IN THE UPPER TRIBUNAL                                         Appeal No. CCS/285/2015
ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 25 October 2013 under number SC/177/12/04104 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1.	This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing, before a different Tribunal Judge to the Judge who considered the appeal on the last occasion.

2.	The parties should send to the Brighton HMCTS office within one month of the issue of this decision, any further evidence upon which they wish to rely. 

3.	The new tribunal will be looking at the relevant circumstances at the time that the decision under appeal was made, that is the 7 August 2012.  Any further evidence, to be relevant, should shed light on the position at that time.

4.	The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

Introduction
1.	The appellant in this appeal is the mother of a child from her marriage to the second respondent. In this judgment I will refer to them respectively as “the mother” and “the father”.  In Child Support terminology, the mother is the person with care and the father is the non-resident parent.  The first respondent is the Secretary of State for Work and Pensions, who is responsible for the Child Support Agency (CSA).
2.	The issues involved in this appeal are unusual.  It is concerned with a consent order which the mother has since sought to have set aside because she says she had not understood the true implications of the order when she agreed to it.  Following written submissions by the mother and the Secretary of State, I directed an oral hearing of the appeal. Shortly before the hearing the mother sought to withdraw the appeal.  I decided that I should proceed with the hearing because I considered that fairness required that I give the Secretary of State and the father an opportunity to comment on the proposed withdrawal.  In addition, as the appeal raised a jurisdictional issue (which I explain below) I did not consider that withdrawal was appropriate.  
3.	The mother attended the hearing, acting in person, and the Secretary of State was represented by Mr Stephen Cooper (solicitor). The father did not attend.  His representative sent written submissions stating that they had not been able to arrange attendance, did not oppose the appeal hearing proceeding in the father’s absence and briefly addressed the issues in the appeal.  I decided that it was appropriate to proceed with the hearing in the father’s absence.

Background
4.	The mother appealed to the First-tier Tribunal (FTT) against a decision dated 7 August 2012 that the father was not liable to pay any child maintenance from the effective date (7 May 2012) because his income was less than £5 per week.  In summary, the mother’s case on appeal was that the father’s income was higher than that declared or that the Child Support Agency (CSA) should have made a variation on the basis that the father’s lifestyle was inconsistent with his declared income.  The father’s case was that he funded his lifestyle from the proceeds of sale of a property that had been left to him, and that the total proceeds were significantly less than £65,000 (the threshold for making a variation on grounds of assets).  It appears that the CSA had accepted the father’s evidence which meant that his lifestyle was not inconsistent with his declared income: it was funded by his capital. 
5.	The FTT adjourned the first hearing on 15 January 2013 and directed the father to provide specified documents relating to his finances, and also directed him to attend the next hearing. After some delay the father provided the required information.  The next hearing before the FTT took place on 25 October 2013. The mother and father were present and also a presenting officer for the CSA.  The record of proceedings shows that the FTT took evidence from the father regarding his finances and his life style.  The judge then adjourned the hearing to allow the parties to discuss a figure for child maintenance.  Agreement was not reached and the tribunal heard further evidence from the parents.  In the course of the hearing it emerged that agreement might be reached on the basis that the father paid £2000 arrears of child maintenance and a weekly payment of £28.  The judge sent the parties out again, asking them to consider whether they could agree on that basis.  The parties reached agreement on that basis.  The judge drafted a Decision Notice which all three parties signed, the relevant parts of which were as follows:
“1.	Upon hearing Mrs [M] (the mother), Mr [J] (the father) and Mrs [W] (A Presenting Officer for the Secretary of State), BY CONSENT:
2.	The case is remitted to the Commissioner to recalculate the child support liability in accordance with the following directions:
As at effective date 22.05.2012 the Child Support maintenance liability of the father for [the child] is £28.00 per week.
The father undertakes to pay a lump  sum of £2000.00 to the mother by 24.11.2013 in respect of “arrears” since 22.05.2012”
6.	The father did not abide by the agreement.  He paid £2000 arrears but did not make any weekly payments of £28.  By then the CSA was collecting £5 per week from him because, since July 2013, the father had been in receipt of income related employment and support allowance.  On 3 November 2013 the mother wrote to the FTT saying that she did not understand the basis of the order, and asked for a statement of reasons. On 20 November 2013 the mother wrote to the FTT saying that the father had said he did not agree to pay £28 per week on a regular basis, and asked the FTT to make an order as to child maintenance payments.  A statement of reasons was not produced until 21 September 2014.  There is no indication on the FTT file as to the reason for such a lengthy delay. The Statement recorded the process which I have summarised above and that “No parties showed any sign of confusion, and they had been given the opportunity to reflect on what they wanted to agree for child maintenance liability for the father for [the child].” 

