Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The non-resident parent's appeal to the Upper Tribunal is disallowed. The decision of the Blackpool First-tier Tribunal of 2 December 2011 did not involve any error on a point of law, for the reasons given below, and therefore stands. The non-resident parent’s appeal against the Secretary of State’s decision dated 9 February 2005 was made outside the absolute time limit and could not in law be admitted for determination by the First-tier Tribunal.

 

I request an officer of the Secretary of State at the appropriate level to reconsider immediately the question of whether the decision of 9 February 2005 should be revised under regulation 3A(1)(e) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 on the ground that it arose from an official error (see paragraphs 30 to 35 below).

 

 

REASONS FOR DECISION

 

1. In the language of the relevant child support legislation the appellant is the non-resident parent of the qualifying child. From now on I shall call him the father and I shall call the second respondent, in the language of the legislation the parent with care, the mother.

 

2. It is a matter of regret that it took so long for the oral hearing that I directed on 22 May 2012 to be arranged. As it turns out, the father told me at the hearing that the enforcement of the liability order against him was put into suspension pending the outcome of this appeal, so that he may not have been disadvantaged practically by the delay. However, it is obviously in everyone’s interests that the legal position should be settled as soon as practicable.

 

3. The father attended the oral hearing at Manchester Civil Justice Centre on 26 November 2012 and was represented by Mr Stephen Lawson of Forshaws Davies Ridgway LLP, solicitors. The mother did not attend. The Secretary of State for Work and Pensions, who has taken over the functions of the Child Maintenance and Enforcement Commission (CMEC), was represented by Mr Stephen Cooper, solicitor, instructed by DWP Legal Services. I am grateful to all present for their submissions.

 

4. This appeal arises in an unusual way. A letter of 9 February 2005 notified the father that he was liable to pay £25 per week child support maintenance with effect from 7 February 2005. He did not appeal against that decision or make any other challenge to it at the time. On 27 October 2009 there was a supersession, apparently on the ground of relevant change of circumstances, with effect from 26 October 2009 reducing the liability to £15 per week. There was no appeal against that decision either. It appears from Child Support Agency (CSA) computer records that the father contacted them in April 2010 with a number of queries, including about the source of the income used in the initial maintenance calculation. A letter or letters were issued said to notify the father of a refusal to revise the decision issued on 9 February 2005. The tribunal of 2 December 2011 found as a fact that a letter dated 4 May 2010 to that effect was sent to the father, the father having produced a letter of that date, and that it told him that he had a month to appeal. The letter produced, a copy of which is now at page 46, was as follows:

 

“Your child maintenance – our decision

We recently asked you for some information we needed to look at your case again. We needed it so that we could consider the change of circumstances we were told about.

Because you have not given us the information we asked for we cannot look at your case again. This means the amount you pay in child maintenance will not change.

However, should there be any further changes, please let us know and we’ll be happy to help.”

 

Those terms are so far away from what the tribunal found that there must be some doubt about whether there was a sufficient evidential basis for its finding. At the oral hearing Mr Cooper submitted that there may have been a refusal to revise for official error on 4 May 2010 separately from whatever was purported to be notified by the letter of that date. In the event, on the view that I take below of the law it does not matter whether or not there was a refusal to revise and a notification of that refusal on 4 May 2010. I am content to proceed on the basis that there was.

 

5. On 1 February 2011 Mr Lawson wrote to the CSA on behalf of the father. The letter argued that the explanations given in 2010 for the initial calculation showed that the father’s income had wrongly been based on his drawings from his business when the profit and loss account for the relevant time showed a net loss of £3,128 and that the decision issued on 9 February 2005 should therefore be revised on the ground of official error. A letter dated 13 June 2011 from an officer in the Liability Order and Bailiff Team 2 stated that following a response from the CSA’s Advice and Guidance Team the use of drawings in the maintenance calculation of 7 February 2005 was correct and that the debt owed by the father would therefore stand. Mr Lawson replied on 15 June 2011 disagreeing and asking for a formal refusal to revise which he said would carry appeal rights. He then wrote to the CSA Appeals Unit on 22 June 2011 appealing against the decision issued on 9 February 2005, treating the letter of 13 June 2011 as notification of a refusal to revise. It was that appeal that was put to the First-tier Tribunal by the CSA as out of time. In a letter of 16 August 2011 to the tribunal, Mr Lawson argued that there was no time limit to appeal a revision on the basis of official and referred to what he described as a judgment of the Administrative Appeals Chamber of the Upper Tribunal (in fact a determination refusing permission to appeal against a decision of a First-tier Tribunal). I come back briefly to that case later.

