[2009] UKUT 63 (AAC) (30 March 2009)<BR>Child support<BR>tribunal practice

IN THE UPPER TRIBUNAL	Appeal No.  CCS/81/2009
ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

The Appellant appeared in person.

The First Respondent	was represented by Mr Huw James, solicitor, acting as agent for the Solicitor to the Department of Health and the Department for Work and Pensions.

The Second Respondent neither appeared nor was represented.

Decision:  The Appellant’s application for permission to appeal is refused.

REASONS FOR DECISION

1.	This is a case that should never have reached an appeal tribunal at all.  As it is, it has been the subject of a directions hearing and two substantive hearings before appeal tribunals and now a hearing before me.  It has also generated a file of well over 600 pages.

2.	The Appellant father was liable to pay child support maintenance to the Second Respondent mother in respect of their son, Simon, who was born on 24 February 1988 and sadly suffers from Tourette’s syndrome and Asperger’s syndrome.  On 15 November 2006, the Secretary of State for Work and Pensions (the predecessor of the First Respondent) superseded the assessment and decided that the maintenance assessment should be “closed” with effect from 14 November 2006 on the ground that Simon was no longer living with his mother so that she had ceased to be a “person with care” entitled to child support maintenance (see sections 3(3) and 4(1) of the Child Support Act 1991).  On 18 November 2006, the mother wrote a letter headed “Appeal about Decision” asking for the decision to be looked at again on the basis that Simon was still living with her and was still in full-time education.  She did not receive a response to either that letter or a letter dated 26 April 2007 but a further letter dated 28 May 2007, received on 31 May 2007, was treated as a letter of appeal.  The Secretary of State then wrote to the father, informing him of the appeal.  On 23 June 2007, the mother gave the Secretary of State details of the special school that Simon had attended until Easter 2007, by which time he had reached the age of 19 and had ceased to be capable of being a “child”.  (The effect of section 55(1)(b)(i) of the 1991 Act is that a person between the ages of 16 and 19 remains a “child” if receiving full-time education (which is not advanced education) by attendance at a recognised educational establishment.)  The Secretary of State wrote to the school.  On 4 July 2007, the Secretary of State received a note indicating that he had written to the wrong address as far as the school was concerned.  On 12 July 2007, the mother provided evidence that her son lived with her in the form of a poll card and a bank statement.  Without contacting the school again, the Secretary of State then made a submission to the tribunal, which was quite one of the most unhelpful I have ever seen.  It failed to disclose any explanation for the decision of 15 November 2006 and said –

“I submit that the Secretary of State closed [the mother’s] case as he determined that Simon no longer lived with [her] or was in full time education.  It is for the Tribunal to decide whether this decision was correct.  If not they should replace it as they so wish, having regard for the necessary legislation and the evidence available.”

The submission itself did not mention any legislation save for procedural legislation relating to supersessions and revisions.  No explanation was given for the initial decision of the Secretary of State, no reference was made to the mother’s grounds of appeal and no explanation was given for the decision not having been revised in the light of those grounds.  Nor were the letters of 18 November 2006 or 26 April 2006 mentioned or attached to the submission.  Nor was any explanation given for having treated the letter of 28 May 2006 as a late appeal and, more importantly, having treated it as properly made.

3.	On the other hand, accompanying the submission were a number of documents concerning an overpayment of maintenance to the mother following her apparently having failed to disclose that a daughter of the father had ceased living with her earlier in 2006.  The father’s Member of Parliament had been involved in the correspondence.  In a letter interestingly dated 15 November 2006, a senior resolution manager of the Child Support Agency informed the father’s Member of Parliament that the father’s case “was closed on 14 November with effect from 8 September 2006 as the qualifying child, Simon was no longer in full-time education”.  That, of course, was inconsistent with the submission to the tribunal.

