Decision No:  CSC3/07-08

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 3 January 2007

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	The decision of the appeal tribunal dated 3 January 2007 is not in error of law.  Accordingly, the appeal to the Child Support Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant was liable to pay weekly child support (CS) maintenance of £0.00 from the effective date of 6 October 2004, and £21.87 from the effective date of 25 May 2005, is confirmed.

	Background

2.	On 12 January 2005 a decision-maker determined that the appellant, the non-resident parent (NRP), was liable to pay a nil amount in CS maintenance from the effective date of 6 October 2004.  This was because he had not been in self-employment from August 2004 and had applied for incapacity benefit (IB).

3.	The decision dated 12 January 2005 was superseded on 4 October 2005, when the decision-maker determined that the appellant had a net income of £113.02 per week.  As a result, it was decided that the appellant was liable to pay weekly CS maintenance of £11.68 effective from 25 May 2005.

4.	On 23 March 2006, the decisions dated 12 January 2005 and 4 October 2005 were revised to take into account that one of the members of the parent with care’s (PWC) household had not been a qualifying child for CS purposes at those dates.

5.	As a result of the decision dated 23 March 2006, it was decided that the appellant was liable to pay weekly CS maintenance of £0.00 effective from 6 October 2004 and £11.68 effective from 25 May 2005.

6.	There followed communication between the appellant and the Child Support Agency (CSA), and between the CSA and the PWC.

7.	On 2 May 2006, a letter of appeal, dated 24 April 2006, was received in the CSA.

8.	Although the appeal was outside the statutory time limit for appealing, it was accepted by the decision-maker within the Agency.

9.	On 15 May 2006, the decision dated 23 March 2006 was looked at again but was not changed.

	The appeal to the appeal tribunal

10.	The appeal was first listed for hearing before an appeal tribunal on 15 August 2006 when the proceedings were adjourned, with directions.

11.	The appeal was further heard by an appeal tribunal on 3 January 2007, when consideration was given to a further submission from the CSA.

12.	That appeal tribunal disallowed the appeal and decided that the appellant was liable to pay weekly CS maintenance of £0.00 from the effective date of 6 October 2004, and £21.87 from the effective date of 25 May 2005.

13.	On 23 May 2007 the appellant applied to the legally qualified panel member (LQPM) for leave to appeal to the CS Commissioner.

14.	On 6 June 2007, the LQPM refused leave to appeal.

	Proceedings before the Child Support Commissioner

15.	On 5 July 2007, an application for leave to appeal to the Child Support Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

16.	In the application, the NRP set out seven different grounds for appealing.  These grounds are dealt with in more detail below.

17.	Observations were sought from the Decision Making Services (DMS) unit, and these were received on 21 September 2007.  In these observations, DMS:

	(i)	made submissions on the application by the appeal tribunal of the principles set out by the House of Lords in Smith v Secretary of State for Work & Pensions & Another ([2006] UKHL 35);

	(ii)	made submissions on the decision by the appeal tribunal to utilise the self-employment accounts for the year ended 5 April 2005;

	(iii)	thereafter, opposed all seven grounds put forward by the appellant.

18.	The detailed observations and submissions made by DMS are dealt with in further detail below.

19.	On 28 November 2007, leave to appeal was granted by the Chief Social Security Commissioner.  In granting leave to appeal, the stated reason by the Chief Commissioner was that ‘It is arguable that the decision was wrong in law, because the tribunal might have erred in taking into account the 2004-05 SA return and using it as a basis of its determination of the absent parent’s self-employed income.’

20.	DMS were asked to provide further submissions on the relevance of the decision of Commissioner Turnbull (as he then was) in CCS/1741/2005.  These observations were provided on 22 February 2008, and were shared with the NRP and PWC on 27 February 2008.

21.	Subsequently, DMS were asked for their observations on whether the present appeal should be stayed from hearing until the outcome of the Court of Appeal in Department of Social Development v Stewart was known.  The appeal in Stewart arose from a decision of Deputy Commissioner MacLynn in C15/07-08(DLA).

22.	DMS agree that it should be stayed.

23.	All observations, including those relating to the possible staying of proceedings were shared with the NRP and PWC.  In response, the NRP in particular was not content at any proposal to stay proceedings.

24.	Eventually, on 2 October 2008, I decided that the appeal should not be stayed, and should proceed, to an oral hearing.  My reasons for proceeding with the appeal were that:

	(i)	the basis for the suggestion that the appeal should be stayed was that both this case and Stewart are concerned with the complementary decision-making and appeals rules in both the child support and social security schemes that prevent an appeal from taking into account circumstances not obtaining at the time when the decision appealed against was made.  I decided that it was arguable that the principle in Stewart is less to do with that rule and more to do with the effect of a ‘reconsideration’ decision on the jurisdiction of the appeal tribunal.  Further, it was arguable that the law on that latter issue is fairly clear and settled;

	(ii)	additionally, I was of the view that it is arguable that the decision of the Child Support Commissioner in CCS/1741/2005, and in particular the application of the ‘circumstances not obtaining’ rule, was in the particular context of a particular paragraph within the legislative provisions for the new (post 2000) CS scheme;

	(iii)	I emphasised that the relevant legal principles, particularly the application of the principles in CCS/1741/2005, remain extant issues to be argued in the present appeal.  There was no requirement, however, to further delay the hearing of this appeal, pending the outcome of the appeal in Stewart;

	(iv)	finally, I was additionally concerned at the potential for injustice to be caused by a lengthy delay of the hearing of this appeal, if it was to be stayed, and, in this regard, noted that there was not, at that stage, a hearing date for the appeal in Stewart.

