Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The non-resident parent's appeal to the Upper Tribunal is disallowed. The decision of the Leeds First-tier Tribunal dated 4 December 2012 involved no error on a point of law that justifies its setting aside, for the reasons given below, and therefore stands, subject to the determinations below about the issues that were properly before that tribunal for decision (see paragraphs 8 and 10).

REASONS FOR DECISION

1. In the language of the child support legislation applicable to this case the appellant is the non-resident parent of two qualifying children (Ibrahim and Adam). From now on I shall call him the father. I shall call the parent with care and second respondent the mother. Most of the official action in this case has been taken by or on behalf of the Child Maintenance and Enforcement Commission (CMEC). CMEC was abolished with effect from 1 August 2012 by the Public Bodies (Child Maintenance and Enforcement Commission: Abolition and Transfer of Functions) Order 2012 (SI 2012 No 2007) and its functions transferred back to the Secretary of State for Work and Pensions (article 3(1)). The Secretary of State is therefore the first respondent in the appeal. For convenience I shall refer to the official party as the Secretary of State throughout.

2. This is the case relating to the father’s appeal against the Secretary of State’s decision dated 22 October 2010. As a result of the infuriating, but it appears ineradicable, failure of the official party in child support cases to keep clear records of decisions that have been made or even to supply copies of letters of notification of decisions which are under appeal, it is very difficult indeed to work out just what it was that was decided on that date and is covered by the appeal.

3. The decision of 22 October 2010 was prompted by two applications made by the father about the maintenance calculation that was then in effect from 28 December 2006 by virtue of a decision dated 15 July 2010 following a First-tier Tribunal decision on 8 July 2010. On 15 September 2010 he contacted the Secretary of State (I think by telephone) to say that he was now living with a new partner and her son and asking for his child support liability to be reassessed (page 11). It appears that he was sent an enquiry form which he filled in on 28 September 2010 with details of the partner and her son (including their address in Redditch), adding “please also note that my income & assets for calculation of maintenance has also changed” (page 13). Then the father completed a variation application form relating to contact costs on 18 October 2010 on which he still gave his Bingley address as his home address, but said that he was now living with his new partner in Redditch and continued:

“I live during the week in Bradford due to work commitments and spend the weekend with my partner.

I visit the children on Sundays.”

On the form he said that he had from 19 June 2010 travelled weekly to visit the children, as allowed by a court order and claimed as weekly costs one journey of 150 miles by car from Redditch to the home of the parent with care (in Bingley) and one journey of 150 miles by car from that home to Redditch, involving £20 fuel costs each way. A copy of the contact order made by a district judge on 1 March 2010 was enclosed. Contact hours outside the summer holiday were from when the children finished sporting activities on a Sunday (around 12 noon) until 8 pm, when they were to be returned to the mother’s house.

4. It appears to be a matter of agreement that, as set out on page 5 of the Secretary of State’s written submission to the First-tier Tribunal, on 22 October 2010 a decision was made and issued that the father’s variation application did not pass preliminary consideration under section 28B of the Child Support Act 1991. It is not clear what reason was given in the letter to the father. He has said that there was a reference to it not being fair and equitable to make a variation, but the written submission to the First-tier Tribunal describes the reason as being that the father and mother lived in the same postal area. That would be more consistent with a rejection on preliminary consideration (associated with a conclusion that contact costs would be minimal, well below the threshold of £15 per week in regulation 15 of the Child Support (Variations) Regulations 2000) and with a conclusion that the father was not living as part of the household of the person he claimed as a partner. The decision-maker’s notes on pages 21 to 24 merely refer to the variation application being considered by a variation caseworker. There was a record on pages 22 and 23 of a refusal to revise on the ground of there being a “relevant other child” because the alleged partner’s child was not in the father’s household. It appears that a decision to that effect was also issued on 22 October 2010.

