Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

AND DETERMINATION ON APPLICATION TO APPEAL

The absent parent's appeal to the Upper Tribunal is disallowed. The decision of the First-tier Tribunal of 1 May 2012, signed on 28 June 2012, did not involve any error on a point of law, for the reasons given below, and is set aside.

Following the oral announcement of that decision, with brief written reasons to follow, at the hearing on 7 August 2013, an oral application was made on behalf of the absent parent for permission to appeal to the Court of Appeal against the decision. I waive the requirements in rule 44(1) and (3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for such an application to be made in writing and after written notice of the decision in question has been given (rule 7(2)(a)).

I give the absent parent permission under section 13 of the Tribunals, Courts and Enforcement Act 2007 to appeal to the appropriate court, which for the purposes of subsections (11) and (12) of section 13 is the Court of Appeal in England and Wales.

REASONS FOR DECISION

1. In the language of the child support legislation the appellant is the absent parent of the qualifying children (A, for some part of the period in issue, and T). From now on I shall call him the father. I shall call the parent with care and second respondent the mother. It is important to note, in relation to the forms of the relevant legislation applicable to the present case that the period in issue ends on 10 September 2006, as T ceased to be a qualifying child from 11 September 2006 and the maintenance assessment was cancelled from that date.

2. There was an oral hearing of this particular appeal before the Upper Tribunal on 7 August 2013. The father did not attend, but was represented by Mr Martin Henley of counsel, accompanied by Mr Ian Grier, solicitor, both acting pro bono. The mother was not able to attend. Her application for an adjournment was refused by Judge Jacobs on 2 August 2013. The Secretary of State for Work and Pensions was represented by Mr Huw James, instructed by DWP Legal Services.

3. In the circumstances there is no need for any detailed recitation of the history of this case or of the factual background. Mr Henley and Mr Grier do not dispute the findings of fact made by the First-tier Tribunal of 1 May 2012. However, the background needs to be very briefly sketched in.

4. That can start with my decision in the Upper Tribunal signed on 3 February 2011 in which I allowed the father’s appeal from the decision of the First-tier Tribunal of 28 May 2009 and remitted the case to a new tribunal for consideration in accordance with directions of law (HH v CMEC (CSM) [2011] UKUT 60 (AAC), file number CCS/2878/2009). My conclusions of law were, in summary, that the father was, by virtue of the activities that the evidence indicated that he had been pursuing as a “professional” poker player in the years in issue, capable of being a “self-employed earner” for the purposes of Chapter 2 of Part I of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (“the MASC Regulations”) and that earnings from such self-employment were to be calculated under paragraph 3 of Schedule 1 (gross receipts less specified deductions, including reasonably incurred expenses). I rejected Mr Henley’s argument for the father that because income from gambling was not income for the purposes of calculating taxable profits in accordance with part 2 of the Income Tax (Trading and Other Income) Act 2005 income from such gambling should not be regarded as earnings from self-employment for child support purposes. However, because the tribunal of 28 May 2009 had not made the necessary findings of fact and I did not consider that it was right for me to make such findings without having given the parties the opportunity to put forward new evidence or interpretations of the evidence, I remitted the case for rehearing by a new First-tier Tribunal, in particular on the issue whether the father was a self-employed earner for child support purposes in the years in question.

5. An application was made on the father’s behalf for permission to appeal to the Court of Appeal, which I refused. The application was renewed before the Court of Appeal, where Tomlinson LJ on 6 January 2012 adjourned the application sine die, taking the view that the application was premature because there had not yet been a determination that the father was in fact a self-employed earner. But there was merely an adjournment so as to protect the father’s ability to challenge my conclusions of law in HH v CMEC.

6. The First-tier Tribunal rehearing took place on 1 May 2012 and the decision notice and statement of reasons were signed on 28 June 2012 and issued on 3 July 2012. The tribunal, having asked itself in paragraph 9 of the statement of reasons whether the father was “gainfully employed” as a professional poker player, concluded in paragraph 19, after making findings of fact in paragraphs 10 to 18 that are not challenged on appeal, that he was so self-employed. It went on to calculate the father’s net income at a higher amount than had been taken into account in the initial decision of 29 August 2007. That calculation has also not been challenged before the Upper Tribunal.

7. The father’s representatives then returned to the Court of Appeal to seek to have the pending application for permission to appeal determined. On 16 November 2012, following a hearing at which he was addressed by Mr Henley, Lewison LJ refused permission to appeal. The judge accepted that Mr Henley had raised “an important arguable point”, but concluded that the correct procedural route was to appeal against the new decision of the First-tier Tribunal. He relied on the principle that appeals are brought against orders and not against reasons for orders and on the basis that, even if an appeal against the Upper Tribunal decision in HH v CMEC were to succeed, the decision of the First-tier Tribunal of 1 May 2012 would stand unless and until there was an appeal against that decision. This is not the place for any sort of extended discussion, but in my respectful opinion neither of those factors is persuasive in favour of the refusal of permission to appeal in the context of a jurisdiction in which it is common for the Upper Tribunal to make definitive rulings of law in directions for a rehearing which is necessary due to the inadequacy of findings of fact below. The unfortunate result is the father has been deprived of the opportunity of directly challenging the conclusions of law reached in HH v CMEC. At the very least the sorting out of the legal position of the parties to the present case and of others in similar circumstances has been significantly delayed.

