Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The parent with care's appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal dated 30 April 2010 involved errors on points of law, for the reasons given below, and is set aside. The case is remitted to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for reconsideration in accordance with the directions given in paragraphs 34 to 36 below and further directions to be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

 

 

REASONS FOR DECISION

 

1. In the language of the child support legislation the appellant is the parent with care of the qualifying child (Olivia). From now on I shall call her the mother. I shall call the non-resident parent and second respondent the father.

 

2. There was an oral hearing before the Upper Tribunal at Manchester Crown Court on 6 April 2011, directed by Judge Powell at the request of both parents. Both parents attended without a representative. The Child Maintenance and Enforcement Commission (CMEC) was represented by Mr Huw James, solicitor, instructed by DWP/DH Legal Services. I am grateful to all present for their submissions in a difficult case.

 

3. The tribunal of 30 April 2010 was concerned directly with the decision of 10 June 2009, which made a variation to the maintenance calculation in effect from 8 August 2007, by virtue of the decision of 21 August 2007, at £6 per week. The variation on the ground of income not taken into account (dividends) was regarded as made in response to the mother’s application received on 12 August 2008 and accordingly took effect from 6 August 2008. It increased the maintenance calculation to £39.00 per week from that date, and then to £65.00 per week with effect from 28 January 2009. The first decision on the application had been made on 8 June 2009 and was limited to the period from 28 January 2009. The mother telephoned on 9 June 2009 to dispute the start date of the variation. The decision of 10 June 2009 was made in consequence. That in my judgment has to be analysed as a revision of the decision of 8 June 2009 (under regulation 3A(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999), so that although the CMEC written submission to the tribunal said that the decision of 8 June 2009 was not the subject of the appeal, in law the appeal was against the decision of 8 June 2009 as revised on 10 June 2009.

 

4. It appears from page 3 of that written submission that the decision-maker worked out the effect of the variation from 28 January 2009 on the basis of the dividends of £25,000 received in the tax year 2007/2008 and declared on the father’s income tax return, but in relation to the period from 6 August 2008 for some unexplained reason worked out the effect on the basis of half that amount. The author of the submission rightly doubted that, but then seems to have misread the significance of the accounts for the father’s employing company that had been produced at his direction. It could not be assumed that all of the dividends shown in the accounts (£25,000 in the accounting year to 31 May 2007 and £50,000 in the year to 31 May 2008) were paid to the father. If he held one of the issued shares and another person held the other (as suggested by points the mother had made) his entitlement would only have been to half of those figures. That is part of what will have to be looked at by the new tribunal.

 

5. The mother appealed against the decision of 10 June 2009, challenging the calculation of the variation that had been allowed and also relying on the grounds of lifestyle inconsistent with declared income and assets. As it turned out, the tribunal made no findings on those issues because it decided that the Secretary of State, then still acting through the Child Support Agency (CSA), had no power from the outset to make any maintenance calculation with effect from 8 August 2007 or any other date. Therefore, there was nothing in law on which a variation could operate.

 

6. The first crucial element of the evidence on which that was based was the existence of a court order made by a district judge in Birkenhead County Court on 17 August 2006. This was a consent order. Apart from provisions for property transfer and the payment of £6,000 by the father to the mother in 12 monthly instalments commencing on 25 August 2006, paragraph 3 provided:

 

“The Respondent Husband shall pay to the Applicant Wife periodical payments for the benefit of Olivia … (Date of birth: 31.05.1990) at the rate of £100.00 per calendar month until she ceases full-time secondary education, such payments to commence upon confirmation that Olivia is to continue her education at six form level by letter. Payment is to be made by direct debit.”

 

7. The second crucial element was the identification of the date of the mother’s application on which the maintenance calculation made on 21 August 2007 was grounded. The Secretary of State only has power under section 4 of the Child Support Act 1991 to make a maintenance calculation in response to an application. The tribunal in its statement of reasons reviewed the somewhat confused and confusing evidence and concluded that the implication at least was that the mother made her first application for child support before 8 August 2007 and certainly not after that date. The statement continued:

 

“8. It is an undisputable fact that the court order is dated 17^th August 2006. Whether the date of the [mother’s] application is 17^th July 2007 or 8^th August 2007, or a date in between, matters not because we find the fact is that she applied within 12 months of the date of the court order. Consequently the application for child support is void from the start and the Child Support Agency has no power to make any award including a variation award (Child Support Act 1991, section 4(10) as amended by the Child Support, Pensions and Social Security Act 2000).

