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[2003] UKSSCSC CCS_5515_2002 (07 October 2003)

 


CCS/5515/2002

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. I allow this appeal. I set aside the decision of the Middlesbrough appeal tribunal dated 19 August 2002 and I substitute my own decision, which is (a) that the tribunal had no jurisdiction to consider the appeal against the decision notified on 18 November 1996, cancelling the maintenance assessment under which the appellant was liable to pay child support maintenance to the second respondent, and (b) that the tribunal had no jurisdiction to consider whether the Secretary of State had, in the decision notified on 11 March 2002, correctly refused to revise the decision of 18 November 1996. However, it appears that there is an outstanding application for a child support maintenance assessment, received on 18 December 1997, upon which the Secretary of State has yet to make a decision (see paragraphs 4 to 9 and 31 below).

REASONS

2. The appellant is the father of the qualifying children who, according to the Secretary of State's submission to the tribunal, have their birthdays on the same day and are now aged 21 and 19. At the material time, the children lived with their mother, who is the second respondent to this appeal. She has been represented on this appeal by Mr Mike Robinson of Darlington citizens' advice bureau. The first respondent is the Secretary of State for Work and Pensions who is now represented by Mr Bernard Wilson of the Adjudication and Constitutional Issues Division of the Department for Work and Pensions. The submissions of the appellant, Mr Robinson and Mr Wilson have all been particularly clear and helpful.

The history

3. The mother first applied for child support maintenance in 1993. It is unnecessary to set out the details of the earliest assessments but, following a review under section 17 of the Child Support Act 1991, the father was liable to pay child support maintenance at the rate of £95.09 per week from 18 April 1995. It appears that, after a period of illness, he accepted voluntary redundancy from his employment in the summer of 1996 and he moved to Eire at the end of September or the beginning of October that year. The Child Support Agency had been informed of his intention to move both by the father's partner and the mother and, on 18 November 1996, the Agency wrote to the mother as follows:

"An officer of the Child Support Agency, acting on behalf of the Secretary of State, has decided to stop all action on your application for child maintenance.

This is because [the father] is no longer habitually resident in the United Kingdom.

If you need help

Please get in touch with us. Our address and telephone number are at the bottom of this letter. Telephone calls will be charged at local rates. Please have this letter with you when you telephone.

Where an interview would be more helpful, we will arrange for one of our staff based in your area to see you."

I presume that a letter to similar effect was sent to the father.

4. On 12 November 1997, the mother wrote to the Child Support Agency to report that the father had returned to England in July 1997, had remarried in August and had then taken temporary employment for two years in the United Arab Emirates. She said that she believed him to be habitually resident in the United Kingdom and pointed to the fact that he owned two houses in Darlington, that his wife and stepson lived in Sheffield and that his wife owned another house in Darlington. The three houses in Darlington were, she said, all let. On 2 December 1997, the Child Support Agency replied to that letter and advised the mother to make a new application for a maintenance assessment. She did so and her application was received on 18 December 1997.
5. What happened then is unclear. The Child Support Agency were notorious in the 1990s for destroying correspondence and not keeping paper records of decisions and then relying on incomplete and inaccurate computer records. In the present case, they have produced three conflicting accounts. According to the submission made to the appeal tribunal in this case, following receipt of the new maintenance application form completed by the mother, a form CSA551 was sent to her on 9 July 1998 informing her that, as the father was returning to England only for a few weeks' holiday, the Agency had no jurisdiction to make a maintenance assessment. No copy of the form CSA551 is available in the papers and it appears that the submission is based on a computer record. The submission suggests that the account given to the tribunal is supported by a letter from the Agency to the mother dated 11 August 1998, which says:

"I refer to your letter of 29^th July 1998 requesting an appeal against the decision made on 9^th July 1998. I would advise that the decision regarding jurisdiction was made in October 1996 and a letter informing you of this was issued on 11^th November 1996.

There was no decision regarding jurisdiction made on 9^th July 1998, therefore, no review is appropriate. This was simply a reply to your enquiry requesting that an assessment be made as you stated that [the father] was back in Great Britain. As already advised, if you feel that he is now habitually resident in this country you should contact a Child Support Officer at your local Benefit Agency, in order to make a new application for maintenance."

6. A letter from the Parliamentary Business Unit, written on behalf of the Chief Executive to the mother on 3 December 2001, says:

"A letter informing you that your case had been closed was sent to you on 11 November 1996. This letter gave you the right of appeal against the decision if you believed it was wrong and advised that an appeal should be made within 28 days of receipt of notification.

You made a new application in 1999 but this could not be processed as [the father] was still not habitually resident in the UK. At that time we gave you a second reference number which was an administrative error but did not affect the way your case was treated."

