[2005] NISSCSC: CSC1/05-06 (19 May 2005)

Decision No:  CSC1/05-06

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Application to set aside a determination of the
Chief Social Security Commissioner
dated 16 April 2004
Application for leave to appeal
and Appeal to a Child Support Commissioner
on a question of law from a Tribunal’s decision
dated 19 February 2003

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This case begins as an application to set aside a determination dated 16 April 2004 of the Chief Commissioner.

2.	The application for setting aside was on 22 April 2004, being within one month from the date on which the Commissioners Office gave the written notice of the decision to the applicant. The applicant is the father and non-resident parent of the relevant children.  Under regulation 6 of the Child Support Commissioners (Procedure) Regulations (Northern Ireland) 1999 this matter is being dealt with by me and not by the Chief Commissioner.

3.	The Chief Commissioner decided not to accept the father’s late application for leave to appeal against a decision dated 19 February 2003 of an appeal tribunal.  It is common case between the parties that the application for leave to appeal was late.  I held a hearing of the application to set aside the Chief Commissioner’s decision which was attended by the father, represented by Mr Dunne of counsel, instructed by Messrs D…, McC… and Co, Solicitors.  Mr Colhoun of that firm also attended and gave evidence.  The Department was represented by Mr Gough of Decision Making Services branch (DMS).  The mother and resident parent did not attend.  Neither did her representative Mr S….  However, the mother did make written representations on the application to set aside by letters dated 1 September 2004, 16 January 2005, 19 February 2005 and 22 February 2005.  Written representations had also been made on behalf of the father and the Department.  Following the hearing I afforded the parties an opportunity to make further submissions as to matters which might form the subject of directions to the new tribunal if I should set aside the Chief Commissioner’s decision, accept the late application for leave to appeal, grant leave, set aside the Tribunal’s decision and remit the matter to a new tribunal for re-hearing and re-determination.  The father’s solicitors responded by letters of 24 February 2005 and 1 March 2005 and Mr Gough by letter of 24 February 2005.  The mother responded by letter received in the Commissioners Office on 18 March 2005.

4.	The grounds of the application to set aside the Chief Commissioner’s determination were that a document entitled “Findings of Fact material to decision” with paragraphs numbered 3:1 to 3:13 and Tribunal Reference BE75/O1C had not been sent to the father until same was forwarded to him under cover of a letter sent on 6 April 2004 in connection with a different file involving the same parents.  This document, in the submission of the father’s solicitors, was referred to in the determination of the Chief Commissioner.  It was further submitted that the solicitors not having had sight of this document had caused considerable confusion in the preparation of the appeal.  Reference was also made to the difficulties in deciphering the hand-written decision notice which compounded the difficulties caused by the lack of the “Findings of Fact”.  The solicitors further submitted that the decision of the Tribunal was in error.

5.	The factual background to this matter, briefly, was that the appeal before the Tribunal was only one of a series of appeals in what regrettably appears to be a number of disputes between these parents over child support.  It appears that at the hearing there were at least two applications for departure directions involving these parents before the Tribunal on 19 February 2003.  One (the instant case) was an application by the mother and the other by the father.  The Tribunal’s reference number on the application by the mother was BE75/O1C.  Its reference number on the application by the father was BE6/O3C.  The same Tribunal dealt with the two applications on the same day.  To some extent it allowed both applications.  

6.	The mother has appealed to the Commissioner in the case with Tribunal reference BE6/O3C and the father is endeavouring to do so in the case before me (Tribunal reference BE75/O1C).

7.	The Tribunal’s decision notice was issued on 7 May 2003 in the instant case.  On 17 June 2003 the father was sent a copy of documents respectively headed “Record of Proceedings of Appeal Tribunal” and “Reasons for Decision”.  These documents bear Tribunal reference number BE75/O1C.

8.	I have at present two observations to make on those documents.  The first relates to the fact that the Tribunal is only obliged to issue a decision notice, a record of proceedings and a statement of reasons.  The statement of reasons should, however, be complete.  In this case when the paragraph numbering is considered it is obvious that something is missing.  The final paragraph on the document headed “Record of Proceedings of Appeal Tribunal” is numbered “2-7”.  The first paragraph of the document headed “Reasons for Decision” is “4.1”.  Some paragraphs are obviously missing.  All the obligatory documents were issued in this case but one, the statement of reasons, was obviously incomplete.

