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[2006] UKSSCSC CCS_162_2006 (11 October 2006)

CCS/162/2006

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the non-resident parent (Mr. R), brought with my permission, against a decision of the Middlesbrough Appeal Tribunal made on 14 October 2005. For the reasons set out below that decision was in my judgment erroneous in law and I set it aside. In exercise of the power in s.24(3)(b) of the Child Support Act 1991 I make the findings of fact set out below and substitute for the decision of the Tribunal the following decision:

Mr. R's appeal is allowed. The decision of the Secretary of State made on 26 April 2005 to the effect set out in paragraph 14 below is varied to the following extent:

(a) the supersession took effect only from 1 April 2005 and the assessment must therefore be recalculated (in so far as necessary) on that footing ;

(b) the assessment must further be recalculated to allow Mr. R rental (so far as relevant) of £57.05 for the financial year 2003 to 2004 and £60.65 for the financial year 2004 to 2005.

The parties may apply back to me within 28 days of any dispute arising in relation to the recalculation of the assessment in consequence of this decision.

The facts

2. Mr. R and the parent with care, Miss R, have two daughters, Natalie who was born in 1987 and Abbie who was born in 1992.
3. On 8 January 2002 a decision was made assessing the amount of child support maintenance payable by Mr. R in respect of Abbie at nil from the effective date of 16 November 2001.
4. The written submission to the Tribunal on behalf of the Secretary of State noted that the Central Appeals Unit had been unable to locate certain documents relating to the case. The only information in relation to certain critical events now comes from entries on the CSA computer.
5. On 5 February 2002 there was an entry on the computer which reads as follows:

"385 alert received – NRP has ceased PB. CSA 5 issued after UTC to NRP. Await response."

6. On 6 February 2002 there is an entry in a separate field or screen (headed "notice history summary") as follows: "AP FIF covering letter".
7. The evidence on behalf of the Secretary of State in this appeal is that those entries show that on 5 February 2002 the CSA received notification from the Benefits Agency that Mr. R had ceased to be in receipt of a "prescribed benefit" (PB). The significance of the reference to a "prescribed benefit" is that para. 5(4) of Schedule 1 to the Child Support Act 1991 provides that where income support, an income-based jobseeker's allowance or any other benefit of a prescribed kind is paid to or in respect of a parent who is a non-resident parent or a person with care that parent shall, for the purposes of that Schedule, be taken to have no assessable income.
8. Those entries further show that on 6 February 2002 a form CSA 5 was issued to Mr. R. A "CSA 5" is a form requesting further information (FIF) for the purpose of determining, for example, whether there should be a supersession. The Secretary of State's evidence is that with that form a covering letter would have been sent stating (so far as material) as follows:

"Child maintenance – keeping your case up to date

We are looking at the amount of child maintenance being paid. To allow us to look at your case again, we have enclosed a further information pack which includes:

* a further information form, CSA 5

…………………………………………..

We will use the information on the form to decide if the amount of child maintenance being paid is still correct. We will contact you to tell you the amount of child maintenance that must be paid and how we worked this out ………………………

If you are the person responsible for paying child maintenance, and you do not return the filled in form to us within 14 days, we will consider making an interim maintenance assessment. This is likely to be more than the amount you are paying now."

The next relevant computer entry is on 8 February 2002, as follows:

"CSA 701 rec'd Cast 6/5 – linked to S/F as action already taken as per above."

9. The Secretary of State's evidence in this appeal is that a "CSA 701" is a form used by the CSA to request the Benefits Agency to notify them of any changes that could affect a child support maintenance assessment. It seems from that entry that the CSA had received such a notification from the Benefits Agency on 8 February 2002. A specimen form CSA 701 is in evidence. It contains a section for the Benefits Agency to fill in, which contains boxes to be ticked. Opposite each box is a space for additional details to be included. The instructions opposite those two of the seven boxes which are of possible relevance to this appeal are as follows:

"? Claim terminated. Please provide any details you have about claims to another benefit or details of a new employer, (name, address, telephone number).

…………………………………………………………………………….

? other (please give details)

…………………………………………………………………………….."

10. The next entry is dated 17 April 2002:

"No response to CSA 5 as per above – CSA 59 issued."

11. A form "CSA 59" is a warning that an interim maintenance assessment may be made. It begins as follows:

"We recently asked you for information to allow us to

? make a maintenance assessment

? look at your maintenance assessment again.

