Northern Ireland - Social Security and Child Support Commissioners' Decisions

BR-v-Department for Social Development (CS) [2014] NICom 2

Decision No:  CSC1/13-14

 

 

 

 

1^ST RESPONDENT: DEPARTMENT FOR SOCIAL DEVELOPMENT

 

2^ND RESPONDENT: MS VS

 

 

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

 

 

Appeal to a Child Support Commissioner

on a question of law from a Tribunal’s decision

dated 7 October 2011

 

 

DECISION OF THE CHILD SUPPORT COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 7 October 2011 is not in error of law.  Accordingly the decision of the appeal tribunal is confirmed and the appeal to the Child Support Commissioner does not succeed.  This will come as a disappointment to the appellant and to his representative.  As will be noted in greater detail below, a decision of an appeal tribunal may only be set aside by a Child Support Commissioner on the basis that it is in error of law.  An appeal to the Child Support Commissioner requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law.  Having considered all of the documentation provided by and on behalf of the appellant, and the grounds set out therein, I am satisfied that no error of law can be identified.

 

2.     The appellant has an energetic and effective advocate who has been articulate in voicing her and the appellant’s concerns with the decision-making process giving rise to the decision under appeal and the decision of the appeal tribunal below.  The appellant and his representative have concerns about the decision-making process in ‘child support multiple assessment’ cases and, more particularly, the impact which can occur when the circumstances of different parents with care are taken into account in deciding the levels of child support maintenance which are payable and for which periods.  The task of the Child Support Commissioner in deciding an appeal is to decide, on the basis of submissions which have been made, whether any error of law in the decision of the appeal tribunal below has been identified.  For the reasons which are set out below I am satisfied that no such error can be identified.

 

         Parties to the appeal before the Child Support Commissioners

 

3.     The appellant is Mr BR.

 

The Department is the first respondent.

 

The second respondent is Ms VS.  She is a parent with care over a child of the appellant.  She will be referred to in the remainder of this decision as PWC2.

 

There is a second parent with care, Miss H, who has care over two other of the appellant’s children.  She will be referred to in the remainder of this decision as PWC1.

 

         Decision-making giving rise to the appeal to the appeal tribunal

 

4.     On 29 January 2010 a decision-maker in the Child Maintenance and Enforcement Division (CMED) decided that the appellant was liable to pay child support maintenance of £11.45 each week in respect of his and PWC2’s child.

 

5.     On 31 March 2010 the decision dated 29 January 2010 was superseded.  An interim maintenance assessment was put in place the effect of which was to increase the amount of the appellant’s child support maintenance liability in respect of PWC2’s child from £11.45 to £152.46 per week from the effective date of 6 April 2010.

 

6.     A series of supersession decisions were made on 12 August 2010.  As a result of these decisions the appellant became liable to pay weekly child support maintenance of £44.20 in respect of his and PWC2’s child from the effective date of 30 December 2008.  Further it was decided that the appellant was liable to pay weekly child support maintenance of £36.58 at the effective dates of 5 May 2009 and 26 May 2009; £38.94 at the effective dates of 25 August 2009 and 22 December 2009; £23.28 from the effective date of 29 December 2009 and a nil amount from the effective date of 2 December 2010.

 

7.     On 18 August 2010 the decisions made on 12 August 2010 were reconsidered but were not changed.  An appeal against the decisions dated 12 August 2010 was received on 13 September 2010.

 

         Proceedings before the appeal tribunal

 

8.     A first appeal tribunal hearing took place on 28 April 2011.  The appeal was listed together with a second appeal in connection with child support maintenance decisions related to the children of the appellant and PWC1.  Further information was required in relation to the connected appeal and both appeals were adjourned.  The appeal was re-listed for hearing on 8 July 2011.  Once again the appeal was adjourned as yet further information was required in relation to the connected appeal.

 

9.     A final appeal tribunal hearing took place on 7 October 2011.  The appellant was present and was represented.  PWC2 was present.  A Departmental presenting officer was also present.  The appeal tribunal disallowed the appeal and confirmed the decisions dated 12 August 2010.

 

10.   On 5 April 2012 an application for leave to appeal to the Child Support Commissioner was received in the Appeals Service.  On 8 May 2012 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

         Proceedings before the Child Support Commissioner

 

11.   On 7 June 2012 a further application for leave to appeal was received in the Office of the Child Support Commissioners.  On 3 October 2012 written observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’) and these were received on 30 October 2012.  In these written observations, Mr Crilly, for DMS, submitted that the decision of the appeal tribunal was not in error of law.  Written observations were shared with the appellant, PWC2 and their representatives on 6 November 2012 and 10 December 2012.

