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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> GB v CMEC [2009] UKUT 189 (AAC) (24 September 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/189.html Cite as: [2009] UKUT 189 (AAC)

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GB v CMEC [2009] UKUT 189 (AAC) (24 September 2009)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is as follows.

The decision of the Bournemouth First-tier Tribunal dated 11 February 2009 under file reference 185/08/00999 involves an error on a point of law.

However, the decision of the Bournemouth First-tier Tribunal is not set aside by the Upper Tribunal, in the exercise of its discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1. The decision of the Bournemouth First-tier Tribunal dated 11 February 2009 under file reference 185/08/00999 involves an error on a point of law. However, the decision of the Bournemouth First-tier Tribunal is not set aside by the Upper Tribunal, in the exercise of its discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. So although the father's appeal to the Upper Tribunal nominally succeeds, it is of no benefit to him. This is because the decision of the Bournemouth tribunal, dismissing his late appeal against the November 2003 maintenance assessment, still stands.

The parties to this appeal

2. In formal terms the Appellant is the non-resident parent under the maintenance assessment, the First Respondent is the Child Maintenance and Enforcement Commission and the Second Respondent is the parent with care. Here I refer to them simply as the father, the Commission (or, in its previous guise, the Child Support Agency or the CSA) and the mother respectively. The parents married in 1987 and have four children (born in 1988, 1990, 1996 and 1999 respectively).

The issue in this appeal before the Upper Tribunal

3. The question in these proceedings before the Upper Tribunal is a simple one. What is the effective date for a maintenance assessment in a case where the Child Support Agency sent the notification to the wrong address, even though the father had informed the Agency of his new address, and the father does not get to learn about the maintenance assessment until some time (even some years) later?
4. The answer is also a simple one. The effective date of the maintenance assessment is the date that the father is first informed of the mother's application for child support. It is not the date that the notification of the assessment is sent out (whether to the right or the wrong address) or the date on which he actually (and finally) receives that notification.

The background to the appeal to the First-tier Tribunal

5. On 27 September 2002 the mother applied for child support in respect of the children. She was required to make that application as she was in receipt of income support. She provided the father's address (which I shall call Address 1). A screen print from the CSA's records indicates that on 20 November 2002 the Agency mailed a Maintenance Enquiry Form (MEF) to the father at Address 1. It is not in dispute that the father lived at Address 1 at that time. There is no evidence as to whether the MEF actually arrived at Address 1. Six months later, in April 2003, according to the father's solicitors, and again this does not appear to be in dispute, the father moved to Address 2.
6. There is a note on the CSA's clerical record dated 10 September 2003 to the effect that "MEF issued not retd [returned]". It is unclear precisely what action the Agency took between the issue of the MEF in November 2002 and this clerical note in September 2003. However, the CSA had obtained the father's income details from his employer. The CSA also asked the employer to hand the father a letter seeking information about his housing costs. The employer duly handed the letter over to the father on 15 September 2003 and the father promptly replied to the CSA by letter dated 16 September 2003.
7. The father's letter was short and to the point:

"Dear Child Support Agency

Please find enclosed the details you require as requested by you in your letter (10/9/03), plus additional costs that I have to pay each month. If you require proof of these please do get in contact with me at the address below."

He then signed the letter, gave his address as Address 2 (his new address as of April 2003) and appended a list of his various outgoings.

8. The CSA then made a maintenance assessment, calculating the father's child support liability as being a total of £88.96 a week for his four children with effect from 20 November 2002 (the date that the MEF had been sent to Address 1). However, the Agency also sent this assessment on 5 November 2003 to Address 1 – in other words, by then the father's previous and not his current address. Unsurprisingly, the father did not receive the letter dated 5 November 2003 notifying him of the assessment. Indeed, on 13 November 2003 the Royal Mail returned the letter to the CSA as "Return to Sender" with the "addressee has gone away" box ticked. This returned letter was date-stamped as received by the Agency on 11 December 2003.
9. It seems from the file that the CSA took no further action for the best part of four years. It appears that the mother may have been in receipt of income support throughout this period so it may be that there was no pressure from her on the Agency to do anything. However, on 15 October 2007 the Agency wrote to the father stating that his child support liability was now £86.36 with effect from 15 August 2007 (as his oldest child was no longer a "qualifying child"). According to the father's solicitor, he then received a further assessment in November 2007 which indicated that there were outstanding arrears in the sum of £22,841 (i.e. five years' worth of payments).
10. On 21 February 2008 the CSA sent the father's solicitors a copy of the November 2003 maintenance assessment. The father's case is essentially that he had never seen the assessment until that time. His solicitors replied on 18 March 2008, asking for a "discharge" of the November 2003 assessment in the light of the absence of proper notification at the time in question.
11. On 3 June 2008 the CSA replied, indicating that it would not alter its stance. The officer concerned wrote as follows:

