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[2009] UKUT 3 (AAC) (07 January 2009)

 


DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Oxford appeal tribunal dated 28 April 2008 under file reference 048/07/00831 involves an error on a point of law.

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant's appeal against the Secretary of State's decision dated on 7 March 2007 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions at paragraph 62 below.

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1. The appellant's appeal to the Upper Tribunal (formerly the Child Support Commissioner) is allowed. The decision of the Oxford appeal tribunal dated 28 April 2008 under file reference 048/07/00831 involves several errors on points of law. The case must therefore be reheard by a new tribunal.

T The impact of the new tribunal system on this case

2. This case started as the appellant's appeal to the Child Support Commissioner against the Oxford appeal tribunal's decision. On 3 November 2008 the Tribunals, Courts and Enforcement Act 2007 replaced the appeal tribunal with the Social Entitlement Chamber of the First-tier Tribunal. The 2007 Act also replaced the Child Support Commissioner with the Administrative Appeals Chamber of the Upper Tribunal with effect from the same date. These changes have been made with a view to improving the system of administrative justice as a whole.
3. A Judge of the Administrative Appeals Chamber of the Upper Tribunal, rather than a Child Support Commissioner, has therefore decided this appeal. However, in the context of this particular case these changes only affect the procedures (and tribunal titles) involved – the substantive law relating to the appellant's liability to pay child support maintenance remains exactly the same as before.

The parties to this appeal and the CSA's two schemes

4. In the technical language of the child support legislation, the appellant is the non-resident parent under the maintenance calculation, the first respondent is the Secretary of State for Work and Pensions and the second respondent is the parent with care. For convenience, however, I refer to the parties in this decision as the father, the Secretary of State and the mother respectively.
5. For all practical purposes the Secretary of State's functions in relation to child support were carried out by the Child Support Agency (the CSA) and now the Child Maintenance and Enforcement Commission (CMEC). This case concerns the father's child support liability for the couple's three children (twins, who are now aged almost 20, and a son aged 14) who live with their mother.
6. The legislation currently provides for two child support schemes, an 'old scheme' and a 'new scheme'. In broad terms, cases that predate 3 March 2003 are old scheme cases and cases that have arisen since that date are governed by the new scheme. The distinction is important, as there are some fundamental differences in both the structures and the rules for the two schemes. The present appeal is an old scheme case.

The relevant background to the appeal to the tribunal

7. The father is a British national and has always worked in the United Kingdom. Since his divorce from the mother in 2002, the father remarried, marrying a Thai national in Bangkok on 3 October 2005 (pages 107-109). His new wife gave birth to a son on 20 December 2005 (page 18).
8. On 7 March 2007 the Secretary of State made a maintenance assessment, under which the father was liable to pay £79.98 a week in child support for the three children of his former marriage as from the effective date of 7 April 2006. This liability was increased to £83.02 a week with effect from 4 August 2006.
9. The father appealed against the maintenance assessment (pages 11-12), arguing that he had been given no allowance for either his new wife or new son, both of whom were dependent upon him. The Secretary of State took the view that his wife and son were not resident in the father's household and both lived abroad, and so no allowances were permissible.
10. Meanwhile, the mother complained that the father owed her over £14,000 in arrears of child support maintenance, describing him as a 'vexatious appellant who appeals every maintenance assessment to avoid enforcement action being taken against him' (pages 13-14, original emphasis).

The hearing before the Oxford appeal tribunal

11. A tribunal, comprising an experienced District Chairman, District Tribunal Judge Cole, sat at Oxford on 28 April 2008 to hear the appeal. The father attended with his sister as his representative. Neither the mother nor a presenting officer for the Secretary of State attended. The tribunal's decision was to disallow the father's appeal and to confirm the Secretary of State's maintenance calculation (page 23). District Tribunal Judge Cole set out his reasons for dismissing the father's appeal in detail on the Decision Notice, which stood as the Statement of Reasons (page 26).
12. There were two main issues before the appeal tribunal. The first was whether or not the Secretary of State was correct in refusing to include any allowances for the father's new wife and son in the exempt income calculation for the purposes of the maintenance assessment, on the basis that they were resident overseas. The second was whether or not the father himself could properly be regarded as habitually resident in the United Kingdom.

