[2008] UKSSCSC CSCS_16_2007 (15 February 2008)
???DECISION OF CHILD SUPPORT COMMISSIONER
- My decision is that the decision of the tribunal given at Ayr on 23 May 2007 is not erroneous upon a point of law. The appeal fails. I dismiss it.
- This appeal came before me for an oral hearing on 13 February 2008. The appellant was represented by Mr Wilson of the Citizens' Advice Bureau. The Secretary of State was represented by Mr Bartos, an Advocate instructed by the Office of the Solicitor to the Advocate General. The second respondent did not appear. He had been given the requisite notice in accordance with the Child Support Commissioners (Procedure) Regulations 1999. In these circumstances, I am entitled by virtue of regulation 22(4) of the Regulations to proceed with the appeal in the absence of the second respondent. This I did.
- The appellant has appealed to the Commissioner against the decision of the tribunal which disallowed her appeal against a decision of the Secretary of State in refusing to make a variation of the maintenance calculation which was made on 7 September 2004. In the appeal before the tribunal, the crucial live issue was whether a case had been made out under regulation 20 of the Child Support (Variations) Regulations 2000. Unless such a case was made out, the question as to whether it was just and equitable to make the variation would not arise. There was no dispute that regulation 20(1)(a) of the Regulations had been made out. The question was whether regulation 20(1)(b) had been made out. That sub-paragraph is in the following terms:
"(b) the Secretary of State is satisfied that the income which has been, or would be, taken into account for the purposes of the maintenance calculation is substantially lower than the level of income required to support the overall life-style of the non-resident parent."
- The tribunal's findings in fact were in the following terms:
"1. The respondent remarried approximately 18 months prior to the date of this hearing.
2. The respondent no longer lives in his flat having moved into a new marital home.
3. The respondent has retained his empty flat over which there is a mortgage of at least £50,000.
4. The respondent continues to be responsible for said mortgage but it is not known whether or not actual repayments are being made.
5. The respondent will be responsible for Council Tax but it is not known whether actual payments are being made.
6. There is no evidence as to the income or capital or financial position of the respondent's wife."
In giving reasons for their decision, the tribunal said:
"In light of the lack of evidence as to the appellant's financial position and the fact that there is no evidence whatsoever as to the capital or income position of his wife, the tribunal is unable to allow a variation based on the application made on 27.6.06. The decision of 11.10.06 is upheld. A variation is inappropriate on the facts held."
- Neither of the parties before me sought to challenge the findings in fact made by the tribunal, though Mr Wilson, on behalf of the appellant, sought to indicate that as a matter of fact, the mortgage was taken out in 2004, that the repayment figure in respect of the mortgage must have been determined by the lender in respect of the second respondent's capacity to make repayment, that the property was in the second respondent's possession and had not been repossessed and that accordingly, repayments must have been made to the satisfaction of the lender.
- The appellant's written grounds of appeal were set out at page 70. Mr Wilson, on behalf of the appellant, did not insist on these grounds before me but rather sought to rely upon a submission by the Secretary of State which was resiled from by Mr Bartos. The submission in writing by the Secretary of State was in the following terms:
"8. The tribunal found as fact that the non-resident parent had remarried "approximately 18 months prior to the date of this hearing" [fact 1 page 57]. Furthermore he had retained his former home a flat "over which there is a mortgage of at least £50,000" and "the respondent continues to be responsible for said mortgage" [facts 3 and 4 page 57]. However, they went on to determine that there was insufficient evidence to enable the tribunal to agree to a variation on the ground of lifestyle inconsistent with declared income. It is my submission that the tribunal have erred in making this decision for the reasons given below.
9. I would submit that Commissioner's decision CCS/2623/1999 is of some relevance. Although this case concerns a departure direction under the old scheme it is my submission that that the principles contained in this decision apply to the variations under the new scheme for Child Support maintenance. In paragraphs 31 to 33 of this decision Mr Commissioner Jacobs was considering the burden and the standard of proof and in paragraph 31 the Commissioner held:
The legal burden is on the applicant at least to prove that the conditions set out in regulation 25(1) are satisfied. If the applicant is successful in doing that, the burden is on the non-applicant to account for the disparity between the income used in the formula assessment and the level of income required to support the life-style.
