AF-v-Department for Social Development (CS) [2011] NICom 218
Decision No:  CSC3/11-12

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Application by the applicant for leave to appeal
and appeal to a Child Support Commissioner
on a question of law from a Tribunal’s decision
dated 15 September 2009

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 15 September 2009 is in error of law.  The error of law will be set out in more detail below.

2.	I exercise the power conferred on me by Article 25(3)(b) of the Child Support (Northern Ireland) Order 1991, as amended, to give the decision which the appeal tribunal should have given.  My revised decision is that the decision of Child Maintenance and Enforcement Division (CMED), dated 11 June 2008, to the effect that the appellant was liable to pay weekly child support (CS) maintenance of £50.00 per week from the effective date of 9 May 2008, is confirmed.

3.	Accordingly, although the appeal to the Child Support Commissioner succeeds the outcome decision remains the same.  This decision will come as a disappointment to the appellant and her representative but I am obliged to apply the relevant legislative provisions to the facts of the case.

	Background

4.	In this decision, the appellant is the non resident parent (NRP) of a qualifying child (QC) who has another parent, the parent with care (PWC).

5.	On 28 April 2008 the PWC made an application for child support maintenance.  On 22 May 2008 a maintenance enquiry form was received in the Department from the NRP, having previously confirmed that she was the parent of the relevant QC.

6.	On 11 June 2008 the Department carried out an initial maintenance calculation which determined that the NRP’s CS liability in respect of the QC was £50.00 per week effective from 9 May 2008.

7.	On 31 July 2008 a letter was received from the NRP in which she referred to a letter sent to the Department on 3 July 2008.  The Department has submitted that there was no record of this letter having been received.

8.	The Department submits that on 24 October 2008 a letter of appeal against the decision dated 11 June 2008 was received in the Department.  The Department submitted that the letter of appeal had been received outside of the statutory prescribed time limits for bringing an appeal.  Further, on 5 January 2009 the reasons for the delay in bringing the appeal were not accepted so as to trigger the legislative provisions for the extension of the relevant time limits for the bringing of an appeal.

9.	The issue of the extension of the time limits for bringing the appeal was forwarded to the Appeals Service (TAS) for re-determination by a legally qualified panel member (LQPM) of the appeal tribunal.  On 23 January 2009, the LQPM determined that the time limit for bringing the appeal could not be extended.  The LQPM, on 2 February re-considered the determination of 23 January 2009, did extend the time limit for appealing, and accepted the appeal.

10.	Following receipt of telephone calls and further correspondence, the decision dated 11 June 2008 was reconsidered by a decision-maker, on 16 April 2009 who refused to revise the original decision.

11.	Following the receipt of additional information in TAS, from the NRP’s representative, the appeal tribunal hearing took place on 15 September 2009.  The NRP was present and was represented.  The PWC was also present as was a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 June 2008.

12.	An application for leave to appeal to the Child Support Commissioner was received in TAS on 13 January 2010.  On 25 February 2010 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Child Support Commissioner

13.	On 25 March 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 24 May 2010 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  On 28 May 2010 correspondence was received from the NRP’s representative in connection with a ‘Summons for Liability Order’ which had been issued to the NRP.  On 3 June 2010 the legal officer to the Commissioners provided a reply to the correspondence from the NRP’s representative.  On 18 June 2010 correspondence in connection with the proceedings before the magistrates’ court was received.  On 23 June 2010 written observations on the application for leave to appeal were received.  In these written observations, Mrs Doran, for DMS, opposed the application for leave on all of the grounds submitted on behalf of the NRP.

14.	On 24 June 2010 the written observations were shared with the NRP and her representative.  Also on 24 June 2010 the Child Support Commissioner directed that no oral hearing of the application for leave to appeal would be required.  On 15 July 2010 written observations were received in reply from the NRP’s representative which were cross-shared.  Further correspondence was received from the NRP’s representative on 31 August 2010.  On 15 September 2010 a further submission was received from Mrs Doran which was shared with the NRP and her representative on 14 September 2010.

	Errors of law

15.	A decision of an appeal tribunal may only be set aside by a Child Support Commissioner on the basis that it is in error of law.

16.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

17.	In the application for leave to appeal to the Child Support Commissioner, the NRP, through her representative has submitted that the decision of the appeal tribunal was in error of law on the basis of the following cited grounds.

(i)	The appeal tribunal had not answered a fundamental question as to the jurisdiction of the Child Support Agency (CSA) having regard to a High Court settlement Order of Court dated 4 August 2008.  The appeal tribunal permitted this fundamental question to remain unanswered.

