THE UPPER TRIBUNAL	Appeal No.  CCS 1833 2009
ADMINISTRATIVE APPEALS CHAMBER

AM v Child Maintenance and Enforcement Commission and KE

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions. 

Directions for new hearing

A	The new hearing will be at an oral hearing. 

B	The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C	All parties are reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 

D	Neither the appellant nor the second respondent have a representative. They are advised to consider seeking the help of Citizens Advice, a welfare rights office, a solicitor or other expert adviser with the rehearing of this appeal.

E	If any party has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 

F	The attention of the listing officer is drawn to the fact that the appellant is blind and that steps need to be taken to ensure that the appellant is aware of the date of the new hearing.

These directions are subject to any later direction by a tribunal judge. 

REASONS FOR DECISION

1	The appellant (the non-resident parent, AM) is appealing against a decision of the Leeds tribunal on 4 03 2009 under reference 007 08 01739. The decision in dispute was that of the Child Maintenance and Enforcement Commission refusing to vary a maintenance calculation made against AM on the application of the resident parent (KE). KE appealed to the tribunal below, and that tribunal made a variation direction.  

2	The appeal raises several distinct issues. I deal with them in turn.

Fairness of the tribunal hearing
3	AM is blind. He was registered as blind after the start of these proceedings but before the tribunal hearing. One ground of appeal was that as a result he was unaware of the listing of the hearing of this appeal on 4 03 2009. 

4	Linked to that, AM pointed out that some notifications to him had been sent to the wrong address and he had not received them. The latter point can be confirmed from the copy letters on file. The letter of 23 10 2008 from the Tribunal Service to AM reminding AM that he had not complied with an earlier direction of the tribunal, and enclosing a further direction of the chairman dated 17 10 2008, was clearly sent to the wrong address. There are therefore issues on the face of the papers before me about which notices relating to the tribunal hearing were properly addressed to the appellant. This is in addition to the issues about which notices were actually received and understood by him. 

5	Two points arise. The tribunal, in its decision, assumed that the appellant had received, and had refused to comply with, directions of the tribunal. The appellant was not present to answer that point. Given the clear evidence of an error in an address in the papers as noted above, that cannot be assumed. The tribunal erred in law in so far as it relied in its reasons on the service of that notice.

6	The tribunal made a further linked assumption. In the decision notice on AM’s application to set aside the decision of the tribunal for non-attendance, a tribunal judge stated: “The appellant has quite clearly signed the Enquiry Form indicating that he wished the case to be dealt with in his absence.” This reflected the reasoning of the tribunal in its statement of reasons about the tribunal decision under appeal: 

	“In the light of [AM’s] original confirmation of his wish that the appeal be heard 	on the papers and his failure to indicate to the contrary during the intervening 	eight months the tribunal proceeded in his absence”. 

7	Commenting on this on behalf of the Child Maintenance and Enforcement Commission, Mr Page (representing the Commission in the appeal before me) stated:

	“I submit that [that approach] is too much to impute to the action of opting for a 	paper hearing. I submit that being prepared, or even preferring, to have the 	appeal determined at a paper hearing is not the same as saying you won’t 	attend one if another party opts for one.” 

I agree. That makes the issue whether AM actually received notice of the hearing important. He states that he did not. I accept that, as there is no evidence in the papers that the notice to the appellant was properly addressed, and evidence that previous notices to the appellant were not properly addressed. 

8	For these interlinked reasons the decision of the tribunal to go ahead in AM’s absence and then assume he had had all relevant notices clearly raises an issue of fairness. The tribunal decision should be set aside and steps taken to ensure that AM has proper notice of the new oral hearing. 

9	The parties are put on express notice by this decision that the new tribunal conducting that hearing may assume that all relevant documents have now been served on all relevant parties and that all parties have by this decision been given notice to produce to the tribunal all further evidence they consider relevant to this appeal one month from the date of this decision. The new tribunal has the power to draw adverse conclusions from any evidence not produced by a party that the tribunal has directed to be produced at any stage of this appeal.

The tribunal’s “unless” order
10	The tribunal’s decision notice issued on the date of the hearing contained the following decision:
	
	“The balance of £608.44 is attributed to [AM] as income not taken into account 	under regulation 19(1) of the Variation regulations 2000. 

	Unless [AM] provides evidence to the contrary by 20 03 2009 the income will 	be treated as dividend income and the CSA will recalculate the maintenance 	based upon the tax liability arising therefrom.”

11	This raises further problems. One is the approach taken by the tribunal that unless a party has made representations about a particular point by a certain date, then the tribunal will assume that its view on a point of fact or law is correct.

