[2004] UKSSCSC CCS_2152_2004 (22 November 2004)

PLH                                                                         Commissioner's File:  CCS 2152/04

	CHILD SUPPORT ACTS 1991-1995

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER

Appellant: 	[the absent parent]
Respondents:	(1) Secretary of State
		(2) [the parent with care]
Appeal Tribunal: 	Eastbourne
Tribunal Case Ref:  	U/45/171/2003/00270
Tribunal date:	1 March 2004
Reasons issued:	5 April 2004

     1.     	The decision of the Eastbourne appeal tribunal sitting on 1 March 2004 is conceded by the Secretary of State to have been defective in law for failure to record sufficient findings and reasons for the decision to make a departure direction based on an assumed net income of the absent parent of £30,000 a year.  Despite the comments of the parent with care that this was an eminently justifiable decision, and any lack of detail was down to the absent parent not having given more accurate disclosure of his actual income, I have had to conclude that the Secretary of State's concession was right.  The basis of the £30,000 assumption is not really spelt out or analysed at all either in the summary decision notice issued on the day of the hearing or in the very short statement of reasons issued the following month.  I decline the requests for an oral hearing of the present appeal in view of the course I am taking and the further hearing directed below. 
     2.     	It is well established that even if a decision itself may be sound, it amounts to an error in law making it necessary for the decision to be set aside if sufficient findings and reasons are not spelt out to give the parties a reasonable understanding of the basis on which it has been reached.  This is a necessary safeguard since otherwise it is not possible to know whether the tribunal may have misdirected itself or omitted to take account of some material consideration in the case.  For a “lifestyle” case this means there has to be at least some breakdown of expenditure to show what has been taken into account in arriving at the figure the tribunal are attributing to the parent concerned, not merely a jump to a global figure of their choice once they decide the formula assessment figure for income must be inadequate.  Here the tribunal's statement of reasons simply states the £30,000 figure to be used but gives no explanation of how it is arrived at. 
     3.     	I therefore have to allow the absent parent's appeal, set aside the tribunal's decision and direct a further hearing as submitted by the Secretary of State.  This I do with regret, as this is the second tribunal that has now considered the evidence in the case and on each occasion the eminently reasonable conclusion has been that there must be a substantial departure from the minimal income figure used in the formula assessment.  The March 2004 tribunal rightly found this as “unrealistic” (its word) as the resultant weekly amount of £5.40 for the maintenance of the appellant's 17-year old son is pathetically inadequate.  There was in my judgment nothing wrong at all in the decision each tribunal reached that a departure direction was called for.  Nor could there be said to be anything wrong or unreasonable in principle in arriving at an “income” figure of the order they each chose.  The only fault was in failing to specify how it was made up.
     4.     	In those circumstances I remit the case for further hearing to the same tribunal chairman as last dealt with the appeal at the hearing on 1 March 2004 (Mr Anscomb) unless circumstances make it impracticable or inconvenient for the case to be relisted before him in which case it will be for the Regional Chairman to direct how the case should be reheard.  The tribunal at the further hearing can properly take as a starting point the conclusion already reached (twice) that a substantial departure direction is needed, and focus on the real issues which are the specific level of income to be used in the recalculation and what departure from the formula it is just and equitable to order.  Each parent must of course be given a reasonable opportunity to appear or be represented and make written or oral submissions on the facts at the further hearing, but the extent to which it is necessary for yet further evidence to be given of matters already gone into at no little length in earlier hearings will be a matter for the chairman.  He will of course need to have regard to the apparent discrepancies in the assertions made by the absent parent about other possible sources of income, as noted in the helpful submission of Mrs M Fowler on behalf of the Secretary of State dated 23 August 2004 at pages 144-6.  The absent parent must understand that unless a full and credible explanation of his actual expenditure and how it is paid for is given it will be open to the tribunal to draw such inferences against him as it thinks fit, and provided the basis is spelt out there is little or no prospect of upsetting such findings on any further appeal. 
					
(Signed)

P L Howell
Commissioner
22 November 2004