R(CS) 5/98

Mr. M. Rowland	CCS/14873/1996
28.8.97
Tribunal jurisdiction - successful appeal against a decision given on review under section 18 of the Child Support Act 1991 - whether change of circumstances must be taken into account in subsequent reassessment
A revised child support maintenance assessment was made on review.  The father appealed on the ground that his earnings had not been properly calculated and that he had since been on sick leave with a further reduction in earnings.  The child support officer submitted that the assessment was incorrect because one parent benefit had not been taken into account, suggested that there was doubt about the calculation of earnings, submitted that housing costs had been wrongly calculated and submitted that the father’s period on sick leave was a matter outside the jurisdiction of the tribunal.  The tribunal remitted the case with directions that the father’s one parent benefit and mother’s receipt of family credit should be included in the calculation.  The father appealed to the Commissioner.
Held, allowing the appeal, that:
1.	a tribunal are not entitled to allow an appeal merely because there is doubt about some part of a child support officer’s decision; they must be satisfied that the decision was actually wrong in some respect and they should be placed in a position to deal with all outstanding issues (para. 8);
2.	there was no evidence before the tribunal or the Commissioner to suggest that the father’s earnings had been wrongly calculated (paras. 9 and 10);
3.	evidence before the tribunal showed that the calculation of housing costs was wrong and the tribunal erred in law in not addressing that issue (para. 11);
4.	if a tribunal finds no error in a decision given on review under section 18, the tribunal cannot take account of subsequent changes of circumstances, save by way of suggesting that there should be a review under section 17 (para. 13);
5.	but, if a tribunal finds an error in a decision on section 18 review, the effect of allowing the appeal is that the decision on the section 18 review must be set aside and a new decision must be made by the child support officer under section 18 and, as that new decision must take account of changes of circumstances, a tribunal must deal with issues arising on those changes in order to give appropriate directions (although the period in issue is limited if there has been another assessment since the one under appeal) and therefore the tribunal erred in not holding the father’s reduced earnings while on sick leave to be a change of circumstances to be taken into account on the new assessment (paras. 13 and 14).
The Commissioner gave the decision the tribunal should have given and remitted the case to the Secretary of State with directions.

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. 	This is an appeal, brought with the leave of a Commissioner by the father of the qualifying child (who is now an adult), against the decision of the Colchester child support appeal tribunal dated 12 February 1996. The mother has not taken any part in the appeal. The child support officer supports the appeal in part.
2. 	As long ago as 6 October 1994, a child support officer decided that the father was liable to pay child support maintenance at the rate of £39.28 per week from 2 June 1994 in respect of his daughter. On the father’s application for review on the ground that his housing costs had not been properly calculated, the second child support officer decided on 14 March 1995 that he was liable to pay child support maintenance at the rate of £31.58 per week from 2 June 1994 and at the rate of £29.33 per week from 18 October 1994. On 20 April 1995 the father appealed, referring to his income and expenses and stating that he was then on sick leave which further reduced his income. In his or her written submission to the tribunal, the child support officer said so far as is material to this appeal:
“21. On receipt of [the father’s] letter of appeal, the maintenance calculations of the second child support officer were examined. On checking it was found that:
(i)	The evidence suggests from [the father’s] MEF that he was in receipt of one parent benefit. This benefit should be included in his net income calculation and disposable income calculation in accordance with para. 6(1) & 6(2) of Schedule 1 to the CS(MASC) Regs. However, unfortunately the child support officer had not included this.
(ii)	On the pay detail dated 12 March 1994 [the father’s] pay detail included a non taxable expense and was included as income by the child support officer. Clarification may be needed with regards to this and whether it is an allowable expense in accordance with para. 1(2)(a) of Schedule 1 to the CS(MASC) Regs.
(iii) 	The child support officer had not obtained the wages ending in the relevant week and therefore the assessment period was incorrect. He had utilised a different assessment period that was not in accordance with para. 2(1)(c) of Schedule 1 to the CS(MASC) Regs. The child support officer had utilised an assessment period that was in his opinion a true and accurate reflection of what [the father] earned. He used this period in accordance with para. 2(4) of Schedule 1 to the CS(MASC) Regs.
(iv) 	From the evidence available it would suggest that [the father’s] housing costs with regards to mortgage interest payments were calculated incorrectly.
22.	In [the father’s] letter of appeal, he states that:
	...
(iv) 	His overall income has reduced as currently he is on sick leave and therefore overtime has ceased. I submit that this could be considered under a change of circumstances review carried out under section 17 of the Child Support Act and as such outside the jurisdiction of the child support appeal tribunal.
...
23.	I therefore submit that as a consequence of the findings at para. 21, the child support maintenance calculated and liable to be paid by [the father] is incorrect. The tribunal are therefore requested to remit the case to an officer acting on behalf of the Secretary of State, under section 20(3) of the CS (Act) 1991, to arrange for further evidence to be obtained and for the child support officer to implement any directions they make.”
