Decision No. CSC1/03-04

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Appeal to the Child Support Commissioner on a question of law
from the decision of an Appeal Tribunal
dated 4 November 2002
					
DECISION OF THE CHILD SUPPORT COMMISSIONER
1.	This is an appeal, with the leave of a Commissioner granted on 24 April 2003, by the appellant, the father of the relevant child, and the non-resident parent, against the decision of the Tribunal which disallowed the appellant’s appeal from a decision made by a decision maker allowing a departure on the grounds of assets capable of producing income or higher income.  

2.	Having considered the circumstances of the case and the reasons put forward in the request for a hearing I am satisfied that the appeal can properly be determined without a hearing.  By direction of the Legal Officer, the Decision Making and Appeals Unit of the Department is the first respondent and the parent with care is the second respondent in these proceedings.

3.	On 5 March 2002 the Department received an effective departure application from the parent with care in respect of assets capable of producing income or higher income, diversion of income, lifestyle inconsistent with declared income and housing costs that could be paid by the other parent’s present partner.  The application did not fail, so the Department notified the non-resident parent so that he could have the appropriate input in the eventual decision.  The decision maker then ruled that only one aspect of the departure application was appropriate and determined that the non-resident parent’s net income in the maintenance assessment formula should be increased by £175.93 per week.  In consequence of the direction the non-resident parent’s child support maintenance liability was increased by £30.07 per week, i.e., from zero per week to £30.07 per week from 4 March 2002.

4.	Both the parent with care and the non-resident parent appealed this decision.  The appeals came before the Appeal Tribunal on 4 November 2002.  The appeals were heard separately by the same Tribunal, one immediately after the other.  The appeal of the parent with care, who was present but not represented, was heard first.  She did not remain for the second appeal.  The non-resident parent was not present at either hearing – he had indicated that he felt unable to attend for medical reasons but also stated that he was content for the Tribunal to proceed in his absence.  The Tribunal gave the following two decisions: the first decision, under Tribunal Reference BE68/02C in relation to the non-resident parent, was in the following terms:

“Disallowed.  The 5 grounds upon which [the non-resident parent] appealed are stated in full to the rear of page 81 on papers.  All 5 grounds have been rejected for reasons as given in full in “Reasons for Decision”.  Note that the decision given by CSA at page 6 of papers is not correct; [The non-resident parent’s] gross value of rental property is to be taken as £208,000, (not £175,500).  Based on this figure [the decision maker] will calculate weekly interest on allowable assets and incorporate this into maintenance assessment.”

The net effect of this decision is that the Tribunal rejected the appeal of the non-resident parent but replaced the Department’s Direction to the extent that £208,000 was now to be taken as the capital value of the assets and not £175,000 which had been the effect of the Department’s Direction. The second decision, under Tribunal Reference Number BE70/02C in relation to the appeal of the parent with care, was in similar terms and specifically allowed the appeal of the parent with care on the “grounds of assets capable of producing income or higher income”.  

5.	Although it is not strictly a matter for me, it seems relatively clear that there was in fact only one decision by the Tribunal, although the Tribunal has set the decision out in two separate documents and with two separate reference numbers.  The reason for this is that there appears to have been one decision by the decision maker, which was appealed by both parties.  Accordingly there ought to be one, not two, rulings on the correctness of the decision maker’s decision.

6.	The parent with care did not appeal the decision of the Tribunal but the non-resident parent appealed the decision of the Tribunal which directly affected him (and which was to the same effect as the decision in relation to the parent with care).  

7.	An additional factor seems to have confused the parties in this case and it has been somewhat difficult for me to unravel.  The parent with care seems to have raised an issue at what appears to have been tantamount to a joint appeal hearing before the Tribunal.  This was that the non-resident parent had assets which could produce more income.  This was taken up by the Department after the hearing as an application for a Departure Direction.  After investigation, due to the complexity of the matter and the respective contentions of the parties, the Department did not make a decision but, under Article 28D of the Child Support (Northern Ireland) Order 1991, it made a referral to an Appeal Tribunal under Reference BE42/03C.  However the parent with care withdrew the application and this matter was never subject to a ruling by a Tribunal.  Therefore in my view those proceedings (BE42/03C) can have no part to play in the decision that I have to make in this case.

8.	The reasons given by the Tribunal for its decision on appeal BE68/02C were as follows: -

“[The non-resident parent] has 4 rental properties.  He receives rental income from each.  One would have expected a landlord such as [the non-resident parent] to have prepared detailed sets of accounts for each property which had been either accepted by Inland Revenue or prepared and certified by a Chartered Accountant.