 

6. Rightly in view of the circumstances, an oral hearing was held on 2 December 2011 on the issue of whether the appeal should be admitted. The father attended without representation. A CSA presenting officer attended. The tribunal, constituted by a district tribunal judge, Judge Rocke, decided that time for appealing against the decision issued on 9 February 2005 could not be extended beyond 13 months from the date of the decision. The decision notice devoted some space to the letter of 4 May 2010 and the absence of any appeal against the refusal to revise, but said nothing about the letters of 13 June 2011 and 22 June 2011. The judge declined to produce a statement of reasons, but said that reasons had been given on the decision notice. Mr Lawson lodged an application for permission to appeal to the Upper Tribunal. The judge determined that she had no jurisdiction to consider such an application as no appeal had been admitted.

 

7. I gave permission to appeal on 10 February 2012, saying that, following the decision of the three-judge panel in LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC), reported as [2011] AACR 27, (and in particular paragraphs 79 to 97), the tribunal’s decision not to extend the time for appealing against the decision issued on 9 February 2005 was appealable. No-one has differed from that view in the appeal. Then I suggested that there was a case that deserved consideration on appeal that, considering the precise words of Schedule 1 to the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, any request that CMEC exercise its power in regulation 3A(1)(e) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to revise a CMEC decision on the ground that it arose from official error should be regarded as an application for the purposes of the rule that a parent has one month after notification that a decision would not be revised in which to appeal. I also raised a question whether in 2011 CMEC had power to revise a decision made by the Secretary of State, as the decision issued on 9 February 2005 would have been. That question was wholly satisfactorily answered (in the affirmative) in the submission dated 28 March 2012 on behalf of CMEC and neither parent has disputed that outcome. Therefore I say no more about that point.

 

8. CMEC’s written submission did not support the appeal, arguing in paragraph 10 that the circumstances fell within the rule approved in Social Security Commissioners’ decision R(IS) 15/04 and the decision of the Court of Appeal in Beltekian v Westminster City Council and another [2004] EWCA Civ 1784, reported as R(H) 8/05, that the extension of a month to appeal against a decision after notification of a refusal to revise that decision did not apply to a refusal to revise for official error. However, the submission then went on in paragraph 11 to say something that seemed to me inconsistent with such an argument:

 

“The Judge raises the question whether in Schedule 1 to the Tribunal Procedure Rules the words `made an application for revisions under regulation 3A(1)’ refer only to applications within paragraph (1)(a) (as extended under sub-paragraph (b)) and can also apply to what in the ordinary use of language could be called an application for revision under sub-paragraph (e). However, I would submit that the reference to regulation `3A(1)’ must apply to the whole of 3A(1) and is not limited to 3A(1)(a) and (b).”

 

It seemed to me that if that second submission was right it would have to entail that the month’s extension did apply to refusals to revise for official error in child support and housing benefit/council tax benefit cases. Because of that inconsistency, following Mr Lawson’s reply (which did not in substance take matters any further forward) I directed the oral hearing.

 

9. It is necessary to describe in some detail the structure of the statutory schemes for revision and appeals as relevant to the particular decisions to be discussed.

 

10. In ordinary social security cases, such as that considered in R(IS) 15/04, the potential grounds for revision of decisions of the Secretary of State under section 9 of the Social Security Act 1998 are prescribed in regulation 3 of the Decisions and Appeals Regulations. Regulation 3(1) covers cases where either the Secretary of State starts action leading to revision of the decision within a month of its notification (sub-paragraph (a)) or an application is made within the same time or an allowed extension up to a total of 13 months (sub-paragraph (b)). Paragraph (3) makes similar provision for social fund cases. Then paragraph (4A) allows revision “at any time” if an in-time appeal against a Secretary of State’s decision has been made but not determined. Paragraph (5) allows revision “at any time” in a number of circumstances including where the decision arose from an official error (sub-paragraph (a)) or was made in ignorance of or was based on a mistake as to a material fact as a result of which the decision was more advantageous to the claimant than it would otherwise have been (sub-paragraph (b)).

