R(CS) 5/02

Mr. J. Mesher	CCS/2962/2000
14.6.01
Jurisdiction – misconceived appeal – whether right of appeal to Commissioner
The absent parent appealed to a tribunal against a child support officer’s decision. The case was put to the tribunal as one in which the issue was whether or not the appeal was misconceived, within the meaning of regulation 48 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The tribunal determined that the appeal was misconceived. The absent parent applied for leave to appeal to the Commissioner. 
Held, granting leave and allowing the appeal, that:
1.	a conclusion by a tribunal that an appeal is misconceived is a decision against which an appeal lies to a Child Support Commissioner under section 24(1) of the Child Support Act 1991;
2.	the requirement in regulation 46(4)(a) for a notice of intention to strike out is not met by the issue by the Child Support Agency to the appellant of form TAS1M;
3.	the requirement in regulation 46(4)(b) for the ground on which the intention is based demands an explanation of why the appeal is said to have no prospect of success;
4.	in the present case, neither of those requirements was satisfied so that the tribunal had no jurisdiction to determine that the appeal was misconceived, nor did the tribunal or a chairman have jurisdiction to strike out the appeal.
The Commissioner gave a decision setting aside the tribunal’s decision that the absent parent’s appeal was misconceived, so that his appeal remained to be heard by a tribunal.

	DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	I grant the absent parent leave to appeal against the decision of the Hull appeal tribunal dated 24 February 2000. For the reasons given in paragraph 28 below, I consider that I am able to give the decision on the appeal to the Commissioner. My decision is to set aside the appeal tribunal’s decision as wrong in law, on the ground that there was no jurisdiction for an appeal tribunal to determine the question of whether the absent parent’s appeal against the child support officer’s decision dated 29 March 1999 was misconceived. Accordingly that appeal remains outstanding and, subject to what is said in paragraph 29 below, is to be heard by an appeal tribunal.

2.	This is a case which has many difficulties. An oral hearing of the application was directed by a legal officer. Neither parent attended, but the Secretary of State was represented by Mr. Leo Scoon of the Office of the Solicitor to the Departments of Health and Social Security. He was able to shed some light on what had gone on. Some new points emerged when I was thinking about how to decide the case and I directed a further written submission from the Secretary of State. That submission was dated 15 February 2001 (although not received in the Commissioners’ office until 22 February 2001). The absent parent sent a reply to that submission with no comments. The parent with care did not reply.

3.	The case was put to the appeal tribunal as one in which the issue was whether the absent parent’s appeal was misconceived. Such an issue is to be determined as a preliminary issue by an appeal tribunal under regulation 48 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”), if a number of procedural steps have been taken first. In particular, notice must under regulation 46(4) have been given to the appellant of the intention to strike the appeal out as misconceived (i.e. frivolous or vexatious, or obviously unsustainable and with no prospect of success). There is evidence in the Appeals Service file of a form TAS1M (which seems to have been intended as such a notice) having been sent to the absent parent by the Child Support Agency. I conclude below that that is not sufficient to comply with regulation 46(4). But the appeal tribunal did decide that the appeal was misconceived, and I therefore treat the case as one involving that preliminary issue under regulation 48.

4.	The first question to be asked is whether there is any right of appeal to a Child Support Commissioner against such a decision under regulation 48. I am satisfied that there is a right of appeal in child support cases (whatever the answer might be in social security cases) because of the terms of section 24(1) of the Child Support Act 1991. This provides that “any person who is aggrieved by a decision of an appeal tribunal .... may appeal to a Child Support Commissioner on a question of law”. There is no restriction to decisions which were made on appeals to the appeal tribunal under section 20. At first sight there seems no reason why an appeal tribunal’s decision under regulation 48 should not count as a decision for the purposes of section 24(1). The absent parent was aggrieved by what the appeal tribunal did on 24 February 2000 and therefore ought to have a right of appeal to a Commissioner under section 24(1), subject to leave being granted under section 24(6). That was the position accepted by Mr. Scoon at the oral hearing.

