BB-v-Department for Social Development (CS) [2013] NICom 67
Decision No:  CSC4/13-14

1ST RESPONDENT: DEPARTMENT FOR SOCIAL DEVELOPMENT

2ND RESPONDENT: Non-resident parent

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 May 2012

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal, made by a parent with care, for leave to appeal from the decision of a child support appeal tribunal sitting at Craigavon on 17 May 2012.

2.	For the reasons I give below, I disallow the appeal on the main grounds submitted by the mother.  However, I allow the appeal on a narrow technical issue.  I set aside the tribunal decision under Article 25(2) of the Child Support (NI) Order 1991 and I give directions to the Department under Article 25(3)(d) of the Order for the determination of the case.

	REASONS

	Background

3.	The applicant is the parent with care and mother (I will subsequently refer to her as “the mother”) of two children.  On 12 August 2002, on the basis that the children’s father (I will subsequently refer to him as “the father”) was a non-resident parent of the children, she applied to the Department for Social Development (the Department) for a maintenance assessment in respect of the children.  The Department assessed the father as being liable to make maintenance payments from 22 August 2002.  His liability to make maintenance payments continued, but at different rates determined in a series of supersession decisions, until 14 May 2009.  From that date no maintenance was payable on the basis that the father was in receipt of income based jobseekers allowance.

4.	On 10 January 2011 the mother advised the Department that the father was working in Dublin.  The Department contacted the father by telephone but he denied this.  On 14 January 2011 the Department made a decision refusing to supersede the award of child support maintenance.  The mother appealed.  However, on 8 June 2011, based on evidence from the father that he was in fact working in Dublin, the Department carried out a revision of the decision of 14 January 2011, leading to a new decision that the father was liable to pay maintenance of £185.69 per week from 6 January 2011 to 16 February 2011 and £176.60 per week from 17 February 2011.  As this was more favourable to the mother than the appealed decision, the appeal lapsed.

5.	On 19 July 2011 the mother submitted a new appeal on the grounds that the assessment of maintenance was still incorrect.  A further revision was made on 25 October 2011 to the effect that the father was liable to pay maintenance of £182.29 per week from 6 January 2011 to 16 February 2011 and £173.20 per week from 17 February 2011.  As these changes were not in the mother’s favour, the appeal continued.

6.	The appeal was heard on 2 February 2012 and 17 May 2012 by a tribunal consisting of a legally qualified member (LQM) and a financially qualified member.  The tribunal remitted the award of maintenance for the period from 6 January 2011 to 16 February 2011 to the Department for recalculation, and decided that the father was liable to pay £173.20 per week from 17 February 2011 in respect of the children.  The mother requested a statement of reasons for the tribunal’s decision.  This was issued on 10 July 2012.  On 10 August 2012 the mother made an application for leave to appeal to the Child Support Commissioner.  The LQM refused leave to appeal by a determination issued on 21 August 2012.  On 21 September 2012 the mother’s application for leave to appeal to a Child Support Commissioner was received.

	Submissions

7.	The mother submits that the tribunal has erred in law as:

(i)	the tribunal failed to make a revision decision from the correct date, relying on regulation 16 of the Child Support (Maintenance Assessment Procedure) Regulations (NI) 1992;

(ii)	the tribunal failed to consider all the circumstances of her case including evidence of the father’s income for the period 2009-12.

8.	The Department was invited to make observations on the mother’s application for leave to appeal.  Mr Donnan responded for the Department.  He observed that there were other appeals pending in respect of the maintenance assessment in this case.  He indicated that the Department supported the application for the reason that the tribunal should have adjourned to consider all the outstanding appeal issues together.

The tribunal’s decision

9.	The tribunal of 17 May 2012 adopted the earlier record of the adjourned hearing of 2 February 2012 as part of its record of proceedings.  At 2 February 2012 the tribunal had indicated that the proceedings were addressed to two decisions – the first determining the rate of child support maintenance payable from 6 January 2011 to 16 February 2011 and the second determining the rate from 17 February 2011.

10.	From the record of proceedings, it was evident that the mother wished the tribunal to consider additional matters.  These included the question of whether the father had concealed his income at an earlier period, whether he was living with a partner at the time and the lack of enforcement of payment of arrears of child support maintenance.  The tribunal offered to adjourn the proceedings to enable the mother to be represented or to obtain advice.  She declined and indicated that she wanted the case dealt with.  She indicated that she had other appeals pending, one of which addressed matters in 2006.

