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 Leeds First-tier Tribunal dated 19 June 2009 under file reference 007/08/03320 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 decision in summary

1. The father’s appeal to the Upper Tribunal is dismissed. The decision of the Leeds First-tier Tribunal dated 19 June 2009 under file reference 007/08/03320 does not involve an error on a point of law. The father is not a student on a full-time course of study for the purposes of the nil rate liability under the child support scheme. The decision of the First-tier Tribunal therefore stands.

The parties to this appeal

2. In the technical language of the child support legislation, the Appellant is the non-resident parent under the maintenance calculation, the First Respondent is the Child Maintenance and Enforcement Commission (or CMEC, previously the Child Support Agency, or the CSA) and the Second Respondent is the parent with care. I refer to them here simply as the father, the Commission (or the CSA, as appropriate) and the mother respectively. The parents’ three children, including the oldest, Amy, live with their mother.

The main issue on this appeal to the Upper Tribunal

3. The principal legal issue in this appeal is whether the First-tier Tribunal applied the law correctly in concluding that the father was not a “student” for the purposes of assessing liability to pay child maintenance under the child support system. If the tribunal was right, then the father had been correctly assessed for his child support liability. If the tribunal was wrong, then he should have been found to have a nil liability, subject to the possibility of the mother applying for a variation.

The oral hearing of the appeal before the Upper Tribunal

4. I held an oral hearing of this appeal at the Combined Court Centre in Leeds on 7 January 2010. The father and mother both appeared in person. Mr S. Cooper, instructed by the Office of the Solicitor to the Department for Work and Pensions, appeared on behalf of the Commission, expanding upon the earlier written submission prepared by Ms Powell on behalf of the Commission. I am grateful to both parents and to Mr Cooper (and indeed to Ms Powell) for their clear submissions. I am especially grateful to all concerned for managing to get to the hearing on a day when the weather conditions in West Yorkshire were less than ideal.

The background to the First-tier Tribunal hearing

5. The essential facts are that the father is employed at a college of further education as a lecturer in construction. His starting salary in January 2007 was just over £23,000 a year and his normal working hours were stated to be 37 hours a week. However, as well as being a lecturer he was also a student at the same college on a two-year trainee teacher course, leading to a Certificate in Education. He provided a letter from the college’s finance section, which confirmed that he was “on a full time course. He is attending for 15 hours a week”. He also produced a further letter which confirmed that he was attending five separate units, each for 3 hours a week, and all of which would lead to the award of a Certificate (with the exception of the I.T. workshop unit). He received a grant from his local authority for the purchase of books. His course tutor also confirmed that the father’s completion of the overall course was mandatory for him to practise as a lecturer.

The First-tier Tribunal’s hearing and decision

6. The First-tier Tribunal, in the person of Tribunal Judge Bell, convened on 19 June 2009 to hear the father’s appeal. This followed an earlier adjourned hearing before Tribunal Judge Bateson. The father complains that the same judge did not sit on the second occasion, but there is no substance to this point. Both parents attended on 19 June and gave evidence. A presenting officer for the Commission was also there.

7. The First-tier Tribunal dismissed the father’s appeal. The tribunal’s Decision Notice dealt shortly with the two live issues, being Amy’s status and the question of whether the father was a student for child support purposes.

Was Amy still a qualifying child?

8. As to Amy’s status, the father argued that as she was a student (at that date aged 18) and also working, it was not fair that he should have to continue supporting her. The judge accepted that Amy was still in full-time education and so agreed with the CSA’s finding that she remained a qualifying child for the purposes of child support legislation.

9. The father did not seriously challenge this finding on appeal to the Upper Tribunal and was right not to do so. The definition of a qualifying child is laid down in section 55(1) of the Child Support Act 1991. It includes certain young people aged over 16 but under 19 who are in full-time education. The question of whether such a qualifying child also has her own independent source of income (e.g. through paid employment) is irrelevant. This is in contrast to the Australian child support scheme, under which a child’s own earnings can be a ground for adjusting a child support assessment. But that is not the case in the United Kingdom.

Was the father himself a “student”?