	In any event, Stewart again.

25.	On 14 November 2008 further submissions were received from DMS, which were shared with the NRP and PWC on 19 November 2008, together with the Department’s skeleton argument.

26.	An oral hearing of the appeal was arranged for 16 December 2008.  At the oral hearing, the appellant was present, representing himself.  The PWC also attended and was not represented. The Department was represented by Mr Crilly of the DMS section.

27.	At the oral hearing of the appeal, the appellant was provided with a copy of the written observations from DMS, dated 21 September 2007.  The appellant had indicated that he was unsure whether he had received that documentation.  The oral hearing was adjourned for a period to enable the appellant to consider the contents of the written observations.

	Errors of law

28.	A decision of an appeal tribunal may only be set aside by a Child Support Commissioner on the basis that it is in error of law.

29.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

	“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

	(ii)	failing to give reasons or any adequate reasons for findings on material matters;

	(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

	(iv)	giving weight to immaterial matters;

	(v)	making a material misdirection of law on any material matter;

	(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

	Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	The cited errors in the present case

30.	As was noted above, in the application for leave to appeal to the Child Support Commissioner, the appellant cited seven different grounds.  In summary these were:

	(i)	the appellant queried why the decision was unanimous when the form stated that he was also entitled to a majority decision;

	(ii)	the appellant was never told that the appeal tribunal could make a new decision;

	(iii)	the appellant was not told that his ex-wife would be attending the appeal to give evidence and to be informed about his private medical condition;

	(iv)	the appellant queried why the Departmental presenting officer was not present to answer questions which had been asked by the LQPM at an earlier appeal tribunal hearing;

	(v)	the appellant had subsequently been in receipt of IB for various periods, and his up-to-date accounts were now available;

	(vi)	the appellant wanted to see and keep his son as often as he could, and at least one week per month;

	(vii)	the appellant did not receive a statement of reasons for three months after requesting it.

	The response to the cited errors in the present case

31.	As was noted above, DMS, in its written observations, dated 21 September 2007, opposed all of the grounds cited by the appellant, in his application for leave to appeal.  Additionally, DMS addressed the issue as to whether the appeal tribunal, in arriving at its decision, was correct to utilise the appellant’s self-employment accounts for the year ending 5 April 2005.  To begin with, DMS submitted that the appeal tribunal had been wrong so to do, but in the final observations on this specific issue, dated 14 November 2008, DMS submitted that the appeal tribunal’s decision was correct.

32.	At the oral hearing of the appeal, the PWC made submissions on certain of the grounds cited by the appellant, in his application for leave to appeal.  The PWC opposed the appeal on all of the grounds cited.  Additionally, the PWC made additional observations on the merits of the appeal, and gave her perspective on the background and proceedings giving rise to it.

	Was the decision of the appeal tribunal in error of law?

33.	As was noted above, a decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

34.	An application to the Social Security Commissioner for leave to appeal requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law.

35.	Having considered the application made by the appellant, and the grounds set out in the application, and his further written and oral submissions, I am satisfied that no error of law can be identified.  Each of the grounds cited by the appellant is examined in greater detail below.

	(i) Why was the decision unanimous when the form stated that he was also entitled to a majority decision?

36.	At first reflection, it was difficult to understand the point which the appellant was attempting to make in connection with this ground.  Further exploration of the issue at the oral hearing of his appeal, gave greater clarity to the issue, and it is hoped that the further explanations given to the appellant, at the oral hearing, have convinced him that there was not, and could not have been an error of law, on this basis.

37.	Following the oral hearing of the appeal tribunal, the LQPM completed a decision notice.  Such decision notices are in a standard format.  That format is as approved by the President of Appeal Tribunals for Northern Ireland, under regulation 53(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

38.	Details of the appeal, including the date and place of the hearing, the appeal reference, and the name of the appellant, are completed in advance of the hearing.  On the day of the hearing itself, further particulars are added.  For example, it is possible for the clerk to the appeal tribunal to indicate, through the striking-out of one of two alternative pre-printed phrases, whether the appellant, and/or the presenting officer were present.  From the actual decision notice for the relevant appeal tribunal hearing, it is easy to determine that the appellant was present, and that a presenting officer was not.

39.	The majority substantive part of the decision notice is completed by the LQPM, in line with the LQPM’s duty under regulation 53(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Regulation 53(5) obliges the LQPM, if the decision of the appeal tribunal is not unanimous, to specify in the decision notice that one of the members of the appeal tribunal dissented.  To facilitate the LQPM to indicate in the decision notice that the decision of the appeal tribunal was either unanimous or by a majority, both options are included on the standard form, approved by the President.  The LQPM will simply strike through the option which is not applicable, leaving the reader to discern that the decision was as indicated.  Thus from the actual decision notice for the relevant appeal tribunal hearing, the LQPM has struck through the word ‘majority’ and left the word ‘unanimous’ clear.  Accordingly the reader is aware that the decision of the appeal tribunal was a unanimous one.  Further evidence for that conclusion is to be found in the statement of reasons for the appeal tribunal’s decision.  If there had been a dissenting opinion from a member of the appeal tribunal, then the LQPM would have been obliged to record the reasons for that dissent, in the statement of reasons, under regulation 53(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

40.	Thereafter, the remainder of the standard form decision notice permits the LQPM to record whether the appeal is allowed or disallowed and to record, as required in regulation 53(1) summary details of the appeal tribunal’s decision.