We have not yet received a reply. If we do not receive this information by …………….we will consider making an interim maintenance assessment."

12. On the evidence before me there then appears to have been a complete absence of activity on the part of the CSA until 28 January 2005, when there is an entry: "(DMS) warning letter." There is no evidence before me as to what that letter would have been. On 12 April 2005 there are the following two separate entries:

"For pay details – no CSA logo

"To local authority for information."

13. Again, there is no evidence before me as to precisely what those entries signify, but it appears that the CSA may have written to Mr. R's employer in order to obtain details of his pay, and to the local authority.
14. On 26 April 2005 there are three entries in the "assessment/decision" screen or field indicating that decisions by way of supersession were made on that date assessing child support maintenance at £92.63 per week with effect from 1 February 2002, £95.93 per week with effect from 18 April 2003 and £88.01 per week with effect from 10 September 2004.
15. On 27 April 2005 the CSA wrote to Mr. R notifying him that the amounts of child support maintenance payable by him had changed, and were as set out in paragraph 14 above. That letter contained detailed calculations as to how the amounts had been assessed, which showed that in each case the calculations were on the footing that Mr. R's earned income before deductions was £425.16 per week.
16. Mr. R's evidence (pp. 19, 63) is that in (he thinks) March or April 2005 the CSA had telephoned him, and that the telephone call was followed by a brief meeting.
17. On 28 April 2005 Mr. R was notified by the CSA that there were arrears of child support maintenance totalling £15,730.38.
18. On 25 May 2005 Mr. R's representative wrote a letter of appeal, the grounds of appeal being (a) that his daughter Natalie had come to live in his household in January 2004 (b) that the level of rental specified up to 18 April 2003 was incorrect and (c) that the supersession taking effect on 10 September 2004 should have triggered a transfer to "the new CSA scheme." The latter point was clearly misconceived.
19. On the day of the Tribunal hearing, at which Mr. R attended and gave evidence, Mr. R's representative produced a written submission in which it was also contended that the Secretary of State had not established that there had been a valid supersession decision or (if there had been) that the effective date was incorrect. Miss R did not attend, and indeed played no part in the proceedings before the Tribunal and has made no submissions in this appeal.
20. The Tribunal's Decision Notice stated that the appeal was allowed. It directed that the assessment be recalculated by reason of Natalie living with Mr. R from January 2004 and in order to substitute the correct figures for housing costs.

The error of law in the Tribunal's decision

21. The Statement of Reasons does not mention the arguments which had been put forward in the representative's written submission (see para. 19 above). The Secretary of State accepts, in my judgment correctly, that the Tribunal's decision was erroneous in law in failing to do so and must be set aside.
22. I consider that, rather than remitting the matter to a new tribunal, I should substitute my own decision in relation to the matters which the Tribunal did not consider. I have had the benefit of written submissions on behalf of Mr. R (through his representative, Mr. Mike Robinson of Stockton and District Advice and Information Service) and the Secretary of State. I therefore proceed to consider the issues which in my view arise.

(a) Did the Secretary of State purport to make a superseding decision?

23. In my judgment it is reasonably clear that he did. No copy of any such decision has been produced, but the entries on the computer (see para 14 above) are in my judgment strong evidence that on 26 April 2005 a decision was purportedly made by way of supersession. Further, there was no other basis on which the CSA could have written to Mr. R on 27 April saying that his child support maintenance liability had increased.

(b) Was the superseding decision invalid by reason of a failure to comply with regulation 24 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 ("the MAP Regulations")?

24. Reg. 24 provides as follows:

"Where the Secretary of State on his own initiative proposes to make a decision superseding a decision ………. he shall notify the relevant persons who could be materially affected by the decision of that intention."

25. Three sub-issues arise: (i) Was the supersession made on the Secretary of State's own initiative? (ii) If so, did the Secretary of State notify the relevant persons? (iii) If not, did that failure render the purported supersession ineffective?

(i) Was the supersession on the Secretary of State's own initiative?

26. In my judgment it has to be inferred that the supersession was on the Secretary of State's own initiative, rather than on the application of Miss R. There is no evidence or suggestion that Miss R applied for supersession.

(ii) Did the Secretary of State comply with regulation 24?