10. The tribunal concluded that the father was not a student for the purposes of the child support scheme, and in particular for the purpose of regulation 5 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (SI 2001/155). This rule provides that students have a nil liability for child support (subject, of course, to any application for a variation).

11. The tribunal judge reviewed the evidence and made various findings about the father’s position at the college. He expressed the main reasoning for his conclusion in the following paragraph:

“Simply put I find that first and foremost the Appellant is in employment and that such studies as he undertakes are purely secondary to and part of that employment. He is not in the position of a student who has, secondary to his course, some kind of employment to help financially.”

12. Tribunal Judge Bell subsequently issued a short Statement of Reasons for his decision. In that document (omitting the paragraph numbering), he expanded on the Decision Notice as follows:

“I find that the Appellant in the course of and pursuant to his employment contract undertakes within his contracted 37 hours his studies at the same establishment in order to further his ‘personal professional studies’. It is within that context that he is a student. He is an employee who studies as part of his contract. He is not, in my judgement, a student within the meaning of the regulations.”

The arguments on the appeal to the Upper Tribunal

13. I think it is fair to summarise the parties’ arguments on this further appeal in the following terms. I acknowledge that both parents have been at something of a disadvantage in that this case involves some highly complex legislation, which is difficult for the lay person even to access, let alone to understand. I also emphasise that this passage only summarises the main contentions – where one party has made a specific point, I shall seek to deal with it appropriately at the relevant point in this judgment.

14. The father submits that on a plain reading of the legislation he is a student and moreover that he is a full-time student, as his course of study entails more than 12 hours a week. He argues in particular that his circumstances fall within the statutory definition of “student” in the child support scheme. He points out (correctly) that there is nothing in that definition which excludes students who also happen to be in employment. Furthermore, he notes that his daughter is a student who is in paid employment and yet she remains a qualifying child under the scheme. Finally, he refers to a case involving a colleague of his, who he states is employed at the same college and on exactly the same terms as him. A different First-tier Tribunal ruled in an appeal earlier the same year that this other colleague was a student for the purposes of the child support scheme.

15. Mr Cooper, on behalf of the Commission, makes four principal arguments. First, he argues that the First-tier Tribunal was entitled as a matter of law to reach the conclusion that the father was a student, as this was ultimately a question of fact for that tribunal to determine on the evidence before it. Secondly, he contends that the statutory definition of a “sandwich course” student does not assist the father on the facts of this case. Thirdly, he submits that the decision of the other tribunal, dealing with the case of the father’s colleague, was in no way binding on the present tribunal, which was accordingly entitled to reach a different conclusion. Finally, he suggests that the tribunal’s decision, while short and to the point, was adequate in terms of its fact finding and reasoning.

16. The mother is understandably frustrated that the case has become bogged down in what she sees as legal technicalities. In her view the danger is that the children’s welfare, which should be the central concern of these proceedings, will be lost sight of. Put shortly, her argument is that the father is well able to support his children and that he is not a “student” in either the ordinary or the legal sense of that term, and so the father’s appeal should be dismissed. She makes the good point that if the father’s interpretation is correct, then she “would expect a good percentage of fathers would explore this avenue as a means of not having to accept responsibility for the welfare of their children”. In contrast to the father, who was evidently unhappy with the way that the First-tier Tribunal hearing had been conducted, she “took her hat off” to Tribunal Judge Bell for the manner in which he had handled the hearing on 19 June 2009.

17. In my judgment all of Mr Cooper’s four points are well made. I therefore accept his arguments, and those of the mother insofar as they support Mr Cooper, and dismiss the father’s arguments. I do so for the following reasons. It is convenient to adopt the same framework as Mr Cooper in discussing the relevant points raised by all the parties.