7. A further letter from a customer advice team manager, dated 11 January 2002, says:

"Your case was closed from 3 October 1996 as [the father] was no longer resident in the United Kingdom. …

You contacted the Agency again in November 1997 to advise that [the father] had returned to this country and asked that we reopen your claim for maintenance. You were advised that we were unable to reopen your initial claim and that you would be required to submit a new application. You disputed the decision not to reopen your original claim, however your request for a review was refused.

We received your new application for Child Support maintenance on 18 December 1997. A form was issued to obtain details of [the father's] circumstances. There was no response to our requests for information and we instigated action to trace [the father's] employer. Tracing action confirmed that [the father] had not been employed in the U.K. since 1996.

Child support officers visited the address which you had provided to establish if [the father] was resident there however this was unsuccessful. As we had confirmed that [the father] was not employed in this country, and we had been unable to establish if he retained links with this country, the decision was taken that we did not have jurisdiction to proceed with your application.

…

All the information which you provided under both reference numbers is held together on file and has been investigated."

8. The mother's records appear to be rather better than those of the Child Support Agency. She has produced a copy of a document dated 21 January 1998, informing her that a maintenance enquiry form had been issued to the father on that day. A further document, dated 29 October 1998, informed her that a further request for information had been made on 9 September 1998 and that, if the father had not replied by 12 November 1998, the child support officer intended to make an interim maintenance assessment. That may have been sent before a letter from the father, dated 17 October 1998, was received by the Agency. It read:

"Please find enclosed documentation sent to my employer and me. As I am sure you are aware the Child Support Agency only has jurisdiction where the absent parent is resident in the UK and, as I now reside outside the UK, and have done so for two years, I am not required to respond to your requests for information. Please amend your records accordingly."

On 2 February 1999, the mother sent another letter to the Agency in connection with her claim for child support "made in 2^nd December 1997".

9. It seems quite clear that, whatever was said on form CSA551 dated 9 July 1998, it was not a decision refusing to make a fresh maintenance assessment on the new application, because action on that application was still being taken in 1999 (which may account for the date given by the Parliamentary Business Unit as the date of the application). Furthermore, the letter from the Agency dated 11 August 1998 seems to have been written in ignorance of the new application. The Secretary of State now concedes that no decision was ever made in respect of that application, despite the assertions of the Parliamentary Business Unit, the customer advice team manager and the person who, on behalf of the Secretary of State, wrote the submission to the tribunal. It appears therefore that the CSA551 may have been concerned with the mother's challenge to the refusal to reconsider the closure of her case in 1996.

The appeal to the tribunal

10. In any event, after the fruitless correspondence with the Agency in 2001 and January 2002, the mother wrote on 27 February 2002:

"I am appealing against the decision to close the above case in November 1996 on the following grounds:

I was not advised I had a right of appeal against this decision nor given any time limit to appeal – please see your letter … dated 18^th November 1996.

I was informed the Child Support Agency was to "stop all action" on this application, but I believe subsequent information I gave should have invalidated your decision my ex husband was habitually resident abroad.

I did not/do not believe my ex-husband to be habitually resident abroad for the following reasons …

I was informed by a letter dated 2^nd December 1997 I had to reapply for Child Support which I did and subsequently a second case was opened … which I have recently been informed was opened in error.

I am appealing against the closure of my original case … on the above grounds that your decision to do so adversely affects my family's financial situation."

This "appeal" resulted in what the person making the decision described both as a decision on "revision" and as a refusal to "review", although the submission to the tribunal described the decision as a "refusal to revise". The decision was made on 5 March 2002 but notice of it was not sent to the mother until 11 March 2002. She received it on the following day. On 19 March 2002, the mother submitted an appeal, which was received on 22 March 2002. She stated that she was appealing against the decision of 18 November 1996 but referred to the decision she had received on 12 March 2002.

11. The Secretary of State's submission to the tribunal said that the decision notified on 11 March 2002 had been a refusal "to revise the maintenance assessment" – by which, I think, he meant a refusal to revise the 1996 cancellation of the maintenance assessment – and that, by virtue of regulation 31(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, the appeal against the 1996 decision was in time. It was submitted that, at the time the "closure decision", was made it was correct, that "it was not possible to establish that [the father] had returned to UK" and that "the agency's computer records show that in the five years between 1997 and 2002 all attempts to trace [the father] were unsuccessful". No attempt was made to answer the mother's points about the interests the father retained in the United Kingdom or to explain what efforts the Agency had made to trace the father, beyond the information contained in the letter dated 11 January 2002, or to consider the significance of the father's letter dated 17 October 1998.
12. As to the procedural history, the submission stated that the decision on 11 November 1996 had been made by a "decision-maker", but failed to explain under what statutory procedure the decision was made, save that in relation to the effective date of the decision, reference was made to sections 17(4A) and (6) of the 1991 Act and to regulations 31(3) and (5) and 33(1) and (2) of the Child Support (Maintenance Assessment Procedure) Regulations 1992. The submission said:

