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[2006] UKSSCSC CCS_2786_2005 (02 March 2006)

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is given under section 24(2) and (3)(d) of the Child Support Act 1991. It is:

I SET ASIDE the decision of the Liverpool appeal tribunal, held on 27 April 2005 under reference U/06/900/2005/00029, because it is wrong in law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 20(7)(a) of the 1991 Act, any other issues that merit consideration.

Before this case is listed for rehearing, it must be put before a district chairman to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In particular, the district chairman should set out the evidence that the parties should provide for the tribunal and the timetable for its production by the parties.

I also direct that a copy of my decision in R(CS) 3/01 be added to the papers for the rehearing.

The appeal to the Commissioner

2. The absent parent father is subject to assessments in respect of children by two mothers. This case is unusual in that both mothers are parties to the appeal. The issue is whether there should be a departure direction. The application was made by the mother of Alexander. The Secretary of State gave a departure direction, which had the effect of raising the father's liability for child support maintenance from nil to £4.01 a week. The mother applicant exercised her right of appeal to an appeal tribunal, which decided that the father's life-style required an income of £23,000 a year. The father then appealed to a Commissioner with the leave of Mr Commissioner Howell. The parties have made their observations and the case is ready for decision. Mr Howell has transferred it to me.

Life-style inconsistent

3. This is the only head for a departure direction that I need consider.
4. I set out how to deal with an application under this head in the now reported decision number R(CS) 3/01. I am not going to repeat what I wrote there, but I direct that a copy be added to the papers by the district chairman for the use of the parties and the tribunal.

Pre-hearing directions

5. It is common practice in the appeal tribunal for a district chairman to issue detailed directions to the parties in departure direction cases. Those directions specify the evidence that the parties must produce and fix a timetable for its production. They may also explain the evidence that the tribunal may accept and warn the parties that the tribunal is entitled to draw adverse inferences from a failure to co-operate. It would be good practice for all district chairmen to adopt the practice of giving directions. There are a number of models to chose from. The most impressive I have seen in a case was issued by Mrs Martha Street, a district chairman in Bristol. I appreciate that giving these directions requires the district chairmen to preview the case in some detail and to identify the evidence that is required. That all takes time in an already busy schedule of sittings, interlocutory work and ancillary duties. But it enhances the quality of the decision-making at the hearing.
6. I dealt with adverse inferences in CCS/3757/2004. The Secretary of State has added a copy of that decision to the papers (pages 77-83). It should make clear to the father the risk he runs by not complying with any directions that the district chairman gives.

Assessing the evidence

7. I do not know what evidence the parties would have produced if the district chairman had given directions. What happened was not unusual. Both mothers attended and gave oral evidence. Inevitably, they were unable to produce documentary evidence for what they alleged. The father did not attend. He had made representations on the application (pages 14-16), but he did not produce any documentary evidence in support of what he said.
8. That left the tribunal in the unenviable position of having to chose between two sets of assertions neither of which had documentary support. In those circumstances, the tribunal can rely on the burden of proof. But it must only do so as a last resort. A tribunal must, if at all possible, make findings of fact. See the decision of the Court of Appeal in Morris v London Iron and Steel Co Ltd [1987] 2 All England Law Reports 496.
9. How should the tribunal have approached its fact-finding in a case where there were assertions by all the parents without supporting documents, one of the parents did not attend to be questioned and none of them was represented? The tribunal was entitled to accept the word of any of the parents, even without supporting documentation. However, it could only do so if the evidence had a sound basis. And, given the conflict of assertions, the tribunal could not be satisfied of that unless and until it had investigated them as best it could. The starting point was the provenance of each assertion. The father must have known about his own circumstances. But how did the mothers claim to know what they were alleging? And was the basis of their knowledge current or historic? The tribunal was entitled to take account of the fact that the mothers attended to be questioned while the father did not. That allowed the tribunal to probe the basis for their evidence and, as far as I can tell from the record of proceedings, the tribunal did that. But mere questioning cannot not overcome all inadequacies in evidence. In assessing any particular assertion and the evidence as a whole, the tribunal was entitled to take account of the lack of supporting evidence. In doing so, the tribunal had to accept that the mothers did not have access to documentary to support their evidence. The father, of course, had access to the documentary evidence to confirm or refute their allegations, but he was not represented and, in the absence of a district chairman's directions, it was not appropriate to assume that he understood the importance of producing evidence to support what he said. Parents often assume that a tribunal will believe what they say about their own circumstances and tribunals have to recognise that fact. The use of pre-hearing directions serves to inform parents of the process they are involved in. In the absence of directions, the tribunal could have allowed the father a chance to produce documentary evidence. That might have been done on an adjournment. Another approach which I have seen, I believe in an appeal from a Cardiff case, was to produce a draft decision that would be issued if the absent parent did not produce evidence to the contrary within a specified period.
10. In this case, the tribunal accepted the evidence of the mothers and rejected the evidence of the father. It had to explain why. The chairman's full statement of the tribunal's decision is short and gives only a few hints on how he assessed the evidence. The only points I can extract are these: (i) the applicant mother attended; (ii) the father did not; (iii) the father did not produce evidence of his capital; and (iv) the father could not survive on the income he declared. Those reasons are inadequate to explain the difficult task that the tribunal had in assessing the conflicting evidence before it.