27. The Secretary of State submits that the CSA 5 and covering letter which were sent on 6 February 2002 (see para. 7 above) amounted to notification under reg. 24 of the fact that the Secretary of State was proposing to make a superseding decision. That letter stated that the Secretary of State was "looking at" the amount of child maintenance being paid, requested further information, and stated that if the information was not provided the Secretary of State would consider making an interim maintenance assessment.
28. My initial view was that the letter did not give notice that the Secretary of State was "proposing to" make a superseding decision, but was merely a request for further information so that the Secretary of State could consider whether to make such a decision. The word "proposes" generally indicates a state of mind somewhere on the spectrum between mere contemplation as a possibility and settled intention. "…..the word "proposes" is different from the word "intends". A man may propose to do a thing without having formed a fixed and settled intention to do it." (Lord Denning MR in Trustees of the Magdalen and Lasher Charity v Shelower (1968) 19 P & CR 389). "A "proposal" [under the Landlord and Tenant Act 1987] means that a project must have moved out of the zone of contemplation into the valley of decision" (Sir Thomas Bingham MR in Mainwaring v Smith [1996] 2 All ER at p.234).
29. I note that s.12(1) of the Child Support Act 1991 provides as follows:

"(1) Where the Secretary of State –

(a) is required to make a maintenance assessment; or

(b) is proposing to make a decision under section 16 or 17,

and in either case it appears to him that he does not have sufficient information to enable him to do so, he may make an interim maintenance assessment."

30. It seems to me that the words "is proposing to make a decision under section 16 [revision] or 17 [supersession]" in s.12(1) must be intended to cover at least the situation where the Secretary of State suspects that a revising or superseding decision should be made, but does not have the information necessary to make one. (They may well, in the particular context, cover even the situation where the Secretary of State merely wishes to consider whether to make such a decision). I very much doubt whether it is necessary that the Secretary of State should have formed even a provisional intention actually to make a superseding decision. I would be inclined to adopt the same view in relation to the meaning of the words "proposes to" in reg. 24.
31. The context in which the CSA 5 and covering letter were sent was that Mr. R had been subject to a nil assessment (presumably because he was in receipt of a prescribed benefit), and the Secretary of State had been notified that entitlement to a prescribed benefit had ceased. That rendered it very probable (see para. 51 below) that a nil assessment was no longer appropriate. Mr. R would of course have known that his entitlement to a prescribed benefit had ceased, and that he had commenced employment and was in receipt of substantial earnings. Against that background the covering letter did in my judgment give notice that the Secretary of State suspected that a superseding decision was appropriate, and so satisfied reg. 24.
32. Further, it must be very possible that, when the CSA telephoned and met Mr. R shortly before the decision of 26 April 2005 was made (see para. 16 above), they informed him that the fact that he had been working meant that his child support maintenance should have been increased from the nil rate, and that further information was required for the purpose of assessing the precise amount of maintenance. If something to that effect was said, that in my judgment amounted to notification of the Secretary of State's intention to make a superseding decision. It is to be inferred from reg. 23(8) that notification under reg. 24 can be oral. However, it would have been wrong for me to make a finding to that effect without at least giving Mr. R the opportunity to comment, and in view of my conclusion in the previous paragraph it is unnecessary for me to make such a finding.
33. However, as Mr R's representative rightly points out, in my judgment rightly, there is no evidence that Miss R. was notified that the Secretary of State proposed to make a superseding decision. In my judgment there is no sufficient evidence that Miss R was also sent a form CSA 5 in February 2002. She would appear undoubtedly to have been a person "who could be materially affected by the decision." In my judgment reg. 24 was therefore not strictly complied with.

(iii) Does failure to comply with reg. 24 render the superseding decision ineffective?

34. It would formerly have been customary to state this issue as being whether reg. 24 is "mandatory" or merely "directory". However, it was confirmed by the House of Lords in R v Soneji [2005] 4 All ER 321 that that distinction has outlived its usefulness. The question is one of statutory construction and "the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity." (Lord Steyn at [23]). It is therefore necessary to refer to the directly relevant statutory provisions.
35. Section 17 of the Child Support Act 1991 provides that a maintenance assessment decision can be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative. By s.17(3) "regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section." By s. 17(4) a decision under s.17 shall take effect as from the date on which it is made or, where applicable, the date on which the application was made. By s.17(5) regulations may provide that, in prescribed cases or circumstances, a decision under that section shall take effect from such date as may be prescribed.


