Upper Tribunal (Administrative Appeals Chamber)

CH v Secretary of State for Work and Pensions and AR (CSM) (Child support : jurisdiction) [2014] UKUT 180 (AAC) (16 April 2014)



DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant (“the father”).

 

The decision of the Bristol First-tier Tribunal dated 24 October 2011 under file reference 189/10/01048 does not involve an error on a point of law. The tribunal’s decision therefore stands.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

 

REASONS FOR DECISION

 

The issues in this appeal

1.       The primary issues in this appeal concern (1) the proper scope of an appeal against a decision by the Child Support Agency (“the jurisdiction ground”); and (2) the circumstances in which a Judge should recuse herself from hearing a case because of comments made at an earlier directions hearing (“the recusal ground”).

 

The parties to this appeal

2.       The Appellant before the Upper Tribunal is the non-resident parent (“the father”). The First Respondent is now the Secretary of State for Work and Pensions, previously the Child Maintenance Enforcement Commission (and before that the Child Support Agency (CSA), a term that I continue to use for convenience in this decision). The Second Respondent is the parent with care (“the mother”).

 

3.       The parents have two children, a daughter (now aged 17) and a son (now aged 15). At the material time they both lived principally with their mother. It is right to note that the father is a naval officer and during the period in question was spending long periods at sea (and indeed, as a submariner, under the sea).

 

4.       There have been family proceedings between the parents in the county court, although the details of that litigation do not concern me. There have also been protracted proceedings in the First-tier Tribunal and the Upper Tribunal. The original impetus for these tribunal proceedings appears to have been an elementary error by the CSA, which unfortunately was not rectified until some years after the event.

 

The First-tier Tribunal decision under appeal

5.       The father appeals against the decision of the First-tier Tribunal (District Tribunal Judge (DTJ) Street) dated 24 October 2011. DTJ Street allowed the mother’s appeal and remitted the matter to the CSA to recalculate the maintenance calculation in accordance with four directions. These were (1) there was no shared care before 14 January 2010; (2) the father had “relevant other children” (i.e. in effect step children belonging to another partner) between certain dates in July and December 2006; (3) there were no grounds for a variation for contact costs as from February 2007; (4) the father’s income had to be re-assessed according to specified figures going back to 2006.

 

6.       In the course of that decision DTJ Street also explained her refusal of an application on behalf of the father that she should recuse herself from hearing that appeal. That application had been made by the father’s then representative, Mr Burrows, in the light of events at the earlier directions hearing on 2 March 2011. DTJ Street subsequently refused permission to appeal to the Upper Tribunal on 20 December 2011.

 

The protracted proceedings before the Upper Tribunal

7.       The father applied promptly to the Upper Tribunal for permission to appeal. On his behalf, Mr Burrows set out five grounds of appeal. These related to (1) the recusal issue; (2) the alleged lapsing of the appeal; (3) the scope of the tribunal’s jurisdiction; (4) the alleged denial of right of appeal by the tribunal in re-making the CSA’s decision; and (5) the tribunal’s conclusions as regards the father’s income. It is a matter of great regret that it has taken so long to resolve this appeal. The potted history that follows explains why.

 

8.       On 29 May 2012 I gave limited permission to appeal as regards grounds 1 and 3, but refused permission to appeal on grounds 2, 4 and 5. On 14 June 2012 I directed an oral hearing to enable the father to renew his application as regards the three grounds on which permission had been refused. On 1 October 2012 I held that oral hearing. The following day I issued a ruling confirming the refusal of permission on the other three grounds, giving detailed reasons, and also making further observations on the two grounds on which permission had been given. I directed that the parties then make sequential written submissions in the usual way.

 

9.       Unfortunately at that point the matter got sidetracked into what I can only describe as satellite litigation. On 20 December 2012 Mr Burrows made an application to the Upper Tribunal to stay enforcement proceedings “threatened by the Child Support Agency”. I refused that application on 17 January 2013, pointing out I had no jurisdiction to make such an order. On 11 February 2013 I directed that the full hearing of the appeal take place at the end of that month. Mr Burrows then made a series of further applications leading up to a hearing on 26 February 2013, which became a renewed hearing of the application for a stay combined with a directions hearing. The upshot was that (for the most part) I refused those various applications and also refused permission to appeal to the Court of Appeal (on 15 February 2013 and in relation to other matters on 4 March 2013).

 

10.     On 25 July 2013 Stanley Burnton LJ refused the father permission to appeal to the Court of Appeal against my various interlocutory rulings. His Lordship observed that “the parties should bear in mind the desirability of the proceedings before the Tribunal being conducted efficiently and so far as possible cheaply” (C3/2013/0563, /1789 & /1791).

 

11.     On 14 November 2013 the Upper Tribunal appeal was listed for hearing on 24 March 2014. That date was so far ahead in large part to accommodate the availability of the father and his representative. On 26 February 2014 Ms Barnes, the father’s solicitor, applied for a postponement, explaining that Mr Burrows was no longer acting as advocate and (so I was told) had refused to return the appeal bundle to the father’s solicitors. On 27 February 2014 I refused that application but directed that the Upper Tribunal office send Ms Barnes a duplicate set of papers.

 

12.     The oral hearing of the appeal finally took place in London on 24 March 2014. The father attended, represented by Ms Barnes. Mr Stephen Cooper, Solicitor, appeared for the Secretary of State. The mother appeared representing herself, accompanied by her father. I am grateful to them all for their submissions.

The Child Support Agency’s decision making

13.     On 24 March 2005 the CSA decided that the father was liable to pay the mother £101 a week in child support as from the original effective date of 17 February 2005.

 

14.     On 27 July 2006 the father applied for a variation of the maintenance calculation on the basis of contact costs.

 

15.     On 21 February 2007 the CSA refused the father’s variation application on the basis that shared care was in place. However, regrettably the CSA then failed to carry that through and apply any shared care adjustment to the maintenance calculation.

 

16.     On 10 October 2007 the mother applied for a reassessment of the father’s income. On 19 January 2008 the CSA made a supersession decision based on new information about the father’s income.

