[2005] UKSSCSC CCS_2082_2004 (10 January 2005)

PLH                                                                         Commissioner's File:  CCS 2082/04

	CHILD SUPPORT ACTS 1991-1995

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

Appellant: 	[the parent with care]
Respondents:	(1) Secretary of State
		(2) [the absent parent]
Appeal Tribunal: 	Aldershot
Tribunal Case Ref:  	
Tribunal date:	6 April 2004
Reasons issued:	13 April 2004

     1.     	The decision of the Aldershot appeal tribunal consisting of a chairman sitting alone on 6 April 2004 in this “departure” case is conceded by the Secretary of State to have been erroneous in law for failure to make sufficient findings about the absent parent's lifestyle and how it was being funded, and the absent parent himself has not made any submissions in answer to this appeal despite being given the opportunity to do so.  In those circumstances I accept the Secretary of State's concession as rightly made, set aside the decision of the tribunal as regards the departure issues, and remit the case under section 24(3)(d) Child Support Act 1991 to a fresh tribunal to reconsider and redetermine the appeal by the parent with care against the Secretary of State's refusal of a departure direction in her favour in respect of the liability otherwise produced by the child support formula assessment from the effective date of 7 December 2002.  
     2.     	The handling of this case at the child support agency seems to have been something of a muddle throughout, and the spew of often contradictory assessments thrown out by the machinery appears to have continued following the tribunal decision: see the further papers supplied with the parent with care's observations at pages 126-229. In the present appeal I am only concerned with what should be done about the possibility of a departure direction for the period from 7 December 2002 onwards if the formula assessment for that period continues (when finally determined) to throw up a child support amount the parent with care considers unfairly low.  As matters stood at the time of the tribunal decision, that assessment was (and today still is) undetermined.  The tribunal chairman entirely sensibly and correctly directed that as the parent with care had made clear her wish to appeal the formula assessment itself as well as seek a departure from it, but there had been a procedural confusion at the child support agency, she was to be accepted as having made an effective appeal to the tribunal against the assessment, not merely the refusal to depart from it.  He gave further procedural directions for that separate appeal which is I understand still pending before the tribunal, having been deferred to await the outcome of this present case.  Nothing in this decision affects or casts doubt on the validity of that separate appeal or the directions the chairman gave about it.  As interlocutory procedural directions, given in the entirely proper exercise of his discretion they are outside the scope of this present appeal even though notified to the parties in the same document as his decision on the departure issue, which is the only part within my jurisdiction.  
     3.     	As to that issue I agree with the submission of Ms S Powell on behalf of the Secretary of State dated 16 September 2004 at pages 123-5 that there were defects in the tribunal's findings on the facts.  For the purposes of the comparison required by regulations 25 and 40 Child Support Departure etc Regulations 1996 SI No 2907 it ought to have recorded more clearly what actual level of income it found on the evidence to be “required to support the overall lifestyle” of the absent parent, so as to provide a proper basis for the finding of inconsistency and the consequential inquiry into how the difference was funded.  Without that, the apparent conclusion that all must have been paid for in some way apart from current income (with three possible sources mentioned in paragraph 14 of the statement at page 90, but again no clear findings as to how or which) is difficult to sustain, even without the confusion pointed out by the parent with care on the evidence about the £50,000 there referred to, its provenance and its use.  
     4.     	I think also that the chairman misdirected himself over the scope of the departure issues before him, in saying at paragraph 9 that the “departure application was to be compared with the information contained in the assessment made on 17.01.03”.  In fact  that assessment had already been revised by the time of the tribunal hearing and was at risk of being yet further altered, in the separate appeal for which he had himself given directions, before it could be regarded as final; so the first part of any comparison for departure purposes (the income on which the current assessment is based) was as yet founded on shifting sands.  In those circumstances since the “current assessment” means the assessment as revised and eventually finalised (departure regulation 11A), the only reasonable course for a tribunal must be to defer deciding the “lifestyle” departure issue until a reliable comparison can be made with what that actually is.  
     5.     	For those reasons I allow the appeal and set aside the tribunal's decision to confirm the refusal of a departure direction.  The case is remitted for that issue to be redetermined by a fresh tribunal, at the same time as or immediately after the outstanding appeal on the revised assessment itself, so that any departure comparison can be made on firm figures for the formula liability from 7 December 2002 and the absent parent's income on which it is based.  It will of course be most satisfactory for all concerned if the assessment and departure issues can all be dealt with together by the same tribunal at a single hearing, and I am aware that the tribunal authorities are (quite rightly) anxious to arrange this as soon as possible.   

(Signed)

P L Howell
Commissioner
10 January 2005
     1.