 

 9. In the appeal papers the Child Support Agency say that the original decision is not the subject of the appeal, in the sense that the tribunal has no jurisdiction to consider it. We take the view that because the Agency had no jurisdiction to make the original award they had no jurisdiction to vary it. The [mother]’s argument that the court order was not in force, because [the father] was not paying it, is not accepted.”

 

8. Section 4(10) of the Child Support Act 1991 provided as at August 2007:

 

“(10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if—

(a)           there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order made before a prescribed date in respect of that child or those children and the person who is, at that time, the non-resident parent; or

(aa) a maintenance order made on or after the date prescribed for the purposes of paragraph (a) [3 March 2003] is in force in respect of them, but has been so for less than one year beginning with the date on which it is made; or

(b)           benefit is being paid to, or in respect of, a parent with care of that child or those children.”

 

“Maintenance order” for the purposes of the Act means an order requiring the making or securing of periodical payments to or for the benefit of the child that is made under one of enactments listed in or under section 8(11) (section 54). In the present case, the order of 17 August 2006 did not expressly state the legislation under which it was made, but in the circumstances it could only have been made under Part II of the Matrimonial Causes Act 1973, which is in the list in section 8(11).

 

9. There is an exception from the effect of section 4(10) where the maintenance order is made for the sole purpose of meeting educational or training expenses for the child (Child Support Act 1995, section 18(6) and 1991 Act, section 8(7) and (8)). That exception cannot apply in the present case, where there was no evidence in the court order or in the solicitor’s notes that the order for £100 a month was intended to meet any educational expenses, let alone that that was its sole purpose.

 

10. Regulation 26 of the Child Support (Maintenance Calculation Procedure) Regulations 2000 (the MCP Regulations) provided as at August 2007:

 

“26.—(1) This regulation applies, subject to regulation 28, where—

(a)           no maintenance calculation is in force with respect to the person with care or the non-resident parent;

(b)           an application for a maintenance calculation is made under section 4 or 7 of the Act; and

(c)           there is a maintenance order which—

(i)              is in force and was made on or after the date prescribed for the purposes of section 4(10)(a) of the Act;

(ii)            relates to the person with care, the non-resident parent and all the children to whom the application referred to in sub-paragraph (b) relates; and

(iii)          has been in force for at least one year prior to the date of the application referred to in sub-paragraph (b).

 (2) The effective date of the maintenance calculation shall be two months and two days after the application is made.”

Regulation 28 applied only where the maintenance order ceased to have effect after the date of the application but before the effective date prescribed by regulation 26. That could not have operated in the present case as, by virtue of regulation 4 of the Maintenance Arrangements and Jurisdiction Regulations 1992, the court order of 17 August 2006 would only have become unenforceable from the effective date of the maintenance calculation that was made, and not from any earlier date. There have been some amendments to regulations 26 and 28 of the MCP Regulations since August 2007, but not so as to affect the principles applying to the present case.

 

The appeal to the Administrative Appeals Chamber of the Upper Tribunal

11. The mother was given permission to appeal against the tribunal's decision by a district tribunal judge. She said in her application that she had applied to the CSA on 25 June 2007, saying that the court order ran until 25 August 2007 and was told that the case could not be opened until 25 August 2007 (referring to a computer record, possibly that now at page 351 or the handwritten notes of a telephone call now at pages 340 and 341). She said that she was told that she would be contacted on 25 August 2007, but that the CSA then set the effective date as 8 August 2007, after which she immediately requested a variation form. The mother submitted that the effective date of the initial maintenance calculation should have been 25 August 2007 and the variation should have been considered on that basis.