9.	The second observation relates to the fact that, on reading the statement of reasons, the Appellant is referred to as being female (in other words the mother) and she is described as not having “managed to meet the requisite standards of the balance of probabilities herein” (para 4.3) and as having “failed to discharge her duty by failing to deliver appropriate evidence”.  I find it difficult to relate the statement of reasons to the Tribunal’s decision and to the mother having succeeded in obtaining a departure direction on at least some of the grounds on which it was sought (as she did in this case).

10.	The notice of decision was hand-written.  The father’s solicitor sought a “legible copy” of the hand-written decision notice by letter to the “Clerk to Child Support Commissioner” at the office of the Tribunal.  This letter was dated “30 June 2001” but I accept that to be a clerical error and that the date of writing of the letter was 30 June 2003.  The letter also mentioned an intention to appeal.  Leave to appeal to a Commissioner was sought on 2 July 2003 (within time) and refused by a legally qualified panel member (LQPM) on 24 July 2003.

11.	On 29 September 2003 leave to appeal was sought from a Commissioner.  This application was out of time and required special reasons to be admitted.  It was this application which the Chief Commissioner refused to admit.

12.	In the course of the application to set aside the Chief Commissioner’s determination various other matters have come to light.  A letter dated 14 November 2003 was sent at the direction of the Legal Officer to the Commissioners (dealing also with the appeal in Tribunal reference BE6/03C) asking whether there was a section missing from the Record of Proceedings and Statements of Reasons in both cases “a section marked 3-1 etc in BE75/O1C and a section marked 6-1 in BE6-03C”.  Regrettably the Commissioners Office had to write on two further occasions to the Tribunal Appeals Service before a reply was received.  Eventually a reply was received by letter dated 27 February 2004 from the LQPM.  This letter enclosed “full” copies of determinations in both cases.  It also stated:

“You will note that the “missing paragraph’s” are Findings of Fact which are usually not released.  I have no objection to releasing them on this occasion.”

13.	In both cases the documents which were produced include sections headed

“Findings of Fact Material”

 which are noted as

“Not to be released to any party under any circumstances”.

14.	These sections appear to contain the missing paragraphs referred to above.

15.	In the instant case those paragraphs make clearer why the Tribunal reached the decision which it did.  However it does not appear that the relevant sections were issued to any party in the instant case until same were sent to the parties by letter dated 6 April 2004 from the legal officer.  That letter was written in connection with the case with Tribunal reference BE6/03C.  It does appear that the documents were before the Chief Commissioner when he made his decision in the present case and that he also had sight of the LQPM’s letter of 27 February 2004. When the Chief Commissioner made his decision no party had been afforded an opportunity to make submissions on the documents headed “Findings of Fact” nor on the fact that these documents had not been released to the parties as part of the Statement of Reasons in this case.

16.	By letter dated 6 May 2004 the father’s solicitors sought setting aside of the Chief Commissioner’s determination.  Their grounds for so doing were that the Chief Commissioner assumed that their client had received the missing paragraphs as part of the statement of reasons when in fact he had not and that the withholding of the missing paragraphs meant that their client had no understanding of the factual situation nor of how the Tribunal’s decision had been arrived at.  On that basis the solicitors submitted that the criteria in regulation 28(1)(a) of the Child Support Commissioners (Procedure) Regulations (Northern Ireland) 1999 (the Procedure Regulations) had been satisfied.  They further submitted that the criteria in regulation 28(1)(c) of those Regulations were satisfied and a Commissioner was therefore permitted to consider the application to set aside.

17.	The submission in relation to regulation 28(1)(c) was based on both the non-disclosure of the relevant section and the “illegibility” of the hand-written decision, Regulation 28(1) permits setting aside of a decision in proceedings  “where it appears just” to do so on certain grounds:-

“(a)	  a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or his representative, or was not received at an appropriate time by the Commissioner; or

(b)  … not relevant

(c)  there has been some other procedural irregularity or mishap.”

18.	The Department initially opposed but later supported the application for setting aside.  In its written skeleton argument dated 17 February 2005 the Department submitted that there were two versions of the statement of reasons one of which at paragraph 4.2 did not refer to the “Findings of Fact”.   The other did make such reference at the same paragraph.  The one without the reference to the findings of fact was the one which was issued to the father.  In the Department’s submission it was impossible to ascertain whether or not the un-issued version was a draft or whether the LQPM had intended to have the additional words contained within that version included in the copy sent to the father.

