[2006] NISSCSC CSC2_05_06 (20 February 2006)

Decision No:  CSC2/05-06

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 17 December 2004

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal, with the leave of a Commissioner granted on 7 October 2005, by the appellant, the non-resident parent against the decision of the tribunal.

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

3.	By direction of the legal officer, the respondents were made parties to this appeal, on 3 October 2005.  The appellant, the non-resident parent, has represented himself and has made written submissions in this case.  The first respondent was represented by Mrs Rush of Decision Making Services and she also made written submissions.  The second respondent, the parent with care, represented herself and made written submissions.

4.	Leave to appeal was granted by a Commissioner on 7 October 2005 on the following grounds: 

	“It is arguable that the decision was wrong in law, because:

A.	it appears that potentially relevant evidence, namely:

(i)	a copy of the non-resident parent’s 2001-02 Self Assessment Tax Return and the 2001-02 accounts of the family business;

(ii)	the initial calculation by CSA of the non-resident parent’s weekly self-employed net income of £139;

(iii)	a note of the non-resident parent’s telephone call to the CSA on 5 August 2003 advising that he had resumed work in the garage;

(iv)	a copy of 2002-03 Self Assessment Tax Return relating (a) to the non-resident parent on an individual basis and (b) to the business;

	in the possession of the CSA, was not placed before the tribunal:

B.	it appears that the tribunal erred in its calculation of the non-resident parent’s earnings, in that it is arguable that:

(i)	it relied on accounts which were not the appropriate accounts as they may have related to the wrong time period;

(ii)	it allowed for depreciation;

(iii)	it did not make allowances for tax and national insurance.”

5.	This appeal arises out of the following circumstances.  On 25 October 2002 an application for child support maintenance was received from the parent with care.  On 24 March 2003 a decision-maker determined that the non-resident parent was liable to pay £16.68 per week in respect of his daughter, effective from 20 January 2003.  The maintenance calculation was based on the non-resident parent’s net weekly income of £141.77 in the form of earnings from the North West Institute for Further Education.  These earnings are not in dispute.  The parent with care appealed the decision on the grounds that the non-resident parent was also self-employed in the family business.  On 17 December 2004 a tribunal allowed the appeal.  In particular it determined that the non-resident parent had a self-employed income of £9,501 per annum.  In addition the tribunal found that the non-resident parent was self-employed in his family business.  It is clear from the reasons for its decision that the tribunal in the main preferred the evidence of the parent with care and rejected the non-resident parent’s evidence.  

6.	The issues that arise in this case are as follows:

(i)	was the tribunal correct in determining that the non-resident parent was self-employed? and, if so, 

(ii)	should the earnings from that self-employment be calculated to be £9,501 per annum?

7.	During the preparation of this case for the Commissioner’s decision Mrs Rush has unfortunately had to bring a most important point to my attention and has accordingly made the following submission, namely, that certain potentially very important relevant evidence that had been in possession of the Child Support Agency was not referred to or placed before the tribunal. This evidence was the following:

(i)  	a copy of the non-resident parent’s 2001-02 Self Assessment Tax Return and the 2001-02 accounts of the family business;

(ii)	the initial calculation by CSA of the non-resident parent’s weekly self-employed net income of £139;

(iii)	a note of the non-resident parent’s telephone call to the CSA on 5 August 2003 advising that he had resumed work in the garage;

(iv)	a copy of 2002-03 Self Assessment Tax Return relating (a) to the non-resident parent on an individual basis and (b) to the business.

8.	This is a situation that should not have arisen.  While, according to Mrs Rush in her letter of 18 November 2005, the Child Support Agency has acknowledged that errors have taken place, this is of little consolation to the parent with care and the non-resident parent.  It appears that not only was there non-inclusion of relevant evidence, which had been provided by the non-resident parent to the tribunal, this evidence was also not made available to the decision-maker.  Apparently the Child Support Agency has advised Mrs Rush that procedures in the form of additional checks have now been instigated to prevent a recurrence of this problem.  This may be so but, again, it is of little consolation to the parent with care and the non-resident parent who have both been greatly inconvenienced by this reprehensible situation.

9.	In the circumstances the tribunal, through no fault of its own, did not have an opportunity to adjudicate fairly upon the issues between the parties.  Accordingly I have no option other than to allow this appeal on this ground alone.  

10.	This conclusion finding puts an entirely different complexion on the case.  Other points have been brought to my attention which are no longer crucial.  However, I consider that it would be difficult to conclude that the tribunal, in the circumstances, that it found itself put too much emphasis on the video tape referred to in the case and, in any event, the video tape was not the only reason for the tribunal’s coming to its decision.

11.	Mrs Rush has argued that the tribunal erred in its calculation of the non-resident parent’s earnings.  In particular she argued that the tribunal:

(i)	relied on accounts which  were not the appropriate accounts as they may have related to the wrong time period;

(ii)	it allowed for depreciation when it ought not to have done so; and

(iii)	it did not make allowances for tax and national insurance, which it ought to have done.

	It is difficult in circumstances where there has been an element of non-co-operation in providing details of earnings but a fresh tribunal hearing this case should bear these points in mind.

12.	The non-resident parent also raised an issue relating to whether or not his father was allowed to give evidence. In my view this issue is most unlikely to arise when the case is reheard – see paragraph 13 herein.  However, if it does arise, the tribunal will gain considerable assistance from the Great Britain decision of Mr Commissioner Rice in CS 343/1994.

13.	For the reasons stated at paragraphs 7 to 9 I hold that the tribunal’s decision is erroneous in point of law.  Accordingly I allow the appeal and refer the matter back to a freshly constituted tribunal for a rehearing.  In the circumstances I direct that the Department makes a fresh and relevant submission to the tribunal setting out all the relevant evidence.  I also direct that a Departmental Officer attends any oral hearing.  It is entirely a matter for the parent with care and the non-resident parent whether they attend with or without representation.

	(signed):  John A H Martin QC

	Chief Commissioner

	20 February 2006