DB-v-Department for Social Development (CS) [2013] NICom 29

Decision No:  CSC1/11-12(T)

APPELLANT:  MR B

1ST RESPONDENT:  DEPARTMENT FOR SOCIAL DEVELOPMENT

2ND RESPONDENT:  MS B

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 12 October 2010

DECISION OF A TRIBUNAL OF CHILD SUPPORT COMMISSIONERS

1.	The decision of the appeal tribunal held on 12 October 2010 is in error of law.  The error will be described in more detail below.  Pursuant to the power set out in Article 25(2) of the Child Support (Northern Ireland) Order 1991 we set aside the decision of the appeal tribunal.  Our decision is that the Department has failed to make a valid decision which alters the decisions of the appeal tribunal made on 6 November 2008.  The net effect of our decision is that the decisions of the appeal tribunal dated 6 November 2008 remain extant.

2.	It will for the Department to decide whether to undertake any further decision-making in connection with the decisions of the appeal tribunal dated 6 November 2008.

	Parties to the appeal before the Child Support Commissioners

3.	The appellant is Mr B.

	The Department is the first respondent.

	Mrs B had previously been married to Mr B.  She will be referred to in the remainder of this note as PWC1.  She is the second respondent.

	Mrs CB is Mr B’s second wife from whom it is claimed she separated in August 2007.  She will be referred to in the remainder of this decision as PWC2.

	Proceedings before the Child Support Commissioners

4.	The decision under appeal to the Child Support Commissioners is the decision of the appeal tribunal dated 12 October 2010.  Leave to appeal was granted by the legally qualified panel member (LQPM) on 19 April 2011.  In granting leave to appeal, the LQPM did not identify any point of law arising.

5.	On 5 December 2012, the Chief Child Support Commissioner for Northern Ireland made a decision, under paragraph 2(1) of Schedule 4 to the Child Support (Northern Ireland) Order 1991, and directed that as it appeared to him that the appeal involved a question of law of special difficulty, that the appeal be dealt with, not by a Child Support Commissioner alone but by a tribunal consisting of two or more of the Child Support Commissioners.

6.	An oral hearing of the appeal took place on 15 February 2013.  At the oral hearing, the appellant was represented by Miss McNicholl of Counsel instructed by Bernard Campbell & Co Solicitors.  The Department was represented by Miss McHugh and Mr Crilly.  The second respondent was represented by Miss Kiley of Counsel instructed by Donard King & Co Solicitors.  Gratitude is extended to all representatives for their detailed and constructive observations, comments and suggestions.

	What was the decision under appeal to the appeal tribunal below?

7.	The decision under appeal to the appeal tribunal below was a ‘decision’ of an officer of the Child Maintenance and Enforcement Division (CMED) dated 26 January 2010.  A copy of the ‘decision’ dated 26 January 2010 was attached to the original appeal submission as Documents B14 – B18.

	What did the ‘decision’ dated 26 January 2010 purport to do?

8.	In the original written observations, Miss McHugh submitted that the ‘decision’ dated 26 January 2010 implemented the decision of the appeal tribunal dated 30 November 2009.  The decision of the appeal tribunal of 30 November 2009 had been a decision on an appeal by PWC2 against a CMED decision dated 28 November 2008, which, in turn, had ‘cancelled’ or ‘removed’ an application for child support maintenance which had been made on 30 August 2007.  PWC2 had made the application for child support maintenance on the basis that she had separated from the appellant in August 2007.  On 30 November 2009, the appeal was allowed and the findings of the appeal tribunal were that PWC2 was not living with the appellant as of 5 February 2008.

9.	Looking at the detail of the ‘decision’ as set out at Documents B14-B18 of the original appeal submission, the decision-maker set out the following narrative, in Document B14:

‘As per the Appeal Tribunal decision of 30/11/09, [the appellant] is not living with PWC2 consequently PWC2’s application for child support maintenance … is validly made in accordance with Article 7 of the Child Support (Northern Ireland) Order 1991.

The Department was therefore incorrect to cancel PWC2’s application so PWC2’s application for child maintenance must now be processed as appropriate, this case is to be converted from old scheme to new scheme and any old scheme decisions made on this case with effective dates subsequent to 21/02/08 to be reviewed and addressed as appropriate in accordance with new scheme legislation.’