"Your client was fully aware of CSA involvement and had advised the Agency of his new address which was not updated accordingly, we can only apologise for this error. It is questionable why [the father] took 4 years after voluntary [sic] supplying us with information to contact the Agency for an update.

A decision is valid as soon as it is properly recorded by the decision maker. If a decision is not acted upon or not communicated to the relevant parties, this does not invalidate the decision."

12. On 2 July 2008 the father lodged an appeal against the November 2003 maintenance assessment and the letter dated 3 June 2008, which his solicitors construed as a refusal to revise the November 2003 assessment.
13. District Tribunal Judge Riley very properly extended the time limit for appealing against the November 2003 assessment on the basis that the original decision under appeal had not been sent to the Appellant's newly notified address.

The appeal to the First-tier Tribunal

14. The father's appeal to the tribunal raised three main points. The first was about the ineffective notification of the November 2003 maintenance assessment. His solicitors argued that as this had not been sent to the father's "last known address", service had not been properly effected in accordance with regulation 2 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). The second and third points related to issues of shared care and joint debts, but they are not in issue now.
15. In response to the first of these points, the CSA's submission to the tribunal very fairly rehearsed the events of November 2003 and concluded that "[a]s such, the Tribunal is asked to consider and decide upon the decision under appeal, specifically addressing if the decision was valid".
16. The First-tier Tribunal heard the father's appeal at Bournemouth on 11 February 2009. The father and a CSA presenting officer attended. District Tribunal Judge Riley dismissed the father's appeal and issued a Statement of Reasons. On the first point, the tribunal judge ruled that "A Judge at the Tribunals Service accepted the reasons for a late appeal and those matters are not now before me, having been dealt with." Furthermore, as regards "those matters" (namely the notification of the November 2003 maintenance assessment to Address 1 rather than Address 2), "I do [not] have to consider [them] because the late appeal is now admitted". He then went on to address the substantive second and third grounds of appeal relating to the calculation of the assessment itself. The District Tribunal Judge subsequently granted the father permission to appeal to the Upper Tribunal.

Why the First-tier Tribunal erred in law

17. The First-tier Tribunal erred in law because it simply sidestepped the issue which had been raised by the father and highlighted by the CSA in its submission to the tribunal. The District Tribunal Judge treated the sorry saga of the November 2003 "notification" as relevant only to the issue of the admission of the late appeal against the accompanying assessment. The tribunal failed directly to address the arguments which had been made on behalf of the father as to the underlying validity of that assessment and its effective date.

The general principle

18. The starting point must be to consider as an issue of general principle the validity of a decision taken by an official but which is not then properly communicated to a party concerned.
19. In reported decision R(I) 14/74 the National Insurance Commissioner was concerned with a situation in which an insurance officer purported to make a disqualification decision on a late claim for industrial disablement benefit but did not inform the claimant at the time in question. The insurance officer only communicated the disqualification decision to the claimant some months later, once the diagnosis decision had also been taken. According to Mr Commissioner Lazarus (at paragraph 14(a)):

"In my view it is not possible to make an effective decision without communicating it to the person whose rights are dealt with in it. Writing the words of an intended decision on a piece of paper and placing the piece of paper in a file is not a complete decision-making process."

