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[2003] UKSSCSC CCS_3175_2002 (04 April 2003)

 


THE CHILD SUPPORT COMMISSIONERS

CHILD SUPPORT COMMISSIONERS (PROCEDURE) REGULATIONS 1999

Commissioner's Case No.: CCS/3175/2002

Applicant: [the father]

First Respondent: The Secretary of State for Work and Pensions

Second Respondent: [the mother]

Tribunal: Bristol

Tribunal Hearing Date: 8 March 2000

Tribunal Register No: C/84/186/1998/00009

R U L I N G

1. I do not accept this application for leave to appeal as I have no jurisdiction to do so.

REASONS

2. This case is concerned with the liability of the Applicant for child support maintenance in respect of his daughter who was born on 16 August 1993. The period in issue begins on 17 November 1993, nearly ten years ago. The case does not show either the Child Support Agency or the former Independent Tribunal Service in a good light. It also illustrates deficiencies in computer records of the Appeals Service.
3. The mother applied for child support maintenance on 18 October 1993 and an assessment was made from 17 November 1993, when the maintenance enquiry form was sent to the father. The mother applied for a review and a new assessment was made from the same effective date. The father appealed to a tribunal who allowed his appeal, but their decision was set aside by Mr Commissioner Howell QC on the mother's appeal. The Commissioner's decision (CCS/12420/96) is dated 22 April 1997. He remitted the case for hearing by another tribunal.
4. I am told that the case was then first listed for hearing on 1 October 1997 when the mother attended but the father did not. A new case number was allocated to the case by the Independent Tribunal Service at the beginning of January 1998 but the GAPS computer record shows no further action until 3 August 1998 when a chairman issued a direction, which I am told required the father to provide further evidence by 1 September 1998. There was no response. It appears that reminders were issued in February, May and August of 1999. It was not until September 1999 that the case was listed for hearing on 20 October 1999. Again, neither party attended. The mother had written to say that she would be unable to attend and had no further submissions. No communication had been received from the father. The tribunal adjourned and gave more robust directions, requiring the Secretary of State to notify what had by then become the Appeals Service of the parties' current or last-known addresses, directing the attendance of both parties at the next hearing, reissuing, with revisions, the directions issued on 3 August 1998 and making other provision to ensure that the case would be ready for hearing when relisted before the same tribunal. The mother wrote to say, again, that she had nothing to add and that she might not be able to attend due to work. There was no response from the father. On 4 February 2000, notice of a hearing on 8 March 2000 was sent to each of the parties.
5. The hearing duly took place on 8 March 2000. Neither party attended but the tribunal determined the appeal, remitting the case to the Secretary of State to make a maintenance assessment on the basis of their detailed directions. I need not set out the directions in full. The flavour of the decision is adequately conveyed by recording that the tribunal found that the father's pre-tax earnings were £84,610 for the year ending 5 April 1993, £75,755 for the year ending 5 April 1994, £77,213 for the year ending 5 April 1995, £109,687 for the year ending 5 April 1996 and £100, 000 p.a. in subsequent years down to the date of the hearing.
6. For reasons that are unclear, the parties were first sent by the Appeals Service the form of decision notice appropriate to an adjournment but endorsed with the information that the hearing had been concluded and a reserved decision would follow. The covering letter, dated 21 March 2000 but apparently not sent until 28 March 2000, solemnly informed the parties that the hearing had been adjourned, that the decision notice explained why the tribunal had been unable to decide the appeal and that a new date would be fixed. However, a two-page decision notice followed. It was signed by the chairman on 11 April 2000 and the covering letter supplied to me by the mother is dated 13 April 2000. It is possible that it was sent on that date but there is also evidence that it was not sent until 28 April 2000. Perhaps, as indicated by the GAPS computer record, copies were sent on both 13 April and 28 April or perhaps the letter of 13 April enclosed a copy of the first decision notice but without the misleading information in the letter of 21 March 2000.