The relevant statutory definition of “student”

18. Regulation 5(a) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 provides that a non-resident parent who is a “student” has a nil liability for child support. Regulation 1(2) of the same Regulations provides the following definition:

"student" means a person, other than a person in receipt of a training allowance, who is aged less than 19 and attending a full-time course of advanced education or who is aged 19 or over and attending a full-time course of study at an educational establishment; and for the purposes of this definition -

(a) a person who has started on such a course shall be treated as attending it throughout any period of term or vacation within it, until the last day of the course or such earlier date as he abandons it or is dismissed from it;

(b) a person on a sandwich course (within the meaning of paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) (No. 2) Regulations 1993) shall be treated as attending a full-time course of advanced education or, as the case may be, of study;

19. The father argued before me that he satisfied both (a) and (b) in this paragraph and was therefore a student. However, this is to misunderstand the (admittedly rather complex) structure of the definition. The two sub-paragraphs (a) and (b) are not in themselves definitions of the term “student”. They merely provide that, if a person already meets the definition in the main part of the paragraph, then he or she remains a student for this purpose where the circumstances set out in either (or possibly both) of those two sub-paragraphs apply.

20. I also bear in mind that sub-paragraph (a) was added to the parallel definition of the term “student” in the income support legislation in order to deal with the difficulties posed by intercalating students, namely those students who for various reasons might have to interrupt their studies.

21. Sub-paragraph (b) raises a discrete point about the nature of sandwich course students which is considered in more detail below.

22. So what then is the definition of “student” in the main part of the paragraph? The father in the present case is plainly over 19. The question for the tribunal was therefore whether or not he was “attending a full-time course of study at an educational establishment”. If he was, he was a student (and would also remain so in the circumstances set out in sub-paragraphs (a) or (b), if relevant). If he was not, then neither sub-paragraph (a) or (b) could operate to bring him back within the scope of the statutory definition. So, for example, an obviously part-time student taking a course that involves attendance at just (say) one two-hour class a week is not a “student” for these purposes, even though he has started the course and has not yet completed, abandoned or been dismissed from it within the terms of sub-paragraph (a).

23. There is no further statutory definition in the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 of what is meant by the terms “full-time”, a “course of study” and “an educational establishment”. It is not seriously in dispute in the present case that the father was attending a course of study at an educational establishment. The issue in dispute was whether or not it was “a full-time course of study” (emphasis added).

24. The father argues that he is on a full-time course of study and the fact that he is also earning is irrelevant. He understandably relies in part on a CSA leaflet which describes students in full-time education for the purposes of the nil rate in the following terms: “full-time means a course at a recognised school or college where there is at least 12 hours a week tuition”. He argues that as he undertakes 15 hours a week in studies he is over the CSA benchmark for being a full-time student. I note also that a CSA letter to the father sought to explain the position as follows:

“To qualify as a full time student, courses must be 12 hours per week. As your training course is 120 hours over two years, this does not qualify as full time education in accordance with CSA regulations. Therefore your liability is unaffected and remains at £85.00 per week for child maintenance”.

25. I return further below to the accuracy of the information contained in both the CSA leaflet and in the letter to the father.

26. The father essentially relies on paragraph 3 of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000 (SI 2001/157), which reads as follows:

“Circumstances in which education is to be treated as full-time education
3. For the purposes of section 55 of the Act education shall be treated as being full-time if it is received by a person attending a course of education at a recognised educational establishment and the time spent receiving instruction or tuition, undertaking supervised study, examination of practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course, exceeds 12 hours per week, so however that in calculating the time spent in pursuit of the course, no account shall be taken of time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.”

27. The argument of both Ms Powell in the written submission and Mr Cooper at the oral hearing was that this definition was irrelevant for the present purpose. In short, the definition in paragraph 3 of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000 applies only to the definition of full-time education for the purpose of those particular regulations and section 55 of the Child Support Act 1991, and in particular to the concept of a “qualifying child”. For that reason, paragraph 3 was highly relevant to determining Amy’s status. It had no relevance to the separate question as to whether the father was, for the purposes of the nil rate liability, attending a full-time course of study and thus a “student” under a different set of regulations, albeit within the same overall statutory scheme.

28. I agree with this analysis. The important phrase is “a full-time course of study”. There is no definition of this expression in the Child Support Act 1991. The Child Support (Maintenance Calculation Procedure) Regulations 2000 certainly make provision for “circumstances in which education is to be treated as full-time education” but that is in a very different context within the child support scheme. If the legislator had also wanted to apply that “12 hour rule” in relation to the definition of a “student” for the purposes of regulation 5(a) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000, it would have been a simple matter to incorporate the 12-hour definition (in the same way as was done by regulation 1(2) in the context of sandwich courses). The fact that it was not incorporated is a very strong indication that the 12-hour rule was not thought appropriate in the present context.

