CCS/2153/2004

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	My decision is as follows.  It is given under section 24 of the Child Support Act 1991.

1.1	The decision of the Bournemouth appeal tribunal under reference U/03/185/2003/01098 held on 22 January 2004 is not wrong in law.

1.2	It follows that this appeal is dismissed.

The scope of the appeal to the Commissioner

2.	This case concerns the decision of the Bournemouth appeal tribunal which heard an appeal against a maintenance assessment which was itself made on 13 May 2003 and was revised by the Secretary of State on 12 September 2003.

3.	In the terminology of the child support legislation, the appellant is the non-resident parent under the assessment, the first respondent is the Secretary of State and the second respondent is the parent with care under the assessment.  The appellant is the father and the parent with care is the mother.  I shall refer to them in those terms.

4.	The case comes before me on appeal to a Commissioner against the decision of the Bournemouth appeal tribunal held on 22 January 2004.  Leave to appeal to the Commissioner was granted by the District Chairman in the Appeals Service who heard the appeal at first instance.  The Secretary of State does not support the appeal.  

5.	Both parents have made observations on the appeal, not all of which have been directly in point.  For example, the mother comments that she has “emphasised again and again to the CSA that the appellant’s account of his income is not credible. I do not understand why the chairman would not look at it. I have been begging someone to take this seriously for years.”  

6.	The mother’s frustration with the Child Support Agency and indeed the child support system  as a whole is understandable.  But the chairman’s task was to consider the appeal before him, which (as explained below) was the father’s appeal against the maintenance assessment as revised.  If the mother wishes to challenge the father’s stated income, she should bring her own appeal against the maintenance assessment, perhaps combined with an application for a departure direction (on the ground, for example, that the father’s lifestyle is inconsistent with his declared income).  The chairman cannot be criticised for not engaging with a departure direction which was not before him.

7.	I must also emphasise that the Commissioner’s jurisdiction is confined to points of law.  The tribunal chairman has the advantage of seeing the parties and being able to form a view as to their credibility.  He is the tribunal of fact.  The Commissioner can only set aside the tribunal decision if there is an error of law.

A brief history of the case

8.	The parents have two sons, born in 1984 and 1987 respectively.  At the material time for this appeal both boys lived with their mother, although it appears that the elder son at least attended a fee-paying private school as a boarder.  The parents were divorced in January 1995. I have seen the reserved judgment of the County Court judge who determined the application for ancillary relief in December 1996.  This judgment was also in front of the tribunal.  The learned judge observed that the 1996 proceedings were conducted in “a general atmosphere of hostility and mistrust”.  Sadly those attitudes have been equally evident in these proceedings, some ten years later. 

9.	On 15 May 2003 the Secretary of State made a maintenance assessment requiring the father to pay the revised amount of £14.27 per week in respect of both boys from the effective date of 5 February 1999.  The assessment was staged with different amounts due for different periods.  Both parents appealed that decision.  On 12 September 2003 the Secretary of State issued a revised decision.  This required the father to pay the further revised amount of £23.88 as from 5 February 1999.  The amounts due under the staged assessment were also modified, at least in part.

10.	The legal effect of this chain of events was that the mother’s appeal against the May 2003 assessment lapsed (Child Support Act 1991, section 16(6)), although that may or may not have been made clear to her.  This accounts for the stance taken by the tribunal chairman on the mother’s wider points about the assessment of the father’s income.

11.	However, the father’s appeal continued as an appeal against the revised assessment of September 2003, as that decision was less favourable to him (Social Security and Child Support (Decisions and Appeals)(Regulations 1999, regulation 30(3)).

12.	The father raised three points on appeal to the tribunal.  These related to (1) the period in respect of which the elder son (who I shall call E) was a qualifying child; (2) the calculation of the father’s eligible housing costs in respect of mortgage interest payments; and (3) the applicability of a deduction from his housing costs for “business use”.

13.	The tribunal chairman found against the father on all three points.  He set out his reasons in a comprehensive Statement of Reasons for Decision, dated 28 January 2004, although apparently not issued at that time.  The father, who is a solicitor, takes issue with the tribunal’s conclusions on all three points.  He argues that the tribunal erred in law on each point.

Issue 1 – the period in respect of which E was a qualifying child

14.	Although considerable heat has been expended over this question, the point at issue is actually very simple.  E’s boarding school education finished in December 2000.  (There is a misprint in the Statement of Reasons that places this event in December 2001; that, however, is a “slip of the pen” and not an error of law).  E did not resume full-time non-advanced education until September 2001, when he started a course at a music college.  That much is not in dispute.  The circumstances in which, and the reasons why, E left school in December 2000 are hotly contested as between the parents but are not relevant to this appeal.

