DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant (“the father”).

 

The decision of the Birmingham First-tier Tribunal dated 25 May 2010 under file reference 024/10/03248 does not involve an error on a point of law.  The tribunal’s decision therefore stands.

 

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

 

 

 

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

 

1. The father’s appeal to the Upper Tribunal is dismissed.  The decision of the Birmingham First-tier Tribunal dated 25 May 2010 under file reference 024/10/03248 does not involve an error on a point of law.  True, District Tribunal Judge Ennals did not refer to regulation 7(4) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 in his decision.  However, he did not need to in the circumstances of this case.  The tribunal’s decision therefore stands.  

 

The issues in this appeal

 

2. The underlying issue in this appeal concerns the appropriate level of child support maintenance payable by the father in respect of his daughter Faye, who lives with the mother.   That depends in turn on whether or not there is “shared care” as defined under the child support legislation.

 

3. As is often the case, the parents’ respective views are deeply entrenched and diametrically opposed. There have been obvious difficulties over contact arrangements, but those are matters ultimately for the family courts, as the parties well know.  The mutual hostility has clearly made the case difficult for both the Commission and the First-tier Tribunal, as well as doubtless for the parties themselves.  

 

4. In fact, the central issue in this appeal before the Upper Tribunal is much narrower.  The sole question for the Upper Tribunal is whether the First-tier Tribunal’s decision involves any error of law.  That is plainly a much narrower question than what was the extent of shared care or what is the right level of child support maintenance for Faye.

 

The First-tier Tribunal’s decision

 

5. The Commission made a maintenance calculation on 16 December 2009 which was assessed on the basis that the father had shared care of Faye for 52 nights a year. The mother appealed.

 

6. The First-tier Tribunal comprised District Tribunal Judge Ennals.  He heard the appeal on 25 May 2010.  He allowed the mother’s appeal.  He noted that the mother said the shared care was 40 nights in the relevant previous year while the father said it was 43 or 49 nights.  Either way, as the tribunal judge noted, it was less than 52 nights a year in the 12 months until 2 December 2009.  He therefore ruled that the shared care provisions under regulation 7 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 did not apply.

 

The proceedings before the Upper Tribunal

 

7. The father applied for permission to appeal to the Upper Tribunal on the basis that the tribunal judge had failed to consider and apply regulation 7(4), which allows a period of less than 12 months to be used in certain circumstances in calculating the extent of shared care.  District Tribunal Judge Ennals gave permission to appeal.

 

8. The Commission’s representative, Mr Kevin O’Kane, in a detailed and helpful submission, does not support the appeal.  He argues that while the First-tier Tribunal may have made an error of law in failing to explain whether it had considered the possibility of regulation 7(4) applying, that provision could not have applied in any event.  To that extent Mr O’Kane essentially submits that the error, if that is what it was, made no difference as the tribunal came to the only conclusion it could on the facts of the case.

 

9. Both parents have made detailed submissions on the appeal.  The mother’s are carefully focussed on the relevant legal issues and would do credit to any lawyer (which she may or may not be).

 

10. The father’s submissions are more wide-ranging. However, that said his essential point is that the original CSA decision was the right one, based on common sense and fairness, and that 2009 saw some disruption to the contact arrangements, engineered, as he alleges, by the mother, which should be discounted in assessing the regularity and frequency of contact. 

 

11. The father also seeks to challenge the mother’s evidence before the tribunal as inaccurate and misleading.  However, I must bear in mind that the District Tribunal Judge had the opportunity of hearing from both parents at first hand and I should not readily interfere with his assessment of credibility. Indeed, the problem facing the father is his admission at the hearing that the amount of shared care in the relevant 12 month period did not actually reach the 52 night threshold.

 

The Upper Tribunal’s reasoning

 

12. Given the evidence before him and the concessions made, the District Tribunal Judge was evidently right to find that the 52-night threshold had not been reached for the purposes of the shared care rule.

 

13. Should he have considered a shorter period than 12 months in making that assessment by applying regulation 7(4)?  I do not accept the mother’s argument that the father should have made that point at the hearing.  I do not think unrepresented parents can reasonably be expected to make such technical points on child support law, which is notoriously complicated.  If a point like that needed to be considered, the onus was on the tribunal, which has an inquisitorial function, to identify the issue and explore it.

