Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 91 (AAC) (18 May 2009)
Child support
variation/departure directions: lifestyle inconsistent

THE UPPER TRIBUNAL Case No: CSCS/14/08

ADMINISTRATIVE APPEALS CHAMBER

Appellant:

First Respondent:

Second Respondent:

Heard at:

Date of Hearing:

DECISION OF THE UPPER TRIBUNAL

D J MAY QC

JUDGE OF THE UPPER TRIBUNAL

Oral Hearing

ON APPEAL FROM: Appeal Tribunal

Tribunal Case No:

Tribunal Venue:

Hearing Date:


 


THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before: D J May QC, Judge of the Upper Tribunal

Attendances:

The appellant represented himself

For the First Respondent: Mr Bartos, Advocate instructed by Miss McCurry, Solicitor, of the Office of the Solicitor to the Advocate General

For the Second Respondent: Mrs McLeod

The appeal is allowed.

The decision of the tribunal given at Glasgow on 27 June 2008 is set aside.

The case is referred to the First tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

STATEMENT OF REASONS

1. The appellant in this appeal is the non-resident parent. He appeals against the decision of the tribunal. The decision was in the following terms:

"The appeal is allowed.

The case is remitted to the Secretary of State to recalculate the amount of the child support assessment in accordance with the following directions:

I grant a variation under Regulation 20 of the Variation Regulations 2000 to impact on the maintenance assessment from the effective date of 22/09/2004. I estimate that the income needed to support the overall lifestyle of the second respondent would have been £9,000 in excess of his declared net income. That figure is to be the basis of the variation.

Any party may apply to the Tribunal, within one month of the issue of notification of the recalculation, for the Tribunal to determine the correctness of the recalculation."

2. It is when considering this appeal necessary to look at the history of the case. On 2 February 2005 a revision of a maintenance calculation dated 9 November 2004 in respect of the support of a child of the appellant and second respondent, was carried out. A case for a variation had been made out - The maintenance calculation as revised had the effective date of 22 September 2004.
3. Notwithstanding what was said by the Secretary of State in his submission to the tribunal it was accepted by Mr Bartos that the date of application for variation, the refusal of which gave rise to the appeal before the tribunal, was 23 October 2006. None of the parties has a copy of this application. Thus its content could not be ascertained directly by reference to it.
4. In response to that application the Secretary of State on 13 March 2007 made the following decision:

"The Secretary of State's decision was made under Regulations 28F of the Child Support Act 1991, as substituted by Section 5 of the Child Support, Pensions and Social Security Act 2000 and Regulation 6A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The Secretary of State determined that the variation application could not be given on the basis that:

(i) There was insufficient evidence to award a variation

..................... ."

5. Thereafter the second respondent wrote a letter to the Child Support Agency on 19 March 2007 which was received by them on 22 May 2007. In that letter she said:

"I refer to the letter dated 13 March 2007 which stated that there was no change to the maintenance payable. I believe that this is incorrect as it is based on a mistake as to a material fact. (Section 18(6)(b) Child Support Act 1991 (C48)) refers.

In the first instance I request a review under Section 18(6)(b) Child Support Act 1991 (C48) for the following reasons: .......... ."

She then set out various reasons for requesting a review.

What the second respondent had failed to realise was that the provisions for review contained in the Act had been repealed and the remedy sought by her was no longer open to her.

6. The Secretary of State then did two things. First he treated the claimant's letter as a request for an appeal against the decision of 13 March 2007 and accepted it as a late appeal. Second, and somewhat bizarrely, he treated it as an application for variation.

In the submission to the tribunal the following decision dated 22 November 2007 is recorded:

"The submission writer looked at the decision not to complete a supersession again.

The submission writer was unable to revise the decision dated 13 March 2007 in the second respondent's favour in accordance with Section 16 of the Child Support Act 1991 as substituted by Section 40 by the Social Security Act 1998 ..... ."

7. My attention was drawn by Mr Bartos to two letters written to the second respondent and to the appellant in identical terms. They are headed:

"Application for a variation - outcome"

They then go on to say that:

"The application for a variation to the maintenance calculation has failed. We have carefully looked at all the information that has been gathered and have decided that a variation to the maintenance calculation cannot be given. This is because: ..... ."

They then deal with three cases under Regulations 18, 19(4) and 20 of the Child Support (Variations) Regulations 2000 relating to assets, diversion of income and lifestyle inconsistent with declared income. In the letters there is also the paragraph:

"Although the variation has been refused the appeal will still proceed to the tribunal. It will now include this variation refusal decision so the tribunal will be looking at all the issues raised."

8. It was Mr Bartos' submission that the claimant's letter received by the Child Support Agency on 22 May 2007 could not both be a letter seeking a second tier review and be an independent application for variation. It was Mr Bartos' submission that the Secretary of State purported to treat the letter as an appeal which was something he was entitled to do and also as an application for variation which he was not. He said that it could not be an application for variation because the letter seeks a review of a decision on an application for variation. It does not, he said, seek a review of the maintenance calculation itself. That submission was not disputed by the other parties to the appeal and I accept it.
9. Thus the import of Mr Bartos' submission was that what was before the tribunal was an appeal in relation to the decision of 13 March 2007. That was not disputed by the other parties to the appeal and I accept it.
10. The basis upon which the tribunal made the decision, which I have quoted in paragraph 1 was:

"2. The parent with care has appealed against a decision by a decision maker taken on 13.3.07 by which he refused to supersede an earlier decision maker's decision refusing to agree to a variation impacting on the non-resident parent's Child Support Maintenance liability. That liability had been fixed at £68 per week with an effective dated of 22.9.04.

