CJ v Secretary of State for Work and Pensions and VW (CSM)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Judgment Date | 15 December 2017 |
| Neutral Citation | [2017] UKUT 498 (AAC),[2017] UKUT 498 (AAC) |
| Subject Matter | Child support,Revisions,supersessions,reviews,Child support - calculation of income,Child support - jurisdiction,reviews - supersession: general,Wikeley,N |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 02 January 2018 |
| Date | 15 December 2017 |
CJ v (1) SSWP, (2) VW (CSM) [2017] UKUT 498 (AAC)
CCS/2587/2016 1
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 First-tier Tribunal dated 9 June 2016 under file reference
SC227/13/02971 does not involve a material error on a point of law. The
tribunal’s decision therefore stands.
This decision is given under section 12(2)(a) and (b)(i) 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 First-
tier Tribunal (“the Tribunal”) involves an error on one point of law but it is not a
material error in the sense of one affecting the outcome. The Tribunal’s decision
therefore stands. .
The parties to this appeal
2. I refer to the parties in this appeal as simply the father, the mother and the
Secretary of State respectively. The father, who was the Appellant before both the
Tribunal below and the Upper Tribunal, is the non-resident parent. The mother is the
parent with care and the Second Respondent. The Secretary of State is the First
Respondent in these proceedings. For convenience I sometimes refer to the
Secretary of State as simply “the Agency”.
The issues in this appeal
3. The case is ultimately about the father’s liability to support his son, James, who
lives with his mother. James is now aged 20, a fact that tells its own story. The father
is challenging an Agency maintenance calculation from November 2012 (and which
took effect from 21 April 2009). His principal arguments are that the Agency closed
the case in 2007 and that in any event he was no longer habitually resident in the
United Kingdom (UK) after mid-2006. He also contends that the Agency’s
assessment of his income was fundamentally flawed. This is the second time the
matter has come before the Upper Tribunal.
The ‘first time around’ appeal
4. In the ‘first time around’ appeal an earlier tribunal had heard the father’s appeal
on 16 March 2014. That tribunal dismissed the father’s appeal against the Agency’s
decision dated 19 November 2012. The father then appealed to the Upper Tribunal
on a wide range of matters. Many of those points were questions of fact which were
for the tribunal to decide, and did not give rise to any arguable error of law.
5. However, I gave the father permission to appeal against that original tribunal
decision on two procedural grounds. The first was that it appeared – given material
that the father had subsequently obtained by way of a subject access request under
the Data Protection Act 1998 – that the Agency may not have included all relevant
evidence in its response to that first time around appeal and indeed that the child
support case may in fact have been closed in 2007. The second was that it was
CJ v (1) SSWP, (2) VW (CSM) [2017] UKUT 498 (AAC)
CCS/2587/2016 2
questionable whether there had been a fresh application by the mother for child
support maintenance in April 2009, as the first tribunal found (in the alternative, if it
was wrong about the case not having been closed in 2007).
6. Mr Kevin O’Kane, the Secretary of State’s representative in that first time around
appeal before the Upper Tribunal, supported the father’s appeal on that occasion. I
allowed the father’s appeal (in the decision under reference CCS/4292/2014) and
remitted the case for a complete re-hearing before a new First-tier Tribunal.
The ‘second time around’ appeal
7. The Tribunal duly heard the father’s appeal for a second time on 9 June 2016.
The Tribunal dismissed the appeal and confirmed the essence of the Agency’s
decision dated 19 November 2012. The Tribunal’s decision notice conveniently
recorded its material decisions as follows (emphasis as in the original):
“1. The maintenance assessment was not cancelled in August 2007 because
the Appellant ceased to be habitually resident in the United Kingdom.
2. The Appellant did not cease to be habitually resident in the United Kingdom in
2006.
3. The decision of 19 November 2012 is confirmed save that the maintenance
calculation of £15.00 per week from the effective date 21 April 2009 is incorrect.
The wrong period was used for the calculation of the Appellant’s income as 396
days were used rather than one year. The nature of the error is set out in the
submission paragraph 2 page 3.
4. The maintenance assessment for the effective date of 21 April 2009 will be
recalculated correcting this error.
5. In all other respects the decision of 19 November 2012 is confirmed.”
8. The Tribunal subsequently issued a full statement of reasons for its decision,
elaborating on those summary reasons.
The proceedings in the ‘second time around’ appeal before the Upper Tribunal
9. I gave the father permission to appeal the Tribunal’s decision on the second time
around appeal to the Upper Tribunal. In doing so, I directed my comments in
particular to the question of whether the child support case had been closed in 2007,
as the father had argued but as the Tribunal found was not the case.
10. Mrs B Massie, now acting on behalf of the Secretary of State (for the Agency),
provided a detailed and helpful written submission on the father’s appeal. She did not
support the appeal to the Upper Tribunal. Nor did the mother.
11. The oral hearing of this appeal took place at the Bradford Immigration and
Asylum Tribunal venue on 16 November 2017. The father attended, representing
himself, to put his case. Ms Zoë Leventhal of Counsel attended for the Secretary of
State. The mother did not attend but has made submissions in writing, which I have
taken into consideration.
The father’s outline grounds of appeal in the ‘second time around’ appeal
12. The father’s detailed grounds of appeal were organised around the three
questions which the second time around Tribunal had posed to itself in the course of
its statement of reasons. These were (1) was the case closed in 2007?; (2) did the
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