5.	After the oral hearing I decided that I ought to give the Secretary of State the opportunity to comment on the following point, as set out in my direction dated 14 December 2000:

	“However, section 24(1) uses the word ‘decision’. In regulation 48 of the 1999 Regulations, when an appeal tribunal has answered the question whether or not an appeal is misconceived, it is said to ‘determine as a preliminary issue’ that the appeal is misconceived or not (see regulation 48(4) and (5)). The regulation does not use the word ‘decision’ and the statement that the question is a preliminary issue is repeated several times. The word ‘determination’ is not used in an entirely consistent way in the legislation on child support and on decision-making. Often it is used to describe the process of coming to a decision on some question, but there is the possibility of a difference being intended between a ‘decision’ and a ‘determination’ as the outcome of what an appeal tribunal does. It may therefore be arguable that what an appeal tribunal produces under regulation 48 of the 1999 Regulations is not a ‘decision’, so that there is no right of appeal under section 24(1). I wish to have the Secretary of State’s submission on that possibility (on which the parents can comment).”

6.	The submission on behalf of the Secretary of State was that an appeal tribunal acting under regulation 48 of the 1999 Regulations would make a “determination”, from which there is no right of appeal under section 24(1). It was said that the difference in language was significant, as was the description of the matter as a preliminary issue. There was also reference to Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262 [R(SB) 12/83], where it was held that there was no right of appeal against a Commissioner’s decision to refuse leave to appeal from a supplementary benefit appeal tribunal, because it was not the kind of decision contemplated by the relevant section. It was also suggested that there was an alternative remedy, in that following a striking-out under regulation 48(4) there could be an application to a chairman under regulation 47 for the appeal to be reinstated.

7.	I reject that submission. There is plainly in the ordinary use of language a decision by an appeal tribunal when the conclusion is expressed under regulation 48 that an appeal is misconceived. The appeal itself is not decided, but a question is decided which has the automatic result of bringing the appeal to an end, by a striking out. The description of the question as a preliminary issue does not alter that conclusion. In regulations 46 and 48 the words “determine” and “determination” are used only to describe the process of reaching a conclusion on the question. I also note that regulation 48(5) includes, where an appeal tribunal concludes that an appeal is not misconceived, an obligation to give reasons for that conclusion when referring the appeal to the Secretary of State. It would be quite extraordinary, and possibly a contravention of Article 6 of the European Convention on Human Rights, if there were no obligation on an appeal tribunal to give reasons for a conclusion that an appeal is misconceived. If the reaching of a conclusion is regarded as a decision of an appeal tribunal, then the requirement of regulation 53 of the 1999 Regulations on the provision of a decision notice and a statement of reasons operate. Those documents were provided in the present case.

8.	Thus, although there may be other contexts within the 1999 Regulations in which a distinction between decisions and determinations is significant, I am satisfied that there is no difference in the effect in relation to rights of appeal to the Child Support Commissioner. That is strongly confirmed by the primary legislation on child support. In its original form, section 24(1) of the Child Support Act 1991 provided:

	“(1) Any person who is aggrieved by a decision of a child support appeal tribunal, and any child support officer, may appeal to a Child Support Commissioner on a question of law.”

At that time, section 21(1) provided as follows, with the words in square brackets added with effect from 2 December 1996 when the departure direction legislation came into force:

	“(1) There shall be tribunals to be known as child support appeal tribunals, which shall, subject to any order under section 45, hear and determine appeals under section 20 [and have such other functions as are conferred by this Act].”

9.	That indicates to me a plain intention that section 24(1) was to apply to all decisions by child support appeal tribunals, regardless of any distinctions between determinations and decisions. With effect from 1 June 1999, the references in section 24(1) to child support appeal tribunals and to child support officers were amended to references to appeal tribunals and to the Secretary of State, but there was nothing to displace the intention I have set out above. The Court of Appeal has recently reminded us of the importance of the principle that rights of appeal given by primary legislation should not be cut down by secondary legislation in the absence of clear authorisation (R v Secretary of State for the Home Department, ex parte Saleem [2000] 4 All ER 814). That principle further supports my conclusion.

