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[1999] UKSSCSC CCS_1535_1997 (09 March 1999)
THE CHILD SUPPORT COMMISSIONERS Commissioner's Case No: CCS/1535/1997 CHILD SUPPORT ACTS 1991 AND 1995 APPEAL FROM A DECISION OF A CHILD SUPPORT APPEAL TRIBUNAL ON A QUESTION OF LAW DECISION OF THE CHILD SUPPORT COMMISSIONER MR COMMISSIONER JACOBS


 


Decision:

1. My decision is that the absent parent's appeal against the decision of the Child Support Appeal Tribunal given on 22nd January 1996 has lapsed.

The parties

2. In the terminology of the child support legislation, the appellant is the absent parent and the second respondent is the parent with care. I shall refer to them in those terms. The qualifying child is Helen.

The appeal to the Commissioner

3. This is an appeal to a Commissioner against the decision of the tribunal brought by the absent parent with the leave of a Commissioner. At first, the child support officer submitted that the decision under appeal was not wrong in law. Both the absent parent and the parent with care commented on that submission. In response to a direction from me, the child support officer resiled from part of the earlier submission and now supports the appeal. The absent parent has commented on this further submission. The parent with care has said that she has no further comment to make.
4. This is another case which shows the problems that can be produced by the child support adjudication procedures. The issues are best unravelled in chronological order. I am grateful to the child support officer for providing a clear history of the case. It would help Commissioners if a short history of the case was provided by child support officers on all appeals.

The initial maintenance assessment

5. A child support maintenance assessment was made requiring the absent parent to pay £24.71 a week from the effective date of 28th February 1994.

The section 18 review of that submission

6. In July 1994, the absent parent applied for a review of that assessment. Among other matters, he said that Helen had completed her examinations and had left college, although term had not yet ended. He also said that in late June 1994 she had ceased living with the parent with care and had moved to live with her boyfriend.
7. In January 1995, the child support officer notified the absent parent that the decision had been reviewed but that it was not made in mistake or ignorance of fact and was not wrong in law. The grounds mentioned are those which have to be satisfied before a review can be undertaken: see section 18(6) of the Child Support Act 1991. So, it is contradictory to say that there was a review, but that the grounds for review were not established. Nevertheless, the effect of the child support officer's decision is clear. The child support maintenance assessment was left unchanged.

The first appeal to the tribunal

8. In February 1995, the absent parent appealed to a tribunal against this decision. One of the points that he made was that Helen had left the parent with care's home and was living with her boyfriend.

The closure of the case - Helen ceases to be a qualifying child

9. In March 1995, the case was closed because Helen had ceased to be a qualifying child on 22nd July 1994. I assume that the case was closed, because the assessment had ceased to have effect under paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991, which applies when

"on there no longer being any qualifying child with respect to whom it [the assessment] would have effect".

Although on its wording this provision takes effect automatically, the Secretary of State must still refer the question of whether it applies to a child support officer who gives a termination decision: see regulation 52 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. This decision is subject to review under section 18 of the Child Support Act 1991.

10. This assumption is supported by the background note to the closing of the case. It records that although Helen left her mother's household in June, she was still considered to be in full-time education until 22nd July 1994. The officer's reasoning is confused. It is possible in law for Helen to remain a "qualifying child" after she ceased her studies. However, if while Helen was a qualifying child her mother ceased to be her parent with care, the assessment should have been cancelled from the date when Helen ceased to have her home with her: see section 3(2)(a) of, and paragraph 1(4) of Schedule 1 to, the Child Support Act 1991.

The effect of the closure of the case on the tribunal's jurisdiction

11. The appeal came before the tribunal in January 1996. The record of decision recorded that

"As the question of Helen leaving college has not yet been reviewed this Tribunal does not have jurisdiction to consider that point further."