 

12. CMEC stated in the submission dated 11 August 2010 that it did not support the appeal, agreeing with the tribunal that there had been no jurisdiction on 21 August 2007 to make a maintenance calculation with effect from 8 August 2007.  It was then suggested that it had to follow that there could be no child support liability unless and until the mother made a fresh application (which I interpose would not be possible now since Olivia ceased to be a qualifying child on reaching her 19th birthday on 31 May 2009). But despite that the final paragraphs of the submission were as follows:

 

“20. However, it may be possible to circumvent the lost child support liability if the Upper Tribunal Judge decides it was open to [CMEC] to hold the (early) application for a maintenance calculation in abeyance for a matter of a few days until the expiry of the one year period which commenced 17.8.06, and to treat the application as being made after the expiry of the one year period.

 

 21. If the Upper Tribunal Judge considers that course was open to [CMEC], it may then be open to the Upper Tribunal Judge to consider remaking the decision himself, so that the maintenance calculation then commences one year after the commencement of the Court Order on 17.8.06.

 

 22. Having remade the maintenance calculation, the Upper Tribunal Judge could then consider remitting the case back to a First-tier Tribunal to consider the issue of the variation application.”

 

13. Understandably, neither parent had any immediate comment to make on the technical legal arguments, but both requested an oral hearing. The mother put in copies of a variety of documents, apparently from another appeal and which, so far as I can see, were not before the tribunal of 30 April 2010.

 

14. I have no doubt that the tribunal of 30 April 2010 had the power to investigate whether the decision of 21 August 2007 was validly made and indeed, as a judicial authority, was in the circumstances obliged to do so. That is because the system of variations under the post-2003 system operates, if a maintenance calculation is already in force, by way of revision or supersession of the decision making that calculation (1991 Act, section 28G(1) and Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulations 3A(1)(a)(ii) (revision) and 6A(4) (supersession)). Regulation 3A(1)(a)(ii) on revision only applies where an application for a variation is made within one month (extendable in special circumstances) of the giving of notice of the decision making the maintenance calculation. So, on the basis that the tribunal here was considering the application for variation made on 12 August 2008, the case would fall within regulation 6A(4) on supersession. But, since a decision cannot be superseded if it can be revised (regulation 6A(5)), when considering whether the decision of 21 August 2007 (which was the decision authorising the maintenance calculation in force on 12 August 2008) the tribunal was obliged to consider any circumstances emerging from the evidence before it which suggested that there was some ground for revising that decision. The existence of the court order dated 17 August 2006 was plainly evidence suggesting the existence of the ground of revision for official error (regulation 3A(1)(e)), which is open at any time regardless of whether or not an application has been made. That is not quite how the tribunal explained its actions, but it supports what it did.

 

15. However, there were in my judgment two fatal legal flaws in the conclusion reached by the tribunal. The first is in the substance of the conclusion, on the evidence before the tribunal, that the Secretary of State could have had no jurisdiction on 21 August 2007 to make any maintenance calculation and the second is in having proceeded to dispose of the case on that basis on 30 April 2010 without giving the parents, and in particular the mother, the opportunity to seek advice on the issue and have the opportunity to put forward further evidence.

 

Jurisdiction

16. It should first be noted that the Secretary of State’s decision of 21 August 2007 was made more than 12 months after the court order of 17 August 2006 for maintenance for Olivia came into force. There was nothing in the order itself or in the solicitors’ notes to indicate that the order did not come into force on that date. Although in several documents and in telephone conversations with the CSA the mother had referred to the court order operating until 25 August 2007 (or even once, as pointed out by the father, 25 July 2007), that all seems to have been based on a misunderstanding or misremembering of the terms of the order and a confusion between the order for the benefit of Olivia and the order for the payment of the £6,000 to the mother. Thus, even if at the time the CSA thought that the relevant order had been in force from 25 August 2006, in fact this was not a case where the relevant maintenance calculation was made within 12 months of the coming into force of the court order. If that had been the case, the problem of lack of jurisdiction might have been insuperable.

 

17. Then, in my judgment, the tribunal’s apparent assumption that it was only the date of first receipt of the application leading to the maintenance calculation that mattered for the purposes of section 4(10) cannot be accepted in the light of the provisions of regulation 3 of the MCP Regulations), and in particular paragraphs (1), (3) and (6):

 

“3.-(1) A person who applies for a maintenance calculation under section 4 or 7 of the Act need not normally do so in writing, but if the Secretary of State directs that the application be made in writing, the application shall be made either by completing and returning, in accordance with the Secretary of State’s instructions, a form provided for that purpose, or in such other written form as the Secretary of State may accept as sufficient in the circumstances of any particular case.