41.	It could have been the case that the appellant was confused as to how an appeal tribunal consisting of two persons could ever arrive at a majority decision.

42.	Article 8 of the Social Security (Northern Ireland) Order 1998, as amended, provides for the constitution of appeal tribunals.  Article 8(1) provides:

		‘(1) Subject to paragraph (2), an appeal tribunal shall consist of one, two or three members drawn by the President from the panel constituted under Article 7.’

		Regulation 36(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

		‘(3) An appeal tribunal shall consist of a financially qualified panel member and a legally qualified panel member where –

		(a)	the issue, or one of the issues, raised on the appeal or referral, relates to child support or a relevant benefit; and

		(b)	the appeal or referral may require consideration by members of the appeal tribunal of issues which are, in the opinion of the President, difficult and which relate to –

		(i)	profit and loss accounts, revenue accounts, or balance sheets relating to any enterprise,

		…”

	Finally, Article 8(3) of the Social Security (Northern Ireland) Order 1998, as amended, provides that:

		‘(3) Where an appeal tribunal has more than one member-

		(a)	the President shall nominate one of the members as chairman;

		(b)	decisions shall be taken by a majority of votes; and

		(c)	unless regulations otherwise provide, the chairman shall have any casting vote.’

43.	Applying all of those rules to the present case, it is clear that the appeal tribunal, consisting of a LQPM, and a financially qualified panel member, was properly constituted, and there is and could be no error of law in respect of its constitution.  Further, it is clear that the decision of the appeal tribunal was a unanimous one, which was a decision which the appeal tribunal was permitted to make.  There is no error of law on the face of the decision notice which clearly and explicitly indicated that the decision of the appeal tribunal was unanimous.

44.	Accordingly, this ground is rejected.

	(ii) The appellant was never told that the appeal tribunal could make a new decision

45.	Once again, at first reflection, it was difficult to understand the point which the appellant was attempting to make in connection with this ground.  On further exploration of the question with him, at the oral hearing of the appeal, it appeared that there were two aspects to this issue.

46.	Firstly, the appellant appears to be of the view that the only decision which the appeal tribunal could have made was to either allow or disallow his appeal.  Further, and more significantly, the appellant appears to believe that whether the appeal was allowed or disallowed, the decision giving rise to the appeal, would be held in abeyance, and would not be further actioned.  With respect to the appellant, that opinion is based on a fundamental misunderstanding of the decision-making and appeal system.

47.	Following the making of a decision, the appellant, under Article 22 of the Child Support (Northern Ireland) Order 1991, as amended, has the right to appeal to an appeal tribunal.

48.	The duties of an appeal tribunal, in determining an appeal, were comprehensively analysed and reviewed by a Tribunal of Commissioners in Great Britain in R(IB) 2/04.  At paragraph 55(8) of their decision, and in referring to parallel decision-making legislative provisions in Great Britain, the Commissioners state:

‘an appeal tribunal’s task on an appeal following either a [revision] or a [supersession] decision is first to decide whether the Secretary of State was right to change (or not change) the claimant’s entitlement to benefit in the way that he did.  If it decides that the Secretary of State was wrong, its power is, subject to the express limitation in section 12(8)(b), to make the decision which the Secretary of State ought to have made.’

49.	Although addressing decisions of the Department with respect to entitlement to social security benefits, parallel principles apply with respect to decision-making in relation to CS.  An appeal tribunal must identify the decision under appeal, and decide whether that decision is correct.

50.	In Child Support Legislation 2007/2008 (2007: Sweet & Maxwell), the authors state, at page 75:

‘An appeal tribunal deals with a case on appeal by way of rehearing.  The tribunal stands in the same position as the officer who made the decision under appeal.  All aspects of the case that the officer could have considered may be considered … An issue is a point of fact or law that merits inquiry and decision on the information or evidence before the tribunal.’

51.	The appeal tribunal’s duty, in the present appeal, was to decide whether the decision dated 23 March 2006, where it was decided that the appellant was liable to pay weekly CS maintenance of £0.00 effective from 6 October 2004 and £11.68 effective from 25 May 2005, was correct.  If the appeal tribunal decided that the decision dated 23 March 2006 was incorrect, then subject to additional considerations and rules, it was entitled to make the decision which should have been made.

52.	This leads on to the second aspect of this ground cited by the appellant.  He has indicated, in his written and oral submissions, that he was not aware that the appeal tribunal could make a ‘new’ decision.  By ‘new’ decision he is referring to the fact that appeal tribunal, after disallowing the appeal, substituted its own decision to the effect that the appellant was liable to pay weekly CS maintenance of £0.00 from the effective date of 6 October 2004, and £21.87 from the effective date of 25 May 2005.  The ‘new’ decision increased his liability, from the effective date of 25 May 2005, from £11.68 to £21.87.  The appellant submits that he was unaware, prior to the appeal tribunal hearing, that the appeal tribunal had the power to make a decision to this effect.