19.	The Department submitted that in light of this and in the interests of natural justice I might wish to consider setting aside under regulation 28(1)(c).  It submitted further that if I did so I could take into consideration, in deciding whether or not there were specific reasons to admit the father’s late application for leave to appeal, certain errors which it submitted the Tribunal had made.

20.	The mother opposed the application on the basis that the decision notice was reasonably easily decipherable, albeit handwritten.  She also disputed certain of the Department’s submissions as to the errors in the Tribunal’s decision though herself indicating certain potential errors in the decision.

21.	I have first to consider my jurisdiction in this matter.  In other words I have to decide whether or not I have power to set aside the Chief Commissioner’s decision.  The grounds on which a Commissioner’s decision can be set aside are set out in regulation 28.  I have to consider first an issue which arises as to whether regulation 28 applies to a determination not to admit a late application for leave to appeal and if so whether or not any of the grounds in regulation 28 were satisfied.  

22.	The first issue is therefore whether regulation 28 applies to a determination not to admit a late application for leave to appeal.  Regulation 28 applies to a “decision in proceedings”.  It is quite clear from the terms of regulation 26 that decisions and determinations are two different concepts.  However, regulation 29(1) provides that

“In regulations 27 and 28, the word “decision” shall include determinations of applications for leave to appeal as well as decisions on appeals.” [My emphasis]

	It therefore extends the concept of a “decision” beyond that of a decision determinative of the substantive issues.

23.	It is quite apparent that the Chief Commissioner’s determination was not a decision on an appeal.  Was it then a determination of an application for leave to appeal?  There is authority in Great Britain decision (CDLA/390/01) for the proposition that a refusal to admit an application for lack of special reasons is not itself a determination of an application, merely a refusal to accept the application.  It is not necessary, for reasons which will become apparent, that I decide this first issue.  This is because I consider that Commissioners have certain implied powers as indicated below.

24.	In decision CCS/910/1999, Mr Commissioner Rowland referred to the possibility of the Commissioner having certain implied powers.  He referred to the case of Lloyd v McMahon [1987] AC625, 702-03 where Lord Bridge of Harwich said “ … it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness”.

25.	As Mr Commissioner Rowland stated in CCS/910/1999 a power to set aside a decision may be a procedural safeguard.  He referred also to section 28ZD of the Child Support Act 1991.  Subsection 1 thereof is an enabling section giving power to make regulations making certain provisions including the setting aside of any decisions.  Subsection (2) thereof provides:-

“Nothing in subsection (1) shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that subsection”.

	The Northern Ireland equivalent is Article 28ZD of the Child Support (Northern Ireland) Order 1991 and is in identical terms.

26.	Mr Commissioner Rowland referred further to regulation 5(6) of the GB Commissioners Procedure Regulations (the Northern Ireland equivalent has the same numbering) which relates to the “General Powers” of a Commissioner and which provides:

“Nothing in these Regulations shall affect any power which is exercisable apart from these Regulations”.

27.	Mr Commissioner Rowland set aside his own refusal of leave basing his decision on

“… the broader implied power to adopt a procedure that is necessary to attain fairness”.

28.	I also consider that such implied power exists.  However, as Mr Commissioner Rowland says:

“… this should not be taken to amount to a general licence to renew applications for       leave to appeal.”

	As Lord Bridge said any implied procedural safeguards are to be “so much and no more … as will ensure the attainment of fairness”.  That means fairness to all parties though there is an inevitable balancing exercise to be carried out.

29.	I ask therefore whether the Chief Commissioner’s refusal to accept the late application for leave was a decision or determination to which the implied power could apply.  I consider that it was.   The Chief Commissioner was not determining an application for leave to appeal.  He was refusing to accept such an application.  His determination was essentially procedural and the implied power to set it aside is essentially a procedural safeguard.