3. 	Neither parent appeared at the hearing before the tribunal. The presenting officer appearing on behalf of the child support officer told the tribunal that, according to her information, the mother had been receiving family credit, rather than income support, from August 1994. The tribunal’s decision was as follows:
“2.	Findings of tribunal on questions of fact material to decision
1.	[The mother] received family credit and not income support after August 1994.
3.	Full text of unanimous decision on the appeal
Remitted for: (i) inclusion of [the father’s] one parent benefit in the calculation (submission 21.1); (ii) any changes necessary in consequence of [the mother’s] receipt of family credit after August 1994 to be made.
Appeal otherwise dismissed.
4.	Reasons for decision
[The father’s] one parent benefit should have been taken into account MASC Sch. 1, para. 6.
[The mother’s] receipt of family credit rather than income support makes a material difference (MASC Sch. 1, para. 6).”
4.	The father now appeals against the tribunal’s decision on the following grounds:
“I don’t think that I have any points of law to appeal.
But in 94 & 95 my daughter [...] was staying a lot of the time with her boyfriend’s parents, who also fed her, although my wife still claimed benefit for her.
I am in no position to pay large sums of money now. I have no savings, and am supporting my 17 year old son & I [am] on income support.
I am also a partially sighted, paranoid schizophrenia, the prospect of prison would return me to hospital.
About £500 a week to pay off the debt is all I could manage.”
5. 	In granting leave to appeal on 29 July 1996, the Commissioner raised the question whether the tribunal should have made findings as to the up-to-date factual position. He also directed that the appeal be expedited. Regrettably, there has been some delay while the child support officer now concerned with the case has obtained further information from the Child Support Assessment Centre in order to deal with the points raised at paragraphs 21(ii), (iii) and (iv) of the child support officer’s submission to the tribunal.
6. 	An appeal to a Commissioner lies only on a point of law and the father rightly says his letter of appeal raises no point of law. The question whether his daughter was cared for by someone other than her parents was not raised before the tribunal and, as the child support officer submits, there is still no evidence that anyone other than her mother provided “day-to-day care” as that phrase has been defined in regulation 2(1) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 which effectively means care of not less than two nights per week on average. I also agree with the child support officer that questions about the ability of a person to pay child support maintenance and the method of enforcement of such maintenance are questions for the Secretary of State and not for a tribunal or Commissioner.
7. 	However, the child support officer now concerned with the case supports the father’s appeal on the ground that the tribunal should have dealt with the points raised in paragraph 21(ii), (iii) and (iv) of the child support officer’s submission to the tribunal. It seems to me that paragraph 21(ii), (iii) and (iv) was not written in a helpful manner.
8. 	If there were reasons to doubt the accuracy of the calculation of the father’s earnings, it was not appropriate for the child support officer simply to raise the issue in the way he or she did in paragraph 21(ii) and (iii). A tribunal are not entitled to allow an appeal merely because there is a doubt about some part of a child support officer’s decision; they must be satisfied that the reviewing child support officer was actually wrong in some respect and they should be placed in a position to deal with all outstanding issues. It is no good a child support officer raising a question obliquely in a submission and expecting an unrepresented parent to appreciate its significance and produce the relevant information. If a question arises, it must be investigated and that means that clear requests for information must be made to the relevant parent. This is true even if there are other grounds upon which a tribunal is being asked to allow an appeal. It is still necessary for all points to be investigated before the hearing before the tribunal so that the parents will have the opportunity of dealing with the outcome of the investigations and the tribunal will be able to rule upon the various issues.
9. 	I think that the child support officer now concerned with this case appreciates how unhelpful paragraph 21(ii) and (iii) of the submission to the tribunal was because, as I have said, he has sought assistance on the points from the Child Support Assessment Centre. However, before I consider the new evidence, I must consider whether the tribunal really erred in law in failing to deal with the points. I am not satisfied that they did. There was no evidence which threw anything more than doubt on those aspects of the calculation; there was certainly no evidence upon which they could be satisfied on the balance of probabilities, that the calculation under appeal was wrong. The father, who had brought the appeal and who was the person who could most obviously have supplied the relevant information, did not appear. In my view the tribunal were entitled to dismiss any suggestion that the calculation was incorrect on the grounds suggested in paragraph 21(ii) and (iii) which is what they did. Further reasoning would have been superfluous.
10.	 In any event, the evidence now put forward suggests that in fact the calculation of the father’s earnings was correct in those respects. Not every non taxable allowance falls to be excluded from a calculation of earnings. Under paragraph 1(1)(d) and (2)(a) of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992, the question for a child support officer is whether a payment was made in respect of expenses “wholly, exclusively and necessarily incurred in the performance of the duties of the employment”. Many, perhaps most, non taxable allowances will be payments in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment but that is not always so. In the present case, the only purpose put forward for the allowance which was paid to the father was that it was a “meals allowance” which would have been in respect of an expense that was certainly not exclusively incurred in the performance of the duties of the employment. Accordingly, it was right not to exclude that allowance from the calculation of earnings. As to the period over which earnings were calculated, it has not proved possible to obtain the exact payments made to the claimant for the correct weeks and so the child support officer was entitled to rely on the later payslips as giving as good a picture of earnings during the relevant period as it was possible to obtain.