 

12.   On 7 January 2013 written observations in reply were received from the appellant’s representative although the written observations are dated 29 December 2012.  These observations in reply were shared with Mr Crilly on 8 January 2013.  During the course of the spring of 2013 a Tribunal of Child Support Commissioners in Northern Ireland was considering an appeal involving, inter alia, maintenance awards in ‘multiple unit’ cases.  Consideration was given to the possibility of ‘staying’ this appeal pending the outcome of the decision in the appeal before the Tribunal of Commissioners.  It was decided, eventually, that no such stay should be directed.  Nonetheless, a copy of the decision in the appeal before the Tribunal of Child Support Commissioners was forwarded to the appellant and his representative.

 

13.   On 21 May 2013 I granted leave to appeal.  In granting leave to appeal, I set out, as reasons that:

 

‘Leave to appeal is granted as I am satisfied that arguable issues have been raised as (i) to the manner in which the appeal tribunal addressed the issues raised by the appeal (ii) the way in which the oral hearing was conducted by the appeal tribunal and whether proper procedures were followed (iii) the extent to which the appeal tribunal applied the relevant legislative provisions (iv) the extent to which the conclusions of the appeal tribunal on the issues arising in the appeal are logical and coherent and (v) the adequacy of the reasons for the appeal tribunal’s decision.’

 

14.   I also directed that an oral hearing of the appeal would not be required but invited a further submission from the appellant’s representative.  A further written submission from the appellant’s representative was received on 20 June 2013 and was shared with Mr Crilly on 2 July 2013.  Mr Crilly provided a further submission in reply on 4 July 2013 which was shared with the appellant and his representative on 9 July 2013.  On 16 July 2013 further correspondence (sent through a fax) was received from the appellant’s representative in which she queried certain aspects of the procedure for sharing of observations and submissions.  The legal officer replied to the appellant’s representative on 16 July 2013.  Further correspondence was received from the appellant and his representative on 19 July 2013, 29 July 2013, 31 July 2013, and 8 August 2013.  On 26 September 2013 the legal officer wrote to the appellant indicating that he was of the view that all final submissions had been made and that the papers would be placed before the Chief Child Support Commissioner.

 

         Errors of law

 

15.   A decision of an appeal tribunal may only be set aside by a Child Support Commissioner on the basis that it is in error of law.  What is an error of law?

 

16.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)       giving weight to immaterial matters;

(v)        making a material misdirection of law on any material matter;

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         The background to the decision-making process in CMED

 

17.   In his initial written observations on the application for leave to appeal Mr Crilly set out the background to the decisions which were taken in CMED on 12 August 2010.  It is appropriate to set out that background which is as follows:

 

‘In its decisions dated 12.08.10, CMED considered the personal circumstances of both PWC 2 and (the appellant) at each of the effective dates.  In the interests of clarity, I will address each of the decisions in turn.

 

First decision – effective date 30.12.08.

 

As noted in paragraph … of these observations, an interim maintenance assessment was put in place on 31.03.10.  This had been carried out because the decision maker determined that (the appellant) had failed to provide information that had previously been requested.  The required information was then provided and the interim maintenance assessment was replaced by a formal maintenance assessment with an effective date of 30.12.08.

 

In carrying out this assessment, the decision maker had regard to the NRP’s employed earnings for the period 27.12.08 to 28.02.09.  (The appellant) was determined to have a net weekly income of £314.91.  The decision maker also considered the issue of the NRP’s housing costs but concluded that the latter had not provided any information in relation to these.  As a result, the maintenance assessment was carried out on the basis that no housing costs were taken into account in relation to the NRP.  This remained the case for the following decision effective from 05.05.09 as outlined below.

 

It was confirmed that PWC 2 was in receipt of working tax credits at the effective date of 30.12.08.  Consequently, in accordance with regulation 10A of the MASC Regulations, she was regarded as having no assessable income for child support purposes.  PWC 2 remained in receipt of working tax credit throughout the whole of the period under consideration and so was regarded as having no assessable income in all of the succeeding maintenance assessments.

 

Taking all of the relevant information into account, the decision maker decided that the NRP was liable to pay child support maintenance of £44.20 per week to PWC 2 in respect of ‘L’.

 

Second decision – effective date 05.05.09

 

This supersession was carried out because a change in PWC 1’s circumstances.

 

The NRP’s earnings details for this assessment remained unchanged from the previous one as outlined above in paragraph 23.  (The appellant) was liable to pay child support maintenance of £36.58 per week to PWC 2 as a result of this supersession.