(ii)	The appeal tribunal had no jurisdiction to hear the appeal while the question concerning the jurisdiction of the CSA remained outstanding.

(iii)	The record of proceedings for the appeal tribunal hearing was grossly inaccurate.

(iv) 	The tribunal’s decision on appeal and refusal to give leave for appeal were both made on an assumption that it had jurisdiction.

(v)	Contrary to basic legal principles, the decision to refuse leave to appeal was made by the same LQPM who had heard and determined the appeal.

(vi)	The hearing of the appeal was invalid due to lack of jurisdiction and was not properly conducted.

18.	What was the CSA is now the CMED but nothing turns on that difference in nomenclature.  The NRP’s representative also made reference to the grounds which had been cited in the original application for leave to appeal which had been before the LQPM.  Those grounds were similar to those set out in the application for leave to appeal which was forwarded to the OSSC.

19.	As was noted above, in written observations on the application for leave to appeal, Mrs Doran, for DMS, opposed the application for leave on all of the grounds submitted on behalf of the NRP.

20.	In further correspondence dated 15 July 2010 written observations were received in reply from the NRP’s representative.  In these further observations the NRP’s representative added to the submissions which he had already made, and raised one or two additional grounds which will be dealt with below.

	Analysis

21.	The substantive point being raised on behalf of the NRP by her representative is there is in existence a High Court Order, encompassing an agreement between the NRP and the PWC.  The nature of the High Court Order and the Agreement, and their legal effect were such that the jurisdiction of the CMED to consider an application for CS maintenance was ousted.  Further, as CMED had no jurisdiction to consider the application for CS maintenance and to make a decision in connection with that application, the appeal tribunal equally had no jurisdiction to hear and determine an appeal against the application.  The NRP’s representative submits that neither CMED nor the appeal tribunal has set out the relevant legal authority on which it determined that such jurisdiction did exist and the legal basis upon which it was decided that the CMED decision superseded the terms of the Court Order and Agreement.

22.	The NRP’s representative has raised a number of additional issues which will also be addressed below.

23.	The relevant Court Order and accompanying Agreement were included in the papers which were before me.  The Order is dated as having been made by the Family Division Master on Monday 4 August 2008.  Its substantive content reads as follows:

‘IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
MATRIMONIAL OFFICE

Before MASTER REDPATH

On Monday the 4th Day of August 2008

	Between

				[PWC]				Petitioner

AND

				[NRP]				Respondent

	UPON HEARING Counsel for the Respondent, and there being no appearance by or on behalf of the Petitioner, pursuant to a Summons dated 04 June 2008.

	IT IS ORDERED that the Agreement dated 27 May 2008, a copy of which is set out in the attached Schedule, be received and made a rule of Court and be filed with and be deemed part of this Order.

	AND IT IS ORDERED that the requirement for a Statement of Information under Rule 2.72(1) is dispensed with under Rule 2.72(3).

	AND IT IS FURTHER ORDERED that there be no Order as to costs.

	AND THE MASTER Certifies for Counsel for the Respondent’

24.	The Agreement is attached to the Order as is suggested in that Order.  Contrary to what the Order states, the Agreement is dated 21 April 2006.  The NRP’s representative made specific reference to Clause 6 of the Agreement which reads as follows:

‘Save as provided by the preceding clauses of this Agreement, the Petitioner and Respondent shall each retain as his or her sole property respectively all assets and capital at present in his or her ownership or possession or which may come into their ownership or possession and neither Party shall be at liberty to make any claim against the income, assets or capital of the other including any claim against the other’s pension or business.’

	Did CMED have the jurisdiction to consider an application by the PWC for CS maintenance?

25.	Article 5 of the Child Support (Northern Ireland) Order 1991, as amended, is headed ‘The duty to maintain’ provides that:

‘(1)  For the purposes of this Order, each parent of a qualifying child is responsible for maintaining him.

(2)  For the purposes of this Order, … a non-resident parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Order.

(3)  Where a maintenance calculation made under this Order requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.’

26.	Article 7(1) of the Child Support (Northern Ireland) Order, as amended, provides that:

‘7(1)  A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Department for a maintenance calculation to be made under this Order with respect to that child, or any of those children.’

27.	Article 13 of the Child Support (Northern Ireland) Order, as amended, provides, inter alia, that:

‘13(1)  An application for a maintenance calculation made to the Department shall be dealt with by it in accordance with the provision made by or under this Order.

