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	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> KA v CMEC [2009] UKUT 99 (AAC) (01 June 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/99.html Cite as: [2009] UKUT 99 (AAC)

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DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Hull appeal tribunal (now the First-Tier Tribunal) on 28 July 2008 under file reference 950/08/00769 involves an error on a point of law as it was made without jurisdiction. The Upper Tribunal therefore sets aside the decision of that tribunal and re-makes the decision that the tribunal should have made in the following terms:

The tribunal has no jurisdiction to hear this appeal. The father's purported appeal dated 21 February 2008 and received on 26 February 2008 is against the Agency's maintenance debt assessment letter dated 7 February 2008. There is no right of appeal against that decision which relates to the calculation of arrears and to enforcement (see Child Support Act 1991, section 20).

This decision is given under section 12(2)(b)(ii) and section 12(4) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

A summary of this decision

1. The mother's appeal to the Upper Tribunal (formerly the Child Support Commissioner) is allowed. The decision of the Hull appeal tribunal (now the First-Tier Tribunal) on 28 July 2008 under file reference 950/08/00769 was made without jurisdiction (i.e. beyond its powers) and so involves a fundamental error of law. Its decision is set aside as a nullity. I re-make the decision in the terms that the tribunal should have done.

The parties to this appeal

2. In the technical language of the child support legislation, the appellant is the parent with care under the maintenance assessment, the first respondent is the Secretary of State for Work and Pensions and the second respondent is the non-resident parent. I refer to them in this decision as the father, the Secretary of State and the mother respectively.

The background to this appeal

3. The parents, who have one child, have been separated for some 12 years or more. On 8 August 1997 a Child Support Agency officer made a maintenance assessment to the effect that the father was liable to pay child support of £28.16 per week with effect from 12 May 1997. It seems that a deduction of earnings order (DEO) was imposed on the father, although this also appears to have ceased in 1999.

4. Very little appears to have happened to the case over the next decade. There is evidence that the Agency issued various letters to the father, presumably at his "last known address", but he denies having received any correspondence until he received a letter dated 7 February 2008, stating that he had arrears of child support totalling £11,038.72. This was the result of a "maintenance debt assessment" decision. The father purported to appeal against this decision.

4. The father wrote stating that he had been out of the country between 1999 and 2001 and again between 2004 and 2005, and that his total earnings for the period from 2000 to 2008 were in the order of £21,000. He alleged that the mother had indicated that she wanted no money or contact from him and so he assumed the case was closed.
5. The mother wrote to the effect that she wished strongly to contest the father's appeal, arguing that the DEO had ceased because the father had left the country to go and work in Australia with his new partner and that she had never agreed to ceasing either contact or child support. She complained that he had taken no interest whatsoever in their son and had only got back in touch once he had received the Agency's February 2008 letter.
6. The Secretary of State's submission to the tribunal was quite simple. The key passage read as follows: "[The father] is appealing against the maintenance arrears agreement letter dated 7 February 2008 which is outside the Tribunal's jurisdiction".
7. A supplementary submission by the Secretary of State reported that on 23 April 2008 a new decision had been made to the effect that the father's child support liability had been reassessed as nil as from 11 February 2008.

The tribunal hearing and decision

8. An appeal tribunal heard the father's "appeal" at Hull on 28 July 2008. The father and his new wife attended. The mother did not attend, having written to explain that she was currently off work sick. The Agency did not send a presenting officer to the hearing.
9. The tribunal allowed the father's appeal. In doing so it remitted the case to the Secretary of State for the child support liability to be recalculated in line with two directions. The first direction related to the father's change of circumstances in being paid jobseeker's allowance as from March 2001. The second direction was for the Agency to make enquiries as to any notification by the mother of changes in circumstances relating to her alleged cohabitation and increased income and to implement such changes as were appropriate.
10. A Child Support Agency officer then applied for a Statement of Reasons "with particular reference to the legislation the Chairman is relying on in making this decision regarding the change of circumstances and the effective dates to be used".
11. The tribunal chairman's (now judge's) Statement of Reasons described the Secretary of State's submission as to the extent of the tribunal's jurisdiction as "correct in law, nevertheless the Tribunal has been prepared to scrutinise matters a little more closely" because of the father's written and oral representations. The tribunal then rehearsed the main points of the father's evidence and referred in particular to the various changes of circumstances that it was said had taken place since the DEO ceased in 1999.
12. In doing so, the tribunal's Statement of Reasons did not cite any legislation justifying its approach. The mother wrote a lengthy letter, again taking issue with the father's account and complaining that "it seems nothing I have told you about [the father] has been taken into consideration" by the tribunal. She then appealed to the Child Support Commissioner (now the Upper Tribunal, following the implementation of the Tribunals, Courts and Enforcement Act 2007). Judge Bano granted her permission to appeal, noting that the jurisdictional basis for the tribunal's decision was "unclear".

