IN THE UPPER TRIBUNAL Case No. CCS/1181/2011
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: I allow the father’s appeal. I set aside the decision of the First-tier Tribunal dated 4 February 2011 and I substitute a decision to the effect that the father made voluntary payments totalling £1,280 between 1 November 2006 and 31 October 2007.
REASONS FOR DECISION
1. This is an appeal, brought by the father of the qualifying child (his daughter) with my permission, against a decision of the First-tier Tribunal whereby it allowed an appeal by the mother and held that mortgage payments amounting to £1,982.26 and other payments amounting to £1,600 were not voluntary payments to be deducted from arrears of child support maintenance, although it accepted that other payments amounting to £600 were voluntary payments. The Secretary of State had held that all three lots of payments were voluntary payments.
2. Provision for treating voluntary payments as though they are payments of child support maintenance is made by section 28J of the Child Support Act 1991, under which are made the Child Support (Voluntary Payments) Regulations 2000 (SI 2000/3177). These provisions apply only to payments made after an application for child support maintenance has been made – more accurately, after the date from which the assessment will be effective – but before an assessment is made.
3. In the present case, the initial maintenance assessment was effective from 1 November 2006 but was not made until 31 October 2007. The sum of £1,982.26 represented mortgage payments made by the father in respect of the property where the mother and child were living between 1 November 2006 and 2 April 2007. It was on 26 April 2007 that the father asked that the mortgage payments be treated as voluntary payments. The Secretary of State acceded to that request on 5 November 2007, issuing a decision on the following day. In that decision, the sum of £320 was also allowed as a voluntary payment on the strength of a telephone call from the father to the effect that he had made such a payment to the mother on 1 November 2007. The mother immediately, on 9 November 2007, objected to that decision. Unfortunately, that objection, which was technically an application for a revision, was not acted upon for nearly three years.
4. Meanwhile, on 22 July 2008, the Secretary of State telephoned the mother to ask if she had received any payments from the father and she said that she had received two payments of £300 each. It was decided to deduct those from the arrears.
5. On 15 July 2010, the Child Maintenance and Enforcement Commission, which had taken over the Secretary of State’s role as decision maker, got round to revising the decision notified on 6 November 2007 and decided to accept as voluntary payments the £1,982.26, the £600 and a further sum of £1,600 which represented five payments of £320. One of those payments of £320 was the one notified in November 2007. Quite when the Secretary of State or the Commission had received the information about the other four of those payments is not revealed by the documents before me but it was plainly before 15 July 2010.
6. On 12 August 2010, the mother appealed. That appeal was treated as an appeal against the decision notified on 6 November 2007, as revised. The appeal came before the First-tier Tribunal on 4 February 2011. The mother appeared in person. The father did not appear but he was represented by his new wife.
7. In relation to the sum of £1,982.26, the First-tier Tribunal accepted the evidence of the mother, which was to the effect that the mortgage payments had been in respect of the matrimonial home which had been in the sole name of the respondent. In ancillary relief proceedings, he had been ordered to pay her £60,000. She had remained in the former matrimonial home while the father obtained a mortgage in order to pay the lump sum and the payments of £1,982.26 were made during that period. In the light of that evidence, the First-tier Tribunal reasoned that the only benefit of the payments went to the father himself, that it was inconceivable that the judge would not have made provision for payment of the mortgage by him while the mother and child were in occupation and that the payment was therefore not voluntary.
8. In relation to the other sums it accepted the mother’s evidence to the effect that she could recall only having received payments totalling £600 and it found that the other £1,600 was never received by her “and in any event it is unclear as to whether that payment was meant to be a payment in lieu of Child Support.” The First-tier Tribunal also dealt with applications made by the mother for variations, which are not material to this appeal.
9. The first question that arises is whether the First-tier Tribunal had any jurisdiction in relation to the voluntary payments at all.