(2)  The Department shall (unless it decides not to make a maintenance calculation in response to the application, or makes a decision under Article 14) determine the application by making a decision under this Article about whether any child support maintenance is payable and, if so, how much.

(6)  The amount of child support maintenance to be fixed by a maintenance calculation shall be determined in accordance with Part I of Schedule 1 unless an application for a variation has been made and agreed.

(7)  If the Department has agreed to a variation, the amount of child support maintenance to be fixed shall be determined on the basis it determines under Article 28F(4).’

28.	Other provisions within the Child Support (Northern Ireland) Order 1991, as amended, set out the relationship between the statutory scheme for CS maintenance and private arrangements between parents.  These further provisions will be explored in more detail below.  There is no general rule, however, that CMED should refuse to consider an application for CS maintenance, for want of jurisdiction, in the circumstances such as the present, where, there was evidence of private arrangements between the parents.

29.	It is equally clear, however, that CMED are obliged to consider the application for CS maintenance, in light of all of the legislative provisions relating to such applications.  As was noted above, those legislative provisions include provision for the relationship between the statutory scheme and private arrangements between the parties.  To that extent, therefore, the Court Order and the Agreement could not be ignored and had to be taken into account in arriving at the decision.

30.	As was noted above, on 22 May 2008 a maintenance enquiry form was received in the Department from the NRP.  Attached to this maintenance enquiry form was a copy of the Court Order and Agreement referred to above.

31.	The record of the maintenance calculation decision, dated 11 June 2008, as set out in the papers which are before me, makes no reference to the Court Order or the accompanying Agreement.  For reasons which are set out below, that is not, however, fatal to the validity of the decision.

32.	I conclude that CMED did have the jurisdiction to make a decision on the application for CS maintenance which had been made on 28 April 2008 and was not precluded, by reason only of the existence of the Court Order and Agreement, from considering the application.  Whether the decision made on the application by CMED was correct will be explored in more detail below.

	Did the appeal submission deal with a fundamental issue raised by the NRP and her representative?

33.	In the letter of appeal against the decision dated 11 June 2008, and itself dated 3 July 2008, the NRP challenges the basis of the CMED decision on several grounds.  Two of these grounds relate to the Agreement which forms part of the Court Order referred to above.  In the appeal submission prepared for the appeal tribunal hearing, the response of the appeals writer to these two issues is as follows:

‘(The NRP’s) maintenance calculation was calculated in accordance with The Child Support (Northern Ireland) Order 1991 and Regulations.

The maintenance calculation is based on a fixed formula taking into account the non-resident parent’s net income and family circumstances (See Pages 6-11 of the Department’s Submission)

There is no provision within the fixed formula on which the maintenance calculation is based to consider matters such as therefore at this time there is no reason to dispute the accuracy of the decision under appeal.’

34.	I rather suspect that the wording of this response is a standard template answer which is inserted where there has been an accurate application of the ‘fixed formula’ and there does not appear to have been any other error on the part of the decision-maker.  As was noted above, in my view, CMED are obliged to consider the application for CS maintenance, in light of all of the legislative provisions relating to such applications.  As was noted above, those legislative provisions include provision for the relationship between the statutory scheme and private arrangements between the parties.  To that extent, therefore, the Court Order and the Agreement could not be ignored and had to be taken into account in arriving at the decision.  Equally consideration should have been given, in the submission prepared for the appeal tribunal hearing to the submission by the NRP that the Court Order and Agreement were relevant to the decision under appeal.  The omission by the appeals writer to address this issue does not, in my view, affect the onward jurisdiction of the appeal tribunal to consider the validity of the decision under appeal.

	Did the appeal tribunal have the jurisdiction to hear an appeal against the CMED decision of 11 June 2008?

35.	Article 22 of the Child Support (Northern Ireland) Order 1991, as amended, provides that:

‘Appeals to appeal tribunals

22.—(1) A qualifying person has a right of appeal to an appeal tribunal against—

(a)  a decision of the Department under Article 13, 14 or 19 (whether as originally made or as revised under Article 18);

(b) a decision of the Department not to make a maintenance calculation under Article 13 or not to supersede a decision under Article 19;

(d) the imposition (by virtue of Article 38A) of a requirement to make penalty payments, or their amount;

(2)  In paragraph (1), “qualifying person” means—

(a)  in relation to sub-paragraphs (a) and (b), the person with care, or non-resident parent, with respect to whom the Department made the decision;

36.	It is important to note that it was the NRP and her representative who instigated the appeal process.  By so doing, they wished to challenge the validity of the decision dated 11 June 2008 before an independent appeal tribunal.  I have already found that CMED had the jurisdiction to make the decision dated 11 June 2008.  It was a decision on an application made for CS maintenance, made under Article 13 of the Child Support (Northern Ireland) Order 1991, as amended.  Accordingly, Article 22(1) provided for a right of appeal against the decision dated 11 June 2008.