53.	I can find no basis for sustaining this ground of appeal.  The first oral hearing of the appeal took place on 15 August 2006, when the appeal was adjourned.  There is a detailed record of proceedings for the adjourned hearing.  The appellant was present, as was the PWC, and a presenting officer.  At the oral hearing of the appeal, the presenting officer handed in a copy of a ‘SPEC1’ file, together with a set of documents marked C1-C71.  In these latter documents were copies of the appellant’s accounts for the year ending 5 April 2005.  In the record of proceedings it is noted that:

‘[Mr D…] noted that if the 2005 accounts were used it might result in an increased assessment … Chairman explained to [the appellant] that he could withdraw his appeal should he wish to do so …’

54.	The oral hearing was eventually adjournment and one of the directions made by the LQPM was that:

‘The Department should also provide a further maintenance assessment calculation, based on [the appellant’s] accounts for year ending 5 April 2005 …’

55.	It is abundantly clear, therefore, that at an early stage in the appeal tribunal proceedings, the appellant was aware that the appeal tribunal had access to his accounts for the year ending 5 April 2005; that it had directed that there should be a further maintenance assessment calculation utilising those accounts; that that assessment might result in an increased assessment; and, finally, and significantly, that he could withdraw his appeal, at any stage.

56.	By the date of the substantive appeal tribunal hearing, the Department had actioned the direction from the LQPM, and had re-calculated the maintenance assessment, using the accounts for the year ending 5 April 2005.  The Department produced an addendum to the main submission, which indicated that the re-calculation meant that there would be an increased liability to £21.87 from the effective date of 25 May 2005.  That addendum was made available to the appellant.

57.	There is a record of proceedings for the substantive oral hearing of the appeal, dated 3 January 2007.  It is noted that the addendum was before the appeal tribunal.  Further, it is noted that:

	‘Chairman referred to the previous hearing on 15 August 2006 and the issues arising.

	[The appellant] confirmed that he wished to proceed with the appeal.’

58.	That latter statement is very likely to have been made in the context of the LQPM reminding the appellant of the re-calculation, addressed on 15 August 2006, and subsequently actioned, and, additionally, in relation to the non-attendance of the presenting officer.

59.	Later in the record of proceedings there is a reference to the appellant stating ‘… if I pay £21 per week it doesn’t leave me with enough.  If I had the money I would pay it.’

60.	I am wholly satisfied, therefore, that contrary to the submissions made by the appellant, he was aware that the appeal tribunal had access to his accounts for the year ending 5 April 2005; that the appeal tribunal had access to a further maintenance assessment calculation utilising those accounts; that that assessment might result in an increased assessment; and, finally, and significantly, that he could withdraw his appeal, at any stage.  The appellant chose to continue with the appeal.  Accordingly, this ground is rejected.

	(iii) The appellant was not told that his ex-wife would be attending the appeal to give evidence and to be informed about his private medical condition

61.	Once again, it was only by seeking clarification with the appellant, at the oral hearing of the appeal, that further substance could be given to this ground.

62.	One issue is clear – the PWC had the right, under regulation 49(7)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to be present at the oral hearing of the appeal.  Further, it is not clear why and how the appellant could have been taken by surprise at the attendance of the PWC.  As was noted above, the first oral hearing of the appeal took place on 15 August 2006, when the appeal was adjourned.  There is a detailed record of proceedings for the adjourned hearing.  The appellant was present, as was the PWC.  I cannot understand, therefore, why the appellant states that he was ‘not told that my ex-wife and mother of my children would be attending the appeal’.

63.	At the oral hearing of the appeal before me, the appellant, when asked to clarify this issue, stated that the main problem was that there was no segregation in the waiting area at the appeal tribunal venue, and that he and the PWC had to sit and wait together for the oral hearing.  I am of the view that it is highly desirable that at each appeal tribunal venue where there are listed appeals in relation to CS, that there should be segregated waiting areas for the NRP, the PWC and the presenting officer.  Such separation provides privacy for the purposes of preparation and consultation with a representative, and lessens the potential for disagreement and antagonism before an oral hearing of the appeal.  I can see no reason why such segregated facilities cannot be always made available at the ‘fixed’ appeal tribunal venues of The Appeals Service.  The Appeals Service also utilises additional temporary venues or outcentres, in an effort to provide a localised appeal service for the parties to the proceedings.  I would recommend that where such outcentres are being used for CS appeal hearings, and where it is known that all parties to the proceedings are likely to be present, that separated waiting areas are provided, wherever possible.

64.	Nonetheless, I am satisfied that the appellant’s submissions with respect to the attendance of the PWC are without substance.

65.	So too is his submission in connection with the provision of information to the PWC concerning his ‘private medical condition’.  I am satisfied that the information which was provided to the PWC was confined to a statement that he was in receipt of IB.  The PWC gave oral evidence to me to that effect, and I accept that evidence in its entirety.  The PWC was not given any detailed evidence concerning his medical conditions, and, accordingly, this ground is rejected.

