First-tier Tribunal.  After sundry procedure the District Tribunal Judge issued a direction on 20 March 2009 directing the second respondent to produce certain information within 28 days.  That direction included the production of “copies of his personal bank statements covering the three-month period from May to July 2008.”  It also ordered production of certain information in relation to his bank accounts and further details arising from certain documents already produced.  The second respondent was informed in terms of that direction that a failure to comply with them might result in him being barred from taking further part in the proceedings in terms of rule 8 (8) of the First-tier Tribunal Rules.

 

4.               In response to that direction, the second respondent produced certain information.  However, that did not include copies of any bank statements.  Accordingly, on 15 May 2009, the First-tier Tribunal by direction barred him from taking further part in the proceedings. 

 

5.               The second respondent applied to the First-tier Tribunal for the bar to his taking part in the proceedings to be lifted.  The First-tier Tribunal took the view that he had still not fully complied with the directions of 20 March 2009 in that he had failed to provide copies of his personal bank statements.  A direction to that effect was given on 25 June 2009.  A further hearing was held in the appeal on 28 July 2009.  The direction notice issued upon that date is at page 97 of the appeal papers.  Since the second respondent had been barred from taking further part in the proceedings by that date, he was neither present nor represented.  The tribunal considered it appropriate to lift the bar so that the tribunal could refer the second respondent to the Upper Tribunal under rule 7 (3) of the First-tier Tribunal Rules for failure to comply with the direction to produce documents.  However, before deciding whether to make that reference, the tribunal gave the second respondent a further 28 days to produce the information set out in that direction notice.

 

6.               In response to that direction, the second respondent produced further information, including information inserted into a pro forma sheet provided by the First-tier Tribunal in relation to his household income and expenditure.  This is shown at page 102 of the appeal papers.  In addition, the produced a letter dated 19 May from his accountants.  This is at page 103 of the appeal papers.  As a handwritten addendum to that letter, the second respondent stated as follows

 

“As stated previously in telephone conversations I have provided the bank statements to an accounting firm as above.  I am not willing to share my personal bank information with (the appellant) as I was informed all those statements would be copied to her I supplied the information to the accounting firm.  I am willing to send the statements to the tribunal but am not willing to have the information shared.”

 

7.               On 18 September 2009, the First-tier Tribunal issued a reference in the following terms: 

 

“(the second respondent) has persistently failed to provide copies of his bank statements covering the three month period from May to July 2008.

 

He was warned in a Directions Notice dated 28/07/09 that if he did not comply within 28 days a referral would be made to the Upper Tribunal under Rule 7 (3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

 

He has not so complied and, therefore, I am referring (the second respondent) to the Upper Tribunal with a request that the Upper Tribunal exercise its power under section 25 of the Tribunals Courts and Enforcement Act 2007 in relation to his non compliance to produce the said documents.”

 

8.               The First-tier Tribunal’s power to order production of documents is contained in rule 16 (1) (b) which provides as follows:

 

“On the application of a party or on its own initiative, the tribunal may – (b) order any person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.”

 

Mr Collins correctly in our judgement accepted that the direction notice dated 28 July 2009 was made under rule 16 (1) (b) although it does not say so explicitly.

 

9.               The First-tier Tribunal made its reference to this tribunal under regulation 7 (3) of the First-tier Tribunal Rules.  That rule provides inter alia as follows:

 

“7 (3) the tribunal may refer to the Upper Tribunal and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the tribunal – (e) to produce a document”.

 

Accordingly, the First-tier Tribunal may make a reference to the Upper Tribunal under rule 7 (3) in relation to a failure to comply with a requirement to produce a document imposed under rule 16.  It has done so in this case.    

 

10.            We should observe that the case management powers of the First-tier Tribunal are set out in rule 5 of the First-tier Tribunal Rules.  This gives power to the First-tier Tribunal inter alia in terms of 5 (3) (d) “to permit or require a party or another person to provide documents, information, evidence or submissions to the tribunal or a party.”  Since rule 5 (3)(d) refers to the provision of documents and rule 16 refers to the production of documents and it is the production of documents which can be the subject of a referral to the Upper Tribunal in terms of rule 7 (3), there must be significance in the choice of the word produce in the latter  provision.  We consider that rule 5 is, as stated, concerned with case management powers and, in particular, to the provision of documents, information, evidence or submissions in order to allow the tribunal to regulate its procedure.  By contrast, the powers to order production of documents are concerned with the scope of the evidence which can be before the tribunal in order to decide the issues before it.  That is why, in our view, the failure to produce documents upon being ordered to do so can result in a reference to the Upper Tribunal asking it to exercise its powers under section 25 of the 2007 Act which may include proceedings being taken against the haver of a document for contempt of court. 