7. In any event, it appears that it was on 14 April 2000 that the mother asked for a full statement of reasons for the decision. I take that information from a GAPS screen print (doc 11). The GAPS summary of events suggests that the chairman was not asked to provide the statement until 5 May 2000. She had, of course, already provided it and I note that the summary also purports to show that on 5 May 2000 further evidence (!) was issued to the parties and a copy of the statement of reasons was issued to the parties on the father's request. (Copies of such letters are in the file but as they were generated by the computer in 2002 it seems likely that they reflect what is in the summary rather than indicating that the summary accurately records the letters that were actually sent.) The summary shows no further action until 21 September 2000. However, the mother has produced a copy of a letter dated 16 May 2000, enclosing a copy of the statement of reasons. Even though that letter is a standard GAPS letter with the correct reference number on it, no reference to it appears on the GAPS summary of events. A reference to it does appear on the GAPS screen print. That screen print suggests that the statement of reasons was issued on 16 May 2000 only to the mother who had requested it and not to the other parties. In fact, the statement of reasons was signed by the chairman on 11 April 2000, the same day as she signed the full decision notice, so one wonders why it was not issued at the same time as the decision notice. Perhaps it was or perhaps the decision notice was issued on 13 April and the statement of reasons on 28 April. Not surprisingly in the context of this case, the chairman had obviously decided to write a statement of reasons whether any of the parties asked for one or not and I presume she intended it to be issued whether or not there was a request. In any event, on 21 September 2000, the Appeals Service wrote to the Child Support Agency to ask for the father's current address as the Appeals Service had "received the decision returned by royal mail". Which of the letters had been returned is not revealed. The GAPS record, for what it is worth, does not show any signs of a reply from the Child Support Agency.
8. Meanwhile, on 23 May 2000, the Child Support Agency had issued to the mother notice of maintenance assessments based on the tribunal's decision. The notices said "the Appeals Service [sic] has told us to change your child maintenance". I would have expected the father to have been sent notice at the same time and in similar terms. However, he says he was first notified of the sums owed by him by letter dated 7 June 2000. I do not think anything turns on the difference between the dates but he says the notice sent to him referred to a change of circumstances and it is possible it did not refer to the tribunal's decision.
9. The father says that he did not receive any documents from the Appeals Service and, in particular, he received neither notice of the hearing on 8 March 2000 nor any copy of the decision notice or statement of reasons. He says that, on 12 June 2000, he asked for an explanation of the new maintenance assessments and that he wrote again on 24 June 2000 and 4 September 2000. Whether or not he received some sort of response to the first two of those letters, the Child Support Agency has admitted to not replying to the last of them until 12 June 2001, ten months after it was sent. The father replied on 23 June 2001 and had to wait another five months, until 12 November 2001, for the Child Support Agency to respond again. He wrote back on 26 November 2001. I have not seen copies of any of those letters except the last one but I note that in doc 135 the father says that his letter of 4 September 2000 sought information about the procedure that he was to follow in order to appeal against the tribunal's decision and it is apparent from his letter of 26 November 2001 to the Child Support Agency that the letter of 12 November 2001 advised him to write to the "Independent Tribunal Service" to ask for the tribunal's decision to be set aside. He did not do so but the Child Support Agency sent a copy of the letter of 26 November 2001 to the Appeals Service. The Appeals Service noted that the address from which the father had written that letter was different from the address they held for him and they asked the Child Support Agency when the address had changed. The Child Support Agency replied that the approximate date was 28 November 2000 and that they could check their clerical records for more accurate information. The Appeals Service ascertained that their file had been destroyed and wrote to the father on 6 February 2002 to tell him that they had his letter of 26 November 2001.