 

17.     Two years later, on 9 February 2010, the CSA made a further supersession decision with effect from 14 January 2010, allowing for shared care of one child. This was wrong as there were two children. Accordingly, a few days later on 18 February 2010, the erroneous decision was revised, but with effect from the same starting date.

 

18.     This leads us to the CSA decision under appeal to the tribunal. On 24 March 2010 the CSA superseded the original maintenance calculation to take account of shared care with effect from 27 July 2006. So, in effect, the Agency did in March 2010 what it had perhaps meant to do in February 2007. But as DTJ Street observed at the March 2011 directions hearing, “what I cannot understand is implementing a decision four years late without ever asking for [the mother’s] evidence; and on what I have seen they [the CSA] never consulted her”. The effect of this belated supersession decision was to create an overpayment of child support, which the CSA calculated as being just over £2,800 (subject to adjustments for changes in the father’s income). The mother appealed against that decision, arguing that the father had not had shared care until February 2010.

 

19.     Meanwhile the father had queried the validity of the original CSA assessment on the basis that he and the mother were still living together at the relevant time in early 2005. The CSA refused to change that decision, a decision which the father in turn then appealed. In April 2010 the CSA referred both parents’ appeals to the First-tier Tribunal, which then issued initial directions on both appeals. On 17 February 2011, nearly a year later and a fortnight before a scheduled directions hearing, the father’s then representatives, the National Association for Child Support Action (NACSA), wrote to the tribunal (1) withdrawing his own appeal (on the basis that although there had been a long-running dispute with the CSA, it was conceded there was insufficient documentation available to confirm an in-time appeal against the original maintenance calculation) and (2) arguing that shared care applied on the mother’s appeal back to July 2006. There were then two tribunal hearings.

 

The First-tier Tribunal hearing on 3 March 2011

20.     The first hearing, a directions hearing, took place on 2 March 2011 before DTJ Street. The hearing had been organised at short notice to accommodate the availability of the father, who was back in the UK on shore leave for a short period. Both parents appeared in person (the father was not represented at the hearing by NACSA); a CSA presenting officer also attended. The hearing began with an exchange over the circumstances and implications of the father’s recently withdrawn appeal, which forms the basis of the recusal ground. It then moved on to deal with various aspects of the mother’s appeal. DTJ Street issued 6 pages of detailed directions to the parties the same day.

 

Events between the two hearings

21.     At some point after the first hearing the father dispensed with the services of NACSA. On 30 March 2011 Ms Barnes wrote to the tribunal, notifying that her firm had now been instructed, and asking for a hearing date for the full appeal in late August 2011.

 

22.     On 22 September 2011 Ms Barnes forwarded an 8-page witness statement signed by the father, accompanied by a bundle of some 78 pages of further evidence. The witness statement dealt with matters going back to 2004, provided detailed information on the father’s position as regards shared care and made some comments as regards his salary arrangements. There was no mention of the exchanges at the start of the directions hearing. On 20 September 2011 Ms Barnes had also written to the tribunal asking that pages 54-78 of the supplementary bundle, which detailed the father’s salary, should be disclosed only to the tribunal and the CSA, but not to the mother, “in view of the acrimonious relationship between the parties”.

 

23.     On 19 October 2011, Mr Burrows, now acting as the father’s advocate having been instructed by Ms Barnes, made a detailed written application to the tribunal under three heads. First, he argued that the only issue arising on the appeal was the question of shared care. Second, he argued that the tribunal’s directions for further information to be provided about the father’s income should be withdrawn, as being irrelevant to the issue to be determined. Third, Mr Burrows argued that DTJ Street should recuse herself from hearing the appeal due to be heard (three working days later) on 24 October 2011.

 

24.     The application that DTJ Street should recuse herself was made on the basis of apparent bias. In particular, it was founded on (1) her comments at the directions hearing; (2) her directions that the scope of the appeal extended beyond the issue of shared care; and (3) her refusal of the father’s request that his salary details be produced on limited terms. DTJ Street considered the matter on the papers and issued a directions notice on the same day that the application had been made, refusing to recuse herself and confirming the previous directions.

 

25.     On 21 October 2011 there was some e-mail traffic between the tribunal office and the father’s representative. Those communications are not before me. However, it is accepted that in the course of those e-mails a concession was made by the father that he did not have shared care to the required threshold for any period before 2010. This concession was duly recorded in the tribunal’s subsequent statement of reasons.

 

The First-tier Tribunal hearing on 24 October 2011

26.     The First-tier Tribunal’s substantive hearing of the appeal duly took place on 24 October 2011. The father attended, represented by Mr Burrows. The mother appeared in person, again accompanied by her father. A CSA presenting officer also took part. The hearing lasted all day. The proceedings should have been recorded on disc but a malfunction of some sort meant that part of the hearing was missed. Nothing turns on this glitch for present purposes. What is clear is that a good part of the morning session was spent hearing Mr Burrows’s renewed application that DTJ Street should recuse herself.

 

27.     The tribunal’s decision notice is summarised at paragraph 5 above (as issued on 31 October 2011 subject to a minor typographical correction notified on 20 December 2011). On 10 November 2011 DTJ Street produced a full statement of reasons for her decision. In this context the operative word is full; the statement of reasons runs to 20 pages and 169 paragraphs.

 

28.     The subsequent proceedings before the Upper Tribunal are summarised at paragraphs 7-12 above. With that background - which I have sought to keep within manageable proportions - it is necessary to turn to the father’s two live grounds of appeal.

 

The jurisdiction ground

The father’s arguments

29.     As developed by Mr Burrows and subsequently Ms Barnes, the father’s case on this ground was that the tribunal had lacked jurisdiction under section 20(7) of the Child Support Act 1991 to make the decision it did. Furthermore, it is said that, once the shared care issue had been resolved, DTJ Street erred in law by acting beyond her statutory powers to seek out alternative bases on which the tribunal might assume jurisdiction. Ms Barnes further argued that DTJ Street had been wrong to conclude that the father’s application for a variation in July 2006 was an application for a supersession of the original calculation. In particular, the father’s variation application was incomplete, lacking essential information, and so a proper ground for supersession from that date could not be made out. Ms Barnes submitted that the CSA’s decision of 18 February 2010, which had properly implemented the shared care reduction for both children from the (agreed) effective date of 14 January 2010, had been correctly made. However, she argued that the tribunal had no warrant to make a supersession decision with effect from 2006, and in particular had no power to raise for decision the issue of the father’s income over the period from 2006 to 2010.