 (2) An application for a maintenance calculation is effective if it complies with paragraph (1) and, subject to paragraph (4), is made on the date it is received.

 (3) Where an application for a maintenance calculation is not effective the Secretary of State may request the person making the application to provide such additional information or evidence as the Secretary of State may specify and, where the application was made on a form, the Secretary of State may request that the information or evidence be provided on a fresh form.

 (4) Where the additional information or evidence requested is received by the Secretary of State within 14 days of the date of the request, or at a later date in circumstances where the Secretary of State is satisfied that the delay was unavoidable, he shall treat the application as made on the date on which the earlier or earliest application would have been treated as made had it been effective.

 (5) Where the Secretary of State receives the additional information or evidence requested by him more than 14 days from the date of the request and in circumstances where he is not satisfied that the delay was unavoidable, the Secretary of State shall treat the application as made on the date of receipt of the information or evidence.

 (6) Subject to paragraph (7), a person who has made an effective application may amend or withdraw the application at any time before a maintenance calculation is made and such amendment or withdrawal need not be in writing unless, in any particular case, the Secretary of State requires it to be.

 (7) No amendment made under paragraph (6) shall relate to any change of circumstances arising after the effective date of a maintenance calculation resulting from an effective application.”

 

18. Thus, the default position that has been adopted in the scheme in operation from March 2003 is that an application for a maintenance calculation is not made in writing. An application in person or on the telephone, if what is said by the parent with care is fairly to be interpreted as in substance an application, can be effective even though further information or evidence is needed. It only fails to be effective if the Secretary of State decides that it needs to be made in writing, in which case an effective application will only be treated as made when the form provided or some other written document is received. That in itself involves a considerable degree of informality and flexibility in identifying when the statutory process has been started, despite the seriousness of the potential consequences for both parents and the child(ren) involved in the starting of that process and in the identification of the date. There is also a similarly very flexible procedure for the amendment or withdrawal of an effective application.

 

19. It is helpful in addition to consider regulation 4 and Schedule 2 on multiple applications. Regulation 4 provides:

 

“4.-(1) The provisions of Schedule 2 shall apply in cases where there is more than one application for a maintenance calculation.

 (2) The provisions of paragraphs 1, 2 and 3 of Schedule 2 relating to the treatment of two or more applications as a single application shall apply where no request is received for the Secretary of State to cease acting in relation to all but one of the applications.

 (3) Where, under the provisions of paragraphs 1, 2 or 3 of Schedule 2, two or more applications are to be treated as a single application, that application shall be treated as an application for a maintenance calculation to be made with respect to all of the qualifying children mentioned in the applications, and the effective date of the maintenance calculation shall be determined by reference to the earlier or earliest application.”

 

Only paragraph 1 of Schedule 2 is relevant, as paragraphs 2 and 3 apply only where there are multiple applications by children or by different people. It is headed “No maintenance calculation in force: more than one application for a maintenance calculation by the same person under section 4 of the Act” and provides:

 

“Where an effective application is made or treated as made, as the case may be, for a maintenance calculation under section 4 of the Act and, before that calculation is made, the applicant makes a subsequent effective application under that section with respect to the same non-resident parent or person with care, as the case may be, those applications shall be treated as a single application.”

 

20. I do not need to go into all the complications of those provisions or into whether an application which appears to be “effective” for the purposes of the MCP Regulations (ie by complying with regulation 3(1)) can have that status if it is made on a date when it falls foul of section 4(10) of the Act (see decision R(CS) 3/97). For present purposes it is only necessary to note that the regulation 4(2) gives a good deal of freedom to the parent applying for a calculation. It allows, and indeed seems to contemplate, a parent making a series of applications, each time requesting the Secretary of State to cease acting on the previous application(s) or withdrawing them. Then each new application is not to be treated as united with any earlier one and made on that earlier date, but is to be taken as made on the date on which it is received. At the hearing, Mr James accepted that some such process was not precluded by the regulations.

