Upper Tribunal (Administrative Appeals Chamber)

Decisions of the Upper Tribunal
(Administrative Appeals Chamber)

CCS/1487/2009

As the decision of the Colchester appeal tribunal (held on 8 September 2008 under reference 132/08/00333) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: to dismiss the absent parent’s appeal to the appeal tribunal.

CCS/1488/2009

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the Colchester appeal tribunal under reference 132/08/01049, held on 8 September 2008, did not involve the making of an error on a point of law.

Reasons for Decision

A. Introduction

1. These appeals concern the child support maintenance payable in respect of Edward, David and Rosie. The appellant is their father. The respondents are the Child Maintenance and Enforcement Commission, which I refer to as the Commission, and their mother. In terms of the legislation, the parents are the absent parent and parent with care respectively. I refer to them in those terms.

2. These appeals were first presented to me as three appeals against two decisions by the First-tier Tribunal. This was unnecessarily complicated. It arose from the way that the First-tier Tribunal dealt with the applications for permission to appeal. Not only did it give permission to appeal to both the absent parent and the Commission, it gave permission to the Commission in both cases, although it was only sought in respect of one of them. I directed that no action be taken on the Commission’s appeal, which was numbered CCS/1584/2009. All submissions have been made on the other appeals, both brought by the absent parent. No party has suffered as a result of this. In my direction of 11 December 2009, I formally closed CCS/1584/2009 and need say no more about it.

B. CCS/1487/2009

Did the absent parent lodge an appeal in 2007?

3. In December 2006, the absent parent was liable to pay £222.53 in child support maintenance for his children. On 15 December 2006, an assessment was made in the amount of £181.63 from the effective date of 24 August 2001. The Commission said that no appeal was lodged in time against that decision. That was correct. However, having read the absent parent’s letter of 20 December 2007 (page 10 of CCS/1487/2009), I did not understand why it was that not considered as a late appeal against that decision. I put this to the Commission in my direction of 11 December 2009. Its representative has accepted that the letter could have been treated as an appeal that had been brought late, but within the absolute time allowed. I have no jurisdiction over this issue, which remains outstanding.

The application for supersession

4. In March 2007, the decision-maker learnt that the absent parent had left his employment. On 26 April 2007, the absent parent wrote asking for a supersession on the basis of a change of circumstances, but making clear that he would not disclose his partner’s income. I have seen that letter in a bundle that the absent parent has sent to the Upper Tribunal. On 10 September 2007, the decision-maker refused to supersede. The absent parent exercised his right of appeal to an appeal tribunal. The First-tier Tribunal allowed the appeal and directed the Commission ‘to make a further interim maintenance assessment (IMA) decision following the failure of the appellant to provide all the information requested following his application for supersession made in April 2007.’

5. The Commission argued that it could not implement the tribunal’s decision, as it had not specified what type of interim maintenance assessment was appropriate. I did not understand why that was not clear from the circumstances of the case. It is true that the absent parent had provided some evidence of his own circumstances; it is recorded at page 13 of CCS/1488/2009. However, he made it clear that he would not disclose his partner’s income. In those circumstances, an interim maintenance assessment of Category B was appropriate. I put this to the Commission in my direction of 11 December 2009 and its representative has accepted that that is correct. Accordingly, the tribunal did not make an error of law in that regard.

6. However, the tribunal did make a different error of law. It is now impossible in law for either the Commission or a tribunal to substitute, with retrospective effect, an interim maintenance assessment for the refusal to supersede on 10 September 2007. A Category B assessment made when a decision under section 17 of the Child Support Act 1991 is being considered takes effect from a date after the date when it was made: regulation 8C(2) of the Child Support (Maintenance Assessment Procedure) Regulations 1992. It cannot ever be made retrospectively. I put this to the Commission in my direction of 11 December 2009 and its representative has accepted that that is correct. The result is that the tribunal’s direction that the Commission make an interim maintenance assessment was ineffective as regards the past. It was also ineffective as regards the future, because there was a later interim maintenance assessment (considered in CCS/1488/2009).

7. In my direction, I also raised the issue whether a decision-maker can refuse to supersede when an interim maintenance assessment is in force. The Commission’s representative has submitted that the appropriate decision was to decide that there had been no material change of circumstances that would allow a supersession to take place. That was a decision over which the tribunal had jurisdiction, as it concluded.

8. As the tribunal made an error of law, I must set aside its decision. Given the absent parent’s refusal to provide any details of his partner’s income, an assessment under the statutory formula was impossible. There was, therefore, no basis on which the assessment in force in April 2007 could be superseded. I, therefore, re-make the decision to that effect.

C. CCS/1488/2009

9. It was not clear to me what decision was the subject of this appeal. I asked the Commission about this in my direction of 11 December 2009 and I am grateful to its representative for his clarification. The Commission’s records show that the decision was made on 2 April 2008 and was to impose an interim maintenance assessment of Category B for £69.74 with effect from 4 April 2008.

10. The chairman recorded in his decision that the absent parent’s only relevant concern was with the effective date of the assessment. He correctly explained that that date was fixed by the legislation, which had been applied correctly. There is no error in that decision. A Category B assessment was appropriate. The effective date was correctly fixed under regulation 8C(2). It could not in law take effect from an earlier date. I dismiss this appeal.

D. The absent parent’s grounds of appeal

11. The absent parent’s grounds of appeal, on a UT1 form of 17 June 2009 and a letter of 1 April 2009, consist of a litany of general complaints about the decision, the system and the Commission’s operation. They are not focused on errors of law in the tribunal’s decisions. It is not the function of the Upper Tribunal, as it was not the function of the appeal tribunal, to deal with such matters.

E. The failure to send a presenting officer

12. The appeal tribunal directed that a presenting officer attend. As the chairman explained, ‘it would have been in everybody’s interest and would have greatly assisted the tribunal.’ One was not sent. That was wrong. The tribunal had given a direction and the parties were under a duty to obey it. That duty is now incorporated into the duty on all parties ‘to co-operate with the Tribunal generally’ under rule 2(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685). They do so by complying with the direction. If a party is unable to comply or finds it difficult to do so, the proper course is to apply under rule 6(5) for the tribunal to amend, suspend and set aside its direction. A party is not entitled to disregard a direction. I would have thought that it was unnecessary to remind the Commission of that in view of what Black J said in R (Davies) v Commissioners Office [2008] 1 FLR 1651 at [14]. That case involved the Child Support Agency, which the Commission has replaced.

Signed on original on 10 February 2010

Edward Jacobs Upper Tribunal Judge