11. Essentially the parent with care's case at these proceedings is that a variation should now be agreed to based on the lifestyle of the non-resident parent being inconsistent with his declared income.

4. I am satisfied that it is appropriate therefore to allow the appeal against the decision maker's decision refusing to supersede an earlier decision maker's refusal to agree a variation in this case. I identify the grounds of supersession as being ignorance of the material fact, i.e. the overall lifestyle of the non-resident parent and the income required to support it."

12. I am satisfied that the tribunal have erred in law and their decision must be set aside. There are a number of identifiable errors.
13. It is not clear from paragraph 11 of the tribunal's statement what decision it considered to be under appeal. In paragraph 2 it is said that the appeal is against the decision of 13 March 2007 but in paragraph 11 the suggestion is that it is allowing an appeal against the incompetent decision of 22 November 2007. It is accepted by the parties to the appeal before me that the decision appealed against was that of 13 March 2007.
14. Further, in paragraph 11 the tribunal purports to supersede the maintenance calculation of 9 November 2004 as revised on 2 February 2005 by a supersession under Regulation 6A(2)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1991. Mr Bartos submitted that it was not competent for the tribunal to make such a supersession. That submission was not disputed by the other parties to the appeal and I accept it. A variation once a maintenance calculation has been made can only proceed by application under Section 28G of the Child Support Act 1991. That section provides:

"28G(1) An application for variation may also be made when a maintenance calculation is in force."

By virtue of subsection (2) Sections 28A-F and Schedules 4A and B apply to such applications as modified by the Child Support (Variations)(Modification of Statutory Provisions) Regulations 2000. Regulation 2 of these regulations provides:

"When an application for variation is made under Section 28G, Sections 28A to 28F and Schedules 4A and 4B shall apply subject to the modifications provided for in these Regulations."

Section 28F as modified sets out, amongst other things the circumstances in which a variation can be agreed to the standard formula for support.

15. On an application under Section 28G a decision can only be revised under Regulation 3A of the Decisions and Appeals Regulations and superseded under Regulation 6A(6). The latter regulation provides:

"(6) A decision may be superseded by a decision made by the Secretary of State where he receives an application for the supersession of a decision by way of an application made under Section 28G of the Child Support Act."

16. A variation in my view cannot be effected by a supersession on another ground contained in Regulation 6A such as 6A(2)(b). The finding that Regulation 6A(2)(b) was satisfied would not of itself found the basis for a variation. The change to the maintenance calculation can only be made by a variation where the conditions upon which such a variation can be made as prescribed by Section 28F are satisfied. Thus to give effect to a variation by supersession the only route is by way of Regulation 6A(6) of the Decisions and Appeals Regulations.
17. Mr Bartos also submitted that even if the tribunal had been entitled to supersede the decision on the maintenance calculation as revised on the basis which it did they would have erred in law by fixing the effective date for supersession as from 22 September 2004. The application for variation was made on 30 October 2006 and by virtue of Section 17 of the Act Regulation 6A(6) and Regulation 7B of the Decisions and Appeals Regulations 1991 any variation would require to take effect from the date on which the application was made. Regulation 7B(6) had no bearing on this case. Neither of the other parties to the appeal disputed the submission. I consider that it is well founded. It should be noted that in the sequence of events given to the tribunal at pages L and M the date of the application for variation was given as 21 March 2005, which is not the factual position as stated to me in the appeal. That, to some extent, explains the error of the tribunal.
18. As the parties to the appeal all agreed that the tribunal erred in law and having accepted that myself for the reasons set out above I set the decision aside.
19. In relation to the disposal of the appeal both the appellant and second respondent urged me to remake the decision of the tribunal. I did not consider that to be appropriate as there are matters of fact to be determined including the exact nature of the application for variation. There were also matters where there may well be disputes as to fact and in these circumstances I considered that the best course was to remit the matter to a freshly constituted tribunal. I canvassed with the parties appropriate directions which I should give to the freshly constituted tribunal. I did not understand the following to be disputed. The decision appealed against to the tribunal is that of 13 March 2007. The application for variation is 26 October 2007. The freshly constituted tribunal will require to receive evidence in relation to the exact content of that application. The freshly constituted tribunal are directed that there is no later application for variation before them. The application for supersession proceeds under Section 28G of the Child Support Act 1991. The only ground for supersession open for consideration by them is that contained in Regulation 6A(6) of the Decisions and Appeals Regulations. The case being made by the second respondent before them is one under Regulation 20 of the Variations Regulations. That is why it is important for them to determine the exact nature of the application for variation. The freshly constituted tribunal will note that Section 28(G) provides for Sections 16, 17 and 20 of the Act and Sections 28A to 28F and Schedules 4A and 4B to apply with the modifications set out in the Child Support (Variations) Modification of Statutory Provisions Regulations 2000. If the tribunal consider that a case has been made out in accordance with Regulation 20 the form of supersession must be that contained in Regulation 6A(6) of the Decisions and Appeals Regulations. Further the commencement date for any maintenance calculation following upon supersession would be 30 October 2006.

(signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 18 May 2009