No such accounts have ever been provided.

[The non-resident parent] claims that the house in C… Street, Bangor is co-owned by his brother.

However [the non-resident parent] told [the decision maker] earlier this year in a telephone conversation that the house had been bought solely in [the non-resident parent’s] name – but he had a legal document to show that the house was co-owned.

It would have been a relatively easier matter for [the non-resident parent] to have provided this – but for reasons unknown the Child Support Agency did not ask for this legal document proving co-ownership.

I will not accept that [the non-resident parent’s] brother is co-owner of C… Street, Bangor until I see proof of this.

In the absence of detailed accounts for rental properties points 1-4 (both inclusive) cannot be considered.

In the absence of proof that [the non-resident parent] is co-owner of C… Street, Bangor, [the non-resident parent] himself is to be credited as being sole owner.

All 5 grounds of appeal have been considered and rejected.”

9.	The Legally Qualified Member of the Tribunal made the following record of the Tribunal’s proceedings: -

“RECORD OF PROCEEDINGS

	All papers on file.

	Bundle of documents submitted by [the non-resident parent].

	[The non-resident parent] was not present.

This appeal is associated with [the parent with care’s] appeal.  Both [the non-resident parent] and [the parent with care] appealed the decision of the Child Support Officer that, following the departure application of [the parent with care], that [the non-resident parent] because of his ownership of rental properties should be attributed weekly interest of £177.00 minus £1.07 = £175.93 per week.

[The parent with care’s] appeal was heard first, [the non-resident parent’s] appeal second.

[The parent with care and her husband] did not stay for the hearing of [the non-resident parent’s] appeal.

Grounds of [the non-resident parent’s] appeal are as stated on appeal letter, at rear of page 81.

These grounds are as follows: -

1.	There is no allowance for capital repayment on property loans.
2.	Expenses incurred renting out the properties.
3.	Allowance for periods of when properties are vacant.
4.	Allowance for property improvements.
5.	Percentage of ownership by brother.

All papers on file perused.  No verbal evidence received in this matter.”

10.	The parent with care did not appeal the decision directly relevant to her but the non-resident parent applied for leave to appeal the decision relevant to him.  However, leave to appeal was refused by the Legally Qualified Member on 2 January 2003.  Nevertheless, as stated in paragraph one herein, a Commissioner granted leave to appeal on 24 April 2003.

11.	The appellant, the non-resident parent, is represented by J B & Company, Solicitors, the first respondent is represented by Mr Conlon of the Decision Making and Appeals Unit of the Department, while the second respondent, although taking an active part in these proceedings, is not represented.

12.	The grounds of appeal are voluminous and have been proffered to a Commissioner in two stages, namely the original grounds of appeal set out in application to the Legally Qualified Member for leave to appeal to a Commissioner with additional grounds for appeal set out in an addendum in making the application to the Commissioner for leave to appeal. The original grounds of appeal were as follows: -

i.	No reasonable tribunal could have come to the decision based on the facts before it and available as did the Tribunal on 4 November 2002.

ii.	[The non-resident parent’s] Human Rights have been infringed and in particular Articles 6 and 8, namely [the non-resident parent’s] right to a fair hearing and his right to respect for privacy and family life.

iii.	[The non-resident parent] did not receive an oral hearing and neither was all relevant information taken into account by the Tribunal or provided in advance to [the non-resident parent] for his consideration.  In particular the reasons for decision state that no accounts have ever been provided, which is factually incorrect.

iv.	Despite requests for the figures concerning [the parent with care and her husband’s] income and assets these have not been forthcoming and from [the non-resident parent’s] knowledge of their lifestyle and earning capacities the assessment made in respect of [the non-resident parent] cannot be just.

v.	[The non-resident parent] must be allowed to produce witnesses as their evidence has either been ignored, mislaid or misconstrued.  For example, accounts supplied have clearly been mislaid and even if they had been taken into account they show a loss.  In spite of this the Tribunal has sought to attribute gain to [the non-resident parent’s] ownership of various properties.

vi.	The Tribunal failed to take account of the equitable ownership of certain properties.

vii.	Valuations by professional valuers have been ignored and a substituted valuation used to further disadvantage [the non-resident parent].

viii.	To sum up: breach of natural justice, infringement of Human Rights, and failure to properly apply the Child Support legislation.

