Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CCS/1199/2013

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

 

 

DECISION

 

 

The Upper Tribunal dismisses the appeal of the appellant.

 

The decisions made by the First-tier Tribunal in coming t0 its decision of 11 December 2012 under reference 186/10/04745, and that decision itself, did not involve any material errors of law. The substantive decision the tribunal made on 11 December 2012 therefore stands. 

 

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

 

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.                   The important legal issue with which this appeal is concerned is what the effect is of a respondent being barred “from taking further part in the proceedings” under rule 8(1) and (7) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the FtT rules”).

 

2.                  Does such a barring ruling mean, as the First-tier Tribunal (“the tribunal”) seems to have held here, that the person barred is prohibited from seeking a statement of reasons for the tribunal’s substantive decision on the appeal before it and from asking for that decision to be set aside, and from seeking permission to appeal against that decision?

 

3.                  The short answer to these questions is “No”. The tribunal therefore erred in law in (a) refusing to provide the barred person with a statement of reasons for its decision; (b) not considering his set aside application; and (c) in either not considering or refusing to admit his application for permission to appeal to the Upper Tribunal.  As a “party” under the FtT rules the barred person was entitled to a statement of reasons (if requested in time), and was entitled to apply for the decision of the tribunal to be set aside under rule 37 of the FtT and for permission to appeal against its decision (if not so set aside), and have such applications determined by the tribunal.

 

4.                  However, that does not mean that the appellant’s appeal to the Upper Tribunal ought necessarily to succeed. In order to determine that I have to consider which “decisions” are under appeal to the Upper Tribunal and whether those decisions are fatally undermined by a material error of law. Ultimately, as will become apparent, what is key is whether the substantive decision the tribunal made on 11 December 2012 - in respect of the level of the appellant’s liability to pay child support  maintenance for his two children with effect from 12 July 2010 – was based on a material error of law and so needs to be set aside. 

 

5.                  My conclusion is that substantive decision made on 11 December 2012 was properly arrived at, was rationally based on the evidence before the tribunal, and, in the context of the appellant having been properly barred from taking part in the proceedings and not having been reinstated[1], was adequately reasoned in the summary reasons provided in the decision notice.  It is for these reasons that I have dismissed this appeal, notwithstanding the errors of law identified above.

 

 

 

 

Relevant background – the facts

 

6.                  The appellant in this appeal to the Upper Tribunal was the second respondent in the appeal to the tribunal. He is the father of the two children.  In the child support lexicon he is the “non-resident parent”. I shall refer to him as “the father”. The second respondent on the appeal to the Upper Tribunal was the appellant before the tribunal below. She is the mother of the two children. In child support terminology she is the “parent with care”. I shall refer to her as “the mother”. The Secretary of State for Work and Pensions is the first respondent on this appeal. The first respondent’s role was taken by the Commissioner for Child Maintenance and Enforcement before the tribunal below but has now been transferred for all relevant purposes to the Secretary of State for Work and Pensions. I shall refer to the first respondent simply as “the Secretary of State”.

 

7.                  The decision under appeal to the tribunal was dated 13 August 2010 and provided that the father was to pay child support maintenance of £50.00 per week in respect of his two children with effect from 12 July 2010. The liability of £50.00 per week was based on the father’s employed earnings as an employee of one company of which he was also managing director.  No variation was allowed for by the Secretary of State. The mother was dissatisfied with this decision and appealed it to the tribunal both on the level of the father’s earned income and on variation grounds.

 

8.                 As is common and sensible on such appeals, directions were first given by tribunal on the papers alone on 23 December 2010.  Both the mother and the father were directed to provide evidence within one month of the date of the directions: neither did so. As it is the father who was later barred from taking further part in the proceedings, I shall refer only to what he was directed to provide.  He was required to provide:

 

(i) a written statement of the facts of his income and status in the course of 2008;

(ii)             the full company accounts for the year ending 31 August 2010 and the previous year in respect of the companies put in issue in the appeal;

(iii)           his bank statements (both business and personal) for the period of the company accounts;

(iv)            his tax returns, the tax calculations and the assessments to tax for the financial years ending April 2008 and April 2009, and

(v)              a completed income and expenditure sheet (sometimes referred to as a “lifestyle” sheet) setting out his income and expenditure as at 13 August 2008.

 

The directions pointed out that if any party had a difficulty complying with them then the party should “do the best you can and be ready to explain any difficulty to the Tribunal at the hearing”, and ended by reminding the parties that they must cooperate with the Tribunal. 

 

9.                  Once the deadline set by these directions had passed with nothing from either the mother or the father, the tribunal on 6 July 2011 issued a second set of directions, dated 9 June 2011, listing the case for a directions hearing. Those directions noted that the mother and the father had not complied with the earlier directions and pointed out that both could be barred[2] from further participation for failure to cooperate. However, the tribunal said that instead of this happening it was listing the appeal for a directions hearing to establish whether the appeal needed to proceed further.  The tribunal emphasised that the previous directions still applied and urged the mother and father to comply with them as a matter of urgency.

 

 

10.              Some information was forthcoming from the father either before the directions hearing took place on 30 August 2011 or at that hearing. This took the form of one Companies House search and two P60 forms relating to his employment for the tax years ending April 2008 and April 2009.  However, the non-compliance with the directions of 23 December 2010 remained substantial.  District Tribunal Judge Street – who had drafted all the previous directions and remained the tribunal judge throughout the proceedings below – presided at the directions hearing. The father was late in attending. Judge Street pointed out, entirely accurately, that there had been no co-operation from either the mother or the father. I note that by now this was some 8 months after the initial directions and also note that neither the mother nor the father had in that time written in to say they had difficulty in supplying the information sought by the directions. 

 

11.               Having heard from both the mother and the father, the tribunal told them that they had six weeks to comply with the earlier directions. The father was also directed to provide evidence that the companies put in issue by the mother were dissolved, and he was also told to provide the final accounts, or the working accounts, as well as the bank statements for one of his previous companies which he said had dissolved in 2009.

