[2005] UKSSCSC CCS_1031_2005 (19 August 2005)
CCS/1031/2005

DECISION OF THE CHILD SUPPORT COMMISSIONER
  
1.	This is an appeal by the non-resident parent (Mr. M), brought with my permission, against a decision of the Cardiff Appeal Tribunal made on 14 June 2004. For the reasons set out below I dismiss the appeal. 

2.	Mr. M and the parent with care (Mrs. M) have two children, born in 1985 and 1986. 

3.	On 6 April 2001 a decision was made that Mr. M was liable to pay child support maintenance of £5.30 per week from 17 April 2000. Mrs. M appealed, and on 22 April 2002 (L1) an appeal tribunal allowed the appeal and directed that the child maintenance be recalculated in accordance with its directions, the main one being that a different year’s accounts be used. 

4.	It seems that on 5 June 2002, as a result of the appeal tribunal’s decision, the decision of 6 April 2001 was purportedly revised so that the amount payable became £43.96 per week from 17 April 2000, but then £5.30 per week from 18 September 2000 and then again £5.30 per week from 1 January 2001. 

5.	On 17 June 2002 Mrs. M applied for a departure direction on the ground that Mr. M’s lifestyle was inconsistent with his declared income. The Secretary of State, rather than deciding that application himself, referred it to an appeal tribunal, as he was entitled to do. 

6.	On 6 March 2003 the hearing of the departure direction referral was adjourned and directions were given. The first four of those directions were as follows:

“1.	Mrs. M’s application for a departure shall be treated as an appeal against the maintenance assessment 5 June 2002 in respect of the decisions from effective dates of 18 September 2000 and 1 January 2001 on the grounds of Mr. M’s income and housing costs are too high.

2.	The CSA shall produce and send to the Appeals Service Cardiff by 21 April 2003 a submission dealing with the appeal by Mrs. M against the decision of 5 June 2002. …………….

3.	Upon receipt of the CSA submission the maintenance assessment appeal should be registered as a second appeal. 

4.	Upon receipt of the maintenance assessment submission the two appeal files should be referred to Mr. Bennett for listing directions.”

7.	It appears that on 3 June 2003 an appeal by Mrs. M. against the decision of 5 June 2002 was registered on the Appeals Service computer. However, on 6 June 2003 the Appeals Service wrote to the parties saying that that appeal had been withdrawn. 

8.	On 30 September 2003 the hearing of the departure direction application was again adjourned, with detailed directions and a detailed explanation by the chairman of the background and the reasons for those directions. In particular, the chairman made it plain that he required further information for the purpose of deciding whether the application for a departure direction and the appeal against the formula assessment decision of 5 June 2002 had (as Mr. M had contended) been withdrawn since the hearing of 6 March 2003. 

9.	In November 2003 the Secretary of State made a further written submission, in accordance with the directions made on 30 September 2003. This stated, among other things (p.R4), and with reference to the withdrawal question, that the Departure Office at Basingstoke had said that no correspondence had been received by or sent to Mrs. M since 6 March 2003. As regards communications between Mrs. M and the Child Support Agency Centre at Plymouth, reference was made to pages 419 to 430 of the papers, being mainly entries on the CSA computer notepad. The submission continued: “I submit that no written confirmation is held in the Child Support Agency case papers from Mrs. M requesting to withdraw either her departure application referral (U/03/194/2002/01315) or fixed formula appeal submission (U/03/194/2003/00693).”

10.	It appears that on 16 January 2004 the hearing of both the departure application and the appeal was adjourned. It would seem (see p.T2) that the chairman intended to draft some directions as a result of that hearing, but that he was unable to do so because the files had been lost.. He directed that the files be reconstructed, so far as possible, which was done. Only the file relating to the departure referral is before me. It does not appear whether any Decision Notice, dealing with what might be considered the preliminary issue relating to withdrawal which had been identified in the Directions of September 2003, was issued as a result of the hearing on 16 January 2004, although it would appear that it probably was not. 