10. The father has argued that the appeal was late and that, in any event, the right of appeal was removed in 2009. It is true that there seems to have been inaction on the part of both the Secretary of State and the Commission on one hand and the mother on the other hand but the fact of the matter is that the mother had promptly raised a legitimate point on 9 November 2007 which was not dealt with until 15 July 2010. In 2007, the mother had a right to apply for revision under section 16 of the 1991 Act, which was applied to voluntary payment cases by regulation 3A(6)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). There was no right of appeal against a decision under section 16 but, where a decision was revised, section 16(5) had the effect that the time for appealing against the revised decision ran from the date of the revision. The right of appeal arose under regulation 30A of the 1999 Regulations. In this case, the revision did not take place until 15 July 2010, by which time both regulation 3A(6)(b) and regulation 30A had been revoked. Regulation 3A(6)(b) was revoked with effect from 6 April 2009 by regulation 4(2)(c) of the Child Support (Miscellaneous Amendments) Regulations 2009 (SI 2009/396). Regulation 30A was revoked with effect from 25 January 2010 by regulation 14 of, and the Schedule to, the Child Support (Management of Payments and Arrears) Regulations 2009 (SI 2009/3151). However, because the mother had applied for a revision before the revocation of regulation 3A(6)(b) of the 1999 Regulations, she had a right to a decision on that application, which was preserved by section 16 of the Interpretation Act 1978 together with the extension of time for appealing against the revised decision. Since the appeal was against the decision issued on 6 November 2007, as revised, the right of appeal itself was preserved by the saving provision in regulation 15(2) of SI 2009/3151, despite the revocation of regulation 30A of the 1999 Regulations. Accordingly, I reject the father’s arguments on this point.
11. The Secretary of State originally took a different jurisdictional point before me. He referred to CSCS/20/2006, in which the Child Support Commissioner found that a decision accepting that payments were voluntary payments was invalid and of no effect if the payments had been made to someone other than the Secretary of State without the Secretary of State having given his consent. This is because section 28J(4) provided that –
“A voluntary payment shall be made to the Secretary of State unless he agrees, on such conditions as he may specify, that it may be made to the person with care, or to or through another person.”
This provision remains in force, subject to an amendment having the effect that the Commission now acts in place of the Secretary of State. In CSCS/20/2006, the Commissioner, having been referred to CCS/3864/2005, accepted that consent could be given retrospectively but he held that the consent could not be given by an appeal tribunal. On the facts, he was not prepared to accept the Secretary of State’s submission that his decision that the payments were voluntary payments implied agreement to the payments being made to someone other than himself. When another decision was made, a second appeal, on file CSCS/6/2008, came before another Commissioner, who felt constrained to adopt the same approach.
12. I respectfully agree with the legal analysis in CSCS/20/2006. I have, however, some doubt about the analysis, in both that case and CSCS/6/2008, of the decision-making process. The rejection in CSCS/20/2006 of the Secretary of State’s submission that the necessary consent had been implicitly given was influenced by the approach taken by the Secretary of State before the first appeal tribunal before whom he argued that the mortgage payment he had originally decided was a voluntary payment was not such a payment after all. However, it seems to me that the letter quoted in paragraph 12 of CSCS/20/2006 could have been construed as a promise to consider giving the necessary agreement to payments being made to a third party retrospectively if there were satisfactory evidence of payments having been made. Although I therefore respectfully agree with the Commissioner that that letter was not itself an agreement or evidence of an agreement, I would have inclined to the view that the Secretary of State’s subsequent decision that the mortgage payment that had been made to the security holder was to be treated as a voluntary payment necessarily implied retrospective agreement to the payment on account of child support maintenance being made to the security holder. There was no doubt in that case that the payment had been made and the Secretary of State did not deny that the requisite agreement had been given. The issue between the parents and on which the Secretary of State argued against his original decision before the first appeal tribunal, was whether the payment had been made on account of child support maintenance or in the discharge of other obligations.