 

11. In housing benefit/council tax benefit cases, such as that considered in Beltekian, the potential grounds for revision of a local authority’s decision under paragraph 3 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 are prescribed in regulation 4 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001. The equivalents of regulation 3(1)(a) and (b) of the Decisions and Appeals Regulations are in regulation 4(1)(a) and (b). The equivalent of regulation 3(4A) is in regulation 4(1)(c). The equivalents of regulation 3(5)(a) (official error) and (b) are in regulation 4(2)(a) and (b).

 

12. In child support cases relating to the 2003 scheme, like the present case, the potential grounds for revision of a Secretary of State or CMEC decision under section 16 of the Child Support Act 1991 are prescribed in regulation 3A of the Decisions and Appeals Regulations. The equivalents of regulation 3(1)(a) and (b) are in regulation 3A(1)(d) and (a) respectively. The equivalent of regulation 3(4A) is in regulation 4(1)(cc). The equivalents of regulation 3(5)(a) (official error) and (b) are in regulation 3A(1)(e) and (c). In child support cases relating to the pre-2003 scheme the prescription is still in regulation 17 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (the MAP Regulations). All the potential grounds for revision are set out in regulation 17(1). The equivalents of regulation 3(1)(a) and (b) are in regulation 17(1)(e) and (a) respectively. The equivalents of regulation 3(5)(a) (official error) and (b) are in regulation 17(1)(c) and (d).

 

13. The general rule on appeals is that by virtue of section 12(1) of the Social Security Act 1998, paragraph 6(1) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 and section 20(1) of the Child Support Act 1991, there is no right of appeal directly against a decision either to revise an earlier decision or not to revise it. There can be an appeal only against the earlier decision either as revised or as not revised. The time limits within which appeals to First-tier Tribunals may be brought then become crucial.

 

14. The current time limits are provided in Schedule 1 to the First-tier Tribunal Procedure Rules. The time within which notice of appeal must be provided to the decision maker under rule 23(2) is:

 

“The latest of—

 (a) one month after the date on which notice of the decision being challenged was sent to the appellant;

 (b) if a written statement of reasons for the decision was requested within that month, 14 days after the later of—

(i) the end of that month; or

 (ii) the date on which the written statement of reasons was provided; or

 (c) if the appellant made an application for revision of the decision under—

  (i) regulation 17(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992,

 (ii) regulation 3(1) or (3) or 3A(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, or

(iii) regulation 4 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001,

and that application was unsuccessful, one month after the date on which notice that the decision would not be revised was sent to the appellant.”

 

Prior to 29 November 2010 this provision was defective, in that it did not contain head (iii) of sub-paragraph (c) on housing benefit and council tax cases, but I need not trouble about how that affected such cases between 3 November 2008 and 28 November 2010.

 

15. Before the commencement of the Tribunals, Courts and Enforcement Act 2007 and the introduction of the various sets of Tribunal Procedure Rules with effect from 3 November 2008, the time limit for ordinary social security cases and for child support cases was in regulation 31(2) of the Decisions and Appeals Regulations:

 

“(2) Where the Secretary of State or the Board or an officer of the Board—

 (a) revises, or following an application for a revision under regulation 3(1) or (3), 3A(1) or regulation 17(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, does not revise, a decision under section 16 of the Child Support Act [1991] or under section 9 [of the Social Security Act 1998], or

 (b) supersedes a decision under section 17 of the Child Support Act or under section 10 [of the Social Security Act 1998],

the period of one month specified in paragraph (1) shall begin to run from the date of notification of the revision or supersession of the decision, or following an application for a revision under regulation 3(1) or (3), 3A(1) or regulation 17(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, the date the Secretary of State or the Board or an officer of the Board issues a notice that he is or they are not revising the decision.”

 

The basic time limit in regulation 31(1), subject to possible extension under regulation 32 to 13 months, was one month from the date of notification of the decision appealed against. The full drafting history of regulation 31(2) is extraordinarily convoluted, but I do not think that I need to go into it here.

