The Upper Tribunal
(Administrative Appeals Chamber)

Upper Tribunal Case No: CCS/1474/2010

Parties

Andrew Betts, the Child Maintenance and Enforcement Commission and Sharon Andrews

Decision on an Appeal against a Decision of a Tribunal

Corrected in Paragraph 11

Upper Tribunal Judge: Edward Jacobs

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made at Cardiff under reference 188/09/01704) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTION:

The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 20(7)(a) of the Child Support Act 1991, any other issues that merit consideration.

Reasons for Decision

A.          Introduction

1.           I have to decide two issues. First: is the use of a provisional decision permissible in principle? Second: if so, was it properly operated in this case?

2.           Tribunals often have to make decisions in child support cases on limited evidence. The majority of parents are not represented and have not been advised about the proceedings. Some parents are unable to attend as a result of work or other commitments. Some live too far away to attend. Some do not understand the importance of contributing to the proceedings and the risk of not doing so. Others simply decide not to co-operate. Whatever the reasons and however legitimate they may be, the result is the same. The tribunal has to deal with a case in which a parent may not have made full disclosure of relevant documents and has not attended the oral hearing.

3.           Tribunals have developed approaches to overcome the problems of incomplete evidence. One approach is to issue directions explaining what is required. That removes any chance of misunderstanding the significance of the proceedings and the consequences of failing to participate. Another approach is to issue a provisional decision in order to show the parents what the decision will be if other information is not forthcoming. It operates, in effect, as a final chance to provide relevant information. This was the approach taken by the judge in this case.

4.           This is different from the practice in the courts of issuing a draft judgment. The purpose of that practice is essentially for the parties to draw attention to minor errors or omissions. It is not an invitation to produce further evidence or new arguments. In contrast, that is precisely the purpose of a provisional decision. 

B.          Background

5.           On 18 January 2008, the Child Maintenance and Enforcement Commission decided that the non-resident parent was liable to pay child support maintenance at £40 a week in respect of Matthew and Jordan. In June 2008, the non-resident parent applied for that decision to be changed on the ground that there had been a change of circumstances. He produced details of his income from self-employment. As a result, his liability was increased to £41 a week.

6.           The parent with care lodged an appeal against that decision. In view of the contents of the appeal, the Commission treated the appeal as an application for a variation. That approach was approved in CCS/1838/2005 at [15] and R(CS) 2/06 at [24]-[29]. The parent with care completed a form to apply  for a variation, but this was refused by the Commission.

7.           The Commission’s submission presented the appeal as relating to variation issues. However, a variation takes effect as part of the maintenance calculation process. The result is that the tribunal had power to deal with any issue relating to the calculation of maintenance. Its scope was not limited to issues relevant to variation. In particular, the tribunal had power to investigate the non-resident parent’s actual income rather than deal with it indirectly under the various heads for a variation. There was nothing in the submission to alert the parents to that possibility. However, this was probably what was in the mind of the judge who, on 12 June 2009, directed the Commission to provide a submission on the basis of the calculation.

8.           The case came before the First-tier Tribunal for hearing on 30 October 2009. The parent with care attended, but the non-resident parent did not. That may not be surprising, as he lives in Yorkshire, the parent with care lives in Wales, and the hearing took place in Cardiff. However, he had told the tribunal that he was able to attend and, I believe, had attended previously. At the end of the hearing, the tribunal decided to issue a provisional decision that would become final unless the non-resident parent provided specified information within 28 days. The provisional decision was that the non-resident parent’s liability was to be calculated on the basis that he had self-employed income of £1200 a week less tax and national insurance.

9.           The tribunal’s decision reached the non-resident parent on 3 November 2009. He did not open it until he returned from working away on 6 November. He then realised that he was having difficulties obtaining some of the documents and contacted the tribunal’s office on 17 November. According to the tribunal’s record, he was advised to write in for guidance. In the event, he posted information to the tribunal on Friday 28 November, and it arrived on the following Monday. It was received after the 28 days that the tribunal had allowed. A district tribunal judge refused to set aside the tribunal’s decision. He commented that it had been foolhardy for a parent not to attend a hearing in a case that was ‘manifestly complex’ and that the ‘use of a courier service might have been prudent.’ With respect to the judge, I consider that both those comments were unrealistic. The distance that the non-resident parent lived from the venue, coupled with work and child care commitments, may have it difficult for him to attend. And a courier service might not have got the documents to Cardiff in time.

