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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2006] UKSSCSC CCS_2786_2005 (02 March 2006) URL: http://www.bailii.org/uk/cases/UKSSCSC/2006/CCS_2786_2005.html Cite as: [2006] UKSSCSC CCS_2786_2005 |
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[2006] UKSSCSC CCS_2786_2005 (02 March 2006)
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
Life-style inconsistent
Pre-hearing directions
Assessing the evidence
Assessing the father's income
'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
Disposal
Signed on original on 02 March 2006 |
Edward Jacobs Commissioner |