 

12.              The written directions made that day by the tribunal set these requirements out in full. For example, the father was directed to provide a written statement of the facts of his income, source of income and status in the course of 2010, and to provide the full company accounts for or ending in the year ending 31 August 2010 and the previous year for two named companies and any other companies in which he was concerned as owner, manager or director during that time. If no such accounts had been prepared, he was told to produce working drafts and computer records. The father was also directed to provide his bank statements for the period of the above accounts and to provide his tax returns, the tax calculations and the assessments to tax for the years ending April 2008 and April 2009.  The directions again stressed that if the parties had difficulty in complying with the directions they should do the best they could and be ready to explain any difficulty to the tribunal at the hearing.

 

13.              The father then applied for these directions to be varied, in a letter received by the tribunal on 21 September 2011.  Ignoring irrelevances (e.g. the father did not understand what the threat to “strike out” the mother’s appeal meant and so thought she was not being barred if she did not cooperate whereas such a threat did apply to him), the father said that one of the companies had been struck off the company register and had no accounts for the last year of its trading as it was dissolved by companies house on 2 June 2010. On this basis the father argued that it would be impossible to produce accounts for the period requested in the last adjournment notice, and he also argued the accounts for this period were irrelevant. It is not immediately apparent why a company being struck off in June 201o would mean it could have no accounts for or ending in the year ending 31 August 2010. Of more note, perhaps, is the fact that the directions also sought the accounts for the previous year (i.e. for or ending in the year ending 31 August 2009), and the application to vary does not address this.  Moreover, the father’s application to vary the directions did not address why working accounts could not be produced.

 

14.              The father in this application to vary also referred to the fact that requiring both him and the mother to produce the Form E (of over 500 pages) was unnecessary duplication and thus a waste, and he asked that that requirement fall only on the mother. Lastly, relevantly, he referred to the time he needed to attend to his divorce proceedings (from the mother) and his work, and he asked that because of this the mother’s appeal to the tribunal be fully adjourned until such time as the divorce proceedings were concluded.

 

 

15.               Judge Street on 11 October 2011 refused to vary the earlier directions as requested.  In relation to providing the accounts for the named company that had been dissolved in June 2010, she accepted the father’s variation application as constituting his response to the directions in respect of that company (my emphasis, as other companies were in issue and the variation application did not address them at all), but said “it is not established that no better level of compliance was possible: that will be a matter for the Tribunal to decide”.  She said that the application to adjourn the proceedings until the divorce proceedings had ended was rejected because the decision under appeal was dated 13 August 2010 and concerned the weekly maintenance for children, and it was not in the interests of justice to delay deciding this important matter indefinitely. 

 

16.              The mother then filed two Form Es and their attachments on 18 November 2011. 

 

17.               On 8 May 2012 Judge Street set out further directions on the appeal. By this date nothing further had been supplied by the father.  The directions included, inter alia, the following:

 

“Notwithstanding that [the father] has had more than a year to comply with the directions, and is already subject to a warning that he may be barred if he fails to comply, a final opportunity is now given to him to provide the documentary evidence directed”.

 

The judge then set out in bold, so it could not be missed, UNLESS he now provides the documents directed below within 21 day, he will be barred from further participation in the appeal. She emphasised that the bar would take effect immediately if the father failed to comply in full with the directions given below, and said that they were directions for documents that should be readily available to the father. The relevant directions were for the father to supply, within 21 days of 8 May 2012:

 

(i)                his tax returns, the tax calculation and the assessment to tax for the financial years ending April 2009, 2010 and 2011, and P11Ds for the same periods;

(ii)             the full company accounts for or ending in the year ending April 2011 for one named company and any other company with which he is or was concerned as owner, managing director or director during that time, and in any case the final accounts for the company that had dissolved;

(iii)           the final tax credit award notice, issued after the end of 2010/11 tax year and a copy of the evidence submitted in applying for it; and

(iv)            his bank statements for the Barclay Account identified by the mother as being missing.

 

He was also warned that if he did not provide the income and expenditure sheet as he had been directed to in August 2011 then the mother’s assessment of his income and expenditure was likely to be given weight.

 

18.              The father then responded to these directions in a seven page letter, together with exhibits, dated 25 May 2012. In relation to the above points:

 

(i)                the father said the tax returns for the years to April 2009, 2010 and 2011 were not currently filed because the divorce was very time consuming, but the returns were to be addressed shortly;

(ii)             the company accounts for the first named company were due to be filed at Companies House by 31 May 2012 and “should be available in the next few days”; he was not an owner, manager or director of any other company during that time, save for the second named company; and no final accounts were available for the second named company as it had had no funds to produce any;

(iii)           the tax credits award and information was submitted with the letter. (Having discussed this with the father at the hearing before me, it is clear that the final tax credit award notice award was not submitted. In terms of award letters, all that was submitted was the tax credit award for the period 6 April 2010 to 8 June 2010); and

(iv)            he had not had a chance to apply for copies of the missing bank statements, though he seemed also to question the relevance of such statements.

 

He also said that if he was being requested to provide an income and expenditure sheet then the tribunal had to justify its relevance to the case.

19.              Pausing at this point, it seems clear to me that in none of the four answers provided above did the father comply with the directions of 8 May 2012, and he did not seek to seriously argue otherwise before me.  Moreover, his demand for an explanation of the relevance of the income and expenditure sheet is hardly evidence of his cooperating with the tribunal.

20.             Judge Street held in her directions of 17 July 2012 that the father had not complied with the previous directions, and she was plainly entitled to so.  Those directions simply declared that the father had become barred automatically on his not complying with the earlier directions.  However, Judge Street did set out in these 17 July 2012 directions that the father could apply to be reinstated.  She said:

 

“He can support an application for reinstatement by providing either the documents as directed or final drafts or accountants working papers, if that is the best he can do.  The [first named company] accounts he reports as due to be filed for year ending 31 08 11 by 31 05 12, should now be available.  It is not clear why the bank statements directed or the income expenditure statement have not been produced. He is still directed to produce the bank statements.