20. A similar issue arose before the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department and another [2003] UKHL 36. In that case the appellant claimed asylum on arrival in the United Kingdom and was paid income support on that basis. A Home Office official noted on an internal departmental file that "refusal [of the asylum claim] is appropriate. Case hereby determined". Under regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987, the appellant was treated as having ceased to be an asylum-seeker (and so no longer entitled to income support) on the date that the Secretary of State had recorded the asylum claim as having been determined.
21. The House of Lords (Lord Bingham of Cornhill dissenting) rejected the argument that the non-communicated decision was nonetheless effective for the purpose of terminating the claimant's income support award. Lord Steyn stated that the Home Secretary's arguments ignored "fundamental principles of our law". Lord Steyn continued (at paragraph 27):

"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115."

22. Lord Steyn added (at paragraph 28) that "This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected." So also "[w]here decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication" (at paragraph 30). The question then was whether Parliament had "expressly or by necessary implication legislated to the contrary effect"; however, in the context of Anufrijeva, "Parliament has not in specific and unmistakeable terms legislated to displace the applicable constitutional principles" (at paragraph 31). Wade and Forsyth, in their leading textbook, describe this decision as an example of the courts "reading between the lines of the statutes and developing general doctrines for keeping executive power within proper guidelines, both as to substance and as to procedure" (H.W.R. Wade & C.F. Forsyth, Administrative Law, 10th edition, 2009, p.18).
23. Lord Millett, however, arguably put the point rather more narrowly in his speech in Anufrijeva:

"43.     But I am persuaded that the omission was of more fundamental effect. The presumption that notice of a decision must be given to the person adversely affected by it before it can have legal effect is a strong one. It cannot be lightly overturned. I do not subscribe to the view that the failure to notify the appellant of the decision invalidated it, but I have come to the conclusion that it could not properly be recorded so as to deprive her of her right to income support until it was communicated to her; or at least until reasonable steps were taken to do so. This does not require any violation to be done to paragraph (3A) of regulation 70 of the Regulations. It means only that the word "determined" in that paragraph should be read as meaning not merely "actually determined" but as meaning "determined in such manner as to affect the claimant's legal rights". The presumption against legal effect being given to uncommunicated decisions does the rest. The determination must have been made and appropriate steps must have been taken to communicate it to the claimant before it can lawfully be recorded so as to have the effect contended for."

24. In Northern Ireland, Mrs Commissioner Brown has commented on the Anufrijeva principle in Commissioner's decision C4/06-07 (IS). That case concerned the recoverability of an overpayment of income support. The appeal tribunal's decision was set aside on other grounds, but one of the issues raised on appeal was the effect of decisions covering part periods which were uncommunicated until a final decision covering the whole period of the overpayment was made. Mrs Commissioner Brown observed as follows:

"I offer the following views somewhat tentatively. They are not concluded. However, it appears to me that Anufrijeva affirms the guiding principle of British law that an "uncommunicated administrative decision" cannot bind an individual unless (as does not appear to be the case here) Parliament has legislated "in specific and unmistakeable terms" to displace this principle (paras 30 and 31). A decision is a decision but it is of no legal effect until it is communicated. It seems therefore that if a decision was made but not communicated, it is a decision but it has no legal effect. If it is never communicated it has no legal effect" (at paragraph 13).

Does the general principle in Anufrijeva apply in the present situation?

25. The short answer is no.
26. There are three inter-related reasons for reaching this conclusion. The first relates to the fact that Anufrijeva is a general and not a universal principle; the second to the broader context of child support law; and the third to the particular statutory framework that applies to the determination of the effective date under child support law.

(1) Anufrijeva: a general and not a universal principle

27. The first reason is that the principle set out in Anufrijeva is a general and not a universal principle of administrative law. A universal principle by definition applies in all situations whereas a general principle applies in most circumstances, subject to exceptions. In C 10/07-08(IS) Judge J.P. Powell, sitting as a Deputy Social Security Commissioner in Northern Ireland, was concerned with a case in which it was conceded that a claimant had not been notified of a decision on her (lack of) entitlement to income support, although she had received a subsequent decision on the recoverability of the consequential overpayment of benefit.
28. Judge Powell rejected the argument that the failure to communicate the former entitlement decision necessarily made it – and the latter recoverability decision – unenforceable.