"In accordance with section 44 of the Child Support Act 1991 the Secretary of State shall have jurisdiction to make a maintenance assessment with respect to a person who is a person with care, an absent parent or a qualifying child only if that person is habitually resident in the UK. The Secretary of State may by regulations make provision for the cancellation of any maintenance assessment where the person with care, absent parent or qualifying child with respect to whom it was made ceases to be habitually resident in the UK."

No attempt was made to identify any regulations that might have been made in exercise of that power. It was said that the decision on 11 March 2002 was made under section 18 of the Child Support Act 1991, as amended by the Child Support Act 1995. No attempt was made to explain what section 18 of the 1991 Act actually said or why it was of any relevance. It was also said that, after the appeal had been received, a decision-maker had looked again at the decision of 11 March 2002 but had been unable to revise it under section 16(6) of the Child Support Act 1991 as substituted by the Social Security Act 1998. What presumably was meant was that the reconsideration had led to another refusal to revise under section 16(1) which meant that the appeal did not lapse under section 16(6).

The tribunal's decision

13. Neither parent attended the hearing before the tribunal. I sense that the tribunal found the Secretary of State's submission unhelpful, which is not surprising. However, he recorded:

"The Presenting Officer from the Agency who was present indicated to the Tribunal that he found the submission persuasive as at the date of the appeal which was 1996 and he had nothing to add to the evidence before the Tribunal."

The tribunal's statement of reasons says nothing further about the procedural aspects of the case but turns to the question of fact raised by the appeal. He decided that the father was habitually resident in the United Kingdom, at least up until 1999.

"From the evidence before the Tribunal and taking into account the appellant's representative's submission the Tribunal agreed that as at the effective date the respondent was habitually resident in the United Kingdom. The reason that they arrived at that decision was that in the period October 1996 to July 1997 the respondent retained the ownership of a property in the United Kingdom and also operated a bank account in the United Kingdom. Between July and September 1997 the respondent was actually present in the country when he married at Barnard Castle in July and from September 1997 until a period in 1999 the respondent's wife lived in the United Kingdom and he was merely temporarily away from the country on a post in the Arab Emirates. It is noted that he continued to take leave in the United Kingdom and maintained properties there, that he had a car registered in the United Kingdom and retained a United Kingdom bank account. It was not until a date in 1999 when the respondent's wife joined him that he might have been at that date construed to have abandoned habitual residence in the United Kingdom, although if the evidence pointed to the fact that he still maintained properties and bank accounts in the United Kingdom then the Tribunal would be of the view that he was still resident in the United Kingdom.

The tribunal in arriving at that decision on the facts before them also took into account the decision R(CS) 5/96."

The father now appeals against that decision with my leave.

Habitual residence

14. The father's case is that he has not been habitually resident in the United Kingdom since 1996. To a substantial extent, his case is based on further evidence. As both the Secretary of State's former representative and Mr Robinson, the mother's representative, submit, an appeal to a Commissioner lies only on a point of law and a tribunal cannot be said to have erred in law because he has failed to have regard to evidence that was not before him.
15. However, the father also submits that the tribunal placed too much weight on his ownership of property and retention of a bank account in the United Kingdom. I agree. The tribunal was concerned with residence and not with domicile. A person has his residence where he resides and he may cease to reside in a country notwithstanding that he retains property there and intends to return there in the future. Other factors must be considered in deciding whether the person remains resident in a county despite his absence from it. Ownership of property in a particular country may be indirect evidence of residence but it cannot, by itself, be sufficient to establish residence. As the father submits, a distinction must be drawn between the ownership of a home, which does suggest residence, and ownership of other property. However, it does not follow that the tribunal reached the wrong conclusion on the question of habitual residence, given the evidence before him, at least in respect of the period from 1997 to 1999. In the absence of evidence to the contrary, it is reasonable to presume that a husband has a home where his wife does and as the mother's assertion that the father's employment in the Middle East was temporary had not been challenged and as there was evidence that he came to the United Kingdom from time to time and, presumably, made use of that home, the tribunal was entitled to infer that the father remained habitually resident in the United Kingdom while his wife remained resident here, even though he may also have been resident in the United Arab Emirates. Among other points he has raised, the father has now said that there was a degree of estrangement between him and his wife and that his contract of employment was renewable, rather than being temporary. Had these points been raised before the tribunal, the tribunal might have reached a different conclusion, but the tribunal's conclusion in respect of the period from 1997 to 1999 was, in my view, one he would have been entitled to reach on the evidence before him, had he been entitled to consider the question of habitual residence at all.

