DECISION OF THE CHILD SUPPORT COMMISSIONER
1.	My decision is as follows. It is given under section 24(2) and (3)(d) of the Child Support Act 1991.
1.1.	The decision of the Colchester appeal tribunal under reference U/42/132/2001/00536, held on 3rd January 2002, is wrong in law.
1.2.	I set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.
Before this case is listed for rehearing, it must be put before a legally qualified panel member to consider whether it is necessary or appropriate to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In particular, the panel member will want to give directions to the parties to ensure that the relevant evidence is available to the appeal tribunal. A directions hearing may be appropriate in order to identify what is needed and who has what. However, I make no direction on that point, leaving it to the judgment of the district chairman concerned.
The appeal to the Commissioner
2.	This case concerns the child support maintenance payable with respect to Jay. In the terminology of the child support legislation, the appellant is the absent parent, and the second respondent is the parent with care. I shall refer to them in those terms.
3.	The case comes before me on appeal to a Commissioner against the decision of the appeal tribunal brought with my leave. The Secretary of State supports the appeal. 
The issues
4.	The appeal to the Commissioner raises two issues.
A fair hearing
5.	The first issue concerns the loss of documents by the Child Support Agency. The tribunal described the result as a ‘gaping evidential hole covering a period of 5 years.’ In my grant of leave, I raised the question how the parties could receive a fair hearing in those circumstances. Unfortunately, the representative of the Secretary of State has not offered any suggestions. 
6.	The tribunal commented that ‘neither a crystal ball nor a magic wand’ could overcome the lack of evidence. But the lack of evidence from the Agency’s files did not relieve the tribunal of its duty to give all parties to the proceedings a fair hearing. In order to do that, the tribunal should have reconstructed the evidence relevant to those periods, as best it could. It was not necessary for the tribunal to reconstruct all the evidence that had been provided in respect of the period. The parent with care’s letter of appeal raised certain issues. The tribunal only needed to reconstruct the evidence relevant to those issues. The parties had to provide the evidence that they still held. 
7.	the appeal tribunal did not take this approach. It thereby went wrong in law. 
The absent parent’s earnings
8.	The appeal tribunal calculated the absent parent’s earnings in this way. It found that the figures given by the absent parent were inherently improbable. It was entitled to make that finding for the reasons that it gave. So, it had to fix another figure for his earnings. It had oral evidence from the parent with care that, 12 years before, the absent parent had earned £700 a week. It made allowance for the absent parent to be undertaking less hard physical work as he got older. The tribunal concluded as a matter of ‘rough justice’ that the absent parent was now earning £200 net a week more than he had disclosed. The tribunal did not refer to any legislation. 
9.	The representative of the Secretary of State submits that the relevant legislation is contained in paragraphs 2A to 5A of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. Those paragraphs provide for the calculation of the earnings of a self-employed earner. The basic rule is that the earnings are based on the figures submitted to the Inland Revenue (paragraph 2A) or as appearing in the tax calculation (paragraph 2B). A different approach is only permissible if it is not reasonably practicable for the absent parent to provide that information. See paragraph 2C and note that the power given by paragraph 5(3) is only available if paragraph 2C applies – see paragraph 5(6). If the parent with care believes that the absent parent has income that cannot be taken into account under those paragraphs, the proper course is to apply for a departure direction.
10.	The Secretary of State’s submission is correct on the current law. That law came into force on 4th October 1999.  In so far as the tribunal was concerned with the period from that date, it did not apply the legislation and thereby went wrong in law. 
11.	The assessments before the tribunal dated back to 1993. In so far as the tribunal was concerned with the period before 4th October 1999, it had to apply paragraphs 3 to 5 of Schedule 1 as in force from time to time. Those paragraphs were more flexible legislation than the current legislation. 
12.	It is obviously difficult for a tribunal to calculate earnings for a party whose own evidence is not believed. It is not permissible simply to pick a figure from the air. The tribunal did not do that. It worked from a figure for past earnings and applied a discount to reflect the physical nature of the work, the absent parent’s age and the extent to which he was likely to value leisure more than work as the years went by. That approach had the advantages of a known starting point in the parent with care’s evidence and a rational process of reasoning. As the tribunal went wrong in other respects, I do not have to decide whether or not it went wrong in this respect also. I can, instead, suggest an alternative and more objective starting point. The New Earnings Survey from the Office of National Statistics contains average gross weekly and annual earnings for those employed in a wide range of manual and non-manual occupations. The figures are for the employed earners, not the self-employed, but they provide a starting point. The figures for 2000 and 2001 are set out in Table C5 in 2002 Facts and Figures Tables for the Calculation of Damages, published by Sweet and Maxwell for the Professional Negligence Bar Association. I do not know how far back the Survey goes. There may be other surveys which provide similar information.
The absent parent’s attitude to the disclosure of evidence
13.	The absent parent has tried to submit evidence to me on the basis that I will read it but not disclose it to the parent with care. I refused to read the evidence. If a party relies on evidence, it must be seen by all the parties. There are limited exceptions in regulation 44 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and regulation 9 of the Child Support Commissioners (Procedure) Regulations 1999. Those apart, one party to the proceedings cannot provide evidence for the tribunal or the Commissioner alone. That would deprive the other parties of a chance to comment on and challenge the evidence. That would be a breach of natural justice and a violation of their Convention right to a fair hearing. 
14.	The absent parent has also refused to provide his business accounts because his partner will not consent to their disclosure. If he will not provide this evidence, then the tribunal will not be able to take it into account. 
15.	The proceedings before an appeal tribunal and a Commissioner are legal proceedings. They are not a game. If the absent parent is not prepared to participate properly in the proceedings, he must take the consequences. In particular, the tribunal will have to decide whether the circumstances of his refusal to make evidence properly available entitled it to draw adverse inference about his income and other circumstances. 
Summary
16.	I allow the appeal and direct a rehearing so that the relevant evidence may be obtained and considered by the tribunal. 

Signed on original	Edward Jacobs
Commissioner
10th October 2002