10. It is my submission that the fact that the non-resident parent had a lifestyle which includes having a second home with outstanding mortgage of £50,000 on a net weekly income of £107.18 [page 13] is sufficient to prove a disparity on the balance of probabilities between the non-resident parent's declared income and his expenditure. Accordingly the burden of proof shifted from the parent with care to the non-resident parent. I would submit that the tribunal should then have followed the approach set out in paragraph 27 of Commissioner's decision CCS/2623/1999 and directed the non-resident parent to produce evidence so to enable the tribunal to determine whether this case fell within the provision of regulation 20 of the Variations Regulations. This, they did not do, and so if the Commissioner accepts my submission thus far I would submit that the tribunal have reached a conclusion that no person properly instructed to the relevant law could have come to and so have erred in law."
- Mr Bartos submitted that the case under regulation 20(1)(b) was virtually the same as the equivalent case for departure directions under the previous scheme. I accept that submission. Mr Commissioner Jacobs, in paragraph 31 of his decision in CCS/2623/1999, said in relation to the relevant case for a departure direction under the previous scheme:
"31. The legal burden is on the applicant at least to prove that the conditions set out in regulation 25(1) are satisfied."
That I accept. He then went on to say:
"Looking just at the issues that arise under regulation 25, the tribunal must answer these questions. First, on what income was the formula assessment based? Second, what is the non-applicant's overall life-style? Third, what level of income is needed to support that life-style? Fourth, is the income used in the formula assessment substantially lower than that required to support the life-style? If the answer to the fourth question is yes, the tribunal must ask: how does the non-applicant account for that disparity?"
- It was Mr Bartos's submission, having referred to that authority, that it was essential for the claimant, in making a case, to establish what level of income was required to support the lifestyle asserted. It was his submission that, what the tribunal ought to have done, was to have used its inquisitorial jurisdiction to ascertain from the appellant, in the absence of the second respondent, the answer to that question. By failing to do so, the tribunal erred in law. It was his submission that the written submission of the Secretary of State was not sound as it was necessary for the appellant to establish that the income required for the lifestyle had been established and that the income used for the purpose of the maintenance calculation was found to be substantially lower than would be required to maintain that lifestyle.
I consider that Mr Bartos is correct when, in effect, he says that the appellant fell short of establishing the necessary facts to set up a case based on regulation 20(1)(b). On the facts found by the tribunal, they were entitled to reach the conclusion that the appellant had failed to establish a case. Suspicion that the income taken into account may be lower than the level required to support the lifestyle of the respondent is not sufficient.
- It follows from that that I consider that Mr Bartos was right to resile from that submission and by relying upon it, Mr Wilson has failed to demonstrate an error in law on the part of the tribunal. That being the case, the only question before me was whether the tribunal failed, as is asserted by Mr Bartos, in its inquisitorial jurisdiction, to attempt to elicit the necessary facts which would have founded a case. Whilst I accept that a tribunal has an inquisitorial jurisdiction, the scope of their duty to enquire is one which must be considered in the context that it is essentially for the appellant to make the case which is required to establish what it is she is seeking, in this instance, making a case under regulation 20(1)(b). It has to be remembered that in Child Support cases, the dispute is not, as in Social Security cases, an issue between the subject and the State. There is an additional element in these cases, particularly in variations such as the present, where it is essentially the position that the applicant is asserting that the financial resources of the respondent have not been fully disclosed. Thus, if the tribunal had sought to elicit evidence from the appellant which was necessary for her to establish her case and which she had failed to produce, particularly when the respondent had elected not to attend, they would have acted in a manner which was potentially unfair. Thus, a tribunal must tread carefully and not place itself in the position of being seen to assist one of the parties before it to make their case.
- In the context set out in paragraph 9, in my view, the Commissioners cannot lay down a formula in respect of the circumstances in which a tribunal is required to exercise its inquisitorial jurisdiction, what questions it must ask and then set out that a failure to ask these questions will inevitably result in an error in law on their part. How far to go in their enquires is a matter essentially for the reasonable judgement of the tribunal themselves, having regard to the necessity to be fair to all the parties appearing before them. I cannot, in these circumstances, hold that the tribunal erred in law in failing to ask the questions Mr Bartos said they should have. I consider there are no grounds for me to interfere. Further, even if it had asked the questions, the answers may not have been such as to justify a case having been established.
- I heard submissions from Mr Bartos in relation to what directions I should give if I held that the tribunal erred in law in relation to such issues as the making of a case under regulation 20, the issue of whether or not if such a case was made, whether it would be just and equitable to make a variation and the issues of revision and supersession which would arise if such a variation was made, particularly in relation to the date upon which the variation would take effect from. It is not necessary for me, having regard to the decision which I have made, to deal with these submissions.
- The appeal fails.
(Signed)
D J MAY QC
Commissioner
Date: 15 February 2008