 

Third decision – effective date 26.05.09

 

The NRP reported a change in his housing costs from 01.06.09 in that he had taken out a mortgage from that date.  However, he did not provide further verification in relation to this when he was asked to do so.  With this in mind, the decision maker determined that there was not sufficient information available to allow the mortgage to be taken into account in the maintenance assessment and so decided to refuse to supersede.  The NRP’s child support liability remained at the amount of £36.98 per week.

 

Because the requested further information in respect of the NRP’s housing costs was still not available when the succeeding decisions were made, the decision maker determined that no allowance could be made for them in the resulting maintenance assessments.

 

Fourth decision – effective date 25.08.09

 

(The appellant) reported a change in his employed earnings on 28.08.09.  The decision maker confirmed with (the appellant’s) employer that the wages paid to the NRP over the period of 28.08.09 to 25.09.09 represented a true reflection of his earnings.  When these figures were taken into account, his weekly net income was determined to be £326.34.  (The appellant’s) weekly child support liability increased from £36.58 to £38.94 as a result of this supersession.

 

Fifth decision – effective date 22.12.09

 

On 22.12.09, (the appellant’s) partner contacted CMED to advise that the NRP was incurring travel to work costs which should be taken into account in his maintenance assessment.  It was stated at this time that these costs arose from (the appellant) travelling from his home in Downpatrick to his employment in Belfast.

 

The decision maker in CMED contacted the NRP’s employer in relation to this.  The employer confirmed that (the appellant) travelled from his home to the company’s office in Downpatrick from whence he then drove a company lorry to various sites.

 

The decision maker determined that the NRP did not incur travel to work costs and refused to supersede the maintenance assessment.  As a result, (the appellant) remained liable to pay child maintenance of £38.94 to PWC 2.

 

Sixth decision – effective date 29.12.09

 

The NRP reported a further change in his earnings on 30.12.09.  After consulting with (the appellant’s) employer, the decision maker had regard to the wages paid during the period 08.01.10 to 12.02.10.  The employer confirmed that these figures provided a true and accurate reflection of what the NRP was earning at the effective date of 29.12.09.  The decision maker determined that (the appellant’s) weekly net income was now £246.38.  When this was taken into account, his weekly child support liability in relation to PWC 2 was reduced from £38.94 to £23.28.

 

Seventh decision – effective date 02.02.10

 

This decision was carried out as a result of another change in the NRP’s earnings.  The decision maker had regard to the wages paid to the NRP during the period of 19.02.10 to 19.03.10.  This resulted in the determination that (the appellant’s) weekly net income was now £172.64 which had the effect of reducing his child support liability from £23.28 to a nil amount each week.’

 

         Analysis

 

18.   In arriving at this decision I have taken into account all of the case papers which include all of the documentation relating to the application, and all supporting statements and materials.  This documentation includes the responses made by the appellant and his representative to the written observations made by Mr Crilly on behalf of DMS, further correspondence received from the appellant’s representative and records of telephone conversations which she has had with the legal officer in which she has made further submissions.  Additionally, I have considered the responses received from Mr Crilly.

 

19.   I begin by addressing the grounds which were set out in the original application for leave to appeal which was before the LQPM.  The first ground on which it was submitted that the decision of the appeal tribunal was in error of law was that the appeal tribunal:

 

‘… had not assessed the appeal ‘on material facts’ or on ‘regulation’ or had ‘ignored effective dates within the calculations.’

 

20.   As was noted by Mr Crilly in his original written observations on the application for leave to appeal, the appeal tribunal had before it, as did all of the parties to the proceedings, a detailed written submission prepared by the Department.  In that written submission the Department had provided a detailed analysis of the reasoning behind the decisions which were made on 12 August 2010.  Further that detailed analysis set out the manner in which the maintenance assessments were carried out and the figures utilised in arriving at the calculations for each of the effective dates.  Further, the detailed written submission included specific references to the legislative provisions which were applicable to the decision-making process carried out on 12 August 2010, particularly the legislative provisions relating to power to undertake a supersession.

 

21.   As was noted above, the hearing of the appeal was adjourned on two occasions – 28 April 2011 and 8 July 2011.  On each occasion the record of proceedings for the adjourned oral hearing demonstrates that the appeal tribunal were aware of and noted the issues which the appellant and his representative wished to raise concerning the decision-making process which took place on 12 August 2010.  Further, the LQPM, on each occasion but particularly on 8 July 2011 issued detailed adjournment directions including questions on which he required further submissions from the Department.  Those questions were clearly aimed at addressing specific issues raised by the appellant and his representative.  The LQPM also required the attendance of a Departmental presenting officer.  The procedural steps undertaken by the appeal tribunal clearly reflect the tribunal’s concerns to exercise its inquisitorial role to explore in depth the issues arising in the appeal and, in particular, to ensure that specific issues which had been raised by the appellant and his representative were addressed.  Indeed, in the reasons set out for the adjournment of the oral hearing held on 8 July 2011 it is noted that the adjournment was for the provision of a specific response from the Department ‘… to the queries raised by the Appellant’s representative.’  Further it is clear from the record of proceedings for the substantive oral hearing of the appeal that the appellant and his representative were given every opportunity to raise the issues which were of significance to them.