 

The mother’s arguments

30.     The mother’s core argument was quite simple. She wanted the proper amount of child support maintenance due for the period from the original liability arising in February 2005 to be correctly calculated and paid. She accepted that as part of this process some of the changes of circumstances (e.g. the presence of “relevant other children” on the father’s side of the equation) might work for a period to her financial disadvantage.

 

The Secretary of State’s arguments

31.     The Secretary of State’s arguments were developed in written submissions, first by Mrs S A Powell and then by Mr Cooper, and then by Mr Cooper at the hearing. Mr Cooper’s position was that the tribunal had exhaustively analysed the decision making history of the case and had fully explained why it had proceeded in the way that it had. It was entitled to take the view that there had been an application for a supersession in 2006 which had led eventually to the CSA’s decision of 24 March 2010, re-assessing liability as from 27 July 2006. Moreover, there was nothing in section 20(7) of the Child Support Act 1991 to suggest that the tribunal had in any way erred in law.

 

The Upper Tribunal’s analysis

32.     The central question here is whether or not the tribunal (and indeed the CSA before it) was correct in deciding that the father’s application for a variation, made on 27 July 2006, constituted an application for a supersession of the maintenance calculation. When I originally gave permission to appeal in May 2012, I indicated that my initial view was that the tribunal was entitled to find as much. The further scrutiny involved in an appeal has satisfied me that was indeed the case.

 

33.     As the tribunal noted, an application for a supersession does not require any formalities and in principle may be made in the course of an application for a variation. The father’s variation application in July 2006 certainly included possible grounds for a supersession (in terms both of the father’s stated shared care of his own children and the existence of “relevant other children”). The variation for contact costs was refused as the father had purportedly already had the benefit of that reduction by way of a shared care adjustment, whereas in fact, due to a CSA oversight, that latter change had not been made. So, as the tribunal found, “the refusal to supersede the calculation without either including the shared care reduction or considering the variation ground was plainly wrong” (statement of reasons at paragraph [113]).

 

34.     As the tribunal also correctly found, the variation application was determined by the CSA’s decision on 21 February 2007. That decision was in turn revised by the decision dated 24 March 2010, confirming supersession of the original maintenance calculation as from 27 July 2006, which was the decision under appeal to the tribunal. It necessarily followed that the tribunal also properly had jurisdiction to consider matters with effect from 27 July 2006. In making a supersession decision, the CSA “need not consider any issue that is not raised by the application” (Child Support Act 1991, section 17(2)). Likewise, on hearing an appeal the tribunal “need not consider any issue that is not raised by the appeal” (Child Support Act 1991, section 20(7)(a)). As Mr Cooper pointed out, these provisions do not preclude the CSA or tribunal from looking at other relevant matters; it is just that they “need not”, not that they “must not” do so. There is no other statutory prohibition which limits the matters to be decided by the CSA or the tribunal to those narrow issues which were raised in the father’s application.

 

35.     Ms Barnes (and Mr Burrows before her) sought to press a number of arguments to demonstrate that this analysis is faulty. For the following reasons, none of them were persuasive. The nub of their argument in each instance is summarised in the preceding italicised text.       

 

36.     There was nothing left for the tribunal to adjudicate upon; the father had conceded that shared care only applied from January 2010. The first half of this statement is simply wrong. The CSA’s decision of 24 March 2010 applied the shared care reduction back to 27 July 2006. The father’s concession that the earliest date that shared care applied was January 2010 was made by e-mail on the Friday (21 October 2011) before the second tribunal hearing on the Monday (24 October 2011). The father may well have withdrawn his appeal before the first hearing in March 2011, but the mother’s appeal was very much live, not least as the effect of the 24 March 2010 decision by the CSA was to fix her with a liability for an overpayment of child support of some £2,800. Furthermore the father did not, as Ms Barnes suggests, withdraw his appeal on 21 October 2011; what he did was to concede that he could not oppose the mother’s argument on her appeal that there was no shared care between July 2006 and January 2010. It follows that my decision in CH v CMEC (CSM) [2010] UKUT 140 (AAC), prayed in aid by Ms Barnes for the passage at paragraph 52, is simply not in point. The CSA decided on 24 March 2010 that there had been an application for a supersession in July 2006, which until then had not been properly determined, and the mother had appealed, and not withdrawn her appeal against, the CSA’s consequential decision. That appeal was therefore still live.

 

37.     The father’s contact variation application in July 2006 contained insufficient and contradictory information about his circumstances. Ms Barnes argued that the limited information in the father’s variation application made it a defective application. However, as Mr Cooper submitted, this is ultimately an argument over the facts. For example, Ms Barnes made great play over the inconsistency between the father stating that he was living in naval accommodation and also that he had “relevant other children” with his then new partner. However, this is a dispute over the facts which should have been raised and resolved before the tribunal. It does not give rise to any error of law. Furthermore, and in any event, the formalities for a supersession application are minimal. As explained above, the tribunal (and before that the CSA) was entitled to take the view it did of the application. There may well have been some inconsistencies in the application, but that did not prevent the tribunal from accepting it as a valid supersession application and then proceeding to decide any appeal from the CSA’s consequential decision in the light of all the relevant facts at the material date.

 

38.     The CSA had made decisions about the father’s income and its effect on the maintenance calculation in 2007 and 2008 and those decisions had not been the subject of in-time appeals. Accordingly in 2010 and 2011 neither the CSA nor the tribunal respectively could revisit the issue of the father’s income over that earlier period. This seemingly attractive argument will not run, given the decision-making and appeals regime that operates for child support cases. The supersession decision of 24 March 2010, effective from 27 July 2006, was the door that then opened the way to revisiting those intervening decisions.

