[2009] UKUT 64 (AAC) (27 March 2009)<BR>Child support<BR>variation/departure directions: other

THE UPPER TRIBUNAL		Case No: CSCS/12/08

ADMINISTRATIVE APPEALS CHAMBER

Appellant: Mrs Deborah J Richardson

1st Respondent: Secretary of State

2nd Respondent: Mr Chester Richardson

DECISION OF THE UPPER TRIBUNAL

D J MAY QC
JUDGE OF THE UPPER TRIBUNAL

Oral Hearing

ON APPEAL FROM: Appeal Tribunal

Tribunal Case No: 091/07/02459
Tribunal Venue: Edinburgh
Hearing Date: 1 July 2008

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before:		D J May QC

Attendances:

The Appellant appeared on her own behalf. 

For the First Respondent: Mr Brodie, Advocate instructed by Miss McCurry, Solicitor of the Office of the Solicitor to the Advocate General.

The Second Respondent did not appear.

The decision of the tribunal given at Edinburgh on 1 July 2008 is set aside.

The Judge of the Upper Tribunal remakes the decision of the Tribunal in light of the findings in fact set out in the Reasons.  There was no valid appeal before the tribunal.  The decision maker had no jurisdiction to make the purported decision which was the subject of the purported appeal before the tribunal.  That decision was incompetent and inept. 

REASONS FOR DECISION

1.	The appellant purportedly appealed against the purported decision of the tribunal on 1 July 2008, which is recorded at page 78.  That remitted the case to the Secretary of State to recalculate the amount of child support assessment in accordance with the directions given in the decision notice.  (Why I use the words “purported” and “purportedly” in relation to the decision and appeal referred to will become apparent).  The tribunal found that the second respondent’s lifestyle was inconsistent with his income and found that he had a net income of £24,477 per annum which appeared to the tribunal to be more in line with his apparent lifestyle.  The claimant’s grounds of appeal are set out at page 96 and relate to the fact that an earlier tribunal which adjourned the appellant’s appeal had said that in the absence of a response by the second respondent to the direction contained in the decision notice the tribunal may assume that for the purposes of calculating the amount of child support maintenance payable by the second respondent from the effective date of 25 August 2005 his net income is in the region of £32,000.  The second respondent made no response to the direction and the claimant asserted that the tribunal erred in law for departing from the figure of £32,000 referred to in the adjournment decision of the earlier tribunal.  I am however not persuaded that the tribunal was bound by what is said by the tribunal which granted the adjournment.  A tribunal granting an adjournment cannot bind the tribunal which actually hears an appeal as to matters of fact.  I am further not convinced that this is what that tribunal purported to do.  In the event this appeal has not been decided by me on this issue.  It has been determined upon the basis that there was no valid appeal before the tribunal at all.  The explanation for this is somewhat complex.  

2.	On 30 June 2006 a maintenance calculation was made in relation to the support for the child of the appellant and second respondent with an effective date of 23 August 2005.  The date upon which that was intimated to the appellant is not now known by either of the parties appearing.  However, the appellant submitted that it had to be before the letter she sent to the Child Support Agency on 8 November 2006 which is recorded at page 162.  Indeed from the terms of that letter it would appear from paragraph 2 that the notification had been made some months before 8 November 2006.  The appellant made a complaint in respect of the extent of the maintenance calculation and she indicated that she did not consider that the second respondent was truthful in relation to his income.  She then followed this up with a further complaint to the Child Support Agency on 31 January 2007 in a letter when she indicates that the second respondent earned around £30,000 a year.  On 3 July 2007 she wrote the following letter to the Child Support Agency:
	
	“Dear CSA

	I am writing to express my continued disappointment in the result you have obtained 	for me re: maintenance payments from my ex husband (second respondent).

	Several months ago I told CSA I would not accept your decision that he should pay 	only £7 a week and that it was an insult to the value of my son, given that the second 	respondent makes more than £2,000 a month after tax, or more than £30,000 a year.  	You urged me to let you continue with the application so that a full investigation 	could be made. 

The problem with the second respondent is that he is self employed and has been declaring earnings of far less than this and has got away with it.  What annoys me about CSA is that you promised me nearly a year ago to make an investigation with the tax people to find out what deception he is running.  Clearly he is lying about his wages because until 4 months ago he was making voluntary payments to me of £250-£280 a month.  How could he do this and live a lavish life style on his declared wages?

Anyway, now the second respondent has stopped these voluntary payments ever since CSA started taking a pithy amount from his bank account 4 months ago and it has caused a lot of hardship for myself and my son as a sudden loss of £250 a month means we can’t pay all our bills.  The situation is unacceptable and I want to know what else I can do about it.  The second respondence can afford expensive hotels and clothes and is lying about his earnings.  Surely in this civilised society there must be a way to find him out.