15.	The father’s argument, in short, is that once E stopped being a qualifying child in December 2000, he stopped being a qualifying child forever.  In other words, he says, E could not reacquire the status of being a qualifying child (within the meaning of section 55(1)(b) of the Child Support Act 1991) in September 2001.  The father relies on paragraph 4 of Schedule 1 to the Child Support (Maintenance Assessment Procedure) Regulations 1992.  In summary, this provides that any interruption in a qualifying child’s period of full-time education can be disregarded for a period of up to six months, where it is reasonable to do so. This period may be extended beyond six months where it is reasonable to do so, but only where “attributable to the illness or disability of mind or body of the person concerned.”  The father’s position is that this was a nine month interruption, and the exception for “illness or disability of mind or body” did not apply.

16.	The chairman agreed that the “illness or disability of mind or body” exception did not apply in this case.  That was a finding of fact which the chairman was entitled to make on the evidence before him.  He has also explained his reasons fully for reaching that conclusion.  The mother may disagree with that conclusion, but there is no error of law in the tribunal’s decision in that regard.

17.	However, the chairman disagreed with the father on the jurisdictional point.  The Statement of Reasons refers to the composite definition of qualifying child in sections 3 and 55(1)(b) of the 1991 Act.  The tribunal concluded that E satisfied that definition when he re-entered education in September 2001 at the music college.  Moreover, argued the chairman, “If there is any doubt about interpretation then it has to be resolved in favour of his being a QC [qualifying child] as that is consistent with the purpose of the legislation”.

18.	I have considered the proper interpretation and application of paragraph 4 of Schedule 1 to the Child Support (Maintenance Assessment Procedure) Regulations 1992 in another Commissioner’s decision (CCS/2621/2003).  Those principles do not apply in this case, given the findings of fact by the tribunal at first instance.

19.	In my judgment the tribunal chairman was entirely correct in his conclusion on the jurisdictional point.  A child does not lose his or her status as a qualifying child forever on leaving school or college.  There is no dispute that the course E started in September 2001 was one of non-advanced full-time education.  He was also clearly a qualifying child within section 3(1)(a) of the 1991 Act at that time in that one of his parents was a non-resident parent.

20.	The fallacy in the father’s argument is his assumption that paragraph 4 of Schedule 1 to the Child Support (Maintenance Assessment Procedure) Regulations 1992 is the only way in which a child who has left school or college can be found at some later date to be still in full-time education.  This is simply wrong, for at least two reasons.

21.	First, section 55(1)(b) defines a qualifying child as one who is aged under 19 and receiving full-time non-advanced education.  The section is defined in the present tense.  As at September 2001 and for the relevant period thereafter, E met those requirements.

22.	Secondly, there is not even the glimmer of a suggestion in the drafting of section 55 that the status of qualifying child, once lost on what might be described as educational grounds, can never be regained thereafter.  If this were the case then a child or young person who goes to live abroad for some time, but then returns to Great Britain, could never reacquire the status of being a qualifying child (leaving aside any issues of habitual residence).  This cannot have been the intention of Parliament.  Indeed, the drafting of section 55 suggests the converse.  In particular, section 55 (2) declares that:

“(2) A person is not a child for the purposes of this Act if he— 
(a) is or has been married;
(b) has celebrated a marriage which is void; or
(c) has celebrated a marriage in respect of which a decree of nullity has been granted.”

23.	Thus a young person loses forever the status of being a child (and so being a qualifying child) on marriage, even if that marriage is subsequently dissolved.  Presumably the rationale for this is that on marriage the young person’s dependency on his or parents ceases.  Furthermore, if the marriage ends by a decree of divorce or nullity, the court has powers to grant financial support in the exercise of its powers under the Matrimonial Causes Act 1973.

24.	Those considerations obviously do not apply to a young person who leaves, but later re-enters, full-time non-advanced education.  The need for support from his or her parents is still there.  Absent agreement, the Child Support Act 1991 is the mechanism by which such support is to be calculated.  The chairman was therefore correct in his reasoning and conclusion.  The tribunal’s decision discloses no error of law.

25.	It follows that the tribunal was correct to take E out of the maintenance assessment between December 2000 and September 2001.  Fortunately for the mother, that assessment was ongoing in relation to the younger son.  It follows that there was no need for a fresh application to be made in respect of E.