30.	I therefore have to decide whether such implied power should be exercised in this case.  The circumstances upon which the father relies relate largely to the documents headed “Findings of Fact”.  There is no doubt that the document headed “Findings of Fact” contains what was really part of the Tribunal’s reasons for its decision.  Its view of the fact situation was part of its reasoning.  However, it is clear to me that the LQPM did not intend to release the document headed “Findings of Fact” in response to the request for the Statement of Reasons and that the Statement of Reasons must be taken to be the document which the father and the mother originally received (without the Findings of Fact).  However the Statement of Reasons as sent was virtually impossible to relate to this case. It is not disputed that the parties did not receive any version of this document until sent it by this office on 6 April 2004.  I readily, concede that without some version of that document, the decision was virtually incomprehensible.   That  would not of itself have prevented a timeous application for leave being made to a Commissioner an application having been made to the LQPM.  Indeed the very inadequacy of the reasons was a ground for appealing.  

31.	I also take into account that when the “Findings of Fact” were sent to the parties on 6 April 2004 they were sent under a different file heading relating to the mother’s appeal to the Commissioner and were not sent also to the father’s solicitors.  Once the “Findings of Fact” were received both parents made representations based on same.  However neither parent was advised of an opportunity to make such representation prior to the Chief Commissioner’s refusal to admit the late application.  I consider that there were certain procedural mishaps in effect at the time of the Chief Commissioner’s decision.  Firstly, no copy of the document headed “Findings of Fact” had been sent to the father’s solicitor.  Secondly the document headed “Findings of Fact” relating to this case was sent to each parent under this office’s file heading relating to the mother’s appeal.  Thirdly neither party was expressly afforded an opportunity to comment on the document headed “Findings of Fact” and particularly on when it had been received prior to the Chief Commissioner’s determination.  It is not possible for me to ascertain from the Chief Commissioner’s determination whether or not he was aware that the parties only received this document after it was sent on 6 April 2004 and that, at that time, the father’s solicitors had not received it.

32.	I consider also that if this document had been sent to the father’s solicitor prior to the Chief Commissioner’s determination with an express opportunity afforded to make observations on it, such observations would in all probability have been made and might have influenced the Chief Commissioner’s determination.

33.	I therefore consider that there have been procedural mishaps in this case which have led to unfairness and that the implied power to set aside the Chief Commissioner’s determination can and should be applied to this case.

34.	I come then to decide whether or not I should set aside the Chief Commissioner’s determination.  At this stage I take into consideration the parties contentions as to substantive errors in the Tribunal’s decision.  All three parties submit that there were errors, albeit for different reasons.  It is certainly clear to me that there are certain arguable errors identified in the Department’s helpful submission.  These relate to the application of regulation 23(2)(b) of the Departure Regulations, regulation 30 of those regulations and regulation 40(2) of those regulations.   I consider it particularly relevant that the mother also considers that there are errors in the Tribunal’s decision, albeit she was content to accept it.  She is the person who opposes setting aside and it is important that she also considers there were errors in the decision.

35.	I consider, taking into account the procedural errors identified above and the arguable substantive errors in the Tribunal’s decision, that in the interests of justice the determination of the Chief Commissioner should be set aside.  I set the said determination aside.  I consider further, bearing in mind the obviously confusing situation in which the father and his solicitors were placed and the substantive errors in the Tribunal’s decision, that special reasons have been shown for acceptance of the late application for leave.  I therefore accept it.

36.	In light of the arguable errors identified I grant leave.  I direct that the father is to be designated as the appellant, the mother as 1st named respondent and the Department as 2nd named respondent.

37.	All three parties have given their consent, leave being granted, to my treating the notice of application as a notice of appeal and determining the matter as if it was an appeal.  I grant leave, treat the notice of application as a notice of appeal and now proceed to determine the matter as if it was an appeal.

38.	I come then to consider whether the decision of the Tribunal was in error of law.  I consider that it was for several reasons.

39.	The first is because the document which was headed “Reasons for decision” and issued on 17 June 2003 under tribunal reference number BE 75/O1C and which constituted the Tribunal’s reasons was totally inadequate to explain the decision.  Reading that document it is almost impossible even to relate it to the decision.  It certainly does not explain it.  When the document headed “Findings of Fact” is added the reasons become more comprehensible and this document should have formed part of the Tribunal’s reasoning.  It has been stated in previous decisions (for example R2/01(IB)(T)) that the fact situation accepted by the Tribunal is part of the reasons for its decision.  That does not mean that in every case a comprehensive setting out of the accepted facts is necessary.  It may well be that the LQPM had in mind that there is no longer an express statutory requirement for findings of fact to be separately sent out.   The extent to which a statement of reasons sets out the tribunal’s view of the facts will depend on what is needed to explain the decision.  In this case, however, without the additional document headed “Findings of Fact” the reasons were completely incomprehensible.  The contents of the “Findings of Fact” document should have formed part of the reasons for the decision.  They did not.  Without them the reasons were inadequate to explain the decision which was therefore in error of law.

