THE CHILD SUPPORT COMMISSIONERS
Commissioner's Case No: CSCS/16/03
CHILD SUPPORT ACTS 1991 AND 1995
APPEAL FROM THE EDINBURGH CHILD SUPPORT APPEAL TRIBUNAL UPON A QUESTION OF LAW
DEPUTY COMMISSIONER: SIR CRISPIN AGNEW OF LOCHNAW BT QC
Oral Hearing
Appellant:
1st Respondent: Secretary of State
2nd Respondent:
Tribunal: Edinburgh Tribunal Case No: 
DECISION OF DEPUTY CHILD SUPPORT COMMISSIONER
Decision
1.	I hold that the application for leave to appeal is competent. I grant leave to appeal to the Commissioner. All parties have agreed that if I grant leave to appeal that I should deal with the appeal on the merits. I hold that the tribunal erred in law. I remit the appeal to a differently constituted tribunal to re-hear the appeal, having regard to the directions I give hereafter. 
Competency
2.	A preliminary competency point arose in that the appellant applied for a statement of reasons, but none was provided. The chairman was asked, at the same time as the reasons were requested, either to set the decision aside or for leave to appeal. Both the set aside application and the leave to appeal to the Commissioner were refused. As no Statement of Reasons had been issued, I consider that it was incompetent for the Chairman to have considered the application for leave to appeal. That said, in consequence of the refusal of leave to appeal, the appellant applied to the commissioner for leave to appeal. 
3.	While it might be said that it is incompetent to apply to the Commissioner for leave to appeal, absent a Statement of Reasons, I consider that such an application is competent. I adopt the reasoning of Mr Commissioner Rowland in R(IS) 11/99. 
Leave to appeal
4.	Having heard submissions, I consider there was an arguable point of law in relation to how the factor in Regulation 30(1)(i) of the Child Support Departure Direction (etc) Regulations was to be approach. I therefore grant leave to appeal. 
Reasons for allowing the appeal
5.	All parties agreed that if I granted leave to appeal, that I should determine the appeal on the merits on the basis of the submissions of the parties. 
6.	One of the grounds of appeal was that the Chairman had not allowed the respondent [parent with care], who was representing herself, to make all the points that she wished to make. This was said not to be a fair hearing under Article 6.1 of the ECHR. The appellant at the tribunal [the absent parent] disputed this. The Secretary of State was not able to make any comment, as the Department was not represented at the tribunal hearing. I am unable to resolve this issue, in this appeal, standing the disputed facts, although it is significant that in the record of proceeding there is very little recorded as having been said by the parent with care. All I would say is that it is incumbent on Chairman, particularly where a party is representing themselves to make sure that the party understands the procedures and is given an opportunity to say everything they wish to say, subject to trying to keep the issues relevant. It was said at the hearing that the issues the parent with care wanted to raise, while they could be said to have related to the break up of the relationship, were actually being put forward as issues that might go towards assessing the reliability and credibility of the absent parent. 
7.	The appellant did not insist on her ground of appeal that there was not a fair hearing, because the absent parent had not produced details of his new wife's earnings. I consider this concession was correct, because it is for the parties to decide what evidence to lead and the inferences to be drawn from the failure to lead any evidence is a matter for the tribunal. All Article 6.1 requires, in these circumstances, is that each party should be given an equal opportunity to put before the tribunal the evidence they wish to place before the tribunal. However, as the tribunal has an inquisitorial function, the tribunal could have sought further evidence, provided it gave the parties an opportunity to comment on that evidence. 
8.	The appellant also appealed on the grounds that new evidence and material was produced at the hearing by the absent parent and she had not had time to consider the material before the hearing. It was admitted that she had not asked for an adjournment. The paper complained about is at pages 139/140. Having considered this paper, I am of the opinion that it can be classified as either written submissions or as a skeleton argument and this is how the tribunal treated it – see Record of Proceedings, where it is entered as "Summary appeal …". The appellant's solicitor accepted that it was at least a skeleton argument, but said that the lay appellant's perception of it was that it was new material. I reject this ground of appeal. 
9.	The Secretary of State suggested that the error of law was that no Statement of Reasons was issued. I do not consider that can be founded on as the error in law in the present case. As I read the reasoning in R(IS) 11/99, which I adopt, while a Commissioner can grant leave to appeal, where there is no Statement of Reasons, in the appeal, the appellant has to be able to show that there was an error of law in the tribunal's approach without recourse to the Statement of Reasons. Therefore any error has to be found within the papers that are available and in particular within the Decision Notice and Record of Proceedings. In the present case there is a fairly full Decision Notice. 
10.	I consider that an error in law can be discerned in the Decision Notice issued by the tribunal. One of the absent parent's submissions was that if the departure direction stood, he would give up work. The tribunal referred to Regulation 30(1) of the Child Support Departure Direction (etc) Regulations and Mr Jacob's annotations at page 505 of "Child Support Legislation, 1999 Ed" saying "The guidance given is that a departure direction should only be given if "fair to all concerned" and the likelihood of the parent giving up work". I consider this exhibits an error of law. 
11.	Regulation 30(1) provides that: 
"The factors to be taken into account … shall include –
(a) …
(i) whether … the giving of a departure direction would be likely to result in a relevant person ceasing paid employment."