	What was the duty of the appeal tribunal?

37.	The duties of an appeal tribunal, in determining an appeal, were comprehensively analysed and reviewed by a Tribunal of Commissioners in Great Britain in R(IB) 2/04.  At paragraph 55(2) of their decision, and in referring to parallel decision-making legislative provisions in Great Britain, the Commissioners state:

‘… the appeal tribunal’s jurisdiction on the appeal is to make any decision which the Secretary of State could have made on the claim (although in doing so it need not consider any issues not raised by the appeal).  That seems to us to follow simply from (a) the decision under appeal being generally an outcome decision deciding entitlement to benefit on the claim and (b) the appeal being a full appeal by way of rehearing on fact and law.  In short, the appeal tribunal either upholds the Secretary of State’s decision or holds it to have been wrong: but, if the latter, it goes on to make the decision on the claim which it considers the Secretary of State ought to have made.  This may involve the appeal tribunal considering issues which have not been considered by the Secretary of State.’

38.	Although these comments were made in the context of decisions concerning entitlement to social security benefits, the principles are equally applicable to the appeal tribunal’s duties with respect to CS decisions.

39.	This guidance reminds an appeal tribunal that it must identify the decision under appeal, and decide whether that decision is correct.  In so doing the appeal tribunal may be directed by the submissions of the Department on what the decision under appeal is, on the factual, evidential and legal issues arising, on the legislative provisions and case-law applicable to the issues arising and on the correctness of the decision which has been made.  The Departmental submission, and any addenda, should be as accurate, comprehensive and useful as possible.  The submission is for direction, however, and does not negate the responsibility of the appeal tribunal to make its own examination and analysis.

	What did the appeal tribunal decide?

40.	The statement of reasons for the appeal tribunal’s decision reads as follows:

‘The Appellant has appealed against the Department’s decision of 11.6.2008 to assess child support maintenance in the sum of £50 per week from the effective date of 9.5.2008.  Following the receipt of further information and representation on the Appellant’s behalf the decision was looked at again on 16.4.2009 but the Department was unable to revise that decision of 11.6.2008 on the grounds set out at pages 12 to 14 of the Department’s written submission.

The Tribunal adopts and accepts the “Sequence of Events” as detailed at pages 4 to 6 of the written submission.  With regard to the issues raised by the Appellant the Tribunal finds as follows: -

Calculation/mortgage payments

The Tribunal is satisfied that the Child Support Maintenance has been correctly calculated in accordance with the legislation.  The information used in this calculation is outlined at pages 6-11 of the written submission.  The correct earning’s have been used on the basis that the Appellant is self employed starting from the basis of the relevant week of 2.5.2008.  We are satisfied that the Department has correctly calculated the Appellant’s net weekly income.  There is no provision in the legislation to consider mortgage payments when calculating net weekly income.

Accounts used in assessment

We are satisfied that the Department has correctly applied the legislation in this case.  It is, in our view, more appropriate to use the details for the 2006/2007 tax year in order to assess the Appellant’s net income as opposed to the previous year’s accounts as suggested by the Appellant bearing in mind that this effective date of the maintenance calculation is 9.5.2008.

Custody and liability for maintenance

The facts of this case are that although the Appellant was granted custody of the child of the marriage and responsibility for her maintenance the child lives with (the PWC) who receives child benefit on her behalf.  The Appellant concedes that she does not have shared care.  By virtue of Regulation 8 of the Child Support (Maintenance Calculation and Special Cases) Regulations (NI) 2001 she is deemed to be a non resident child giving (the PWC) the right to claim maintenance on her behalf.

Application for maintenance (QC)

This application and any subsequent assessment for maintenance is not relevant to the assessment in this case.

High Court proceedings

There is nothing in the legislation to prevent an assessment of Child Support Maintenance or a decision made in this respect being made pending any other proceedings before the High Court or otherwise.

Exclusion of maintenance by virtue of divorce settlement

There is no provision within the legislation and in particular the fixed formula to consider any agreement between the parties as to their arrangements with one another’s finance.

In his correspondence on behalf of the Appellant (the NRP’s representative) has raised a number of issues.