4.	It is small wonder that, on 5 September 2007, a tribunal chairman directed the Secretary of State to lodge a “supplementary submission listing concisely the findings of fact, evidence and law applied to the decision to close the calculation for Simon” and requiring the parents to provide short statements as to Simon’s circumstances at 14 November 2006.  He added –

“The parties are to bear in mind that the only issue before the tribunal is as to whether Simon … was a qualifying child when the decision was made.”

It is unfortunate that, not only did the father fail to heed that request, but also the tribunal itself forgot about it.  At that stage, the file consisted of 116 pages.

5.	The father’s response was to allege that the mother had deliberately failed to challenge the decision of 15 November 2006 in a timely manner so that her income was reduced for the purposes of an application for legal aid in the matrimonial proceedings.  The Secretary of State supplied evidence that the school Simon had attended had a leaving date for him of 20 March 2007 and evidence was supplied as to his dates of attendance at the school between September and December 2006.  He also supplied a submission recording that –

“… the submission writer has again attempted to locate, unsuccessfully, more documentation pertaining to the closure of this case.  The decision to close the case was taken as it was reported that Simon was no longer living with [the mother] and as such ceased to be a qualifying child for child support purposes.  In the absence of any documented evidence the submission writer presumes the information that led to the closure of the case was received via telephone.  Furthermore, the submission writer would presume that, under normal procedures, if this information were not received directly from [the mother] herself, it would have been confirmed with her prior to closure.  The decision to close the case was taken under Section 3(2)(a) of the CS Act.”

The mother supplied some evidence about her son’s education.  The father put in a lengthy submission in support of his allegation of fraud, upon which the Secretary of State declined to comment.  The chairman directed a directions hearing.  The mother submitted a letter from Simon himself about his education.  The father made further submissions.  The directions hearing took place on 9 November 2007 before the same chairman.  He directed an oral hearing with a time slot of 2 hours and reserved the case to himself.  He also observed –

“1	There appears to be no dispute as to the Appellant satisfying the criteria as parent with care up to [Simon’s] nineteenth birthday in February 2007.

2.	The evidence will focus on the actions of the parties leading up to the cancellation and the late appeal.  The Second Respondent will occupy some time in advancing argument as to credibility and referring to documentary evidence” 

At that stage, the file consisted of 203 pages.

6.	The substantive hearing took place on 29 January 2008, by which time the file had grown to 351 pages.  The tribunal set aside the Secretary of State’s decision, which it said should not have been made.  It found that Simon had remained a qualifying child in the care of his mother and that his mother had not requested the Secretary of State to cancel the calculation of child support maintenance.

7.	The father indicated a desire to appeal but the Secretary of State submitted a computer reference to a letter from the mother, recorded as having been received on 7 September 2006 and having been concerned with “household member details”.  He suggested that the tribunal consider setting aside its decision.  Despite the fact that no copy of such a letter has ever been found and the mother’s insistence that she had not said Simon had ceased to live with her or had left education, the decision was set aside on 31 March 2008.

8.	The mother then made a further submission, again denying that she had written to the Child Support Agency to say that Simon no longer lived with her and sending copies of the letters she had written on 18 November 2006 and 26 April 2007 challenging the decision that was under appeal.  She later sent other documents, including another copy of the letter dated 18 November 2006 that the Agency had belatedly found in its files and supplied to her and which was clearly stamped as having been received by the Child Support Agency on 20 November 2006.  By the time the case came before a differently constituted appeal tribunal on 14 July 2008, the file had grown to 476 pages.

9.	This tribunal reached the same conclusion as the first one, finding the Secretary of State’s decision to have been made in error and that the mother had not informed the Agency that Simon was no longer living there.  The chairman subsequently refused the father permission to appeal and the father now applies to the Upper Tribunal for permission to appeal.

10.	Before the hearing, I indicated in a direction that it seemed to me that the only issues arising on the appeal before the tribunal had been whether Simon was still in education and was living with his mother on 15 November 2006.  At the hearing before me, the father confirmed that he did not challenge the findings that Simon remained in education until his nineteenth birthday and remained living with his mother until then.  However, he submitted that I should consider whether the tribunal had erred in finding that the mother had not deliberately misled the Agency by falsely claiming that Simon had ceased to live with her.