 

21. Given all that informality and flexibility, it is certainly arguable that a parent may in circumstances like those of the present case legitimately make what is in effect an advance application for a maintenance calculation and that CMEC may then hold the application in abeyance until the 12-month period under section 4(10)(aa) expires. The intention of section 4(10) could not be to prevent the physical delivery of an application to CMEC, but to prevent applications made within the 12-month period having the normal legal effect of requiring CMEC to deal with the application and to make a maintenance calculation under section 11(1) and (2) of the Act. In paragraph 13 of decision R(CS) 3/97, Mr Commissioner Goodman took a similar approach to an equivalent provision under an earlier form of the legislation, saying that the prohibition was a convenient way of saying that section 4 did not apply in the circumstances identified and that it did not prevent a person filling in an maintenance application form (necessary at the time) and sending it to the Secretary of State. It would not be inconsistent with that intention to allow an advance application to have effect as above. That is especially so when the same result could be obtained by a series of daily applications, coupled with a withdrawal of any previous applications, until one fell outside the 12-month period. That would be a pointlessly cumbersome process and I see no reason why the same effect in practice should not result from treating an application first received when the section 4(10)(aa) period was still running as having a continuing effect day by day until after that period expired.

 

22. I have given careful thought to the question whether such an approach could only operate where the original application either expressly or by necessary implication included a request that it only be given effect after the section 4(10)(aa) period had expired or had been amended before a maintenance calculation was made to include such a request (or withdrawn and replaced by a new application including such a request). My conclusion is that that would be an unnecessarily complicating and ineffective restriction. Given the high degree of informality and flexibility described above, all it would take for CMEC (providing that it was making a calculation after the section 4(10)(aa) period had expired) to validate an application that had not met a condition of that kind would be for a short telephone call to be made to the applicant before the maintenance calculation was made to see if she wished to amend her application (or withdraw it and replace it by a new one).

 

23. Nor is it unknown in social security adjudication, the closest of the other AAC jurisdictions to child support, for effect to be given to some application made before time started to run, on the basis that the application should be given a continuing effect. For instance, in R(U) 3/85, a decision of a Tribunal of Social Security Commissioners, a claimant lodged an appeal against a decision that he knew was coming (because he had been warned that his 156 days of earnings-related supplement were coming to an end) before the formal decision was actually made by the officer. The Tribunal said this in paragraphs 8 and 9:

 

“8. … [H]e would not have known exactly on what day such a decision would be made, and in view of the need to make his appeal timeously, he would have every incentive to lodge an appeal as soon as he was aware of what was going to happen. In a sense, in the special circumstances of this case, it could be said that his appeal was a continuing one to take effect as and when the relevant concrete decision was actually made.

 

9. But, in any event, by the time the hearing took place before the local tribunal the relevant decision had been made, and both the claimant and the insurance officer proceeded at that hearing on the basis that the appeal was in order. Accordingly, we do not think that it is now open to either party to contend that there was no effective appeal before the local tribunal.”

 

In decision CI/337/1992 Mr Commissioner Rowland said of a claim for reduced earnings allowance submitted before the prescribed time for claiming had started to run that the Secretary of State was entitled to require a new claim to be made after the relevant date, but that if he did not do so and the claim was processed in the ordinary way, it should be treated as having been properly made. In decision CIB/1886/2003, Mr Commissioner Jacobs, relying on those and other cases, held that a condition of informing the Secretary of State of something within a month of ceasing to be entitled to incapacity benefit was in the circumstances of the case satisfied by the giving of the information before the ending of entitlement to incapacity benefit. There is also a general principle that a claim for an indefinite period subsists, subject to express legislation to the contrary, until the giving of a final decision on the claim (see decisions R(S) 1/83 and R(S) 2/98).