1.	He contends that the proceedings have no standing due to “(the PWC’s) failure to support by the neglect by him … to return Form Regulation 2(1) to The Appeals Service …”  The appeal in this case has been lodged by (the NRP) and is valid.

2.	The High Court Order in this case debars these proceedings.  There is nothing in the High Court Order which refer to child maintenance payments.  We are satisfied that there is nothing in that Order which would prevent an application being made by (the PWC) under Article 7 of the Child Support (NI) Order 1991.  The paragraph referred to above in the High Court Order is not a maintenance agreement but an agreement between the parties as to their own finances.

3.	The issues of alleged maladministration and incompetence are outside the jurisdiction of the Tribunal.

Given the above findings we are satisfied that the Department’s assessment is correct and we accordingly disallow the appeal.’

Did the statement of reasons for the appeal tribunal’s decision address, in an adequate manner, all of the issues arising in the appeal?

41.	I am satisfied that appeal tribunal’s conclusions with respect to the issues arising under its stated headings of ‘Calculation/mortgage payments’ and ‘Accounts used in assessment’ are wholly accurate and correct and I find no error with respect to these conclusions.

42.	In connection with the appeal tribunal’s conclusions under the heading of ‘Custody and liability for maintenance’ the NRP’s representative takes issue with the appeal tribunal’s conclusion that ‘The Appellant concedes that she does not have shared care.’  I note, however, that in the ‘Child Maintenance Enquiry Form’, completed and signed by the NRP on 15 May 2008, at page 8, the NRP is invited to provide details of shared care.  The section in which details of the number of nights on which each child stays overnight with the NRP could be entered remains blank.  The appellant adds that:

‘(QC) lived with me full-time until 8th January 08.  I am her legal guardian, custody awarded 2005.’

43.	I am uncertain as to whether this evidence was the basis on which the appeal tribunal concluded that ‘The Appellant concedes that she does not have shared care.’  There is no evidence available to me, however, that shared care arrangements were in place.  Accordingly, while the appeal tribunal might have clarified the evidential basis for its conclusions in this regard, I do not find its conclusions to be in error of law.  The appeal tribunal was correct to conclude that for the purposes of regulation 8 of the Child Support (Maintenance Calculation and Special Cases) Regulations (Northern Ireland) 2001, as amended, the NRP is deemed to be a NRP giving the PWC the right to claim CS maintenance.

44.	I do find the appeal tribunal’s conclusions under the headings of ‘High Court proceedings’ and ‘Exclusion of maintenance by virtue of divorce settlement’ to be problematic.  It is important to remember that this was the substantive basis on which the NRP and her representative were challenging the jurisdiction of CMED to make a decision in connection with an application for CS maintenance and the jurisdiction of the appeal tribunal to question the validity of that decision.  In my view, the appeal tribunal’s reasons in paragraph 2 under the heading of ‘Exclusion of maintenance by virtue of divorce settlement’ is insufficient to explain to the NRP and her representative the legal basis on which the Court Order and accompanying Agreement did not oust the jurisdiction of CMED to consider an application for CS maintenance.  As was noted above, the legislative provisions relating to applications for CS maintenance include provision for the relationship between the statutory scheme and private arrangements between the parties.  The reasons for the appeal tribunal’s conclusions in respect of this significant issue do not explore, in sufficient detail, the legislative basis upon which the Court Order and accompanying Agreement did not oust the jurisdiction of CMED to consider an application for CS maintenance.  I would note, however, that the similar errors were made in the record of the original decision on the application for CS maintenance and in the appeal submission prepared for the appeal tribunal hearing.  I find that the failure to set out its conclusions on a significant issue, in sufficient detail, renders the decision of the appeal tribunal, to that extent, as being in error of law.

What is the basis of my power to make the decision which the appeal tribunal ought to have made?

45.	As was noted above, the duty of the appeal tribunal was to identify the decision under appeal, and decide whether that decision is correct.  Article 25(3)(a) and (b) of the Child Support (Northern Ireland) order 1991, as amended, provides that:

‘(3)  Where a decision is set aside under paragraph (2), the Child Support Commissioner may—

(a)  if he can do so without making fresh or further findings of fact, give the decision which he considers should have been given by the appeal tribunal;

(b)  if he considers it expedient, make such findings and give such decision as he considers appropriate in the light of those findings; …

What is my decision?

46.	As was noted above, I have concluded that the appeal tribunal’s conclusions under the headings of ‘Calculation/mortgage payments’, ‘Accounts used in assessment’, and, subject to my discussions and analysis above, under the heading of ‘Custody and liability for maintenance’ are wholly accurate and correct and I find no error with respect to these conclusions.  I accept and adopt these conclusions.

