Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decisions of the First-tier Tribunal (made on 12 December 2012 at Basildon under references SC132/09/00152 and 01676) involved the making of an error in point of law, they are SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the cases are REMITTED to the tribunal for rehearing by a differently constituted panel.
DIRECTIONS:
The tribunal must undertake a complete reconsideration of the issues that are raised by the appeals 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
1. This appeal raises the issue of the adequacy of the reasons given by the First-tier Tribunal, but it also raises an interesting issue on the effect of barring a respondent from taking further part in proceedings before that tribunal.
2. These appeals concern the child support maintenance payable in respect of Isabelle. In the terminology of the child support legislation, her mother is her parent with care and her father is her non-resident parent. I refer to them as such. Both are parties to this appeal, the father as the appellant and the mother as a respondent. The other respondent is the Secretary of State, who has now taken over responsibility for the child support scheme from the Child Maintenance and Enforcement Commission.
3. The full history of these cases, beginning with the application for child support in May 2008, is set out in the Secretary of State’s submission at pages 71-72 in case 2451 and 561-562 in case 2452. It is not necessary to repeat the details.
4. It is sufficient to say that on 12 December 2012 the First-tier Tribunal had before it two appeals by the parent with care. One appeal was against a decision made on 22 August 2008 and revised on 25 November 2008 that calculated the non-resident parent’s liability at £17.14 a week from the effective date of 10 July 2008 and refused to agree to a variation sought by the parent with care. The other appeal was against the decision of 9 October 2009 that calculated the non-resident parent’s liability at nil from the effective date of 22 July 2009. The grounds of appeal in both cases related to the non-resident parent’s income.
5. The tribunal heard the appeals together. It decided that the non-resident parent’s income was no less than £104,000 a year at both effective dated. That is the maximum income taken into account under the child support scheme. The tribunal’s written reasons consist of 28 paragraphs. After some introductory paragraphs, the reasons follow the judge’s record of proceedings. The tribunal’s explanation of its decision begins in paragraph 20. This part of the reasons begins by repeating the finding on the non-resident parent’s income. This is said to be based on ‘an informed estimate … on the basis of the evidence available’. Up to and including paragraph 26, the reasons are consistent with the tribunal making a statutory calculation of the non-resident parent’s income. However, paragraph 27 says:
The Tribunal considered that it was just and equitable to make the variations in relation to the maintenance calculations effective from 27/08/2008 and 22/07/2009.
The reasons then conclude by drawing attention to a change of circumstances in respect of shared care on 4 September 2009.
6. Leaving aside the fact that paragraph 27 contains a wrong effective date – it should be 10 July 2008, not 27 August 2008 – it is impossible to tell how the tribunal reached its decision on the non-resident parent’s income. It does not say how the income was divided between statutory calculation and the variation. Nor does it say under which head or heads it agreed to a variation. And it gave no explanation of why it was just and equitable to agree to a variation, although that may speak for itself given its findings on income. I gave permission to appeal on that ground. The Secretary of State’s representative has supported that ground and neither parent has argued against it. I allow the appeals and set the tribunal’s decisions aside on that basis.
7. I need to deal with another issue, which has been raised by the Secretary of State’s representative.
8. In the case of the appeal against the 2009 decision (CCS/2452/2013), a District Tribunal Judge issued directions to all the parties on 6 July 2009. At the end he wrote:
At this stage these directions have not had a penal notice attached to them in the hope that this appeal may proceed to hearing with the cooperation of all the parties.
On 8 October 2009, he issued a further direction to the non-resident parent:
In order for the Tribunal to deal with proceedings fairly and justly the second respondent [the non-resident parent] is directed to comply with the directions dated 6/7/09.
Unless the Second Respondent … complies with this direction by 5.00 pm on 23/10/09 he will be barred from taking further part in these proceedings.
On 9 April 2010, the Regional Tribunal Judge issued detailed directions to the non-resident parent and ended with a warning that failure to co-operate in providing documents and attending the hearing for questioning would be against his interests. She did not reinstate the non-resident parent’s participation in the proceedings.
9. The Secretary of State’s representative has argued that the non-resident parent was automatically barred from taking part in the proceedings when he failed to comply with the directions of 8 October 2009 and, as a result, the tribunal was in error of law by accepting information subsequently provided by the non-resident parent in respect of the appeal against the 2009 decision. I accept that argument.
10. These are the relevant provisions of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):
1 Citation, commencement, application and interpretation
…
(2) These Rules apply to proceedings before the Social Entitlement Chamber of the First-tier Tribunal.
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 Tribunal generally.
7 Failure to comply with rules etc
(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—
(a) waiving the requirement; …
8 Striking out a party’s case
(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them.
(2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—
(a) does not have jurisdiction in relation to the proceedings or that part of them; and
(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.
(3) The Tribunal may strike out the whole or a part of the proceedings if—
(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;
(b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or
(c) the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.
(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.
(5) If the proceedings, or part of them, have been struck out under paragraph (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.
(6) An application under paragraph (5) must be made in writing and received by the Tribunal within 1 month after the date on which the Tribunal sent notification of the striking out to the appellant.
(7) This rule applies to a respondent as it applies to an appellant except that—
(a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and
(b) a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.
(8) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent and may summarily determine any or all issues against that respondent.
11. Section 11(2) of the Tribunals, Courts and Enforcement Act 2007 is also relevant:
(2) Any party to a case has a right of appeal, subject to subsection (8).
12. The First-tier Tribunal has power to issue a direction in terms that lead to the automatic barring of a respondent: rule 8(1).