29. So what is the test of whether a non-resident parent is “attending a full-time course of study at an educational establishment” for the purpose of regulations 1(2) and 5(a)? Is there a set rule of so many hours a week? In my judgment, the answer to that latter question is no.

30. Tribunal Judge Bell noted the definition of student in regulation 1(2), but added that he had “to determine whether the course is full time in the light of all the circumstances of the case – see CIS/152/94”. That was a reference to the decision of Mr Commissioner Mitchell in an income support case. In CIS/152/1994 the Social Security Commissioner was concerned with the then definition of “student” in regulation 61 of the Income Support (General) Regulations 1987 (SI 1987/1967). That is, of course, a different set of regulations. However, the definition there was (at that time) in exactly the same terms as the current definition in regulation 1(2) of the 2000 Regulations in all material respects, save for some minor drafting changes (the only substantive difference was that regulation 61 referred to “a person aged 19 or over but under pensionable age”, but that difference is not material for present purposes).

31. Mr Commissioner Mitchell summarised the relevant Commissioners’ decisions as follows (at paragraph 7 of his decision):

“… It has also been established by the Commissioner that:

(a) whether a person is a person attending a course of full-time education is a question of fact for determination having regard to the circumstances in each particular case;

(b) account ought to be taken of the description of the course given by the relevant education authorities;

(c) although such evidence is not conclusive, evidence adduced in rebuttal should be weighty in content”.

32. I agree that those principles apply equally to the determination of whether a non-resident parent is “attending a full-time course of study at an educational establishment” for the purpose of regulations 1(2) and 5(a) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000. It is ultimately a question of fact for the First-tier Tribunal, taking into account those matters and any other material considerations.

33. There is, in my view, no escaping the conclusion that the tribunal in this case applied the right statutory test and made a finding of fact that it was perfectly entitled to do on the evidence before it. That finding was that “first and foremost the Appellant is in employment and that such studies as he undertakes are purely secondary to and part of that employment”. It is true that the college described the course in its own terms and in correspondence as a full-time course; however, applying CIS/152/1994, the tribunal was entitled to reach the conclusion that the college’s designation of the course was not conclusive of the matter, given the overall circumstances and in particular the employment context.

34. The tribunal judge was also entitled to have regard to the purpose of the child support legislation, and that the particular purpose of regulation 5 was “to exempt those who could not be expected to otherwise fulfil their duty to maintain their children. It was never intended to absolve a NRP [non-resident parent] from his/her responsibility in circumstances where they were earning good money”. That was undoubtedly the intention of the legislation. The then minister, Baroness Hollis of Heigham, dealt with this during the passage of the Child Support, Pensions and Social Security Act 2000. In doing so, she referred to those non-resident parents who fell within regulation 5 as those who “clearly have no income or alternatively, so few, as possibly with students, have any serious alternative income that it is not worth the hassle” of seeking to recover child maintenance from them (Hansard, H.L. Debates, Vol. 612, col. 1295, 8 May 2000).

35. However, the CSA’s letter to the father and the official leaflet both require some further comment. The letter to the father stated that his training course was “120 hours over two years” (and for that reason could not be full-time). However, this total was incorrect and was to misunderstand the official college statement about the Certificate in Education, which stated that the father’s course involved 120 credits, not hours, of study over two years. The college statement also declared that “University regulations require 100 study hours per 10 credits, so the total annual study commitment for a part-time trainee is 600 hours, or the equivalent of 100 days of full-time study at 6 hours per day”. I acknowledge that such statements by college authorities are often aspirational and sometimes at best nominal. However, taken at its face value, it would suggest a weekly load of 11.5 hours per week averaged across the whole year or about 15 hours a week over term-time. However, this does not take the father any further forward – the tribunal accepted he was studying 15 hours a week, but simply found that he was not a student following a full-time course of study, given his circumstances as a whole.

