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[2009] UKUT 29 (AAC) (10 February 2009)
Main Category: Child support

IN THE UPPER TRIBUNAL File No: CCS 3116/08

Administrative Appeals Chamber

10 February 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

CHILD SUPPORT ACTS 1991-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

DECISION OF THE UPPER TRIBUNAL

Judge: P L Howell QC


 


IN THE UPPER TRIBUNAL File No: CCS 3116/08

Administrative Appeals Chamber

10 February 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

CHILD SUPPORT ACTS 1991-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

Appellant: [the absent parent]

Respondents: (1) Secretary of State (CMEC)

(2) [the parent with care]

Appeal Tribunal: Ashford

Tribunal case ref: 151/08/00015

Tribunal date: 9 May 2008 (reasons issued 25.06.08)

DECISION OF THE UPPER TRIBUNAL

The absent parent's appeal is allowed. The appeal tribunal's decision of 9 May 2008 is set aside as erroneous in law and the case is remitted under section 12(2)(b) Tribunals, Courts and Enforcement Act 2007 to the First-tier Tribunal for redetermination in accordance with the directions given below.

REASONS

Mr P L Howell QC:

1. This appeal by an absent parent for which leave was granted by another judge as a Child Support Commissioner on 29 October 2008 is now before me for determination, the proceedings having been automatically transferred to the Upper Tribunal under the Tribunals, etc. Act 2007 and the transitional provisions.
2. The appeal must be allowed, as in my judgment the appeal tribunal at Ashford on 9 May 2008 (Mrs V T Dsane-Idowu, chairman, sitting alone) misdirected itself in law in holding that evidence the absent parent wished to adduce about his alleged housing costs would be incapable of affecting his liability for child support maintenance under the assessments he was appealing because he had not provided it before those assessments were made. In view of that conclusion I decline the absent parent's request for an oral hearing of this appeal, set aside the tribunal decision and remit the case to a fresh first-tier tribunal to reconsider and redetermine his appeal against those assessments, allowing him a final opportunity to produce relevant and satisfactory evidence of the housing costs he alleges he incurred and is entitled to have taken into account. In so directing I have to add that in view of the long history of the matter, and his past failures to provide information and generally hostile attitude towards the entire child support system, I would expect the new tribunal to adopt a robust and practical attitude to his claims and to bear firmly in mind that the burden of establishing both the fact of his alleged additional expenditure and its legal eligibility to reduce his past child support maintenance obligations is upon him.
3. This matter has a long and unsatisfactory history, and the material submitted to the tribunal on the absent parent's appeal (and now before me) was confusing and incomplete in some major respects. The following summary will however suffice for present purposes.
4. The case concerns the child support maintenance that ought to have been paid by the absent parent, a man now aged 50, for his three children over a long succession of periods in the past, stretching back to what is now over 10 years ago. The children, two girls and a boy born in 1983, 1985 and 1987 respectively, lived at all material times with their mother, the parent with care.. According to her their father never provided them with support or maintenance after his departure and she was left to subsist on benefits. He remarried, and at the material times was living together with his new wife and the three children she had from a previous relationship, in a house the two of them, who were both working and earning, bought with the aid of a mortgage. The child support maintenance he should have been paying for his own children remains unresolved for periods back to September 1998; so long ago now that none of them even counts any more as a "qualifying child" for child support purposes, the youngest having ceased to do so from 4 September 2006.
5. In about 1994 the parent with care had made an application for child support, no doubt being required to do so as a benefit claimant. The absent parent failed to comply with his statutory requirement to provide the information needed to assess his liability properly, and in due course an "interim maintenance assessment" had been made, under section 12 Child Support Act 1991 and regulation 8 Child Support (Maintenance Assessment Procedure) Regulations 1992 SI No. 1813 as both then in force, making him liable to pay maintenance at the rate of £132.68 per week from 16 February 1995.
6. The purpose of such interim assessments is to coerce uncooperative parties into providing the required information so that child support assessments can be carried out properly in accordance with Part I of Schedule 1 to the 1991 Act, by imposing a higher than normal rate of liability until they do. This one had only limited success even in that, and it was not until another 5½ years had gone by, and court proceedings had had to be started against him for the (by then large) arrears of his unpaid interim liability, that the absent parent eventually attended an interview on 9 November 2000. At this he gave some verbal details of his own and his wife's earnings and their mortgage costs, though he declined to sign a statement confirming the details noted by the interviewing officer and (it appears) had yet to provide any documentary evidence or verification. Nevertheless the officer noted: "It appears we may now have enough to do a full assessment", on the basis that any further information required of him was to be specified in writing, and he was to arrange to submit a "CSA6" form with confirmation from the lender of the housing costs he was claiming to have taken into account in his favour: see pages 28-32.
7. As to what, if anything, then happened about the completion of any such assessment there is a complete blank so far as the material before the tribunal and before me goes, and so it remains over the period of nearly seven years that ensued until the late summer of 2007. It appears undisputed that it was not in fact until 16 or 22 August 2007 (both dates are given) that any actual decision was made by the Secretary of State embodying a full assessment of the absent parent's child maintenance liability as required by Part 1 of Schedule 1 to the 1991 Act, by way of what is referred to as a "conversion" of the interim maintenance assessment of 1995, still apparently the only assessment of any kind in force down to then.