5. So far as income was concerned, a form was issued to the father asking for information. The father sent in pay-slips for August, September and October 2010 and a letter from his accountants detailing the balances in his director’s loan account with a letter dated 1 November 2010. In that letter he also stated that he was appealing against the decision on 22 October 2010 not to change his maintenance on the grounds of it not being just and equitable. In response the Secretary of State wrote on 23 November 2010 asking for the profit and loss accounts for the company that employed the father and of which he was a director. With a letter dated 2 December 2010 the father enclosed abbreviated accounts, with no profit and loss figures, for the year to 31 December 2009. On 16 March 2011 the Secretary of State wrote to ask for profit and loss accounts for the year down to 31 December 2010, because the effective date for a change of circumstances supersession on the basis of a reduction in income would be 30 September 2010 (pages 23 and 24). That very strongly suggests that at that date no decision had yet been made on the application for supersession on that ground. That is not inconsistent with the slightly peculiar note dated 1 December 2010 (page 30), where there is a reference to a decision to refuse to supersede having been made. In my view that note can only refer to a refusal to supersede on the “relevant other child” issue, together with a reference to the rejection of the variation application.

6. Then, in agreement with the view of the author of the submission on behalf of the Secretary of State dated 4 November 2013, I can see nothing in any of the material before me to indicate that any decision has ever been made on the application for supersession on the basis of a reduction in income. Indeed, the indications are positively that no decision had been made prior to 4 December 2012. The series of letters from the father into July 2011 chasing up what had happened to his appeal (described as against the two decisions made on 22 October 2010) did not go beyond, in relation to the reduction in income, complaining about the delay in settling the matter. The author of the Secretary of State’s written submission to the First-tier Tribunal took the same view, but (in the middle of page 2) requested that, since the father’s earnings had been determined by a tribunal judge, the tribunal should “consider and decide on whether [the father’s] income should be changed and the decision effective from 28/12/06 should be superseded based on the information provided by [the father].”

7. The tribunal of 4 December 2012 appears not to have accepted that request, but rather in paragraph 6 of the statement of reasons to have wrongly found that the father’s application for a supersession on the ground of change of circumstances relating to income (although the word “variation” was used) was refused on 22 October 2010. It then found in paragraph 8 that “[the father] continues to work as a sole practitioner dentist and he has not established that his work pattern or income has in any way changed” and concluded that there were no grounds for a supersession on the grounds of change of circumstances relating to income.  Nevertheless, to add to the confusion, the decision actually recorded by the tribunal does not appear to cover supersession on the income issue. In his appeal to the Upper Tribunal the father has challenged the tribunal’s findings and conclusion on this issue.

8. I would certainly agree that if the issue of supersession on that ground had been properly before the tribunal of 4 December 2012, its findings of fact and reasons were inadequate in failing to address the evidence put forward by the father in the form of his payslips (and possibly other information in the file for another appeal heard at the same time and now the subject of CCS/1397/2013). However, I have no doubt that that issue was not properly before the tribunal as part of the father’s appeal. The appeal that was being considered in the particular proceedings was only against the two decisions made on 22 October 2010, which did not include any decision on supersession relating to income. Indeed, as I find that no decision had been made on the father’s application on that ground, at least prior to 4 December 2012, there was nothing at that date against which an appeal could have been made. There was no power in the legislation for the Secretary of State to refer the issue to a First-tier Tribunal for decision without first having made a decision himself. Thus, the tribunal of 4 December 2012 went wrong in law in expressing any conclusions on the issue. But that is not an error of law that justifies the setting aside of its decision. The actual decision did not cover the point. The conclusions on income can be regarded as “writ in water”, of no authoritative force or effect. They do not in any way undermine the other parts of the tribunal’s decision. The position thus remains that either the Secretary of State must now make and notify a decision on the father’s outstanding application for supersession on the ground of reduction of income made on the form signed on 28 September 2010 or, if such a decision has been made and notified, the father must pursue an appeal against that particular decision if he does not accept it.

9. That leaves the issues potentially before the tribunal of 4 December 2012 as the correctness of the two decisions of 22 October 2010 on the “relevant other child” issue and on the variation application. As I understand it from the chronology attached to the Secretary of State’s submission of 4 November 2013, the first issue was resolved by a series of supersession and revision decisions in 2012 by which it was accepted that the child in question was a member of the father’s household with effect from 9 September 2010, with the appropriate consequential effect on the percentage of his net income to be paid by way of child maintenance for the qualifying children. Accordingly, the appeal against the decision of 22 October 2010 on that issue had lapsed and was no longer before the tribunal. The tribunal appears to have gone wrong in law in taking into account in its decision that as from 3 November 2011 the father had a second “relevant other child” as a member of his household. That was a circumstance not obtaining at the time of the decision under appeal and so was barred from consideration by section 20(7)(b) of the Child Support Act 1991. However, that again can be regarded as a “thing writ in water”, of no authoritative force or effect.