 

22.   In the statement of reasons for its decision, the appeal tribunal had recorded, inter alia that:

 

‘The details of that decision affecting the maintenance payable for various effective dates … can be found at pages B86 to B212 of the Department’s written submission.  The Department’s written submission includes a detailed case summary at pages A2 to A9.  The Tribunal adopts this summary for the purposes of these reasons.

 

…

 

PWC1’s wages calculation

 

The dispute here is on the basis that the Department did not use sufficient information on PWC1’s wages or, in the alternative that the wage details used are inaccurate.  The Appellant’s Representative disputed the validity of PWC1’s wage details.  The Tribunal adjourned the case in order to seek clarification on these details.  Having done so we are satisfied that those details are accurate and to the PWC1’s income has been correctly calculated in accordance with Paragraphs 1 and 2 of Schedule 1 of the Child Support (Maintenance Assessments and Special Cases) Regulations (N.I.) 1992.  The evidence also clearly shows that the Appellant’s income has also been accurately assessed in accordance with the above legislation.

 

Housing costs of PWC1 (one)

 

The Appellant and his representative raised a number of issues in this respect both in correspondence and before the Tribunal chiefly in respect of the Department’s assessment and timing of that assessment.  The Department in its original submission and in its addendum dated 14.4.11 has addressed the issue of these housing costs which have been verified by the provider.  The Appellant has not provided any evidence other than unfounded allegations as to their validity.  The Tribunal accepts that these costs have been accurately assessed in accordance with Schedule 3 of the above Maintenance Assessments and Special Cases Regulations.  We are further satisfied that the Department has properly applied the legislation in this case in a timely manner when the relevant information has been provided by the PWC1.

 

The Appellant’s housing costs

 

The Department has over a protracted period of time sought information from the Appellant in relation to his housing costs.  The information was, at first, not forthcoming and, in due course, was only supplied in a limited manner.  There have been a number of re-mortgages during the course of the periods under appeal.  The Department contends that without further information in this respect it cannot consider the Appellant’s housing costs when addressing his liability to Child Support Maintenance.  The Tribunal is satisfied, on the evidence that the Department’s approach in relation to the Appellant’s Housing costs is in accordance with the above Regulations and in particular Schedule 3 of those Regulations.

 

…

 

PWC1’s additional income

 

As outlined above the Tribunal is satisfied, on the evidence, that the PWC1’s income has been correctly calculated in accordance with the relevant legislation.

 

The accuracy of the Department’s assessments

 

It follows from the above findings that the Tribunal accepts the assessments of the Department in respect of the decision taken on 12.8.10.’

 

23.   From that detail, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.

 

24.   The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.  In particular, the appeal tribunal correctly applied the legal rules with respect to the supersession of decisions.  The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

25.   Based on the comprehensive inquiries made by the appeal tribunal, its detailed investigation of all of the issues arising in the appeal at three oral hearings and its vigilance to the requirement to hear, consider and address the specific issues raised by the appellant and his representative, I cannot agree that the appeal tribunal’s assessment disregarded material facts, ignored effective dates within the calculations or misapplied the relevant legislative provisions.  Accordingly I cannot agree that the decision of the appeal tribunal is in error of law on the basis of the first submitted ground.

 

26.   The second ground on which it has been submitted that the decision of the appeal tribunal was in error of law was that it had been incorrect to include the circumstances of PWC2 in the assessments leading to the decisions made on 12 August 2010 as PWC2’s case had previously been closed and there was no renewal application for child support maintenance.  In his written observations on the application for leave to appeal, Mr Crilly addressed this ground, as follows:

 

‘I have been advised by CMED that PWC 2 had made an application for child support in 1994 which involved (the appellant).  However, that application was closed down in 1995 when a reconciliation between the two took place.  After she had separated from the NRP once more, [PWC2] submitted a completed Maintenance Application Form which was dated 06.12.96.  A copy of this application is included in pages B1 to B8 of the papers.  A Maintenance Enquiry Form was then completed by the NRP on 28.06.97.  A copy of this is included in pages B9 to B24 of the appeal papers.  I do not agree with the NRP’s submission that another application for child support had not been made in this case.’