12. Section 20A of the Child Support Act 1991 deals with the effect of certain decisions made while an appeal is pending. It came into force on 18th December 1995. This case was closed by a termination decision in March 1995. So, section 20A does not apply. Even if section 20A had been in force, it would not have applied. It only applies to decisions made under section 19. Termination decisions are made under regulation 52 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. They are not made on review.
13. The question arises: what was the effect, if any, of the termination decision on the tribunal's jurisdiction?
14. This question was considered in the social security jurisdiction before the introduction of what is now section 29 of the Social Security Administration Act 1992 (the equivalent of section 20A). Decisions on adjudication questions in the social security jurisdiction do not automatically apply in the child support jurisdiction. Those questions have to be answered in the context of the child support legislation. However, although social security decisions do not automatically apply to child support, they do apply to this question. The reasoning on which they are based is applicable and there is nothing in the child support legislation before 18th December 1995 that dealt with the question or required a different answer from that reached in the social security cases.
15. In order to answer the question, it is necessary to determine the effect of the termination decision on the decision under appeal. The decision under appeal confirmed the initial maintenance assessment. That assessment provided that the absent parent was liable to pay a specified amount of child support maintenance from 28th February 1994. The assessment had no end date. It would run until another decision took over from it. If that other decision gave effect to a change of circumstances, it would make finite (that is, bring to an end) the period covered by the initial assessment. In other words, the initial maintenance assessment remained an effective assessment in all respects except that the period to which it applied was now fixed rather than open-ended. In these circumstances, there remained a decision which the tribunal could consider. In principle, there was no reason why the appeal should not proceed, but limited to the period set by the subsequent termination decision. This is the same conclusion as that reached by the Commissioner in R(P) 1/82, paragraph 3.
16. The termination decision declared that the assessment had ceased to have effect on 22nd July 1994. The tribunal had no jurisdiction over that decision. It had not been subject to an application under section 18 of the Child Support Act 1991 (so far as I know) and, unless and until a decision had been given on the question under that section, no appeal could be made to the tribunal. It may be that the absent parent's application for a section 18 review, which referred to Helen having left home to live with her boyfriend, should have been dealt with as an application for a termination decision to be made. However, it was not and, by the time the case came before the tribunal, the question had been dealt with by a separate decision. So, the period over which the tribunal had jurisdiction was from 28th February 1994 to 22nd July 1994. However, the tribunal was not obliged to accept that the maintenance assessment should continue throughout that period. If the evidence showed that the assessment had ceased to exist for some other reason on an earlier date, the tribunal was entitled to direct that a termination decision be given from that date, even if this rendered superfluous the termination decision given in March 1995.
17. The tribunal was correct to decide that it had no jurisdiction to deal with the question of when Helen left college, because that was dealt with by the termination decision. However, it was wrong in law for failing to consider whether the maintenance assessment ceased to have effect from an earlier date. It was wrong in law for failing to decide when Helen left her mother's home. I agree with the further submission of the child support officer on this point.

The implementation of the tribunal's decision

18. Although the tribunal did not deal with the question of Helen leaving home, it did deal with other questions on which it gave directions to the child support officer. One of those questions was the absent parent's housing costs. The tribunal decided that those costs had been correctly calculated. The tribunal's decision must be read as directing the child support officer that the absent parent's housing costs were as previously determined.
19. The child support officer conducted a review and gave a fresh decision under section 18. That decision was given on 9th March 1996, It was intended to implement the tribunal's directions, although it has been suggested that it did not do so in all respects.

The second appeal

20. As the fresh decision was given under section 18, it was possible to appeal against that decision. This the absent parent did. One of the questions raised on the appeal was the amount of the absent parent's housing costs. Although the tribunal's Decision Notice recorded that it accepted the absent parent's evidence on housing costs, the decision directed:

"Investigation to be conducted and enquiries made as to the appellant's housing costs with particular reference to his fuel and meal costs."

21. Following that appeal, the child support officer made further assessments from the effective date of 28th February 1994. In other words, the period covered by this decision was the same as that covered by the initial assessment in combination with the termination decision.

The effect of the second appeal on the Commissioner's jurisdiction

22. The question arises: what was the effect, if any, of the second appeal on the Commissioner's jurisdiction?
23. Applying the principles developed in the social security jurisdiction, the effect of the second appeal was to replace completely the initial assessment. This assessment was the ultimate subject of the first appeal. As it no longer exists, the foundation of the appeal to the Commissioner is removed. So, the appeal has lapsed and there is no appeal over which I can exercise jurisdiction. See the decision of the Tribunal of Commissioners in R(A) 5/89, paragraph 18(iii).
24. This is an unsatisfactory result, because (i) it leaves unresolved a question that the absent parent has been raising for almost 5 years and (ii) it recognises that the same question may be raised repeatedly until a party achieves an acceptable decision. In so far as this is to the absent parent's disadvantage, he is the author of his own misfortune, having made the second appeal and thereby set in train the events that produced this result. However, there are more important issues at stake here than the personal feelings of the absent parent. The circumstances of this case exemplify features of the child support scheme that have been criticised. It has been said that the structure of child support adjudication is inefficient, causes lengthy delays, and can be used to prevent a question ever being finally resolved. In short, the adjudication procedures have produced institutionalised delay and uncertainty. So, I have considered whether it is possible and desirable to avoid the conclusion that the appeal has lapsed.
25. In a court which was exercising an adversarial approach to the proceedings, this case would raise questions about the twin branches of that part of the law of estoppel that is still known by its Latin tag of res judicata. They are issue estoppel and cause of action estoppel: see the judgment of Lord Justice Diplock in the Court of Appeal in Thoday v. Thoday [1964] 1 All England Law Reports 341 at page 352. They prevent issues being raised again and again. Their rationale was summarised by Lord Upjohn in the House of Lords in Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd (No 2) [1966] 2 All England Law Reports 536 at page 572:

"they [sic] should be an end to litigation and justice demands that the same party shall not be harassed twice for the same cause."