Issue 2 – the calculation of the father’s eligible housing costs in respect of mortgage payments

26.	The second issue in dispute concerns the calculation of the father’s eligible housing costs in respect of mortgage interest payments.  In particular, the question relates to the treatment of interest payments on a further loan secured on the property which in turn relates to the operation of the LSC’s legal aid charge.

27.	The relevant sequence of events was as follows.  In December 1996 the county court judge’s order resolved the proceedings for ancillary relief.  The order made provision for the net proceeds of sale of the matrimonial home to be divided as between the father (45%) and the mother (55%).  The order also provided that the sums so payable were to be used by the parties for the purpose of purchasing a home; this was expressly stated to be for the purpose of regulation 96 of the Civil Legal Aid (General) Regulations (which deals with the postponement of enforcement of charges).

28.	The father duly bought his home in October 1997 with his share of the proceeds of sale, supplemented by a £70,000 mortgage.  It is agreed that the interest payments on this £70,000 mortgage are properly allowable as eligible housing costs for child support purposes.  However, the father was legally-aided in the ancillary relief proceedings.  So the LSC, pursuant to regulation 96 of the Civil Legal Aid (General) Regulations, protected its interest by a charge in the sum of £35,300 on the home bought by the father in October 1997.

29.	Subsequently it appears that the father decided that he could re-mortgage on more favourable terms.  He therefore took out a further advance in December 1999, which was added to the original mortgage, and the LSC charge was cleared.  The Secretary of State decided that the extra amount in interest, beyond that payable on the original £70,000 mortgage, could not qualify as eligible housing costs.  The tribunal chairman agreed with this approach.  The father argues that this is wrong in law.

30.	Three matters are not in dispute.  The first two are issues of fact.   First, the court order recognised that the parties’ respective shares would be used to re-house them.  Secondly, the LSC exercised its discretion so as to take a charge on the father’s property in 1997, so deferring his debt in respect of his contribution towards the costs incurred by the legal aid fund.  The tribunal chairman accepted both those points.

31.	The third matter which is not in dispute raises a question of law and concerns the father’s decision to re-mortgage in 1999.  In legal terms this is something of a red herring. This is because paragraph 1(t) of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (as amended by the Child Support (Miscellaneous Amendments) Regulations 1998) states that eligible housing costs include

“(t) amounts payable in respect of a loan taken out to pay off another loan but only to the extent that it was incurred in respect of amounts eligible to be taken into account as housing costs by virtue of other provisions of this Schedule”.

32.	It follows that if payments under the original legal aid charge constituted eligible housing costs, then so too did payments under the 1999 mortgage.  The tribunal chairman correctly directed himself on the law on this point.

33.	So, reduced to its bare essentials, the critical issue is whether payments made under the original legal aid board charge (and so its successor mortgage) constitute eligible housing costs.  They are if, but only if, the payments fall within the terms of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.  For present purposes the important provisions are paragraph 1 (which lists various types of payments that may be eligible housing costs) and paragraph 4 (which sets out some further requirements that any such payments must fulfil).

34.	The father argues that the payments fall within Schedule 3 as they satisfy the terms of paragraph 4(1)(a) (as amended by the Child Support (Miscellaneous Amendments) (No. 2) Regulations 1996), namely that

“(a) they are necessarily incurred for the purpose of purchasing, renting or otherwise securing possession of the home for the parent and his family, or for the purpose of carrying out repairs and improvements to that home”.

35.	I note at the outset that the original wording of paragraph 4(1)(a) was less specific.  Before its amendment in 1996, paragraph 4(1)(a) defined eligible housing costs simply by reference, amongst other matters, to whether

“(a) they are incurred in relation to the parent's home.”

36.	The father’s argument might have had some force in the context of the original formulation of paragraph 4(1)(a).  But the purpose of the 1996 amendment is clear.  As the authors of E Jacobs and G Douglas, Child Support: The Legislation (1999) observe, the original wording was concerned merely with limiting relevant costs to those incurred in respect of the parent’s own home, rather than that of some third party’s, whereas “clearly in its present form it has a wider function of additionally emphasising the essential purpose of the expenditure”.