 

27.   I accept this submission from Mr Crilly and agree that it could not be said that a renewal application had not been made.  Mr Crilly also noted that the appellant had asserted that the appeal tribunal had ignored submissions made in connection with PWC2 and the forwarding by her to CMED of correspondence concerning the possible withdrawal of an application to child support maintenance.  In response, Mr Crilly submitted that:

 

‘This matter relates to a letter from (PWC2) which was received in CMED on 20.04.10.  The letter contains a statement by PWC 2 to the effect that she no longer wanted to receive any child support maintenance and that she wanted her case to be closed.  A copy of the letter can be found in page B144 of the appeal papers.  The request to have the case closed is supported by an entry dated 22.04.10 in CMED’s personal notepad for PWC 2, a copy of which can be found in page B154 of the appeal papers:

 

“T/C to PWC.  PWC confirmed that she requested case to be closed and she did not require her arrears to be collected.  Email to CRT MA officer re closure.  ACCBR to be completed to calculate PWC arrears.”

 

It appears that PWC 2 then changed her mind in relation to this matter.  Page B150 of the papers contains a copy of a notepad entry dated 22.07.10 which states:

 

“2728 NI OSMA:  TCF PWC reg update on case and to request that we don’t cancel case.  Adv’d PWC case being dealt with by CS Team.  E-Mail to CS to contact PWC.”

 

28.   Mr Crilly noted that the record of proceedings for the substantive oral hearing held on 7 October 2011 records a submission made by the appellant’s representative concerning PWC2 and her possible withdrawal of her application for child support maintenance.  Significantly the record of proceedings also records a response from the presenting officer that:

 

‘(PWC2) changed her mind – B153 – that happened before the Department got around for it – no material change so the case wasn’t closed – B144 received 20.4.10.’

 

29.   Mr Crilly added that:

 

‘I have been advised by CMED that the request by PWC 2 to have the case closed in April 2010 was not carried out at that time due to workload considerations.  (PWC2) changed her mind before her original request to close the case was implemented.  As a result, her current application for child support in relation to the NRP remained active throughout the period under consideration along with that pertaining to PWC1.  With this in mind, I do not support (the appellant’s) submissions concerning this matter.’

 

30.   I agree with the analysis set out by Mr Crilly and for the reasons which he has set out do not agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

 

31.   In the original application for leave to appeal, the appellant had made specific submissions in connection with a court order which he submitted PWC2 had referred to in her child support maintenance application form.  While the applicant is not more specific in his submission on the relevance of the court order, it is highly probable that he was submitting that it was binding as to the amount of child support maintenance to which PWC2 was entitled.  In his written observations on the application for leave to appeal, Mr Crilly makes reference to the child support maintenance application form but submitted that:

 

‘(PWC2’s) application for child support was made in accordance with Article 9 of the 1991 Order as she was in receipt of income support at the date of 06.12.96.  As such, I submit that the obligation on her to make such an application was mandatory.  I further submit that any court order or agreement already in place in respect of periodical payments of child maintenance was replaced by the resulting maintenance assessment in accordance with Article 10 of the 1991 Order.’

 

32.   After setting out the provisions of Article 10 of the Child Support (Northern Ireland) Order 1991, as they applied at the date of PWC2’s application, Mr Crilly submitted that:

 

‘I submit that Article 10(1) gives the child support scheme priority over the court system in instances whereby a child support officer has jurisdiction to make a maintenance assessment were an application for the same to be made.  Paragraph (3) outlined that in such cases the courts may not make, vary or revive a maintenance order, although they may revoke one in accordance with Article 10(4).

 

I submit that in the present case, the child support officer, as decision makers were then known, had jurisdiction to make a maintenance assessment in respect of the NRP and PWC 2 when the latter made her application for child support maintenance in 1996.  With this in mind, I respectfully submit that the prior existence of a court order or a written maintenance agreement does not serve to undermine or invalidate PWC 2’s application for child support maintenance or any maintenance assessments which have been made after that initial application.’

 

33.   I agree with this submission and for the reasons which Mr Crilly has set out agree that the decision of the appeal tribunal is not in error of law on the basis of this submitted ground.

 

34.   The final ground which was set out in the original application for leave to appeal related to the fact that two appeals relating to the appellant and involving two separate parents with care were listed for hearing and were heard by the same appeal tribunal on the same date.  In connection with this ground, Mr Crilly submitted:

 

‘ … this case is part of a multiple assessment unit involving PWC 1, PWC 2 and the NRP.  As such, any decision made in one parent with care’s case will necessarily and automatically entail the making of a separate, corresponding decision in the other case.  Therefore when the decisions dated 12.08.10 were put into effect in PWC 1’s case, they also had to be given effect in PWC 2’s case at the same time.  I submit that when the NRP appealed against the decisions under consideration, this involved the decisions in both cases.  I further submit that, in these circumstances, CMED and the Appeals Service were correct to treat the appeal as an appeal against the decisions in both cases.  Consequently, I do not support the NRP’s submissions in relation to this matter.’