47.	With respect to the substantive issues of the relationship between the Court Order and accompanying Agreement and the application for CS maintenance, my decision is as follows.

48.	Article 7(10) of the Child Support (Northern Ireland) Order, as amended, provides that:

‘(10)  No application may be made at any time under this Article with respect to a qualifying child or any qualifying children if—

(a)  there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order made before a prescribed date, in respect of that child or those children and the person who is, at that time, the non-resident parent; or

(aa) a maintenance order made on or after the date prescribed for the purposes of sub-paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with and including the date on which it was made.’

49.	Article 10(11) of the Child Support (Northern Ireland) Order, as amended, provides that:

‘ (11) In this Order “maintenance order”, in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under—

(b) Part III of the Matrimonial Causes (Northern Ireland) Order 1978;
(c) the Domestic Proceedings (Northern Ireland) Order 1980;
(d) Part IV of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989;
(da) Schedule 15, 16 or 17 to the Civil Partnership Act 2004;
(dd) Schedule 1 to the Children (Northern Ireland) Order 1995; or
(e) any other prescribed statutory provision, and includes any order varying or reviving such an order.’

50.	By regulation 1 of the Child Support (Applications: Prescribed Date) Regulations (Northern Ireland) 2003 the date prescribed for the purposes of Article 7(10)(a) of the Child Support (Northern Ireland) Order 1991 is 3 March 2003.

51.	It is clear, straight away, that Article 7(10)(a) has no application in the instant case.  There is no evidence of there being in existence, before 5 April 1993, a written maintenance agreement, or before 3 March 2003, (the prescribed date), a maintenance order, in respect of the QC.

52.	I turn now to Article 7(10)(aa).  Is there in existence, and made after 3 March 2003, (the prescribed date), a maintenance order in respect of the QC, but has been so for less than the period of one year beginning with and including the date on which it was made?  If there is then Article 7(10)(aa) operates to prevent the making of an application for CS maintenance.

53.	As was noted above, in the papers which are before me is a copy of a Court Order and accompanying Agreement.  As was also noted above, the Court Order is dated 4 August 2008.  The Accompanying Agreement is dated as having been made on 21 March 2006.  The date of the application for CS maintenance was 28 April 2008 and the date of the decision by CMED in connection with that application was 11 June 2008.  I conclude, therefore that there was not in existence, at the date of the application for CS maintenance, and at the date of the decision of CMED in connection with that application, a maintenance order in respect of the QC.  If the Agreement was made on 21 March 2006, then it is not in existence for less than a year, at the relevant dates, for the purposes of Article 10(7)(aa).  If the Court Order was made on 4 August 2008, then it was not in existence at the date of the application for CS maintenance or the date of the decision on that application.

54.	As was noted above, the decision dated 11 June 2008 was reconsidered by a decision-maker, on 16 April 2009 who refused to revise the original decision.  By 16 April 2009, CMED were certainly aware and had a copy of the relevant agreement, and had been advised that this had been made the subject of a Court Order.  A question arises as to whether the two documents – the Court Order and the Accompanying Agreement – should have been considered by the CMED decision-maker on 16 April 2009, and whether, as a result, the decision dated 11 June 2008 should have been revised?

55.	The answer to that question is ‘no’.  Why?  Firstly, as was noted above, the Agreement accompanying the Court Order, would have made no difference to the potential application of Article 7(10)(aa) as it was made on 21 March 2006 and, accordingly, it was not in existence for less than a year, at the relevant dates, for the purposes of Article 10(7)(aa).  Secondly, while regulation 3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, permits a decision of the Department to be revised, regulation 3(9)(a) provides that:

‘(9) Paragraph (1) shall not apply in respect of—

(a) a relevant change of circumstances which occurred since the decision had effect …’

56.	The decision dated 11 June 2008 took effect from 9 May 2008.  The coming into existence of the Court Order on 4 August 2008 was, accordingly, a relevant change of circumstances since the decision had effect and the decision-maker, on 16 April 2009, was precluded by the operation of regulation 3(9)(a) from taking those new circumstances into account when making a decision as to whether the decision dated 11 June 2008 should be revised.

57.	For these reasons, I conclude that Article 7(10)(aa) has no application in the instant case and does not operate to prevent the making of an application for CS maintenance.