 

16. The pre-3 November 2008 limit in housing benefit/council tax benefit cases was in regulation 18(3) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001:

 

“(3) Where the relevant authority—

  (a) revises a decision under paragraph 3 of Schedule 7 to [the 2000 Act];

  (b) following an application for a revision under regulation 4, does not revise; or

  (c) supersedes a decision under paragraph 4 of Schedule 7 to [the 2000 Act],

subject to paragraph (2), the period of one month shall begin to run from the date of notification of that revision or supersession, or following an application for revision, the date the authority issues a notice that it is not revising the decision.”

 

Regulation 18(2) merely allows a postponement of the start of the period where there has been an application for a written statement of the reasons for the decision.

 

17. At the oral hearing Mr Cooper for the Secretary of State started by maintaining his support both for the decision made by the tribunal of 2 December 2011 and for the proposition set out in paragraph 11 of the written submission, quoted in paragraph 8 above. At that point he adopted the view that in the ordinary everyday use of language a person applies for a revision when requesting CMEC or the Secretary of State to exercise the power of revision for official error and that such a revision would be under regulation 3A(1) of the Decisions and Appeals Regulations, because that ground was in regulation 3A(1)(e). Accordingly, he accepted that on a refusal to revise following such an application time would prima facie start to run again under Schedule 1 to the First-tier Tribunal Procedure Rules for appealing against the decision revision of which had been sought. He went on to submit that in the present case the appeal made on 24 June 2011 was still outside the absolute 13-month limit, because the refusal to revise on 10 May 2010 was the crucial event. He submitted that once such a refusal had been notified, triggering the new running of time to appeal against the decision of 9 February 2005, and although the father was free to make multiple subsequent requests for revision on the ground of official error, no subsequent refusals to revise could operate to trigger new periods for appeal. Mr Cooper rested that submission on the principles of finality or res judicata. I do not need to go into any detailed working out of that submission because, when pressed both about whether that submission could hang together and about the points discussed below about the authority of Beltekian, Mr Cooper was prepared to accept that a narrower view of the meaning of “application” in Schedule 1 to the First-tier Tribunal Procedure Rules could also be adopted to support the decision of the tribunal of 2 December 2011.

 

18. For the father, Mr Lawson submitted that the broader interpretation initially supported by Mr Cooper was right on the interpretation of Schedule 1 to the First-tier Tribunal Procedure Rules. In addition, he submitted that it was fair and just for a new period for appealing to start after a refusal to revise for official error. The existence of such errors might well come to light, through no fault of the affected parent, a long time, possibly years, after the decision in question was made and, if accepted, could then affect the maintenance calculation going back to the earliest date covered by the decision. It was right, he said, that if CMEC or the Secretary of State declined to act on a request, which might be plainly justified in law, the parent concerned should be able to use the statutory appeal mechanism without being excluded merely because of the lapse of time since the official error was committed. It was impracticable and unduly onerous to require the parent either to go on making further requests to the Secretary of State until the justice of the case was recognised or to apply to the High Court for judicial review. Mr Lawson also prayed in aid the overriding objective in rule 2 of the First-tier Tribunal Procedure Rules (dealing with cases fairly and justly) in the interpretation of Schedule 1, coupled with what he said was the clear official error behind the decision of 9 February 2005. He submitted that it was the normal practice of the CSA to regard any refusal to revise as carrying appeal rights through the triggering of a new period for appealing. If it was necessary to do so, Mr Lawson also argued that the letter of 10 May 2004 could not possibly be construed as a refusal to revise, with no mention of the decision of 9 February 2005, powers of revision or of rights to appeal. Further, he said, the application in February 2011 raised new grounds that had not previously been relied on (the unlawfulness of treating drawings from a partnership as income, rather than the share of the partnership profits), so that there could be no question of res judicata. I come back below to Mr Lawson’s submissions on Beltekian.