10.	The net effect of the ‘decision’ dated 26 January 2010 was to convert the child support maintenance entitlement in respect of PWC1 from the ‘old scheme’ to the ‘new’ scheme.

	What did the appeal tribunal below decide?

11.	The decision notice for the appeal tribunal’s decision reads as follows:

‘Appeal allowed.

The tribunal finds that at the effective date of 21 February 2008 (the appellant) was residing with parent with care two.

There were no grounds on 26 January 2010 to supersede the decision of the appeal tribunal of 6 November 2008.

The Tribunal directs that the case reverts to be calculated under the old scheme on a clerical basis.

The case is remitted to the Department to calculate maintenance assessment and [PWC1’s] entitlement to child support at the effective date of 21 February 2008 taking these findings into account.’

	Why was the ‘decision’ dated 26 January 2010 problematic?

12.	On 6 November 2008 another appeal tribunal had heard and determined four appeals which had been brought by PWC1.  The appeal tribunal disallowed one of the four appeals but allowed the appeals in the three others.  The effect of the decisions in the appeals which were allowed by the appeal tribunal on 6 November 2008 was as follows:

	(i)	There were no grounds for the cancellation of the departure direction dated 25 May 2007 and, accordingly, the appellant remained liable to pay child support maintenance of £93.50 per week in respect of [PWC1’s children] from the effective date of 26 April 2007.

	(ii)	There were no grounds to supersede the decision dated 18 December 2006 as no relevant change of circumstances had been established.  The appellant remained liable to pay £66.78 per week in respect of [PWC1’s] children from the effective date of 16 October 2006.

	(iii)	The Department’s decision dated 5 June 2008 was not confirmed.  The case was remitted to the Department for calculation of the maintenance assessment at effective dates of 21 February 2008 and 28 February 2008 on the basis that (a) the appellant has net income of £372.92 (b) housing costs as determined in the Department’s decision dated 25 May 2007 and (c) the appellant was living with a partner and two children.

13.	Article 17 of the Social Security (Northern Ireland) Order 1998 (‘the 1998 Order’), as amended, provides that:

‘17.—(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under Article 12, any decision made in accordance with those regulations shall be final.’

14.	The ‘foregoing provisions of the Chapter’ include Article 13 relating to appeals to an appeal tribunal.

15.	Accordingly, the decisions of the appeal tribunal on 6 November 2008 are, for the purposes of Article 17 of the 1998 Order, final, unless further appealed, revised or superseded.

16.	We are aware that the decisions of the appeal tribunal of 6 November 2008 were not further appealed.  The appellant in the instant case had the right to appeal the three decisions of the appeal tribunal dated 6 November 2008 which were adverse to him but chose not to do so.  PWC1, who was the subject of an adverse decision in the fourth appeal, chose not to appeal against that decision.

17.	Accordingly, the only manner in which the decisions of the appeal tribunal of 6 November 2008 could be changed would be by way of revision or supersession.

18.	Revisions are provided for in Article 18 of the Child Support (Northern Ireland) Order 1991 (‘the 1991 Order’) and Regulation 3A of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (‘the 1999 Regulations’), as amended.  The scope for revision of decisions of an appeal tribunal is limited.

19.	Article 18(1) of the 1991 Order provides that:

‘18.—(1) Any decision of the Department under Article 13, 14 or 19 to which paragraph (1A) applies may be revised by the Department—

(a) either within the prescribed period or in prescribed cases or circumstances; and

(b) either on an application made for the purpose or on the Department’s own initiative,

and regulations may prescribe the procedure by which a decision of the Department may be so revised.’

	Paragraph 1A provides that:

‘(1A) This paragraph applies to—

(a)  a decision of the Department under Article 13, 14 or 19;

…

(c)  a decision of an appeal tribunal on a referral under Article 28D(1)(b).’

	In turn, Article 28D(1)(b) provides that:

‘28D.—(1) Where an application for a departure direction has not failed, the Department shall—

…
 	
(b) refer the application to an appeal tribunal for the tribunal to determine it in accordance with those provisions.’