 

35.   Once again I agree with this submission.  I find no procedural error in the listing of two appeals relating to the appellant on the same date and the hearing and determination of those appeals by the same appeal tribunal.  I would add that the appellant and his representative, at the adjourned oral hearings of the appeal on 8 July 2011 raised issues concerning the circumstances of both parents with care.  In all of those circumstances I find no procedural error in how the appeals were listed and determined.

 

36.   I turn now to the grounds which were set out by the appellant and his representative in the further application for leave to appeal which was received in the Office of the Child Support Commissioners following the initial refusal of leave to appeal by the LQPM.  In some respects, these grounds reflect those which were in the original application which was before the LQPM and which I have dealt with above.

 

37.   The appellant’s first three grounds of appeal are the same as those initial grounds which were set out in the application which was before the LQPM.  For the reasons which are set out above in connection with those grounds I do not agree that the decision of the appeal tribunal is in error of law.  In three other grounds, the appellant has re-referred to what he submits was the ‘closure’ of PWC2’s case.  Once again, for the reasons which are set out above, these grounds are also rejected.

 

38.   The appellant has also made a further reference to the issue of the court order.  To the extent that this ground reflects the submission made in connection with the court order in the original application for leave to appeal, it is rejected for the reasons which are set out above.  The appellant has made a specific reference to ‘section 4(10)’ in connection with the relevance of the court order.  In his detailed written observations on the application for leave to appeal, Mr Crilly submits that this must be a reference to section 4 of the Child Support Act 1991.  As Mr Crilly correctly observes, the provisions of the Child Support Act 1991 apply solely in Great Britain.  Further while section 4 of the Child Support Act 1991 has an equivalence in Northern Ireland in Article 7 of the Child Support (Northern Ireland) Order 1991, Article 7 could have no relevance to the present appeal as it is concerned with applications for child support maintenance by those parents who are not in receipt of benefit.  At time of her application to child support maintenance in 1996, PWC2 was in receipt of income support.  Accordingly her application was dealt with under Article 9 of the 1991 Order.

 

39.   Mr Crilly noted that the appellant had made a further reference to ‘section 8’.  He noted that this must be a reference to section 8 of the 1991 Act.  While section 8 had an equivalence in Article 10 of the 1991 Order, Mr Crilly submitted, for the reasons which he had set out in connection with the parallel ground in the original application for leave to appeal, that Article 10 could not assist the appellant.  I agree.

 

40.   The appellant, under a heading which reads ‘Why you want the decision to be set aside with regards to the tribunal decision to the Upper Tier re Commissioner’ the appellant set out a number of further grounds on which it was submitted the decision of the appeal tribunal was in error of law.  The first three of these were that:

 

(i)        the reasons for the decision were inadequate;

 

(ii)       the PWC had ‘dishonestly procured the decision under appeal’; and

 

(iii)      the appeal tribunal had rejected material evidence whilst little weight was placed on evidence which was put forward by him.

 

41.   The appellant has not set out any specific basis on which he submits the reasons for the decision of the appeal tribunal are inadequate or on what basis the PWC ‘dishonestly procured the decision under appeal.’  I have already concluded that the statement of reasons is wholly adequate to explain how the appeal tribunal arrived at its conclusions on the issues which were before it.  I can find no basis for supporting any submission concerning the ‘dishonest procurement of a decision’ whatever that phrase might mean.  Further, I am satisfied, as I have set out above, that the appeal tribunal has undertaken a rigorous assessment of all of the evidence which was before it.

 

42.   The appellant’s fourth additional ground is as follows:

 

‘Section 35(4) -  article 49 of the 1999 order – 4(a) --- The regulations may provide, for the purposes of any provision made by virtue of para 4 for a case in which a person who, as a consequence of receiving incorrect or incomplete information did not give any consideration to – The taking of a step which is a step he might have taken had he considered the matter on the basis of correct and complete information.’

 

43.   It is impossible to know what the appellant means by this submission.  It may be a reference to the decision by the appeal tribunal to request additional information.  As I have noted the appeal tribunal’s decision to adjourn on the second occasion to obtain additional information was in direct response to specific issues which had been raised by the appellant and his representative.  I cannot accept that the appeal tribunal has erred in law on the basis of this submitted ground.

