[2005] UKSSCSC CCS_1086_2005 (16 November 2005)

THE CHILD SUPPORT COMMISSIONERS

Commissioner’s Case No: CCS/1086/2005

APPEAL AGAINST A DECISION OF AN APPEAL TRIBUNAL

CORRECTED DECISION OF MR COMMISSIONER JACOBS
(To remove the original paragraph 29) 

DECISION OF THE CHILD SUPPORT COMMISSIONER
1.	My decision is given under section 24 of the Child Support Act 1991. It is:
The decision of the Sutton appeal tribunal under reference U/45/176/2004/02539, held on 26 October 2004, is not wrong law. 

The issue
2.	This case raises what is probably the most difficulty issue for any chairman of child support cases. How is it possible to give all the parties a fair hearing despite the fact that some of the evidence is masked?
The history of the case
3.	This case concerns the formula assessment of child support maintenance in respect of Sean. In the terms of the child support legislation, his father is her parent with care and his mother is his absent parent. 
4.	The case came before the appeal tribunal on appeal by the parent with care. The key issue for the tribunal was whether the absent parent was living with Mr T as his partner. The absent parent provided evidence relating to Mr T and his relationship with the absent parent. The Child Support Agency masked parts of that evidence that would allow Mr T’s whereabouts to be identified and other parts that would not, such as the name of the court in which the parents’ divorce was handled and the name of the district judge who made an order in those proceedings.  
5.	Both parents attended the hearing of the appeal and gave evidence. The tribunal accepted the parent with care’s evidence and decided that the absent parent and Mr T were partners. It directed that her liability for child support maintenance be reassessed on that basis. The parent with care sought leave to appeal to a Commissioner. This was refused by a district chairman but granted by Mr Commissioner Bano. He raised the question of whether the masking of the evidence had prevented there being a fair hearing.
6.	When the parties had made their written observations, Mr Bano directed an oral hearing. He then transferred the case to me. The oral hearing was held before me in the Commissioners’ Court in London on 9 November 2005. The absent parent did not attend. The parent with care attended, accompanied for support and assistance by Mr Daniel Smith, a friend,. The Secretary of State was represented by Ms Gillian Harris of the Office of the Solicitor to the Department of Work and Pensions. I am grateful to the parent with care and to Ms Harris for their arguments before me. I announced at the end of the hearing that I would dismiss the appeal and give my reasons later. These are my reasons.
The absent parent’s arguments
7.	The absent parent criticised the tribunal’s decision on four grounds. 
8.	First, the absent parent complains that the tribunal did not explain to her in detail the evidence concerning Mr T. I reject this complaint. This is not part of the tribunal’s function. If the absent parent is arguing that the tribunal should have explained the legal significance of the evidence to her, the answer is that she should have asked if she not understand. The significance of the allegation that she was living with a partner should have been sufficiently clear to her. The tribunal was entitled to assume that it was unless told otherwise. Anyway, how could an understanding of the legal significance of the evidence affect the evidence that the absent parent gave?
9.	Second, the absent parent complains that the tribunal did not have enough evidence to reach its decision. I reject this complaint. The parent with care put an argument to the tribunal. The absent parent put her case against it, which the tribunal rejected. Having rejected that case, the tribunal was left with the parent with care’s evidence and allegations. The tribunal was entitled to infer from the evidence available and the basis of the rejection of the absent parent’s case that she and Mr T were living as partners. 
10.	Third, the absent parent complains that the tribunal misdirected itself by not dealing with housing costs. I reject this complaint. The absent parent put a case to the tribunal, which the tribunal rejected. Once that case was rejected, the tribunal had no basis for making findings of fact on housing costs. Specifically, it had no basis for making any findings that depended on Mr T’s status. The absent parent had denied living as Mr T’s partner and thereby deprived the tribunal of any evidence it might have had of their finances if the absent parent had admitted their relationship. 
11.	Fourth, the absent parent complains that the tribunal did not give adequate reasons. I reject this complaint. It is true that the chairman’s reasons are short, shorter than I would have expected. But the test is whether they were adequate. I consider that they were. The absent parent’s evidence was that she and Mr T were not partners. She said that he had lent her the money to pay for her divorce in return for which she had assigned rental income to her. The chairman described the terms of the alleged agreement as ‘inconceivable and ludicrous’ and that is what they were. It is clear from the reasons that the chairman did not believe the account that the absent parent gave and she had stated clearly and briefly why. 
The Secretary of State’s argument on the tribunal’s decision
12.	Ms Harris argued that the tribunal had gone wrong in law by having regard to evidence that related to a period after the date of the Secretary of State’s decision. She argued that this was contrary to section 20(7)(b) of the Child Support Act 1991. 