The legislation governing procedure

16. There is a general public interest in litigation being conducted swiftly and in there being finality to litigation. All systems of law have time limits for bringing proceedings. The child support system is no exception. (There have, so far, been three schemes of decision-making and appeals. The first lasted until 1 June 1999, when large parts of the Child Support Act 1991 were amended by the Social Security Act 1998 to produce the second scheme. The present case straddles both those schemes, involving as it does decisions made in 1996 and 2002. I need not deal with the third scheme which has existed since the amendments made by the Child Support, Pensions and Social Security Act 2000 started to come into force earlier this year.) The question that arises in this case is whether the letter written by the mother on 27 February 2002 was capable of leading to a tribunal making a decision in respect of the father's liability for child support maintenance from 1996.
17. Applications for child support maintenance cannot be back-dated. In the ordinary case, where the application is made by the person with care for the qualifying children and the absent parent returns the maintenance enquiry form in the proper way, an initial maintenance assessment can be effective only from eight weeks after the maintenance enquiry form is sent to the absent parent (regulation 30(2)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992). Even where the absent parent does not co-operate, the assessment can be effective only from the date the maintenance enquiry form is sent.
18. Once a decision on an application has been made, there are carefully prescribed circumstances where the decision may be altered and there are detailed rules as to the date from which any such alteration may be effective. In this respect, there are substantial differences between the two schemes of adjudication that I must consider but there are also important similarities between the two schemes. Generally speaking, an alteration of an assessment is not back-dated so as to be effective before the request for the alteration was made, except in certain circumstances where the delay in asking for the alteration is due to the fault of another person. Appeals may be brought against decisions, but there are time-limits. Thus, decision-making is generally not retrospective. It is also final for the time being. This means that there is a reasonable degree of certainty about the liability of one parent to make payments to the other, so that both parties know where they stand.
19. Under the pre-1998 Act scheme, decisions in respect of maintenance assessments were made by child support officers, appointed under section 13 of the 1991 Act. Section 11(1) provided:

"An application for a maintenance assessment made to the Secretary of State shall be referred by him to a child support officer whose duty it shall be to deal with the application in accordance with the provision made by or under this Act."

Section 44 provided:

"(1) A child support officer shall have jurisdiction to make a maintenance assessment with respect to a person who is –

(a) a person with care;

(b) an absent parent; or

(c) a qualifying child,

only if that person is habitually resident in the United Kingdom.

(2) …

(3) The Secretary of State may by regulations make provision for the cancellation of any maintenance assessment where –

(a) the person with care, absent parent or qualifying child with respect to whom it was made ceases to be habitually resident in the United Kingdom;

(b) …; or

(c) …"

Regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 provided:

"(1) Where –

(a) a person with care;

(b) an absent parent; or

(c) a qualifying child

with respect to whom a maintenance assessment is in force ceases to be habitually resident in the United Kingdom, a child support officer shall cancel that assessment.

(2) …

(3) Where a child support officer cancels a maintenance assessment under paragraph (1) …, the assessment shall cease to have effect from the date that the child support officer determines is the date on which –

(a) where paragraph (1) applies, the person with care, absent parent or qualifying child; or

(b)

with respect to whom the assessment was made ceases to be habitually resident in the United Kingdom.

(4) …"

Regulation 14 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 provided:

"(1) Where a child support officer cancels a maintenance assessment …, he shall immediately notify the relevant persons, so far as that is reasonably practicable, and shall give the reasons for the cancellation in writing.

(2) A notification under paragraph (1) shall include information as to the provisions of section 18 of the Act and regulations 24(1) and 31A(8)."

Section 18(3) and (12) provided that a person with care or absent parent in respect of whom a maintenance assessment had been in force could apply for a review of a decision to cancel the assessment. Regulation 24(1) provided that, subject to paragraph (2), the Secretary of State should refer such an application to a child support officer only if it had been made within 28 days of the date of notification of the decision to be reviewed. Paragraph (2) entitled the Secretary of State to refer a late application to a child support officer if satisfied that there was unavoidable delay in making the application. Regulation 31A(8) provided that a decision on review would be effective from the date on which the cancelled assessment ceased to have effect.