 

39.     This leaves one matter to resolve on the jurisdictional aspect of this appeal. In making its decision, and directing the CSA to recalculate the father’s child support liability on the basis of his pay as it was found to be at certain dates, the tribunal staged this by reference to three decisions, being those dated 21 February 2007, 21 January 2008 and 9 February 2010. The relevant effective dates for these decisions were 27 July 2006, 4 October 2007 and 14 January 2010 respectively. The unresolved matter concerns the third of these decisions, which was the first decision to recognise shared care (albeit incorrectly as it allowed for one child only).

 

40.     When I gave permission to appeal, I indicated that the basis for taking the mother’s appeal to be against that decision as well was at that stage unclear to me. I noted that the mother had appealed against the decision of 24 March 2010 and had stated the point in dispute as being the backdating of the shared care adjustment to the period before 2010. So had she actually appealed the decision of 9 February 2010 (as revised on 18 February 2010 to correct the number of children affected)?

 

41.     The Secretary of State’s position on this issue has wavered. Mrs Powell, in the original written submission, has referred me to the mother’s letter of 11 November 2010. In that letter, under the heading “shared care arrangements from 2010 onwards”, the mother wrote that her ex-partner “is now seeing the children on a regular basis. As a result the 1/7^th reduction has been applied with effect from 14 January 2010. The payment has correspondingly been reduced from £95.00 to £81.43 per week. No further action is required.” Mrs Powell accordingly argued that there had been no appeal against the decision of 9 (or 18) February 2010. She therefore invited me to allow the appeal on that one narrow point, to set aside the tribunal’s decision and remake it in the same terms but without the direction relating to that third decision.

 

42.     Mr Cooper, both in his later written submission and in his oral argument, took a different approach. His argument was that there was no material error of law at all in the tribunal’s decision. The decision of 18 February 2010 had simply corrected the decision of 9 February 2010, which was in turn simply the last of a series of decisions since the CSA’s refusal of the father’s variation application, all of which fell within the period covered by the decision under appeal.

 

43.     Neither Ms Barnes nor the mother made any detailed observations on this relatively narrow and technical point, although perhaps the logic of Ms Barnes’s other submissions was that she would adopt the argument of Mrs Powell that the decision of 9/18 February 2010 was not within the scope of the appeal.

 

44.     I can deal with this point shortly. I agree with Mr Cooper and not with Mrs Powell. I agree that the mother was not disputing that shared care operated from January 2010 (hence the heading she used in her letter of 11 November 2010). But that was not to say that she was accepting the decision of 9/18 February 2010, which had necessarily been based on the details of the father’s income then to hand. However, the CSA’s decision of 24 March 2010 was based on salary details that were some years out of date. The mother’s letter of 11 November 2010 included a further passage under the heading “salary increase”, so the father’s income was again still very much a live issue. On that basis I conclude that the tribunal was right to decide that the decision of 9/18 February 2010 fell within the scope of the appeal and necessitated a recalculation based on the income findings carefully recorded in the statement of reasons (at paragraphs [133] to [166]). I note, without surprise, that the analysis of the relevant salary evidence and the detail in the tribunal’s findings are far more comprehensive than is any CSA decision on file.

 

45.     For all these reasons I conclude that the tribunal acted properly within its statutory powers. DTJ Street was entitled to allow the mother’s appeal against the CSA’s decision of 24 March 2010 and to remit the matter for liability to be recalculated on the basis of the father’s income (and in accordance with the tribunal’s other directions) over the period from 26 July 2006. I observe in passing that there were a couple of matters here that worked to the father’s advantage. The first was the existence of relevant other children for a limited period. The second was, as was spotted at the directions hearing, the CSA had incorrectly used a December 2007 payslip as the basis for calculating the father’s salary in 2006. In any event, the jurisdiction ground of appeal accordingly fails.

 

The recusal ground

Introduction

46.     The first application for DTJ Street to recuse herself was made on the papers by Mr Burrows on 19 October 2011. As noted at paragraph 24 above, the application was made on three grounds, namely (1) the Judge’s comments at the start of the March 2011 directions hearing; (2) her directions that the scope of the appeal extended beyond the issue of shared care; and (3) her refusal of the father’s request that his salary details be produced on limited terms. DTJ Street refused the application, without giving reasons, on the same day. Mr Burrows then renewed the bias challenge at the hearing on 24 October 2011 (see paragraph 26 above). Judging from the record of proceedings, the application took no little time. It is difficult to be sure, given the difficulties with recording experienced during the second hearing, but the recusal motion must have taken at the very least an hour of the morning session and probably more. Towards the end of the morning session DTJ Street adjourned for 18 minutes, returning to announce that she was not recusing herself.

 

47.     The March 2011 directions hearing itself had not been recorded. However, the tribunal’s contemporaneous record of proceedings is available. DTJ Street noted the opening of the hearing as follows:

 

          “Held at short notice, to accommodate [the father’s] short term availability -

Held at ET [employment tribunal] premises, no AS [Appeals Service] premises available.

          Clerked by Richard.

 

          Mr Oakley from CMEC

          [The father]

          [The mother] with her father for moral support

 

          TJ to [father]

          I have heard that you have withdrawn the other appeal - 02673

          Yes

 

          Puzzled. You see the children?

          Yes

          Care for the children?

          Yes

 

          You are not someone who is trying to avoid supporting your children?

          No no not at all.

 

The appeal, if successful, would have left them without your support and with an overpayment for the whole period. Don’t understand - how helpful?

 

          I was not trying to avoid a liability.

          We were trying to get things agreed through the courts.

          Account of negotiations attempted at breakdown of marriage.

 

          TJ - that was then.

 

          Was there an agreement reached for maintenance?

          Some further discussion.

          No.

          So?

          Very worrying approach. Don’t see how it is helpful to your children.

 

          Coming to jurisdiction....”