11.	In my direction, I had suggested that that issue might have been relevant as to whether the mother’s late appeal should have been admitted.  However, in his written submission, the Secretary of State drew my attention to the letter dated 18 November 2006, showing that the claimant had lodged an appeal within time.  At the hearing, the father suggested that the Secretary of State had probably concluded that an appeal was “unwarranted” due to the mother’s earlier deception.  However, as Mr James accepted, the Secretary of State has no power to refuse to refer an appeal to a tribunal unless he revises the decision in favour of the appellant.  In the circumstances of this case, the only reasonable approach the tribunal could have taken was to treat the appeal before it as having been brought within time.  Quite how the mother’s letter came to languish in the Agency’s files without being linked to the papers in this appeal for so long is one of the many minor mysteries of this case.

12.	However, it is not as mysterious as the Secretary of State’s failure to advance any consistent explanation for his decision of 15 November 2006 or to revise that decision before the appeal reached a tribunal or, at least, before the directions hearing on 9 November 2007.

13.	Nor is it as mysterious as the tribunal’s failure simply to allow the appeal at that directions hearing, given the father’s concession at that hearing that the only relevant issues were not the subject of any dispute.  Everything that happened after that hearing was totally unnecessary.

14.	The main reason that I refuse permission to appeal is that the decision reached by the tribunal to the effect that the father’s liability for child support maintenance should not have been terminated on 15 November 2006 is not only the only decision the tribunal could properly have reached on the evidence before it but it is also conceded by the father to have been the correct decision.

15.	The father seeks permission to appeal so that the circumstances surrounding the decision of the 15 November 2006 may be further investigated, both to reveal procedural failings so that they may be avoided in the future and because he wishes to show that the mother misled the Agency which, he says, is material to her entitlement to legal aid.  He also wishes to expose what he regards as a significant failing by the tribunal chairman on 14 July 2008 which, he submits, shows she is unfit to hold judicial office. Alternatively, he at least wishes me to express a view on those issues in this determination.  I decline either to grant permission to appeal or to express a view on the father’s detailed submissions. His grounds of appeal are set out on 25 pages of single-spaced typing, headed “Appendix 2” and submitted with the letter of appeal on 9 January 2009.  The total number of pages submitted, including his analysis of the events within the Agency, is 100.  I anticipate that any comments sufficient to satisfy the father that the issue had been properly considered would need to be correspondingly lengthy.

16.	Mr James did not seek to defend the Agency’s handling of this case or its record-keeping.  It obviously leaves a very great deal to be desired.  In short, the handling of this case has been a shambles.  However, it is inappropriate for judicial resources to be occupied in carrying out a detailed investigation into what happened.  The Independent Case Examiner is already looking at the case and is in a much better position than a Judge of the Upper Tribunal to ensure that a full investigation is carried out so that appropriate lessons may be learned.

17.	In relation to the mother’s legal aid entitlement, it is for the Legal Services Commission to consider whether it is material that entitlement to child support maintenance should not have been terminated until Simon’s nineteenth birthday and whether it is material whether the mother misled the Agency and, if so, whether she did in fact do so.  If the Legal Services Commission is prepared to accept that the mother’s actions are relevant, I have no doubt the father will be able to make available to that Commission his criticisms of the tribunal’s decision and, in due course, the fruits of the Independent Case Examiner’s efforts.  The Legal Services Commission is not bound by the tribunal’s decision on that issue and my refusal of permission to appeal cannot be read as an endorsement of that part of its decision.

