SO CCS 2570 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 30 March 2011 |
| Neutral Citation | 2011 UKUT 149 AAC |
| Subject Matter | Child support |
| Respondent | CMEC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 2570 2010 |
| Appellant | SO |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant (“the father”).
The decision of the Birmingham First-tier Tribunal dated 25 May 2010 under file reference 024/10/03248 does not involve an error on a point of law. The tribunal’s decision therefore stands.
This decision is given under section 11 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 dismissed. The decision of the Birmingham First-tier Tribunal dated 25 May 2010 under file reference 024/10/03248 does not involve an error on a point of law. True, District Tribunal Judge Ennals did not refer to regulation 7(4) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 in his decision. However, he did not need to in the circumstances of this case. The tribunal’s decision therefore stands.
The issues in this appeal
2. The underlying issue in this appeal concerns the appropriate level of child support maintenance payable by the father in respect of his daughter Faye, who lives with the mother. That depends in turn on whether or not there is “shared care” as defined under the child support legislation.
3. As is often the case, the parents’ respective views are deeply entrenched and diametrically opposed. There have been obvious difficulties over contact arrangements, but those are matters ultimately for the family courts, as the parties well know. The mutual hostility has clearly made the case difficult for both the Commission and the First-tier Tribunal, as well as doubtless for the parties themselves.
4. In fact, the central issue in this appeal before the Upper Tribunal is much narrower. The sole question for the Upper Tribunal is whether the First-tier Tribunal’s decision involves any error of law. That is plainly a much narrower question than what was the extent of shared care or what is the right level of child support maintenance for Faye.
The First-tier Tribunal’s decision
5. The Commission made a maintenance calculation on 16 December 2009 which was assessed on the basis that the father had shared care of Faye for 52 nights a year. The mother appealed.
6. The First-tier Tribunal comprised District Tribunal Judge Ennals. He heard the appeal on 25 May 2010. He allowed the mother’s appeal. He noted that the mother said the shared care was 40 nights in the relevant previous year while the father said it was 43 or 49 nights. Either way, as the tribunal judge noted, it was less than 52 nights a year in the 12 months until 2 December 2009. He therefore ruled that the shared care provisions under regulation 7 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 did not apply.
The proceedings before the Upper Tribunal
7. The father applied for permission to appeal to the Upper Tribunal on the basis that the tribunal judge had failed to consider and apply regulation 7(4), which allows a period of less than 12 months to be used in certain circumstances in calculating the extent of shared care. District Tribunal Judge Ennals gave permission to appeal.
8. The Commission’s representative, Mr Kevin O’Kane, in a detailed and helpful submission, does not support the appeal. He argues that while the First-tier Tribunal may have made an error of law in failing to explain whether it had considered the possibility of regulation 7(4) applying, that provision could not have applied in any event. To that extent Mr O’Kane essentially submits that the error, if that is what it was, made no difference as the tribunal came to the only conclusion it could on the facts of the case.
9. Both parents have made detailed submissions on the appeal. The mother’s are carefully focussed on the relevant legal issues and would do credit to any lawyer (which she may or may not be).
10. The father’s submissions are more wide-ranging. However, that said his essential point is that the original CSA decision was the right one, based on common sense and fairness, and that 2009 saw some disruption to the contact arrangements, engineered, as he alleges, by the mother, which should be discounted in assessing the regularity and frequency of contact.
11. The father also seeks to challenge the mother’s evidence before the tribunal as inaccurate and misleading. However, I must bear in mind that the District Tribunal Judge had the opportunity of hearing from both parents at first hand and I should not readily interfere with his assessment of credibility. Indeed, the problem facing the father is his admission at the hearing that the amount of shared care in the relevant 12 month period did not actually reach the 52 night threshold.
The Upper Tribunal’s reasoning
12. Given the evidence before him and the concessions made, the District Tribunal Judge was evidently right to find that the 52-night threshold had not been reached for the purposes of the shared care rule.
13. Should he have considered a shorter period than 12 months in making that assessment by applying regulation 7(4)? I do not accept the mother’s argument that the father should have made that point at the hearing. I do not think unrepresented parents can reasonably be expected to make such technical points on child support law, which is notoriously complicated. If a point like that needed to be considered, the onus was on the tribunal, which has an inquisitorial function, to identify the issue and explore it.
14. Plainly District Tribunal Judge Ennals did not refer to regulation 7(4) in his decision notice or statement of reasons. There is no way of knowing for sure whether the tribunal judge (a) considered regulation 7(4) but decided it did not apply but did not see it as important to say as much; or (b) simply did not consider regulation 7(4) at all. There is some evidence that the latter was the case. I say this with all due respect to the District Tribunal Judge, but the references in his statement of reasons to being required to adopt “a purely arithmetical basis” and to having to consider (by implication solely) the 12 month period before the relevant week suggest that alternative (b) is more likely.
15. However, in the circumstances of this case I do not think it actually matters whether option (a) or (b) applies. The general rule is that the level of shared care is assessed over the previous relevant 12 month period (regulation 7(3))). This was the rule that the tribunal judge applied. However, regulation 7(3) is subject to the terms of regulation 7(4), which provides as follows:
“(4) The circumstances in which the Secretary of State may have regard to a number of nights over less than...
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