C.          The first issue: is the use of a provisional decision permissible in principle?

10.        Yes, it was.

11.        The use of provisional decisions is not new. The practice was developed before the creation of the present tribunal system in November 2008. Upper Tribunal Judge Wikeley commented on it as a deputy Child Support Commissioner in CCS/1885/2007:

‘52. … No party has objected to that manner of proceeding. I see no objection to this procedure, providing it is made clear (as here) that it is the final decision which gives rise to appeal rights. Indeed, this approach seems admirably suited to the type of appeal where the tribunal is seeking to give one last chance to a non-compliant party. It represents a sensible case management technique wholly inconsistent with the tribunal’s inquisitorial function.’

12.        I respectfully agree with those remarks. The practice is not only sensible. It is now authorised in furtherance of the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):

‘2 Overriding objective and parties’ obligation to co-operate with the Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes-

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it-

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must-

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Upper Tribunal generally.’

13.        The issuing of a provisional decision in this case technically took effect on an adjournment under rule 5(3)(h). That power had to be exercised in furtherance of the overriding objective. The tribunal did so by adopting a flexible approach that encouraged the non-resident parent to participate in the proceedings through compliance with the duties under rule 2(4).

14.        The exercise of the power was a matter for the tribunal’s judgment. A tribunal might decide that a parent has had sufficient notice of what is required, perhaps through a direction earlier in the proceedings, and that an adjournment is not justified. In this case, the tribunal decided to issue a provisional decision. That was within the reasonable bounds of its judgment and, as I have explained, in furtherance of the overriding objective.

D.          The second issue: was the provisional decision process properly operated in this case?

15.        No, it was not.

16.        Leaving aside whether the non-resident parent could have attended the hearing and whether or not he should have used a courier, the fact is that the information that he sent arrived only shortly after the time allowed. I do not see in what occurred a parent who was being obstructive or evasive. He provided an explanation of the time he had taken to obtain the information and send it to the tribunal. In substance, that raised the question whether to extend the time that the tribunal had allowed him. The tribunal had that power under rule 5(3)(a). There is no limit on the time at which it may be exercised. It can be exercised before a deadline expires or afterwards and with retrospective effect. That power had to be exercised in furtherance of the overriding objective. I have not been able to find any indication that the tribunal considered that issue. It dealt with the case solely by reference to the set aside criteria in rule 37. That omission was an error of law.

17.        I also note that the tribunal did not inform the non-resident parent that he could apply to extend the time for submitting the information. I can understand why the tribunal would not generally wish to present a parent with the means for further delay. Nevertheless, the tribunal had that power and the lack of any notice of it to the non-resident parent made it all the more important to consider whether to exercise it in appropriate circumstances.

E.          Action following a provisional decision

18.        In giving notice of the provisional decision, the judge wrote:

‘Should [the non-resident parent] provide the further evidence specified above, the case is to be referred to me for further directions (which may include provision for a Financial Member to be added to the panel and for information to be obtained from … Ltd).’

19.        In giving permission to appeal, I wrote:

‘I also note that the decision notice warned that a further hearing might involve an additional (financially-qualified) member. This has not happened in this case, but it may arise in other cases. As part of the consideration of provisional decisions, would it be proper for the judge to sit with another member having heard part of the evidence?’

20.        The Commission’s representative has reserved comment until this situation arises.

21.        The situation has not arisen, but it may be preferable to prevent problems rather than deal with them once they occur. I can understand that the additional information provided might make it desirable to have the assistance of a financial member. However, it is important that all the members of the tribunal that makes a decision should have heard all the evidence. In this case, the parent with care gave oral evidence. The record of proceedings did not have to be verbatim, so the financial member might not have access to all the evidence. Moreover, the member would not have had the chance to form an impression of the way that the parent gave evidence. There may be cases in which it is possible to add a member in the course of the proceedings. An obvious example is the case has been conducted entirely on the papers. However, there is a clear and present danger in adding a member to proceedings that have involved oral proceedings.

F.           Disclosure of evidence

22.        The non-resident parent has asked for some of his evidence not to be disclosed to the parent with care. He has also complained about some of the information that has been passed to her. I need to comment on that.

23.        A parent has a right under the First-tier Tribunal’s rules of procedure to keep certain information confidential. That right is limited to the addresses of that parent and the qualifying child: rule 19. The tribunal also has the power to prohibit disclosure of information to one of the parties. That power is limited to information that would be likely to cause serious harm: rule 14(2). Apart from those limited provisions, the proceedings operate on the basis that the whole of the evidence is available to the tribunal, the parties and their representatives.

G.         The effect of my decision

24.        I have set aside the tribunal’s decision without holding an oral hearing, as the arguments were sufficiently clear on the written responses. There will now be an oral rehearing of the case. The non-resident parent has asked that the hearing not take place in Cardiff. That is not a matter for me, but for the First-tier Tribunal.