13. In any event, I do not consider that there must be evidence of a separate decision to agree to payments being made otherwise than to the Secretary of State or the Commission. It is true that a distinction is to be drawn between administrative decisions and adjudicative decisions of the Secretary of State or, now, the Commission, but it does not follow that a single decision-maker may not make both sorts of decisions and do so within a single act, part of which is appealable and part of which is not. Moreover, there is no requirement that an administrative decision be separately recorded and there therefore is no reason why the agreement implicit in the Commission’s decision in the present case should not be presumed to be a genuine retrospective agreement to payments being made otherwise than to the Secretary of State in the absence of any suggestion by the Commission that it was a mistake or that both the decision-maker was not authorised to give the agreement and that the Commission does not wish to give such agreement.
14. When I gave the Commission an opportunity to comment on this approach, its representative resiled from his initial submission and accepted that there was a valid decision in this case. In my judgement, there was implicit retrospective agreement by the Commission that the payments in issue in this case could be voluntary payments notwithstanding that they had not been paid to the Secretary of State. The First-tier Tribunal therefore had jurisdiction to consider the case before it and so do I. I therefore turn to the three sets of payments in issue.
15. In relation to the mortgage payments amounting to £1,982.26, the father argues that he was not ordered to leave his property during the divorce proceedings and volunteered to keep a roof over the heads of his wife, daughter and stepson. I accept that the payment was voluntary in the sense that the father did not have to be ordered to make it but I do not accept that it is arguable that the First-tier Tribunal erred in law in reaching the conclusion that it did. A payment is a “voluntary payment” only if it is paid “on account of child support maintenance” (see section 28J(2)(a) of the 1991 Act). The mere fact that it would otherwise fall within the scope of the 2000 Regulations is not enough. Here, not only was there no express statement at the time that the payments were being made on account of child support maintenance but also there were powerful reasons for not treating them as such. The most obvious, to which the First-tier Tribunal alluded, is that the father was liable to make the payments anyway. It is true that he did not derive any immediate benefit from them because he was living elsewhere and that his daughter did derive an immediate benefit from them. However, the mother and her son also derived an immediate benefit from them. Whatever orders the court made were against the background that the father was allowing the mother to remain in the former matrimonial home and was paying the mortgage while she did so. Had that not been the background, the court might well have made different provision for the mother. It would be unfair to her retrospectively to treat the payments as made on account of child support maintenance.
16. However, in relation to the five payments of £320 amounting to £1,600, the father is on much stronger ground. He says that the First-tier Tribunal declined to look at evidence in the possession of his representative and instead relied wholly on the mother’s oral evidence, which it said “was given in a straightforward manner”, to the effect that she had not received any payments except the two totalling £600. It was, of course, for the First-tier Tribunal to evaluate the mother’s evidence. Nonetheless, it was necessary for it to do so in the light of other evidence available to it. The father had identified in bank statements in the bundle of documents (docs 52-55) five payments of £320 debited from his account on 10 July 2007, 8 August 2007, 4 September 2007, 5 October 2007 and 7 November 2007. Moreover, there was in the bundle of documents (at doc 19), a receipt from the mother, acknowledging receipt of a cheque for £320 received on 5 July 2007 for her daughter’s maintenance. That would seem to relate to the first cheque. There was also a record of her having accepted on 9 November 2007 that she had received four cheques (doc 23). None of that was mentioned in the statement of reasons for the First-tier Tribunal’s decision. Nor is the fact that the mother had not produced her bank statements in respect of the relevant period, despite the suggestion of the Child Support Agency that she do so (doc 22) and despite her having subsequently offered to do so (doc 44).
17. The father also alleges that the First-tier Tribunal did not look at the original bank statements and cheques, which he had obtained from his bank with documents showing that the cheques had been processed through the bank with whom the mother held an account (although naturally those documents did not give details of her accounts). The mother, who was actually present at the hearing, denies that the First-tier Tribunal was offered sight of those documents. It is unnecessary for me to resolve that dispute. The First-tier Tribunal’s decision is in any event erroneous in point of law because it made no allusion to the mother’s contemporaneous acceptance that payments had been made. Its decision must be set aside but, in the circumstances, I can substitute my own decision.