 

19. There is some force in the submissions based on the ordinary everyday meaning of “application” and the contrast in Schedule 1 to the First-tier Tribunal Rules, and in the provisions previously in force, between the way the kind of applications that are relevant are specified for ordinary social security cases and the way that that is done for child support and housing benefit/council tax benefit cases. I come back in paragraph 28 below to another contrast within the child support category between old scheme cases and 2003 scheme cases. Before attempting any general evaluation of those submissions, there is a question whether the issue has been decided by Beltekian in a way that has to be accepted at the level of the Upper Tribunal.

 

20. Beltekian is an unsatisfactory case in many respects, but of course the decision exists and was given by a remarkably distinguished bench. The claimant was seeking in 2002 to get the local authority to supersede a decision of a housing benefit review board (HBRB) under a previous adjudication regime that had been in force down to July 2001 on the ground of mistake of material fact. That application was refused on the basis that supersession did not operate retrospectively. On his appeal to an appeal tribunal he argued that he had made an application for review of the HBRB decision before the change in the adjudication regime, which had not yet been determined. The tribunal remitted the matter to the local authority to determine whether such an application had been made and, if so, to consider revision or supersession as appropriate, taking account of the effect of some transitional regulations. The local authority’s appeal to a Social Security Commissioner was allowed. Before the case could be considered by a new tribunal, the claimant was given permission to appeal against the Commissioner’s decision by a single Lord Justice solely on the point whether there was a power after July 2001 to review HBRB decisions before that date. However, at the hearing of the appeal, counsel for the claimant raised the entirely new point that that regulation 4(2) of the HB/CTB Decisions and Appeals Regulations allowed the local authority to revise its original decision, ie the decision appealed to the HBRB, on the ground that it arose from official error.

 

21. Lord Justice Brooke (with whom Clarke and Neuberger LJJ agreed) then said this:

 

“10. The difficulty about [counsel’s] new argument is that even if his client’s letter, dated 11 March 2002, could, by a fairly vivid stretch of the imagination, be interpreted as a request that the council should review its original decision of 7 February 2000 on the grounds of official error, the council refused to entertain his request, and no appeal lies from that refusal to the appeal tribunal. The reason for this is that paragraph 6 of Schedule 7 to the 2000 Act creates the right of appeal to the appeal tribunal, and it applies to any relevant decision (whether as originally made or as revised under paragraph 3) of a relevant authority which (a) is made on a claim for, or an award of, housing benefit, or (b) does not fall within paragraph (a) but is of a prescribed description. The language of paragraph 6(a) refers to an original decision or a revised decision, and not to a refusal to revise.

 

11. In R(IS) 15/04 a Tribunal of Commissioners considered the language of regulation 18(3) of the [HB/CTB] Decisions and Appeals Regulations which prescribes the time within which an appeal is to be brought. It provides [as set out in paragraph 16 above with some irrelevant words omitted].

 

12. In that case the Tribunal accepted the submission that this regulation is referring only to an application for revision for which regulation 4, itself, made express provision. Regulation 4(1)(a) does contemplate an application being made. Regulation 4(2) makes no mention of any application.

 

13. In my judgment this decision was clearly right and this is the end of [counsel’s] point.”

 

Brooke LJ said that it did not then need to be decided whether a decision could remain open to revision after a tribunal on appeal from it had given a decision of its own (a point said to have been left open in R(IB) 2/04 after reference to R(I) 9/63) and repeated that the claimant’s letter of March 2002 contained no reference at all to any official error vitiating the local authority’s original decision, but rather complained of its having misrepresented the facts before the HBRB.

 

22. It might then be thought that, although the conclusions expressed in paragraphs 12 and 13 were based on a number of assumptions that were rather shaky and the point at issue was one that the Court of Appeal need not have allowed to be addressed, the Court nonetheless did agree to deal with the point argued for the claimant and in those paragraphs came to a clear conclusion on the central legal element in the argument for the claimant. In those circumstances it might be concluded that that conclusion was binding on the Upper Tribunal, regardless of whether a judge at that level thought the conclusion right or wrong in law. Then the conclusion in relation to the housing benefit/council tax benefit provisions (that “application” meant only an application for which specific provision is made in the prescription of grounds for revision) would have to apply equally to the child support provisions.

