CCS 1626 2012, SG v Secretary of State for Work and Pensions and CL (CSM)
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 12 September 2013 |
| Neutral Citation | [2013] UKUT 455 (AAC) |
| Subject Matter | Child support |
| Respondent | Secretary of State for Work and Pensions and CL (CSM) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 1626 2012 |
| Appellant | SG |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant (“the father”), but to only marginal effect.
The decision of the Chesterfield First-tier Tribunal dated 14 February 2012 under file reference 031/07/01859 involves an error on a point of law. The tribunal’s decision is therefore set aside.
The Upper Tribunal is in a position to re-make the decision on the appeal by the father against the decision of the Secretary of State (formerly the Child Maintenance and Enforcement Commission and the Child Support Agency) dated 2 March 2004 and as revised on 27 June 2007. The decision that the First-tier Tribunal should have made is as follows. The Upper Tribunal re-makes the decision accordingly.
The father’s appeal against the decision of the Child Support Agency (now the Secretary of State) dated 27 June 2007 is dismissed.
The substance of that decision, with an effective date of 16 August 2002, was correct. The Agency had correctly assessed the father’s gross income from all sources (including rental income) as £80,000 p.a. and had also correctly deducted amounts for income tax and national insurance contributions.
This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The Upper Tribunal’s decision in summary
1. The father’s appeal to the Upper Tribunal is allowed, although in a marginal sense only. The decision of the Chesterfield First-tier Tribunal on 14 February 2012 involves an error on a point of law. The tribunal’s decision is therefore set aside. The Upper Tribunal re-makes the original decision under appeal in the terms set out above. For the most part this has almost the same effect as the First-tier Tribunal’s decision. The main difference is that income tax and national insurance must be deducted by the Agency when doing the necessary recalculations.
The context of this appeal
The factual background: an introduction
2. This case has (even by the standards of many other child support appeals) a very long and troubled history. It relates to a decision on the father’s child support liability which has effect from 2002. The case has already had one visit to the Upper Tribunal. The case file now runs to over 1,400 pages, notwithstanding the fact that much of the earlier evidence has been lost by the Child Support Agency. It would be pointless to try and even begin to set out a full account. The following summary will suffice for present purposes.
3. The parents separated in 1993 (or possibly earlier). They have been involved in various hearings before the child support appeal tribunal and its successors since at least 1997. It is, accordingly, very much an “old scheme” case, based on the child support rules in force before March 2003.
4. I refer to the parties simply as the father (the non-resident parent and the Appellant before the Upper Tribunal), the Secretary of State (or “the Agency”) and the mother (the parent with care). In effect, the father sees himself as the victim of unreasonable demands by both the mother and by the tribunal below. The mother, on the other hand, regards the father as “ducking and diving” to avoid his responsibility to provide financial support for their daughter, the “qualifying child” in question, who is now aged 23. One matter upon which the parents are probably agreed, despite their many other differences, is that the Agency has been hopelessly inefficient in handling this case from the outset.
The Agency’s decisions (or at least those concerned with this appeal)
5. In June 2002 the father telephoned the Agency to report that he was unemployed, had no income and was claiming jobseeker’s allowance. He phoned again in August 2002 to repeat that he was unemployed. It does not appear that the Agency took any immediate action.
6. However, on 2 March 2004 an Agency decision-maker decided that the father was liable to pay £0.00 in child support as from 16 August 2002. The mother appealed that decision.
7. On 27 June 2007 a different decision maker revised that decision of 2 March 2004, and decided that the father was liable to pay £136.89 per week as from 16 August 2002. This decision was made on the basis that the father had misrepresented his true income, which the Agency found, following a criminal compliance investigation, to be in the order of £80,000 a year. On 1 August 2007 the decision was reissued to the father, who appealed that revised decision.
The first hearing before the First-tier Tribunal (FTT1)
8. On 26 October 2009 the First-tier Tribunal (FTT1) heard the father’s appeal against the revision decision of 27 June 2007. It allowed the father’s appeal “with considerable reluctance”. In short, FTT1 found that the Agency had lost the relevant paperwork and could not now prove its case, even though “there is very good evidence that [the father] enjoyed a substantial income between 2002 and 2007”. The mother appealed to the Upper Tribunal against the decision of FTT1.
9. On 21 August 2010 Judge Jacobs allowed the mother’s appeal (under file reference CCS/3054/2009), ruling that FTT1 had failed to consider the possibility of a revision for official error. He also held that FTT1 should have considered the possibility of a supersession as an alternative to revision. He directed a re-hearing, the panel for which, he said, could be constituted in the same way as before.
The second hearing before the First-tier Tribunal (FTT2)
10. There were then a series of delays in getting the matter re-listed, in part because of the father’s attempt to challenge Judge Jacobs’s decision in the Court of Appeal. However, Sullivan LJ refused the father permission to appeal on 12 May 2011 (application C3/2010/2880). There were also adjourned hearings before the FTT in January and December 2011 and a series of other FTT directions notices.
11. On 14 February 2012 the re-hearing finally took place, before FTT2 (composed of the same District Tribunal Judge and financial member as FTT1). Both parents attended (but without representatives). FTT2’s decision was (nominally at least) to allow the father’s appeal, revising the Agency’s decision of 1 August 2007 (which, of course, was in the same terms as that of 27 June 2007, having simply been reissued). FTT2 decided that the Agency should recalculate the father’s child support liability as from the effective date of 16 August 2002 on the basis that his net income (including rental income) was £80,000 a year, with no deduction for income tax or national insurance contributions (NICs). This time it was the father who applied for permission to appeal to the Upper Tribunal.
The current proceedings before the Upper Tribunal
12. On 12 June 2012 Judge Jacobs gave directions for an oral hearing of the application. On 26 November 2012 that hearing took place before Judge Mesher in Manchester. On 6 December 2012 Judge Mesher gave the father permission to appeal and issued detailed directions as to the issues raised by the appeal. Judge Mesher has since retired and the case has been reallocated to me for decision.
13. All three parties have now made detailed and extensive written submissions on the appeal; Mrs S A Powell for the Secretary of State, the mother in person and the father by way of Ms Rachel Spicer of Counsel. I am grateful to all of them. All their representations have been taken into account, even if every point does not need to be referred to for the purposes of this decision.
14. In summary, both Mrs Powell and Ms Spicer argue that FTT2’s decision involves an error of law, although their reasoning differs in certain respects. They both argue that FTT2’s decision should be set aside and that the case should go back for re-hearing before a fresh FTT.
15. The mother, in short, supports the decision of FTT2. She has asked for an oral hearing of this appeal before the Upper Tribunal, but equally has also asked for the case to be dealt with as expeditiously as possible. Given the detailed written arguments on file, I take the view that an oral hearing before the Upper Tribunal is neither necessary nor proportionate. I therefore refuse the mother’s rather conditional request for an oral hearing.
16. I agree with Mrs Powell and Ms Spicer that, in two respects at least, the FTT’s decision involves an error of law. I also agree that its decision should be set aside. However, I do not agree with them on the proposed course of action...
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