13. The tribunal’s power to give a direction in those terms is subject to the overriding objective. It is under a duty to seek to deal with cases fairly and justly when exercising this power: rule 2(1) and (3)(a). And one factor that the tribunal has to take into account is that it should ‘ensure, so far as is practicable, that the parties are able to participate fully in the proceedings’: rule 2(2)(c). So, exercising a power to bar a party from proceedings can only be exercised after taking account of the overriding objective under which participation is to be encouraged. This is not to say that it is impossible to bar a respondent, just that it requires careful thought.
14. It is possible that the judges of the First-tier Tribunal have not fully understood the significance of rule 8(1). In this case, the Regional Judge, who must have read the previous direction, nonetheless acted inconsistently with it, but without taking the necessary step of reinstatement that would allow her to give the directions she did. I notice that the different judge in CSCS/0704 and 0705/2012 likewise failed to appreciate the significance of the warning given in an earlier direction. It is possible that the Regional Judge in this case read the District Judge’s words as merely warning that action might to be taken to bar the non-resident parent rather than as providing that this would happen automatically, which he surely intended.
15. There are also practical considerations to take into account before operating rule 8(1). One example is non-compliance. Directions in child support cases typically require a parent to provide a variety of financial information. The form of direction in this case had the effect of barring the respondent from participating, regardless of the extent to which he failed to comply. I understand why tribunals prefer not to use their powers under rule 8(3) and (4), as they can lead to further delay. I also accept that the tribunal has power to reinstate a party’s case and can do so if the failure to comply was not substantial or significant. But it is surely preferable for a tribunal to exercise its power to use rule 8(1) only after taking account of these potential difficulties.
16. The circumstances of these cases provide a further example of a practical consideration. There were two appeals, but the direction to the non-resident parent applied only to one of them. Barring him from taking part in the proceedings could, therefore, result in inconsistent decision-making for the different periods covered by the appeals.
17. Rule 8 bars a party from taking further part in the proceedings. It does not operate retrospectively to render that which has already been done nugatory or invalid: rule 7(1). Evidence submitted and submissions made remain before the tribunal and have to be taken into account. When it provides that ‘the Tribunal need not consider any response or other submission made by that respondent’ it means any future response or submission.
18. Rule 8(8) provides that the tribunal ‘may summarily determine any or all issues against that respondent.’ This is not a penal provision. The tribunal cannot simply accept the appellant’s case if the respondent is barred. It must still act in accordance with the overriding objective when considering whether to exercise this power. And it is, on basic principle as part of its duty to act fairly, required to act rationally on material of probative value in making its decision: Mahon v New Zealand Ltd [1984] AC 808 at 820-821 (Lord Diplock). This requires it to give proper consideration to submissions made and to take account of evidence submitted. The key word in rule 8(8) is summarily. It allows the tribunal to deal with the respondent’s case rather more briefly than would otherwise be required.
19. The effect of rule 8 is to bar a respondent from participating in the proceedings. It does not remove that person as a party.
20. That means that a respondent barred from participating retains the right to appeal to the Upper Tribunal: section 11(2).
21. An application to the First-tier Tribunal for permission to appeal to the Upper Tribunal is a separate proceeding from the appeal itself: Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 (Lord Denning MR) and 736 (Diplock LJ). To put it another way, barring only applies to the proceedings on the appeal. A party who is barred from participating may, therefore, nonetheless apply to the First-tier Tribunal for permission to appeal.
22. Even if that is wrong, barring under rule 8 applies only to the proceedings before the First-tier Tribunal: rule 1(2). It has no effect on the Upper Tribunal, which has power to waive any irregularity in its own rules as a result of a party’s inability to apply for permission from the First-tier Tribunal: rule 7(2)(a).
23. When the Upper Tribunal sets aside a decision of the First-tier Tribunal and remits the case for reconsideration, the proceedings before the First-tier Tribunal are fresh proceedings. Any barring or strike out no longer operates. This follows from the rules of procedure, the nature of a rehearing and practical considerations.
24. As to the rules of procedure, they envisage that there comes a point at which proceedings on appeal are concluded. They do so by attaching consequences to the (final) disposal of the proceedings or of all the issues in the proceedings. See the definition of ‘party’ in rule 1(2), rule 17(1)(a) (withdrawal), rule 27(3) (striking out without a hearing), rule 33 (notice of decision), rule 34 (reasons for decision) and rule 37 (setting aside).
25. As to the nature of a rehearing, there is no provision for proceedings to revive following a successful appeal, whether in statute, in the rules of procedure, or on the general principles on the operation of appeals. If a case is remitted, the First-tier Tribunal considers the case afresh. The earlier proceedings are now past. Any other approach would fetter the Upper Tribunal’s general power to remit a case to the First-tier Tribunal with directions for its reconsideration under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007. What would be the point if the First-tier Tribunal had to ignore them, even if they had formed the basis on which the Upper Tribunal had allowed the appeal? It would also be anomalous if the Upper Tribunal could take account of further evidence and submissions produced by a barred party in re-making a decision under section 12(2)(b)(ii), but that party would not be allowed to rely on them if the case were remitted under section 12(2)(b)(i).
26. As to practical considerations, if the position were otherwise all directions previously given by the First-tier Tribunal would revive together with their time limits. The First-tier Tribunal would not be able to start afresh, but would have to clear the decks of all previous directions in order to make sensible provision for the future conduct of a case. There would also be problems with evidence and submissions produced, quite properly, to the Upper Tribunal, which would now have to be excluded from consideration at the rehearing.
27. The position is different if the proceedings in the First-tier Tribunal are not yet complete. For example: a decision to adjourn indefinitely would leave the First-tier Tribunal proceedings ongoing, despite an appeal against that decision to the Upper Tribunal.
Signed on original |
Edward Jacobs |