 

If the father does not make a successful application for reinstatement, he will not be permitted to participate at the hearing. It is in the interests of a fair and just outcome that he now produces documents as directed and asks for reinstatement.  A very late application may not be granted.”

 

I would simply add my own comment here that even on his own case as set out in his letter of 25 May 2012, both the tax returns and the company accounts for the first named company ought to have been available by now.

 

21.              The appeal was fixed to be heard on 11 December 2012. The father was evidently notified of this date because in a letter dated 30 November 2012 he wrote to the First-tier Tribunal’s offices asking for a full copy of the appeal documents.  It is evident from what later transpired at the hearing that this letter was not received by the tribunal before the hearing.  The copy of this letter (and the enclosures that went with it) on the tribunal’s file was faxed on 6 December 2012: why it did not then reach the tribunal on 11 December 2012 is unclear.

 

22.             The father’s letter of 30 November 2012 referred to being excluded from defending himself “despite numerous letters including the attached”. The first letter attached was dated 8 August 2012. It was from the father to the First-tier Tribunal’s office. It was evidently written after the tribunal’s directions of 17 July 2012 as in this letter the father asks to be reinstated. The letter provides none of the information sought in the tribunal’s previous directions. As I have noted above this is puzzling given that even on his own case by then the father ought to have had the tax returns and the company accounts for the first named company. Nothing is said in this letter about why the tax returns and company accounts (or draft accountants or accountant’s working papers) have not been made available, nor is anything said in this letter about the bank statements (which again ought to have been available by now) or the income and expenditure sheet.  In short, this letter did nothing to make good the defects that had led to the father’s barring in the first place.  This letter ended by the father asking to be reinstated “since to ‘bar’ myself at this stage fr0m the questions asked is not a fair response, nor would it result in a fair hearing” and his asking that the points raised in his letter of 25 May 2012 be considered.

 

23.             The letter of 25 May 2012 was also attached.  This would seem to be an amended form of the letter of the same date discussed in paragraph 18 above.  I say amended because this second 25 May 2012 letter is identical to the first 25 May 2012 letter save that it does not contain the five numbered paragraphs (numbered 1) to 5)) that appeared on the first page of the first 25 May 2012 letter nor does it have the sixth paragraph that appears at the top of the second page of the first 25 May 2012 letter. My comments in paragraph 19 above, however, apply just as equally to this 25 May 2012 letter. In short, the “points raised” in the second 25 May 2012 letter did not address the deficits in the father’s response to Judge Street’s directions.   

 

24.             The hearing took place on 11 December 2012. The father attended with his father, as did the mother and a presenting officer for the Secretary of State. It is apparent from the typed record of proceedings that the tribunal was not aware of the father’s letter of 30 November 2012 asking to be reinstated but it heard an oral application from the father to be reinstated.  Despite what he had said earlier, the father had not produced or filed the May 2011 accounts for the first named company nor had he brought any working accounts with him to the hearing. He also had not done the “last tax return”, or so he believed. The father was then asked why he was making the application to be reinstated, to which his response was that a judgment was being made about him and it was “only fair I should be here and able to take part”. The tribunal pointed out that the father had not cooperated, to which his answer was that he had submitted payslips to date. 

 

 

 

25.              The tribunal then adjourned for a short period to consider the reinstatement request. On return it informed the father that the request had been refused. The record of proceedings records this oral decision as follows:

 

“Have reflected very conscientiously on this because it has enormous implications for you. But you have not cooperated at all, and as a result we don’t have the paperwork in front of us. It would be quite wrong to give you more time and we are going to proceed and you remain barred.

 

[The father] is asked to move to the back of the room and he does so with his father. He is allowed to remain as a member of the public but not to take part.”

 

 

The tribunal then proceeded with the hearing with the mother and the presenting officer.

26.             The tribunal’s decision of 11 December 2012 was to allow the appeal, set aside the Secretary of State’s decision of 13 August 2010 and replace it with a decision that the father’s liability for chid support was to be calculated on the basis that relevant to the effective date he had gross earnings of £60,000 (per annum).  The tribunal’s Summary Reasons, which I set out in full, were as follows.

 

“[The father] failed to cooperate with the Tribunal and was barred from participating in the proceedings. He had more than two years to comply with directions for disclosure and did not comply, nor was he unable to comply.  We are satisfied that he intended to conceal his financial position from the Tribunal and the Secretary of State.

 

He is the owner/director of [the first named company], a company providing point of sale equipment for bars, with bespoke programming.  He employs two programmers besides himself.  The market is sophisticated. Significant sums go through the business and we anticipate that earnings generated are high, outgoings low.  He and his employees work from home.

 

We do not accept the payslip evidence, which was clearly directed at disclosing a low income.  We are satisfied that he is earning £60,000 gross by way of earnings from his company, that being the level of earnings, pitched at its lowest, that would have satisfied a commercial lender to lend the monies he paid pursuant to the divorce here.  He had denied having capital to fund that payment and he did not sell his property to fund it. He must have produced accounts to obtain that mortgage.

 

The evidence of lifestyle costs directly supports that finding – see pages 128-129, [the mother’s] evidence. That is understated.  Examination of the personal bank statements shows substantial leisure expenditure and expenditure on non-essentials, and we accept the account of foreign holidays, for example Thailand and Bali.

 

Given that finding in respect of income, we do not make a variation.

 

We recommend that the Secretary of State requests full accounts in future rather than relying on payslips: there is clear evidence here of manipulating information. [The father] for example sets the mortgage costs on his rental property against the income for tax purposes, although he acquired the property free from mortgage and did not incur costs in buying it.  We note too no evidence of proper statutory deductions in respect of wages paid in the accounts – sums are drawn in cash, without any evidence or remittance being made to HMRC.”