The appeal to the Upper Tribunal
7.	In her grounds of appeal to the FTT and then, following refusal of permission by the FTT, to the Upper Tribunal and in her further written submissions the main challenge to the FTT’s decision by the mother has been that she has not been able to enforce the consent order. She said that a consent order had not been appropriate as the father had had no intention of paying £28 per week.  In addition she had been told by the Judge that the order was enforceable and would not have agreed to it if she had realised that it was not.
8.	I gave permission to appeal and identified the following issues:
a.	Whether the FTT had power to order a variation where the nil rate was payable.
b.	Whether the FTT erred in agreeing to the consent order.
c.	Whether the consent order was enforceable.
d.	If there was an error of law, what relief should be given.
9.	The Secretary of State supports the appeal. In written submissions he submitted that, at the effective date, the maintenance payable was nil but that did not prevent a variation being made. Once the father started to receive employment and support allowance there could have been no variation of the child maintenance assessment (regulation 6(2)(a) and 7(2)(b) of the Child Support (Variations) Regulations 2000). However, that was not the position at the effective date with which this appeal is concerned.  Although it was open to the FTT to make a variation of the maintenance assessment, there was little point in the FTT making further factual inquiries as that was not warranted on the evidence. The FTT was entitled to make a consent order. The difficulty identified by the Secretary of State was that the consent order could not be acted on by the CSA and it did not have power to enforce it.  In subsequent written submissions, and in oral submissions, Mr Cooper submits that in the light of the non-enforceability of the consent order, the appellant did not genuinely consent and so it was not appropriate for the FTT to have made it.
10.	At the hearing the mother gave more detail as to what had occurred at the FTT hearing. It seems that the judge had put some pressure on the father to agree to the payments. The judge also encouraged the mother to compromise on her original expectations, and told her that the sums agreed could be enforced.  The presenting officer explained to the mother that there was a range of enforcement methods available. The mother understood this to mean that the CSA would enforce the order. 
11.	In his written submissions the father said that the consent order should be set aside. The parties did not have proper advice and neither party had requested that jurisdiction be removed from the CSA. He made additional brief representations as to the ability of the CSA to enforce the order. 

Discussion and conclusion 
12.	It was open to the FTT to make a consent order under rule 32 of the Tribunal Procedure Rules, subject to the Tribunal being reasonably satisfied that it was appropriate to do so.   The problem lies in the form of the consent order and the consequences in terms of its enforceability.
13.	Had the FTT ordered the father to pay a specified sum or sums, then that order would have been enforceable as a county court debt: section 27(1) Tribunals Courts and Enforcement Act 2007.  That provision applies to “a sum payable in pursuance of a decision of the First-tier Tribunal”.  The Decision Notice in this case did not order that any sum was payable.  It made payability conditional on the CSA’s calculation of liability. 
14.	If the FTT had made an order for a specific sum, that order would have been made outside the scheme of the Child Support Act and regulations.  It could not have been enforced by the CSA.  Moreover, while such an order might be made in respect of a lump sum, it is far from clear that such an order is appropriate for ongoing maintenance liability.  It seems to me that that would present very difficult problems as to how the county court could enforce the order, if at all.  In any event, I have no doubt that that was not what the parties or FTT intended: the intention was that the agreement of the parties should relate to maintenance liability under the child support scheme. 
15.	The next problem is that the order did not provide a proper basis upon which the CSA could make a determination of child support liability.  The order was that the CSA recalculate the child support liability in accordance with directions as to weekly liability and a lump sum in respect of arrears.  The CSA has no power under the Act and regulations to determine liability on that basis. The FTT did not identify any of the components required by the CSA to calculate liability (ie income or capital).  The specification of weekly sum to be paid by the father did not provide any basis for calculating liability.  
16.	The result was that the parties were in limbo. The CSA was directed to do the impossible. The mother had an order that the father should pay a specified weekly amount but it was unenforceable by the CSA and, probably, by her as well.  
17.	Moreover, I am satisfied that the mother did not consent to this order.  I accept her explanation that, had she understood that it was not enforceable by the CSA, she would not have agreed to it.  She was misinformed at the hearing as to this. A parent cannot give informed consent without, at the very least, understanding the consequences of the order being considered including enforceability. That was not the position here, and this order must be set aside.
18.	For what it is worth, I do not consider that this affects the £2000 arrears.  The father paid a lump sum in respect of arrears. Regardless of the defects of the consent order, he agreed to do so.  He owed the money.   However, this issue is not within my jurisdiction.  If the father wishes to recover the arrears which he has paid, that is something that he will have to pursue outside of this arena. 

Disposal
19.	In the light of the error identified by me, the consent order must be set aside.  I am not in a position to remake the decision.  That requires detailed examination of evidence and findings of fact.
20.	After the hearing in the Upper Tribunal, I received a letter from the mother saying that she did not want the case to be reassessed by the FTT as she did not think it would lead to a different outcome as the father is now in receipt of ESA.
21.	It is not certain that the appellant would achieve nothing before the FTT.  The decision which she appealed was made when there was a nil rate assessment because the father’s income was below £5/week.  A variation could have been made, if the evidence supported it.  In addition, as I pointed out in previous directions, the mother’s appeal appears to challenge the father’s claimed income. 
22.	The appropriate course is for me to remit the appeal to the FTT.  This will give the mother an opportunity to reflect on her position.  It remains open to her to withdraw her appeal to the FTT.  

 

Signed on the original	Kate Markus QC
on 28 October 2015		Judge of the Upper Tribunal