8. Following Lewison LJ’s ruling an application was reasonably promptly made to the First-tier Tribunal for permission to appeal, which was not admitted as being out of time. I admitted the further application to the Upper Tribunal and gave the father permission to appeal on 2 May 2013. My case management directions included the following:

“2.  In the very unusual circumstances I propose that, subject to any objections under paragraph 3 below, the Upper Tribunal should give a very short decision, with minimal reasons, disallowing the father’s appeal on the basis that CCS/2878/2009 was correct in law. The father will then be able to apply for permission to appeal to the Court of Appeal if he wishes. My preliminary and provisional view is that, in the light of Lewison LJ’s comments on 16 November 2012, permission should be granted, but that does not in any way bind me or any other Upper Tribunal judge who might deal with any application.”

9. An objection was raised by Mr Grier on behalf of the father in which he said that he and counsel considered that there were good grounds for allowing the appeal against the decision of the tribunal of 1 May 2012 without the need for going to the Court of Appeal and an oral hearing was requested. I granted that request without waiting to see if there were objections to my proposal from any other party. 7 August 2013 was the earliest date on which Mr Henley was available. It is unfortunate that the mother was not able to attend on that date, but I do not consider that she has been disadvantaged in any way by that.

10. At the hearing I was able to inform those present that permission to appeal to the Court of Appeal had been given by Judge Lloyd-Davies on 20 June 2013 in another case (CIB/818/2011) turning on whether the net takings from activities as a “professional” gambler are earnings as a self-employed earner, but in the different context of incapacity benefit and the rules on what constitutes work for the purposes of the Incapacity for Work (General) Regulations 1995 and how earnings are calculated under the Social Security Benefit (Computation of Earnings) Regulations 1996. It is not yet clear whether the claimant in that case, who so far is unrepresented, has lodged a notice of appeal with the Court of Appeal or a notice with all the required documents. In giving permission to appeal Judge Lloyd-Davies referred to the state of the proceedings in the present case.

11. There was also some discussion at the hearing about what the position would be if, after hearing substantive argument from Mr Henley that there were additional authorities and arguments that I had not considered in HH v CMEC or that I had simply reached the wrong conclusions in law (all of which I was quite open to considering), I accepted his position and therefore allowed the father’s appeal against the decision of the tribunal of 1 May 2012 on the basis that the directions that it followed and applied were wrong in law. There would then be two inconsistent decisions of the Upper Tribunal and, if the mother then applied for permission to appeal to the Court of Appeal, there would be every likelihood that, in view of the indications already given and Lewison LJ’s opinion of the importance of the point of law in issue, permission would be granted. Mr James on behalf of the Secretary of State had not had specific instructions on this point, but would have submitted that the decision in HH v CMEC was correct in law, so that there was a possibility that if an inconsistent decision emerged, and in the light of the permission granted in CIB/818/2011, that the Secretary of State would apply for permission to appeal.

12. Following a short adjournment for reflection Mr Henley submitted that he did not wish to put forward full argument on behalf of the father as to where and why the decision in HH v CMEC was wrong in law, but was content in effect to agree to the procedure suggested in the case management directions of 2 May 2013. He coupled with that a request that an oral application for permission to appeal to the Court of Appeal be considered. Having announced my decision in the hearing, I admitted that oral request. Mr James for the Secretary of State had no objection to that process.

13. Accordingly, I disallow the father’s appeal to the Upper Tribunal against the decision of the tribunal of 1 May 2012 on the basis that nothing has been put forward that is sufficient to persuade me that my decision in HH v CMEC was wrong in law. I record again that there is no challenge on behalf of the father to the calculation of his earnings from self-employment if (which is not admitted on his behalf) he was properly in law to be treated as a self-employed earner for the purposes of Schedule 1 to the MASC Regulations and income not regarded as taxable by Her Majesty’s Revenue and Customs could be counted as part of such earnings. Nor is there a challenge to the findings of fact on which the conclusion in paragraph 19 of the tribunal’s statement of reasons was based. In my view, the tribunal followed and applied the directions of law given in HH v CMEC and (subject to any further submissions that might be made) gave adequate reasons to explain why its conclusions followed from its findings of fact, so that the father’s challenge is one of law to the correctness of those directions of law.

14. In the unusual circumstances of this case, and to promote the possibility of the appeal in CIB/818/2011 and the appeal in the present case being considered together in the Court of Appeal (with the benefit of the continued representation of the father on an unpaid basis by Mr Grier and Mr Henley), it seems to me in the interests of justice to waive the requirements for making a written application for permission to appeal and to grant the oral application immediately. I take into account in particular Lewison LJ’s opinion that the point of law in issue is important and arguable and the fact that the general point is very likely to be coming before the Court of Appeal in any event in the appeal from CIB/818/2011. I recognise that giving permission to appeal will impose an additional burden on the mother, who has taken as full a part as she could in all the proceedings so far without the assistance of any legal representation or advice. However, I have no doubt that whoever appears for the Secretary of State in the proceedings before the Court of Appeal will uphold the long tradition of even-handedness and objectivity expected of such representatives and ensure that no points that could legitimately made on the mother’s behalf are overlooked.

(Signed on original): J Mesher

  Judge of the Upper Tribunal

Date: 7 August 2013