 

27.              Judge Street in a decision dated 16 January 2013, and on applications from the father (in letters dated 16 and 31 December 2012 ) refused (again) to reinstate the father and refused to set aside the tribunal’s decision of 11 December 2012.  She gave as her reasons:

 

“The Tribunal declined to reinstate him…and he has no standing to apply for set aside.  Having regard to the overriding objective, given the warnings given and the length of time over which he failed to comply with directions, the interests of justice do not require that he is reinstated and that applications for set aside and rehearing allowed to proceed. A case about weekly maintenance for a child took over two years. The interests of justice require finality.” 

 

On the face of it the tribunal’s reasoning here would seem  to proceed on this basis that as the father had been barred and not reinstated there was no jurisdiction for him to apply for a set aside. However the tribunal’s reasoning does seem be based upon the father having a right to apply to be reinstated.  It is very arguable that the father’s letter of 16 December 2012 (pages 726-730) was also seeking to challenge by way of appeal, as well as set aside, the tribunal’s decision of 11 December 2012.

 

 

28.             When the father then sought to challenge the 16 January 2013 decision in a letter dated 2 February 2013 he was informed by the First-tier Tribunal’s office that the judge could not enter into correspondence with him and that she had nothing to add to the documents already issued.  A further letter from the father to the First-tier Tribunal dated 11 February 2013 did not elicit any reply.

 

29.             I shall assume for the purposes of the arguments before me that the tribunal’s actions in response to the father’s letters of 16 December 2012 and 2 February 2013 amounted to the tribunal determining that it had no jurisdiction to treat the father’s letters as a request for a statement of reasons for the tribunal’s decision or an application for permission to appeal against that decision.

 

30.             Having been rebuffed by the First-tier Tribunal the father applied directly to the Upper Tribunal and I gave him permission to appeal. I said this, inter alia,  when giving permission to appeal:

 

“I am giving permission to appeal because of the significance and wide importance of the issues that arise on this appeal, namely where a party has been barred by the First-tier Tribunal from taking further part in the proceedings what is the scope of that bar and what effect, if any, does the bar have on the barred person’s ability to challenge decisions then made by the First-tier Tribunal.

 

As the First-tier Tribunal refused to reinstate [the father] and thus took the view he had no standing to apply for a set aside  (and presumably has taken the view that he also had no standing to seek a statement of reasons for tribunal’s decision(s)), I also waive the requirements under rule 21(2) and rule 21(5) of the UT Rules that a renewed application for permission to appeal to the Upper Tribunal may only be made if the person has applied for and been refused permission to appeal by the First-tier Tribunal and has a statement of reason for the tribunal’s decision(s) that are being sought to be challenged. I also, in so far as it is necessary, extend the time for the application(s) for permission to appeal to be made to the Upper Tribunal. 

 

I wish to emphasise, however, that I have given permission to appeal because of the important and difficult issues that arise around what rights a person who has been barred from taking further part in the proceedings has in terms of onward appeal and the steps associated with exercising that appeal right.  Those issues stand independent from the issue of whether the First-tier Tribunal erred in law in deciding that [the father] had a gross income at the relevant time of £60,000.”

 

31.              These proceedings were then delayed to await Upper Tribunal Judge  Rowland’s decision in ZB –v- SSWP (CSM) [2013] UKUT 367 (AAC), a case which was also concerned with the effect of respondent being barred from taking further part in the proceedings.  The parties then having made their submission on this appeal, I heard a hearing at which the father attended and represented himself, the mother neither attended nor was represented, and the Secretary of State was represented by Mr Cooper, solicitor.

 

Relevant background – law

 

32.             The decision to bar the father was made under rule 8 of the FtT Rules. This provides as follows:

“8.—(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.”

 

The decision to bar the father was made by the tribunal pursuant to rule 8(1) as modified by r. 8(7)(a), and the decision not to “reinstate” the father was made pursuant to r.8(5) as modified by r.8(7)(b).

 

33.             The language used in rule 8 is important. The effect of barring is that the respondent is barred from taking further part in the proceedings.

 

34.             Rule 27 of the FtT rules deals with when a hearing of an appeal must be held.  The general rule, in r.27(1), is that the First-tier Tribunal must hold a hearing if a “party” to the proceedings has asked for one.  However, the First-tier Tribunal may in any event dispose of proceedings without a hearing under r.8. A distinction is thus drawn between disposing of proceedings and barring a respondent from taking further part in the proceedings. That makes sense because the mere act of barring a respondent from taking further part in the proceedings does not, of itself, dispose of the proceedings, as the appeal remains to be decided. On the other hand, striking out the whole of the appellant’s case will have the effect of disposing of the proceedings as there will be no appeal left to be decided.

 

35.              The word “proceedings is not defined in the FtT rules, but “party” is in rule 1 of the FtT rules.  A “party” to an appeal is, for relevant purposes:

 

“(a) a person who is an appellant or respondent in proceedings before the [First-tier] Tribunal;….or (d) if the proceedings have been concluded, a person who was a party under paragraph (a)…. when the Tribunal finally disposed of all issues in the proceedings”[3]

 

A “respondent” means:

 

“(a) in an appeal against a decision, the decision maker and any person other than the appellant who had a right of appeal against the decision…”

 

36.             Rule 28 of the FtT rules complements rule 27 and provides that “[s]ubject to rule 30(5) (exclusion of a person from hearing), each party to proceedings is entitled to attend a hearing”.

 

37.              Rule 30(5) of the FtT rules provides as follows:

 

“(5) The Tribunal may give a direction excluding from any hearing, or part of it—

(a) any person whose conduct the Tribunal considers is disrupting or is likely to disrupt the hearing;

(b) any person whose presence the Tribunal considers is likely to prevent another person from giving evidence or making submissions freely;

(c) any person who the Tribunal considers should be excluded in order to give effect to a direction under rule 14(2) (withholding information likely to cause harm); or

(d) any person where the purpose of the hearing would be defeated by the attendance of that person.”