 

48.     In the tribunal’s extensive statement of reasons, DTJ Street devoted over five pages to her analysis of the recusal arguments advanced by Mr Burrows and to considering the case law authorities, in explaining how she came to the decision not to recuse herself (paragraphs [55] to [97]). DTJ Street’s statement of reasons included the following passage:

 

“[66] In respect of the conduct complained of at the hearing on 02 03 11, it is right that after the usual introductions, I started the hearing on 02 03 11 by asking [the father] about the withdrawn appeal. I asked him questions based on the effect of that appeal had it succeeded, and I made the comment recorded in the notes, that I found the approach worrying and I did not see how that was helpful to the children. The note is a contemporary note, recording accurately but not verbatim. As to the manner and duration, my note is clear nor would it be my practice to harangue or intimidate. It is my belief and recollection that I was not discourteous. I accept that [the father] may not have expected the matter to be referred to or that he might have found the questions uncomfortable. The questions put derived directly from the relief sought in the appeal he had so recently withdrawn.”

 

49.     The bulk of the remainder of this part of the statement of reasons (paragraphs [67]-[85]) sought to put the exchange at the start of the original hearing into context.  In doing so, DTJ Street made the following observations: (i) the father had had the opportunity to make the recusal challenge before 19 October 2011; (ii) the father had actively pursued his own appeal and withdrawn it only a few days before the original hearing; (iii) the effect of that appeal, if it had been successful, was that there would have been no enforceable child support liability throughout the period in issue, with a resulting overpayment in the order of £35,000; (iv) if successful, the appeal would have jeopardised the working relationship between the parents as regards contact; (v) the father had received advice from NACSA, but not from a family law solicitor who may have advised on the wider family law issues involved; and (vi) the other parties had expended time and effort in addressing the father’s appeal - “elsewhere, a late withdrawal has consequences in costs. That is not the case here, but that does not preclude comment” (at paragraph [85]).

 

50.     The legal test for recusal is well known and not in dispute. The question is whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased (Porter v Magill [2001] UKHL 67). In oral argument, Ms Barnes submitted to me that the father “had been given a rough ride at the first hearing”. However, as Mr Cooper reminded me, the legal test turns on the objective perspective of the “fair-minded and informed observer” and not the subjective views of one of the parties or their representative.

 

The father’s arguments

51.     The father’s case (in summary) was that DTJ Street was wrong to recuse herself as she had demonstrated apparent bias at the first (directions) hearing and the result was an unfair trial at the second (substantive) hearing. It was alleged that at the first hearing DTJ Street had refused to read some of the father’s evidence; he had felt intimidated by her criticism of him as a father and the assumptions she had made; DTJ Street had, moreover, taken up the mother’s invitation to act in a biased manner and had acted as the mother’s “advisor and protector” in the proceedings. It appeared to the father that “her aim was not to reach the ‘right’ decision within the tribunal’s jurisdiction, but to create a decision that rewarded [the mother]”.

 

The mother’s arguments

52.     Throughout these proceedings, the mother has effectively been a bystander in a dispute about recusal that she seems to view as essentially a “side show” to her appeal. At the October 2011 hearing DTJ Street asked her for her comments on the recusal application; the mother replied that “I have been thrown by this turn of events anyway... I am not sure what I could or should say other than the record of proceedings seemed to be an accurate record of proceedings”. At the Upper Tribunal hearing she said that Ms Barnes’s skeleton argument was putting words into the Judge’s mouth (“what kind of a father are you!”) that were not uttered by her.

 

The Secretary of State’s arguments

53.     Mrs S A Powell, in the original written response to the appeal, did not support this ground. In short, she argued that a judge is entitled to make reasonable comments on the case before her, and even express provisional views, without fear of criticisms on the ground of partiality, and providing the rules of natural justice are observed. She also submitted that the application to recuse had been made too late, which had the effect of undermining the allegation of bias. Mr Cooper, in oral argument, supported that analysis. He also argued that as this was not a case where a tribunal had failed to consider recusal on the ground of bias, it followed that the Upper Tribunal’s role was limited to considering whether there was an error of law in the tribunal’s reasons for refusing the recusal application.

 

The Upper Tribunal’s analysis

Two preliminary observations

54.     I start with two preliminary observations. In the first place Mr Cooper’s submissions seemed at one point to be suggesting that the only way in which DTJ Street’s decision could be impugned was if her reasons for refusing to recuse herself were inadequate as (a) she had considered the application and (b) there was no suggestion that she had misunderstood (and so erred in law with regard to) the principles underpinning the legal test for recusal for bias. That does not seem to me the right way of looking at it. An allegation of bias is a serious matter that goes to the fundamental fairness of the trial procedure. It is accordingly incumbent on an appellate court or tribunal to look at the matter afresh on the basis of first principle. The cogency (or otherwise) of the trial judge’s reasons on the recusal challenge will inevitably be a relevant factor in making that assessment. However, it is not a reasons challenge as the expression is commonly understood.

 

55.     Secondly, I note that Ms Barnes has not pursued all the arguments originally advanced by Mr Burrows as a reason for DTJ Street to recuse herself. Ms Barnes’s argument was almost entirely focussed on Mr Burrows first point, namely the Judge’s comments at the start of the March 2011 directions hearing, which I consider in more detail below. I have to say that the weakness of the other arguments discussed below, but now abandoned, does not bode well for the underlying merits of the principal submission.

 

56.     As regards the second basis advanced by Mr Burrows, Ms Barnes has of course pursued the jurisdictional issue as to the proper scope of the appeal extending beyond the issue of shared care as a distinct ground of appeal. However, she did not in terms rely on it to any significant extent in her submissions as to recusal - and, of course, as a result of my conclusions above, that argument would have been wholly unpersuasive.

 

57.     Nor did Ms Barnes place any reliance on Mr Burrows’s third point in his original application, namely DTJ Street’s refusal of the father’s request that his salary details be produced on terms that they should be disclosed only to the CSA and the tribunal, and not to the mother. Ms Barnes’s implied abandonment of that third limb to the recusal application was wise, as it was quite simply doomed to fail; as Mr Commissioner (now Judge) Williams put it in CCS/1925/2002 “evidence is only properly produced when it is made available to the other parties as well as the to the tribunal. Unless there are proper grounds for withholding the evidence from the other parties (or perhaps from all the parties), then evidence relevant to a hearing must be copied to all parties (or other parties) in proper time before any hearing” (at paragraph 13). I can see absolutely no basis on which a tribunal could have been invited to withhold the father’s salary information from the mother (see further rules 14 and 19 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2865)).