	Regulation 3A of the 1999 Regulations is headed ‘Revision of child support decisions’.  Regulation 3A(1) provides that:

‘3A.—(1) Subject to paragraph (2), any decision, as defined in paragraph (3), may be revised under Article 18 of the Child Support Order by the Department …’

	Regulation 3A(2) has no applicability here.  Regulation 3A(3) provides that:

‘(3) In paragraphs (1) and (2) “decision” means a decision of the Department under Article 13 or 14 of the Child Support Order, a determination of an appeal tribunal on a referral under Article 28D(1)(b) of that Order or any supersession of a decision under Article 19 of that Order.’

20.	As the decisions of the appeal tribunal of 6 November 2008 were not determinations on a referral of the 1991 Order, then revision of those decisions under the provisions set out above is not possible.

21.	Supersessions are provided for in Article 19 of the 1991 Order and Regulation 6A of the 1999 Regulations.  Article 19(1) of the 1991 Order provides that:

‘19.—(1) Subject to paragraph (2), the following namely—

	…

	(b) any decision of an appeal tribunal under Article 22; and 

may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department’s own initiative.’

	Regulation 19(2) has no applicability here.  Regulation 6A provides that:

‘6A.—(1) This regulation and regulation 6B set out the circumstances in which a decision may be made by the Department under Article 19 of the Child Support Order.

(2) A decision may be superseded by a decision of the Department, on an application or acting under its own initiative, where—

	(a) there has been a relevant change of circumstances since the decision had effect or it is expected that a relevant change of circumstances will occur;

	(b) the decision was made in ignorance of, or was based on a mistake as to, some material fact; or

	(c) the decision was wrong in law (unless it was a decision made on appeal).

(3) The circumstances in which a decision may be superseded include where the relevant change of circumstances causes the maintenance calculation to cease by virtue of paragraph 16 of Schedule 1 to the Child Support Order or where the Department no longer has jurisdiction by virtue of Article 41 of that Order.

(4) A decision may be superseded by a decision of the Department where the Department receives an application for a variation of the decision under Article 28G of the Child Support Order.

(5) A decision may not be superseded in circumstances where it may be revised.

(6) A decision to refuse an application for a maintenance calculation may not be superseded.’

	Regulation 6B has no applicability here.  The ground for supersession set out in regulation 2(c) cannot apply as the decisions purported to be superseded were decisions made on appeal.

22.	Accordingly, the grounds on which the decisions of the appeal tribunal dated 6 November 2008 were that there had been a relevant change of circumstances since the decision had effect or that the decisions were made in ignorance of, or were based on a mistake as to, some material fact.  In our view it is not possible for the decisions of the appeal tribunal dated 6 November 2008 to be superseded on either of those grounds.

	Did the appeal tribunal have the power to rectify errors in the decision-making process?

23.	The duties of an appeal tribunal, in determining an appeal against either a revision or supersession decision, were comprehensively analysed and reviewed by a Tribunal of Social Security Commissioners in Great Britain in R(IB)2/04.  That decision is clear authority for the proposition that where an appeal tribunal identifies defects in a decision which purports to change the effect of a previous decision (eg failure to use the terms ‘revise’ or supersede’, failure to indicate that a previous decision is being revised or superseded, failure to identify the previous decision being revised or superseded, failure to specify the ground for revision or supersession, or reliance on the wrong ground for revision or supersession), the appeal tribunal has the jurisdiction to remedy those defects and make the decision which the Department ought to have made.

24.	The power to remedy defects is limited, however.  The Tribunal of Commissioners in R(IB) 2/04 recognised, at paragraph 72 that:

‘… there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions … at all.’

25.	These exceptional cases could not be subjected to the newly identified remedying powers.

26.	In the present case, in our view, not only did the purported ‘decision’ of 26 January 2010, which was under appeal to the appeal tribunal, have ‘little coherence or connection to legal powers’ that it did not amount to a decision at all, it did not, in our view, have any such coherence or connection in that there was no legal basis, under the 1991 Order and 1999 Regulations, for the making of a revision or supersession decision.  Accordingly, the issue of the remedying of defects in it does not arise.

	Why was the decision of the appeal tribunal in error of law?

27.	We are of the view that the appeal tribunal was alert to the finality of the decisions of the appeal tribunal dated 6 November 2008 and for the requirement that any alteration to those decisions could only be by way of appeal, revision or supersession.  As was noted above, the decision notice for the appeal tribunal decision contains the sentence ‘There were no grounds on 26 January 2010 to supersede the decision of the appeal tribunal of 6 November 2008.’  The appeal tribunal appeared to be classifying the CMED decision of 26 January 2010 as a supersession but then went on to decide that no grounds for supersession existed.