The facts as found by the Oxford appeal tribunal

13. The tribunal accepted the father's account of his somewhat unusual and cyclical living arrangements. In outline, the father lived for two months with his new wife and son in a property that he had built in Thailand. He apparently did not undertake paid employment while living in Thailand. He then returned to the United Kingdom for a month, during which time he lived with his own parents and worked as a plumber, but left his new wife sufficient funds to support herself and their son during his absence. He then went back to Thailand for two months, before returning to the United Kingdom for another month, and so on throughout the year.
14. The effect of this arrangement, over the course of a whole year, was that the father himself lived in Thailand for eight months (in four two month spells) and in the United Kingdom for four months (in four one month spells). His new son accompanied him to the United Kingdom for two of these latter months, meaning that father and son spent 10 months of the year together. His new wife also accompanied him for one of these months, meaning that they spent nine months of the year living together as a couple.
15. The tribunal found that the new wife had sought to claim child benefit in the United Kingdom but had been refused as she was not resident in this country for long enough each year. On the facts as summarised above, the tribunal concluded that neither the father's new wife nor his youngest son were habitually resident in the United Kingdom.

The tribunal's reasoning on the dependants' allowances in the exempt income

16. The tribunal correctly identified regulation 9 of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (SI 1992/1815) as governing the calculation of the father's exempt income. The tribunal decided that there were two reasons why the father did not qualify for dependants' allowances for his new wife and son under this rule.
17. The first reason was that the regulation referred to the father's hypothetical income support entitlement ('if the parent were a claimant'). However, the tribunal found that he would not be able to claim income support for them as 'they are never in the UK for long enough to establish that they have been here for "an appreciable period of time"', and so were not habitually resident in the United Kingdom.
18. The second reason was that nobody was in receipt of United Kingdom child benefit for the father's son born in Thailand. This was described by the tribunal as 'an additional qualifying factor for the receipt of income support, in respect of children at any rate'. The father now asserts that his new wife has never sought to claim child benefit.

The tribunal's reasoning on the father's habitual residence

19. The question of the father's habitual residence had not been raised by any of the parties before the tribunal. However, District Tribunal Judge Cole was exercising an inquisitorial jurisdiction and quite properly identified this as a live issue on the facts of the appeal as they emerged in the hearing.
20. The tribunal's reasoning and conclusion on this point was as follows:

'I explored this because of the time he spends outside the UK. Against him is that the only country in which he works is the UK which is where he has always worked and which generates sufficient income for him to maintain the slightly unusual living arrangements he described to me. I find that he does remain habitually resident in the UK.'

The proceedings before the Upper Tribunal

21. The father applied for permission to appeal against the tribunal's decision (page 28). The District Tribunal Judge refused permission to appeal (page 32). However, Mr Commissioner Mesher (as he then was, now Judge Mesher) later granted permission to appeal (pages 44-45), whilst also refusing permission to appeal against the tribunal decision under file reference 048/07/01542, heard at the same time (see CCS/2316/2008). As part of the case management process in the Upper Tribunal, this appeal has since been transferred from Judge Mesher for decision by Judge Wikeley.
22. The father has also asked for an oral hearing of the appeal to the Upper Tribunal. However, I am satisfied that I can deal with this appeal to the Upper Tribunal fairly and justly (and certainly more expeditiously) on the papers. The place for an oral hearing is at the rehearing by the new First-tier Tribunal, which will determine the facts and apply the relevant law.

The grounds of the father's appeal against the tribunal decision

23. The father's appeal against the tribunal's decision is essentially on two grounds. First, he argues that he is not habitually resident in the United Kingdom. Secondly, he contends that if, contrary to his first submission, he is indeed habitually resident in the United Kingdom, then he should be able to claim allowances for his new wife and child as part of his exempt income.
24. Mr Ellis, who is the Secretary of State's representative now involved in the appeal, supports the father's appeal to the Upper Tribunal, at least in one respect. Mr Ellis argues that the tribunal was entitled to decide that the father remained habitually resident in the United Kingdom. However, Mr Ellis contends that the tribunal failed to make sufficient findings of fact about the father's exempt income, and in particular about the location of his principal home and the entitlement to allowances for his new wife and son. The mother understandably resists the appeal on both points. Both parents have made detailed submissions on the appeal that I have taken into account in reaching the present decision.
25. In summary, my judgment is that both of the father's grounds of appeal succeed. The tribunal's decision involves an error of law in both respects. I must therefore allow the father's appeal to the Upper Tribunal. I cannot, however, decide what the final outcome should be as regards the father's appeal against the Secretary of State's maintenance assessment – that is a matter for the fresh tribunal that rehears the father's appeal to decide, having made the appropriate findings of fact on all the relevant evidence before it.

