[2005] UKSSCSC CCS_3531_2004 (01 June 2005)

PLH                                                                         Commissioner's File:  CCS 3531/04

	CHILD SUPPORT ACTS 1991-1995

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

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

     1.     	This appeal by the absent parent is dismissed, as in my judgment there was no error of law in the decision of the Eastbourne appeal tribunal consisting of a chairman Mr B Anscomb sitting alone on 1 March 2004, such as to justify setting aside that decision under section 24 Child Support Act 1991.
     2.     	This appeal concerns the maintenance properly payable from a date now some years old, for a boy now aged 7 who lives with his mother.  It is a sad commentary on the delays inherent in the child support system that the relevant date was 23 October 2001, when he was only 2½, and the question of what if anything should have been payable for his maintenance needs in the weeks from that date (when his mother applied for a departure direction to vary his father’s nil liability) is still unresolved.  The grounds of her application were that the father’s current lifestyle was inconsistent with the assumption in the assessment that he had no income at all, as she said he was working for undeclared cash earnings and spending money on such things as holidays abroad. 
     3.     	It took 16 months for the child support agency to give its decision on that application, which was to reject it and refuse to depart from the nil assessment: see the decision dated 26 February 2003 at pages 33-35.  On 26 March 2003 the boy’s mother appealed to the tribunal, reiterating that the father was indeed working. On 25 November 2003 the tribunal chairman gave procedural directions for the hearing of the case, and requiring the father to specify in advance, with a view to avoiding the hearing having to be adjourned: 
	(1) a list of his typical monthly expenditure at October 2001, so as to determine his lifestyle; 
	(2) whether or not he was working in October 2001, employed or self-employed, and the income from any such employment; 
	(3) the date he sold his house, the amount of the net sale price, and where the funds have been invested.  
The relevance of asking about the house sale proceeds was that one of the agency's reasons for refusing a departure direction had been that the absent parent’s lifestyle was funded from the proceeds of sale of his house for £130,000:  see page 33.   
     4.     		The response to that direction was a very short letter from the father dated 20 December 2003 answering the questions in the following terms:
“1.	 Approximately £400 per month towards utilities and food.
2.	Unemployed.
3.	House sold 22 October 2001, less estate agent’s fees, solicitors fees and £35,000 original mortgage. The balance was spent on buying [the house he now occupied with his partner].”
     5.     	No other evidence, written or oral, was provided by the father in answer to the claim for a departure direction or the allegations made against him.  He failed to attend the tribunal hearing on 1 March 2004 which had been duly notified to all parties.  There being no application for an adjournment and both the boy's mother and the child support agency being present, the chairman quite rightly proceeded with the hearing.  He heard evidence from the mother about the father's work and lifestyle and a submission from the agency representative, who referred him to authority about the ability to make an estimate of earnings from the available evidence, and explained the possible effect of various figures.  
     6.     	The chairman’s decision, issued on 1 March 2004 and amplified in a statement of reasons of 6 April 2004, was that a departure direction should be made on the basis of the absent parent having a net income of £200 per week.  He found as a fact that at the effective date of 23 October 2001 the absent parent was either employed, or unemployed only for a very limited period.  He was not resorting to capital to support his lifestyle, as on his own evidence the proceeds of sale of his house had been reinvested in the purchase of another.  The tribunal noted in particular that according to the absent parent’s own statement he was paying approximately £400 a month towards utilities and food, yet the balance of the sale proceeds of his house had been spent on the new one, and he was not in receipt of jobseeker’s allowance at the relevant period. Taking into account all the evidence, including the fact that he had a partner living with him who contributed towards their joint lifestyle, the tribunal’s own knowledge of the cost of living, and the evidence of his lifestyle which was not extravagant though nor did he live on the breadline, the tribunal decided that over and above his contribution towards the outgoings he would require an income of a further £100 per week for all his other expenses; it might be more than that but the tribunal had to make the best estimate it could on the evidence available.  On that basis, taking into account the financial circumstances of the parties and the welfare of any child likely to be affected, it was just and equitable for a departure direction in those terms to be made.  
     7.     	Against that decision the absent parent appeals on grounds which broadly stated are that it was unfair and wrong for the tribunal to decide the case on the evidence before it at the date of the hearing.  In support of his appeal he puts forward a substantial amount of further factual detail which he did not provide to the tribunal, and says that he did not appreciate he needed to give evidence to the tribunal or that there was any question of it not believing the details he did supply.  He had given answers to the questions asked of him and had not been asked to provide anything more.  He now says he did in fact use some of the proceeds from his house to finance his living expenses and was out of work through illness. 
     8.     	The appeal is supported on behalf of the Secretary of State in a submission dated 17 January 2005 by Mrs M Fowler at pages 99 to 100, on the ground that the tribunal failed to consider whether the absent parent was being wholly supported at the material time by his partner, and that no estimate had been made of her earnings.  On the other hand the tribunal was entitled to find, on the basis of what the absent parent himself said in his letter, that he was not resorting to capital to support his lifestyle as the house sale proceeds had gone into the new one.  The parent with care takes issue on a number of points with the new factual information provided, and submits that it would be very unjust to their son if the dispute was allowed to drag on for even longer.
     9.     	In my judgment, it is important to remember that the scope of an appeal to a Commissioner under section 24 Child Support Act 1991 is the relatively limited one of determining whether the tribunal which heard the case and dealt with the evidence fell into some error of law either in the decision it reached or in the way it was arrived at. Weighing up the evidence and deciding the issues of fact in the case are tasks for the tribunal hearing it, and are not matters on which a Commissioner has any power to interfere with the decision reached in the absence of some identifiable error of law.
     10.     	Having considered all the papers and the submissions made to me I have not been satisfied that there was any error of law in the way this tribunal dealt with the case or the conclusions of fact it reached.  The whole purpose of the full hearing convened in accordance with the tribunal chairman’s directions was of course to go into the facts of the case and enable the evidence and contentions of both sides to be put forward and considered.  I do not think it can be a valid criticism of the tribunal that the absent parent would or might have wished to put in further material in support of his case if he had known what the result was going to be, when he failed to attend the hearing or give evidence and gave no indication that there was further material he wished to be taken into account or that he wanted an adjournment or an opportunity to put it forward.  
     11.     	The evidence that was before the tribunal, including in particular what was stated in the absent parent’s own letter of 20 December 2003, justified the conclusions it reached.  His own evidence that he was in fact paying some £400 a month towards his own living expenses was quite inconsistent with any idea that these were being wholly paid for by his partner, so I do not accept the Secretary of State’s suggestion that it was wrong for the tribunal not to explore that as an alternative possibility.  And in view of the unqualified statement that the balance of the house sale proceeds had been spent on buying the new one without any suggestion at that stage that part had been diverted into funding his lifestyle, I agree with Mrs Fowler that there can be no question of it being an error in law not to find his lifestyle was being paid for out of capital.  That left (on the tribunal’s reasonable estimate) some £800 of expenses a month which must have been coming from somewhere, with the source unexplained and no evidence of any claim for jobseeker's allowance which would have been the logical thing to do if he was out of work.  On that evidence any tribunal could reasonably accept the mother's evidence and  conclude he was in fact working and earning as she said.  
     12.     	On that basis, I dismiss this appeal.   It is not necessary for me to go into the further factual disputes which have been raised on the new material submitted by the absent parent and not in evidence before the tribunal: if there is any ground for thinking the true facts at the relevant time were materially different from what the tribunal found them to be on the evidence before it, that may be a reason for applying to the Secretary of State to supersede the decision but not for holding it in error in law.  
(Signed)
P L Howell
Commissioner
24 May 2005