	(iv) The appellant queried why the Departmental presenting officer was not present to answer questions which had been asked by the LQPM at an earlier appeal tribunal hearing.

66.	The first oral hearing of the appeal took place on 15 August 2006, when the appellant was present, as was the PWC, and a presenting officer.  The oral hearing was adjourned with detailed directions for the presenting officer.  By the date of the substantive appeal tribunal hearing, the Department had actioned the direction from the LQPM, and had produced an addendum to the main submission.  That addendum clearly addressed all of the issues raised by the LQPM, and provided additional evidence to support the submissions made in the addendum.

67.	At the substantive appeal tribunal hearing, held on 3 January 2007, a presenting officer was not present.  In the submissions dated 21 September 2007, DMS indicated that the notice of hearing was not received by the CSA prior to 3 January 2007, and this was the reason why a presenting officer was not in attendance.

68.	The importance of the presence of a presenting officer, at an oral hearing of an appeal, cannot be over-emphasised.  That attendance serves a number of significant functions.  Firstly, it provides the appellant with a visible confirmation that the Department is a party to the proceedings, which, in turn, serves to emphasise the independence of the appeal tribunal.  Secondly, the presenting officer is able to make submissions to the appeal tribunal, on the legal and evidential issues arising in the appeal.  In so doing, the officer can address any conflicts which have arisen, possibly as a result of further evidence adduced by the appellant, at the oral hearing.  Further the officer can test the appellant’s evidence, by asking questions of the appellant or any witness who also attends.  Thirdly, the officer can provide answers to any queries which the appellant may have concerning the handling of the case at Departmental level.  Finally, the officer, in the role of amicus curiae, can raise points not addressed by the appellant, or the appeal tribunal, and, on the basis of what has been seen and heard at the oral hearing, make relevant concessions and compromises.

69.	In the absence of a presenting officer, the appeal tribunal, as part of its inquisitorial role, is entitled to consider and determine questions which are relevant to the issues rising in the appeal.  Where an officer of the Department is not present, however, there is a risk of a perception on the part of the appellant that the appeal tribunal is taking on the Department’s task.  The presence of an officer contributes to a transparent balance to the proceedings – two parties and an independent appeal tribunal.  When an officer fails to attend, that balance is upset and an appellant might be sensitive about the role which the appeal tribunal subsequently takes on.

70.	In R(IS) 17/04, a Tribunal of Commissioners in Great Britain, has emphasised that the adoption of an inquisitorial role does not mean that the appeal tribunal’s impartiality or independence has been affected.  At paragraph 30 the Commissioners stated:

‘The duty of a tribunal to investigate the issues before it can legitimately involve the chairman questioning the claimant, even with probing questions – see, for example, the decision of a Tribunal of Commissioners in R(S) 4/82, particularly at paragraphs 27 to 28.  In that case it was pointed out by the Tribunal that it was the clear duty of the tribunal members, in the exercise of their investigatory functions, to ask the claimant the obvious questions which arose: and there could be no question of “bias” or unfairness in the mere fact that they did so.  Of course any interventions by the chairman himself to identify points that required an answer would have to be made carefully and phrased factually and neutrally: but that is a skill developed and deployed by all chairmen experienced at conducting proceedings of an inquisitorial nature, and as often needed when parties are represented as when they are not.’

71.	The appeal system in relation to social security operates most effectively, and transparently effectively, when there is a presenting officer in attendance at an oral hearing of an appeal.  Accordingly, it is best practice for the Department to arrange for the presence of a well-informed officer, conversant with the issues arising in the specific appeal, and ready, as amicus curiae, and as and when required by the appeal tribunal, to assist the tribunal in carrying out its role.

72.	In the present case, the appeal had been adjourned in order that the Department could address issues which were of concern to the appeal tribunal.  The Department did address those issues, in the addendum to the appeal.  That addendum was provided to the appellant, in advance of the substantive oral hearing.

73.	As was noted above, the record of proceedings for the substantive oral hearing of the appeal noted that the addendum was before the appeal tribunal. Further, it is noted that:

	‘Chairman referred to the previous hearing on 15 August 2006 and the issues arising.

	[The appellant] confirmed that he wished to proceed with the appeal.’

74.	I am of the view that that latter statement is very likely to have been made in the context of the LQPM reminding the appellant of the re-calculation, addressed on 15 August 2006, and subsequently actioned, and, additionally, in relation to the non-attendance of the presenting officer.

75.	It is clear that the appeal tribunal was satisfied that the Department had addressed, through the provision of the addendum, all of the issues with which it had concerns.  Accordingly, it was content to proceed in the absence of a presenting officer.

76.	The record of proceedings also confirms that the appellant was content to proceed with the appeal.  The appellant could have sought an adjournment of the appeal if he was of the view that the attendance of a presenting officer was required.  He did not seek such an adjournment.

77.	Accordingly I am of the view that the appeal tribunal was permitted to proceed with the continuation of the oral hearing of the appeal, in the absence of a presenting officer, and was not in error of law in so doing.

	(v) The appellant had subsequently been in receipt of IB for various periods, and his up-to-date accounts were now available.