The father's habitual residence: the tribunal's decision

26. Mr Ellis's helpful submission sets out the legislative background and some of the main principles to be applied in establishing habitual residence. In particular, the Secretary of State only has jurisdiction to make a maintenance assessment where the father is habitually resident in the United Kingdom (Child Support Act 1991, section 44(1)). Furthermore, if the father ceases to be habitually resident in this country, then the assessment must be cancelled (Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 (SI 1992/2645), regulation 7).
27. Mr Ellis notes that there is no dispute that the father was habitually resident in the United Kingdom prior to the effective date of the assessment. The question, therefore, is whether that habitual residence has been lost. Mr Ellis refers to the guidance contained in previous decisions of the Child Support Commissioners, notably unreported decisions CCS/1307/2001, CCS/517/2004, CCS/3818/2006 and CSCS/6/2006.
28. Drawing on those authorities, Mr Ellis asserts that the issue was whether the father in the present case had lost his habitual residence in the United Kingdom, not whether he had acquired a habitual residence in another country. Tribunals have a margin of judgment in such matters. Given that a person may be habitually resident in more than one country, Mr Ellis argues that this tribunal was entitled to reach the conclusion that it did and gave a sufficient explanation for its decision.
29. I am satisfied that District Tribunal Judge Cole asked himself the right question, namely whether or not the father had lost his habitual residence in the United Kingdom. I also agree that in principle the tribunal reached a decision that it was entitled to make on the evidence before it. However, unlike Mr Ellis, I am not satisfied that the tribunal either made sufficient findings of fact or gave adequate reasons for its decision. Although the tribunal made careful findings as to the respective periods of time that the father spent both in this country and in Thailand, it is not clear how long that arrangement had been in place.
30. There are also no findings of fact as to whether the father owns any property in the United Kingdom (either in terms of land or other capital assets), whether he has a bank account here, or the nature and extent of any other ties with the United Kingdom. Instead, the tribunal focussed on the single factor of the father's continued employment in the United Kingdom, but without considering whether the nature of that employment had changed at all in the light of his now somewhat unusual living arrangements, or how it weighed in the balance with any competing factors. Overall, this approach involves an error of law, which means that I must set aside the tribunal's decision.

The father's habitual residence: guidance to the new tribunal

31. There is extensive discussion in the authorities on the meaning of 'habitual residence'. As Lord Slynn of Hadley explained in Nessa v Chief Adjudication Officer [1999] UKHL 41, 'as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period'. Lord Slynn also referred to the speech of Lord Brandon in the earlier case of In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, where the issue was whether a child had ceased to be habitually resident in Western Australia, when his mother had taken him away with the settled intention of living in England. Lord Brandon stated (at 578) that:

'A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so.'

32. In Nessa, Lord Slynn made this further comment on the concept of residence for an appreciable period:

'It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, "durable ties" with the country of residence or intended residence, and many other factors have to be taken into account.'

33. Habitual residence is, of course, a concept that is used in several different areas of the law. In M-T v T [2005] EWHC 79 (Fam), a decision of the High Court under the Matrimonial Causes Act 1973, Charles J helpfully set out the following propositions of law (at paragraph 68):

'i) Habitual residence is in each case a question of fact. Any temptation to turn it into an abstract proposition equivalent to domicile should be resisted.

ii) However, habitual residence is not equivalent to physical presence. There can be habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence.

iii) Residence means living somewhere. The significance of "habitually" is that it connotes residence adopted voluntarily and for settled purposes.

iv) Although habitual residence in one country can be lost immediately, acquisition of a new habitual residence requires "an appreciable period of time".

v) The length of the "appreciable period of time" is not fixed since it depends on the nature and quality of the connection with the new jurisdiction. However, it may only be a few weeks: perhaps in some circumstances even days.

vi) In order to establish habitual residence over a period of time, a person must spend more than a token part of that period in the country in question.

vii) There is no fixed rule as the proportion of the overall period which must have been spent in the country in question. It is not simply a matter of counting days, since the nature and quality of time spent will also be relevant

viii) Habitual residence is not broken by "temporary or occasional absences of law or short duration".

ix) It is possible to be habitually resident in more than one country at the same time.'