36. By reg. 20 of the MAP Regulations:

(1) …………for the purposes of section 17 of the Act, the cases and circumstances in which a decision ("a superseding decision") may be made under that section are set out in paragraphs (2) to (7)

(2) A decision may be superseded by a decision made by the Secretary of State acting on his own initiative –

(a) where he is satisfied that the decision is one in respect of which there has been a material change of circumstances since the decision was made

(b) where he is satisfied that the decision was made in ignorance of, or was based upon a mistake as to, some material fact; or

(c) …………………………………………………………"

36. By reg. 23 of the MAP Regulations:

(1) Except in a case to which paragraph (2) applies, where notice is given under regulation 24 in the period which begins 28 days before an application for a supersession is made and ends 28 days after that application is made, the superseding decision of which notice was given under regulation 24 shall take effect as from the first day of the maintenance period in which that application was made.

(2) ……[W]here a decision is superseded by a decision made by the Secretary of State in a case to which regulation 20(2)(a) applies on the basis of evidence or information which was also the basis of a decision made under section 9 or 10 of the Social Security Act 1998 the superseding decision under section 17 shall take effect as from the first day of the maintenance period in which that evidence or information was first brought to the attention of an officer exercising the functions of the Secretary of State under the Act.

(3) Where a superseding decision is made in a case to which either paragraph (2)(b) or (5)(a) of regulation 20 applies, the decision shall take effect as from the first day of the maintenance period in which the decision was made.

(6) Subject to paragraphs (1), (3) and (4), in a case to which regulation 24 applies, a superseding decision shall take effect as from the first day of the maintenance period in which falls the date which is 28 days after the date on which the Secretary of State gave notice to the relevant persons under that regulation.

(8) For the purposes of paragraphs (6) ….. –

(a) notification includes oral and written notification

…………………………………………………….."

37. Regulation 24 of the MAP Regulations is headed "Procedure where the Secretary of State proposes to supersede a decision on his own initiative" and for convenience I set it out again here:

"Where the Secretary of State on his own initiative proposes to make a decision superseding a decision ………. he shall notify the relevant persons who could be materially affected by the decision of that intention."

38. The main arguments in favour of a conclusion that a failure to comply with regulation 24 is intended to render the superseding decision ineffective are as follows. First, reg. 24 is in mandatory terms, and is enacted under the authority of s.17(3) of the Act, which gives power to prescribe the procedure by which "a decision may be made under this section." It is strongly arguable that if that procedure is not followed, the decision is simply invalid. Secondly, the purpose of reg. 24 must be to give any person potentially affected the opportunity to object to the proposed decision, and if a valid decision can be made without the notification required by reg. 24 there is a risk that that protection will be eroded.
39. However, I have come to the conclusion that the arguments which can be made on the other side are more persuasive. They are as follows.
40. First, reg. 24 does not require any particular period of notice to be given before the decision is made, nor does it specifically provide for the possibility of representations being made to and taken into account by the Secretary of State. I do not think that it is possible to imply that reasonable notice must be given. The giving of notice one day before the making of the decision would constitute valid notice. That would in practice give the affected party virtually no time to act.