20. Section 20(1) provided for an appeal against a decision on a review under section 18 or to refuse such a review. Apart from the provisions to which I have already referred, section 18 provided for reviews of all sorts of decisions of child support officers. Effectively, a person had to apply for a review under section 18 before appealing under section 20, so that a child officer could have another look at a case before any appeal was launched. The Child Support (Maintenance Assessment Procedure) Regulations 1992 provided that any decision following a review under section 18 or a refusal to review under that section had to contain information as to the rights of appeal conferred by section 20 (see, in particular, regulations 10(4)(c), 11(2)(b) and (c), 12(2)(c), 13(2)(b), 15(2) and 15A(2)).
21. Under the 1998 Act, child support officers and reviews have disappeared. Decisions by child support officers have been replaced by decisions by the Secretary of State. Sections 11 and 44 of the 1991 Act and regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 have been amended accordingly. Reviews have been replaced by revisions under a new section 16 and supersessions under a new section 17. Decisions that may be revised or superseded are decisions under section 11 (applications for maintenance assessments), section 12 (interim maintenance assessments) and section 17 (supersessions and refusals to supersede). Section 18 has been repealed. The main distinction between revisions and supersessions is that, by virtue of section 16(3), a revision usually has effect from the same date as the decision that has been revised whereas, by virtue of section 17(4), a supersession generally takes effect from the date on which the application for supersession is made (or the date of the supersession itself if it made on the Secretary of State's own initiative). Regulation 17 of the much-amended Child Support (Maintenance Assessment Procedure) Regulations 1992 makes provision for the circumstances in which decisions may be revised and regulation 20 makes similar provision in respect of supersessions. Regulations 19 and 23 prescribe exceptions to the general rules in sections 16(3) and 17(4) as to the dates from which revisions and supersessions take effect. It is no longer necessary to make an application for review before making an appeal, but lodging an appeal results in the Secretary of State considering whether to revise the decision under section 16 before the appeal is heard. If he does, the appeal usually lapses under section 16(6). Section 20(3) confers a right of appeal where "a maintenance assessment is cancelled, or an application for the cancellation of a maintenance assessment is refused". Article 48(2) of the Social Security Act 1998 (Commencement No. 7 and Consequential and Transitional Provisions) Order 1999 provides that, generally, a decision of a child support officer made under the previous scheme is to be treated as though it were a decision of the Secretary of State under the new scheme for the purposes of allowing it to be revised or superseded.
22. Two points immediately become clear. The first is that the Secretary of State's submission to the tribunal failed to refer to most of the relevant legislation and referred to some wholly irrelevant legislation. In particular, it failed to mention regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992, which was the relevant provision dealing with the cancellation of a maintenance assessment. It was regulation 7(3) of those Regulations, rather than the legislation cited, that established the date from which the cancellation was effective. The second point is that the decisions issued in 1996 and 2002 both contained procedural flaws.

The 1996 decision and the CSA551 issued in 1998

23. The letter sent to the mother on 18 November 1996 suggests that the Child Support Agency believed that that the question whether a child support officer had jurisdiction to make, or to continue in force, a maintenance assessment when an absent parent was abroad was a question to be determined by the Secretary of State. However, it was plainly a matter for a child support officer. Section 11(1) of the 1991 Act required any new application for child support maintenance to be referred to a child support officer for him or her to deal with. Regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 could not have made it clearer that the cancellation of a maintenance assessment was also a matter for a child support officer. The distinction between the Secretary of State and child support officers was important because only decisions of the latter were subject to review and appeal. Why the Child Support Agency should have thought that Parliament intended that decisions as to the amount of a person's liability should be subject to reviews and appeals but decisions that there was no liability at all should not be subject to reviews and appeals, I do not understand. Plainly, as Mr Wilson concedes, the decision notified to the mother on 18 November 1996 should have been made by a child support officer and should, by virtue of regulation 14 of the Child Support (Maintenance Assessment Procedure) Regulations 1992, have informed the mother of her right to apply for a review under section 18 of the 1991 Act. If there had been such an application for review, the resulting decision should have informed the parties of their right to appeal. The letter from the Parliamentary Business Unit on behalf of the Chief Executive on 3 December 2001 is simply wrong in saying that the letter sent on 11 November 1996 "gave" the mother the right of appeal. The letter presumably represents wishful thinking as to what should have happened, based on inaccurate computer records. The actual document sent to the mother on 11 November 1996, and now produced by her, reveals a totally different picture.
24. Mr Wilson has explained that a CSA551 would not have been appropriate for a formal decision and that is why he concedes that the one sent to the mother on 9 July 1998 did not contain such a decision. It is a blank form beginning –

"Thank you for your enquiry. The information you asked for is as follows."