34. Clearly the father in the present case was habitually resident in the United Kingdom in the past. The question is whether he has either retained or lost that habitual residence (and not whether he has acquired a habitual residence in Thailand, as he may well have done). It is possible to lose habitual residence 'by merely leaving the country, provided that the circumstances show that that place is no longer to be one's settled abode' (Mr Commissioner Jacobs in CCS/3818/2006 at paragraph 16).
35. Mr Commissioner Rice provided some guidance at paragraph 9 of R(CS) 5/96 to the following effect:

'As I understand it, the purpose underlying the child support legislation is the social need to require absent parents to maintain, or contribute to the maintenance of, their children. In determining as question of fact whether in the above context a person has ceased to be habitually resident in this country, it appears to me that emphasis should be put on factors directed to establishing the nature and degree of his past and continuing connection with this country and his intentions as to the future, albeit the original reason for his move abroad, and the nature of any work being undertaken there are also material. It is not enough merely to look at the length and continuity of the actual residence abroad.' (original emphasis)

36. In this context, however, I note and agree with the reservation expressed by Mr Commissioner Mesher in CCS/1229/2000 (at paragraph 16), namely that some of the comments of Mr Commissioner Rice in R(CS) 5/96 need to be read with some care given the developing case law on the concept of habitual residence.
37. In essence, the new tribunal will have to ask itself whether the father has an ongoing connection with the United Kingdom which is consistent with him having maintained a settled abode in this country (irrespective of what ties he has also established in Thailand). He need not have decided, when first going to live in Thailand, to live there forever more – as Mr Commissioner Jacobs observed in CCS/3818/2006 (at paragraph 20), going to work in the Gulf on a two-year contract may – on the facts of that particular case – indicate an intention to abandon habitual residence on these shores. On the other hand, the father in the present case has lived in the United Kingdom all his life and continues to reside here for several months each year, rather than merely visit from time to time.
38. The new tribunal will need to make its own findings of fact on the periods that the father is living in the United Kingdom and Thailand respectively on all the material evidence before it. It will also have to investigate the nature and features of the father's employment as a plumber at the time when he previously lived throughout the year in the United Kingdom and compare those arrangements with those in place at the relevant time, namely between the effective date of the decision under appeal (7 April 2006) and the date that decision was actually made (7 March 2007).
39. It is clear that where there is no change at all in a non-resident parent's employment, or on the basis of his liability for tax and national insurance contributions, that may be a factor which is an indicator of stability (and so continued habitual residence). This was certainly accepted by an Extra Division of the Inner House of the Court of Session in L A v Secretary of State for Work and Pensions 2004 SCLR 840. In that case the father was a Dutch national employed by a German company but working in the oil industry in the British sector of the Continental Shelf (paying tax and national insurance in the United Kingdom). The Court of Session held that the tribunal was entitled to find that the absence of change in the father's employment pointed towards no change in his habitual residence (reversing the decision of Mr Commissioner May QC in CSCS/8/2001).
40. However, as Mrs Commissioner Parker noted in CSCS/06/2006, the basic rule is that even a non-resident is liable to pay income tax in the United Kingdom on earnings from employment in the United Kingdom. It follows that the mere fact that the father in the present case is continuing to pay income tax in this country is not of itself a major factor in deciding whether or not he has ceased to be habitually resident in the United Kingdom.
41. The new tribunal is advised to consider carefully the helpful guidance of Mrs Commissioner Parker at paragraphs 20 and 21 of CSCS/06/2006:

'20. In determining whether a person has ceased to be habitually resident, one must consider the circumstances of their departure and what followed it in order to determine whether it can be inferred that there is no longer the necessary intention to regard the United Kingdom as a home (it does not have to be the only such place); the period abroad may become of such a degree and nature that it is incompatible with a continuing habitual residence in the United Kingdom. The relevant factors were set out by Mr Commissioner Rice in R(CS) 5/96 in the passage I have already quoted at my paragraph 17 above. One cannot take account of the period abroad in this case, because it post dates the relevant decision, except to the extent that what happened later indicates what were his intentions on leaving.