11. The upshot is that the only issue before the tribunal on 4 December 2012 was the father’s appeal against the variation decision of 22 October 2010. The mother attended the hearing. The father did not. A clerk contacted his dental surgery and was told that the father was seeing a patient and would not be attending. There is nothing to suggest that the father had not had ample notice of the hearing and the tribunal was plainly entitled to proceed in his absence. It explained in its statement of reasons why it had done so. However, the father’s absence from the hearing meant that there was no elaboration on his explanation of the travel costs given in his application. He had not given any further details in his appeal and follow-up letters.

12. The tribunal disallowed the father’s appeal. It made these findings in paragraph 7 of its statement of reasons:

“We find that at all relevant dates [the father] was working as dentist in Menston from Monday to Friday. He resided at his home […]. His partner resided in Redditch. [The father] states that he lived during the week in Bradford due to work commitments and spent weekends with his partner. We find that [the father] would return to Bradford from Redditch on a Sunday for work, not for the purposes of contact. Accordingly there are no grounds for a variation.”

13. When applying for permission to appeal the father argued that under regulation 10 of the Variations Regulations there was no requirement that the maintenance of contact be the only reason for the travel and that the tribunal had erred in law by failing to explain why the father did not qualify by the fact that contact was taking place and travel costs were incurred. Judge Bano gave permission to appeal although expressing the preliminary view that the maintenance of contact had to be the only reason for the travel in respect of which costs were claimed. The representative of the Secretary of State in the submission of 4 November 2013 agreed with Judge Bano’s view and continued as follows in paragraph 30:

“Regardless of whether he had contact with the children or not, due to his personal living and working arrangements [the father] has to travel a journey of 292 miles each weekend – he would still have to return to the Bradford/Bingley area from Redditch to carry out his work. He is not doing any additional journeys between West Yorkshire and the Midlands that he wouldn’t have to do anyway, apart from [small detours between his house and the mother’s or a grandmother’s house] already highlighted above. The legislation has to be interpreted in such a way that a [non-resident parent] cannot have some of his own personal work travelling costs paid for under a variation for contact costs.”

14. In his reply dated 2 January 2014 the father said that the tribunal had failed to explain how it decided what proportion of his travel was for work purposes and had based its decision on incorrect assumptions. He continued as follows (I have omitted bits about when the contact pattern changed in January 2012 to once every three weeks – outside the period the tribunal could consider):

“I work from Monday to Thursday in Menston, West Yorkshire. I travel to Redditch, Worcestershire on Thursday evening to be with my family. I return on Monday morning. I have been doing this since I moved in with my partner in June 2010.

When contact was on Sundays I travelled on every Sunday morning from Redditch to collect the children from their hone in […] Bingley, West Yorkshire. We would then spend the day together usually with the rest of my family in Bradford, West Yorkshire. I would then return the children on Sunday evening and return to Redditch.

…

I accept that any claim for travelling expenses should be for journeys specifically made in relation to contact with the children. The journeys I have described above are wholly for that purpose.”

15. The father stated that he did not require an oral hearing. The mother had requested a hearing, but since I have disallowed the father’s appeal on consideration of the papers there has been no need for a hearing.

16. Regulation 10(1) of the Variations Regulations provides:

“(1) Subject to the following provisions of this regulation, and to regulation 15, the following costs incurred or reasonably expected to be incurred by the non-resident parent, whether in respect of himself or the qualifying child or both, for the purpose of maintaining contact with that child, shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to [the Child Support Act 1991]—

 [(a) – (f) list various costs including fuel costs].”

Regulation 15(1) lays down thresholds of amounts of costs below which a variation cannot be made. Paragraphs (2) and (3) are as follows:

“(2) Subject to paragraph (3), where the Secretary of State considers any expenses referred to in regulations 10 to 14 to be unreasonably high or to have been unreasonably incurred he may substitute such lower amount as he considers reasonable, including an amount which is below the threshold amount or nil.

 (3) Any lower amount substituted by the Secretary of State under paragraph (2) in relation to contact costs under regulation 10 shall not be so low as to make it impossible, in the Secretary of State’s opinion, for contact between the non-resident parent and the qualifying child to be maintained at the frequency specified in any court order made in respect of the non-resident parent and that child where the non-resident parent is maintaining contact at that frequency.”