58.	I note that in the proceedings before the appeal tribunal, and in the proceedings before me, there was much discussion as to whether the Court Order, and accompanying Agreement, satisfied the definition of ‘maintenance order’ set out in Article 10(11) of the Child Support (Northern Ireland) Order, as amended.  It is now the case that this is a matter which I am not required to consider.  I am of the view, however, that the Court Order, and accompanying document does not satisfy the definition of ‘maintenance order’ set out in Article 10(11) of the Child Support (Northern Ireland) Order, as amended.

59.	There are two reasons for that conclusion.  Firstly, to satisfy the definition, the relevant order has to have been made under one of a number of pieces of legislation set out in Article 10(11).  It is not clear to me that the relevant Court Order was made under any of those provisions.  Further, and more importantly, the maintenance order has to be one which ‘… requires the making or securing of periodical payments to or for the benefit of the child’.  The proper approach to the interpretation of putative maintenance orders, in light of the meaning of Article 10(11) was considered by the Child Support Commissioner in Great Britain in CCS/316/1998, at paragraphs 11 to 13 of that decision.  Although the Commissioner was considering the meaning of section 4(10) and 8(11) of the Child Support Act 1991, as amended, these provisions are worded in identical terms, with appropriate adjustments for the relevant statutes, under which the order must be made, to Article 7(10) and Article 10(11) of the Child Support (Northern Ireland) Order 1991, as amended.  Applying the principles put forward by Commissioner Jacobs to the facts of the present case, it cannot be said that the relevant Court Order and accompanying Agreement require the making or securing of periodical payments to or for the benefit of a child.  In my view, the Agreement is more general nature, making provision for the proper distribution of the assets of the marriage, between, the NRP and PWC, on the dissolution of that marriage.

60.	I have, therefore, set out the proper legal basis upon which the appeal tribunal should have addressed the relationship between the Court Order and accompanying Agreement, and the application for CS maintenance.  As noted above, I accept that the remainder of the decision-making process undertaken by the CMED decision-maker and the appeal tribunal was wholly accurate.

	Other issues arising in the appeal

61.	The NRP’s representative raised a number of additional issues in connection with the application for leave to appeal which I consider and determine as follows.

62.	The first relates to the accuracy of the record of proceedings for the appeal tribunal hearing.  The NRP’s representative contended that the record which was produced to him and the NRP was not a proper record, omitted salient matters and, accordingly, the appeal tribunal proceedings were improperly conducted.

63.	Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.’

64.	In C48/99-00(DLA), the Chief Commissioner stated, at paragraph 16:

‘… there is no obligation to make a verbatim record of all that does occur at a Tribunal hearing although the record should summarize all relevant evidence and also note any written evidence and submissions that are received by the Tribunal during the hearing.  It is difficult for a Commissioner, who has only jurisdiction to decide appeals on points of law, to rule on whether something occurred or did not occur at a Tribunal hearing.  In light of my findings on ground (iv) I do not consider it necessary or constructive to pursue this issue any further save to emphasize that a Tribunal has an obligation to summarize all relevant evidence and also to note that any particular written evidence or submissions were received by the Tribunal during the hearing.’

65.	In R(DLA) 3/08, a Tribunal of Commissioners in Great Britain considered the extent of the requirements in connection with the making of a record of proceedings.  In summary, the tribunal determined that:

(i)	a tribunal’s record of proceedings should be a record of what happened and in addition to indicating the evidence taken, should include a record of any procedural application and its result (paragraph 6);

(ii)	it is good practice to include a brief note of any submissions made (paragraph 10);

(iii)	the duty to make a record of proceedings does not extend to making a note of the tribunal’s deliberations (paragraph 26);

(iv)	the record of proceedings must be intelligible or capable of being made intelligible to those to whom it is issued (paragraphs 13 and 14);

(v)	a failure to comply with regulation 55 will not necessarily render the tribunal’s decision erroneous in point of law; the failure to comply must be material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice.  In so far as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed (paragraph 27).

66.	It has already been conceded by Mrs Doran that the factual inaccuracies in the record of proceedings in the present case do not render the appeal tribunal’s decision to be in error of law.

67.	The usual manner in which a record of proceedings is made is that it is recorded, in writing, by the LQPM of the appeal tribunal, on a form especially created for that purpose.  The task of completion of a record of proceedings, as part of the general conduct and procedure for the oral hearing, is not an easy one for the LQPM, particularly where the oral hearing is lengthy; where there is considerable oral evidence to be taken; where the questioning of the appellant and any other witnesses is undertaken by other members of the appeal tribunal; where detailed submissions are made on behalf of the appellant by a representative; and where there is cross-referencing to other documentation contained in the appeal papers or provided as part of the appeal hearing.  The recording difficulties are exacerbated where the LQPM is also asking relevant questions of a witness, or where the LQPM is the sole member of the appeal tribunal.