 

38.             A respondent barred under rule 8 does not, however, appear in rule 30(5). The effect of this, in my judgment, is that where a First-tier Tribunal is obliged to hold a hearing of an appeal (per r. 27(1)) in which the respondent has been barred, the respondent is entitled to attend the hearing (r.28) unless separately subject to a r.30(5) direction excluding him from the hearing, but he cannot take part in the hearing.  And importantly this is because the FtT rules draw a distinction between a being “party to the proceedings” and “taking (further) part in the proceedings”: rule 8 of the FtT rules only leads to the latter and not the former. In other words, barring a respondent from taking further part in the proceedings does not have the effect of him or her ceasing to be a “party” to the proceedings.

 

39.             Once the First-tier Tribunal has decided the appeal, subject to a here irrelevant exception:

 

“the [First-tier] Tribunal must provide to each party as soon as reasonably practicable after making a decision …which finally disposes of all issues in the proceedings…..

(a)  a decision notice stating the Tribunal’s decision;

(b)  where appropriate, notification of the right to apply for a written statement of reasons under rule 34(3); and

(c)   notification of any right of appeal against the decision and the time within which, and the manner in which, such right of appeal may be exercised.”

 

Again, the right to the decision attaches simply to a party to the proceedings and not a party not barred from taking part in the proceedings. 

 

40.             Rule 34 of the FtT rules similarly provides for a party to be provided with a written statement of reasons for the First-tier Tribunal’s decision on application.

 

41.              Likewise, rule 37 of the FtT rules (on procedural set aside), confers the ability to seek a set aside on a party or their representative.  Rule 37(2)(c) provides as one of the conditions for set aside (in addition to it being “in the interests of justice” to set aside), that “a party… was not present at a hearing related to the proceedings”, and not that the party was present but unable to take part in the hearing, which again seems to be drawing a distinction between being a party and a party who is barred from taking part in the proceedings.

 

42.             Rule 38 of the FtT, which is concerned with applying for permission to appeal, does not, however, refer to “party” but instead is concerned with a “a person” seeking permission to appeal. That may be reflective of the primary right of appeal not being limited to a “party”, which I return to immediately below.  However, on the face of it there is nothing in rule 38 which limits the ability to apply for permission to appeal to a person who has not been barred from taking further part in the proceedings.

 

43.             In child support appeals there are two primary sources for the right of appeal to the Upper Tribunal, which the father was here seeking to effect but which the First-tier Tribunal declined to act on.

 

44.             Section 11(2) of the Tribunal’s Courts and Enforcement Act 2007 (“the 2007 Act”) provides that “Any party to a case has a right of appeal, subject to subsection (8)”. (Subsection (8) has no application.) By section 11(1) of that Act it is provided that:

 

“For the purposes of subsection (2), the reference to a right of appeal is to a right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.”

 

45.              The effect of section 11(2) and (3) of the 2007 Act is that this right of appeal may only be exercised with permission and that permission may be given (first) by the First-tier Tribunal or (then) the Upper Tribunal.

 

46.             What an “excluded decision” is is set out in section 11(5) of the 2007 Act. Following LS –v- Lambeth LBC (HB) [2010] UKUT 461 (AAC); [2011] AACR, I will proceed on the basis that Judge Street’s refusal to set aside and refusal to reinstate decisions, and her refusal to issue a statement of reasons (if that is what she did), are not excluded decisions and therefore are all decision capable of appeal to the Upper Tribunal, as too was the substantive decision on the appeal dated 11 December 2012. 

 

 

47.              It may even be arguable following LS that a First-tier Tribunal’s decision refusing permission to appeal is, in theory at least, a decision that falls within section 11(1) of the 2007 Act (it not being an excluded decision). However, that would then potentially give rise to endless applications for permission to appeal in respect of decisions refusing permission to appeal and would rob the ability to seek permission again from the Upper Tribunal of much practical effect, and therefore the better view may be that as a matter of construction section 11(1) does not cover the discrete refusal of permission to appeal decision. I also struggle to envisage where a need to challenge by way of s.11 appeal the First-tier Tribunal’s decision refusing of permission would ever arise given the ability, conferred by s.11, to renew the application for permission to appeal to the Upper Tribunal.  

 

48.             In any event, the father now has permission to appeal, and so whether the tribunal erred in law in not considering it had jurisdiction to consider his application for permission to appeal becomes a matter that falls to be addressed on this appeal.

 

49.             The word “party” is not defined in s.11 of the 2007 Act. However section 22(1) of the 2007 provides that there are to be rules “to be called “Tribunal Procedure Rules”, governing, (a) the practice and procedure to be followed in the First-tier Tribunal”, and it is pursuant to this section and Schedule 5 to the 2007 Act that FtT rules discussed above have been made.  Taking account of the FtT rules, I simply observe at this stage that there is nothing in the barring provisions in r. 8 of the FtT rules that acted to cease the father being a “party” for the purposes of s.11 of the 2007 Act once he had been barred. 

 

50.             The other primary source concerning who can appeal from the First-tier Tribunal to the Upper Tribunal in child support cases is section 24 of the Child Support Act 1991. Section 24(1)(c) of that Act confers a right of appeal “to the Upper Tribunal under section 11 [of the 2007 Act] from any decision of the First-tier Tribunal under section 20 of this Act” on “any person who is aggrieved by the decision of the [First-tier Tribunal”.  As is apparent, this part of the Child Support Act 1991 was amended by the 2007 Act.  Accordingly, the above wording of s.24(1)(c) must be identifying an additional category of person with a right of appeal (where necessary) to the Upper Tribunal to that of “party” under the 2007 Act, though only in respect of decisions made by the First-tier Tribunal under section 20 of the Child Support Act 1991. The latter qualification may suggest that an aggrieved person, if different to a party on the appeal, may be limited to challenging the substantive decision  of the First-tier Tribunal on child support liability and is not able to challenge ancillary decisions (such as a refusal to set aside), as those are made pursuant to the 2007 Act and the FtT rules made thereunder. However I have not heard full argument on this point and it is not necessary for me to decide it on this appeal.  

 

51.               On any analysis the father here was a person aggrieved by the tribunal’s substantive decision as to his child support liability made in its 11 December 2012 decision, and I can find nothing in r.8 of the TPR that acts to stop him being an “aggrieved” person. 