 

58.     Furthermore, I note that at the substantive October 2011 hearing Mr Burrows indicated that he might not have proceeded with the recusal application had it not been for DTJ Street’s conduct during that second hearing (statement of reasons at [86]). Ms Barnes has not now sought to rely, before the Upper Tribunal, on the Judge’s conduct of the second hearing, and rightly so in my view. It is plain from the record of proceedings of the substantive hearing that there was a certain frisson in some of the exchanges between DTJ Street and Mr Burrows at the second hearing. That was perhaps understandable. In that context I should mention DTJ Street’s concluding observation at paragraph [169] of her statement of reasons:

 

          “Fair Hearing

[169] I was concerned about the fairness of the proceedings to [the mother], given the extent to which Mr Burrows’s applications and submissions took up the very greater part of the day, even given indications as to the timetable to follow. She made her comments succinctly, as did her father in his rare but cogent interjections and the presenting officer. That was helpful.”

 

59.     Furthermore, if judges always had to recuse themselves because of some degree of tetchiness between the bench and advocates then very little work would get done in courts and tribunals up and down the land. I therefore turn to the main plank of Ms Barnes’s argument.

 

The District Tribunal Judge’s conduct of the directions hearing

60.     Ms Barnes’s reminded me that the test was whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (Porter v McGill [2001] UKHL 67 at [103]). Her submissions revolved around four particular features of the hearing, the run-up to the hearing and its immediate aftermath: (1) the mother’s letter of 22 July 2010, which was, Ms Barnes said, an “invitation to bias”, accepted by the Judge; (2) the Judge’s questions and comments to the father at the start of the directions hearing; (3) the Judge’s dismissive attitude to the father’s documentary evidence; (4) the mother’s post-hearing correspondence with the tribunal. I will deal with each of these in turn.

 

61.     The mother’s letter of 22 July 2010 was an “invitation to bias”. The mother’s letter of 22 July 2010 must be seen in context. In April 2010 the CSA had referred both parents’ appeals to the tribunal: the mother’s appeal against the supersession decision and the father’s appeal against the validity of the original maintenance calculation. The stated purpose of the mother’s two-page letter of 22 July 2010 to the tribunal was, as she explained, “to demonstrate that at the time of making my original application the marriage was over and we were separated, receiving no financial support”. She then referred to various correspondence from 2004 and 2005, copies of which she annexed, dealing with both her living arrangements at the time and the contemporary financial position.

 

62.     According to Ms Barnes’s skeleton argument, “the alleged incidents occurred 5 years before the appeal and were not relevant to the main issue”. However, the points advanced by the mother were potentially highly relevant to the father’s then extant appeal, given that they related to the fundamental question of the date of separation.

 

63.     Ms Barnes further argues that the mother used “evocative language” which amounted in effect to an invitation to bias. In her submission, the father “says it appears that DTJ Street was influenced by [the mother]’s invitation for bias and this resulted in an unfair hearing”. I have no hesitation in rejecting those submissions, and for two reasons.

 

64.     First, I do not read the mother’s letter as an “invitation to bias” in any event. Read as a whole, it is a carefully written explanation of why she was taking issue with the father’s appeal, focussing on the circumstances as they were in 2004 and 2005 (which, of course, were very much in point for the purposes of the father’s appeal, and so threatened to undermine the basis of the mother’s own appeal). It is, for the most part, a measured and analytical account of her recollection of events some years previously. For example, she acknowledged that the father “did pay some money during this period, but it was not regular and could not be relied on to pay the mortgage”.

 

65.     Second, Ms Barnes’s submission necessarily rests on the assumption that DTJ Street has naively fallen “hook, line and sinker” for a one-sided account by a manipulative parent with care in a bitter child support dispute. Yet all tribunal judges swear the judicial oath. Moreover, those tribunal judges with experience in child support litigation read letters that are far more inflammatory than the mother’s letter of 22 July 2010. They simply put them to one side if they have no bearing on the issues ultimately to be decided. DTJ Street will doubtless have read the mother’s claim that there was an “incident involving physical violence” and that she and the children left the matrimonial home with “only the clothes on our backs”. The judge will also have noticed the mother’s admission in the same passage in the letter that this took place after “a failed ouster order attempt” (emphasis added). In addition, at the final hearing DTJ Street had before her the father’s own detailed account of the circumstances during the period in question, seeking to refute the mother’s version of events (signed 10 September 2011). It may well be tempting for a party who has lost an appeal to assume that because the judge accepts the other party’s version of events she is necessarily biased. However, for the father to say that “it appears that DTJ Street was influenced by AR’s invitation for bias” simply does not get off the ground as the basis for a plausible bias challenge.

 

66.     The exchange between the Judge and the father at the start of the directions hearing. DTJ Street’s note in the record of proceedings of the exchange at the start of the directions hearing is quoted at paragraph 47 above. Ms Barnes acknowledges that judges may on occasion show displeasure or make adverse comments and that this alone does not amount to bias. Her primary submission, however, is that DTJ Street overstepped the mark, and her approach to the appeal was similar to that of the mother, namely “that he is a father who does not care for the children and does not want to support them. It is this prejudice which affected her ability to be neutral and facilitate a fair hearing.”

 

67.     In support of this primary submission, Ms Barnes made a number of further points which she argued were evidence of bias, e.g. that DTJ Street had said to the father at the start of the hearing “what kind of a father are you!” and had made a number of adverse comments which related to his role as a father rather than to his (now withdrawn) appeal. She further alleges that during the Judge’s criticism of the father, “which lasted around 20 minutes and was not recorded”, the Judge “smiled at [the mother] in a way that [the father] felt was conspiratorial and which made him feel intimidated”.