36. The current CMEC leaflet entitled “How is child maintenance worked out?” (CSL 303) describes itself as “only a guide and does not cover every circumstance” (p.3). However, the part dealing with the nil rate describes it as applicable to, amongst others, “students in full-time education (doing a course at a recognised school or college where they have at least 12 hours’ tuition a week)” (p.14). This statement of guidance is essentially in the same terms as the extract from the previous leaflet in the present case.

37. In my view the relevant officials need to review the wording in this leaflet. Doubtless it is intended to be helpful. But the father in the present case was understandably but wrongly convinced by the terms of the leaflet that he qualified for the nil rate. Insofar as the leaflet suggests that the test for deciding whether a student is on a full-time course of study (for the purpose of the nil rate liability) is the same as that used for deciding if a child is in full-time education (for the purpose of the definition of “qualifying child”), the text does not properly reflect the true legal position.

The statutory definition of a “sandwich course” student

38. The father also argues that he is “a person on a sandwich course” and so qualifies under regulation 1(2)(b) of the definition of “student” in the Child Support (Maintenance Calculations and Special Cases) Regulations 2000. The main reason why this argument fails is set out above at paragraph 19 above – it only applies if it has already been established that the person concerned “is attending a full-time course of study at an educational establishment” (in the context of a person aged 19 or over). The father was not, and so he could not be brought back in by regulation 1(2)(b).

39. I am reinforced in this view by a comparison with regulation 1(2)(a). That provision is designed to ensure that, providing the person meets the definition of “student” in the main part of the paragraph, then he or she remains a student even while, for example, on holiday or taking time out of their studies owing to e.g. illness. In the same way a sandwich course student remains a student, assuming he or she is a student on a full-time course in the first place, even when out on placement and not attending college.

40. There is, in addition, a more fundamental problem facing the father. Is he a person on a sandwich course in the first place? The child support definition refers to paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) (No. 2) Regulations 1993. That provision reads as follows (the rest of paragraph 1 is not relevant):

1.—(1) In this Schedule—

"sandwich course" means a course consisting of alternate periods of full-time study in an institution and periods of experience so organised that, taking the course as a whole, the student attends the periods of full-time study for an average of not less than 19 weeks in each year; and for the purpose of calculating his attendance the course shall be treated as beginning with the first period of full-time study and ending with the last such period;

"periods of experience" means, subject to sub-paragraph (2), periods of industrial, professional or commercial experience associated with full-time study at the institution but at a place outside the institution, other than periods of—

(a) unpaid service in a hospital or in a public health service laboratory in the United Kingdom;

(b) unpaid service with a local authority in the United Kingdom acting in the exercise of their functions relating to health, welfare or the care of children and young persons or with a voluntary organisation providing facilities or carrying out activities of a like nature in the United Kingdom;

(c) unpaid service in the prison or probation and aftercare service in the United Kingdom;

(d) teaching practice;

(e) unpaid research in an institution or, in the case of a student attending an overseas institution as a necessary part of his course, in an overseas institution;

(f) such experience as aforesaid falling wholly within the usual periods of attendance at the institution in any year which do not comprise paid service or employment and either—

(i) do not aggregate more than 6 weeks during that year; or

(ii) fall within that year and another year and do not aggregate more than 12 weeks during the two years taken together, where that other year has not already been taken into account for the purposes hereof; or

(g) unpaid service with—

(i) a health authority (within the meaning of section 128(1) of the National Health Service Act 1977;

(ii) a health board constituted under section 2 of the National Health Service (Scotland) Act 1978; or

(iii) a health and social services board established under Article 16 of the Health and Personal Social Services Order (Northern Ireland) 1972;

"sandwich year" means, as respects any student, any year of a sandwich course which includes both periods of full-time study in the institution and periods of experience;

"prescribed proportion" means the proportion which the number of weeks in the year for which the student in question attends the institution bears to 30, except that where that proportion is greater than the whole it means the whole;

"modified proportion" means the proportion which the number of weeks in the year in which there are no periods of experience for the student in question bears to 52.