Phrased in that way, a tribunal has to take into account the factor whether a departure direction "would be likely to result" in the person ceasing paid employment, but the weight that the tribunal give to that factor is a matter for the tribunal. I agree with Mr Jacob's annotation that the tribunal first has to assess the likelihood of the parent giving up work and that the weight to be given to this factor will depend on the strength of likelihood that the parent will in fact cease paid employment.
12.	Equally the tribunal are not precluded from taking into account other factors. In particular under section 28F(1)(b) the tribunal has to consider if it is "just and equitable" to give the departure direction and in considering whether or not it is just and equitable the tribunal under subsection (2) "shall have regard to" the factors at (a), (b) and (c). 
In Ishak v Thowfeek [1968] 1 WLR 1718, the Privy Council said of a statute that required persons to "have regard" to certain factors that:
"The requirement that the board shall "have regard" to certain matters tends in itself to show that the board's duty in respect of these matters is limited to having regard to them. They must take them into account and consider them and give due weight to them, but they have an ultimate discretion and are not bound …" to reach a conclusion based only on those factors.
I therefore also agree with the annotation that this is only one of the factors, that has to be taken into account. I go further and say that the tribunal are bound to have regard to any other relevant factors that may have been put to them by the parties, albeit the weight to be given to those factors is for the tribunal.
13.	In the present case, I consider that the tribunal have erred in law. While the tribunal has had regard to the likelihood of the absent parent ceasing to have employment and they appear to have had regard to the "just and equitable" requirement, there is nothing in the decision notice to suggest that they had regard to other relevant factors. If they did there is no explanation of how those factors were weighed in the balance. The principal additional factor before the tribunal was that his partner worked, but that she would not disclose her income. There is no reasoning as to why her notional contribution to housing costs should be disregarded in a way that left the likelihood of ceasing paid employment and the fair and equitable factor as the only factors to be considered. Indeed the third paragraph of the Decision Notice suggests that the tribunal only had regard to these two factors, because they say that "The guidance given is that a departure direction should only be given if "fair to all concerned" and the likelihood of the parent giving up work". Restricting themselves in this way was an error of law, as they are obliged to have regard to any other relevant factors, in addition to the factors that have to have regard to under the legislation. 
14.	The tribunal rehearing this appeal will therefore have to consider all the evidence and have regard the specified factors and to any other factors that they regard as relevant. The tribunal will then have to decide whether or not they can make a finding that the departure direction "would be likely to result in" absent parent ceasing paid employment. If they find that there is a likelihood of ceasing employment, then this is a factor to which they must have regard. The weight to be given to this factor and the other factors to which they must or to which they might have regard is a matter for the tribunal. Clearly the more likely the parent is to give up employment the more weight is to be given to that factor in a consideration of all the factors. 
15.	The Secretary of State also suggested that there was an error of law in that the tribunal had regard to the fact that the absent parent "might separate from his present wife". It was suggested that this was a factor that had to be disregarded under Regulation 30(2)(c), which provides: 
"(2) The following factors are not to be taken into account …
(c) the fact that the parent … has formed a new relationship with a person who is not a parent of the child …"
16.	This provision is difficult to construe. If the new relationship is to be disregarded, then it would appear that all the consequences of that relationship should also be disregarded. These would include the financial consequences including the income of the new partner or the costs of the new partner to the parent being assessed. That cannot be what was intended, because Regulation 27 provides for the partner's contribution to housing costs to be taken into account. Regulation 11 of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 provides for the calculation of protected income in a case where "the absent parent does not have a partner" or "the absent parent has a partner". 
17.	I consider that the disregards in Regulation 30(2) really relate to what might be described as acrimonious issues in the break up of a relationship. The Regulation refers to responsibility for conception, responsibility for breakdown of the relationship, contact arrangements for the children and whether they are working. I note in particular that the disregard is "the fact that the parent … has formed a new relationship". It is only that fact that has to be disregarded. I consider that other relevant consequences of that relationship may be taken into account. 
18.	I therefore do not consider that tribunal erred in referring to a separation from his present wife. In context, I consider that comment was made, concerning the financial consequences of a separation from the present wife. The Summary given to the tribunal at Option 3 refers to "Separate from my family in order to secure their future financially". I consider that if separation is an issue put before the next tribunal, then the tribunal would be entitled to have regard to the financial consequences of a separation, in deciding whether or the departure direction is just and equitable. They could also have regard to whether or not it is just and equitable for the absent parent to be forced into a separation as a means of reasonably providing for his new family. 
19.	As one of the issues is the new wife's income and her contribution to housing costs, the chairman of the tribunal rehearing this application might like to consider whether or not to exercise his powers under Regulation 43(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to summons the wife as a witness and to order the production of documents such as the title deeds to the house and the Mortgage Application Form, which might show the respective liabilities for the mortgage or other housing costs or the wife's monthly wage slips to show her salary. It was suggested at the last hearing that the second wife might be able to rely on Article 8 of the ECHR to claim that she was not obliged to produce details of her income. If an issue as to compellability is to be argued under Regulation 43(2), then that should be done before the tribunal rehearing the claim. If the wife is not summoned and information about her income is not produced by the absent parent, then the inference to be drawn from the absence of that evidence is a matter for the tribunal. 
(Signed)
Sir Crispin Agnew of Lochnaw Bt QC
Deputy Commissioner
Date: 26 March 2004