11.	On 22 March 2004 the hearing was adjourned again, with directions relating to the merits of the departure direction referral and the appeal. 

12.	On 14 June 2004 the Tribunal, by the decision now under appeal to me, determined the departure referral. It decided that as from the effective date of 18 September 2000 Mr. M’s net income should be increased by £33 per week on the ground that his lifestyle was inconsistent with his declared income. Mr. M appeared at that hearing but Mrs. M did not. 

Grounds of Appeal 1 and 4
13.	Grounds of Appeal 1 and 4 are that the Tribunal should have held that the departure application had been withdrawn by Mrs. M (so that the Tribunal did not have jurisdiction to determine it), or alternatively that the Tribunal did not have sufficient evidence to determine whether it had been withdrawn

14.	In para. 8 of the Tribunal’s Statement of Reasons the Tribunal said: 

“……..The Tribunal had to adjourn the hearing of the application for a departure direction partly to allow the parties to produce documentary evidence and also because of the absence of Mrs. M from the first hearing when Mr. M said that she had withdrawn her departure application. Mrs. M subsequently denied that the application had been withdrawn. There may have been discussions between the parties but no formal written request was made by Mrs. M to withdraw the application.” 

15.	Reg. 40 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides (so far as material) as follows:

“(1)	An appeal may be withdrawn by the appellant ……and a referral may be withdrawn by the Secretary of State, as the case may be, either –

(a)	at an oral hearing; or

(b)	at any other time before the appeal or referral is determined, by giving notice in writing of withdrawal to the clerk to the appeal tribunal.

(3)	If an appeal or a referral is withdrawn (as the case may be) in accordance with paragraph (1)(b), the clerk to the appeal tribunal shall send a notice in writing to every party to the proceedings informing them that the appeal or referral (as the case may be) has been withdrawn.”

16.	In my judgment it is clear that a referral to an appeal tribunal by the Secretary of State of an application for a departure direction is not withdrawn unless and until the Secretary of State withdraws it, either at an oral hearing or by notice in writing to the clerk to the tribunal. It is not withdrawn merely because the applicant for the departure direction writes to the Child Support Agency or to the Appeals Service saying that he or she wishes to withdraw the application for the departure direction. In the Secretary of State’s submission in this appeal to me it is submitted that if the applicant for the departure direction writes to the Child Support Agency withdrawing the application, the Secretary of State is then bound to withdraw the referral. That may be so, but the referral is in my judgment not actually withdrawn, and the appeal tribunal not deprived of jurisdiction to decide the referral, unless and until the Secretary of State actually withdraws it. 

17.	Whatever communications there may have been between Mrs. M and the Child Support Agency, and between Mrs. M and the Appeals Service, in my judgment there was no evidence before the Tribunal that the Secretary of State had given notice in writing to the Appeals Service withdrawing the referral under Reg. 40. I have before me the Appeals Service GAPS computer printout. Whereas the clerk to the Tribunal wrote to the parties on 5 June 2003 (as confirmed at p.R56 of the case papers) stating that the appeal against the decision of 5 June 2002 had been withdrawn, no similar letter was sent in relation to the departure application referral, strongly suggesting that the Secretary of State had not withdrawn it. Further, according to para. (15) of the introduction to the Claimant’s grounds of appeal there is a letter from the Appeals Service dated 12 September (presumably 2003) recording that they have received a letter withdrawing Mrs. M’s appeal but asking that the referral “be placed on hold”. (I do not believe that that letter is in the papers). That also strongly suggests that the CSA had not withdrawn the referral. 

18.	The evidence particularly relied on on behalf of Mr. M is set out in paras. (14) to (19) of the introduction to the grounds of appeal. That evidence suggests that Mrs. M considered that her departure application had been placed on hold, rather than withdrawn. But however that may be, none of that evidence in my view constituted evidence which would have entitled the Tribunal to hold that the Secretary of State had withdrawn the referral to the appeal tribunal of the departure direction application. 