41. The absence of a required period of notice, and of an express facility for making representations, may be contrasted with the position under the provisions as they were prior to the amendments which were enacted with effect from 1 June 1999. Where, on an application for a review under section of the 17 of the Act (in its pre-1999 form) a child support officer proposed to conduct such a review, he was required to give 14 days' notice of the proposed review and to take into account any information in relation to a change of circumstances which was notified to him in writing: reg. 19 of the MAP Regulations in their old form. See also the equivalent provision in the old reg. 25, relating to notice of second tier review decisions, which was held by Mr. Commissioner Goodman in CCS/12848/96 to be a mandatory requirement and so to render the review decision invalid if it was not complied with. (Oddly, (a) the requirement for notification to the parties of an intended supersession on the application of a party has been removed altogether and (b) there was in the pre-1999 legislation no requirement for notification where the Secretary of State proposed to conduct a review on his own initiative). The fact that, under the current legislation, no reasonable period of notice is required suggests that the legislature attached less significance to the notice requirement than formerly.
42. The absence of a required period of notice is also to be contrasted with the position under the current legislation in relation to, for example, the making of an interim maintenance assessment. Under s.12(4) and (5) of the 1991 Act, and reg. 8(1) of the MAP Regulations, it is expressly provided that the Secretary of State shall not make the interim assessment until the expiry of 14 days' notice of intention to make the assessment given by the Secretary of State.
43. Secondly, reg. 24 requires notice to be given to any person who could be materially affected. There will be a failure to comply with reg. 24 if there is a failure to give notice to any such party. A party who does receive notice is very unlikely to suffer prejudice as a result of the other party (in those interest it may be that the decision should be valid) not having received notice. That suggests that it is not intended that any failure to comply with reg. 24 renders the superseding decision invalid.
44. Thirdly, I am unable to find any requirement in the current legislation that potentially affected parties be notified of either (a) a proposed supersession on the application of another party or (b) a proposed revision (whether on the Secretary of State's initiative or on the application of a party). That again suggests to me that the legislature does not attach such significance to the requirement in reg. 24 for notification of a proposed superseding decision on the Secretary of State's initiative that a failure to comply with it should render the decision invalid.
45. Fourthly, a party who is unhappy with the basis on which a superseding decision is made has the possibility of applying for it to be revised, or can appeal. The practical significance of the absence of notification of intention to make a superseding decision is thereby reduced.
46. Fifthly, the result of the provisions in reg. 23(2) and (6) of the MAP Regulations as to the effective date of superseding decisions is that a superseding decision made on the Secretary of State's own initiative on the ground of a change of circumstances will take effect from the first day of the maintenance period in which falls the date which is 28 days after the Secretary of State gives notice under reg. 24, save where the special provision in reg. 23(2) applies (as I hold below that it does here). Reg. 23(6) therefore means that a supersession on the Secretary of State's initiative on the ground of a change of circumstances cannot generally take effect at all unless notice of the proposed decision has been given under reg. 24, because there will be no effective date. The exception is where reg. 23(2) applies, where there is a separate provision for the effective date which does not depend on notice having been given under reg. 24. That suggests strongly to me that the legislature intended the significance of the absence of notice having been given under reg. 24 to be determined by reference to the provisions in reg. 23 relating to the effective date, rather than by a blanket rule that all decisions to which reg. 24 applies are invalid unless there has been notification under reg. 24. To put the point another way, it may be that reg. 24 should more properly be regarded not as a free-standing requirement but merely as part of the machinery for determining the effective date in those cases where the effective date is determined by reference to the notice given under reg. 24.