68.	Nonetheless, the LQPM should endeavour to ensure that the record in writing is as accurate as possible, in line with the principles outlined in C48/99-00(DLA), and R(DLA) 3/08.  As far as possible, the process should not be rushed, and clarification of particular evidence, in relation to medical treatments and medication regimes, for example, should be sought.  Fundamental errors, such as the inaccurate recording of marital status, should be avoided.  The record should contain details of submissions made, applications sought, and their outcome, and other interventions, both planned and untoward.  The latter could include, for example, episodes of distress on the part of the appellant or other witness, or brief adjournments.

69.	In this jurisdiction, where a request for a copy of the record of proceedings is made, under regulation 55(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the usual procedure is that the hand-written copy, as recorded on the day of the appeal tribunal hearing, is typed up and checked for inaccuracies by the LQPM.  The provision of a typed-up copy of the record of proceedings is of considerable advantage to the party to the proceedings seeking the same, and avoids problems associated with legibility of hand-writing.  It is possible that some factual inaccuracies are the result of the misinterpretation of hand-writing during the typing-up process.  Once again, LQPMs should endeavour to ensure that the final version which is to be forwarded to a party to the proceedings is accurate and in conformity with what was actually recorded on the day.

70.	In any event, the NRP’s representative has produced, as part of the application for leave to appeal to the Child Support Commissioner, a copy of a corrected record of proceedings which, he submits, amounts to a more proper record.  Accordingly, I have had the advantage of considering all of the issues which the NRP’s representative submits were properly submitted.  In that regard, I note that the NRP’s representative himself has made an error.  He has corrected ‘Article 7’ to ‘Article 6’.  The reference by the appeal tribunal was to Article 7 of the Child Support (Northern Ireland) Order 1991.  It is clear that the NRP’s representative has mistakenly assumed that the reference was, in fact, to a clause in the Agreement of 21 March 2006, namely Clause 6.

71.	I conclude, however, that there is no error in law in how the record of proceedings for the appeal tribunal hearing was completed.

72.	The NRP’s representative has submitted that the appeal to CMED, against the decision dated 11 June 2008 was not, as was submitted by CMED, late.  There is no doubt that the NRP’s representative was put to a great deal of inconvenience in having to persuade CMED on this point and to await a ruling by the LQPM as to whether the appeal could be admitted.  It is the case, however, that the appeal was eventually admitted and no injustice, in terms of law, was done.

73.	The NRP’s representative has set out, in very strong terms, a grievance that the Department undertook action to seek enforcement of the decision dated 11 June 2008, while appeal proceedings in connection with that decision were pending before the appeal tribunal.  Enforcement proceedings are a matter for the Department and do not come within the jurisdiction of the Child Support Commissioner.  I am of the view that there is some substance to the point which is being made by the NRP’s representative in connection with this issue.  I do not understand why the Department would seek to enforce a decision, the validity of which was being challenged in appellate proceedings.  Unfortunately, however, that matter does not come within my jurisdiction.

74.	The NRP’s representative was also aggrieved that the decision on the initial application for leave to appeal to the Child Support Commissioner would be considered by the same LQPM who heard and determined the appeal itself.  In the view of the NRP’s representative that offended the principles of natural justice.

75.	Regulation 11 of the Child Support Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides;

‘Application to a Commissioner for leave to appeal

11.—(1) An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.’

76.	In regulation 4 of the same regulations, ‘chairman’ is defined as follows:

 ‘“the chairman” for the purposes of regulations 10, 11 and 12 means—

(i) the person who was the chairman or sole member of the appeal tribunal which gave the decision against which leave to appeal is being sought;’

77.	Accordingly, the application for leave to appeal had to go the LQPM who had heard and determined the appeal.  There is no error in law in this regard.

	Disposal

78.	The decision of the appeal tribunal dated 15 September 2009 is in error of law.  I exercise the power conferred on me by Article 25(3)(b) of the Child Support (Northern Ireland) Order 1991, as amended, to give the decision which the appeal tribunal should have given.  My revised decision is that the decision of CMED, dated 11 June 2008, to the effect that the NRP was liable to pay weekly CS maintenance of £50.00 per week from the effective date of 9 May 2008, is confirmed.

(signed):  K Mullan

Chief Commissioner

17 October 2011