The Upper Tribunal's reasoning for allowing the mother's appeal

13. In truth, the jurisdictional basis for the tribunal's decision was not so much unclear as non-existent. The tribunal was unable to cite any legislative authority for its approach for the simple reason that there was no such authority. I therefore agree with the analysis helpfully provided by Mr Christopher Ellis, the Secretary of State's representative in these proceedings. The Secretary of State's functions have now been taken over by the Child Maintenance and Enforcement Commission.
14. There are two fundamental problems with the decision of the tribunal and its purported directions. The first relates to a parent's right of appeal under the Child Support Act 1991. The second relates to the powers of the tribunal when hearing an appeal under the same legislation.

The right of appeal to a tribunal under the Child Support Act 1991

15. Section 20 of the Child Support Act 1991 sets out the rights of appeal that a "qualifying person" has against certain decisions made under that Act. The father, like the mother, is a "qualifying person". However, the list of appealable decisions does not include decisions about either the amount of child support arrears (as opposed to the amount of any original or revised assessment) or the methods of recovery.
16. It follows that the enforcement of payment due under the maintenance assessment is a matter for the discretion of the Secretary of State alone, subject only to the right to apply for judicial review (see R(CS) 5/98 at paragraph 6 and R(CS) 9/98 at paragraph 7).
17. The same is true in relation to decisions about the quantification of arrears under a maintenance assessment (or under successive assessments). The father, of course, would have had a right of appeal against the assessment made on 8 August 1997 that he was liable to pay child support of £28.16 per week with effect from 12 May 1997. At that time the time limit for appealing was 28 days, although late appeals could be admitted if there were special reasons.
18. The position since the Social Security Act 1998 came into force is that appeals must be brought within one month, with an absolute time limit of 13 months (Social Security and Child Support (Decisions and Appeals) Regulations 1991 (SI 1999/991), regulations 31 and 32). There is no suggestion that the father ever appealed against the original assessment within the appropriate time limit and he is clearly out of time to do so now.
19. In the absence of any right of appeal under section 20 of the 1991 Act, it follows that there was no valid appeal before the tribunal. The tribunal should accordingly have refused to hear the father's purported appeal as being outside its jurisdiction.

The powers of the tribunal hearing an appeal under the Child Support Act 1991

20. The second problem with the tribunal's decision is that tribunals do not have unlimited powers. They are creatures of statute. Even assuming for one moment that there was a valid appeal before it, the tribunal was bound by section 20(7)(b) of the 1991 Act. This stipulates that the tribunal "shall not take into account any circumstances not obtaining at the time when the Secretary of State made the decision".
21. The reference to "the decision" in section 20(7)(b) must be a reference to the decision giving rise to a right of appeal in section 20(1). This could not be the decision dated 7 February 2008 for the reasons already explained. In the unlikely event that there had been a valid appeal against the original assessment, then section 20(7)(b) meant that the tribunal could not take into account circumstances "not obtaining at the time when the Secretary of State made the decision" (i.e. on 8 August 1997).
22. It follows that the tribunal was in breach of section 20(7)(b) by purporting to direct the Secretary of State to carry out reassessments in the light of various events which may or may not have taken place since e.g. 2001. The tribunal had no power to do so.
23. As Mr Ellis now submits, the tribunal could have formulated its comments in terms of a strong reminder to the Secretary of State as to his statutory duties. This might be by analogy with the unreported decision CCS/13988/1996. In that case, Mr Commissioner Howell QC held that a tribunal could not direct the Secretary of State to appoint an inspector under section 15 of the Act. There was, however, no objection to the tribunal drawing attention to those powers, should the Secretary of State regard them as appropriate in the circumstances of the case.