Since apparently I’m only entitled to £30 a month from the second respondent, according to you, then I choose not to accept this any longer as it is an insult to myself and my son.  I do not want the second respondent to have the satisfaction of feeling he is contributing to his son’s life when this amount is clearly laughable.”

It is to be noted that this letter merely asks what the appellant can do about the cessation of voluntary payments of £250 per month and makes assertions about the true extent of the second respondent’s income. It does not in its terms seek to initiate any proceedings such as appeal or an application for variation.

3.	This letter appears to have prompted two different actions from the Agency.  First, it treated the letter as a letter of appeal against the decision on the maintenance calculation.  In consequence, this letter was sent to the Tribunal Service and the Clerk to the Tribunal wrote the following letter on 13 August 2007 to the Appeal Section of the Central Appeals Unit in Lytham St Annes. 

	“About the CHILD SUPPORT REFORMS appeal for [the appellant]
	 I received an appeal on 18/07/2007 which you submitted as late.
	The time for appealing has been extended and the appeal has been admitted on 	02/08/2007.  Please process as a valid appeal and issue a submission within six weeks 	of the date of this letter.”

That interlocutory decision was not challenged by the second respondent.

The appeal was given a reference number of:

	“091/07/02 [illegible] 98.”

That appeal has never been heard for reasons which are apparent from paragraph 11 of this statement.

4.	The letter of 3 July 2007 was also treated as an application for a variation.  It was followed by a formal application for variation which had been given to the appellant to fill in.  Part of that form is recorded at page 23 to 28 and was signed by her on 12 November 2007.  However, the application for variation appears to have been accepted as having been made on 3 July 2007.   In the sequence of events presented to the tribunal the purpose of the issuing of the form was “for further information on her grounds for variation.

A decision was purportedly made in respect of a variation in November 2007.  That decision is recorded on a proforma intended for internal use only at pages 33 and 34.  It is apparent that cases related to lifestyle diversion and income not taken into account were considered and the conclusion was that no case had been made out in relation to any of these cases for the purposes of variation.  

Thereafter, the appellant was written to on 30 November 2007 explaining that the application for a variation to the maintenance calculation had been refused.  The letter continued:

	“The appeal will now continue to the tribunal”

A similar letter was sent to the second respondent.

It was accepted by Mr Brodie that the application which the appellant required to make was one for revision of the maintenance calculation under Section 28G of the Child Support Act 1991, by virtue of the fact that there was already a maintenance calculation in force.

5.	However in a submission made to the tribunal in which in the sequence of events is set out it was said:

	“From 30/11/07 the Secretary of State decided that he was unable to revise the 	decision dated 30.06.06 under s16 and s28F of the CS Act 1991 and regulation 3A of 	the D&A regulations 1999 and determined that a variation could not be awarded.”

If the decision was made under section 28F as is said in the submission then the decision was incompetent as the maintenance calculation was made before the application for variation was made. It was conceded by Mr Brodie that it is not recorded in that decision whether it was made under sections 28F or 28G of the Child Support Act 1991.  Mr Brodie submitted that the decision maker made a mistake and a decision under section 28G could be inferred.  However neither the letters intimating the decision nor the decision itself make any reference to a refusal to revise the maintenance calculation and I am not prepared to infer that the decision was made under section 28G rather than section 28F.  Thus the decision is flawed in respect that the submission to the tribunal submits that it was made incompetently under section 28F and I am not prepared to find when the evidence is not conclusive that it was a refusal to revisit under section 28G.
 
This purported appeal which was given the reference number 091/07/02459 was put before a tribunal on 13 February 2008 and was adjourned.  That decision is referred to in the appellant’s Grounds of Appeal and in paragraph 1 above.

6.	The Secretary of State then made a supplementary submission to the tribunal in which he said:

“I submit that Mrs Richardson raised the variation grounds within her appeal received on 10/07/07.  The appeal was referred to the Tribunal to ascertain if the appeal was out of time.  The Tribunal accepted that the appeal was a valid appeal and admitted the appeal on 02/08/07.  As the Tribunal accepted the appeal and extended the time for appealing, this also had the effect of extending the time for the variation application as a request to revise the decision under appeal.  As such, as the decision under appeal should have been effective from 23/08/05, any variation allowed would also be effective from this effective date in accordance with Regulation 4 and 32 of the Child Support (Decisions and Appeals) Regulations 1999.”

The appeal then went before the tribunal on 1 July 2008 and the decision appealed against to me was made.  

7.	The difficulties which have arisen in this case have in my view principally been caused by the predecessor of the first respondents making an interpretation of the appellant’s letter of 3 July 2007 without asking her what she wished to do.  