41. The father asserts that he is sandwich course student as although he spends most of his time at the main college site he can be sent out elsewhere for teaching practice. However, I agree with Mr Cooper that the father cannot be a sandwich course student under this definition. I reach that conclusion for the following reasons.

42. First, in order to be so, he must be on “a course consisting of alternate periods of full-time study in an institution and periods of experience”. I have already concluded that the tribunal was entitled to find as a fact that that he was not undertaking “full-time study”. On that reading, the father does not get past first base.

43. Secondly, the father is only on a sandwich course if the periods spent off campus are “periods of experience” within paragraph 1(1). However, even assuming for the present that they are “periods of industrial, professional or commercial experience” (as indeed they probably are), they are not “associated with full-time study at the institution” for the reason given in the preceding paragraph. In any event, as Mr Cooper pointed out, time off site is not a “period of experience” within paragraph 1(1) if it falls within any of sub-paragraphs (a) to (g) inclusive. The various activities listed in sub-paragraphs (a) to (g) are thus excluded from the definition of sandwich courses, not included. The father’s time off campus would presumably be teaching practice, and that is expressly excluded from the definition by sub-paragraph (d).

44. For all these reasons the father is not “a person on a sandwich course (within the meaning of paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) (No. 2) Regulations 1993)” for the purposes of the definition of “student” in regulation 1(2) of the 2000 Regulations. In reaching this conclusion I have considered the decision of Mr Commissioner Howell QC in R(IS) 1/96, but I do not think that decision bears directly on the point in the present case.

45. As Mr Cooper helpfully pointed out at the oral hearing, the Education (Mandatory Awards) (No. 2) Regulations 1993 have been repealed for some time now and so the wording of regulation 1(2) of the 2000 Regulations is out of date in that respect. In fact the 1993 regulations were revoked in their entirety by regulation 6(1) of the Education (Mandatory Awards) Regulations 1994 (SI 1994/3044). The 1994 Regulations (and several successor sets of regulations) have also since been revoked. The current statutory provisions governing sandwich courses are to be found in the Education (Mandatory Awards) Regulations 2003 (SI 2003/1994). Schedule 5 to the 2003 Regulations is in the same terms (so far as is relevant) as Schedule 5 to the 1993 Regulations. It follows that the reference to the relevant definition in the (now revoked) 1993 Regulations in regulation 1(2)(b) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 can be read as a reference to the equivalent provision in the 2003 Regulations (see Interpretation Act 1978, s.17(2)).

The relevance (if any) of the other First-tier Tribunal decision

46. It is a truism that in an ideal world, like cases should be decided alike. Consistency is obviously a virtue in the pursuit of justice. In that context the father cannot understand how the tribunal in the present case (1) reached a decision which involved a completely opposite outcome to that in his colleague’s case before a different tribunal, on what he says are the same facts; and (2) refused even to consider the tribunal’s decision and reasons in that other case. He argued that the tribunal judge had “made a mockery of [the] law when two identical cases have two different outcomes”.

47. As to the first point, Mr Cooper pointed out that although a First-tier Tribunal was obliged to follow a decision of the Upper Tribunal on a point of law, a First-tier Tribunal was not bound to follow the decision of another First-tier Tribunal in any way. Furthermore, the consistency argument applied only to the binding principle of law in a case, which applied under the common law doctrine of precedent, and the First-tier Tribunal’s decision could not be binding in law on another tribunal of equal status. Moreover, the facts of any two cases were never going to be identical, and so there could be no obligation on the First-tier Tribunal, which had its own judicial fact-finding responsibility, to follow the decision of another tribunal of equal standing.

48. Whilst I understand the father’s frustration, there is no answer to Mr Cooper’s argument. The basis for Mr Cooper’s argument was set out by Danckwerts LJ in the Court of Appeal’s decision in Merchandise Transport Ltd v British Transport Commission [1962] 2 Q.B. 173 (at p.208):

“If the tribunal makes a practice of relying on previous decision in respect of other applications that have come before the tribunal, there is, in my opinion, danger that the discretion of the tribunal may not be applied in an unfettered and proper manner having regard to the merits of the particular case, and, of course, having regard to the principles which are regarded as being incorporated in the provisions of the Act.”