11.	The tribunal considered the issue of the father’s housing costs and travel to work costs, allowing the mother’s appeal in some minor respects.  The tribunal declined to consider the mother’s concerns in relation to previous decisions, on the basis that these decisions were not before it in the course of the particular appeal.

	Relevant legislation

12.	The basic procedures for adjudication of child support are established by the Child Support (NI) Order 1991 (the 1991 Order).  These are supplemented by the Social Security and Child Support (Decision and Appeals) Regulations (NI) 1999 (the Decisions and Appeals Regulations) and by further individual provisions in regulations relating to child support.

13.	Following amendments resulting from the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, and by virtue of the Child Support, Pensions and Social Security (2000 Act) (Commencement No.9) Order (NI) 2003, the right to appeal in the present case is derived from Article 22 of the 1991 Order as amended.  So far as relevant this reads:

22.—(1)  A qualifying person has a right of appeal to an appeal tribunal against—

(a)  a decision of the Department under Article 13, 14 or 19 (whether as originally made or as revised under Article 18);

(b)  a decision of the Department not to make a maintenance calculation under Article 13 or not to supersede a decision under Article 19;
…
(2)  In paragraph (1), “qualifying person” means—

(a)  in relation to sub-paragraphs (a) and (b), the person with care, or non-resident parent, with respect to whom the Department made the decision;
…

(7)  In deciding an appeal under this Article, an appeal tribunal—

(a)  need not consider any issue that is not raised by the appeal; and

(b)  shall not take into account any circumstances not obtaining at the time when the Department made the decision or imposed the requirement.

(8)  If an appeal under this Article is allowed, the appeal tribunal may—

(a)  itself make such decision as it considers appropriate; or

(b) remit the case to the Department, together with such directions (if any) as it considers appropriate.

14.	A further relevant provision appears at regulation 16(1)(d) of the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992 (the MAP Regulations).  This reads: 

16.—(1) Subject to paragraphs (6) and (8), any decision may be revised by the Department—
…

(d) if the Department is satisfied that the original decision was erroneous due to a misrepresentation of, or failure to disclose, a material fact and that the decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would otherwise have been but for that error;
….

(8)  Paragraph (1) shall apply in relation to—

(a) any decision of the Department with respect to a person’s liability under Article 40 of the Order; and

(b) the supersession of any such decision under Article 19 as extended by paragraph 2 of Schedule 4C to the Order,

as it applies in relation to any decision of the Department under Articles 13, 14 or 19 of the Order.

15.	This particular provision applies to pre-3 March 2003 cases.  A similar provision for cases after that date appears at regulation 3A(1)(c) of the Decisions and Appeals Regulations.  A further relevant provision is regulation 31 of the Decisions and Appeals Regulations.  This reads, so far as relevant:

31.—(1) Where an appeal lies from a decision of the Department to an appeal tribunal, the time within which that appeal shall be brought is, subject to the following provisions of this Part—

(a) subject to regulation 9A(3), one month of the date of notification of the decision against which the appeal is brought;
…

(2) Where the Department—

(a) revises, or following an application for a revision under regulation 3(1) or (3), 3A(1) or regulation 16(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992 does not revise, a decision under Article 18 of the Child Support Order or under Article 10; or

(b) supersedes a decision under Article 19 of that Order or under Article 11, the period of one month specified in paragraph (1) shall run from the date of notification of the revision or supersession of the decision or, following an application for a revision under regulation 3(1) or (3), 3A(1) or regulation 16(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992, the date on which the Department issues a notice that it is not revising the decision.

	The Hearing

16.	At the hearing before me the mother appeared in person, accompanied but not represented by Ms Kelly MLA.  The Department was represented by Mr Donnan of Decision Making Services, accompanied by Mr Woods.

17.	The father did not appear and was not represented at the hearing.  As the father had not responded to correspondence in the course of the proceedings, had previously withdrawn from the appeal tribunal proceedings and had not indicated an intention to attend the hearing, I determined that I should proceed in his absence.

18.	The mother explained the history of the Department’s assessment of her case.  She explained that she had obtained more information about the father’s financial position through divorce proceedings than previously known and that this indicated that the father had failed to declare his income to the Department accurately.  She had asked the Department to recalculate past child support maintenance assessments on the basis of the new information, but was told that this would have to be by way of a departure direction.  She referred in her submissions to the power of the Department to carry out an “any time” revision, contained in regulation 16(1)(d) of the MAP Regulations, which she submitted had direct application to her case.  The Department had not conducted such a revision, and she had asked the tribunal to deal with the issues arising.  She submitted that the tribunal had erred in law by failing to deal with all the issues she had raised before it.