 

14. Plainly District Tribunal Judge Ennals did not refer to regulation 7(4) in his decision notice or statement of reasons. There is no way of knowing for sure whether the tribunal judge (a) considered regulation 7(4) but decided it did not apply but did not see it as important to say as much; or (b) simply did not consider regulation 7(4) at all.  There is some evidence that the latter was the case.  I say this with all due respect to the District Tribunal Judge, but the references in his statement of reasons to being required to adopt “a purely arithmetical basis” and to having to consider (by implication solely) the 12 month period before the relevant week suggest that alternative (b) is more likely.

 

15. However, in the circumstances of this case I do not think it actually matters whether option (a) or (b) applies. The general rule is that the level of shared care is assessed over the previous relevant 12 month period (regulation 7(3))).  This was the rule that the tribunal judge applied.  However, regulation 7(3) is subject to the terms of regulation 7(4), which provides as follows:

 

“(4) The circumstances in which the Secretary of State may have regard to a number of nights over less than a 12 month period are where there has been no pattern for the frequency with which the non-resident parent looks after the qualifying child for the 12 months preceding the relevant week, or the Secretary of State is aware that a change in that frequency is intended, and in that case he shall have regard to such lesser period as may seem to him to be appropriate, and the Table in paragraph 7(4) and the period in paragraph 8(2) of Schedule 1 to the Act shall have effect subject to the adjustment described in paragraph (5).”

 

16. So a period of less than 12 months can be used to calculate shared care on a proportionate basis in two circumstances only (see further the decision of Mr Commissioner Jacobs (as he then was) in CCS/2885/2005).  These are where either “there has been no pattern for the frequency with which the non-resident parent looks after the qualifying child for the 12 months preceding the relevant week” or alternatively “the Secretary of State is aware that a change in that frequency is intended”.  There is no suggestion in this case that any change in frequency was intended.  It followed that the father could only claim the benefit of regulation 7(4) if he could show “there has been no pattern for the frequency” of shared care in the preceding year.

 

17. In PB v Child Maintenance Enforcement Commission (CSM) [2009] UKUT 262 (AAC), [2010] AACR 22 the issue was what amounted to a “set pattern” of contact for the purposes of a departure direction for contact costs.  In reaching that decision I commented as follows:

 

“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.”

 

18. It seems to me that observation has even more force in the present context.  The relevant regulation in the PB case referred to a “set pattern”; the rule in regulation 7(4) simply refers to a “pattern”.  On the evidence in the present case the basic pattern was clear (and indeed had apparently been so for some years): shared care generally took place for a couple of nights on alternate weekends.  The fact that there had been the occasional disruption to that pattern (e.g. in the course of June 2009, which is documented in the case papers) did not mean that there was “no pattern”.

 

19. As there was a pattern for contact, and no change to its frequency was intended, the preconditions for applying regulation 7(4) did not apply.  It followed that there was no case for focussing on a shorter period than the previous 12 months.

 

20. I might add that even if a shorter period had been adopted, it would have to end with the relevant week (see CCS/2885/2005 at paragraph 11).  On that basis, if one takes the four month period ending with 2 December 2009 – so disregarding the period of disruption in June 2009, which appears to have crept into July – then it appears from the evidence on file that the father had shared care for 16 nights over 4 months. Applying the pro rata principle under regulation 7(5), that would be equivalent to 48 nights a year, and so still below the shared care threshold.

 

21. I accept, of course, that there have been some difficulties over the contact arrangements.  The rights and wrongs of that dispute are not for the tribunals.  As I stated in PB (at paragraph 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.”

 

22. This tribunal did just that.  In the circumstances, for the reason set out above, there was no material error of law by the tribunal in failing to refer to or even to consider regulation 7(4).

 

Conclusion

 

23. For the reasons explained above, the Upper Tribunal dismisses the father’s appeal (Tribunals, Courts and Enforcement Act 2007, section 11).  The decision of the First-tier Tribunal therefore stands.  

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 30 March 2011 Judge of the Upper Tribunal