8. The decision and assessment of 16 or 22 August 2007 determined the absent parent's liability in respect of his three children in the sum of £25.68 per week from the effective date of 4 September 1997, with a change to £48.30 from 2 April 1998 "following changes in income": see the recital on page 8. In terms of the legislation in force and applicable at the time it was made, it was a maintenance assessment under section 11 and Part 1 of Schedule 1 to the Act, made following an interim maintenance assessment and covering periods starting only some time after the original effective date in the case, not the whole time back to then. Under regulation 8D of the Maintenance Assessment Procedure Regulations as then applicable it replaced the interim maintenance assessment not from the outset but only from the later effective date of 4 September 1997, presumably on the basis that the information or evidence supplied to the Secretary of State was still insufficient to make a maintenance assessment right back to the original effective date, so paragraphs (2) (6) and (7) of regulation 8D applied. It was what was called a "stepped" maintenance assessment, embodying different assessed amounts for different specified periods in accordance with paragraph 15 of Schedule 1. The "effective date" for each such assessment period after the first is the start of the maintenance period in which the relevant change actually occurs: cf. Jacobs & Douglas 1999 p.164.
9. No appeal was brought against that assessment but the Secretary of State himself shortly afterwards discovered there was an error in it. The housing costs allowed to the absent parent (apparently on the basis of the information given in November 2000, as recorded on an internal calculation sheet at page 27) had omitted an allowable amount for a mortgage protection premium: page 8. A revision of the assessment was then carried out on 16 October 2007, under section 16 of the Child Support Act 1991. Its effect, as summarised in the Secretary of State's submission to the tribunal at page 9 (regrettably the decision itself was not put before the tribunal even though it was the one under appeal) was to alter and supplement the August 2007 assessment for successive further periods from 3 September 1998 onwards, beginning with a nil liability from that date, and following with a series of eleven further alterations to different weekly amounts between £21.69 and £78.03 for various periods from 1 April 1999 to 30 March 2006. These alterations reflected periodic changes of earnings and such things as children in each household growing up and ceasing to qualify or leaving home over the years down to March 2006, so it is obvious the Secretary of State in 2007 must have been acting on fuller and later information than he had at the time of the interview in November 2000, though there is no explanation of how or when he got it.
10. The absent parent appealed to the tribunal against the assessment in its revised form. His stated ground for doing so was that it did not include any allowance for a further loan of £40,000 whose existence he had first disclosed on 19 October 2007, three days after the revised assessment. This he said he had had to take out by way of addition to his original mortgage in order to make his home habitable, in particular by providing additional bedroom accommodation: pages 24, 36. As noted by the departmental officer dealing with the case he had provided no details, dates or figures, or verification from his lender relating to this alleged loan despite four requests, so a further revision of the assessment had been refused for lack of proper evidence though he was told he could produce this to the tribunal: pages 25-6. The only additional evidence submitted with his notice of appeal was a copy of a further loan offer from a bank dated 2 October 2001 in the amount of £40,000, but without anything to show this being taken up or the purpose for which that or any sum of money had actually been offered, lent or applied (page 37).
11. When the appeal came before the tribunal on 9 May 2008 it was accepted on behalf of the Secretary of State that it should be allowed, as the revised asssessment decision of 16 October 2007 needed further correction to remove a total of ten comparatively minor errors, none making any significant difference to the maintenance payable. The absent parent said he was confused by the whole process and had not come with any further evidence, but would now give the CSA the details required about his original housing loan, specified in its letter of 4 December 2007 in response to his appeal at pages 25-6: he wanted also to send details of what he now said were two further improvement loans he was asking to be taken into account in the recalculation (page 87).
12. The chairman's decision was to allow the appeal and direct the revised stepped assessment under the decision of 16 October 2007 to be further recalculated as asked on behalf of the Secretary of State, but to direct further that there could be no question of the recalculation including any allowance for any alleged improvement loans not previously disclosed by the absent parent. She said in the decision notice at page 88:

"Even though [the absent parent] was concerned that details of his home improvements had not been included in the calculations, the Tribunal noted that he had notified the CSA of this after the decision of 16.10.07 of the loan taken out in 2001 and on 9.5.08 of the new bathroom he had installed in 2005. If the CSA were to take these into account, they would have to be dealt with as change of circumstances review from the date of notification. Unfortunately the youngest qualifying child was born on 14.9.87 and it would appear these subsequent changes cannot be included in the assessment."

Her statement of reasons issued on 25 June 2008 at pages 90-91 gives a similar reason for directing that any such loans were to be excluded from the recalculation, adding that in any event the absent parent had not provided enough information to satisfy the requirements of Schedule 3 Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI No 1815, which prescribe what housing costs are to be allowable.