13.	Ms Harris is correct that section 20(7)(b) prohibits an appeal tribunal from taking account of circumstances that were not obtaining at the time of the decision under appeal. She is also correct that the tribunal considered evidence that concerned a different and later period. However, the issue is whether that evidence related to the time of the decision. See my decisions in  R(DLA) 2 and 3/01. In this case, there was no argument put to the tribunal that the position shown by the evidence was not also applicable at the time of the decision. The absent parent disabled herself from making this argument by denying that she and Mr T were partners. Given the arguments that were before the tribunal, it was entitled to rely on the evidence as relevant to the period in question. 
The basic principle of disclosure
14.	I now come to the key issue in this case and the reason why Mr Commissioner Bano directed an oral hearing. How can there by a fair hearing despite the masking of evidence?
15.	The starting point is this statement by Lord Hodson in Official Solicitor to the Supreme Court v K [1965] Appeal Cases 201 at page 234:
‘It is said with force … that it is contrary to natural justice that the contentions of a party in a judicial proceeding may be overruled by considerations in the judicial mind which the party has no opportunity of criticising or controverting because he or she does not know what they are; moreover, the judge may (without the inestimable benefit of critical argument) arrive at a wrong conclusion on the undisclosed material. Even worse, the undisclosed evidence may, if subjected to criticism, prove to be misconceived or based on false premises.’
I am concerned with some of the exceptions to that principle. 
The exceptions
16.	Ms Harris identified two sources of exceptions. One was the common law requirement that regard be had to the welfare of the child. The other was the child support legislation.
The welfare of the child
17.	Ms Harris argued that this was a general exception that might bar disclosure of evidence to one of the parties to the proceedings in a child support case. She did not identify the source of the exception. There is a duty, under section 2 of the Child Support Act 1991, to take account of the welfare of any child affected by a decision. However, this only applies to discretionary decisions; it cannot override a duty to disclose all evidence to the other parties to an appeal. The principle that Ms Harris relied on could only be the common law one, exemplified by Re B (A Minor) (Disclosure of Evidence) [1993] 1 Family Law Reports 191. I doubt whether that principle would apply in child support law. According to Lord Justice Balcombe (at page 203 of that case), it only applies ‘in any case which is directly concerned with the welfare of a child’. And according to Lord Justice Glidewell (at page 201), it only operates if ‘the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it.’
The child support exceptions
18.	In practice, the withholding of evidence from a party to the proceedings is authorised under a specific provision of the child support legislation. Leaving aside provisions that deal with personal or harmful medical information, there are seven provisions that prevent disclosure of evidence. Disclosure by the Secretary of State is governed under the formula assessment and departure direction schemes by regulation 10(3) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 and regulation 8(2)(b) of the Child Support Departure Direction and Consequential Amendments Regulations 1996. The equivalent provisions for the maintenance calculation and variation schemes are regulation 23(3) of he Child Support (Maintenance Calculation Procedure) Regulations 1992 and regulation 9(2)(c) of the Child Support (Variations) Regulations 2000. The appeal tribunal is governed by regulation 44 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The Commissioners’ Office is governed by regulation 9 of the Child Support Commissioners (Procedure) Regulations 1999, while the Commissioners themselves are governed by regulation 26(5) of those Regulations. 
19.	The result is a bewildering hotchpotch. The disclosure rules are different for each decision-making authority – the Secretary of State, the appeal tribunal and the Commissioner. Those for the Secretary of State differ according to the type of decision involved. And those for the Commissioners and their Office differ. The same evidence on the same issue between the same parties may be subject to control on disclosure before one decision-maker but not before another. Evidence that was previously disclosed may become controlled at a higher appeal level. And the Commissioners find themselves in the peculiar position that they appear to be free to say anything in a decision that does not allow the child to be identified, but their Office may be in breach of its duty if it issues the decision. 
20.	I am principally concerned with the disclosure rules for the appeal tribunal, but I will also refer briefly to the position under the Child Support Commissioners (Procedure) Regulations 1999, because it has concerned the Commissioners’ Office in this case. 
The tribunal’s disclosure rule
The legislation
21.	Paragraph 7 of Schedule 1 to the Social Security Act 1998 imposes a duty on the President of the appeal tribunal to ‘ensure that appropriate steps are taken by an appeal tribunal to secure the confidentiality, in such circumstances as may be prescribed, of any prescribed material or any prescribed classes or categories of material.’ Regulation 44 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is made under the authority of that paragraph. It allows a non-resident parent and a parent with care to elect that specified evidence must not be disclosed. That evidence is (a) the address of the child, one of the parents, or a person with care of the child or (b) information that could reasonably be expected to lead to the location of one of those persons being located. 