 

24. There would therefore be no difficulty at all in regarding an application for a maintenance calculation as being made on an open-ended basis and having a continuing effect. The particular difficulty, as recognised in R(CS) 3/97, is in the terms of section 4(10) in referring to when the application is “made”. But, for the reasons given in paragraphs 21 and 22 above, those terms do not prevent the application being regarded as made on each day succeeding the day of actual receipt, until a maintenance calculation is made. The factor mentioned in paragraph 8 of R(U) 3/85 comes into play here also. A parent with care may well not be too sure of exactly when the section 4(10)(aa) period will come to an end, but there is an incentive to make an effective application at the earliest possible date as that controls the effective date of any resulting maintenance calculation under regulation 26 of the MCP Regulations (two months and two days after the application is made). However, the factor mentioned in paragraph 9 of R(U) 3/85 cannot have the same weight. It is one thing in a case which involves merely a claimant and the authority responsible for the administration of a social security benefit to say that the treatment by the authority of a claim or appeal or application as if it were properly made and effective means it cannot go back on that position. It is another thing to say that in child support case if the CSA or CMEC treats an application as properly made and effective (as here), because a non-resident parent will be involved as well as the parent with care and the authority. However, I give a slight weight to the fact that the father here did not raise any challenge to the making of the maintenance calculation at the time that he was notified of it on 21 April 2007 (to his credit, at the hearing on 6 April 2011 he said that he was not seeking the repayment of anything that he had paid for the period from 8 August 2007 or to evade his proper obligations, but was merely seeking that the legislation be applied properly). I also give weight to the simplicity of the resulting rule, which I do not find to be unfair to non-resident parents or parents with care, in particular since the same result could be achieved by the much more complicated and technical routes mentioned above.

 

25. I therefore conclude that the argument set out at the beginning of paragraph 21 above represents the correct position in law. In the present case, the tribunal of 30 April 2010 did not adopt that approach and thereby went wrong in law.

 

26. The relevant evidence before it on that date was really rather thin. There was no doubt about the date of the relevant court order. However, the papers prepared by CMEC, to a large extent understandably as the appeal was thought only to be about the variation in effect from 6 August 2008, contained little of help about relevant application for a maintenance calculation. The tribunal put some weight on the mother’s variation application form at pages 31 to 38 of the papers, described in schedule as signed on 27 August 2007. The date on the photocopy on page 38 is difficult to make out and does indeed look more like 27/7/07 or 17/7/07 than 27/8/07. The tribunal thought that that date of the application for a variation could not have been 27 August 2007, because that application came later. But that was to overlook the record on page 40 of a decision, apparently made on 10 October 2007 rejecting the variation application. It was the separate later application made on 12 August 2008 that was directly before the tribunal. There was therefore in my view nothing to suggest that the form at pages 31 to 38 was not an variation application made in response to the maintenance calculation made on 21 August 2007, apart from the difficulty in making out the mother’s writing on a poor photocopy (and the mistake on page 37 that I have already mentioned about the end date of the court order). The tribunal then thought that the application for a maintenance calculation must have been made on or shortly before 8 August 2007, because that was chosen as the effective date of the maintenance calculation made on 21 August 2007. There is indeed some documentary support for that hidden on pages 39 and 40, where behind the main window on the screen grab is a record of a new application on 2 August 2007 following a case closure on 25 June 2007.

 

27. The tribunal asked the mother a few questions about this on 30 April 2010. According to the chairman’s record of proceedings, if I have read his handwriting correctly, she said that she was aware that because of the court order she could not apply to the CSA for a year, but applied on 8 August 2007. She also said that she had been told that she could not proceed on the application and to ring back when the court order ended. However, the tribunal appears not to have asked the mother about whether she did telephone again or about how the maintenance calculation came to be made on 21 August 2007.

 

28. That would have been an inadequate evidential basis for the tribunal’s conclusion even if the maintenance application first submitted on 2 August 2007 could only be regarded as made on 17 August 2007 if it had expressly or impliedly been made on that advance basis or amended to that effect (or there had been a withdrawal of the application and a new application). As it is, on what I decided to be the correct rule of law, the evidence could only support the conclusion that there was jurisdiction on 21 August 2007 to make a maintenance calculation. By then the one year period beginning on 17 August 2006 under section 4(10)(aa) had expired. The application first submitted on 2 August 2007, whether or not it had been amended as to the date when it was intended to take effect, or any replacement application after a withdrawal of that application, was to be regarded as made on 17 August 2007 for the purposes section 4(10)(aa) and the rules on identifying the effective date of the maintenance calculation. On any basis, the choosing of 8 August 2007 as the effective date for the maintenance calculation seems to have been mistaken. I do not see how, whether the application was taken as made on 2 August 2007 or 8 August 2007 or 17 August 2007 or later, the effective date could be earlier than two months and two days after whatever was the right date (MCP Regulations, regulation 26). Accordingly, that mistaken choice of date cannot be taken as indicating that the only relevant application had been made before 17 August 2007. The tribunal came to a conclusion that could not be supported by the evidence before it.