26. In those cases where a court takes an inquisitorial approach to the proceedings, res judicata does not apply, but the courts have developed a similar approach relying on the court's discretion as to how the case is conducted. The courts try to achieve a balance between the competing considerations such as the importance of finality, the importance of the issue, and the basis on which the findings of fact were first made. See the judgment of Mrs Justice Hale in Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 Family Law Reports 285 at pages 295 to 296. This approach is most developed in cases involving children.
27. As tribunals are required to take an inquisitorial approach to the proceedings, estoppel does not apply. However, tribunals proceed by way of analogy with estoppel: see the decision of the Tribunal of Commissioners in R(I) 9/63, paragraph 24. So close is the analogy that Commissioners' decisions regularly omit any reference to analogy, referring directly to estoppel as laid down by the courts in adversarial cases.
28. The child support legislation sets the context in which any need for the development of rules by analogy with estoppel has to be identified and any rules developed.
29. The child support legislation places a duty on child support officers and tribunals to find the material facts and determine how the law applies to those facts. No principle developed by the courts or the Commissioners have change or dispense with that duty. See the decision of the Commissioner in R(CS) 2/97 and the authorities there relied on. However, within that duty there is scope to contain within appropriate limits the potential for the same question to be raised again and again.
30. Once a decision has been given by a tribunal, there are a number of ways in which a party may continue to challenge the tribunal's decision on a particular question.
31. The party may apply for leave to appeal to a Commissioner. Commissioners have a discretion whether or not to grant leave. Commissioners have also developed the principle that an appeal to a Commissioner must relate in some way to the tribunal's decision. If the tribunal's decision has been implemented in a fresh assessment, no appeal lies to the Commissioner simply on the ground that the applicant does not like a part of the assessment that was not covered by the tribunal's decision. See the decision of the Commissioner in CCS/12072/1996, paragraph 4, as explained by the Deputy Commissioner in CCS/656/1997, paragraph 8(g)(i).
32. If the party does not pursue an appeal to a Commissioner, the same question can be raised before a child support officer under section 18 or 19 of the Child Support Act 1991 or on appeal before a tribunal. A case that raises again a question that has already been determined is not on a par with a case that raises a question for the first time. Whether the case is being considered by a child support officer or by a tribunal, a party must expect a sceptical attitude to any changes in testimony and will have to explain why any fresh documentation was not produced before.
33. Under sections 18 and 19 there are thresholds to be met before a review can be conducted: see "reasonable grounds" under section 18(6) and "suspects that it may be defective" under section 19(1). On appeal to a tribunal, the threshold in section 18(6) will always be open for consideration. Even if the threshold is met, the final decision must be made after considering the whole of the evidence, including that previously available, and the evidence must be weighed in the context of the history of the case.
34. If an appeal is made to a tribunal on a question that has been dealt with by an earlier tribunal, there are a number of procedural matters that should be considered. If the appeal was against the child support officer's implementation of the earlier tribunal's decision, the proper way to proceed is by appeal to a Commissioner. The tribunal should advise the party to apply for leave to appeal to a Commissioner. Moreover, on all appeals to a tribunal, the appeal must contain a summary of the arguments relied on to support the contention that the decision was wrong: see regulation 3(9) of the Child Support Appeal Tribunals (Procedure) Regulations 1992. A chairman may give directions for further particulars or documents to be produced under regulations 3(11) and 5(1) in order to be sure that the party is putting forward some argument for saying that the decision was wrong and that the fullest evidence is before the tribunal. If the appeal is made out of time, the fact that the question raised has previously been determined by a tribunal is a relevant factor to take into account under regulation 3(6).
35. Tribunals are often at a disadvantage in taking the approach that I have suggested. They are not always given a complete history of the case. Previous tribunal decisions are often not mentioned. If they are, the record of proceedings is not always provided and the evidence that was before the tribunal is seldom identified. If tribunals are to deal appropriately with cases where the same question has been raised again, they must be given the necessary information on which to do so.
36. So, the child support legislation and the approach of the Commissioners have the potential to minimise the effects of the same question being raised again and again. It is not possible, short of an injunction, to prevent a party raising a question that has already been determined. Once the question has been raised a proper approach to the evidence and attention to procedural filters on appeals can reduce the delay and uncertainty that would otherwise occur. This can also ensure that a full reconsideration of the question is reserved for those cases in which a sound and credible case has been made that the earlier decision might be wrong.
37. It may seem superficially attractive to bar from further determination a question that has already been dealt with. However, the problems caused by unravelling decisions that have been made have to be weighed against the advantages that would be attained. In this case, it would be necessary to remove the change in the housing costs from the assessment that was made following the second appeal. That would involve a further change in the absent parent's liability. Only when it had been done would it be possible to know if the appeal to the Commissioner had lapsed. There is also the question of jurisdiction to remove the housing costs element. The tribunal's decision which led to the change in the housing costs is not before me. So far as I know, no appeal was made against that decision. There is no basis on which I could decide that part of that decision was made without jurisdiction.
38. So, my conclusion is that it is neither necessary nor desirable to develop a principle by analogy with res judicata in order to contain the problems causes by the power to raise again a question that has already been determined.

Summary

39. The appeal to the Commissioner has lapsed because of the second appeal to the tribunal and the decision given on that appeal. I have dealt with the question of the proper termination date for the assessment, because this is the only issue of any substance raised by the absent parent on the appeal to the Commissioner and in order to emphasise that this question is outstanding.

Signed: Edward Jacobs

Commissioner

Date: 9th March 1999