PLH                                                                         Commissioner's File:  CCS 1440/04

	CHILD SUPPORT ACTS 1991-1995

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

Appellant: 	[the absent parent]
Respondents:	(1) Secretary of State
			(2) [the parent with care]
Appeal Tribunal: 	Colchester
Tribunal Case Ref:  
Tribunal date:	22 October 2003
Reasons issued:	6 January 2004

     1.     	This appeal by the absent parent succeeds, as in my judgment the Colchester appeal tribunal consisting of a chairman sitting alone on 22 October 2003 was in error in law in the decision it gave, that the maintenance assessment for his two children should be recalculated from the effective date of 22 February 2002 so as to be based on an assumed net income of £114.71 per week by way of departure from the formula assessment which had been based on a weekly net income of £60.48.  The tribunal’s error was in apparently basing its assessment of the absent parent’s outgoings and lifestyle on some calculations produced in evidence showing only the couple’s budgeted outgoings at an earlier period when they were still living together.  This led to a lack of sufficiently clear findings as to what the absent parent's actual lifestyle and outgoings were at the material time after the separation and as at the effective date of the assessment.  
     2.     	I set the decision aside, and although I am sorry to have to impose on the parties and the tribunal the additional burden of a further hearing into the facts as they were well over two years ago now, I am afraid I can see no alternative to doing so in the interests of fairness to all concerned.  The material before me and the existing tribunal’s findings are simply not adequate to enable me safely to give the final decision in the case for myself.  I accordingly remit the case for rehearing to a freshly constituted tribunal, and as that will be a complete rehearing of all relevant factual issues I decline the request by the parent with care in her reply observations dated 17 August 2004 for an oral hearing of this present appeal, since the course I am taking will give her the opportunity she seeks to make further points on the facts before the tribunal which will actually decide them.
     3.     	These proceedings concern two young people now aged 12 and 7, whose parents were married in 1989, separated in 1993/94, got back together and separated finally in November 2001.  Their father is a musician who has been the drummer in a group for some 25 years and has also done session work and jobs such as driving for other musicians.  He and the children’s mother had known one another for a number of years before they got married:  she had a business of her own, supplying T‑shirts and other similar material for customers such as the group.  The children’s father was frequently away on tours, and as is not unusual in that business, his earnings seem to have fluctuated so that the two of them found it hard to make ends meet even while they were still together:  after they parted, he initially paid her £40 a week towards the children’s maintenance but according to his evidence found this a struggle as his income took a downturn and he started to get into financial difficulties.  
     4.     	By the time a child support assessment was applied for and calculated with effect from 22 February 2002, the relevant figure for his net income based on the earnings and deductible outgoings he disclosed was £60.48 a week which resulted in an assessment of only £5.40 a week for the two children from the effective date.  On 11 November 2002 the children’s mother applied for a departure direction on the basis that his actual lifestyle was inconsistent with the level of income used for the formula calculation, and also that his housing costs were unreasonably high.  That latter aspect was not pursued when it became apparent that no housing costs had in fact been allowed in the formula assessment, and the case proceeded only on the “lifestyle inconsistent” ground.
     5.     	For the purposes of the comparison required to be made under regulation 25 Child Support Departure Direction and Consequential Amendments Regulations 1996 SI. No. 2907 there is I think no doubt that what has to be looked at is the “level of income required to support the overall lifestyle” of the absent parent at the time from which the current assessment based on the formula calculation of income is effective, and not for some earlier period or at some earlier date.  Consequently I have I think to accept the combined submissions of the absent parent and the Secretary of State in this case that the tribunal chairman misdirected himself by apparently basing his decision in favour of making a departure direction on a comparison between the income level used for the formula assessment effective from 22 February 2002 and the assumed outgoings and lifestyle of the children’s father based, not on evidence of these as they actually stood at that date when the parents had been separated for some months, but on evidence of what had been the couple’s joint outgoings at an earlier period, while they were still living together and before the separation had taken place; which the decision then attempted to apportion notionally between the two parents so as to come up with an assumed figure for the father’s “share”.  
     6.     	I agree with the Secretary of State’s submission that it is really not possible to read the tribunal’s explanation of its reasoning process in the statement issued to the parties on 6 January 2004 at pages 120 to 121 in any other way, and that the decision does appear to have been based by the tribunal on documents produced by the children’s mother which were domestic budgets prepared in the course of the couple’s financial planning back to 1997, when of course they were still living together.  That is borne out by what the tribunal itself said as the basis for making a departure direction:  
“The tribunal accepted [the father’s] evidence that the parties' lifestyle was funded by payments very similar to those listed in the 1997 schedule.  … [the parents] between them had to find … £175 per week.  [The mother] had a fairly steady income of about £2,500 per year or £50 per week from her T‑shirt business.  [The father] therefore needed £125 per week to support his lifestyle.  … the tribunal found that an income of £125 a week … was needed to support [his] lifestyle.  Since that lifestyle embraces pension contribution it was fair to allow the appropriate deduction for that expense, so that [his] income for calculation purposes was £114.71 instead of £60.48.  … the tribunal considered that a departure direction in those terms would be just and equitable and directed accordingly.”
     7.     	As appears from that passage,  the tribunal does not seem to have differentiated sufficiently between the lifestyle being carried on by the couple at the earlier happier stages of their relationship, and that carried on by the father alone after the separation, which was of course the relevant one for comparison with the income figure used in the assessment.  (Oral evidence had in fact been given by the father of what his own payments had been in February 2002 though puzzlingly this is not referred to: pages 114 to 115).  At the very least, there are insufficient findings and insufficiently clearly explained reasons as to what the tribunal found the father’s lifestyle at that latter point to be actually costing, and how or why this was inconsistent with the declared figures used in the formula assessment.  No argument to the contrary has been put forward by the children’s mother, whose observations are confined to detailed points on the facts and what she says are inconsistencies in the evidence of the children’s father. 
     8.     	For those reasons, I accept the submissions of the father and the Secretary of State and remit the case for rehearing as already indicated.  I direct the new tribunal that it is only concerned with the question of comparison of lifestyle as at the material period after the separation had taken place:  what is relevant is the actual lifestyle of the father at that time and how it was being funded, and whether the level of income required to support it was substantially in excess of that on which the formula assessment was based.  The appeal is allowed and the case remitted for rehearing accordingly.

(Signed)

P L Howell
Commissioner
7 October 2004