(c) What was the effective date of the superseding decision?

47. The Secretary of State argues that the supersession took effect from February 2002 under reg. 23(2) of the 1992 Regulations, because (a) the supersession was carried out under reg. 20(2)(a) on the ground of a change of circumstances and (b) it was in February 2002 that the Secretary of State was notified that a "prescribed benefit" had ceased to be payable (i.e., in effect, that the award of it had been superseded under s.10 of the 1998 Act). The Secretary of State's written submission contends that that the Secretary of State "had been alerted to the fact that Mr. R had ceased to be entitled to a prescribed benefit. That in turn meant that he would almost certainly no longer have a nil liability."
48. As that brief submission appears to recognise, reg. 23(2) does not provide that the superseding decision has effect from the date when the Secretary of State became aware that the relevant decision under section 10 of the 1998 Act had been made. Rather, it provides that the superseding decision has effect from the date when the Secretary of State became aware of the evidence or information which was the basis of the superseding decision and which was also the basis of a s.10 decision. That date may be either before or after the Secretary of State became aware that the s.10 decision had been made.
49. Mr. R's "prescribed benefit" is likely, I find, to have been jobseeker's allowance. I so find because I am not aware of any basis on which he could have been entitled to income support. It is likely that the reason why that award was superseded was that Mr. R found employment. That was therefore, I find, the information on the basis of which the s.10 decision was made. There is no positive evidence before me that the Secretary of State was informed by the Benefits Agency, in February 2002, that Mr. R had obtained employment. Owing to the loss of the documents, no copy of the Benefits Agency's reply to the Form CSA 701 (see para. 9 above) survives. If, on that form, the Benefits Agency gave details of Mr. R's new employer, or other details indicating or from which it could be inferred why the award of the prescribed benefit had been terminated, that may have sufficed for the purposes of reg. 23(2). However, the burden lies on the Secretary of State to adduce the facts from which the effective date of the superseding decison can be determined. In my judgment the Secretary of State has not shown that the CSA was made aware, in February 2002, of the basis on which the s.10 decision had been made.
50. If it necessarily followed, from the mere fact that Mr. R had ceased to be entitled to a prescribed benefit, that his assessment of a nil child support maintenance liability would need to be superseded, I would accept that reg. 23(2) was satisfied when the Secretary of State became aware that Mr. R had ceased to be entitled to a prescribed benefit. I would, in that situation, be prepared to construe the words "was also the basis of a decision made under section 10" as including the fact of the s.10 decision having been made. I accept, as the Secretary of State submits, that the fact that Mr. R's entitlement to a prescribed benefit had ceased rendered it very likely that Mr. R would no longer have a nil child support maintenance liability, and therefore that the assessment of nil would need to be superseded. It was very likely indeed that Mr. R would be liable for at least the minimum amount of (at that time) £5.40 per week provided for by reg. 13 of the Child Suppport (Maintenance Assessments and Special Cases) Regulations 1992. However, that did not necessarily follow: there are certain categories of case, set out in reg. 26 of those Regulations, where even that minimum amount is not payable. One of those is where the absent parent has a net income of less than (as it then was) £5.40 per week. There is no evidence that the Secretary of State knew, in February 2002, that Mr. R's net income was at least £5.40 per week.
51. That being so, I do not find it possible to construe reg. 23(2) of the MAP Regulations as having the effect, in this case, that the superseding decision made on 26 April 2005 took effect when the Secretary of State became aware of the bare fact that Mr. R's entitlement to a prescribed benefit had ceased. In my judgment it took effect only when the Secretary of State became aware that Mr. R had commenced employment. On the evidence before me it has not been shown that that was so before the interview with Mr. R in late March or early April 2005 (see para. 16 above).
52. I therefore hold that the superseding decision took effect only from 1 April 2005.
53. I have considered whether I should give the Secretary of State a further opportunity to adduce further evidence or make further submissions on this issue. However, I consider that his representatives have had ample opportunity to do so. In my reasons for granting leave to appeal I raised the issue of the date from which the supersession took effect, and stated that it seemed to me that the Tribunal did not have the evidence properly to consider this. I asked whether there was "sufficient evidence available on which the Commissioner could substitute a decision on the point". In his submission dated 3 March 2006 the Secretary of State submitted that the Tribunal's decision should be set aside as erroneous in law but that I should substitute a decision to the same effect. It was submitted that reg. 23(2) applied, and that the superseding decision took effect from February 2002. I think that the Secretary of State was sufficiently on notice that I might well substitute my own decision rather than remitting the matter to a new tribunal, and that he should put forward in this appeal any additional evidence or submissions on which he might wish to rely in relation to that point. In any event, I have no reason to believe that, if given a further opportunity, the Secretary of State would in fact be able to adduce further relevant to the issue when the CSA first discovered the reason why Mr. R's award of a prescribed benefit had been terminated.

(d) Was the superseding decision invalid by reason of defects other than a failure to comply with regulation 24?

54. I have accepted (see para. 23 above) that there is sufficient evidence that a superseding decision was made on 26 April 2005. However, it is (or was at one stage) submitted on behalf of Mr. R that that decision should be regarded as falling within the category of decisions referred to by a Tribunal of Commissioners in para. 72 of R(IB) 2/04 (with reference to the power of supersession in s.10 of the Social Security Act 1998) as having "so little coherence or connection to legal powers that they do not amount to decisions under section 10 at all", and so cannot be corrected by an appeal tribunal. I do not accept that submission. In my judgment there is sufficient evidence that the Secretary of State made a superseding decision under s.17 of the 1991 Act on the ground that Mr. R had commenced employment and was therefore in receipt of earnings. There is no evidence as to the form in which that decision was made, but that does not prevent an appeal tribunal substituting the correct decision. The effective date of the Secretary of State's decision was (as I have held) wrong, but again that can be corrected by an appeal tribunal (and therefore by me on appeal).

Conclusion

55. I therefore hold that a superseding decision was made on 26 April 2005 and that it was not invalid by reason of a failure to comply with reg. 24 or otherwise, but that it took effect not from 1 February 2002 but only from 1 April 2005. My substituted decision in paragraph 1 above is to that effect. It omits the Tribunal's direction that the assessment be recalculated in order to give effect to the child allowances in respect of Natalie because, as I understand it from the Tribunal's findings, Natalie had ceased full-time education by June 2004.

(signed on the original) Charles Turnbull

Commissioner

11 October 2006