CCS/1674/2003

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	I allow the mother’s appeal.  I set aside the decision of the Sutton appeal tribunal dated 23 October 2002 and I restore the decision of the Secretary of State, issuing a departure direction to the effect that, from 13 March 2002, the claimant’s partner should be deemed to be contributing to his housing costs to the extent of 50 per cent.

REASONS

2.	The mother of the qualifying children applied for child support maintenance from the father.  The details of the basic assessment are not material to this appeal but the resulting liability imposed on the father was £98.95 pw under a Category B interim maintenance assessment.  It is not disputed that the father’s new partner was in employment.  The mother applied for a departure direction on the ground that it was reasonable for the father’s partner to contribute to the cost of the accommodation she and the father shared.  The effect of such a direction is to reduce the amount of housing costs used in calculating a person’s liability for child support maintenance.  The father did not provide any details of his partner’s earnings.  The Secretary of State considered whether to attribute 99 per cent. of the housing costs to the father’s partner (which, if I correctly understand the calculation, would have resulted in his liability being £133.30 pw), but decided merely to attribute 50 per cent. of the housing costs to her, resulting in a liability for child support maintenance of £123.29 pw.

3.	The father appealed.  The mother did not attend the hearing.  The father satisfied the tribunal that his partner had an interest in their house to the extent of one third and that she in fact paid one third of the mortgage.  The tribunal allowed his appeal to the extent of attributing to his partner one third of the housing costs.  The mother now appeals against that decision (which, her grounds of appeal suggest, led to the father’s liability being reduced to about £116 pw) with my leave and the support of the Secretary of State.  The father has not made any observations on the appeal.

4.	I agree with the Secretary of State’s submission that the tribunal’s decision is erroneous in point of law.  Regulation 40(7) of the Child Support Departure Direction and Consequential Amendments Regulations 1996, to which the tribunal’s attention was specifically drawn by the presenting officer, provides that the amount of a reduction in the father’s eligible housing costs is to be “the percentage of the housing costs which the Secretary of State considers appropriate, taking into account the income of that parent and the income or estimated income of that partner”.  In the decision notice it was stated that the father’s partner did not wish to give information as to her earnings.  It appears from the record of the proceedings that, after the presenting officer had referred to regulation 40(7), the father told the tribunal that his partner earned less than him. However, he did not say how much less and there is no reference at all in the tribunal’s statement of reasons to the income of either the father or his partner.  The tribunal appears only to have had regard to the partner’s legal interest in the property and to what she had historically contributed, rather than considering what it was reasonable to expect her to contribute in the light of her means relative to the father’s.  I must therefore set aside the tribunal’s decision.

5.	The Secretary of State suggests that I should refer this case to another tribunal.  However, the mother is content with the Secretary of State’s original decision and I see no reason not to restore it.  I am prepared to accept the father’s evidence to the tribunal that his partner earned less than him, but there is no evidence that the difference was significant.  He has had the opportunity of providing such evidence.  If a parent does not provide proper evidence of his partner’s income, or if the partner does not provide the parent with the information, they must accept that the consequence will be that the parent’s liability for child support maintenance will be based on assumptions about his partner’s income that may not always be accurate.  In the present case it seems to me to be eminently just and equitable to make a departure direction on the basis that it was reasonable for the father’s partner to contribute 50 per cent. of the housing costs.

6.	It is not necessary for me to consider the mother’s other ground of appeal but it may be helpful if I comment upon it.  She lived in Newcastle-upon-Tyne and submits that there was a breach of natural justice because she was unable to attend the hearing in Sutton due to work and family commitments.  She says in her grounds of appeal that a request that the hearing be in Newcastle was ignored.  However, the tribunal file shows no such request.  It may be that she originally expected the hearing to be in Newcastle but, when she received notice of the hearing in Sutton, she simply informed the tribunal that she would not be attending due to work and family commitments.  Had she made a specific request for the hearing to be in Newcastle, the tribunal would have been bound to consider it, although not necessarily bound to grant it.  The father lived in Croydon so that it was plainly not possible to arrange a hearing to suit both parents.  As it was, the tribunal was entitled to infer from her letter that she was content for the hearing to take place in her absence.  Accordingly, I would not accept the claimant’s second ground of appeal.  

	(Signed)	MARK ROWLAND
		Commissioner
		19 September 2003