13. That last point is incontrovertible (and so is the fact that as the chairman pointed out the absent parent had - for the flimsiest of reasons - not been paying child support maintenance and only started to take part in the proceedings when summoned for a liability order, so he hardly deserved sympathy) but it seems to me the chairman unfortunately erred in holding that though there had (rightly) to be a recalculation of the 2007 assessment, no account could be taken in it of any alleged housing costs for any period before the date they were first notified. This in my judgment involved a mistake as to the nature of the assessment under appeal and it was not right to say, as the chairman did and the Secretary of State's submission on this appeal at page 132 appears to support, that evidence of costs not already taken into account for past periods could only now be looked at if the assessment were still continuing and on the basis that their notification was itself a "change of circumstances" only capable of affecting it for the future.
14. There is no doubt that this is an "old scheme" child support case to which the new scheme provisions in the Child Support, Pensions and Social Security Act 2000 do not yet apply. Accordingly the appeal to the appeal tribunal by the absent parent was one against the multiple stepped assessment embodied in the assessment decision as revised on 16 October 2007, to which section 20 of the Child Support Act 1991 continued to apply as it stood before the passing of the 2000 Act and without the alterations introduced by that Act for new cases from 5 April 2003.
15. Further, that assessment (as so revised) remained the first full assessment in accordance with Part 1 of Schedule 1 to the 1991 Act of the child support liabilities of the absent parent on his former wife's application of 1994, though incorporating stepped periods of liability pursuant to paragraph 15 of that Schedule reflecting the information available to the Secretary of State at the time of the decisions themselves in 2007.
16. Although the changes of circumstances to which these stepped alterations relate are now themselves long in the past, it does not seem to me there can be any doubt that on the appeal against the (revised) full assessment decision made for the first time in August/October 2007, the right of appeal under section 20 of the 1991 Act entitled the absent parent to dispute, and make the subject of any relevant evidence he was able to adduce before the tribunal, any aspect of the substance of that assessment and the liabilities it imposed on him for the successive periods it purported to cover, whether such information had previously been produced by him or not. As is well established the appeal to a tribunal under section 20 and similar legislation is by way of a complete rehearing and redetermination of the departmental assessment or decision under appeal. It has to follow that although by section 20(7)(b) the tribunal is precluded from taking into account any circumstances not obtaining at the time when the decision or assessment appealed against was made, it is the actual state of the facts down to that time that the tribunal is entitled and required to look at, not the extent to which they may or may not previously have been disclosed to the Secretary of State.
17. Consequently though the tribunal chairman was right in saying that the absent parent had not yet provided enough information to satisfy the requirements of Schedule 3 cited above, she was wrong in declining him the opportunity on the recalculation, even if the chances might be slim, of being able to produce some satisfactory evidence to show that he qualified for an increased allowance for some or all of the periods at issue.
18. For those reasons I set aside the appeal tribunal's decision and remit the case for rehearing by a fresh first-tier tribunal, which I direct should in the circumstances afford the absent parent that opportunity even though his task may be an uphill one. Mere verbal assertions by him will of course not be sufficient to establish the case for an additional housing cost allowance: the kind of evidence which even at this distance in time ought to be still extant or obtainable so as to establish on the balance of probabilities that additional housing costs ought to have been allowed to him would be:

(1) copy letters, bank documents and records confirming the making of the loan advance and its purpose;

(2) planning and building regulation consents and approvals for whatever improvements were planned and to show what was actually carried out;

(3) architects' or surveyors' specifications and certificates, builders' estimates, accounts, receipts and bank records to identify the various items of expenditure and what work they related to.

None of this ought to be impossible for the absent parent to produce in some form or another if he really sets his mind to it; and in view of his past apparent failures to provide the Secretary of State with anything at all, the tribunal will in my judgment be fully justified in placing him on a tight rein in the time it allows him to do so: as I have already indicated the entire burden of proof is on him so failure to provide satisfactory evidence must simply result in the rejection of his claim for any extra allowance.

19. I further direct the new tribunal that unless any factual reason for doubting it is brought to its attention by the Secretary of State by the time of the rehearing, it may proceed on the basis that the assessment under appeal made in August and October 2007 was a properly made assessment in accordance with Part 1 of Schedule 1 to the 1991 Act, notwithstanding the doubts expressed in the written submission to the tribunal and in the submission by Mr B A Wilson in this appeal on behalf of the Secretary of State (now the Child Maintenance and Enforcement Commission) dated 19 November 2008 at pages 130 to 132, about the lack of sufficient documentary evidence in November 2000. There must be many occasions when the Secretary of State is faced with having to make the best assessment decision he can on less than complete and detailed evidence but under the legislation the making, and the continuance, of an interim maintenance assessment is a matter for his (and now the Commission's) discretion. I agree with the chairman in paragraphs 5 to 6 of her statement of reasons that the belated conversion of the interim maintenance assessment into a full one in August and October 2007 was in effect the least unattractive option in the circumstances, and her decision to accept the situation and proceed on the basis that it was properly made (subject to the recalculation) cannot in my judgment be characterised as an error of law.

_________________________________ 10 February 2009