However, the letter of 11 August 1998 suggests that the CSA551 did contain a "reply to your enquiry requesting that an assessment be made". If that was intended to be an answer to the "request for a review" of the 1996 decision, mentioned in the letter of 11 January 2002 from the customer advice team manager, it should have been a formal decision but, if the decision was that the Secretary of State refused to refer the late application to a child support officer on the ground that it was late (see regulation 24(2) of the Child Support (Maintenance Assessment Procedure) Regulations 1992), it seems to me that it is possible that it might have been issued on a form CSA551. That is because, being a decision of the Secretary of State rather than a child support officer, there was no right to apply for a review or to appeal and the legislation did not require that any particular information be provided with the decision.

25. I will, in any event, assume that the mother's letter of 12 November 1997 should have been treated as an application for a review of the 1996 decision. What consequences flow from the flaws in the 1996 decision and the uncertainty about what happened in 1998 ?
26. Mr Robinson submits that the consequence of the failure of the 1996 decision to inform the mother of her right to apply for a review and of the time limit for doing to is that the Secretary of State was bound to refer her application for a review, made on 12 November 1997, to a child support officer. He further submits that, as no decision informing the mother of her right of appeal was ever made on that application, the application still remains to be determined, although, under the new scheme, it must be determined by the Secretary of State, rather than by a child support officer. He cites CP/4479/00. Mr Wilson, however, submits that the failure to inform the mother in 1996 of her right to apply for a review made no difference in this case because she was told that she could contact the Child Support Agency if she needed help and also the letter of 12 November 1997 was, on its face, a notification of a change of circumstances rather than a challenge to the 1996 decision which, he suggests, shows that the mother would not have applied for a review within a month of the 1996 decision being issued even if she had been told she could.
27. In social security cases, it is conventional to regard a decision that is not made in the name of the proper person and that does not contain the required information about reviews or appeals as being no decision at all. That is often the simplest was of unravelling cases that have gone wrong and it prevents the Secretary of State or the Board of Inland Revenue from gaining any advantage through a claimant's failure to challenge a decision in circumstances where that failure may be attributable to the Secretary of State's or Board's own failure to comply with the duty to inform the claimant of his right to challenge the decision. The existence of that duty implies an acceptance by Parliament that many claimants cannot be expected to know what their rights are unless they are told when the decision is issued. However, in child support cases, different considerations apply. For instance, in the present case, the father could legitimately expect to be able to rely on the decision notified on 18 November 1996. To hold that that decision was really no decision at all would be to the potential advantage of the mother but the potential disadvantage of the father. It would have no direct impact on the Secretary of State, who may be regarded as having been at fault, save in relation to administrative costs. In considering the consequences that Parliament intended to flow from a breach of the duty to give a decision in the proper form (Regina v. Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 W.L.R. 355), the respective rights and expectations of the parents must be balanced.
28. The first consideration, of course, is that the decision was given in the name of the Secretary of State rather than a child support officer. In this context, that is very much a question of form. Given the terms of the Secretary of State's appointment of child support officers, which applied to any officer of the Department of Social Security "employed on … the making, adjustment or cancellation of maintenance assessments" (see appendix 3 to Part 1 of the Child Support Adjudication Guide), it seems to me to be inevitable that the person who made the 1996 decision had been appointed to act as a child support officer. The only practical distinction between his or her acting on behalf of the Secretary of State and acting as a child support officer lay in the rights of the parties to challenge his or her decisions and to be told of those rights. In my view, despite the terms of the notification issued on 18 November 1996, he or she should be treated as having made the decision as a child support officer rather than as an officer acting on behalf of the Secretary of State. I take that view because the decision made was one that ought to have been subject to a possible review.
29. The second consideration is therefore as to the consequence of the decision not giving the mother the information to which she was entitled on the basis that it had been made by a child support officer. I do not accept Mr Wilson's submission that it is clear that the mother would not have applied for a review of the cancellation of the maintenance within a month had she been told she could do so. It seems to me that people are far less likely to challenge a decision if merely told that they can approach the Child Support Agency if they "need help", than they are if they are told that they have a right to object to the decision by applying for a review, and many of the points made later by the mother as to the father's possession of property in England might well have been made by her at the end of 1996. Mr Robinson has suggested that, if a decision were to be made now to review the cancellation of the maintenance assessment and to reinstate the assessment, the father might be entitled to compensation from the Agency. That may be so, but it seems highly undesirable that the fault of the Agency should result in prolonged litigation between the parents, with all the difficulties there would as a result of subsequent changes of circumstances which the parties were under no duty to disclose while there was no maintenance assessment in force. Parliament has enacted a sophisticated scheme of adjudication designed to avoid prolonged litigation so far as that is practical. I do not consider that the decision notified on 18 November 1996 should be treated as no decision at all so as to put the parties back at square one, seven years on. If the mother has lost anything due to the failure to give her information about her rights (which I rather doubt), it is she who must seek a remedy from the Child Support Agency.
30. That is not to say that the failure to give her that information was not highly relevant to the Secretary of State's decision as to whether to refer the late application for review made in 1997 to a child support officer. However, if the Secretary of State did make a decision not to refer the application to the child support officer, it is too late to challenge that decision now. There was no right of appeal and so, if the Secretary of State was not persuaded to change his mind, the decision was effective unless challenged on an application for judicial review. Even if I agreed with Mr Robinson that the only proper decision the Secretary of State could have made was to refer the case to a child support officer, I have no power to treat him as having made a decision that he did not make. The Secretary of State's representative and the child support officer were no doubt the same person, but the practical point is that a decision under regulation 24(2) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 not to accept a late application for review was not appealable under the pre-1998 Act scheme of adjudication and it is for that reason that I have no power to overturn the decision. If, on the other hand, the Secretary of State did not make any such decision, there is an outstanding application for review, which, by virtue of Article 48(6) of the Social Security Act 1998 (Commencement No. 7 and Consequential and Transitional Provisions) Order 1999 may be treated as an application for revision or supersession. However, it was out of time for revision (see articles 48(6)(a)(i) and 49) and, so far as supersession is concerned, regulation 20(10)(b) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 has the effect that a decision to cancel a maintenance assessment because a person has ceased to be habitually resident in the United Kingdom cannot be superseded. If an application for revision is not made in time, the only available course of action is to make a new application for a maintenance assessment. Therefore, if there is an outstanding application for review, there is no point in the mother pursuing it.