10.	The right of appeal under section 24(1) is subject to leave being granted under section 24(6). A Commissioner may only grant leave to appeal where a parent has applied for leave to a legally qualified appeal tribunal panel member (“chairman”) and the application has been refused or rejected (regulation 11(1) of the Child Support Commissioners (Procedure) Regulations 1992 (“the Procedure Regulations”)). In the present case, the absent parent wrote to the Appeals Service asking to appeal against the appeal tribunal’s decision after receiving the decision notice. A full-time chairman examined the case and took the view that there was a right of appeal under section 24(1), but that a chairman did not have power to grant leave to appeal. He considered that that could only be done by a Commissioner. His view was based on a mistaken reliance on regulation 58 of the 1999 Regulations, which does not apply to child support cases at all. Regulation 10 of the Procedure Regulations gives chairmen power to deal with applications for leave to appeal in child support cases. The full-time chairman gave no ruling on the absent parent’s application, but put the case to the chairman of the appeal tribunal to prepare a statement of reasons for decision. That was done and was sent to the claimant with a letter dated 10 June 2000 which said, in relation to the request to appeal, that there was no such right of appeal, but that the absent parent might wish to apply direct to the Commissioners’ office. I regard that as a rejection of the absent parent’s application to the chairman, so that I have power under regulation 11(1) of the Procedure Regulations to deal with the subsequent application to the Commissioners.

11.	It is plain that leave to appeal should be granted. First, it is arguable that the necessary procedural steps had not been taken to in order to found a decision under regulation 48 of the 1999 Regulations. It is relevant to that point that it was quite impossible from the Secretary of State’s written submission to the appeal tribunal and the documents attached to tell what decision the absent parent was seeking to appeal against and therefore whether the appeal had any prospect of success or not. But that would if necessary constitute a ground for granting leave on its own.

12.	On the main point, regulation 46(4) of the 1999 Regulations provides that a misconceived appeal may not be struck out by a chairman unless the appellant has been given notice of––

	“(a)	the intention to strike out the appeal,
	 (b)	the ground on which the intention to strike out is based, and
	 (c)	the requirement to notify the clerk to the appeal tribunal in writing of the matters specified in regulation 48(1)(a) or (b) and that failure to comply with this requirement may result in the appeal being struck out.”

Regulation 48(1) requires an appellant who has been given notice under regulation 46(4) to say within 14 days whether or not he wishes there to be an oral hearing before an appeal tribunal of the question of whether the appeal is misconceived. In the absence of a reply within that time a chairman may strike out the appeal (regulation 48(2)). In the Appeals Service file is a copy of a form TAS1M which was sent to the absent parent by the Child Support Agency on 18 November 1999, with a copy of the Secretary of State’s written submission to the appeal tribunal. The tear-off part of that form is already in the Commissioner’s papers at pages 7B and 7C, but it seems that the absent parent sent the whole form to the Appeals Service.

13.	The first page of the form TAS1M was as follows:

	“Your appeal has been forwarded to the Independent Tribunal Service at the address ticked below:

	...

	The Independent Tribunal Service will arrange for your appeal to be heard at the local venue, closest to your home address.

	You must complete the attached tear-off Enquiry Form and return it to the Independent Tribunal Service in the envelope provided, within 14 days of the date at the top of this letter. If you do not return the enquiry form the Independent Tribunal Service will assume that you do not want to continue with your appeal and it will be brought to an end without a hearing.

	Please keep the Notes About Your Appeal which appear on the reverse side of this letter. This information is to help you to decide how you want your appeal to progress now that it has reached the Independent Tribunal Service. It will also help you to complete the attached Enquiry Form.

	Enclosed is a copy of the documents about your appeal. A copy of these documents have also been sent to the Independent Tribunal Service. The documents contain a further explanation of the reasons why the decision was made and the evidence which supports the decision.

	All further enquiries about your appeal will now be dealt with by the Independent Tribunal Service.”

That letter makes it absolutely plain that it was sent by the Child Support Agency and that no-one from the Independent Tribunal Service had at that point seen the submission on behalf of the Secretary of State with its attached documents. In other cases, the appeal itself might not have been seen, but in the present case a chairman had earlier ruled that the appeal should be admitted for hearing, despite the child support officer’s assertion that it was not duly made because it did not state grounds.