The masking of evidence
22.	Although the duty is imposed on the President and, through the President, on the tribunal, most of the work under this regulation is carried out by officers of the Secretary of State in the Child Support Agency. They mask information that they consider to fall within the regulation before the papers in the case are sent to the Appeals Service. After that, the masking is undertaken by the clerks in the Appeals Service or the Commissioners’ Office.
23.	In addition to the masked copy, the Child Support Agency supplies the tribunal with an unmasked copy of the papers. On the basis of my experience as a tribunal chairman, this is held on the tribunal’s file. On appeal to the Commissioner, it may still be on the file, although it may have been weeded. 
The proper application of regulation 44
24.	Ms Harris told me that the way in which the Agency implemented the regulation was of concern to her Office and to the officers of the Adjudication and Constitutional Issues Branch of the Department for Work and Pensions in Leeds. It is those officers who make observations on behalf of the Secretary of State in appeals to the Commissioners. Ms Harris reminded me that one of those officers had recently described the masking undertaken in one case as ‘over-zealous’. Every Commissioner, and probably every chairman, has a favourite story of masking that has gone not only outside the limits of the legislation but beyond all reason. My personal favourite is the compliments slip from a firm of solicitors on which everything had been obliterated except the words ‘With compliments’. I have even seen the names of Commissioners deleted from their decisions. 
25.	Ms Harris suggested that there were two ways by which regulation 44 could be properly implemented. The first way was through training of the officers of the Child Support Agency. I intend no disrespect to the officers who undertake the duty of masking evidence in the Child Support Agency when I say that further training is likely to be of limited effect. The officers act under pressure of time and without an understanding of the issues that will be before the tribunal. They also, no doubt, wish to avoid the bad publicity that could follow from an unauthorised disclosure and the serious consequences that might follow. Taking all these factors into consideration, it is easy to understand why they prefer to err on the side of caution by masking anything that might potentially be covered by regulation 44. The same considerations apply to the clerks of the appeal tribunal, although they have access to advice from the district chairmen. The clerks in the Commissioners’ Office have access to advice from a duty legal officer and ultimately from the Commissioners. 
26.	The second way that Ms Harris suggested regulation 44 could be properly implemented was by the tribunal chairmen who had access to the unmasked copy of the papers. As I pointed out to her, there was an ambiguity in her argument. The unmasked papers are held by the tribunal in the sense that they are in the file at the regional office. But, unless the practice has changed since my time as a full-time chairman, they are not readily available to the members of the tribunal if the case is heard at a venue outside the regional office. Subject to this qualification, I accept her argument. The chairman of the tribunal has a duty to ensure that the parties have a fair hearing and that the regulation is implemented within its proper scope.. I hope that the following advice on how chairmen can achieve that is constructive.
Implementation by the tribunal 
27.	The tribunal can ensure the proper implementation of regulation 44 through: (a) the correct interpretation of the regulation; (b) an early preview of the papers; and (c) the conduct of the hearing.
28.	Interpretation - The regulation covers the persons who can elect to have the protection of the regulation and the scope of material that may be subject to that protection. 
29.	As to the material scope of the regulation, the key lies in the enabling authority. It allows provision to be made for confidentiality. If information is not confidential, it cannot be covered by the regulation. This raises two questions: 
30.	First: confidential to whom? The right to elect for confidentiality makes no sense unless the evidence is confidential to the parent who has that right. If it is already known to the other parent, there is no interest in the parent to whom it relates to keep it confidential. This case provides an example of a type of case that Commissioners regularly see. The parent with care provided information about the absent parent. Nonetheless it was masked. The evidence concerned the absent parent. She had a right to the confidentiality of evidence relating to her whereabouts, but the evidence was already known to the parent with care. It was, therefore, not confidential within the meaning and intent of the enabling provision. 