19.	In his submissions Mr Donnan confirmed that, in addition to the present appeal, there were four other appeals in the tribunal system dealing with the mother’s child support maintenance assessment.  One of these concerned a revision conducted by the Department in respect of the maintenance assessment in 2006, but was to do with an official error regarding the father’s tax allowance.  The other three appeals concerned decisions made in 2012 in respect of recent assessments, based variously on decisions concerning the father’s liability following a change in circumstances in January 2012 whereupon he ceased working, on his circumstances from March 20012 when he commenced work again, and on the question of whether he was still resident in the UK from August 2012.

20.	Mr Donnan’s written submissions prior to hearing tended to support the proposition that the tribunal erred in law by failing to adjourn to deal with all the appeals together.  At hearing he submitted that the best approach might be to set aside the tribunal’s decision and to remit the matter to the Department for a fresh decision.

21.	At hearing, Mr Donnan’s submissions again were in support of the case made by the mother.  Mr Donnan submitted that the tribunal had erred on the basis of the third potential error of law identified by the Court of Appeal in England and Wales in the case of R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 in that the tribunal had failed to take into account or resolve conflicts of fact in material matters.

	Assessment

22.	In the present case the mother had on-going appeals in respect of a number of distinct Departmental decisions.  More significantly, however, there was another separate matter which the mother wished to have decided by the tribunal, but in relation to which the Department had not made a decision.

23.	The particular decision under appeal to the tribunal took the form of a revision dated 8 June 2011, effective from 6 January 2011.  This was a revision of a refusal to supersede dated 14 January 2011.  The basis for the revision was that in June 2011 the Department now accepted that the father was working again, as the mother had initially submitted to the Department, from 6 January 2011.  The substance of the decision was to change the maintenance assessment, which had been nil from 7 May 2009 to 5 January 2011, to a figure of £185.69, later adjusted to £176.60 from 17 February 2011.

24.	The mother then appealed this revision decision to the tribunal on grounds including:

(i)	the father’s housing costs and his travel to work costs were wrongly assessed for the purpose of exempt income;

(ii)	the father’s partner’s income should be taken into account, when assessing protected income;

(iii)	the decisions from 2002-2009 contained errors, as the father’s income was higher than stated by him;

(iv)	there should not have been a reduction of the father’s liability due to an overpayment in 2009;

(v)	the liability of the father from May 2010 had been incorrectly assessed.

25.	The mother had made four other appeals in the meantime.  Three of these were addressed to changes in circumstances in 2012.  A fourth was an appeal from a revision on grounds of official error made in relation to the father’s tax assessment from 2006.

26.	I reject the submission of Mr Donnan that a failure to adjourn, in order to ensure that a number of different appeals involving the same parties can be heard at the same time, is an error of law.  It can be convenient to the parties or to those administering tribunals to have appeals heard together and normally that can be arranged.  In the particular case, the tribunal offered to adjourn to have the mother’s four outstanding appeals heard together.  The mother declined the opportunity.

27.	I asked Mr Donnan to identify the nature of any error of law which might arise in these circumstances.  He suggested that the tribunal would fail in its obligation to resolve conflicts of fact in material matters.  However, a tribunal is only obliged to determine the issues before it.  Each of the mother’s appeals involved an obligation to find facts and to apply the law relevant to the decision under appeal.  That obligation fell to be discharged by the particular tribunal hearing the particular appeal.  By Article 22(7) of the 1991 Order, “in deciding an appeal under this Article, an appeal tribunal … need not consider any issue that is not raised by the appeal …” It is not an error for a tribunal engaged in hearing an appeal from one decision to decline jurisdiction in another appeal which is not listed before it which involves a different decision.

28.	However, the submission which the mother makes is a broader one.  She submits that the tribunal erred in law by not dealing with all the issues she raised before it in relation to the assessments made by the Department in the past.  In her submissions to me the mother identifies the power to revise on the basis of regulation 16(1)(d) of the MAP Regulations, namely that a decision more favourable to the father has been made, arising from misrepresentation or failure to disclose a material fact.  She submits that the tribunal should have exercised that power in deciding the appeal before it.