21. There is nothing in the present case about the father's circumstances, his former life, his current work, his ties in this country (in particular his two children here) to suggest that the father will not in due course return to this country or that he has in any way abandoned his close connection with it. While one cannot give general guidance because so much depends on the circumstances of each case, and on the settled intentions of the person in question, there must at minimum in my view be evidence that he has "burned his boats" with respect to continuing residence in this country; where, utilising as analogous in reverse, the factors suggested by Lord Slynn in Nessa v Chief Adjudication Officer [1999] 4 All ER 677 as relevant to the acquisition of habitual residence, the person leaving takes all his possessions, does everything necessary to establish residence in the new country before going there, seeks to take a family, already has 'durable ties' to the country of new residence and severs ties with his former home, some or all of this may suggest he has ceased to be habitually resident in the latter country. Someone who goes abroad to take up a job without these sorts of indicators, however, would not, in general, lose their habitual residence immediately. As ever, it is a question of fact in the individual case.'

42. In deciding whether or not the father has ceased to be habitually resident in the United Kingdom, the new tribunal may wish to explore the following issues and make appropriate findings of fact for the relevant period:

•    What differences, if any, were there between the father's employment in the United Kingdom in the past and his employment here since he started spending the majority of the year in Thailand?

•    Did the father own, either alone or jointly with another, any land or other real property in the United Kingdom?

•    Did the father own or have the use of any vehicle for private and /or business use in the United Kingdom?

•    Did the father have any savings, investments or other capital or assets in the United Kingdom?

•    If he owned any property in the United Kingdom at the outset of the relevant period but sold it during that period, when and why was such property sold?

•    What were the father's living arrangements in the United Kingdom during the relevant period?

•    What personal possessions did the father keep in the United Kingdom and where?

•    Was the father liable for council tax or on the electoral roll in the United Kingdom?

•    Did the father retain membership of any trade associations, clubs or societies in the United Kingdom?

•    Has the father any insurance policies for business and/or domestic coverage in the United Kingdom?

•    Last but not least, did the father have any contact with any of the three qualifying children or other family members in the United Kingdom during the relevant period?

43. Finally, the new tribunal must at all times bear in mind the following three matters:

(1) by statute the tribunal must not have regard to circumstances which were not obtaining at the time that the decision appealed against. This means that events since 7 March 2007 are not relevant, except in so far as they may shed light on what the circumstances were before that date (Child Support Act 1991, section 12(7)(b));

(2) previous case law is helpful in determining the framework for deciding issues of habitual residence, but the facts of each case must be considered separately;

(3) the issue in this case is whether the father retained his habitual residence in the United Kingdom at the material time, and not whether he has established a sole or concurrent habitual residence in Thailand. It is possible, at least under domestic law, to have two habitual residences (see e.g. Ikimi v Ikimi [2001] EWCA Civ 873).

44. If – and that is by no means self-evident – the new tribunal decides that the father had ceased to be habitually resident in the United Kingdom, that means that he is no longer subject to any further liabilities under the Child Support Act 1991. However, in that scenario he might well then be liable for child maintenance in the ordinary civil courts, as Mr Commissioner Mesher explained in CCS/1229/2000 at paragraph 20:

'20. The second result of a ruling that the present case falls outside the jurisdiction of the child support system is that there is nothing to take away the powers of the ordinary courts to order payments of maintenance for the child in question under family law legislation. In such cases it does not matter if one parent is not habitually resident in the United Kingdom if the other parent has a sufficient connection. The normal rule is that any order under that legislation is for a period starting with the date of the application under the legislation. But special provision has been made for cases where a child support maintenance assessment is cancelled or ceases to have effect and allows an order to be made for a period, in cases of cancellation, starting with the date from which the cancellation had effect. An application must be made within six months of the date when the cancellation is made. These rules are in the Child Maintenance Orders (Backdating) Order 1993 (SI 1993 No 623)...'