17. It is plain that the tribunal of 4 December 2012 made its decision on the basis of a finding that the father made only one return trip to Redditch and back to Bingley/Bradford each weekend. Although there was not an express finding to exclude the making of another return trip, that was necessarily implied in its approach. The tribunal was plainly operating on the basis that the father drove to Redditch each weekend some time after finishing his work commitments on a Friday and drove back to Bingley/Bradford on a Sunday in time to collect the qualifying children, but after dropping them off around 8 pm returned to his home in Bingley, not to Redditch. Although the father now says that that was factually wrong, in my judgment the tribunal was entitled on the evidence before it to operate on the factual basis it identified. All it had to go on were the rather vague statements by the father in his application, the terms of the court order on the start and finish times of contact and the inherent unlikelihood of someone undertaking a long drive to Redditch to arrive well after 10 pm and then be faced by an equally long drive back to Bradford first thing on Monday morning. By choosing not to attend the hearing the father had forfeited the chance to provide further details. In those circumstances, there was nothing that should have alerted the tribunal to any need to obtain further evidence. It was entitled to proceed on the apparently obvious basis before it and made no error of law in doing so.

18. On that basis, I do not find any error of law in the tribunal’s interpretation and application of regulation 10 of the Variations Regulations. Indeed, the impression was given in the father’s most recent submission, where the more detailed explanation of the travel arrangements was put forward for the first time, that he did not dissent from that result. I prefer not to put matters in terms of any rule that under regulation 10 the maintenance of contact must be the sole reason for the travel in respect of which the costs are claimed. I think that it might be possible to envisage circumstances in which a non-resident parent could legitimately for convenience arrange some work commitments to coincide with a trip for contact with a qualifying child in a way that could satisfy regulation 10, possibly subject to some adjustment either under regulation 15(2) or under the “just and equitable” principle in section 28F(1)(b) of the Child Support Act 1991. But I think that it must follow from the terms of regulation 10(1) that, if the travel costs in question would have been incurred even if no contact with the qualifying child had taken place, the costs would not qualify, not having been incurred “for the purpose of maintaining contact”. On the factual basis properly found by the tribunal of 4 December 2012, the father would have incurred the costs of one return trip between Bingley/Bradford each weekend even if he had not been having contact with the qualifying children. Therefore the tribunal did not go wrong in law in concluding that there was no ground for a variation under regulation 10.

19. Having taken that view, I do not need to consider what the position would be if the father’s statement of the circumstances in the submission of 2 January 2014 were accepted. However, it might be helpful to express a brief view. On those circumstances the costs of the trip from Redditch to Bingley/Bradford and back on each Sunday, plus the incidental mileage around the Bingley/Bradford area, would have been incurred for the purpose of maintaining contact with the qualifying children. Regulation 10(1) of the Variations Regulations would therefore seem to be satisfied. But regulation 15(2) would also have to be considered. There would at the least be a strong argument that those costs had been unreasonably incurred or were unreasonably high in so far as they exceeded the cost of the incidental mileage around Bingley/Bradford. Taking account of the distance and driving time involved in returning to Redditch on a Sunday evening, leaving after 8 pm, and then driving back to Bingley/Bradford on a Monday morning, there would be precious little time for the father in Redditch and a tiring and costly set of journeys to start the working work. A suspicion would be raised that the second return trip was undertaken at least in part with a view to generating an impact on the amount of the maintenance calculation. Nor would an application of regulation 15(2) to reduce the amount of the allowable costs below the threshold fall foul of regulation 15(3). Contact could have easily been maintained by the father returning to his house in Bingley on a Sunday night, even though that would have deprived him of that night with his partner in Redditch. Accordingly, even if it had been established by uncontentious evidence (eg by the mother agreeing) that the father’s account in his submission of 2 January 2014 was correct, so that the tribunal’s making different findings of fact could on some approaches have been found to be an error of law, it would probably not have led to a different outcome.

20. Accordingly, there was no error of law in the tribunal’s decision on the variation appeal. Its errors of law in identifying the matters that were before it for decision do not undermine its conclusions on the variation appeal and do not justify the setting aside of its decision. The father’s appeal to the Upper Tribunal is dismissed.

(Signed on original):  J Mesher

Judge of the Upper Tribunal

Date: 25 March 2014