29.	It is accepted by the parties that the Department has never made a decision by way of a revision under regulation 16.  The mother is frustrated that the Department has not made such a decision and she has pressed in correspondence that it should do so.  The real issue raised by the mother is whether the tribunal had any obligation to determine an issue between the parties which had not been the subject of a Departmental decision.

30.	The right of appeal to a child support appeal tribunal derives from Article 22 of the 1991 Order as amended.  There is a right of appeal from a decision made under Article 13, 14 or 19 (whether as originally made or as revised under Article 18) and from a refusal to make a decision or to supersede.  In other words the right of appeal and the jurisdiction of an appeal tribunal derives from the fact that a decision has been made under Article 13, 14 or 19.

31.	Under Article 22, there is no specific reference to a right of appeal from a refusal to revise.  It is commonly said therefore that there is no right of appeal from a refusal to revise.  However, while a Tribunal of Commissioners in R(IS)15/04 has confirmed that a decision not to revise is not in itself appealable, a decision which can be appealed is the original decision whether as revised or as not revised (paragraph 17).

32.	Any appeal is subject to the procedural rules in the Decisions and Appeals Regulations.  These require that an appeal shall be brought within the time specified in regulation 31.  In general this means that an appeal must be brought within one month of a decision.  As the mother seeks to challenge decisions making assessments for the period from 2006 to 2009, she is long out of time for appealing the original decisions.  However, as can be seen from regulation 31(2)(b) of the Decisions and Appeals Regulations, procedural provisions extend the time limit for appealing from a decision which a party wishes to have revised.  Where there has been a revision under regulation 16 of the MAP Regulations or a notice that the Department is not revising the decision, regulation 31(2)(a) extends the time limit for appealing from the original decision to a period of one month from the appropriate notification.  Therefore, where the Department revises or declines to revise a decision made many years in the past under regulation 16, the possibility of an appeal from that decision is generated.

33.	The difficulty which this still leaves the mother with in the present case is that there has neither been a revision of the decisions she seeks to challenge, nor a notice that the Department is not revising the decisions.

34.	It is well established that the failure of a statutory body to exercise its jurisdiction amounts to an error of law (R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546).  The mother may well have a remedy in judicial review proceedings before the High Court arising from the fact that the Department has refused to exercise its powers under regulation 16 of the MAP regulations.  However, in the absence of a decision by the Department or a notice to the effect that the Department declines to revise, there can be no right of appeal to a tribunal.  The particular tribunal dealing with the mother’s appeal had no jurisdiction to entertain an appeal from the decisions which the mother wished it to consider, and therefore it has not erred in law by declining to hear the issue.

35.	It follows that I must dismiss this aspect of the mother’s appeal.

36.	A technical matter was raised before me by Mr Donnan, who accepts that in its treatment of the father’s travel expenses the tribunal has used the wrong figures.  The tribunal has relied upon a figure in travel expenses of 5p per kilometre.  However, by Schedule 3B of the Child Support (Maintenance Assessments and Special Cases) Regulations (NI) 1992, the relevant figure should be 6p per kilometre.  This is an error of law and I must allow the appeal on this narrow point.  I set aside the decision of the appeal tribunal and, under Article 25(3)(d) of the 1991 Order, I direct that the Department shall recalculate the amount of the father’s travel expenses in accordance with the correct rate of travel allowance.

37.	This appeal has come about largely by the Department’s failure to address the mother’s main concern, namely whether the father misrepresented or failed to disclose material facts and that he has received a more favourable assessment in the past as a result.  For the reasons I give above, the tribunal was powerless to resolve that question in the absence of an appeal from a prior decision by the Department on it.  However, although the tribunal has not erred in law on that particular issue, it occurs to me that my powers under Article 25(3)(d) of the 1991 Order should be exercised in a broader manner in the present case.

38.	I direct the Department to invite the mother to identify any specific decisions made in her case which she submits can be revised under regulation 16 of the MAP Regulations and to provide any evidence upon which she relies to establish a basis for the exercise of the power to revise within 21 days of this decision.

39.	I direct the Department to address the evidence submitted to it by the mother and to make a decision as to whether any past decisions should be revised under regulation 16 of the MAP Regulations on the grounds that the father has misrepresented or failed to disclose any material fact and whether he has received any decision that was more advantageous to him as a result, or alternatively to notify the mother that it is declining to make such a decision.

(signed):  O Stockman

Commissioner

18 October 2013