 

Natural justice

29. Even if there had been evidence before the tribunal on 30 April 2010 to justify its conclusion, there was in my judgment a breach of the principle that each party must have a fair opportunity to make out their case in the tribunal’s proceeding to give a decision based on that conclusion on that date. The point about whether there had been jurisdiction on 21 August 2007 to make a maintenance calculation at all, so that instead of a potential supersession to give effect to a variation from 6 August 2008, there should be a revision of the decision of 21 August 2007 for official error, was an entirely new point raised for the first time by the tribunal on 30 April 2010. Even then, the potential consequences in terms of jurisdiction of a finding that the relevant application for a maintenance calculation was made before 17 August 2007 seems not to have been discussed, so far as one can tell from the record of proceedings and the statement of reasons (although at the hearing on 6 April 2011 the father did say that the chairman had mentioned that some points of law might turn on the date of the application). On any basis, I have no doubt that fairness demanded that all parties should have been given the opportunity to consider and take advice on the difficult and technical legal issues arising from the view taken by the tribunal and to make further submissions. That opportunity would also have included the possibility of coming forward with additional evidence about the sequence of events in August 2007. The mother has done that in the course of her application for permission and appeal to the Upper Tribunal. CMEC, although it has put in the submissions already mentioned, has not come forward with any additional evidence to clarify the sequence of events or what officers thought that they were doing at that time. There will be a further opportunity for the production of evidence and the making of submissions before the rehearing by a new tribunal that I have directed.

 

Conclusion

30. For the reasons given above, the decision of the tribunal of 30 April 2010 must be set aside as involving errors on points of law. I am not in a position to substitute a decision on the mother’s appeal against the decision of 8 June 2009 as revised on 10 July 2010. The evidence before me, including the further evidence put forward by the mother after 30 April 2010, can only, on what I have decided to be the correct rule of law, support the conclusion that there was jurisdiction on 21 August 2007 for a maintenance calculation to be made, although it is clear that there was at least a mistake as to the effective date that requires revision on the ground of official error. On that basis there was no obstacle in law to the consideration in that appeal of the mother’s 2008 application for a variation of that maintenance calculation. That requires a full examination of the evidence and the competing arguments of both parents about the variation grounds that are in issue between them. That has not taken place before the Upper Tribunal. It can only take place at a full rehearing before a new tribunal, which will have the advantage of the possibility of containing a financially qualified panel member as well as the legally qualified panel member (chairman). But since I must either re-make the whole decision on the appeal or remit the whole appeal to a new tribunal, all the issues raised by the appeal, including that of the jurisdiction to make a maintenance calculation on 21 August 2007, fall for decision by the new tribunal. I cannot exclude the possibility that some evidence might come forward, for instance from CMEC, that puts a different light on the question of jurisdiction.

 

31. For those reasons, I cannot make any findings of fact. However, it might in my view help the parties and the new tribunal if I set out what can only be a preliminary and provisional view of the evidence that has so far been put forward after 30 April 2010.

 

32. It seems clear now that there was an initial application to the CSA by the mother prior to 21 June 2007, but that resulted in a “closure” decision on 25 June 2007 when the mother mentioned in a telephone call that there was currently a court order in place (see pages 340 and 341). That application was therefore over and done with and could not affect the validity or otherwise of any subsequent application. The note of the telephone conversation of 25 June 2007 (on pages 340 and 341) states clearly that the mother was informed that the CSA was unable to start a claim until the court order ended in August. However, I am not sure now whether it was on that occasion that the mother was told, as has been her evidence, that the CSA would contact her when the court order no longer posed an obstacle. That is because of one of the documents produced by the mother at the hearing on 6 April 2011 was a record of a telephone call from the mother to the CSA on 31 July 2007 about making a new application. The record said that all details were obtained, but there is no mention on the part of the page that had not been blacked out by the mother of the court order or of any intention that the application should be regarded as made in advance for 17 August 2007 or later. Although the mother had started out by making enquiries, it is clear from the record that she was told that the case would be passed on for further action. That application seems to have been passed on to some other section on 1 August 2007, to become the application noted as received on 2 August 2007 on pages 39 and 40 (and see now pages 350 and 351).