40.	Even with the benefit of that document, however, there are other errors in the decision.  The decision deals with a ground for a departure direction under regulation 23(1)(a)(i) and (ii) and (iv) of the Departure Regulations which provides that a departure direction may be given where it is shown that the non-applicant has either a beneficial interest in or the ability to control an asset which –

(i)    is capable of being utilised to produce income but has not been so utilised;

(ii)   has been invested in such a way that the income obtained from it is less than might          reasonably be expected;

(iv)  has not been sold where the Department is satisfied that the sale of the asset would          be reasonable.

	Regulation 23(4) defines “asset” to include “a beneficial interest in land and rights in or over land.”

41.	There was no dispute in this case that the father had a beneficial interest in certain lands referred to by the Tribunal as “the great uncle’s farm.”  The Tribunal so found and there was no error in its so finding.  However, as the Department has submitted, the Tribunal did not systematically consider regulation 23(1) and (2) and regulation 40 of the Child Support Departure Direction Regulations (Northern Ireland) 1996.  It has not expressly indicated whether it considered that regulation 23(1)(a)(i) or (iv) applies, though it is perhaps relatively clear that regulation 23(1)(a)(iv) is being applied.  If that is the case, however, the Tribunal has given no indication as to whether or not it is satisfied that sale of the asset would be reasonable.  In addition it has not given consideration to regulation 23(2)(b) though the father had given reasons why he retained the asset.  I would emphasise however that it is for the Tribunal to decide whether such reasons would be considered “reasonable in all the circumstances” of this case.

42.	In addition, in computing the income to be attributed to the relevant asset, the Tribunal does not appear to have applied regulation 40(2) of the said Regulations.  

43.	There is a further error in that it does not appear that the Tribunal gave consideration to whether it would be just and equitable to give a departure direction, though by Article 28F of the Order it was obliged to do so. 

44.	All the above are errors of law and I set the Tribunal’s decision aside for those reasons.

45.	I do not, despite being asked by the mother to do so, consider that this is a case where I can give the decision which the Tribunal should have given.  There are obviously factual issues to be explored and the Tribunal is the better body to do that.  I therefore remit this matter to a differently constituted tribunal for re-hearing and re-determination.

46.	I direct that :

(1)  any party who wishes to make a contention that the farmlands (or part thereof) and the farmhouse can be considered as two separate assets, should raise that issue expressly to the tribunal in writing as soon as reasonably practicable and produce such evidence as that party wishes in support thereof;

(2)  the tribunal, if it considers there may be a case under regulation 23(1):-

(a)  should specify clearly what part of that regulation it considers relevant and to what asset or assets it relates;

(b)  should consider and make findings on the applicability of regulation 23(2)(b);

(c)  should make clear findings on the application of regulation 40(2) and (3).

(3)  I further direct the tribunal to make clear findings on whether or not it is just and equitable to give a departure direction or directions in this case bearing in mind the provisions of Article 28F(2) of the Child Support (Northern Ireland) Order 1991 and regulation 30 of the said Departure Direction Regulations.

	I make no comment on the legibility of the decision notice.  It is not necessary in this case that I do so.

47.	I pause here to note one further matter which is not within my jurisdiction but which does merit comment.  This case is one, but in this office, at least, not the last, of several disputes between these parents concerning child support maintenance for their children.  It seems unfortunate that such disputes should recur in a situation where the welfare of children is so much involved and the expense to the public purse of dealing with the disputes is considerable.  It does not seem beyond the bounds of possibility that, with goodwill on both sides, some reasonable agreement could be reached as to the contribution of each parent to the costs of maintaining the children whose welfare is of course, a primary consideration in both their minds.  The parents have, of course, various rights and duties under the child support legislation but it seems regrettable that they cannot reach an accommodation which avoids the need for repeated applications to the agency and consequent appeals to tribunals and Commissioners.

48.	The father wins his appeal.

(Signed):  M F Brown

Commissioner

19 May 2005