 

44.   The appellant’s next ground makes reference to ‘Reg 25 3 (i) In the interest of justice and reg 25 3 (ii) Article 22 (7)’ and follows this up with a submission concerning the provisions contained in Article 22(7) of the Child Support (Northern Ireland) Order 1991.  This provision states that the appeal tribunal ‘need not consider any issue that is not raised by the appeal’ and must ‘not take into account circumstances not obtaining at the time when the Department made the decision or imposed the requirement’.  Once again, it is impossible to know what the appellant means by the references to ‘Reg 25 3 (i) In the interest of justice and reg 25 3 (ii)’.  Further the appellant has not been specific as to how the appeal tribunal’s approach has offended any of the provisions of Article 22(7) of the 1991 Order.  I cannot accept, therefore, that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

 

45.   The appellant has also submitted that:

 

‘… Several assessments were carried out under section 6 including a supercession [sic] by the complaints department whilst leaving the NRP below his protective earnings rate thus leaving the child in his household without enough money for the NRP to provide for her basic needs.  Section 2 was not adhered to on several occasions by the dept.’

 

46.   In response to this ground, Mr Crilly has submitted that:

 

‘I submit that as PWC 2 was in receipt of income support when she completed the Maintenance Application Form in December 1996, her application for child support maintenance was made under Article 9 of the 1991 Order, the Northern Ireland equivalent of section 6 of the Child Support Act 1991 in GB.

 

(The appellant) has also referred to section 2.  I submit that this refers to section 2 of the Child Support Act 1991 in GB.  Section 2 relates to the obligation on the part of Child Maintenance Enforcement Commission to have regard to the welfare of any child likely to be affected by decisions made by it.  The Northern Ireland equivalent to section 2 of the GB Act is Article 6 of the 1991 Order in which the obligation to have regard to the welfare of the child is placed upon the Department.

 

The calculation of (the appellant’s) protected income in respect of each of the effective dates under consideration is addressed in pages A29 to A32 of the Department’s submission in respect of this appeal.  I submit that the submission outlines that the NRP’s level of protected income was calculated correctly and in accordance with regulations 11 and 12 of the MASC Regulations.  I further submit, therefore, that (the appellant’s) level of protected income was not breached at any time in the relevant maintenance assessments.  In addition, I submit that there is ample evidence in the papers relating to all of the decisions dated 12.08.10 to show that the decision maker had regard to the welfare of the NRP’s child in each instance.  I do not agree that the tribunal’s acceptance of the Department’s actions in this respect represents an error in law and I do not support these grounds of the NRP’s application.’

 

47.   I agree with this submission in its entirety and for the reasons which Mr Crilly has set out also agree that the decision of the appeal tribunal is not in error of law on the basis of this submitted ground.

 

48.   In a final ground under this heading, the appellant returns to procedural rules requiring appeal tribunals not to consider any issue that is not raised by the appeal.  In setting out this ground, the appellant has also made reference to departures, variations and the ‘just and equitable ground’.  There is a further reference to ‘section 28F of the Child Support Act 1991 and reg 21 of Child Support Child support [sic] (Variations) regs 2000’.  In response to this ground, Mr Crilly has submitted that:

 

‘I am unsure as to the point that (the appellant) is making in this instance.  The reference to section 28F is concerned with section 28F of the Child Support Act 1991 in GB.  In Northern Ireland, the relevant primary legislation in respect of departure directions in association with the old child support scheme can be found in Articles 28A to 28I of the 1991 order.  Articles 28A to 28I were amended by the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 to provide for the award of variations in relation to the new child support scheme from 03.03.03.

 

I agree that under the old scheme for child support, the provisions of which have been used to assess this case, maintenance assessments under the standard formula are separate and distinct from decisions relating to the award of departure directions.  It is also correct that a decision under the old scheme in respect of either carries a separate right of appeal.

 

I submit, however, that a departure direction can only be implemented when a valid application for one has been made in accordance with Articles 28A to 28I of the 1991 Order and the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996.  I further submit that no such application has been made in this case in relation to any of the decisions under appeal and so, as a consequence, consideration of any issue relating to a departure direction is not appropriate in this instance.

 

I further submit that consideration of the just and equitable principle in conjunction with references to the award of variations cannot feature in this case.  The legislation concerned is the Child Support (Variations) Regulations (Northern Ireland) 2001.  I submit that these provisions relate to the variation scheme which applies only to the new child support scheme.  I respectfully submit that since([the appellant’s) liability to make pay child support maintenance has been assessed under the old scheme for Child Support, any consideration of the principles relating to variations is not relevant in this case.’

 

49.   I accept this submission and, once again, for the detailed reasons which Mr Crilly has set out do not accept that the decision of the appeal tribunal is in error of law.