The dependants' allowances in the exempt income

45. Assuming for present purposes that the father was habitually resident at the relevant time, and so subject to a liability under the 1991 Act, his assessable income for the purposes of the child maintenance assessment is calculated by deducting his exempt income from his net income (Child Support Act 1991, Schedule 1, paragraph 5(1)). The father's exempt income is the aggregate of various amounts based on income support rates (regulation 9(1) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (SI 1992/1815)). According to regulation 9(1)(g), this aggregate includes

'(g) in respect of each relevant child—

(i) an amount equal to the amount of the personal allowance for that child, specified in column (2) of paragraph 2 of the relevant Schedule (income support personal allowance) or, where paragraph (2) applies, half that amount;'

46. Was the father's new son, born in Thailand, a 'relevant child' for these purposes? Regulation 1(2) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 defines a 'relevant child' as 'a child of an absent parent or a parent with care who is a member of the same family as that parent'. The same regulation defines a 'family' to include 'a couple … and any child or children living with them for whom at least one member of that couple has day to day care' and a 'couple' to include 'a man and woman who are married to each other and are members of the same household'. Finally, the same regulation defines 'day to day care' as including 'care of not less than 104 nights in total during the 12 month period ending with the relevant week'.
47. As Mr Ellis argues, on the tribunal's findings of fact there seems no doubt but that the father and his new wife are a couple and both members of the same family as their son, for who they each provide day to day care in the same household, notwithstanding any temporary absences. On that basis the father's new son is a relevant child in respect of whom an allowance should be made under regulation 9(1)(g).
48. Regulation 9(1)(g) is not in fact governed by the phrase 'if the parent were a claimant', an expression which appears only in some of the sub-paragraphs of regulation 9(1). The tribunal erred in law by making that assumption. There is no separate requirement in regulation 9 or elsewhere in the 1992 Regulations to the effect that the 'relevant child' must be habitually resident in the United Kingdom. So long as the child in question is a member of the same family as the non-resident parent, applying the interconnecting definitions in paragraph 46 above, then he or she counts as a relevant child, irrespective of that child's own territory of habitual residence.
49. Similarly, while it is certainly the case that entitlement to old-style income support personal allowances for children is predicated on entitlement to child benefit, there is no such requirement on the face of regulation 9(1)(g). It follows that the child benefit issue was a red herring.
50. Assuming that the father was habitually resident, and so subject to a maintenance assessment, it follows that he should have been entitled to an allowance for his son by virtue of regulation 9(1)(g). This allowance is at the appropriate rate for a child's personal allowance in the pre-child tax credit income support scheme. If the father's new wife has her own independent income, then as Mr Ellis points out the allowance may be half that rate, if regulation 9(2) of the 1992 Regulations applies.
51. Regulation 9(1) of the 1992 Regulations does not make any express provision for an allowance in respect of a non-resident parent's new partner. However, provision is made for an allowance equivalent to the family premium in the income support scheme where regulation 9(1)(f) applies:

'(f) where, if the parent were a claimant, the conditions in paragraph 3 of the relevant Schedule (income support family premium) would be satisfied in respect of a relevant child of that parent, the amount specified in that paragraph or, where those conditions would be satisfied only by virtue of the case being one to which paragraph (2) applies, half that amount.'