 

33. There was then some further contact between the mother and the CSA before the maintenance calculation was made on 21 August 2007, as evidenced by the notes at page 333. Those show that a telephone call to her on 8 August 2007, when she confirmed some details and that she wished to continue with the application. They also show another telephone call to her on 15 August 2007 in which she said, in response to the information that any maintenance calculation would be low, that if the father paid what he owed on the court order and set up a direct debit, she would close the case, otherwise she would continue. The officer said that she would telephone the father and ask him, but unfortunately the mother (I presume) has blacked out the other entry for 15 August 2007 and the further entries for 17 and 20 August 2007 on pages 333 and 334. In the light of my ruling of law, it would not matter whether or not there was any amendment of the application as to the date when it was intended to have effect, but it would be an advantage for the new tribunal to have clear view of the treatment of the application of 2 August 2007 until the maintenance calculation was made. The mother has, as many parents do in similar circumstances, put in isolated pages of CSA/CMEC documents, with parts blacked out, which she considers help her case, so that it is hard to get a complete picture. I hope that can be remedied by CMEC in producing evidence for the rehearing.

 

Directions

34. The mother's appeal against the decision of 8 June 2009 as revised on 10 July 2009 is accordingly remitted to a differently constituted First-tier Tribunal for reconsideration in accordance with the following directions. It would in my view be an advantage for a financially qualified panel member to be a member of the new tribunal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which is to apply the conclusions of law set out in paragraphs 21 to 25 above.

 

35. The new tribunal is first to consider whether the decision of 20 or 21 August 2007 making a maintenance calculation falls to be revised on the ground of official error, either because there was no jurisdiction to make a maintenance calculation at all on that date or because the wrong effective date was set for the calculation under the MCP Regulations and in particular regulation 26. In relation to jurisdiction, on the current state of the evidence there appears to be only one possible answer under what I have decided to be the correct rule of law, but the new tribunal must make its own decision in the light of any additional evidence that has been produced. I direct that before the rehearing CMEC is to make a fresh written submission on the application of what I have decided to be the correct rule of law in the present case, accompanied by the best evidence that can be provided, for instance by copies of contemporary official notes, records and other documents, as to the treatment of the maintenance application registered on 2 August 2007 down to the making of the maintenance calculation on 20 or 21 August 2007. A district tribunal judge is, once the file in this case is received by the First-tier Tribunal administration, to give directions as to the time within which that submission, including the point mentioned in the following paragraph, is to be produced and the general procedure to be followed.

 

36. If the result of that consideration is that there was a valid maintenance assessment in existence as at 12 August 2008, the new tribunal must go on to consider whether the decision of 20 or 21 August 2007 (subject to any revision as to its starting effective date) falls to be superseded with effect from 6 August 2008 or any later date down to 8 June 2009 to give effect to a variation of the ordinary maintenance calculation rules on any of the grounds in issue between the parents. That will require a full and fresh consideration of the competing arguments of the parents in the light of the evidence already available in the papers and any additional evidence put forward. The CMEC submission directed above is to include consideration of the points raised in paragraph 4 about in relation to the “dividends” ground under regulation 19(1A) of the Child Support (Variations) Regulations 2000. I remind the parents that the new tribunal will be prohibited from considering any circumstance not obtaining on 8 July 2009 (Child Benefit Act 1991, section 20(7)(b)), such as changes since that date. The evaluation of all the evidence on those issues will be entirely a matter for the judgment of the new tribunal that conducts the rehearing.

 

 

 

 

(Signed on original): J Mesher

  Judge of the Upper Tribunal

 

Date: 5 May 2011