 

23. However, it is not on the face of it easy to see how the decision in R(IS) 15/04 came to say anything about housing benefit. The Court of Appeal in Beltekian said nothing about the circumstances considered in the Tribunal of Commissioners’ decision R(IS) 15/04 and did not refer to any specific paragraphs of the decision. As the reporting reference indicates, that was an income support case, not a housing benefit or council tax benefit case. It was common ground between the parties there that regulation 31(2) of the Decisions and Appeals Regulations had the effect that in an ordinary social security case a refusal to revise for official error did not trigger a new period for appealing against the decision that was sought to be revised. What was being argued for the claimant in R(IS) 15/04 was that the denial of a right of appeal in such cases, if the refusal was more than 13 months after the date of notification of the original decision, was contrary to the European Convention on Human Rights and in particular article 6 on the right to a fair hearing. As part of that argument it was submitted that there was discrimination contrary to article 14, in conjunction with article 6, because in a housing benefit case a new period for appealing was triggered by a refusal to revise for official error. It was submitted that there was unjustified discrimination between housing benefit/council tax benefit claimants and other social security claimants. Thus the Tribunal of Commissioners had to examine the language of regulation 18(3) of the HB/CTB Decisions and Appeals Regulations as part of determining whether there was a difference of treatment in law between those categories of claimant. It concluded, accepting the submissions made on behalf of the Secretary of State, that regulation 18(3)(b) had the meaning later accepted in Beltekian, so that there was no difference in treatment on which any article 14 discrimination argument could be based.

 

24. It is worth setting out a few parts of the decision in R(IS) 15/04. Having accepted that a claimant had a right to apply to the Secretary of State for a revision on the ground of official error, the Tribunal continued:

 

“68. This issue consequently turns upon the proper construction of regulation 18(3)(b). We find this provision particularly difficult to construe. However, we are, on balance, persuaded that the Secretary of State is right in submitting that regulation 18(3)(b) of the 2001 Regulations is referring only to an application for revision for which regulation 4 itself makes express provision – i.e. to an application under regulation 4(1). In our view, there are differences between the drafting of regulation 18(3) of the 2001 Regulations and regulation 31(2)(a) of the 1999 Regulations which indicate that the reference in regulation 18(3)(b) simply to an application under regulation 4 (rather than to an application under regulation 4(1)) does not have the effect for which the claimant contends.

69.  We note that regulation 18(3)(a) and (c) provides for the cases where the local authority does revise, or does supersede, a previous decision by referring to revision (or supersession, as the case may be) “under paragraph 3 [or paragraph 4, as the case may be] of Schedule 7 to the [2000] Act”. In other words, the reference is to the provision of the primary legislation which authorises revision or supersession, and not to the relevant provisions of the 2001 Regulations (i.e. regulation 4 or 7) which, under the authority of that primary legislation, specify the cases and circumstances in which a decision may be revised or superseded.

70.  Regulation 18(3)(b), on the other hand, does not refer to applications for revision under the primary legislation, but rather to applications under regulation 4. We consider this difference from sub-paragraphs (a) and (c) to be important: and take the contrast between regulation 18(3)(a) and (c) on the one hand, and regulation 18(3)(b) on the other, to indicate that, when regulation 18(3)(b) refers to “an application for a revision under regulation 4”, it is not intending to refer to any application which (by virtue of the general provision in paragraph 3 of Schedule 7 authorising applications) may be made for one of the heads of revision specified in regulation 4, but rather only to applications for which regulation 4 itself makes express provision. The only express provision in regulation 4 for the making of an application is that in regulation 4(1).”

 

25. It was plainly this part of the decision in R(IS) 15/04 which Brooke LJ was approving in Beltekian. I apologise to Mr Cooper and Mr Lawson for having at the oral hearing put the content of the decision in R(IS) 15/04 to them in a way that was at best confusing and at worst positively misleading, suggesting that it had not dealt with regulation 18(3)(b) of the HB/CTB Decisions and Appeals Regulations. On later proper analysis it clearly did so and its conclusion was a necessary part of its decision that the claimant in R(IS) 15/04 was not assisted by the Human Rights Act 1998. Even if the conclusion had not been necessary to the outcome of the decision, it was expressly approved and adopted in relation to regulation 18(3)(b) by the Court of Appeal. In my judgment, as a single judge I am bound to follow and apply that interpretation of regulation 18(3)(b) and necessarily also of sub-paragraph (c) of the provision in Schedule 1 to the First-tier Tribunal Procedure Rules in so far as that replaced regulation 18(3)(b). If that is the proper interpretation of those provisions it must also apply to head (ii) of sub-paragraph (c) in its reference to applications for revision under regulation 3A(1) of the Decisions and Appeals Regulations.