Assessing the father's income

11. Having analysed the evidence, the tribunal had to decide what income was necessary to fund the father's life-style. It did this by accepting the applicant's mother's evidence of the mid-range earnings for a taxi driver, £23,000 a year. Tribunals have a difficult task in dealing with many issues in child support and the assessment of income from life-style is one of the trickiest. I am reluctant to criticise a tribunal for using any help that it can to infer income from life-style. But whatever it uses must be used only as a means to that end and not as a substitute. As I have repeatedly (and too often) told tribunals, they must not simply identify the absent parent's likely income. They must infer it and must do so only from the findings on life-style that it is possible to make. As far as I can tell from the brief full statement of the tribunal's decision, the tribunal simply accepted the evidence of likely income. I can infer from the context that the chairman intended to use this as evidence of the income needed to support the life-style, but it is not self-evident how he did so. Further explanation was required.
12. In an attempt to be constructive, I quote what I wrote in CCS/2901/2002.

'12. It is obviously difficult for a tribunal to calculate earnings for a party whose own evidence is not believed. It is not permissible simply to pick a figure from the air. The tribunal did not do that. It worked from a figure for past earnings and applied a discount to reflect the physical nature of the work, the absent parent's age and the extent to which he was likely to value leisure more than work as the years went by. That approach had the advantages of a known starting point in the parent with care's evidence and a rational process of reasoning. As the tribunal went wrong in other respects, I do not have to decide whether or not it went wrong in this respect also. I can, instead, suggest an alternative and more objective starting point. The New Earnings Survey from the Office of National Statistics contains average gross weekly and annual earnings for those employed in a wide range of manual and non-manual occupations. The figures are for the employed earners, not the self-employed, but they provide a starting point. The figures for 2000 and 2001 are set out in Table C5 in 2002 Facts and Figures Tables for the Calculation of Damages, published by Sweet and Maxwell for the Professional Negligence Bar Association. I do not know how far back the Survey goes. There may be other surveys which provide similar information.'

That was a formula assessment case, not a departure direction case. However, those tables can be used in two ways in life-style cases. The figures can be used as a starting point for fixing the income needed to support a life-style. And they can be used as a check on a figure the tribunal reaches to ensure that it is realistic for the work the absent parent does. What the tables must not be used for is to substitute a wrong question (what is the absent parent's likely income?) for the correct question (what income is needed to support the life-style found by the tribunal?).

Just and equitable

13. The tribunal did not refer to this in either the decision notice or the full statement of the tribunal's decision. I can see nothing in the record of proceedings to suggest that it was investigated. That is another error of law.

Disposal

14. I have already said enough to show that the tribunal went wrong in law. It is unnecessary to produce a comprehensive list of mistakes, although the Secretary of State's observations (pages 74-76) will save the tribunal at the rehearing from making others.
15. I allow the appeal, set aside the tribunal's decision and direct a rehearing.

Signed on original on 02 March 2006

Edward Jacobs Commissioner