"22. On the contrary, there are clear and well established lines of authority in both the courts and the decisions of Commissioners that the failure to notify a decision, such as a social security decision made by the Department, to the person or persons concerned, does not necessarily render that decision void, invalid or unenforceable for all purposes. The failure to do so will render the decision inchoate – which in this context means without full effect, of only partial effect or requiring further action to perfect. The Department in their submissions have referred to a number of authorities namely the decision of the House of Lords in the Anufrijeva case, with which I deal below, decision C4/06-07, which is a decision of Mrs Commissioner Brown, at paragraph 13 and Mr Commissioner Williams' reported decision R(P) 01/04 at paragraph 29. Subject to one comment I accept the principle spelt out by those authorities. I do not, however, accept Mrs Commissioner Brown's proposition that a decision has no legal effect until it has been communicated if, by that, she intended to state a universal proposition. A decision that requires to be communicated will not necessarily be without effect pending communication. It will depend on the circumstances and the decision may have considerable effect notwithstanding the lack of communication. It follows that a decision will, generally, be perfected by giving notice to the required person. Of course, there may be cases where such a long period has passed, or events may have occurred which render it no longer possible to perfect the decision. However, that is not this case and I say nothing more about such possibilities."

29. I adopt this analysis, subject only to two observations. First, I do not read Mrs Commissioner Brown's decision as asserting a universal proposition based on Anufrijeva. Rather, the Commissioner was adverting to a "guiding" (or in my terminology a general) principle, to which she recognised that there would be exceptions. Secondly, Judge Powell's approach is of course wholly consistent with the trend in the courts to reject arguments based on whether procedural requirements are "mandatory" or "directory". Instead, the courts have focused on the consequences of a failure to comply with a procedural step and asked whether Parliament could have intended that such failure should result in total invalidity (see e.g. R v Soneji [2005] UKHL 49, [2006] 1 AC 340).

(2) The broader context of child support law

30. Secondly, it is important to recognise the broader context of child support law. The National Insurance Commissioner in R(I) 14/74 and the House of Lords in Anufrijeva were both concerned with a citizen versus State dispute. The constitutional principles identified by Lord Steyn inevitably apply with particular force in that context (and all the more so in immigration and asylum cases). However, the context of child support is very different. This is not simply a case of the father versus the State (in the guise of the Agency). Mr Commissioner Rowland (as he then was) referred to the distinction in these terms in CCS/5515/2002 (at paragraph 27):

"In social security cases, it is conventional to regard a decision that is not made in the name of the proper person and that does not contain the required information about reviews or appeals as being no decision at all. That is often the simplest was of unravelling cases that have gone wrong and it prevents the Secretary of State or the Board of Inland Revenue from gaining any advantage through a claimant's failure to challenge a decision in circumstances where that failure may be attributable to the Secretary of State's or Board's own failure to comply with the duty to inform the claimant of his right to challenge the decision. The existence of that duty implies an acceptance by Parliament that many claimants cannot be expected to know what their rights are unless they are told when the decision is issued. However, in child support cases, different considerations apply... In considering the consequences that Parliament intended to flow from a breach of the duty to give a decision in the proper form (Regina v. Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 W.L.R. 355), the respective rights and expectations of the parents must be balanced."

31. This passage might be read as suggesting that child support cases involve a three-way dispute, as opposed to a simple citizen versus State dispute. It may be preferable, however, to see child support cases rather as involving four interests – above all those of the child, but also those of both parents and the State. That broader and multi-party context suggests that the Anufrijeva principle, developed in citizen versus State disputes, may need to be applied with some care.