The application made in 1997 for a maintenance assessment

31. The Child Support Agency were correct to advise the mother in 1997 to make a new application for a maintenance assessment if she wished the question of habitual residence to be revisited. Any assessment made would have been effective from a date in 1998. As it appears that no decision has ever been made on the application, the Secretary of State must now make one, as Mr Wilson concedes. It is highly regrettable that such an old application should remain undetermined. Again, the problem appears to have been that the Child Support Agency thought that the question of the jurisdiction to make a maintenance assessment was a decision for the Secretary of State rather than a child support officer, but this time there is no evidence that any decision was issued at all, even in the name of the Secretary of State. The Child Support Agency may wish to consider the administrative and record-keeping procedures that enabled that to happen and then led to attempts being made to fob off the mother with inconsistent and inaccurate statements, firstly by the Parliamentary Business Unit that the application could not be "processed" (and that it did not even merit a reference number) because the father was no longer resident and secondly by the customer advice team manger that a decision had in fact been taken "that we did not have jurisdiction to proceed with your application". The new decision will have to take into account all the evidence that has now been provided by both parents. It would be inappropriate for me to comment on the merits of their respective submissions. I do, however, observe that the father now appears to realise that, although the Secretary of State is not entitled to make a maintenance assessment in respect of a person who is not habitually resident in the United Kingdom, he is entitled to ask the father to provide information to enable it to be determined whether or not the father is in fact habitually resident in the United Kingdom.

The decision notified on 11 March 2002

32. Although the mother's letter of 27 February 2002 was expressed as an appeal against the decision notified on 18 November 1996, it was plainly too late to be effective as an appeal. The effect of the Social Security Act 1998 (Commencement No. 7 and Consequential and Transitional Provisions) Order 1999 was that the new scheme of adjudication had to be applied in 2002, with decisions of the child support officers being treated as having been made by the Secretary of State. Regulation 32(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 has the effect that no appeal may be made more than thirteen months after the date on which the decision to be challenged was made. The Secretary of State was therefore right to consider whether the decision of 18 November 1996 could be altered without an appeal.
33. It is not entirely clear whether the cancellation of a maintenance assessment under regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 is now a decision "under section 11, 12 or 17" of the 1991 Act, so that it can be revised or superseded under sections 16(1) and 17(1). If it is not, an appeal is the only way of challenging such a cancellation. However, not having received argument on the point, I will assume in the mother's favour that at least revision of the 1996 decision might have been possible under the terms of the Act. As I have already said, regulation 20(10)(b) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 precludes supersession of a decision to cancel a maintenance assessment, even if section 17(1) would otherwise have permitted supersession. Therefore only revision is relevant. Secretary of State does appear to have had revision in mind, although he also referred to section 18 of the Child Support Act 1991, which had provided for reviews under the old scheme and had been repealed in 1999. That reference was completely misconceived, as Mr Wilson concedes.
34. The only possibly relevant grounds of revision are to be found in regulation 17(1)(c) and (d) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, which permit revision –

"(c) if the decision arose from official error;

(d) if the Secretary of State is satisfied that the original decision was erroneous due to a misrepresentation of, or failure to disclose, a material fact and that the decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would otherwise have been but for that error".