11.	Paragraph 21(iv) of the child officer’s submission to the tribunal raises a different point. It was suggested that the evidence before the tribunal showed that the calculation of housing costs was wrong. That was a matter that the tribunal were bound to address and they erred in law in not dealing with it, particular as the calculation was, in fact, wrong. However, I sympathise with them because it was extremely unhelpful for the child support officer not to explain in the submission to the tribunal why the calculation was wrong and the tribunal do not appear to have had any assistance on that point from the presenting officer. I have the advantage of a recalculation by the Child Support Assessment Centre which I accept as correct.
12.	The child support officer further submits:
“With regard to the specific question asked by the Commissioner, “Should the tribunal have made findings on the up-to-date factual position?”, I submit that the decision before the tribunal was that made on 14 March 1995 in consequence of a section 18 review. I submit that in hearing the appeal on 12 February 1996 the tribunal did not have jurisdiction to make findings, or to issue any direction, in respect of any change or changes after that date. If facts arise concerning changes that have taken place since the decision that is the subject of the appeal, the tribunal may suggest that the CSO has regard to those changes in conducting a review.”
I do not accept that submission, which is similar to the argument advanced in paragraph 22(iv) of the submission to the tribunal.
13. 	It is true that the decision on appeal to the tribunal was a decision given on review under section 18 of the Child Support Act 1991 and it is probably right that, if a tribunal finds no error in such a decision, the tribunal cannot take any account of any change of circumstances since the decision was given, save by way of making a suggestion to the child support officer that there should be a review under section 17 or section 19 of the Act. However, if the tribunal does find an error in the decision on the section 18 review, the effect of their allowing the appeal is that the decision on the section 18 review must be set aside and a new decision must be made by a child support officer under section 18. If that requires the making of a new assessment (rather than simply giving a decision that there are no grounds for review), the child support officer is bound to take account of changes of circumstances because section 18(9) and (10) of the Act provides:
“(9) 	If a child support officer conducting a review under this section is satisfied that a maintenance assessment or (as the case may be) a fresh maintenance assessment should be made, he shall proceed accordingly.
(10) 	In making a maintenance assessment by virtue of subsection (9), a child support officer shall, if he is aware of any material change of circumstance since the decision being reviewed was taken, take account of that change of circumstance in making the assessment.”
Therefore, in such a case, a tribunal ought to deal with any issue arising on an alleged change of circumstances and give appropriate directions necessary to ensure that section 18(10) is applied properly. To that extent, a tribunal must deal with “the 
up-to-date factual position”. However, that is subject to qualification if there has been a subsequent assessment (under section 16, section 17 or section 19) since the date of the decision on the section 18 review that is under appeal. In such cases, that subsequent assessment has the effect of terminating the period in issue before the tribunal and before the child support officer making the assessment in consequence of the tribunal’s decision (subject to any argument there might be in particular factual circumstances that a review decision given under section 17 or section 19 falls with the decision being reviewed if that is later set aside on appeal).
14. 	In the present case, the tribunal rightly allowed the father’s appeal. The consequence was that a new assessment had to be made under section 18. As the father had mentioned that he was on sick leave, which was a change of circumstances, and as the child support officer had submitted that that fact had no relevance, the tribunal should have decided that it was relevant and directed that the new assessment should deal with all changes of circumstances up to the date it was made, and so should take into account the father being placed on sick leave, unless there had been another assessment since 6 October 1994 which took account of those changes of circumstances from the dates they occurred. Like the tribunal, I do not know when, if at all, the Child Support Assessment Centre were informed by the father that he was on sick leave and I do not know whether there was a review under section 17 or section 19 taking that fact into consideration. These have not been matters in contention before me and I do not consider it necessary for me to make further enquiries before giving my decision in this case.
15. 	Accordingly, I allow the father’s appeal, although I am not sure whether my decision will be more or less favourable to him than the tribunal’s decision. I set aside the decision of the Colchester child support appeal tribunal dated 12 February 1996 and I give the decision they should have given which is to allow the appeal against the child support officer’s decision of 14 March 1995, to remit the case to the Secretary of State under section 20(3) of the Child Support Act 1991 and to give the following directions under section 20(4):
(a)	The child support officer shall take account of the father’s one parent benefit	when calculating his income;
(b)	The child support officer shall take account of the mother’s receipt of family credit rather than income support;
(c) 	The child support officer shall calculate the father’s housing costs in the manner shown in the notional assessment provided by the Child Support Assessment Centre on 5 June 1997 (doc. 147);
(d) 	The child support officer shall take account of changes of circumstances occurring during the period to which the new assessment relates and, in particular, shall take into account any substantial drop in the claimant’s income resulting from his being placed on sick leave.

Date: 28 August 1997	(signed) Mr. M. Rowland
	Commissioner