 

50.   The appellant has also submitted that the decision of the appeal tribunal was in error of law on the basis of six further general grounds, as follows:

 

(i)        the appeal tribunal did not observe the rules of natural justice;

 

(ii)       the appeal tribunal did not have enough evidence to support its decision;

 

(iii)      the appeal tribunal did not apply the correct law or interpreted the law wrongly;

 

(iv)      the appeal tribunal could have directed to supersede the decision;

 

(v)       each case should have been determined on its own particular facts; and

 

(vi)      the tribunal misunderstood the nature of the procedural issues.

 

51.   The appellant has not set out any further specific basis on which it was submitted each of these additional grounds applied.  I cannot accept that the decision of the appeal tribunal was in error of law on the basis of any of these general grounds.  As was noted above, I am satisfied that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.  In particular, the appeal tribunal correctly applied the legal rules with respect to the supersession of decisions.  The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.

 

52.   I turn now to the further submission dated 29 December 2012 which was hand-delivered to the Office of the Child Support Commissioners on 7 January 2013 and in which the appellant’s representative made observations in reply to the written observations on the application for leave to appeal submitted by Mr Crilly.  The first 19 paragraphs of this submission consist of details of what the appellant’s representative submits is the ‘background’ to the issues arising.  The appellant’s representative then sets out 16 questions described as issues and submits that:

 

‘I therefore believe that this appeal does stand on the grounds of Natural Justice and fair play and that the Tribunal had made its decision without the evidence it had requested but instead made reference to earnings not recorded on official documentation as requested by the department to the PWC1s employer.  They did not take into account the effective dates and dates of disclosure of which the NRP was stating and more importantly that the department had held on file before the Supersession on 29.01.10 and the IMA of 31.03.10.  The calculations presented by the department were incorrect as they were not the same calculations of which had been notified to the NRP of which the LQM would not listen to.  I disagree that the Tribunal addressed all of the NRP’s contentions with regards to the PWC1’s housing costs, income calculations.  And also with regards to the MAF application dated 06.12.96 with regards to PWC2 also the Material Fact that PWC3 has not been included within the Appeal or included within the assessments when she should have been.’

 

53.   In many ways the submissions which the appellant’s representative is making are, with respect a rehearsal of the issues which were raised in the appeal and in the application for leave to appeal.  I have addressed those issues above and have set out the basis on which I have concluded that the decision of the appeal tribunal is not in error of law.  To the extent that those issues are replicated in this further submission, I repeat that the decision of the appeal tribunal is not in error of law.  The appellant’s representative has raised the issue of the circumstances of the third PWC and has submitted that those circumstances were relevant to the decision under appeal and the issue arising in the appeal.  I conclude that, with respect, the decision-making process undertaken on 12 August 2010 and the resultant appeals against that decision-making process were concerned with PWC1 and PWC2.

 

54.   The appellant’s representative has then set out a section in her further written submission which is headed ‘Evidence’.  This section sets out the appellant’s representative’s submissions on the completion of the ‘MAF’ by PWC2 and concludes that:

 

‘… the dept was also aware that the PWC was on income support and that the money should have been forwarded to them from the PWC.  PWC1’s income support payment stayed the same during the years dated 1996 until 2008 and did not decrease to take into account the £20.00 being received from the NRP as this would have made an effect on her income support benefit.’  With this in mind, the PWC did receive periodical payments from the NRP and the CSA were aware of same.’

 

55.   This section headed ‘Evidence’ is followed by a lengthy section headed ‘Failure to disclose a Material Fact’ which is again concerned with the circumstances of PWC2.  The appellant’s representative challenges certain written observations made by Mr Crilly on the question of PWC2’s circumstances.  Once again, I am satisfied that these submissions are a rehearsal of factual issues rather than submissions on questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.  For the reasons which are set out above, I am satisfied that the relevant factual issues, including the circumstances of PWC2, were addressed by the appeal tribunal.

 

56.   The appellant’s representative has also returned to the circumstances of PWC3.  As indicated above, the decision-making process undertaken on 12 August 2010 and the resultant appeals against that decision-making process were concerned with PWC1 and PWC2.

 

57.   Finally, the appellant’s representative has made brief submissions on the issues of ‘just and equitable’ and natural justice, repeating a submission that the appeal tribunal ‘… failed to address all of the points noted within the Appeal.’  As noted above, I am wholly satisfied that all of the issues relevant to the appeal have been explored and addressed by the appeal tribunal.

 

58.   As was noted above, the appellant’s representative has forwarded additional correspondence in connection with this appeal and made numerous telephone calls to the legal officer in connection with the issues which she submits arise.  Those additional submissions reflect the issues which have been raised in the application for leave to appeal and in the further submission and have been addressed above.

 

 

(signed)  K Mullan

 

Chief Commissioner

 

 

 

29 January 2014