 

26. Mr Lawson submitted that Beltekian should not be followed. First, he argued that the interpretation of Schedule 1 to the First-tier Tribunal Procedure Rules should be coloured by what he said was the clear conclusion that there had been an official error in the decision of 9 February 2005. That argument does not take the father’s case forward at all. It has in my judgment been assumed for the purposes of the discussions of interpretation above that there was a clear case of official error, but nevertheless the conclusion was that a refusal to revise could not trigger the running of a new period for appeal. It is also a matter of jurisdiction. There has to be one rule for all applications for revision on the ground of official error and subsequent refusals regardless of the strength or otherwise of the case for there having been an official error. For essentially the same reasons, the overriding objective of dealing with cases justly and fairly in rule 2 of the First-tier Tribunal Procedure Rules cannot advance the father’s case. It is true that rule 2(3)(b) obliges the First-tier Tribunal to seek to give effect to that objective when interpreting any rule or practice direction. However, I cannot see how that duty (which is fundamentally addressed to matters of procedure or the conduct of proceedings or to the application of rules to particular circumstances in the course of proceedings) can have any influence over the interpretation of a provision directed to the question of whether proceedings can be commenced at all, ie a question of jurisdiction. Of course the Upper Tribunal could not possibly disagree with the general principle that cases should be dealt with fairly and justly, but adoption of that principle has to stand against the actual terms of provisions defining the time for bringing appeals. It cannot warrant any process of reading into such provisions exceptions or qualifications that are not there in the legislation. Nor can the consequences that a refusal to revise a decision more than 13 months ago on the ground of official error can only be challenged by way of judicial review in the High Court or by way of making new applications for revision.

 

27. Mr Lawson also argued that the way in which the point about regulation 18(3)(b) of the HB/CTB Decisions and Appeals Regulations came before the Court of Appeal and the lack of the usual depth of discussion to be expected from that court meant that the authority of Beltekian was severely limited and might not carry over to the particular context of child support. In effect, he submitted that I was free to take my own view of the proper interpretation of the child support provisions. I have already explained why I do consider myself bound by Beltekian. I would also be bound to follow the conclusion of the Tribunal of Commissioners in R(IS) 15/04, as I have explained it above, unless completely satisfied that it was wrong. In fact, I agree with and adopt the reasoning behind its conclusion. The logic of the reasoning must then apply equally to sub-paragraph (c)(ii) of the provision in Schedule 1 in its application to child support. If the outcome is contrary to the normal practice of the CSA, then so be it. The existence of such a practice cannot stand in the way of the outcome required by authority and convincing reasoning. Nor can the existence of a refusal of permission to appeal by an Upper Tribunal judge adopting the opposite outcome, relied on by Mr Lawson at one stage, cannot stand as any authority for that outcome (Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988). For that reason I do not give the file number of the case or the name of the judge.

 

28. There is in my judgment an additional powerful reason in favour of the conclusion above. Sub-paragraph (c)(i) of the provision in Schedule 1 to the First-tier Tribunal Procedure Rules applies for the purposes of the old, original child support scheme, as distinct from the scheme introduced with effect from 2003 for new cases. The reference there is to applications under regulation 17(1)(a) of the MAP Regulations. Regulation 17(1)(a) is restricted to applications within a month or up to 13 months after the date of the decision sought to be revised. The ground of official error is in regulation 17(1)(c). Thus for old scheme cases the statutory position is the same as for ordinary social security cases and refusal of revision on the ground of official error cannot trigger the running of a new period for appealing. It would be extraordinary and could not possibly have been intended if that was the position for old scheme cases but the position for 2003 scheme cases (under sub-paragraph (c)(ii)) was the reverse.

 

29. Accordingly, in the present case the appeal made on 24 June 2011 was on any basis made more than 13 months after 9 February 2005 and could not be admitted for consideration. The tribunal of 2 December 2011 could not have done anything other than it did. The appeal against its decision must therefore be dismissed.