78.	In support of this ground, the appellant produced details of various periods during which he states he was in receipt of IB, and a copy of his accounts for the year ending 5 April 2007.  In their written observations on the application for leave to appeal to the Social Security Commissioner, dated 21 November 2007, DMS indicate that the first period of incapacity, from 2 August 2004 to 14 March 2005, was taken into account for the maintenance calculation for the effective date of 4 October 2004.

79.	DMS also indicated that the remaining periods of incapacity run from 28 December 2005, and were, accordingly, outside the scope of the period covered by the appeal.  DMS suggest that the appropriate form of action might be for further supersession action to be considered.

80.	I agree that the periods of incapacity referred to by the appellant, in connection with this ground, had already been taken into account in the making of an earlier maintenance calculation, or fell outside the scope of the period being considered by the appeal tribunal.  There was, therefore, no error of law on the part of the appeal tribunal, and this ground is also rejected.

81.	Similar principles apply to the subsequent provision of the accounts for the year ending 5 April 2007.  Those accounts relate to a period which was not the subject of consideration by the appeal tribunal.  As with the periods of incapacity, the appropriate form of action might be for the further supersession action to be considered.  Once again, there was no error of law on the part of the appeal tribunal, and this ground is also rejected.

	(vi) The appellant wanted to see and keep his son as often as he could, and at least one week per month

82.	It is not clear whether this is a substantive ground for appealing to the Child Support Commissioner, or an expression, by the appellant, of his desire to maintain his familial relationships.

83.	The issue of shared care was addressed by the appeal tribunal in its statement of reasons.  The appeal tribunal noted that it accepted the appellant’s evidence with respect to the number and frequency with which he had care of his son.  Having done so, the appeal tribunal found relevant facts with respect to this issue, and concluded that the appellant did not satisfy the relevant ‘shared care’ legislative provisions with respect to CS.  At the oral hearing before me, the appellant did not take any issue with the appeal tribunal’s conclusions on the question of shared care.

84.	There was no error of law on the part of the appeal tribunal, in relation to how it dealt with the issue of shared care, and this ground is also rejected.

	(vii) The appellant did not receive a statement of reasons for three months after requesting it.

85.	The appeal tribunal’s decision notice was issued to the appellant on 4 January 2007.  On 30 January 2007, an application for a statement of reasons for the appeal tribunal’s decision was received in the Appeals Service.  The statement of reasons for the appeal tribunal’s decision was issued to the appellant on 25 April 2007.

86.	Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal’s decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.’

87.	Regulation 53(4) makes no provision for the period of time during which the statement of reasons must be prepared and forwarded to the party applying for it.  It is clear that the preparation and dispatch of the statement to the party must be as expeditious as reasonably possible.  The party seeking the statement may be concerned to know why the appeal was lost (or won) and may be waiting to consider further appellate or other action.  Nonetheless, the preparation and forwarding of the statement involves a number of distinct stages, requiring interaction between the LQPM and the administrative staff within the Appeals Service, each of which takes a period of time.  Further, the LQPM will require to re-acquaint himself with the detail of the case, a task which is greater when the issues arising in the appeal are complex.  It is easy to envisage circumstances in which the delay in receipt of a statement of reasons was not because the LQPM has not promptly responded to the request.

88.	In any event, I am not certain the time period for the provision of the statement in this case was unreasonable, and I find that there was no error in law on the basis of delay.

	A further issue – the use of the accounts for the year ending 5 April 2005

89.	In arriving at its decision, the appeal tribunal noted, inter alia:

‘The Decision Maker [on 4 October 2005], using [the appellant’s] self-employment Inland Revenue Tax return for year ending 5 April 2004, calculated [the appellant’s] net income as £113.02 and the maintenance payable as £11.68.

At the date of the revision decision (23 March 2006) [the appellant’s] self-employed accounts for year ending 5 April 2005 had become available and we find it appropriate for these accounts to be used for the calculation of maintenance payable … his net income is correctly assessed as £125.01 and the maintenance assessment for effective date [sic] 25 May 2005 is £21.87 …’  

90.	In granting leave to appeal in the present case, the stated reason by the Chief Commissioner was that:

‘It is arguable that the decision was wrong in law, because the tribunal might have erred in taking into account the 2004-05 SA return and using it as a basis of its determination of the absent parent’s self-employed income.’

91.	This issue was not raised by the appellant, in his application for leave to appeal to the Child Support Commissioner.  The question of the use of the accounts for the year ending 5 April 2005 was raised by DMS, in their observations on the application for leave to appeal.

92.	In these observations, DMS noted that the decision-makers, when calculating the NRP’s income, both on 4 October 2005, and 23 March 2006, had adopted an interpretation of paragraph 2A of Schedule 1 of the Child Support (Maintenance Assessment and Special Cases) Regulations (Northern Ireland) 1992 (the ‘MASC Regulations’) made by the Court of Appeal in Secretary of State for Work & Pensions v Smith.  In this case, the Court of Appeal had over-turned the decision of the Child Support Commissioner in R(CS) 6/06, in which the Commissioner had held that the phrase ‘total taxable profits from self-employment’ included amounts in relation to capital allowances and depreciation.  On 12 July 2006, the House of Lords over-turned the decision of the Court of Appeal in Smith and held the Commissioner’s interpretation of paragraph 2A was correct.