10. It was not until 27 May 2002 that the father wrote to the Appeals Service, informing them of another new address, complaining about the tribunal's decision and stating that he had never received any communication from them about a "further hearing", by which he must have meant the hearing of 8 March 2000. On 8 July 2002, the clerk to the tribunal conveyed to the father the chairman's view that the letter of 27 May 2002 contained no recognisable application and that, in any event, it was now too late for any application to be made. Two days later, the clerk sent the father a form on which to apply for leave to appeal against the tribunal's decision to the Commissioner.
11. The application was received in the Commissioners' office on 16 July 2002. The father was later able to provide a copy of the tribunal's statement of reasons that he had obtained from the Child Support Agency (which shows they were sent a copy by the Appeals Service) and, on 11 November 2002, I issued directions. I have received written submissions from all parties. None of the parties has requested an oral hearing, although the father has said that he would be prepared to attend one if I thought it necessary. The mother has married and moved to Canada with the daughter whose maintenance is in issue. I am satisfied that I can properly determine this matter on the papers.
12. The mother challenges the father's claim never to have received any documents from the Appeals Service. She has provided copies of correspondence with the father at the address to which the tribunal sent their documents and submits that they show that it is likely that documents sent by the Appeals Service were received at that address. There is some force in these submissions. It seems fairly plain that the address in question was the address to which the Appeals Service sent documents. Not only do the Appeals Service say so but it was the address to which the Child Support Agency sent documents at one time (although the Secretary of State's representative has omitted the screen prints mentioned in paragraph 8 of her submission) and it was the address on the file of the appeal determined by Mr Commissioner Howell QC throughout the life of that file in the Commissioners' office. Despite the father saying that it ceased to be business address in 1996, it was the address to which was sent notice of the hearing before the Commissioner in 1997 and he plainly received the notice because he attended the hearing before the Commissioner. It was plainly also an address at which he received correspondence from the mother in 2000 and afterwards. He must have been aware that the Commissioner had referred the case to another tribunal and it was incumbent on him to notify the Appeals Service if he changed his address. Furthermore, the tribunal recorded in the statement of reasons that the Appeals Service had checked with the Child Support Agency that the address to which the notice of hearing had been issued was the address that the Agency held as his current address. It seems to have been only later in 2000 that the father asked the Child Support Agency to communicate with him at his parents' address rather than his business, or former business, address and his business, or former business, address remained an effective correspondence address for other purposes long after that.. However, it is not necessary for me to decide whether the father did receive any of the documents sent to him.
13. Let it be assumed, firstly, that the father did not receive the notice of hearing before the tribunal. It seems to me plain that in that case the tribunal's decision would be erroneous in point of law because the father did not have a fair hearing, unless it could be shown that he had become aware of the hearing through other channels or he had deliberately increased the chances of him not receiving documents by choosing an insecure address in preference to a secure address or he had actually refused to accept documents that had been delivered. Regulation 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, to which the Secretary of State refers, may deem a notice of hearing to have been sent but a fair hearing requires actual notice. Deemed notice is not enough (CDLA/5413/99, CIB/303/99). Let it be assumed that there was no fault on the father's part and that the tribunal's decision was therefore erroneous in point of law.
14. A tribunal's decision, even if erroneous in point of law, remains in force and final unless it is set aside by a tribunal chairman or, on appeal, by a Commissioner. An appeal to a Commissioner requires leave (section 24(6) of the Child Support Act 1991) and must be brought in time. Regulation 10 of the Child Support Commissioners (Procedure) Regulations 1999 provides that an application to a chairman must be made within one month of the date the written statement of reasons for a decision is sent to the applicant. Regulation 11 provides:

"(1) An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave to appeal from the chairman and leave has been refused or the application has been rejected

"(2) Subject to paragraph (3) an application to a Commissioner shall be made within one month of the date that notice of the refusal or rejection was sent to the applicant by the appeal tribunal.

"(3) A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.

"(4) In paragraph (3) the final date means the end of a period of 13 months from the date on which the decision of the appeal tribunal or, if later, any separate statement of reasons for it, was sent to the applicant by the appeal tribunal."

There is a comma too many or too few in paragraph (4) but the meaning is clear enough and, as Mr Commissioner Turnbull said in CS/1952/2001 in relation to the similar provision for applications to Social Security Commissioners, it is plain that regulation 11(3) qualifies the power to accept an application which a chairman has rejected. The reference to rejection appears in paragraph (1) to allow, inter alia, for the possibility that a Commissioner may consider that an application was wrongly rejected by a chairman. Paragraphs (2), (3) and (4) read together prevent a Commissioner from considering an application for leave to appeal unless the applicant made an application to the tribunal chairman within 13 months of either the date of the tribunal's decision or the date on which the statement of reasons was sent to the applicant, whichever is later. Regulation 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 deems a statement of reasons to be sent if it is sent by post to a person's last known address.

15. Therefore, if it is assumed that the father was sent but did not receive any of the documents relating to the hearing on 8 March 2000, including the statement of reasons, I have no power to admit this application. Even if a statement of reasons was sent to the father as late as 16 May 2000, it was necessary for him to apply to a chairman for leave to appeal by 16 June 2001. Despite the fact that the father knew of the tribunal's decision by September 2000 at the latest, even if he did not then know the details, he made no attempt himself to contact the Appeals Service until 27 May 2002. Even if his letter of 26 November 2001, forwarded to the Appeals Service by the Child Support Agency, is treated as an application for leave to appeal, it was still too late.
16. I consider it to be more probable than not that a copy of the statement of reasons was sent to the father at the same time as it was sent to the other parties. That would be in accordance with the legislation and normal practice. I find that it was posted no later than 16 May 2001 to the address the Appeals Service held for him. Accordingly, I give the decision set out in paragraph 1 above. If the father really did not receive any documents even though they were sent to him, his only possible remedy lies in a late application for judicial review of the tribunal's decision.
17. For completeness, I will consider the position if, contrary to my finding, no copy of the statement of reasons was posted to the father when it was sent to the mother and the Child Support Agency. That would have involved a breach of regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In such a case, it seems to me, it would be arguable that the 13 months mentioned in regulation 11(4) of the Child Support Commissioners (Procedure) Regulations 1999 had not started to run so that, although the father did not expressly ask the chairman for leave to appeal in this case, he could properly have been treated as having made an application within time. It would follow that his application to a Commissioner would have been in time because it was made within a month of notification of the chairman's rejection.
18. If that is a good argument, I would still have refused leave to appeal in the circumstances of this case, even if I had been persuaded that the father had not received notice of the hearing before the tribunal or the decision notice. The mere fact that a decision of a tribunal is erroneous in point of law does not necessarily oblige a Commissioner to grant leave to appeal on an application that is in time. As with all other powers conferred upon Commissioners, the power to grant or refuse leave to appeal must be exercised judicially and generally that requires that leave to appeal should be given on an application made in time in respect of a decision that is plainly erroneous in point of law. Otherwise the purpose for which the power is provided would be frustrated (Julius v. Bishop of Oxford (1880) 5 App. Cas. 214). However, the reason for giving regulation 11(4) the construction I have suggested in the last paragraph would be to protect a person who, through know fault of his or her own, had been wholly unaware of proceedings before a tribunal for more than 13 months after the decision of the tribunal was given – an unlikely but not impossible scenario. Where a person has in fact become aware of the proceedings through other channels, he or she may be taken to have had the opportunity of making an application (for a statement of reasons or for the tribunal's decision to be set aside or for leave to appeal) and it would become necessary to balance his or her right to appeal against the legitimate expectation that other parties had that a decision had become final.
19. In this case, the father had become aware of the tribunal's decision by September 2000 at the latest. He is an intelligent man of business who knew in general terms that there was a right of appeal from a tribunal to a Commissioner because he had appeared before Mr Commissioner Howell QC. Since then, the Independent Tribunal Service had become the Appeals Service but the address of the clerk to the tribunal remained at the same regional office in Cardiff. The father must have been aware in general terms that there were time limits for challenging any decision relating to child support. Even if it was not unreasonable for him first to approach the Child Support Agency rather than the Appeals Service and even though it must be assumed that he did not have the information generally issued with decision notices and statements of reasons, I do not consider it to have been reasonable for him not to contact the Appeals Service – or to obtain independent advice – until over 13 months after he had become aware of the tribunal's decision. Long before then, the Child Support Agency had shown themselves to be totally unable to answer his questions. By then, the mother was well entitled to expect that the tribunal's decision was final. It is particularly important in child support cases that there be finality. For those reasons, I would refuse leave to appeal in this case even if I had the power to grant it.
20. Finally, I note that the father has produced evidence that a bankruptcy order was made against him on 12 November 1998 (doc 151) and, more importantly, that he informed the Child Support Agency of that fact on 16 November 1998 (doc 65). I have not seen the documents that were before the tribunal but the schedule (doc 120) suggests the last supplementary submission was from the child support officer in relation to an assessment made with effect from 16 July 1998. There may have been a later supplementary submission from Secretary of State, who had taken over the child support officer's functions, because the tribunal had directed him to provide a screen print showing the current situation at or before the hearing on 8 March 2000, but there is nothing in the tribunal's statement of reasons to show that they were told of the father's bankruptcy. I have little doubt that the point that he was bankrupt was reiterated in the father's correspondence with the Child Support Agency in 2000. Whether the Secretary of State has exercised his powers of supersession in the light of that information and, if so, from what date I do not know. If the continued existence of the tribunal's decision limits the Secretary of State's powers of supersession and the father feels aggrieved because the Secretary of State did not lay relevant evidence before the tribunal, the father must take the matter up with the Secretary of State. The consequence of the father's delay in challenging the tribunal's decision in an appropriate manner is that the mother is entitled to continue to rely on it.

(Signed) MARK ROWLAND

Commissioner

4 April 2003