The additional grounds of appeal are as follows: -

ix.	[The non-resident parent] can prove his brother is beneficial owner of certain properties.

x.	It is just and equitable to have the CSA assessment varied downwards given that a monthly assessment of £238.00 has been made on a weekly income of only £63.24.  Under the original maintenance assessment the CSA had accepted the properties were not making any money and this remains the case.

xi.	In the case of Social Security Decision R(A) 1/72 it was held by the Social Security Commissioners that a decision is wrong in law if: -

a.	it contained a false proposition of law on its face;

b.	it was supported by no evidence;

c.	the facts found were such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question.

xii.	It could be argued that (b) & (c) apply in [the non-resident parent’s] case.  The Tribunal did not take into account all the relevant information that was supplied to them including [the non-resident parent’s] accounts.  Furthermore, [the parent with care and her husband] did not supply figures regarding their assets and income.

xiii.	Another decision namely, Social Security decision No CSB29/81 cites R(I) 14/75 as adding further grounds, namely breach of the requirements of natural justice and failure to state adequate reasons.  [The non-resident parent] would be relying on the former point.

13.	The relevant legislation in the present case is set out in Articles 28A-I and Schedules 4A and 4B of the Child Support (Northern Ireland) Order 1991 which gives the Department (or a tribunal) a discretion to depart from the standard formula for the assessment of Child Support in certain specified cases, provided to do so is just and equitable.  In the present case the Department gave a Departure Direction under the “Additional Cases” provisions contained at paragraph 5 of Schedule 4B of the 1991 Order and Regulation 23(1)(a) of the Child Support Departure Direction and Consequential Amendments (Northern Ireland) 1996 Regulations – commonly referred to as the Departure Regulations.  The income to be calculated from the asset is assigned under Regulation 40 of the Departure Regulations.

14.	In this appeal the substance of the case set out by the non-resident parent is, as can be seen from the grounds of appeal, a series of contentions.  The parent with care has, not unexpectedly, in her submissions concentrated on matters of fact which, however, do not arise in the appeal to a Commissioner, who is only concerned with errors of law.  Nevertheless these contentions may be relevant in the future in any rehearing before a fresh tribunal.  The Decision Making and Appeals Unit, through Mr Conlon, has very properly taken the view of an “amicus curiae”, and has set out, in written submissions dated 9 April 2003 for the original application for leave to appeal, an objective submission on the legal merits of the case of the non-resident parent.

15.	Mr Conlon, in his submissions, has made a fundamental point which, in my view, deals with the crux of this case.  Article 28F of the 1991 Order and Regulation 30 of the Departure Regulations lay down specifically the types of factors which can be taken into account by the Department (and by the tribunal on appeal) when considering whether “in all the circumstances of the case, it would be just and equitable to give a departure direction”.  These include the financial circumstances of the parent with care and the non-resident parent, and also whether any direction would be likely to affect a person’s paid employment.  However, they are not limited to such circumstances and a tribunal, in my view, in applying the legislation, must consider specifically “the just and equitable” requirement.  In the present case there is no evidence or suggestion that the Tribunal ever considered whether “in all the circumstances of the case, it would be just and equitable to give a departure direction”.  Accordingly I conclude that the Tribunal has erred in law in this respect.

16.	The non-resident parent has also submitted that the papers before the Tribunal made it clear that he was contending that the properties of numbers 26 and 28 W…Street were in co-ownership with his brother.  This may or may not be correct.  However, it is unfortunate that the Tribunal did not address this issue at all as, by failing so to do, the Tribunal has clearly erred in law.

17.	I do not feel it necessary or constructive to deal with the other issues that the non-resident parent has raised.  Suffice to say, many of the matters that he has drawn to my attention would not have arisen as issues if he had been able to be present at the hearing.

18.	For the reasons stated I hold that the Tribunal’s decision is erroneous in point of law.  Accordingly I allow the appeal and refer the matter back to a freshly constituted tribunal for a rehearing.  Other issues may arise at this rehearing and it seems to me important that the new Tribunal has all the relevant evidence before it to enable it to make the appropriate and proper decision.  I also consider that it is essential that the new Tribunal has the benefit of an updated and revised written submission from the Department incorporating all points that have been made by the Department, through Mr Conlon, in his submission of 9 April 2003.  However, I am aware that the entirety of the submission may not be relevant to the new Tribunal as much will depend on this Tribunal’s fresh findings of fact which I do not intend to pre-judge.  Nevertheless it is important in this most difficult area of law that the Department, in its quasi-amicus role, gives all the assistance that it can to the Tribunal.

J A H Martin QC
Chief Commissioner

20 May 2004