49. It is true that in Merchandise Transport Ltd the Court of Appeal was mainly concerned with the risk that the Transport Tribunal would be unduly fettering its discretion to deal with cases on their individual merits. However, Danckwerts LJ’s observations are equally pertinent to a first instance tribunal’s basic fact-finding function.

50. Two further reasons may be added to those advanced by Mr Cooper. First, Tribunal Judge Bell would have had no way of knowing whether or not the other decision was under appeal to the Upper Tribunal. Secondly, it is always possible that the decision of the other tribunal was in any event wrong. Obviously that decision is not under appeal in the present proceedings. I merely note that, according to the Statement of Reasons in that other case, the tribunal judge clearly regarded the definition of “full-time education” for the purposes of the definition of a “qualifying child” as highly relevant to deciding whether a non-resident parent was a “student”. For the reasons set out above, I regard such an approach as mistaken in law.

51. As to the second point, the father certainly produced at the first (adjourned) hearing before Tribunal Judge Bateson (on 20 April 2009) a copy of the Statement of Reasons in his colleague’s case, which had been decided by a different First-tier Tribunal on 20 February 2009 (under reference 007/08/03041). In that case Tribunal Judge Smith had decided that the father’s colleague was a “student” within regulation 5, and so had a nil rate liability, but had adjourned the question of whether the parent with care had grounds to bring a variation application. Tribunal Judge Bateson rejected the father’s request to introduce the Statement of Reasons in the other case. On that occasion the tribunal judge noted in his Record of Proceedings that he had “explained to [the father] that could not consider the decision of another Tribunal which was made with separate parties (a) because such a decision does not bind or is indeed authority for this Tribunal and (b) even if going to admit, could not do so without consent of the parties to the other case”.

52. It is not entirely clear whether the father repeated that request before Tribunal Judge Bell. Certainly in the present appeal the tribunal judge did not include any note in his Record of Proceedings about the father’s attempt to introduce as evidence the Statement of Reasons in the earlier case by Tribunal Judge Smith. If that application was repeated before Tribunal Judge Bell, it was an important procedural matter which should have been noted in the Record of Proceedings. Assuming for present purposes that the father did indeed make a second attempt to introduce the other decision, any omission to record that application does not amount to a material error of law which would have affected the outcome of this appeal in any way. Tribunal Judge Bateman was certainly right to exclude the decision in the other case and, if he did so too, so was Tribunal Judge Bell.

The adequacy of the First-tier Tribunal’s reasoning

53. Mr Cooper very fairly acknowledged that he was able to understand why the father was dissatisfied with the relatively peremptory way in which his arguments had been dealt with by the tribunal. However, Mr Cooper argued that it would not be right to say that the tribunal had failed to provide adequate reasons for its decision. It was important to read the Decision Notice and the Statement of Reasons together. A tribunal need not deal with every point that has been raised on appeal. Rather, it has to explain the basis for its decision.

54. In the present case, Mr Cooper argued, the First-tier Tribunal had made a crucial and very clear finding of fact that the father was a worker first and a student second. So he was not a student on a full-time course – his status as a student was allied to and secondary to his employment status. The tribunal had then explained shortly, by reference to the relevant law, why this meant that the father could not claim the advantage of a nil rate child support liability. This was not, as the father argued, the judge simply expressing his own personal opinion on the matter and not going by the law. The law had entrusted the tribunal judge with a discretion to find the facts and then to apply the law appropriately. Tribunal Judge Bell did just that and his decision discloses no error of law.

55. I agree with Mr Cooper’s analysis on this point. The tribunal judge might have provided more by way of reasons. But that does not mean that his Statement of Reasons was itself in any way inadequate – it made a fundamental finding of fact, based on the judge’s evaluation of the evidence, and explained clearly and concisely why that finding led to the conclusion that the father’s appeal failed.

Conclusion

56. I dismiss the father’s appeal for the reasons set out above.

Signed on the original Nicholas Wikeley

on 27 January 2010 Judge of the Upper Tribunal