19.	I therefore reject grounds of appeal 1 and 4. 

Grounds of Appeal 2 and 3
20.	These grounds assert that the Tribunal had on 6 March 2003 directed that the referral of the departure application proceed as an appeal against the decision of 5 June 2002 under the formula assessment. However, in my judgment it is clear from paras. 3 and 4 of the Directions given on 6 March 2003 (which refer to “a second appeal” and “the two appeal files”) that the Tribunal was in para. 1 of those Directions purporting to direct that the application for a departure direction should be treated also as an appeal against the formula assessment decision of 5 June 2002. In my judgment therefore, even if (which is very doubtful) the Tribunal would have had power to direct that the referral of the departure application should cease to be such and should be treated instead as an appeal against the formula assessment decision of 5 June 2002, that is not what it purported to do. I therefore reject grounds of appeal 2 and 3. 

Ground of Appeal 5
21.	This ground of appeal contends that (a) the Tribunal gave insufficient reasons for its finding that Mr. M was likely to have received some payments which he did not declare and (b) (in effect) that there was a breach of natural justice in the Tribunal so finding because the item of evidence on which Tribunal relied for so finding, namely the contra-entries for rent, was only put to Mr. M right at the end of the hearing. However, in my judgment the Tribunal’s reasons were adequate. It was entitled to infer from the fact that Mr. M did work for his landlord in return for a foregoing of the rent, that he was likely to have done other work in exchange for cash payments which he did not declare. Having so inferred, there was no more that the Tribunal could reasonably give by way of reasons. Further, I would not accept that there was any breach of natural justice. It had been the main burden of Mrs. M’s case that Mr. M worked for cash and that his income was therefore higher than he had declared, and that issue was fully ventilated at the hearing. Although the particular point relating to the work for the landlord appears only to have been raised at the end of the hearing, it seems to me that Mr. M had an adequate opportunity to deal with it. It has not been suggested on his behalf that there was anything more which he could have said in relation to it. I therefore reject this ground of appeal. 

Ground of Appeal 6
22.	In my judgment the Tribunal sufficiently indicated in para. 15 of the Statement of Reasons that it had had regard to the factors which s.28F(2) of the Child Support Act 1991 particularly requires to be taken into account in considering whether it is just and equitable to make a departure direction. I therefore reject this ground of appeal. 

The Secretary of State’s submission
23.	The Secretary of State supports this appeal on the ground (which is adoted by Mr. M’s solicitors in their further submission dated 11 August 2005) that “in making no other findings in respect of [Mr. M’s] lifestyle to show that his declared earnings could not have covered his rent or that he had no other source of income (credit, capital) the tribunal has further erred in law.” 

24.	Reg. 25(1) of the Child Support Departure Direction (etc) Regulations enables a departure direction to be made where “the current assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall life-style of that non-applicant.” It is expressly provided by Reg. 25(2) that Reg. 25(1) shall not apply where the life-style of the non-applicant is paid for out of capital belonging to him or is paid for by his partner. In my judgment the Tribunal’s finding must be seen against the background that Mr. M was denying that he had any other income than that which he had declared, and was not asserting that his lifestyle was provided for other than out of that declared income. It was not a case where Mr. M was accepting that his lifestyle was higher than could be paid for out of his declared net income, but was giving some other explanation for that lifestyle (e.g. that it was funded out of capital). In those circumstances, the Tribunal was in my judgment justified in inferring, and gave sufficient reasons for inferring, that if (as it found) the Claimant in fact had additional (i.e. undeclared) income, that was supporting a higher lifestyle than could be supported out of his declared net income. I would not therefore accept that the Tribunal erred in law in the respect which the Secretary of State’s representative considers that it did. 

25.	For the above reasons I therefore dismiss this appeal. 

	(signed on the original)	Charles Turnbull
		Commissioner
		19 August 2005