[2006] UKSSCSC CCS_1938_2006 (07 November 2006)

DECISIONS OF THE CHILD SUPPORT COMMISSIONER
1.	My decisions are given under section 24(2) and (3)(d) of the Child Support Act 1991:
I SET ASIDE the decisions of the Plymouth appeal tribunal, held on 28 October 2005 under references U/03/200/2004/00738 and 00885, because they are wrong in law.
I REMIT the cases to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeals and, subject to the tribunal’s discretion under section 20(7)(a) of the 1991 Act, any other issues that merit consideration. 
Before this case is listed for rehearing, it must be put before a district chairman to consider whether it is necessary or appropriate to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In particular, the chairman will need to consider (i) whether to set a timetable for production of further evidence and (ii) whether a financially qualified panel member should sit for the rehearing.

The appeal in CCS/1938/2006
2.	This case concerns the formula assessment of child support maintenance in respect of Catherine and Joseph.
3.	In terms of the child support legislation, the appellant is their absent parent and the second respondent is their parent with care. I shall refer to them in those terms. 
4.	It is sufficient to pick up the history of this case in May 2003 when the absent parent applied for a supersession of the decision making him liable for child support maintenance. The Secretary of State made a decision on 18 November 2003 that the absent parent was liable to pay £5.50 from the effective date of 8 May 2003.
5.	The parent with care appealed against that decision to an appeal tribunal. She set out three grounds of appeal. The first related to enforcement and arrears, which was outside the jurisdiction of the appeal tribunal, as it is outside mine. The second related to the absent parent’s housing costs. I need say no more on this. The third related to the absent parent’s income and expenditure. 
6.	The appeal tribunal first sat on 16 December 2004 for a directions hearing. It was at that time constituted by a legally qualified panel member sitting alone. The tribunal directed the absent parent to produce bank statements and business ledgers. Evidence was produced and the tribunal sat again on 30 March 2005. This time it was constituted by a different legally qualified panel member as chairman together with, in accordance with the direction at the first hearing, a financially qualified panel member. The hearing was adjourned with detailed directions by the tribunal. The tribunal reconvened, with the same members as before, on 28 October 2005. 
7.	The tribunal decided that the absent parent’s income from his work as a plumber ‘has been understated by a sum of £5,000 for the year to 5.4.04 and that this period should be used as giving a more accurate reflection of his income. The understatement is due to understated income and excess expenses charged during the accounting period.’
8.	I gave leave on two grounds.
‘First, it is arguable that the tribunal has not given a sufficient account of how it calculated the additional £5,000 of income. The chairman has given examples, but that may not be sufficient to explain how the tribunal made its full calculation. 
‘My second reason is more fundamental. The effective date of the formula assessment was 8 May 2003. The appropriate accounts for that assessment were those for 2002-2003: paragraph 5(2) of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. Instead the tribunal used those for 2003-2004 ‘as this year would give a more accurate reflection of Mr Busuttil’s income.’ That is allowed by paragraph 5(3) of Schedule 1. But did the tribunal take account of section 20(7)(b) of the Child Support Act 1991? This prohibits the tribunal from taking account of any circumstance that was not obtaining at the time of the decision under appeal. The assessment was made on 18 November 2003. How could the absent parent’s income for 2003-2004 be a circumstance then obtaining, given that the year was not yet over?’
9.	The Secretary of State has supported the appeal. Both parents responded that they have no further observations. I set the tribunal’s decision aside for making the errors identified in my grant of leave. 
10.	As to the first error, I have made due allowance for the expertise of the financially qualified panel member whose analysis of the evidence probably played an important role in the tribunal’s deliberations. However, the parties are entitled to know the basis on which calculations were made. 
11.	As to the second error, the tribunal’s approach was entirely sensible. However, in the midst of applying common sense the tribunal must have lost sight of section 20(7)(b). Had it not been for this error, I might have been able to avoid a rehearing by reconstructing the reasoning that led the tribunal to find that the absent parent had an additional income of £5,000 a year. However, the tribunal took into account income that it was not allowed to consider, so the finding of £5,000 may no longer be sound. In directing a rehearing, I have also had regard to the consideration that, unlike a tribunal, a Commissioner cannot sit with an accountant. 
The appeal in CCS/1937/2006
12.	I have not identified any error of law specific to this case. However, the outcome of the departure direction was dependent on the decision in the formula assessment case. As I have found that the tribunal went wrong in law in the formula assessment case, it follows that the departure direction case was not decided by reference to the correct formula assessment. I must, therefore, set aside the decision in this case as well.
Disposal 
13.	I allow both appeals and direct a rehearing. 

Signed on original
on 07 November 2006	Edward Jacobs
Commissioner