[2005] NISSCSC CSC2_04_05 (27 April 2005)

Decision No:  CSC2/04-05 

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Appeal to a Child Support Commissioner
on a question of law from a Tribunal’s decision
dated 25 September 2003

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal, leave having been granted by the legally qualified panel member, (LQPM) by the father and non-resident parent against a decision dated 25 September 2003 of an appeal tribunal sitting at Belfast.

2.	The Department is hereby designated as the first respondent and the mother and resident parent as the second respondent.

3.	The Tribunal disallowed the father’s appeal against a supersession decision of the Department dated 25 July 2003 which cancelled a departure direction with effect from 16 November 2001.  The father appealed to a Commissioner.  In the appeal to me he has been represented by Ms McCormack of the Law Centre (Northern Ireland) and the Department has been represented by Mr Toner of its Decision Making Services branch (DMS).  The mother has taken no part in the proceedings.  I am grateful to both representatives for their considerable assistance in this matter.

4.	I held a hearing which both representatives and the father attended.  At hearing the representatives were agreed that the only issue was as to the effective date of the supersession decision.  In the course of the proceedings and after it had become apparent that the Child Support Agency was unable to produce certain documentation Mr Toner conceded the appeal and conceded specifically that the effective date of the said supersession decision was the date of the decision (25 June 2003).  Understandably Ms McCormack did not oppose the concession.

5.	I think Mr Toner’s concession was properly made.  Both representatives requested me, if I considered the Tribunal had erred in law, to give the decision which the Tribunal should have given.

6.	I do consider that the Tribunal erred in law in that it should have given specific consideration to the effective date of the cancellation of the departure direction and does not appear to have done so.  The issue as to the effective date was raised by the appeal form dated 1 August 2003 included in the Tribunal’s papers.  The Tribunal appears to have simply accepted, without more, that the Department was entitled to supersede retrospectively, in other words that it was entitled to assume that the father’s letter received on 15 March 2002 could be treated as an application for supersession.  I do not consider that it was entitled to do so.  The letter of 15 March 2002 (and therefore its terms) was not before the Tribunal (and has not been produced to me) and the surrounding evidence would not indicate either the terms or purpose of the letter as seeking a cancellation or alteration of the departure direction.  I set the Tribunal’s decision aside for the above reasons.  This is a case where it is expedient that I give the decision which the Tribunal should have given and I proceed to do so.

7.	Article 19(4) of the Child Support (Northern Ireland) Order 1991 applies to decisions with respect to departure directions by virtue of paragraph 2 of Schedule 4C of that Order.

	Articles 19(4) and (5) provide:-

(4)	Subject to paragraph (5) and Article 28ZC, a decision under this Article shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

(5)	Regulations may provide that, in prescribed cases or circumstances, a decision under this Article shall take effect as from such other date as may be prescribed.”

8.	The regulation under Article 19(5) is regulation 32E of the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996.  It does not appear to me that any of the circumstances in that regulation applies to this case.  Article 28ZC is not relevant to this case.

9.	I have been unable, on the basis of the evidence produced to me, to conclude that the claimant ever sought supersession on the basis that his former partner had moved out of their former home, nor that he ever sought expressly or implicitly a cancellation or alteration of the departure direction on those grounds.  Following R(IB)2/04 (paragraph 97) which deals with similar legislation to Article 19(4) relating to social security benefits, I conclude that the adverse supersesssion (the cancellation of the departure direction by decision of 25 July 2003), was a decision on the Departments own initiative.

10.	That being so and applying Article 19(4) the effective date of the cancellation of the departure direction is the date of the said superseding decision ie 25 July 2003.  The cancellation was correct except that its effective date should have been 25 July 2003.

11.	The father wins his appeal.

(Signed):  M F Brown

COMMISSIONER

27 April 2005