 

52.              The decision in ZB –v- SSWP (CSM) [2013] UKUT 367 (AAC) was on facts similar to this case. The father was barred under r.8 of the FtT rules from taking further part in the proceedings, he attended the hearing but was only allowed to do so as an observer, and when he asked for a statement of reasons for the tribunal’s decision and to appeal “the judge took the view that a person barred from taking further part in the proceedings had neither a right to a statement of reasons nor a right of appeal”. The issue Judge Rowland had to address was whether the father had any right of appeal against the First-tier Tribunal’s decision.  In finding he did, Judge Rowland said as follows (at paragraphs [10]-[15]).

 

“The father submits that the words “the proceedings” in rule 8(7) refer to the proceedings before the First-tier Tribunal and he relies on Atos Origin IT Services Ltd v Haddock [2005] IRLR 20 in which the Employment Appeal Tribunal construed the same words in rule 3(3) of the Employment Tribunal Rules of Procedure set out in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171) as referring only to proceedings before the employment tribunal so that a respondent not entitled to take part in the proceedings as a result of failing to enter an appearance was not thereby deprived of its right of appeal.  I acknowledge that five of the eight grounds for taking that approach that the Employment Appeal Tribunal set out in paragraph 13 of its decision may not be applicable in the present case, but the other three can be applied with appropriate changes to the language and statutory references.

 

First, the natural construction of “the proceedings” in rule 8(7) of the 2008 Rules is to the proceedings in the First-tier Tribunal, since those are the proceedings with which the Rules are concerned.  Secondly, neither the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), section 11 of which provides for an appeal to the Upper Tribunal from a decision of the First-tier Tribunal, nor the procedural rules for either tribunal purports to restrict the right of appeal where a person has been barred by the First-tier Tribunal from participating in proceedings.  Thirdly, “[t]here must be some avenue by which a challenge to the decision of [the First-tier Tribunal] on the grounds that it has exceeded its jurisdiction or been guilty of bias can be made by a respondent who has [been barred]” and an appeal on a point of law is a more appropriate procedure than judicial review in the context of the 2007 Act.

 

The Secretary of State has referred me to London Borough of Hackney v Sivanandan [2013] EWCA Civ 22, but that is a less compelling authority both because there the claimant appears to have been “debarred from responding to the claim altogether” under rule 13(1)(b) of the Employment Tribunals Rules of Procedure set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861), which is arguably a narrower bar, and because the Court of Appeal did not directly address the issue that arises in the present case.  Mummery LJ, with whom Rimer and Pitchford LJJ agreed, merely observed that “[a]s the Council was not debarred from appealing, it was apparently able to advance arguments on the appeal as to why the decision below was wrong in law”.

 

The mother, who is not represented, has understandably not referred me to any case law but she has referred to rule 38(7) of the 2008 Rules and submitted that the fact that the First-tier Tribunal did not admit the application for permission to appeal must show that the judge did not consider it to be in the interests of justice to do so.  I do not accept that submission because it seems to me that the application for permission to appeal was not admitted because the First-tier Tribunal considered that it did not have the power to admit it but, in any event, where an application for permission to appeal has not been admitted by the First-tier Tribunal, the applicant may make a fresh application to the Upper Tribunal which must exercise its own judgment as to whether it has jurisdiction and what the interests of justice require.

 

I respectfully agree with the approach to jurisdiction taken by the Employment Appeal Tribunal in Atos Origin IT Services Ltd v Haddock and I am quite satisfied that a person who has been barred by the First-tier Tribunal from taking further part in the proceedings is not thereby barred from appealing.  Moreover, since a major purpose of the duty to give reasons is to enable a party to see whether he or she has grounds for appealing and therefore to give practical effect to the right of appeal, it must follow that a person who is barred from taking further part in proceedings is not barred from applying for a statement of reasons for a decision.

On the other hand, it seems to me that, given the terms of rule 8(8), the fact that a person has been barred from taking further part in proceedings has a bearing on what need be included in a statement of reasons and therefore on what the consequence is of failing to provide one.  It may also have a bearing on how the Upper Tribunal should exercise the power under section 12(2)(a) of the 2007 Act to refuse to set aside a decision notwithstanding that it has found that the making of the decision by the First-tier Tribunal involved the making of an error on a point of law.  It is in this latter respect that the broad interests of justice may be relevant.”

 

 

Analysis and Conclusions

 

 

53.              I am not required to follow ZB, but I respectfully concur with its conclusion and the above reasoning of Judge Rowland. I add the following, however, by way of emphasis or by way of extension to ZB. 

 

54.              As noted above the effect of a respondent being barred under r.8 of the FtT rules is only to limit them from “taking further part in the proceedings”. The barring does not stop them being a “party to a case” under s.11 of the 2007 Act nor does it prevent them being a “person aggrieved” by the substantive decision of the First-tier Tribunal under section 24 of the Child Support Act 1991. Given the clear right of appeal conferred on such persons by this primary legislation, it would in my judgment take very clear words in subordinate legislation to cut down on who has the right of appeal and clear power in the primary legislation enabling such subordinate legislation.  The wording of r.8 of the FtT rules is not clearly to this effect.

 

55.              Moreover, the qualification in section 11(1) and (5) of the 2007 Act is on the type of decision that may be appealed and not who may appeal. It is true that by section 11(8) of the 2007 Act “[t]he Lord Chancellor may by order make provision for a person to be treated as being, or to be treated as not being, a party to a case for the purposes of subsection (2)”, but I am not aware of any relevant order being made under this power and in any event r.8 of the FtT rule is not made under this power. There is also no equivalent to this power in respect of section 24(1)(c) of the Child Support Act 1991.  

 

56.              It may be argued, however, that if “proceedings” in r.8 of the FtT rules means the First-tier Tribunal proceedings generally and the effect of barring under r.8 means from taking further part in the First-tier Tribunal proceedings generally, then although still a party a barred respondent cannot apply for a statement of reasons or permission to appeal (or any other post-decision step), as to do so would involve him taking part in the First-tier Tribunal proceedings.  There seem to me, however, to be a number of compelling answers to this argument.

