THE CHILD SUPPORT COMMISSIONERS

Commissioner’s Case No: CCS/2910/2001

CHILD SUPPORT ACT 1991 AND 1995
SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER
MR COMMISSIONER JACOBS

DECISION OF THE CHILD SUPPORT COMMISSIONER
1.	My decision is as follows. It is given under section 24(2) and (3)(a) of the Child Support Act 1991.
1.1.	The decision of the Nottingham appeal tribunal, held on 30th April 2001, is wrong in law.
1.2.	I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
1.3.	My decision is that the ‘appeal’ was outside the jurisdiction of the appeal tribunal. 
The appeal to the Commissioner
2.	This case concerns an application for child support maintenance with respect to Jason. The appellant is Jason’s father and the second respondent is Jason’s mother. I refer to them in this decision as the father and the mother.
3.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought with the leave of a regional chairman of tribunals. The Secretary of State does not support the appeal. The parents have both made observations on the appeal.
The history of the case
4.	The father submitted an application for child support maintenance under section 4 of the Child Support Act 1991 on 17th November 1999. The usual action was not taken on that application in that a Maintenance Enquiry Form was not issued to the mother. I do not know why. However, on 5th May 2000 a telephone call took place between the father and an officer of the Child Support Agency. The officer recorded and is sure that the father said he did not want to pursue the case. The case was then ‘closed’. The father has denied that consistently from the following month when he was told of the record that had been made of the call.
5.	As the mother was receiving family credit until 3rd January 2000, her income for child support purposes would have been assessed at nil until that date. Jason ceased to be qualifying child on 1st May 2000. So, for practical purposes the application could at most have resulted in a significant liability for four months. 
6.	Nonetheless, the father insisted that he had not asked for the case to be closed. He pursued his case to an appeal tribunal. That tribunal dismissed his appeal, accepting as accurate the record of the telephone call of 5th May 2000. 
7.	The father has now appealed further to a Commissioner. 
Legal analysis of action taken
Could the father withdraw his application?
8.	Yes, he could. 
9.	The father’s application was made under section 4 of the Child Support Act 1991.
10.	Section 11(1) requires the Secretary of State to deal with an application in accordance with provision made by or under the 1991 Act. That duty only arises when there has been an application and only survives for so long as the application subsists. 
11.	There is no provision that in its terms allows an application to be ‘withdrawn’. I have considered two possibilities. 
11.1.	First there is section 4(5). It provides that
	‘Any person who has applied to the Secretary of State under this section may at any time request him to cease acting under this section.’
	This power arises as soon as an application has been made. It is not postponed until a child support maintenance assessment has been made. And there is no provision for the form in which the request must be made. However, in dealing with the application the Secretary of State acts under section 11, not under section 4. So, this subsection may not include withdrawals.
11.2.	Second, there is regulation 2(6) of the Child Support (Maintenance Assessment Procedure) Regulations 1992. It allows an application to be amended in writing, but that cannot be interpreted to include withdrawal. 
12.	So, there is no clear provision that allows an applicant for a child support maintenance assessment to withdraw the application. However, applications under section 4 are voluntary. In contrast to applications under section 6, there is no element of compulsion on the applicant. In that context, there is no need for an express authority for an application to be withdrawn. Nor is there any reason for requiring a withdrawal to be made in a particular form, although it is advisable for there to be some incontrovertible evidence that one has been made. My conclusion is that, even if section 4(5) does not include withdrawals of applications, withdrawal is permissible and may be effected orally. 
What step was taken by the Secretary of State following the withdrawal?
13.	The Secretary of State ‘closed the case’. 
14.	That is a form of words used by the Secretary of State in both child support and social security cases. It has no statutory authority and so regularly causes uncertainty for Commissioners about the form of the action or decision taken. 
15.	The issue narrows down to this: was the action taken or decision given one that allows an appeal to an appeal tribunal under section 20 of the 1991 Act? The only possible head of appeal that could apply is under section 20(1), which covers refusals of applications. So the issue narrows further to this: did the Secretary of State refuse the application?
16.	I cannot interpret ‘refusal’ to cover the closure of a case following the withdrawal of an application. Refusal presupposes a consideration of the merits of an application. If the application no longer exists, there can no longer be a determination of its merits and, therefore, no refusal. My conclusion is that the closure of a case following a withdrawal is not susceptible to appeal to an appeal tribunal.
Authorities
17.	So far I have not relied on any authorities in support of my analysis and interpretation. They are not necessary on issues of statutory interpretation, which depend upon context and principle and not on analogous facts. However, there are two decisions of the courts that support my conclusions.
18.	One is the decision of the Divisional Court of King’s Bench in R v Hampstead and St Pancras Rent Tribunal, ex parte Goodman [1951] 1 All England Law Reports 170. The case concerned an application to a tribunal for a reasonable rent to be fixed. After the application was made, the parties agreed on a reduced rent and tried to withdraw the application. There was no express statutory authority for an application to be withdrawn. However, the Court held that (a) the application could be withdrawn and (b) the withdrawal deprived the tribunal of jurisdiction. 
19.	The other is the decision of the Court of Appeal in Boal Quay Wharfingers Ltd v King’s Lynn Conservancy Board [1971] 3 All England Law Reports 597. The case concerned an application to continue employing dock workers at a port. Before the application was finally determined, the applicant closed the business and asked for the application to be withdrawn. It was, nonetheless, refused. The applicants then sought compensation, which was only payable if an application was refused. The Court held that the application could be and had been withdrawn. The effect of the withdrawal was that there was no longer an application that could be determined. So, there was no basis for compensation. As Lord Denning explained at page 602:
	‘If an application is withdrawn, the licensing authority are under no duty, and have no power, to hear or determine the application. They cannot refuse it, because there is no subsisting application for them to refuse. There is nothing left of the application. There is no room for a refusal.’
Conclusion
20.	The tribunal’s decision in this case was to dismiss the appeal. That was wrong. The correct decision should have been that the tribunal had no jurisdiction to hear the appeal. 
Even if I am wrong
21.	If my legal analysis is wrong and the tribunal did have jurisdiction to hear the appeal, the key issue for determination was one of fact: did the father withdraw his application? The tribunal decided that he did. It was rational for the tribunal to accept the contemporaneous note of a telephone call by an official who was disinterested in whether the application was withdrawn or not. There is no error of law in the tribunal’s conclusion on that key fact. So, if my analysis is wrong, I would dismiss the appeal.
22.	The father’s arguments become irrelevant once that key fact is decided against him. The consequence of that fact is that the Secretary of State did not determine the application. It is irrelevant that the Secretary of State could have acted earlier but for some reason did not act. There can be no appeal against a decision that was not taken.  
23.	Finally, I note that the father’s arguments make two assumptions. First, he assumes that an assessment could have been of the mother’s liability without her completing a Maintenance Enquiry Form. The evidence does not show that that was possible. Second, he assumes that he was Jason’s parent with care. That is not certain; the mother disputes it. 
Summary
24.	On my analysis of the law, the tribunal had no jurisdiction to determine the appeal. I set the decision aside and give the decision that the tribunal should have given. If the tribunal did have jurisdiction to hear the appeal, I would dismiss the appeal because the tribunal did not go wrong in law. 
25.	If a mistake has been made in this case, it is an administrative one by the Child Support Agency in not acting promptly on the father’s application. As the Secretary of State pointed out in the submission to the tribunal, the father may apply for compensation. That is the father’s proper remedy in this case. 

Signed on original	Edward Jacobs
Commissioner
24th January 2002