 

68.     Several of the matters raised by Ms Barnes simply do not merit serious consideration. The description above about the Judge’s smiling at the mother is an example in point, resting as it does wholly on the father’s memory and subjective impression. Likewise the Judge’s note on the record that the mother’s father attended “for moral support” was simply a statement of fact, and in no way any possible indication of bias on the tribunal’s part.

 

69.     The allegation that the Judge asked “what kind of a father are you” and proceeded in effect to harangue the father for 20 minutes is obviously a serious one. Equally obviously, neither Mr Barnes nor Mr Cooper (nor indeed Mr Burrows) were present at the directions hearing. The proceedings were not tape-recorded, but that is not unusual for a directions hearing (especially one held at short notice in another tribunal’s hearing rooms). The mother, of course, was present at the directions hearing. At the October hearing, relatively shortly after the directions hearing in March, she expressed the view that the Judge’s note was accurate. She also expressed the view to me that words were being put in the judge’s mouth after the event (see paragraph 52 above).

 

70.     DTJ Street plainly asked the father directly “you are not someone who is trying to avoid supporting your children?”, while pointing out the implications of the father’s own appeal which, had it been successfully pursued, would necessarily have made the mother’s appeal redundant. That was a pointed question which the Judge was entitled to put, especially in the context of a directions hearing. But I am satisfied that the Judge did not ask the father “what kind of a father are you?” The father may well have interpreted and internalised the questions he was being asked about his recently withdrawn appeal as posing that question by necessary implication. But the fair-minded and informed observer would not have done so, and would not conclude that there was a real possibility that the tribunal was biased

 

71.     I also doubt very much that the exchange in question went on for 20 minutes as is alleged. The Judge’s note (see paragraph 47 above) is contemporaneous. It is not a verbatim account, and does not pretend to be. However, an experienced judge captures the essence of any questioning in her note. As DTJ Street explained in her later statement of reasons, “the questions put derived from the relief sought in the appeal he had so recently withdrawn” (at paragraph [66]; see paragraph 48 above). I also observe that in two places the note is in italics (“Account of negotiations attempted at breakdown of marriage... Some further discussion”). I take that as judicial shorthand for the fact that there was an element of discussion of matters which the Judge, as she was writing her note, realised were extraneous to the issues she had to decide (as she put it after the first such italicised passage, “that was then”). Even with that element of “padding” in the discussion, this does not appear to be a lengthy exchange.

 

72.     It follows that I find as a fact that the nature of the exchange between the Judge and the father at the start of the directions hearing simply does not give support to the allegation of bias.

 

73. The Judge’s dismissive attitude to the father’s documentary evidence. Ms Barnes submitted that NACSA, the father’s then representative, had contacted HMCTS before the directions hearing asking for more time to provide evidence as the father was on active service. HMCTS had then telephoned DTJ Street, who was on sick leave at home, and she had (it is said) given permission for the evidence to be provided on the day of the hearing. NACSA had then faxed the material in question on 1 March 2011 but it had only been handed to DTJ Street by the clerk at the directions hearing itself (the following day). According to Ms Barnes’s skeleton argument, “upon receiving it, [the father] says that DTJ Street pushed it to one side of the table saying ‘it’s not relevant’. Papers fell to the floor. The judge erred by only considering the evidence of one party. The faxed evidence was only 15 pages long.” There are three reasons why this submission is unpersuasive.

 

74.     First, as the mother astutely pointed out at the oral hearing before the Upper Tribunal, much of this account emerged for the first time at the hearing before me, three years after the events in question. A judge’s refusal to consider potentially relevant evidence is a very serious matter. Yet Mr Burrows made no mention of this allegation in his original application of 19 October 2011. Nor does this incident appear in his detailed 18-page notice of appeal as lodged with the Upper Tribunal. This certainly casts considerable doubt on the significance of this refusal (if that is what it was) to countenance the introduction of new evidence.

 

75.     Second, there is no reference in the record of proceedings to any such incident. However, DTJ Street’s directions for the further conduct of the case were quite instructive:

 

“[The father’s] case was presented in writing in documents faxed to the venue which arrived incomplete, in disorder and after the hearing had started. It could not be circulated. The hearing was listed at short notice but the appeal had been outstanding for a number of months. Guidance was given in directions. The evidence relied [upon] should have been provided earlier. In future, late arriving evidence is likely to be excluded.”

 

76.     This account was confirmed by a comment the mother made in the course of the second hearing in response to the father’s claim to the Judge that “You pushed my statement to one side. You said it wasn’t relevant”. The mother’s interjection was “It was the fax that was brought in, part way through. It must have been in that”. Thus the contemporary record shows that the father’s evidence was not, as such, dismissed. Rather, the Judge was engaging in active but robust case management in preparation for the final hearing. There is no doubt that her efforts in that regard were hindered by HMCTS failings in circulating new evidence (from both parents), but these administrative glitches, whilst serious, had affected both parties and certainly do not suggest bias on the part of DTJ Street.

 

77.     Third, what actually was the significance of the faxed evidence? The documentary material in question was clearly in the bundle for the final hearing in October 2011 (in some instances in more than one place in the bundle). It consisted of (i) the father’s written evidence about events in the course of the breakdown of the marriage in 2005 and 2006; (ii) calendars indicating dates on which the children stayed with the father in 2009 and 2010; (iii) testimonials in support of the father from friends; and (iv) copies of some of the father’s letters to the CSA, and in particular a letter of 22 February 2010. As to these (i) was of no direct relevance, given the withdrawal of the father’s appeal; (ii) was not in dispute given the parties’ agreement that shared care operated from the start of 2010; (iii) were of no relevance to the legal and factual issues the tribunal had to determine and (iv) were principally concerned with the issue of shared care, which was effectively settled by the parties’ concessions. So in any event, given the issues the tribunal had to determine, the evidence in question was of little, if any, relevance.

 

78.     It follows that I do not accept that DTJ Street adopted a dismissive attitude to the father’s documentary evidence which was indicative of bias on her part.

