DECISION OF A TRIBUNAL OF CHILD SUPPORT COMMISSIONERS

1.        We allow the mother’s appeal.  We set aside the decision of the Birmingham appeal tribunal dated 30 March 2004 and refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	At the oral hearing of this appeal this morning, the mother was represented by Mr Bob Pape of Child Support Solutions Ltd, the father appeared in person and the Secretary of State was represented by Mr James Maurici of Counsel.

3.	The mother applied for child support maintenance on 15 March 2002.  On 11 February 2003, the Secretary of State assessed the father’s liability at nil from 25 March 2002.  The mother appealed on the ground, inter alia, that the father had a company of which he was a director and his income from the company had not been taken into account.  The Secretary of State informed the appeal tribunal that the father had been in receipt of income-based jobseeker’s allowance at the effective date of the assessment and submitted that he was therefore to be deemed to have no assessable income by virtue of paragraph 5(4) of Schedule 1 to the Child Support Act 1991, which provides:

“Where income support, an income-based jobseeker’s allowance or any other benefit of a prescribed kind is paid to or in respect of a parent who is an absent parent or a person with care that person shall, for the purposes of this Schedule, be taken to have no assessable income.”

The appeal tribunal plainly considered that the father did have significant income but held that it was bound by Secretary of State for Social Security v Harmon [1999] 1 WLR 163 (also reported as R(CS) 4/99) to accept the Secretary of State’s submission.  Accordingly, the mother’s appeal was dismissed.

4.	The mother appealed to a Child Support Commissioner with the leave of the appeal tribunal chairman on the ground that paragraph 5(4) of Schedule 1 to the 1991 Act, as construed by the tribunal, breached her right to a fair trial pursuant to Article 6 of the European Convention on Human Rights.  The Secretary of State submitted that Article 6 was not engaged.  A detailed submission in response, drafted by Ms Susan Deas of Counsel, was made on behalf of the mother. The Chief Commissioner directed that the appeal be dealt with by a Tribunal of Commissioners and stated that the Tribunal would wish to hear argument as to –

(a)	whether (and if so, the extent to which) the Court of Appeal’s decision in Secretary of State for Social Security v Harmon has been affected by the coming into force of the Human Rights Act 1998 and 

(b)	insofar as it has not been affected by the 1998 Act, whether Harmon is binding authority as to the construction of paragraph 5(4) of Schedule 1 to the Child Support Act 1991, as well as of section 6, and, if not, whether it should be followed.

Mr Maurici submitted a 26-page skeleton argument and a bundle of 23 authorities.

5.	However, yesterday, the Secretary of State informed the Commissioners’ Office by letter that the appeal tribunal had been misinformed by his representative and that the father was in fact in receipt of contribution-based jobseeker’s allowance and not income-based jobseeker’s allowance.  It is now common ground before us that that was indeed the position and that therefore the question of the construction of paragraph 5(4) of Schedule 1 to the 1991 Act simply does not arise in this case.  It is also common ground before us that the appeal tribunal’s decision is erroneous in point of law on two grounds.  First, the fact that the jobseeker’s allowance was contribution-based could have been discerned, or at least suspected, from the rates at which it was paid as revealed in a computer printout in the papers before the appeal tribunal, although the appeal tribunal should not regard that as a serious criticism because the point appears to have escaped all parties until yesterday.  Secondly, the evidence before the appeal tribunal showed that payment of jobseeker’s allowance to the father had ceased in April 2002 – long before the Secretary of State’s decision – so that, in any event, paragraph 5(4) had no application from that date and the appeal tribunal ought to have made findings as to the father’s actual income.  We accept those submissions and allow the appeal on those grounds.

         (Signed on the original)              HIS HONOUR JUDGE GARY HICKINBOTTOM
		 Chief Commissioner

D. J. MAY QC
Commissioner

MARK ROWLAND
Commissioner

7 April 2005