 

Observations relevant to official error

30. There is very little information in the papers before me about the decision made on 9 February 2005 or the evidence that was available to the decision maker at the time. However, in the particular circumstances it is right for me to make some very general observations below. Consequently, I have made the request at the head of this decision for the Secretary of State to consider again, in the light of those observations and the possibility of a wider examination of the relevant documents (including the letter dated 20 April 2010 and the extracts from the father’s accounts for year ended 5 April 2004 produced by Mr Lawson at the hearing and taken from papers provided by the CSA), whether there should be a revision of the decision of 9 February 2005 on the ground of official error. I leave it to the responsible officer in Decision Making and Appeals in Leeds, when sending back the case to the appropriate office after receipt of this decision, to identify to whom it should be sent and to make whatever comments are thought proper.

 

31. The first general observation is that it appears not to be in dispute that at the relevant time the father was a self-employed earner for the purposes of the Schedule to the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (the MCSC Regulations). Further, the extracts from the 2004 accounts produced at the oral hearing are entirely consistent with the father’s evidence that the business, a sandwich shop, was a partnership between himself and his wife, the second respondent in the present appeal. That is seen in the labelling of the capital account in the balance sheet as belonging to the father and his wife and in the breakdown of drawings including cheque expenses for the father and his wife. There have been complicated amendments to the relevant parts of the Schedule over the years. As at February 2005 the form of paragraph 7(1) in force required the calculation of net weekly income to be done by reference to total taxable profits from self-employment as submitted to the Inland Revenue in accordance with their requirements or as set out on a tax calculation notice, less deductions for income tax, national insurance contributions and pension premiums. If that method did not accurately reflect the parent’s normal weekly earnings or in some other cases, the alternative method under paragraph 8 could be adopted, which required taking gross (income) receipts and deducting reasonably incurred expenses (subject to some exceptions, such as capital expenditure and depreciation) and income tax, national insurance and pension premiums.

 

32. The second general observation is that it has been clearly established in decisions of the Child Support Commissioner and of the Upper Tribunal that the amount taken by a partner, or by any self-employed earner, as “salary” or drawings from the business was irrelevant to the calculation of income from self-employment under a provision in the form of paragraph 8 of the Schedule to the MCSC Regulations as at February 2005. I need only refer to decisions CCS/3156/2000, CCS/1246/2002 and AR v Bradford Metropolitan District Council [2008] UKUT 30 (AAC), reported as R(H) 6/09. The second of those decisions is available on the Upper Tribunal (AAC) website and on other sources (like the BAILII website). It quotes extensively from CCS/3156/2000. The third decision, being reported, is available from the same sources and others. It deals specifically with a situation in which a partnership is not making profits at the relevant time and with statutory rules for the calculation of income in substantially the same form as those relevant in the present case.

 

33. The third general observation is that, despite the lack of any direct information in the papers currently before me about the grounds on which the decision of 9 February 2005 was made, it is tolerably clear from pages 24 and 25 of the papers and from the letter of 24 April 2010 that the calculation of the father’s net weekly income at £164.40 per week was based on taking the total figure for drawings shown on the balance sheet plus  adding back  the amount for depreciation, before making income tax and national insurance deductions.

 

34. The fourth general observation is that since there was a partnership and I have no evidence about the partnership share as between the father and his wife, there must be doubt, if the amount of drawings was relevant as a matter of law, whether the whole amount of £9684 shown on the balance sheet could properly be attributed to the father.

 

35. The fifth general observation is that, although I do not have to decide this question, I can see nothing to prevent a parent from making further applications for revision on the ground of official error, if a previous application or applications has been unsuccessful. It is clear from section 16(1)(b) of the Child Support Act 1991 that the Secretary of State may carry out such a revision on his own initiative as well as on an application by a parent. I do not see how the Secretary of State’s duty properly to consider an argument that a decision arose from official error that is brought to his attention could possibly be affected by the existence of previous occasions when carrying out a revision on that ground has been rejected.

 

 

 

 

(Signed on original): J Mesher

  Judge of the Upper Tribunal

 

Date: 5 December 2012