Those are the grounds that should have been considered by the Secretary of State if he was considering revision. It seems doubtful that he did consider those grounds but, in any event, his decision notified on 11 March 2002 must plainly be treated as a refusal to revise the decision notified on 18 November 1996.

The tribunal's jurisdiction

35. In her letter dated 19 March 2002, the mother had purported to appeal against the decision notified on 18 November 1996. Section 20(3) of the 1991 Act does not confer a right of appeal against a revision or a refusal to revise a cancellation of a maintenance assessment, so that no appeal against the decision notified on 11 March 2002 was possible. Before the tribunal, the Secretary of State supported the mother's right to appeal against the 1996 decision. His submission was that regulation 31(2) of the Social Security and Child Support (Decisions and Appeals) extended the time for appealing against the 1996 decision so that the mother's appeal was valid as an appeal against the 1996 decision. Regulation 31(2) extends the time for appealing against the original decision where the Secretary of State either –

"(a) revises, or following an application for a revision under regulation 3(1) or (3) does not revise, a decision under section 16 of the Child Support Act or under section 9, or

(b) supersedes a decision under section 17 of the Child Support Act or under section 10".

The references to "section 9" and "section 10" are references to those sections of the 1998 Act, which provide respectively for revision and supersession of social security decisions. Given the specific use of the expression "does not revise" in subparagraph (a), it is not possible to read "revises" so as to include a refusal to revise. Therefore, regulation 31(2) extends the time for appealing against a decision following a refusal to revise that decision only where the refusal to revise follows an application under regulation 3(1) or (3) of the 1999 Regulations. Regulation 3 applies only to social security cases. The provision in relation to child support cases that is equivalent to regulation 3(1) of the 1999 Regulations is regulation 17(1)(a) and (e) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (and, now, also regulation 3A(1)(a) and (d) of the 1999 Regulations). There is no provision equivalent to regulation 3(3) of the 1999 Regulations.

36. The consequence is that regulation 31(2) never operates to extend the time for appealing against a child support decision following a refusal to revise that decision. This may well be deliberate and may be justifiable where revision would have been under regulation 17(a), (b) or (e) of the Child Support (Maintenance Assessment Procedure) Regulations 1992. However, it has a very unsatisfactory consequence where a person has applied for a revision under regulation 17(1)(c) or (d) or, in relation to social security cases, under regulation 3(5)(a) of the 1999 Regulations which is equivalent to regulation 17(1)(c) of the 1992 Regulations. The Secretary of State may refuse to revise because he is not satisfied that there was an official error or, as the case may be, a misrepresentation of, or failure to disclose, a material fact. If an appeal against the original decision would be out of time, the person who applied for the revision is left with no way of challenging the Secretary of State's refusal to revise it (other than by way of an application for judicial review, which is hardly a realistic option). This seems undesirable. Of course, if regulation 31(2) did extend the time for appealing against the original decision in such a case, it would be necessary to provide that the appeal could be admitted and allowed only if the tribunal were to be satisfied that the Secretary of State had erred in not finding grounds for revision, because otherwise late appeals could be brought following entirely unmeritorious applications for revision.
37. Be all that as it may, the tribunal sitting on 19 August 2002 had no jurisdiction to consider the mother's appeal as an appeal against the 1996 decision, because it was out of time as regulation 31(2) did not assist her. He also had no jurisdiction to consider her appeal as an appeal against the Secretary of State's refusal to revise the 1996 decision, because section 20(3) does not confer a right of appeal against such a decision, even if the Secretary of State has any power to revise a cancellation of a maintenance assessment under regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. Accordingly, the tribunal should have declined jurisdiction. I give the decision that the tribunal should have given.
38. I would add that, if the Secretary of State did have the power in 2002 to consider revising the 1996 decision, it does not seem to me that the mother has suffered any injustice in this particular case as a result of the lacuna in the legislation I have identified in paragraph 36. Although I have not asked for specific submissions on the points, the material before me does not suggest that there was either an official error in the substance, as opposed to the form, of the 1996 decision or that that decision was based on any misrepresentation by the father or any failure by him to disclose material facts. On the evidence available to the Child Support Agency on 18 November 1996, it was plainly open to a child support officer to conclude that the father had ceased to be habitually resident in the United Kingdom when he moved to Eire. There is no evidence of any misrepresentation on the part of the father and, through his partner, he had informed the Child Support Agency of his move and given them his new address. The Agency were aware that he retained property interests in the United Kingdom, because the mother had told them so, and, if they had thought it relevant, the Agency could have asked him about them. There is no evidence that, in 1996, he failed to disclose any material fact that he could reasonably have been expected to disclose.

(Signed) MARK ROWLAND

Commissioner

8 October 2003