93.	By the time of the appeal tribunal hearing, on 3 January 2007, the appeal tribunal had the advantage of the reasoning of the House of Lords in Smith.  The appeal tribunal adopted that reasoning in arriving at its conclusions.  DMS agree that the appeal tribunal acted appropriately in so doing.  I am also in agreement that the appeal tribunal correctly applied the reasoning of the House of Lords in Smith.

94.	DMS submitted, however, that a further issue arose in connection with the decision by the appeal tribunal to utilise the self-employment accounts for the year ended 5 April 2005.  The decision-maker, on 4 October 2005, used the appellant’s self-employed Inland Revenue tax return for year ending 5 April 2004, to calculate the appellant’s net income as £113.02 and maintenance payable as £11.68.

95.	The appeal tribunal noted that at the date of the revision decision ie 23 March 2006 the appellant’s self-employed accounts for year ending 5 April 2005 had become available and the appeal tribunal found it appropriate for these accounts to be used for the calculation of maintenance payable.  The appeal tribunal had been given a supplementary submission from the CSA which had taken the April 2005 accounts into consideration.

96.	DMS cited the decision of Commissioner Turnbull (as he then was) in CCS/1741/2005 as support for the proposition that the appeal tribunal had erred in law in taking the April 2005 accounts into consideration.  This was on the basis that the Commissioner had ruled that, for the purposes of paragraph 7 of the Schedule to the Child Support (Maintenance Assessment and Special Cases) Regulations 2000 (‘MASC Regulations’ 2000), it was impermissible to take into consideration accounts which were not available at the date of the decision under appeal, as this would offend the rule in section 20(7)(b) of the Child Support Act 1991, the rule preventing an appeal tribunal taking into account circumstances not obtaining at the time when the Secretary of State made the decision.  The reference to the MASC Regulations 2000 shows that Commissioner Turnbull was dealing with the calculation of earnings under the reformed CS scheme.

97.	In later observations, DMS refer to the decision of Commissioner Jacobs in CCS/1325/2006.  In that case, Commissioner Jacobs distinguishes the decision in CCS/1741/2005, and observes that he does not have to rule on the correctness of that decision.  Despite this, DMS maintained that the appeal tribunal was in error of law, in taking into consideration the April 2005 accounts.

98.	In yet further observations, dated 14 November 2008, DMS sought to resile with the earlier observations, noted above, and submitted that the appeal tribunal was not in error of law.  The basis for the change of opinion was as follows.  DMS submitted that the decision under appeal was made on 4 October 2005.  Details of the appellant’s total tax profits, for the period 2004-2005, had, on balance, been submitted by him to the Inland Revenue on or around 8 September 2005.  Accordingly these were in possession of the Inland Revenue at the date of the decision under appeal.  Paragraph 2A(2) of Schedule 1 to the Child Support (Maintenance Assessment and Special Cases) Regulations (Northern Ireland) 1992, as amended, only requires that details of total taxable profits be submitted to the Inland Revenue.  As those legislative requirements had been satisfied, the details were available at the date of the decision which was the subject of the appeal.

99.	Provision for the calculation of the earnings of a self-employed earner are provided for in Chapter 2 of Part I of Schedule 1 of the Child Support (Maintenance Assessment and Special Cases) Regulations (Northern Ireland) 1992, as amended.  Paragraph 2A, as it was in force at the date of the decision under appeal, provided that:

‘2A.—(1) Subject to paragraphs 2B, 2C, 4 and 5A, “earnings” in the case of employment as a self-employed earner shall have the meaning given in subparagraphs (2) to (4).

(2) “Earnings” means the total taxable profits from self-employment of that earner as submitted to the Inland Revenue, less the following amounts—

(a) any income tax relating to the taxable profits from self-employment determined in accordance with sub-paragraph (3);

(b) any National Insurance Contributions relating to the taxable profits from the self-employment determined in accordance with sub-paragraph (4);

(c) one half of any premium paid in respect of a retirement annuity contract or a personal pension scheme or, where that scheme is intended partly to provide a capital sum to discharge a mortgage or charge secured upon the self-employed earner’s home, 37.5 per centum of the contributions payable.

(3) For the purposes of sub-paragraph (2)(a) the income tax to be deducted from the total taxable profits shall be determined in accordance with the following provisions—

(a) subject to head (d), an amount of earnings calculated as if it were equivalent to any personal allowance which would be applicable to the earner by virtue of the provisions of Chapter 1 of Part VII of the Income and Corporation Taxes Act 1988 (personal reliefs) shall be disregarded;

(b) subject to head (c), an amount equivalent to income tax shall be calculated in relation to the earnings remaining following the application of head (a) (the “remaining earnings”);

(c) the tax rate applicable at the effective date shall be applied to all the remaining earnings, where necessary increasing or reducing the amount payable to take account of the fact that the earnings relate to a period greater or less than one year;

(d) the amount to be disregarded by virtue of head (a) shall be calculated by reference to the yearly rate applicable at the effective date, that amount being reduced or increased in the same proportion to that which the period represented by the taxable profits bears to the period of one year.