14.	Note 1 of the “notes about your appeal” on the reverse was as follows:

	“In the opinion of the person making the decision, your appeal has no reasonable prospect of success. This is because your appeal is against something in law which cannot be changed. The enclosed documents explain the reasons why this decision has been made. The Independent Tribunal Service will now arrange for a legally qualified panel member to consider whether your appeal has any prospects of success. If it does, the Independent Tribunal Service will then arrange for your appeal to be heard by an appeal tribunal, if it does not your appeal will be brought to an end.

	You can give reasons why you think your appeal can succeed either in writing when you return the enclosed enquiry form or by completing Section 3 of the enquiry form to request an oral hearing so that you can be present to explain your reasons.”

The absent parent returned the tear-off enquiry form opting for a “paper hearing”. The form, despite the inaccuracies in note 1 about the procedure, might constitute notice under heads (b) and (c) of regulation 46(4) (although I must come back later to head (b) in the circumstances of the present case). But there was no notice, in accordance with head (a), of an intention to strike out the appeal. There can only be such notice when a person who has the power to strike out a misconceived appeal has formed an intention to do so. Indeed the suggestion in the notes that a legally qualified panel member (i.e. a chairman) would consider the question seems positive notice that no intention to strike out on the misconceived appeal ground had yet been formed by any chairman. There is no evidence of any further notice under regulation 46(4)(a) being given before the appeal tribunal made its determination on 24 February 2000.

15.	It must therefore be arguable that an essential condition for the striking out of the absent parent’s appeal was missing and that all the subsequent proceedings before the appeal tribunal were invalid or a nullity. I asked for a submission from the Secretary of State on this point in my direction of 14 December 2000, as I had not discovered the TAS1M at the time of the oral hearing. Unfortunately, either by my mistake or that of the Commissioners’ office, a copy of the TAS1M notes and the reverse page was not attached to the direction as I had intended. The Secretary of State’s submission on the circumstances as I described them in the direction was that the requirement of regulation 46(4)(a) was not met. However, it was also submitted that that did not render the appeal tribunal’s proceedings a nullity. The proceedings were merely defective, and there was provision for a correction of the defect in an application for reinstatement under regulation 47. One of the grounds on which an appeal can be reinstated after being struck out is that the appellant did not receive the notification required under regulation 46(4) (regulation 47(b)).

16.	I do not accept all the elements of the Secretary of State’s submission. It is exceptionally difficult to work out how the relevant regulations are intended to fit together. I start with the relatively easy parts. The requirement for notice of intention to strike out in regulation 46(4)(a) had not been met. It seems to me that in such circumstances a chairman has no jurisdiction to strike out an appeal in a case where there had been no intervening decision from an appeal tribunal. Regulations 46(4) and 48(2) in my view make it plain that an appeal can in such a case be struck out as misconceived only where notice has been given under regulation 46(4). The consequences of a substantial non-compliance with regulation 46(4) are thus made clear. The procedure for reinstatement in regulation 47 would then be a convenient way of formally giving effect to that conclusion if a complaint were made.

17.	However, the same conclusion does not necessarily follow where an appellant responds to a notice which does not meet the requirement of regulation 46(4)(a) in a way which leads to the question of whether the appeal is misconceived coming before an appeal tribunal for determination. There is first a difficulty about the effect of regulation 48(4):

	“(4) Where the appeal tribunal determine as a preliminary issue that the appeal is a misconceived appeal, the appeal shall be struck out and the clerk to the appeal tribunal shall notify the appellant that the appeal is struck out.”

Does that require a chairman to exercise the power under regulation 46(4), as I suggested in my direction, or does it mean that the striking out is incorporated either impliedly or by an express statement into the appeal tribunal’s decision that the appeal is misconceived? I have rather changed my mind and now tend to think that the second alternative is right. That fits slightly better with the language of regulation 48(4) and with the whole matter being taken out of the hands of a chairman once the appellant opts for the question to go to an appeal tribunal. It would though mean that (until the amendment with effect from 19 June 2000) there was no power under regulation 47 to reinstate an appeal struck out under regulation 48(4).