52. The family premium has now been abolished for the purposes of the income support scheme, except for certain existing cases (Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (SI 2003/455), regulation 2 and Schedule 1, paragraph 20(a)). Those amendments apply for the purposes of the income support scheme alone (and indeed there remain some income support claimants who have not 'migrated' to the child tax credit scheme). I therefore conclude that the statutory provision relating to the income support family premium has retained sufficient existence to be used by reference in the child support 'old scheme'.
53. The tribunal took the view that the use of the qualifying words 'if the parent were a claimant' meant that the father had to demonstrate that he and his new family were habitually resident within the United Kingdom. I disagree. It is reading too much into this expression to conclude that the phrase imports into the child support old scheme all the conditions of entitlement to income support. If that were the intention, the expression would have been drafted to read: 'if the parent were a claimant and met all the conditions of entitlement to income support'. Clearly many non-resident parents would fail to qualify for income support on income or capital grounds, but the regulation does not say: 'if the parent were a claimant and disregarding the income and capital eligibility criteria'.
54. The purpose of using the income support personal allowances and premiums in the child support old scheme is to provide a simple basis for calculating a non-resident parent's essential living costs by way of his exempt income. It is not meant to incorporate all the complexities of the income support system into an already over-complicated child support scheme.
55. It follows that the tribunal's decision involves a further error of law by failing to allow the father the family premium as part of his exempt income (or half of that sum if his new partner has her own income and regulation 9(2) applies).

Further issues

56. Mr Ellis's submission raises two other issues relating to the calculation of the father's housing costs and his protected income. Under the old scheme a non-resident parent may receive an allowance for his housing costs in calculating his exempt income. Housing costs are allowed only in respect of his 'home'. This is defined by regulation 1(2) of the 1992 Regulations as follows:

' "home" means—

(a) the dwelling in which a person and any family of his normally live; or

(b) if he or they normally live in more than one home, the principal home of that person and any family of his…'

57. The tribunal made no specific finding of fact as to the father's home. On the facts that it did find, the father and his new family live in two homes – the home he built in Thailand and his own parents' home in the United Kingdom. The question is then which is their 'principal home' within the meaning of limb (b) of the above definition.
58. This is a question of fact for the new tribunal to determine. It is not decided simply by the length of time spent in each respective property. However, there is clearly a very strong case on the facts as found by the previous tribunal for concluding that the Thai home is the father's principal home. It will then be necessary to establish whether there are any eligible housing costs in relation to that home.
59. There appears to be some dispute as to whether the father is paying his parents any rent when he is living in the United Kingdom. This dispute may have little relevance in practice. If the father's principal home is, contrary to first appearances, found to be his parents' home, then, as the tribunal correctly noted, any rent paid could not qualify as eligible housing costs as his parents are obviously his close relatives of his (see paragraph 4 of Schedule 3 to the 1992 Regulations).
60. Finally, the calculation of the father's protected income would need to include elements in respect of both his new partner and new child. The question as to whether his new wife has an income of her own would also be relevant at this stage of the assessment.

Conclusion

61. For the reasons explained above, the decision of the tribunal involves a number of errors of law. I must therefore allow the appeal and set aside the decision of the tribunal. The case must be remitted for rehearing by a new tribunal subject to the directions that follow. My decision is as set out above.

Directions

62. The following directions apply:

(1) The rehearing will be at an oral hearing.

(2) The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

(3) The Secretary of State should arrange for the attendance of a presenting officer at the rehearing, ideally in person or, failing that, and if possible, by video link.

(4) The parties are reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

(5) The parties should bring to the hearing the originals of any evidence on which they intend to rely (for example, passports as evidence of periods of residence here and overseas).

(6) The new tribunal should consider in particular:

(i) did the father retain his previous habitual residence in the United Kingdom throughout the relevant period?

(ii) if he did, which of the amounts based on the income support personal allowances and premiums are to be included in his exempt income (bearing in mind the need to establish whether his new wife has her own income);

(iii) where is the father's principal home, and does he have any eligible housing costs for that home?

(iv) how should the father's protected income be calculated?

(7) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.

These directions are subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

63. Finally, I note that the mother did not attend the hearing of the original appeal at Oxford. This may be accounted for by her allegation of having suffered a history of domestic violence (page 73). However, I note the father's counter-allegation that the mother has been convicted on two occasions of (unspecified) 'violent crimes' (page 81).
64. In this context I remind the parties that tribunal hearings are judicial proceedings, although they are typically less formal than in the ordinary courts. There is usually a security presence and the parties in child support appeals can normally be given access to separate waiting rooms. The tribunal can only make its decision on the evidence before it, including both written and oral evidence, and so a party is usually best advised to attend a hearing in order to ensure that all the points that he or she wishes to make are duly made.

Signed on the original Nicholas Wikeley

on 7 January 2009 Judge of the Upper Tribunal