 

11.             It is in recognition of the serious nature of the making of an order under rule 16 that rule 16(4) requires any such order to state that the person on whom it is imposed may apply to the tribunal to vary or set aside that order, if they have not had an opportunity to object to it and to state the consequences of failure to comply with the order.   In the light of that provision, the Direction Notice of 28 July 2009 stated that the First tier tribunal might refer the second respondent to the Upper Tribunal to exercise its power under section 25 of the 2007 Act.  Further, there appears at the bottom of the direction the following docquet:

 

            “A party is entitled to challenge any direction given by applying for another direction which amends, suspends or sets aside the first direction.”

 

Accordingly, the information given in the direction of 28 July 2009 complied with the requirements of rule 16(4). 

 

 

 

 

 

12.            The reference of 18 September 2009 was in different terms than that of the direction of 28 July 2009.  In the direction of 28 July 2009 what was ordered to be produced was the following:

 

(1)  Copies of his bank statements covering the three-month period from May to July 2008.

(2)  A detailed written explanation of all monies paid into and withdrawn from any account which he held in his name for the above period.

(3)  Copies of all credit card statements covering the three-month period from May to July 2008 showing the purpose of all amounts charged to the cards. 

(4)  The second respondent was to complete the attached sheet showing his monthly and annual income and outgoings and lifestyle expenditure for the year 01/07/07 to 31/07/08. 

 

Items 2, 3 and 4 cannot, of course, be the subject of a reference to the Upper Tribunal in terms of rule 7 (3).  It is only failure to comply with requirements imposed by the first tier tribunal relating to the giving of evidence and the production or inspection of documents that allow it to make a reference to the upper tribunal.  Because of that limitation, the reference of 18 September 2009 was limited to the failure to provide copies of “his bank statements covering the three-month period from May to July 2008”.

 

13.            By letter dated 17 November 2009 the second respondent intimated that, having taken legal advice on the matter, he acknowledged that he could not withhold documents from the tribunal.  He enclosed with that letter various documents including bank statements in respect of a private bank account in his name for the period from 17 April to 5 August 2008.  He has therefore complied with the order to produce bank statements covering the stated period.  In these circumstances it cannot be said that he has failed to comply with the requirement imposed upon him by the direction notice of 28 July 2009 albeit he has done so outwith the period given by the First-tier Tribunal and only after a reference was made by them to the Upper Tribunal. 

 

14.            Mr Collins submitted that this tribunal might have the power to issue its own order requiring the second respondent to produce different documents which could be specified in that order.  Mr Collins made that submission under reference to the Upper Tribunal’s powers granted in terms of section 25 of the 2007 Act.  That section reads as follows

 

“25 (1) in relation to matters mentioned in sub-section (2), the Upper Tribunal (b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session. 

(2) The matters are - (a) the attendance and examination of witnesses, (b) the production and inspection of documents and (c) all other matters incidental to the tribunal’s function. 

 

In our judgement the power, in effect, to redraft the order of the First-tier Tribunal cannot be exercised under section 25.  Rule 7(3) and (4) of the Upper Tribunal Rules provide as follows:

 

“7(3) Paragraph (4) applies where the First-tier Tribunal has referred to the Upper Tribunal a failure by a person to comply with a requirement imposed by the First-tier Tribunal – (e) to produce a document

 

 7(4) The Upper Tribunal may exercise its power under section 25 of the 2007 Act (supplementary powers of the Upper Tribunal) in relation to any such non-compliance as if the requirement had been imposed by the Upper Tribunal.”

 

In our judgement these provisions mean that the Upper Tribunal can only exercise its powers under section 25 upon a referral by the First-tier Tribunal in respect of the requirement imposed by that tribunal.  It is not open to the Upper Tribunal to impose a different requirement in substitution for that imposed by the First-tier Tribunal.   It is the First-tier tribunal that knows what issues arise in the appeal and what material is required to assist in its resolution.   It is therefore of the first importance that the First-tier tribunal consider carefully the terms of any direction to produce documents.  Plainly any such documents require to be relevant to the resolution of the issues before it.  The Direction Notice should articulate with precision what documents it requires and the period for which they are required.  In the case of bank statements, for example, the dates specified must be related to the subject matter of the appeal before the First-tier tribunal. 

 

15.            In the circumstances, we decline to exercise the power under section 25 of the 2007 Act.  The First-tier Tribunal remains seized of the appeal and must go on to decide it.  The case is remitted for them to do so and the documents submitted by the second respondent along with his letter of 17 November 2009 are transmitted to them for that purpose. 

 

 

(Signed)

DJ MAY QC                          

Judge of the Upper Tribunal

Date: 10 December 2009

 

(Signed)

AJ GAMBLE 

Judge of the Upper Tribunal

Date: 10 December 2009       

 

(Signed)

DS BURNS QC

Deputy Judge of the Upper Tribunal                     

Date: 10 December 2009