31.	This point is underlined by the stage at which the regulation applies. It has to be applied before the evidence is given to the other parent and before the tribunal has a chance to assess its accuracy. Otherwise it would be ineffective. But the regulation only applies if the evidence is sufficient to allow a person’s whereabouts to be discovered. And that assumes that it is accurate. If it is not accurate, it cannot allow the discovery of anyone’s whereabouts. It would, perhaps, have been permissible to draft a regulation that allowed evidence to be withheld on the ground that it could, if accurate, allow a person’s whereabouts to be discovered. But regulation 44 is not drafted in that way. It only applies if the evidence has that effect. That underlines my point that the information must be known only to the party who has elected for it to remain confidential. Otherwise, the evidence would have to be assessed for accuracy before it could be withheld. In proceedings before a tribunal, that assessment would be undertaken by the tribunal. And that would render the provision irrelevant and ineffective. 
32.	Second: confidential from whom? This is not spelt out, but it is clear from the context. The evidence must be confidential from the other parent in the proceedings. Ms Harris argued that there is no rule of law or practice that evidence can be withheld from the tribunal itself. I accept that argument. The tribunal must see all the evidence in the case that is relevant to the issues it has to decide. It would be contrary to the very essence of the judicial process for a tribunal to come to a decision on an issue without seeing all the relevant evidence that was before it regardless of whether it was concealed from one of the parties by masking. 
33.	Preview - Ideally, the members of the tribunal should be provided with unmasked copies of the papers in every case. However, I accept that the Appeals Service may consider that this would involve the risk that the wrong papers were issued to the parties. An acceptable alternative is for the members of the tribunal to be sent masked copies and for the chairman to preview the papers on receipt. 
34.	The preview may show that the masked evidence is not within the scope of regulation 44. It may be clear that each parent knows where the other lives. Or they may want to secure confidentiality for personal or financial information about themselves or their new partners. In either case, provided the masked evidence is relevant to the issues raised by the appeal, the chairman should direct that the parties be given unmasked copies. 
35.	Alternatively, the preview may show that the masked evidence is relevant to an issue that arises on the appeal. If it is, the chairman should call for the unmasked copy so that the members of the tribunal may see all the evidence. 
36.	The conduct of the hearing – This is the most difficult task that a chairman has to perform in a child support case. If the evidence is properly masked under regulation 44 and is relevant to an issue on the appeal, the chairman must ensure that there is a fair hearing despite the withholding of the evidence. That means that the other party must be given sufficient information to allow an informed challenge to the evidence without disclosing sufficient to breach the confidentiality imposed by the regulation. And it means that the tribunal must be able to obtain the additional evidence from the parties that will allow it to assess the reliability of all the evidence before it. 
37.	The circumstances of the cases that may arise are too various to allow me to give specific advice. But it should not be necessary. Chairmen who hear child support cases are all experienced chairmen; they would not be ticketed for those cases if they were not. They have the ability to devise ways to allow each party to meet the other’s case and the tribunal to assess the evidence rationally. 
This case
38.	In this case, the papers provided to the parties were masked. As far as I know, so were the papers that were before the chairman. On my interpretation of regulation 44, none of the masked evidence should have been withheld from the parties. However, as far as I can tell the chairman was still able to ensure a fair hearing. Both parents attended, as did Mr T. It is clear form the record of proceedings that the absent parent knew the case that had been made against her and the parties were able to give oral evidence about any of the masked evidence. I am satisfied that there was no breach of natural justice.
The Commissioners’ provisions
39.	I mention this briefly, because of a complaint that the Commissioners’ Office had sent evidence relating to Mr T to the parties in breach of regulation 9 of the Child Support Commissioners (Procedure) Regulations 1999. Regulation 9(1) provides that the Office ‘shall not disclose’ the information mentioned in regulation 9(2) without written consent. It is sufficiently broad in scope to cover Mr T, despite the fact that he was not a party to the proceedings before the tribunal or before the Commissioner. He is covered because he is a ‘person whose circumstances are relevant to the proceedings’ (regulation 9(2)(a)). In fact, that information had been available to the tribunal at the hearing. I do not consider that evidence that has already been provided is within the scope of regulation 9. What it prohibits is disclosure. The Office does not ‘disclose’ within the meaning of regulation 9 if it provides information that is already known to the parties.
40.	Just for completeness, I will mention the relationship between regulation 9 and regulation 26(5). On the face of it, they create the position that a Commissioner may include information in a decision which complies with regulation 26(5), which the Office cannot then issue to the parties by virtue of regulation 9. It is unfortunate that the Regulations do not expressly deal with the relationship between these provisions. However, in practice, this issue does not arise because of the anonymity that Commissioners accord to all child support decisions. 

Disposal 
41.	I dismiss the appeal.

Signed on original
on 16 November 2005

Corrected on 23 November 2005	Edward Jacobs
Commissioner