18.	In relation to the tribunal chairman (now a judge), I was informed by the father that he had made a complaint but had been told that it could not be investigated and was a matter for the Upper Tribunal.  Insofar as the complaint related to a judicial decision such advice would be correct.  However, that does not oblige the Upper Tribunal to investigate the complaint if the point is irrelevant to the overall outcome of the judicial proceedings.  If either the Chamber President or the Regional Tribunal Judge considers that the grounds of complaint raise training issues for the judge, he can act accordingly but the father has no individual interest in the outcome.  The grounds for challenging the tribunal’s finding that the mother did not act dishonestly do not, by any stretch of the imagination, reveal a “sacking offence”, even if they were made out, and, on a quick perusal, it is not obvious that they would be found to be made out at all.  However, as I have said, I do not propose to conduct a review of the father’s detailed grounds of appeal and therefore do not reach a concluded view as to whether the tribunal’s reasoning was flawed.  The criticism of the tribunal that is implicit in what I have said above is that, in considering whether the mother had dishonestly caused the termination of the child support maintenance assessment, it embarked on an investigation that was wholly unnecessary for the proper determination of the case before it and which, in the circumstances, might have been better left to others.

19.	Finally, I wish to comment on two issues arising from the fact that, as originally presented to the appeal tribunal, this case was a late appeal.  The appeal was admitted despite being late because the Secretary of State was content that it should be.  Such an approach is unobjectionable in an ordinary social security case where the Secretary of State is the only respondent but it is not satisfactory in a child support case where there is another respondent.  This is because a late appeal may result in a new decision that is effective from a date some months before the appeal was lodged whereas, if the appeal is not admitted and the would-be appellant is obliged to apply for a supersession, any new decision may be effective only from the date of the application for supersession.  Both respondents in a child support case therefore have a legitimate practical interest in whether a late appeal is admitted.

20.	It seems to me to be arguable that both regulation 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991)and rule 23(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (S.I. 2008/2685) need amending to enable every respondent to object to a late appeal being admitted and to seek a ruling from a tribunal, although without causing undue delay.  I will draw this difficulty to the attention of the Tribunal Procedure Committee responsible for rule 23, but the Secretary of State is responsible for regulation 32.

21.	In the present case, the Secretary of State conspicuously failed to mention the terms of regulation 32, which set out the limited circumstances in which the Secretary of State could cause a late appeal to be admitted.   The father could legitimately have argued that the question whether the mother had dishonestly procured the decision under appeal was highly relevant to the question whether she should be allowed to appeal out of time.  At one stage, a senior resolution manager employed by the Agency erroneously told the father that it was the tribunal that had accepted that there were grounds for admitting the late appeal (see doc 140).  When later specifically asked for the reason the Agency had had for admitting the late appeal, a complaint review officer said she could not disclose the reason and she merely set out the general approach (see doc 522).  She claimed that data protection legislation prevented her from giving full answers.  As Mr James accepted, the circumstances in which the Secretary of State can properly rely on data protection legislation to justify refusing to give to one party in a child support case information about the Secretary of State’s dealings with the other are limited.  How can a person challenge a decision if not told of the basis upon which it has been made?

22.	In the event, it transpired that the mother had actually appealed well within time and so neither the possible defect in the legislation nor the withholding of relevant information matters in this case.  I mention them as they may be relevant to other cases.

23.	Since drafting this decision, I have received a further letter from the father.  He asks for a transcript of the proceedings before me.  Unfortunately, my understanding is that the proceedings were not recorded.  This is partly my fault because, when the clerk, who was unfamiliar with the court in which I was sitting, said he could not find any tapes, I indicated that I did not consider that the hearings before me would be of a nature that required a recording to be made.  However, that may be a blessing for the father because transcripts are extremely expensive and I do not think I said anything of importance during the course of the hearing that is not mentioned above.  He seeks to persuade me again to comment on the tribunal’s reasons for concluding that the mother did not mislead the Agency, but I decline to do so for the reasons I have already given.  He also asks for a general ruling allowing him access to the Agency’s records relating to his case.  However, I can only order disclosure of records relevant to an application or appeal before the Upper Tribunal and I am satisfied that I can properly refuse permission to appeal without sight of any more documents.  The Independent Case Examiner will no doubt obtain what is necessary.

MARK ROWLAND
30 March 2009