 

79.     The mother’s post-hearing correspondence with the tribunal. Ms Barnes argued that the effect of the Judge’s actions on the other parties should be taken into account. She suggested that the mother felt supported by the tribunal, did not see the need to seek her own professional legal assistance and “even seeks advice directly from the judge by email”, referring to an e-mail of 5 July 2011 in which, according to Ms Barnes, “she writes directly to Judge Street for guidance and advice saying ‘my file is now being handled by just one person ... Hooray!’” She contrasted that approach with an e-mail the mother sent to Ms Barnes on 5 April 2011, stating “please can you stop contacting me”.

 

80.     This really will not do. There may be any number of reasons why one party does not instruct their own lawyer in child support proceedings (lack of funds and/or an inability to find a solicitor with the necessary expertise being two of the most common reasons). Litigants in person are understandably unaware of the legal conventions which every practitioner readily appreciates (e.g. that judges do not engage in private correspondence with one party to proceedings). In my experience, as happened here, unrepresented parties regularly write to the individual judge handling their case without copying in the other side(s) - it is neither a discourtesy nor an attempt to curry favour or induce bias; rather, it simply reflects lay ignorance of legal conventions. In any event, the mother’s e-mail was prompted, on closer scrutiny, by a telephone conversation with a named member of HMCTS staff (Deborah), who had actually suggested to the mother that she write direct to the judge with some information.

 

81.     It follows that the mother’s apparent delight that her file was being handled by just one person was (a) not actually a reference to DTJ Street at all, as Ms Barnes seemed to imply, but rather a reference to the staff member Deborah, and (b) a reaction that will be entirely understandable to anyone who has tried to pursue a query about the progress of their case with any large organisation in which individuals deny “ownership” of any particular case (an experience sadly all too common to many of those who use the services of both the CSA and HMCTS). The mother’s rather brusque e-mail to Ms Barnes was understandable in its context - Ms Barnes had been asking for a copy of a set of extra evidence which HMCTS should have distributed (and which the mother had had to send to HMCTS twice). It is not necessarily unreasonable to expect that HMCTS will do its job properly, which lay at the heart of the mother’s response.

 

82.     So the mother’s attitude, as evidenced by her correspondence after the directions hearing, does not even begin to provide support for the submission that DTJ Street should have recused herself.

 

The issue of waiver

83.     The discussion in the present proceedings about waiver has generated a great deal of heat but not much light. It is well established law that a bias challenge must be made sooner rather than later. As the Court of Appeal put it in Locabail (LJ) Ltd v Bayfield Properties Ltd [2000] QB 451, “The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be” (at paragraph [25]); see also Baker v Quantum Clothing Group & Ors [2009] EWCA Civ 566 (at paragraph [36]).

 

84.     Mr Burrows and Ms Barnes have both argued that waiver was first raised as an issue by myself when giving permission to appeal. This is incorrect. DTJ Street had referred to the delay in making the application for recusal in her statement of reasons (at [67]-[68]), making the observation that the father had had the opportunity to raise the matter earlier. In my observations on the appeal I simply referred to the relevant case law and the time line as it appeared from the papers. The father’s representatives were the first to use the specific term “waiver” (letter of 15 January 2013). Ms Barnes’s submissions on appeal were principally concerned with seeking to explain the practical problems experienced by the father in giving instructions between March and October 2011. However, this was essentially an attempt to re-open factual matters that were before the tribunal.

 

85.     In the light of my conclusions above, I do not actually need to form a definitive view on the impact of delay and whether there was waiver. DTJ Street did not rely on the delay as a significant factor in her decision to refuse the recusal application. For the reasons explained above, I am satisfied that the bias challenge fails in any event. It follows that whether there was waiver or not by the father is immaterial. I do not therefore need to consider further the Court of Appeal’s decision in JSC BTA Bank v Ablyazov (Recusal) [2012] EWCA Civ 1551 (and especially the analysis of waiver by Rix LJ at paragraphs [77] to [93]). I simply note Rix LJ’s finding on the particular facts of that case - and these cases are inevitably very fact-sensitive - that in Ablyazov “the actual timing of the application to recuse was a tactical decision, designed to derail the trial” (at paragraph [91]). I have to say the circumstances of the present case would readily lead to a similar conclusion, a finding that would not be undermined by the undoubted inefficiency of HMCTS in circulating some of the relevant papers for the hearing (given the length of time between the two hearings).

 

Conclusion on recusal

86.     Ms Barnes’s submission is that DTJ Street overstepped the line and demonstrated bias in her approach to the case. For the reasons above, I dismiss that ground of appeal. Some other judges might not have put those questions, or put them in quite such a pointed way. However, it was plainly important in a directions hearing to establish the scope of the appeal. The Judge’s questions were pertinent to the tribunal’s remit. The simple fact that other judges might have handled the matter differently does not begin to suggest that this judge acted in other than an impartial manner. Moreover, as the Secretary of State points out, this was not simply a party-party adversarial dispute. The tribunal has an inquisitorial function to ensure that the correct child support liability is arrived at within the scope of the appeal.

 

Conclusion

87.     It follows that the First-tier Tribunal came to the correct decision. For the reasons explained above, the Upper Tribunal dismisses the father’s appeal (Tribunals, Courts and Enforcement Act 2007, section 11). The decision of the First-tier Tribunal therefore stands.

 

88.     The father has raised a number of issues about more recent changes of circumstances. Owing to the limitations imposed by section 20(7)(b) of the Child Support Act 1991, those matters do not arise for decision before me. They are for decision by the Secretary of State (e.g. on an application for a supersession) and will generate their own rights of appeal as appropriate.

 

89.     The mother has also asked, in the event that the tribunal’s decision was upheld, “what safeguards and measures will be put in place to ensure that the decision is implemented accurately and efficiently?” The Upper Tribunal does not have an ongoing supervisory function in relation to child support cases. Implementation of the tribunal’s decision is a matter for the Secretary of State, who has sole jurisdiction over matters of collection and enforcement, subject ultimately to control by the courts (and not tribunals).

 

 

 

 

Signed on the original                            Nicholas Wikeley

on 16 April 2014                                        Judge of the Upper Tribunal