(4) For the purposes of sub-paragraph (2)(b) the amount to be deducted in respect of National Insurance Contributions shall be the total of—

(a) the amount of Class 2 contributions (if any) payable under section 11(1) or, as the case may be, (3), of the Contributions and Benefits Act(a); and

(b) the amount of Class 4 contributions (if any) payable under section 15(2) of that Act, at the rates applicable at the effective date.’

100.	The Great Britain equivalent of Paragraph 2A was considered by Commissioner Turnbull (as he then was) in CCS/1137/2007 and CCS/1138/2007 (both cases were heard together), in a context similar to that arising in the present appeal.  At paragraph 26 of his decision, he stated:

‘As noted above, the decision maker’s calculations in respect of the period from the effective date (1 September 2005) were based on the earnings shown in the 2003-4 tax return.  The Tribunal directed that the 2004-5 return be used.  By s.20(7)(b) of the Child Support Act 1991, in deciding an appeal an appeal tribunal shall not take into account any circumstances not obtaining at the time when the decision or assessment appealed against was made.  In my judgment, for the purposes of paras.  2A and 5A the submission to the Revenue of a tax return is a “circumstance” and an assessment based on the earnings shown in a tax return cannot therefore be justified under the primary provision in 5A(1) unless that tax return had been submitted by the date of the decision under appeal (see also my decision in CCS/1741/05 at para. 25).  I reach that conclusion partly because, where para 2A applies, the parties cannot dispute the amount of earnings shown in the tax return.  The submission to the Revenue of the tax return therefore fixes not only the period to be taken into account but also the amount of the earnings.  At the date of the decision (14 November 2005 or, perhaps more accurately, 18 October 2005) under appeal, Mr W’s tax return for the year 2004-5 had not been submitted to the Revenue.  It was not drawn up until 24 January 2006 (p.198).’

101.	The significant part of that paragraph, for the purposes of the present appeal, is the statement that ‘for the purposes of paras. 2A and 5A the submission to the Revenue of a tax return is a “circumstance” and an assessment based on the earnings shown in a tax return cannot therefore be justified under the primary provision in 5A(1) unless that tax return had been submitted by the date of the decision under appeal.’

102.	That would mean that the appeal tribunal would not have been justified in using the accounts for the year ending 5 April 2005, had those accounts not been submitted to the Inland Revenue by the date of the decision under appeal.  It is clear, however, that there is substantial evidence that the accounts had indeed been submitted by the date of the decision under appeal.  The decision under appeal was made on 4 October 2005.  Details of the appellant’s total tax profits, for the period 2004-2005, had, on balance, been submitted by him to the Inland Revenue on or around 8 September 2005.  Accordingly these were in possession of the Inland Revenue at the date of the decision under appeal.  The appeal tribunal was, on the basis of the reasoning of Commissioner in CCS/1137/2007 and CCS/1138/2007 to take these accounts into consideration, and, in so doing, did not fall foul of the ‘circumstances not obtaining’ rule in Article 22(7)(b) of the Child Support (Northern Ireland) Order 1991, as amended.

103.	In CCS/1137/2007 and CCS/1138/2007, the accounts had been submitted after the decision under appeal, but the appeal tribunal went on to consider and use them, in arriving at its conclusions.  This would not have seemed to have been permissible under Commissioner Turnbull’s reasoning in paragraph 26 of his decision.  Nonetheless, Commissioner Turnbull was able to go on to interpret paragraph 5A(3) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992, to allow the use of accounts submitted after the date of the decision under appeal. At paragraph 31, he states:

‘In determining matters arising under para. 5(3), an appeal tribunal can in my judgment look at tax returns submitted or accounts drawn up after the date of the decision under appeal, in so far as they relate to earnings arising before that date.  In the present case it was therefore permissible for the Tribunal, in determining whether it should apply para 5(3), to look at the figures in both the 2004/5 and the 2005/6 returns.’

104.	All of Commissioner Turnbull’s reasoning was directed at the version of paragraphs 2A to 5A of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992, as it was in force at the dates relevant to the two appeals before him.  That version was the same as that relevant in the appeal before me.  Paragraph 2A was amended in both Great Britain and Northern Ireland in 2007, in this jurisdiction through regulation 3(2) of the Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 2007.  Significantly, the amendment removes the reference, in paragraph 2A, to ‘as submitted to the Inland Revenue’.  It is arguable that the fact of submission to the Inland Revenue was central to Commissioner Turnbull’s conclusions at paragraph 26 of CCS/1137/2007 and CCS/1138/2007.  It remains to be seen whether that reasoning can continue to apply to decisions made under the current wording of the regulation.  As was noted above, however, Commissioner Turnbull’s reasoning is applicable in the present case, as this decision under appeal pre-dates the 2007 amendments.

105.	Accordingly, the appeal tribunal was not in error of law in taking into account the appellant’s accounts for the period ending 5 April 2005 as a basis of its determination of the absent parent’s self-employed income.

	Disposal

106.	The decision of the appeal tribunal dated 3 January 2007 is not in error of law.  Accordingly, the appeal to the Child Support Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant was liable to pay weekly CS maintenance of £0.00 from the effective date of 6 October 2004, and £21.87 from the effective date of 25 May 2005, is confirmed.

(signed):  K Mullan

Commissioner

5 March 2009