28.	The error in the decision of the appeal tribunal was to fail to recognise that there were no grounds for either a revision or a supersession of the decision dated 26 January 2010.

	Other issues arising

29.	Having found that the decision of the appeal tribunal was in error of law for the reasons which we have set out above, we do not have to consider the other issues which arose in the appeal.  We would make the following comments which, however, must be considered to be obiter dicta, in relation to our overall decision:

	(i)	We are wholly satisfied that, as a matter of principle, decisions of one appeal tribunal ‘… are not binding precedents for another tribunal at the same level, and certainly not as regards issues of fact.’  This latter principle is taken from paragraph 51 of the decision of Upper Tribunal Judge Wikeley in Secretary of State for Work & Pensions v AM (IS) ([2010] UKUT 428 (AAC), CIS/384/2010) following a review by the Judge of all of the relevant and ‘well-established’ authorities on this issue.  To that list of authorities could also be added the decision of Upper Tribunal Judge Turnbull in KJ v Secretary of State for Work & Pensions (DLA) ([2010] UKUT 452 (AAC), CDLA/1491/2010.

	(ii)	We have noted that the definition of ‘party to the proceedings’, set out Regulation 1 of the former Child Support Appeal Tribunal (Procedures) Regulations (Northern Ireland) 1993 permitted the chairman of what was then a child support appeal tribunal to join as a party to the proceedings, on an application to that effect, any person appearing to the chairman to be ‘interested in the proceedings’.  Article 22 of the 1991 Order provides that a ‘qualifying person’ has a right of appeal to an appeal tribunal against certain decisions of the Department.  In Article 22(2) ‘qualifying person’ is defined as the person with care or non-resident parent.  In Regulation 1 of the 1998 Regulations, party to the proceedings is defined as Department and any person who has a right of appeal to an appeal tribunal under Article 22(1) to (3) of the Child Support Order.  There is no provision, as there was under the 1993 Regulations to add any ‘interested party’ as a party to the proceedings.

		Applying those provisions to the instant case, it is clear that the parties to the proceedings in the appeal tribunal below were the Department, PWC1 and the appellant.  There is no provision for joining PWC2 as a party to the proceedings.  The purported ‘decision’ of 26 January 2010 extended to PWC1 and the appellant alone.

	(iii)	It seems to us that the scheme for child support maintenance provided for, initially, through the Child Support (Northern Ireland) 1991, was designed to deliver a scheme for the assessment of child support maintenance following the separation of what was a couple into a single parent with care and a non-resident parent.  Subsequent amendments to the scheme do not incorporate or make provision for the increasingly common scenario of a single non-resident parent and multiple parents with care.  The present arrangements whereby separate decisions, with resultant appeal rights, are required for individual parents with care in a multiple setting do not permit for holistic decision-making in respect of the group of children as a whole.  Whether the statutory scheme should be altered to change the present arrangements is one for the policy-makers of the Department.

	(iv)	In her original written observations on the appeal, Miss McHugh indicated that the decision of the appeal tribunal in the instant case was implemented by the Department through a further decision.  That decision was clearly adverse to PWC2 who has exercised a right of appeal against that implementing decision.  Miss McHugh advises us that PWC2’s appeal has been accepted by the Appeals Service but has been stayed pending the resolution of this matter before the Commissioner.  It will be for the Department to return to the issues arising in the further appeal in light of our decision in this case.  It will also be for the Department to address a further anomaly raised by Miss McHugh at paragraphs 58 to 60 of her written observations on the appeal.

	Disposal

30.	The decision of the appeal tribunal held on 12 October 2010 is in error of law.  Pursuant to the power set out in Article 25(2) of the Child Support (Northern Ireland) Order 1991 we set aside the decision of the appeal tribunal.  Our decision is that the Department has failed to make a valid decision which alters the decisions of the appeal tribunal made on 6 November 2008.  The net effect of our decision is that the decisions of the appeal tribunal dated 6 November 2008 remain extant.

(signed):  K Mullan

Chief Commissioner

(signed):  O Stockman

Commissioner

(signed):  D J May

Deputy Commissioner (NI)

28 March 2013