8.	 For the purposes of Regulation 3A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 any application under Section 28G had to be made by “the relevant person”, who in this case is the appellant and had to be made within one month of the date of notification of the decision or within such longer time as may be allowed by the Secretary of State under Regulation 4.  It is clear that if the letter of 3 July 2007 was an application for variation it was well outwith the time limit specified in Regulation 3A(1)(a) of the Regulations, though within the absolute time limit referred to in regulation 4(3)(b). 

9.	Regulation 4 provides that the time limit for making an application for revision under Regulation 3A(1)(a) may be extended where the conditions specified in the following provisions of the Regulation are satisfied.  These regulations provide that an application for extension of time shall be made by the relevant person namely in this case the appellant and that the application shall contain particulars of the grounds on which the extension of time is sought and shall contain sufficient details of the decision which it is sought to have revised to enable that decision to be identified and to be made within thirteen months of the date of notification of the decision which it is sought to have revised.  Further it is for the Secretary of State to be satisfied by the applicant that it is reasonable to grant the application, the application for revision has merit and special circumstances are relevant to the application and that as a result of those special circumstances it was not practicable for the application to be made within the time limit specified in Regulation 3. 

10.	Mr Brodie correctly submitted that no such application for extension of time had been made by the appellant and accordingly the considerations as set out in sub-paragraph 4 of Regulation 4 could not have been considered by the Secretary of State.  This is not surprising as the appellant, as I understood her, did not understand the difference between appeal and variation and thought she was appealing against the maintenance calculation.  In any event if the letter of 3 July 2007 was an application for variation which I doubt even although it was treated as one there was no application to extend the time of that application contained therein and no documents had been produced to demonstrate that there was such an application and if there was that the Secretary of State extended time. Mr Brodie submitted correctly the supplementary submission made by the decision maker at page 73, quoted in paragraph 6 above, is plainly wrong as only the Secretary of State can extend time for a late application for variation.  In these circumstances as Mr Brodie rightly submitted the decision maker had no jurisdiction to make the decision in respect of variation which he did, as the time for making it had not been extended.

11.	It will be noted that the letter sent to the appellant with the purported decision on variation it was said:

	“The appeal will now continue to the tribunal.”

In a letter sent by the first respondent’s predecessors to the Tribunal Service dated 15 January 2008 it was said:

“I am writing regarding the above appeal.  The appellant’s appeal was originally lodged twice on the same decision and the appeal was sent to the Tribunal to request that the appeal was accepted as out of time.  A submission has been prepared with regards to the decision which has a TS reference number of 091/07/02459, which was the first appeal.  As such, as all of the appellant’s grounds were answered within this appeal, and the appeal was incorrectly lodged twice at the Central Appeals Unit, the second appeal will not be sent to the Tribunal and a submission will not be prepared. 

If you have any queries with regards to this letter, please contact me on the number below.”

That letter it was accepted by Mr Brodie was misconceived and inaccurate.  The appeal with the reference 091/07/02459 could not have been the first appeal in respect of the maintenance calculation.  Further the issue raised by that appeal related to the maintenance calculation as opposed to variation was not dealt with in the first respondent’s submission to the tribunal nor by the tribunal itself.  There was no challenge made by the appellant in relation to the decision on variation.

12.	 I have sympathy for the position of the appellant, though it has to be said it would have been wise of her to take independent advice on how to proceed at the time the maintenance calculation was made if she was dissatisfied with it.  The Child Support Agency should not have made the assumptions it did in respect of the letter of 3 July 2007.   It should have asked the appellant specifically what she wished to do.  If that had happened in this case the appellant would have been able to alert herself as to the requirements of Regulation 3A and 4 of the Decisions and Appeals Regulations.  As she did not an incompetent proceeding progressed all the way to an appeal tribunal about one year later, which is not satisfactory from anybody’s point of view.  It may well be that the first respondents conceived that they were being helpful but they should understand that when judicial processes are involved the intentions of such a person require to be precisely assertained before action is taken on their behalf.  It should also be remembered that in child support cases there are three parties involved in each application or appeal. Thus in the interests of justice the need for clarity of intention on the part of all the parties, the strict adherence to procedural rules and a clear indication in all decisions of the statutory provisions used to make decisions is essential for the proper operation of the scheme.  Making guesses as to the intentions of parties and acting on these guesses is to be deplored as it leads to the confusion that has arisen here.

13.	In the circumstances I hold that the tribunal have erred in law by failing to deal with the issues of the competency of the purported decision on variation and the validity of the appeal before them.  I have had to remake the decision that the tribunal ought to have made.  The consequence of that decision is that the application for variation falls. There remains a question as to whether an outstanding appeal is to be heard before a tribunal in relation to the maintenance calculation itself.  That is not a matter within the scope of this appeal.  That is a matter the appellant will have to raise with the First-tier tribunal.

				(Signed)
				D J MAY QC							Judge of the Upper Tribunal 
				Date:  27 March 2009