 

(i)                First, as Judge Rowland noted in ZB, such a reading (if otherwise correct) would cut against the primary right of appeal having much practical effect. Not only Article 6 of the European Convention on Human Rights would have difficulties with such an interpretation of the effect of barring under r.8.

 

(ii)             Second, in what sense is the request for statement of reasons or permission to appeal taking part in the proceedings? The rules in Chapter 3 of the FtT rules – which are concerned, inter alia, with Notice of Decisions (r.33) and Reasons for decisions (r.34) – are addressed to sending the decision or the statement of reasons for decision to a party after making a decision which finally disposes of all issues in the proceedings (r.33) or which disposes of proceedings (r.34). That wording is a powerful indicator, in my judgment, that by that stage the proceedings have ended and with it the effect of the barring under r.8 of the FT Rules, at least for the purpose of these post-decision rules.  Some support for this reading of the FtT rules is provided for by the fourth definition of “party” in r.1(3) of the FtT rules addressed in footnote 3 above.  In other words, “proceedings” in r.8 does refer to the First-tier Tribunal proceedings but not all stages of them and, in particular, not the post-decision stages of the appeal.

 

(iii)           Third, if the point made immediately above is not correct, and “proceedings” means all stages of the First-tier Tribunal proceedings up to and including the post decision steps set out in rules 33-34 and 37-38 of the FtT rules, and therefore seeking a statement of reasons or permission to appeal could constitute taking part in the proceedings contrary to the barring order under r. 8, then in order to meet Article 6 of the ECHR and not frustrate the right of appeal conferred by statute the First-tier Tribunal ought in all such cases lift the r.8 bar prior to dealing with the statement of reasons or permission to appeal request. 

 

(iv)            A further consideration becomes relevant here and supports the argument made under (ii) above. This concerns the time limit for applying for reinstatement/lifting of the bar under r.8 of the FtT rules. This is one month from the date on which the barring notification was sent to the respondent (r.8(6)).  It is very difficult to see how this time limit sensibly or properly fits with the one month time limit for applying for reasons (r.34(4)), set aside (r.37(3)) or permission to appeal (r.38(3)) if lifting the bar is a condition precedent to those applications proceeding, especially as nothing in rules 34, 37 or 38 address or modify the one month time limit in r.8(6).

57.              The view taken above is supported, in my view, if consideration is given to what happens in the case of the appeal proceedings being struck out under r.8. It seems clear that the barring provisions in r.8 are seeking to put respondents in the same position as appellants, insofar as that is possible. There is no point in striking out the respondent or its response as the appeal is from a decision of the respondent and that remains to be determined on the appeal. Hence the wording of barring from taking further part in the proceedings in r.8(7)(a) and “need not consider any response” in r.8(8).

58.             However, if the proceedings are struck out under r.8 then it cannot sensibly be argued that that means all of the First-tier Tribunal proceedings such that the provisions in Part 4 of the FtT rules are rendered of no effect in strike out cases and leaving the appellant whose appeal proceedings have wrongly been struck out with no effective remedy before the Upper Tribunal. Moreover, such an approach would stand contrary to the unanimous view of Three Judge Panel in LS –v- Lambeth that the correct method of challenge to a strike out decision is by way of appeal under section 11 of the 2007 Act and not judicial review. However, if it is the case that an appellant whose appeal proceedings have been struck out is entitled to ask for a statement of reasons and permission to appeal so as to appeal to the Upper Tribunal, there is no rational basis for those same rights not attaching to a barred respondent.

 

59.              In my judgment the better view is that once the tribunal made its decision on 11 December 2012, and therefore had (per r.33(2)) made a decision which finally disposed of all issues in the proceedings, then the barring on the father under r.8 fell away automatically. If this is wrong, however, then the tribunal erred in law in my judgment in not lifting the bar on the father to enable his statement request, set aside request and application for permission to appeal to be progressed

 

60.             Given the above conclusion, in my judgment after the tribunal made its decision on 11 December 2012 the father was entitled to apply for: (a) a set aside under rule 37 of the FtT rules, (b) a statement of reasons for the tribunal’s decision under r. 34 of the FtT rules, and (c) permission to appeal to the Upper Tribunal under r. 38 of the FtT rules, and the tribunal erred in law in deciding that he had no jurisdiction to make such applications. (The tribunal did consider it had jurisdiction to consider lifting the bar and decided against so doing.) 

 

61.              These rulings are made in the course of the father’s appeal, for which I have given him permission and waived any procedural requirements that may have lain in his way, against (i) the tribunal’s substantive decision of 11 December 2012; (ii) its refusal to lift the bar decisions of 11 December 2o12 and 16 January 2013; (iii) its refusal to (consider) set aside decision of 16 January 2012; and (iv) its decision refusing to issue him with a statement of reasons dated 9 January 2013 (as notified to him on page 732)[4].  The tribunal also refused (to consider giving) the father permission to appeal but as I have given him permission to appeal, and for the reasons given in paragraphs 47-48 above, no separate issue arises in respect of that “decision”. 

 

62.             I turn now to analyse the lawfulness of each decision of the tribunal, taking them in a somewhat different order to that set out immediately above. At the hearing before me the father only sought to challenge the refusal to lift the bar decision(s) and the substantive decision made by the tribunal on 11 December 2012. I will, however, consider all decisions that may be in issue.

 

Refusal to lift bar

 

63.             I can find no error of law in the tribunal refusing to lift the bar it had imposed on the father under r.8 of the FtT rules.  The father’s arguments did not really extend beyond it was unfair to decide the appeal without his input, but given the history of non-compliance by the father set out in paragraphs 8-19 above the tribunal was fully entitled, in my judgment, to bar the father from taking further part in the proceedings.  He had been given ample opportunity to put in the evidence or his best approximation of it but had failed to do so.