The dangers of overstepping the mark

24. The tribunal's concern to try and "wrap the case up" is understandable, as is its frustration at the failure of the Agency to send a presenting officer. However, this case is an illustration of the dangers of overstepping the limits of the tribunal's powers. Arguably the tribunal should have paid more heed to the mother's correspondence. She had indicated that she was unable to attend due to illness. She did not expressly request an adjournment but it should have been evident that the father's evidence was fiercely contested.
25. Unfortunately, the tribunal's decision to press ahead and then to issue a decision outside of its jurisdiction has inevitably caused further delay in resolving the underlying issue as to the correct quantification of the arrears of child support. The position is further complicated by subsequent developments.
26. The Secretary of State's decision dated 23 April 2008 to the effect that the father's child support liability had been reassessed as nil as from 11 February 2008 is referred to above. It is unclear whether or not the mother has appealed that decision. She might have assumed, not unreasonably, that the validity of that nil assessment is all part and parcel of the current proceedings. However, that is not the way that the "salami-style" decision making and appeals regime operates in child support cases (see e.g. the observations of Mr Commissioner Jacobs in R(CS) 3/01 at paragraph 31). If the mother has not appealed that decision, she will presumably by now be out of time to do so.
27. Meanwhile the father has purported to lodge a further appeal himself. On an appeal form dated 22 October 2008, with a detailed accompanying letter, he appealed against a further "maintenance debt assessment" letter dated 18 October 2008, arguing that the calculation was incorrect, in part because of its failure to follow the tribunal's directions correctly. The father reports that the letter dated 18 October 2008 is a notice from the Agency of its intention to apply for a liability order in the sum of £9,757.23. He also states that he has received a separate letter from the Agency, dated 25 September 2008, which recalculates his arrears at (the different figure of) £7,752.31, based on "a recalculation as a result of the Tribunal". He takes issue with that recalculation in a number of respects.
28. The Agency's letters of 25 September 2008 and 18 October 2008 are not before the Upper Tribunal, and the father's appeal itself is only on file because the regional Tribunals Service office forwarded it to the Upper Tribunal as being associated with the present appeal. However, it seems likely that the father's appeal dated 22 October 2008 may well be outside the tribunal's jurisdiction in any event. Indeed, if the decision letter dated 25 September 2008 is an attempt to implement the tribunal's earlier decision, it is arguably best seen as a nullity. If the decision letter dated 18 October 2008 is simply a notice of intent to apply for a liability order, it carries no right of appeal for the same reason as the father's earlier attempt to appeal a "maintenance debt assessment" decision.
29. In response to the father's further appeal, the Child Support Agency (now the Child Maintenance and Enforcement Commission) has apparently withdrawn the application to the magistrates' court for a liability order against the father. The enforcement officer wrote to the father on 4 November 2008 stating that "Once the Tribunals Service have resolved your issues I will arrange for a revised account breakdown to be calculated with a full explanation detailing how the arrears have acrude [sic]".
30. For the avoidance of doubt, I stress that the decision letters of 25 September 2008 and 18 October 2008 and the father's appeal of 22 October 2008 are not part of the present proceedings. A Tribunals Service District Tribunal Judge should perhaps consider the father's appeal dated 22 October 2008 as an interlocutory matter and form his or her own view as to whether the tribunal has jurisdiction to hear that appeal.

What happens next

31. It is clearly unrealistic to imagine that there have been no changes in the parents' circumstances since 1997 or indeed 1999. There is some evidence on file, much of it disputed, as to the nature of those changes. As Mr Ellis submits, the Secretary of State's decision maker would be well advised to consider whether any supersession decisions need to be taken in the light of such changes in circumstances. Furthermore, notwithstanding section 17(2) of the 1991 Act, it is evidently desirable that the Secretary of State should gather as much information as is reasonable concerning both parents' circumstances in the intervening period. I emphasise that this is a suggestion rather than a direction. Any such decision that ensues will give rise to a fresh right of appeal for both parents.
32. There is a potential further complication. The father was clearly habitually resident in the United Kingdom when the assessment was made in 1997. However, he claims that he was "out of the country from September 1999 until April 2001", which the mother does not appear to dispute. The Agency's CSCS summary of personal notepad details on file also provides some support for this contention, subject to a minor but perhaps explicable discrepancy on dates. It records that the father left an employer on 12 September 1999 and registered a jobseeker's allowance claim on 7 March 2001. He has no entries in between those dates.
33. It does not appear that the father notified the Agency of his departure at the time, and I do not need to resolve that matter. However, regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 (SI 1992/2645) applies to cases such as the present (see also paragraph 16(5) of Schedule 1 to the Child Support Act 1991). Regulation 7(1) provides that when e.g. the non-resident parent "ceases to be habitually resident in the United Kingdom, the Secretary of State shall cancel that assessment" (with effect from the date that person ceases to be habitually resident).
34. Of course, the fact that the father was temporarily living in Australia would not stop him being habitually resident in the United Kingdom throughout his absence, but a point might come when such habitual residence ceased. If so – and again I make no findings on the matter in the absence of the relevant evidence – then it is difficult to see how the assessment could be revived on his return, if it had indeed been "cancelled", in the absence of a fresh application.

The father's request for an oral hearing of the appeal to the Upper Tribunal

35. The father has requested an oral hearing before the Upper Tribunal judge "if the Upper Tribunal decides to allow the appeal". Neither the mother nor the Secretary of State has applied for an oral hearing.
36. I have the power to decide the present appeal without a hearing (Tribunal Procedure (Upper Tribunal) Rules 2008, rule 34(1)), and indeed that is the normal practice. In deciding whether to hold an oral hearing I must consider the parties' views (rule 34(2)).
37. I refuse the father's request for an oral hearing as I am satisfied that the appeal can be properly determined without such a hearing. I have considered the parties' written submissions fully, insofar as they are relevant. I am not making any final decision on the father's child support liability. I am also conscious that arranging an oral hearing will cause yet further delay in this matter. The proper place for an oral hearing is at the First-tier Tribunal in the event that either parent is dissatisfied with the outcome of whatever decisions the Secretary of State may take in this case.

Conclusion

38. My decision is as set out above.
39. A District Tribunal Judge would be well advised to consider the current status of the father's subsequent appeal dated 22 October 2008 (see paragraphs 28-31 above).
40. The Secretary of State would be well advised to consider the need for any decisions as to supersession or cancellation (see paragraphs 32- 35 above).

Signed on original Nicholas Wikeley

on 01 June 2009 Judge of the Upper Tribunal