(3) The particular statutory framework of child support governing the effective date

32. There are undoubtedly some circumstances in which the Anufrijeva principle applies in the child support scheme. For example, in CCS/12848/1996 Mr Commissioner Goodman ruled that the failure to comply with the statutory notification requirements before reviewing a decision under section 18 of the Child Support Act 1991 (now repealed by the Social Security Act 1998) meant that the child support officer's decision that followed was a nullity. But the precise statutory context may be critical. So, for example, under the decision-making regime established by the Social Security Act 1998, which replaced that with which Mr Commissioner Goodman was concerned, the Secretary of State's failure to give notice of an intended supersession on his own initiative did not invalidate the superseding decision (see R(CS) 2/07). The particular statutory framework that applies to ascertaining the effective date of initial child support maintenance assessments must therefore be considered.
33. The starting point must be the statutory responsibility of parents of qualifying children to maintain them (Child Support Act 1991, section 1(1)). That general liability arises independently of the precise mechanism for payment that is established (see CCS/16904/1996 and R(CS) 5/05). Once an application for child support had been made, in this case under section 6, the Secretary of State (in practice the Agency) was under a duty to deal with it "in accordance with the provision made by or under this Act" (section 11(1)). In particular, the formula assessment "shall take effect on such date as may be determined in accordance with regulations"; moreover that date "may be earlier than the date on which the assessment is made" (Schedule 1, paragraph 11(1) and (2) respectively).
34. According to the Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI 1992/1813), the "effective date" means "the date on which a maintenance assessment takes effect for the purposes of the Act" (regulation 1(2)). The commencement and termination of maintenance assessments and maintenance periods is governed by Part VIII of those Regulations. At the material time regulation 30(2)(a)(ii) provided that where there was no current maintenance assessment in force, "the effective date of a new assessment shall be… the date a maintenance enquiry form is given or sent to an absent parent". Regulation 10 also requires a notification of the subsequent maintenance assessment to be sent to those with a right of appeal. That notification must include various items of information, including the effective date of the assessment (regulation 10(2)(b)). There is no suggestion in regulation 10 or elsewhere that any failure to ensure a proper notification of the assessment in good time in any way affects the effective date of that assessment.
35. On that basis, therefore, the effective date was fixed by the date that the MEF was sent to the father at his then correct address in November 2002. In that context "sent" means despatched (see R(CS) 1/99), and indeed, as Mr Commissioner Mesher noted in R(CS) 8/08 "[i]t does not matter on which date the MEF was received or even that it was not received at all" (at paragraph 15). There is nothing in either the primary or secondary legislation to suggest that the fixing of the effective date by regulation 30 is in any way affected by a subsequent failure or delay in communicating the details of the maintenance assessment that follows.
36. On the contrary, in this context Parliament has "in specific and unmistakeable terms" legislated to exclude the Anufrijeva principle. The 1991 Act expressly declares that the effective date "may be earlier than the date on which the assessment is made" (Schedule 1, paragraph 11(2)) and then regulation 30 fixes that date by reference to the date the MEF is sent to the non-resident parent. Indeed, that approach has been found to represent "a roughly fair balance" between the competing interests (see CCS/1154/1999 at paragraph 20 and see further CCS/2288/2005 at paragraphs 43-46).
37. For all these reasons, the Anufrijeva principle is inapplicable in this particular situation. The effective date of the maintenance assessment was the date that the MEF was sent to the father, notwithstanding the Agency's subsequent failings as regards effective notification of the outcome of the assessment.