 

64.             Judge Street on barring the father then very fairly set out in the directions of 17 July 2012 what steps the father could take to be reinstated/have the bar lifted. Even if his subsequent letters did to reach the tribunal before the hearing on 11 December 2012, from my reading of them (as set out in paragraphs 22-23) they did not furnish the information sought by the tribunal and so provided no proper basis for the appeal being reinstated. Their omission from what was before the tribunal on 11 December 2o12 did not therefore lead the tribunal into any material error of law.

 

65.              The father was allowed to attend the hearing on 11 December 2012 and was, quite properly, allowed to advance reasons for the bar being lifted. I can find no legal error in the tribunal’s rejecting the reasons put forward as good enough to allow the bar to be lifted. Other than saying he had produced his payslips, even by the time of the hearing the father had not produced any of the key information sought from him, including the tax returns and company accounts for the first named company which he had long since said would be available.

 

66.             I therefore can find no basis for concluding that the tribunal erred in law in deciding on 11 December 2012 not to lift the bar. It heard from both the mother and father on this, it gave the matter anxious consideration, and it has given adequate reasons explaining why it did not lift the bar. In short, the father had been woefully non-compliant with the directions the tribunal had properly placed upon him and he continued to be so.

 

67.              The tribunal then refused (again) to lift the bar on 16 January 2013.  It is not apparent that r.8(5) of the FtT rules allows for more than one application for reinstatement or lifting of the bar, but I shall assume it does for the purposes of this decision.  On the alternative construction of the FtT rules set out in paragraphs 56(iii) and 59 above, it may be said that the tribunal erred in law on 16 January 2013 in not lifting the bar so as to enable the father to seek to appeal its decision to the Upper Tribunal. However, as the father has been able to appeal to the Upper Tribunal, even if this is the correct construction of the FtT rules it does not merit setting this decision of the tribunal aside. Absent these considerations, however, I can find no error of law in the tribunal’s decision not to lift the bar. The father had not complied with the tribunal’s earlier directions and even if he had the tribunal had by now made its decision.

 

68.             The father made a further argument here that the tribunal erred in law by not allowing his father to speak for him. There is nothing in this point. The barring power in r.8 would be robbed of much of its force if it could be circumvented by appointing someone else to act on the barred party’s behalf. Moreover, a representative is just that: acting as a representative of the respondent. The effect of barring a respondent from taking further part in the proceedings is that he and any representative of his (or any witnesses he wished to rely on) cannot take part further part in the proceedings.  

 

Refusal to set aside

 

69.             The tribunal refused to entertain the application for procedural set aside under r.37 of the FtT. To that extent it erred in law, for the reasons given above.  However, that error was not material to the decision not to set aside because, in my judgment, it was inevitable that any set aside application even if properly considered would have been refused.  I say this because the father was present at the hearing of his appeal (though not allowed to take part), so r. 37(2)(c) of the FtT rules was not met. Further, although some documents were missing (see paragraph 21 above), these were immaterial to the decisions the tribunal made (for the reasons given in paragraphs 22-23 and 64 above) and therefore it would not have been in the interests of justice to set the 11 December 2012 decision on the appeal aside.

 

Refusal to issue statement of reasons

 

70.             For the reasons given above, I consider that the tribunal erred in law in considering it had no jurisdiction to provide the father with a statement of reasons for its decision.  If it had not provided the father with any reasons at all then the remedy may either have been to require the tribunal to provide such reasons or simply set its decision of 11 December 2012 aside on the basis of its being unreasoned. However, as in ZB, there were summary reasons given here: they are set out in paragraph 26 above.  In my judgment, as in ZB, the correct approach is to consider whether, in the context of r.8(8) and the power to “summarily determine any or all issues against the respondent”, the summary reasons given are adequate to justify the substantive decision.

 

Substantive decision of 11 December 2012

 

71.               In my judgment the tribunal did not err in law the substantive decision it came to – that the father’s child support liability had to be assessed on gross earnings per annum of £60,000 – nor did its reasons fail to adequately explain why it came to this conclusion.

 

72.              I respectfully agree with and endorse Judge Rowland’s view in ZB that “given the terms of role 8(8), the fact that a person has been barred from taking further part in the proceedings has a bearing on what needs to be included in a statement of reasons”.

 

73.              The precise scope of the r.8(8) wording “may summarily determine any or all issues against that respondent” may need to be worked out in another case.  On the one hand, if the barring power is intended to place a properly barred respondent in a place as close as possible to an appellant whose appeal proceedings have been properly stuck out, then as in the latter the effect of the strike out is that First-tier Tribunal will not be deciding the substantive appeal and the decision under appeal will be confirmed, it may be argued that similarly in a barred respondent case the appeal ought just to be allowed (the First-tier Tribunal having summarily determined all relevant issues against the respondent). On the other hand, as has been pointed out in SL –v- SSWP and KL-D [2014] UKUT 128 (AAC):

 

“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.

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.”

 

74.              Whatever the correct scope of r.8(8) may be, I am quite satisfied that the tribunal here did not err in law in applying it. The tribunal properly applied its collective mind to the evidence before it and has reasoned out rationally and adequately (albeit in summary reasons) on the evidence why the father had a gross income of £60,000 per annum. 

 

75.              The father’s main argument against the tribunal’s decision was that he did not in fact have this income and his income, as shown by this payslips and P60’s, was £15,000 per annum. However, this is an argument on the facts and not the law, and it is an argument on the facts that was rejected by the tribunal.  It also fails to have regard to the tribunal finding, justified in my judgment given the father’s conduct in not providing relevant information to the tribunal, that he was concealing his financial position from the tribunal and the Secretary of State.

 

76.              The father’s only focused complaint was that the figure given by the mother on page 127 as to the mortgage outgoings of over £1,000 a month was inflated. However, pages 171, 173 and 181 show three different mortgage accounts which totalled over £1000, and the figure given by the father on page 85 as to mortgage outgoings is consistent with these figures.  This ground therefore provides no basis for an error of law challenge to the tribunal’s decision.  On the evidence before it the tribunal was entitled to come to the decision it did and, in the context of this case, it has provided adequate reasons for its decision.

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

 

Dated 23^rd June 2014