12	This is procedurally unfair, as Mr Page submitted to me for the Child Maintenance and Enforcement Commission. It places AM at a potential advantage to the other parties. Mr Page cited the following passage from SH v Finland, a judgment of the Fourth Section of the European Court of Human Rights in Application 28301/03 issued on 29 10 2008: 
“31. The applicant maintained that the proceedings had not been adversarial as her case file before the Insurance Court had included two medical opinions which had not been communicated to her before the decision was taken in her case. The question before the Insurance Court was whether the applicant was suffering from a new occupational disease that had begun in the 1990s or whether it was the previously diagnosed disease that had worsened due to new circumstances. The two new medical opinions dated 20 April and 8 November 2001 were the most recent ones concerning the applicant's health at the time and were thus relevant for the assessment of her case. The applicant referred in this respect to the case K.P. v. Finland (no. 31764/96, 31 May 2001).
32.  The Government, referring to the judgment Kukkonen v. Finland (no. 57793/00, § 25, 7 June 2007), contested the applicant's claim that she had been placed at a disadvantage vis-a-vis the insurance company. The medical opinions in question had not been relevant in determining whether the occupational disease had broken out in 1986 or whether the symptoms causing the applicant's incapacity to work in the late 1990s could be considered as a new occupational disease. Moreover, the non-communicated medical opinions, in the Government's view, had not adversely affected the applicant's ability to challenge the Insurance Court's decision in question before the Supreme Court.
33.  The Court points out that the fairness of proceedings must be assessed with regard to the proceedings as a whole (see Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001-II). One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-a-vis his opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, pp. 107-08, § 23). That right means, in principle, the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court's decision (see Lobo Machado v. Portugal, judgment of 20 February 1996, Reports 1996-I, p. 206, § 31). This position is not altered when the observations are neutral on the issue to be decided by the court (see Göç v. Turkey [GC], no. 36590/97, § 55, ECHR 2002-V) or, in the opinion of the court concerned, they do not present any fact or argument which has not already appeared in the impugned decision. Only the parties to a dispute may properly decide whether this is the case; it is for them to say whether or not a document calls for their comments (see Nideröst-Huber, cited above, § 29).”

13	I agree with Mr Page’s submission. The only way in which this tribunal could properly give AM a further chance to argue any point of fact or law was in a way that also allowed the other two parties to comment on any submission made or evidence produced by him regardless of the views of the tribunal on those submissions. An “unless” order is wrong in principle on an issue such as this. The question whether certain income is to be treated as dividend income involves both issues of fact and questions of law. By adopting this course of action, the tribunal attempted to reach a decision without making findings of fact, and without stating its view as to the law, at the time of the hearing. The tribunal had in effect adjourned deciding this part of its decision, but had done so both on unfair terms and in a way that resulted in an inadequate decision. The record shows that AM then sent in submissions, and the tribunal considered them. That led to the comments in the statement of reasons noted below.

14	The decision must be set aside for those reasons also. There were other errors in the paragraphs quoted. In particular, they cited regulation 19(1) instead of regulation 19(1A). That could have been corrected by the tribunal under the “slip rule” were it an isolated error. Such errors can be sorted out at the new hearing.  

Were there dividends in payment?
15	The tribunal, having failed to make a decision on the day of the hearing, did so in its statement of reasons after hearing from AM. It was therefore purporting to make findings and give a statement of reasons for a decision at the hearing that it did not make. That is wrong also. But I need not consider that point further here, beyond advising the new tribunal not to rely in any way on the findings of fact, or the reasoning, of this tribunal on these issues. In any event, the parties have now added considerably more evidence, and further submissions, on this question. 

General
16	The new tribunal needs to start again in considering KE’s appeal. To avoid doubt, her appeal is an appeal against a decision of the Child Maintenance and Enforcement Commission made on 28 02 2008 refusing a variation to her under either regulation 19 (income not taken into account and diversion of income) or regulation 20 (life-style inconsistent with declared income) of the Variations Regulations. 

17	The effective date of the decision was also questioned. I agree with Mr Page on this point also. The first date at which a variation could be made, if the facts warrant it, is 16 July 2007. The tribunal was entitled to take account of any facts warranting a variation between that date and the date of the decision under appeal, 28 February 2008. In doing so, the tribunal should note the decision, not under appeal before it, varying the maintenance calculation from 25 September 2007 by a decision made on 31 January 2008.  

David Williams
Judge of the Upper Tribunal
30 11 2009

[Signed on the original on the date stated]