The father's counter-arguments

38. The father's solicitors have put forward several arguments to the contrary. For the reasons above, I am not persuaded by those arguments. In fairness to the care that they have taken, I should deal with a number of specific points that they have raised.
39. First, it is said that the Agency did not properly effect service of the assessment in accordance with regulation 2 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). That provision refers to notices (including notifications of decisions by the Secretary of State) being given or sent to a person's "last known address". However, that provision does not apply in the present context. Regulation 2 of the 1999 Regulations applies for the purposes of the Social Security Act 1998 and the 1999 Regulations, not for the purposes of the Child Support Act 1991 and the Child Support (Maintenance Assessment Procedure) Regulations 1992, which make separate provision.
40. There is, however, a similar but not quite identical rule in regulation 1(6) of the 1992 Regulations. This provides that where a document is sent to a person's "last known or notified address", then it is treated as having been given or sent on the second day after the day of posting. However, regulation 1(6), as with regulation 2, is a deeming rule – essentially it provides for a statutory presumption of effective service so long as certain criteria are met. It does not deal with the consequences, if any, of an ineffective notification. Moreover, regulation 1(6) is in any event prefaced by the phrase "Except where express provision is made to the contrary".
41. Secondly, the father's solicitors argue that the effective date of the original assessment should be replaced by a different date. One suggestion is that the effective date should be 23 February 2008 (two days after the effective notification to the solicitors). However, that approach is inconsistent with the clear wording of regulation 30 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. An alternative suggestion they make is that the assessment should run from 20 November 2002 (in accord with regulation 30) but only for a fixed period until 25 September 2003 (two days after the father notified his new address). However, assessments can only end in specific circumstances, e.g. if they are cancelled, revised or superseded because they cease to have effect or for some other prescribed reason. There is no legislative support for the notion that an assessment terminates because e.g. the Agency fails to act on a change of address notification or misaddresses an assessment notice.
42. Thirdly, it is said that the father has suffered serious prejudice as a result of the Agency's inefficiency. In one sense this is probably his strongest argument, although of course he was undoubtedly made aware in 2003 of the prospect of facing a child support assessment. Be that as it may, his circumstances will have changed in the intervening period. Indeed, in October 2007 his liability was reduced as from 15 August of that year, as his eldest child came of age, and in December 2007 a new assessment of nil pounds was made (with effect from 14 November 2007) as the father had a new partner, child and changed housing costs.
43. There may, however, be a degree of prejudice in terms of changes in circumstances between November 2003 and December 2007. The November 2003 assessment might have been altered before 2007 if (i) the father had been effectively notified at the right time and then (ii) he had applied, at the appropriate time, for a supersession, e g on the basis of a change in circumstances. The father can still apply for a supersession today, but the difficulty relates to the effective date of any decision made on supersession. The general rule, of course, is that a supersession takes effect from the beginning of the week in which the application is made (Child Support Act 1991, section 17(4)). There are various exceptions to that general rule (see regulation 7B of the 1999 Regulations) but none would appear to apply here, which would seem to rule out any back-dating.
44. However, these arguments do not affect the interpretation of the legislation governing the effective date. It may be that there are ways in which they can be voiced in the context of any action to recover arrears of child support maintenance. Of course, the collection and enforcement of child support are both outside the jurisdiction of the First-tier Tribunal and the Upper Tribunal, and are ultimately a matter for the courts.
45. On the other hand, the magistrates' court, when faced with an application for a liability order against the father, is not able to question the underlying maintenance assessment (Child Support Act 1991, section 33(4) and see Secretary of State for Social Security v Shotton [1996] 2 FLR 241 and Farley v Child Support Agency [2006] UKHL 31). Thus the father's sole means in law of challenging any failure to accommodate changes in his circumstances between 2003 and 2007 in terms of his child support liability might now be by way of judicial review, which seems a less than optimal avenue of redress. This demonstrates (once again) the problems generated by a system of decision-making and appeals in child support cases with multiple rights of appeal through different channels and subject to different constraints.
46. The father may, of course, have other remedies via the Independent Case Examiner and ultimately the Parliamentary Commissioner for Administration (the Ombudsman) if he can show maladministration on the part of the Agency. Such matters are not within the jurisdiction of the tribunals.

Conclusion and disposal

47. The First-tier Tribunal only erred in law because it failed to address the father's argument about the underlying validity of the maintenance assessment and its effective date. There is no other error of law in its decision. Furthermore, the father's solicitors have stated that the maintenance calculation itself – at least, as at November 2003 – is not now disputed.
48. The Commission's representative invites the Upper Tribunal to set aside the decision of the First-tier Tribunal but to re-make it to the same effect. The Upper Tribunal has a discretion as to whether to set aside a tribunal decision which is found to involve an error of law (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)) and, if so, to remit the case to the tribunal or re-make the decision.
49. In the present circumstances, I see no merit in setting aside the decision of the First-tier Tribunal. True, it failed to address the father's argument about the validity and effective date of the assessment. However, for the reasons explained above, the First-tier Tribunal was right to assume (even if it should have explained more fully why) the effective date was 20 November 2002. There is nothing to be gained by setting the tribunal's decision aside in these circumstances, so I decline to do so.

Signed on the original Nicholas Wikeley

on 24 September 2009 Judge of the Upper Tribunal