18.	On either alternative there is then an issue about the effect of non-compliance with regulation 46(4)(a) where the regulations do not prescribe the result (see the endorsement by the House of Lords in Attorney General’s Reference (No 3 of 1999) [2001] 1 All ER 577 of looking at the proper consequences of non-compliance and not seeking simply to classify a requirement as either mandatory or directory). On the one hand there is the argument that where the appellant has had his case considered by an appeal tribunal after the opportunity to put in submissions or to appear in person, the source of the original notice is of little significance. On the other hand is the argument that the whole procedure should not be set in motion unless a person with the particular legal qualifications of a chairman has looked at the matter and formed a view that the appeal is misconceived and should be struck out, so that non-compliance with regulation 46(4)(a) invalidates any further steps towards striking out on that ground.

19.	Fortunately, I do not have to resolve those arguments because in the present case there is another deficiency in the notice beyond non-compliance with regulation 46(4)(a). As I explain below there was also a failure to give adequate notice of the ground on which striking out was proposed, as required by regulation 46(4)(b). The requirement in regulation 46(4)(b) cannot be met by simply stating that the ground relied on is that the appeal is misconceived or has no reasonable prospect of success. There must be some statement, possibly by reference to another document, of why the appeal is said to have no reasonable prospect of success. Exactly what is required will vary according to the circumstances of individual cases. If such an explanation is not given, the appellant is deprived of a proper and fair basis on which to reply to the notice under regulation 46(4) and to make any submissions to an appeal tribunal which determines the question. In such circumstances, where there is a failure to meet the requirements of both heads (a) and (b) of regulation 46(4), I have no doubt that the consequence is that neither a chairman nor an appeal tribunal has power to strike out the appeal or to determine that the appeal is misconceived.

20.	My reasons for concluding that there was non-compliance with regulation 46(4)(b) are as follows.

21.	The written submission on behalf of the Secretary of State to the appeal tribunal was a complete disgrace. It contained obvious mistakes; it was internally inconsistent; it failed to identify the decision under appeal; it failed to set out the relevant facts and the history of decisions; and it failed to deal with the relevant legislation. And all in only a few lines over one page.

22.	The submission stated that the decision under appeal was dated 29 March 1999 and was as follows (I have substituted the initial for the surname of the parents concerned):

	“Mrs [G] was liable to pay £0.00 per week, in respect of Carl, from the effective date of 22/04/94.”

The appeal had been made by Mr. G, described as the absent parent. His statement on the appeal form gave the date of the letter telling him about the decision as 29 March 1999, but said that the decision appealed against was “money stop out of my benefit”. He said that he was living on £79.46 a fortnight, and also that he had had his son for four years and his wife had not paid any maintenance for him. In later forms he said that he was on income support and was sick, and that his son had gone back to live with his wife in September 1998.

23.	That immediately raises the question of whether the decision set out in the submission was actually the decision under appeal. First, was “Mrs” a typing error or had some decision relating to a period when Carl was living with Mr. G been typed out by mistake in the submission? If it should have referred to Mr. G, then there were the oddities that the decision was from an effective date in 1994, but was made in March 1999, and that the assessment was for nil when the absent parent was complaining about having to make payments. The first oddity might be partly explained by a maintenance application having originally been made in 1994, when Carl was living with Mrs. G, but no assessment being made because he went to live with Mr. G. Then an assessment was eventually made after Carl went back to Mrs. G and Mr. G became an absent parent again. I suspect from the information given to me at the oral hearing by Mr. Scoon that that may have been the case, but it was left entirely obscure in the submission.

24.	The second oddity is not so easily explained. The written submission went on to refer to paragraph 7 of Schedule 1 to the Child Support Act 1991, under which the Secretary of State can prescribe in regulations a minimum amount of child support maintenance, which is to be the amount of the assessment when the calculation would otherwise give an amount of nil or less than the minimum. As at 29 March 1999 the prescribed minimum amount was £5.10. One part of paragraph 7(3) of Schedule 1, in conjunction with regulation 26 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (“the MASC Regulations”), provides that the minimum amount does not apply in certain circumstances, including the receipt of or entitlement to certain social security benefits. The submission asserted, without supplying any supporting evidence, that the absent parent did not fall into any of the exempting circumstances. Therefore, it was said, he was required to pay the prescribed minimum amount. But the decision said to be under appeal was that the absent parent was liable to pay nil. How could that decision possibly be supported by what was said in the submission?