18. Although the cheque numbers had been redacted from the statements in the bundle before the First-tier Tribunal, it is clear from the documents submitted with the application for permission to appeal that the cheque numbers on the cheques correspond with those on the statements and, unless there has been a most elaborate forgery or a serious administrative error within the bank with whom the mother held her account (into which the mother could enquire), the evidence that the mother received the payments seems compelling. The Commission agrees. I do not accept the mother’s submission that the fact that the father said that he had paid her on 1 November 2007, when the relevant cheque was dated 5 November 2007, is significant or that doubt is thrown on his account by the fact that that cheque was cleared quickly on 7 November 2007.
19. The father also points out that the mother had offered to provide her bank statements in respect of the relevant period but had not done so. When I granted permission to appeal on 24 May 2011, I directed the mother, if she still disputed receipt of the five photocopied cheques, “to provide with her response copies of all her bank and building society statements covering the period from 1 July 2007 to 15 November 2007”. She did not do so, citing cost. However, in a letter received by the Upper Tribunal on 30 January 2012, she has provided the statements for one bank account. I have not arranged for those to be copied to the other parties because I do not accept that they adequately support her case. It is true that they confirm receipt of only the first cheque, in respect of which there was the receipt in the bundle of documents, but provision of those statements does not amount to compliance with my direction to provide all the statements for the relevant period. It is noteworthy that a number of the transactions on the account are transfers, which suggests that the mother had another account with the same bank.
20. I am quite satisfied that the First-tier Tribunal erred in law in not having regard to the evidence that the father had made the payments amounting to £1,600 and I am also satisfied that he did actually make those payments. I am further satisfied that the payments were on account of child support maintenance. No-one has suggested that they might have been made for any other reason.
21. However, as the Commission points out, the last of those payments was made by a cheque dated 5 November 2007, which was just after the maintenance assessment was made. The father may not have known that the maintenance assessment had been made but, technically, that payment was not a “voluntary payment”. It can, of course, still be treated by the Commission as a payment on account of child support maintenance but that is a matter for the Commission and does not fall within my jurisdiction. Technically, I can find that only £1,280 were voluntary payments within the statutory meaning.
22. The same issue arises in respect of the two payments of £300 amounting to £600. Payments made after the maintenance assessment was made cannot be voluntary payments within the statutory meaning. Accordingly, in this respect, the First-tier Tribunal made an error in favour of the father.
23. It follows that my decision is that the father made voluntary payments on account of child support maintenance amounting to £1,280 in all. He is thus £680 better off as a result of bringing this appeal, although he may be £1,600 better off if the Commission accepts that, after the maintenance assessment was made, he made a payment of £320 and two other payments of £300 which can be treated as payments of child support maintenance.
24. Even if that is accepted, the mother will still be £1,982.26 better off than she would have been had she not appealed to the First-tier Tribunal, provided that the father pays what is due,. If the law had then been as it is now, she would have been unable to appeal. The right of appeal in respect of voluntary payments was always anomalous because there was no equivalent right of appeal in respect of the Secretary of State’s – now the Commission’s – calculation of arrears due after a maintenance assessment had been made. However, this case may suggest that some effective judicial oversight over the calculation of arrears and enforcement can be desirable.
25. The mother has raised a number of other issues, but they are mostly concerned with the assessment of child support maintenance and an application she made for variations based on the father’s, assets, income and lifestyle. Neither of those issues is before me. The current basic maintenance assessment was not the subject of an appeal to the First-tier Tribunal and, indeed, the mother’s complaint seems to be about the earlier assessment effective from 1 November 2006. I am unable to comment on that since I do not have any of the material documents before me. I do not even know when the mother first applied for child support maintenance. The application for variations was before the First-tier Tribunal, which rejected them. The mother did not seek permission to appeal within the time allowed and has in any event not identified errors of law which would amount to grounds of appeal. The mother has also made other comments about the father’s failure to pay child support maintenance. This is not within my jurisdiction, as I think the mother recognises, and, again, I do not know enough about the background of the case for it to be appropriate for me to make any comment.