25.	That suggests plainly, when read with the straightforward language of the absent parent’s appeal, that the decision which he was appealing against was in fact a decision that £5.10 per week was, from some date, to be deducted from his benefit as a payment in place of a payment of child support maintenance. The mechanism for such deductions is in section 43 of the Child Support Act 1991 and regulation 28 of the MASC Regulations. Then paragraph 7(3) of Schedule 1 to the Child Support Act 1991 specifically provides that the minimum amount of child support maintenance does not apply when section 43 applies. Thus, if the statutory conditions for making this deduction from benefit are met, the minimum amount of child support maintenance does not apply, and there can be a nil assessment. That is consistent with the decision set out in the Secretary of State’s submission. But there should have been a separate decision dealing with the application of section 43 and regulation 28. There is a specific set of rules for the making of such decisions and appealing against them (Schedule 5 to the MASC Regulations as at the date the appeal was made; from 1 June 1999 see Schedule 4C to the Child Support Act 1991). There are considerable difficulties in the way in which such decisions are made, in particular in the gathering of the relevant evidence before the decision is made and in the interaction with action taken with the Benefits Agency. I discussed some of these difficulties at considerable length in a decision in appeal CCS/16904/1996 (signed on 16 December 1997), which was subsequently upheld on 24 May 1999 by the Court of Appeal in Dollar v Child Support Officer (reported as R(CS) 7/99).

26.	None of that complicated legislation was mentioned at all in the Secretary of State’s submission to the appeal tribunal. As it happens, the adjudication history produced by Mr. Scoon at the oral hearing shows that the absent parent’s appeal did arise from consideration of what is called there a “contribution to maintenance” under regulation 28. That document showed the deduction from benefit as beginning on 8 February 1999. Mr. Scoon also said that it was accepted that with effect from 18 April 1999 the absent parent became entitled to incapacity benefit, from which point a condition in regulation 28 for making the deduction would cease to be satisfied. He had no documents to support that statement. The Secretary of State’s submission of 15 February 2002 said that a print-out from the Benefits Agency was some confirmation that deductions were made from 8 February 1999 to 12 April 1999, but it appears not to have been attached to that submission. Entitlement to incapacity benefit is also a circumstance specified in regulation 26 which prevents the minimum amount of child support maintenance applying. Thus it seems that, in relation to the particular issue of deductions from benefit, only a relatively short closed period is in question, and that if any deductions have been made later (as is suggested by what the absent parent has written) some separate authority would be needed.

27.	Those are my reasons for concluding that there was non-compliance with regulation 46(4)(a) and (b). As I have concluded in paragraph 19 above that the appeal tribunal had no jurisdiction, leave to appeal must be granted. If I had concluded that the appeal tribunal had had jurisdiction, I would have granted leave on the basis of its failure to investigate the matters mentioned in paragraphs 21 to 26 above.

28.	In the light of my conclusions there is no purpose to be served by requiring any separate submissions on an appeal. Under regulation 11(3) of the Procedure Regulations I may only treat and determine an application for leave to appeal as an appeal with the consent of the parties. I regard such consent as having impliedly been given by the Secretary of State in the submission of 15 February 2001 and by the absent parent in his reply, as both treat the case as an appeal, not an application. As the parent with care has taken no part in the proceedings whatsoever, I regard her consent as also having impliedly been given in not replying to the Secretary of State’s submission of 15 February 2001. Accordingly, my decision on the appeal is as set out in paragraph 1 above.

29.	My decision leaves the absent parent’s appeal against the child support officer’s decision of 29 March 1999 outstanding, so that it must be heard by an appeal tribunal (with a different chairman from that of the appeal tribunal of 24 February 2000). Before that happens the Secretary of State must prepare a proper written submission on the appeal, repairing the defects set out in paragraphs 21 to 26 above and in particular identifying carefully the nature of the decision under appeal and the legislative provisions on which it was based. It may possibly be that, after seeing a full explanation of the decision and its limits, the absent parent will not want to continue with the appeal. If so, he may withdraw the appeal by written notice under regulation 40 of the 1999 Regulations. In the absence of a withdrawal by the absent parent, I have no power to direct that a chairman should not consider starting the misconceived appeal procedure. However, I suggest that in the circumstances any chairman should think long and hard before doing that.

Date: 14 June 2001						     (signed) Mr. J. Mesher
Commissioner