37.	Since the tribunal hearing in the decision under appeal, the meaning of the expression “necessarily incurred” in paragraph 4(1)(a) has been considered, albeit in a different factual context, by the Court of Appeal in Pabari v Secretary of State for Work and Pensions [2004] EWCA Civ 1480 (reported as decision R(CS) 2/05).  Holman J, giving the main judgment, stated (at paragraph 39) that:

“In my view it is possible and permissible to say where on the spectrum of exigency the word ‘necessarily’ is placed, and to say what it does not mean. It does not mean merely reasonably, or sensibly or justifiably. It is higher on the spectrum than that. Nor does it mean ‘reasonably necessarily’. The maker of the regulation has not qualified the word necessarily, so if there is a different shade of meaning, or a different band on the spectrum, between ‘reasonably necessarily’ and ‘necessarily’ simpliciter, it is the latter meaning and the latter band which the regulation requires.” 

38.	Similarly, at paragraph 50, Holman J concluded that

“The test of necessity must be considered in a common sense and reasonable way; but the test remains necessity, and a lower test of sensibleness or reasonableness per se must not be substituted.”

39.	In my view the father has not shown that the arrangement in question was “necessarily incurred”.  As the tribunal chairman found, as a matter of fact, the father could have purchased a cheaper property and paid the legal costs back without any necessity for a charge.  However, the tribunal chairman did not directly address the paragraph 4(1)(a) point.  This does not mean that he committed an error of law.  On the contrary, the tribunal chairman did not strictly need to resolve the paragraph 4(1)(a) issue because he had already found against the father in relation to the paragraph 1 point.

40.	Paragraph 1, which lists the various types of payments that may be eligible housing costs, starts by stating that:

“Subject to the following provisions of this Schedule, the following payments payable in respect of the provision of a home shall be eligible to be taken into account as housing costs for the purposes of these Regulations”.

41.	The tribunal chairman reached the conclusion that the interest payments in question were not “payable in respect of the provision of a home”.  He concluded as follows:

“It is clear to me that the debt was in respect of the legal costs incurred in the matrimonial proceedings.  It was not related to the ‘provision of a home’.  On that basis it seems to me that the mortgage arising does not all within the definition of ‘eligible housing costs’.”

42.	In reaching this conclusion the chairman relied on, and cited from, the decision of Mr Commissioner Howell QC in CCS/012/1994.  In that decision the learned Commissioner found as follows:
“Detailed issues on this appeal: eligibility of housing costs under Sch. 3 para 1 
35. The overriding requirement in Sch. 3 para 1 is that payments falling within one of the sub paras (a) to (t) must also be ‘in respect of the provision of a home’ if they are to count as eligible housing costs. In my judgment, this means that they must be for costs reasonably necessary for providing a home, or such things as repairs and improvements to it. It follows that it is not sufficient merely to show that the payments, though incurred for other purposes than housing, are secured on the home so that it may be at risk if they are not paid. That would not give adequate force to the word ‘provision’. 
36. In addition, the apparent purpose of the regulations is to include the normal and reasonable housing costs of each parent in the basic living expenses to be regarded as the ‘exempt’ part of their income for the maintenance assessment. It would not be consistent with this purpose if it were possible for one parent or the other to include as ‘housing costs’ the cost of borrowings for quite different reasons: perhaps business liabilities, or personal credit card spending as here. If it were, the legislation would yield different answers according to whether the parent's bank, finance company, or other lender happened to have secured a charge on his or her property for such other borrowing. That would in my view be irrational and not what Parliament should be taken to have intended.”
43.	Relying on those observations, the tribunal chairman reasoned that the opening words of paragraph 1 covers all the separate sub-paragraphs within that provision. For present purposes the crucial point is that “it is not sufficient merely to show that the payments, though incurred for other purposes than housing, are secured on the home so that it may be at risk if they are not paid. That would not give adequate force to the word ‘provision’.”  Applying that principle, the tribunal concluded that the payments in question were not “in respect of the provision of a home”.
44.	The tribunal chairman noted that there was no direct authority on the point insofar as it relates to the legal aid charge.  The father points to the December 1996 court order.  But that is to miss the point – that order relates solely to the factual background of this case.  The tribunal was referring to the absence of any case law on the application of Schedule 3 to legal aid charges.  However, I am satisfied that the tribunal properly applied the tests laid down in Schedule 3 and as adumbrated in the analogous case law.  My reasons are as follows.
45.	First, it is essential to analyse the true nature of the LSC charge.  The fundamental point, as the tribunal correctly identified, is that this charge resulted from a debt for legal costs.  There is an important distinction between a loan and a debt.  As Lord Sterndale MR held in Attorney-General v South Wales Electrical Power Distribution Company [1920] 1 KB 522 at p 55, cited by Mr Commissioner Monroe in R(SB) 3/87 (at paragraph 7):

“You do not borrow money by postponing the payment of your debt and agreeing to pay interest upon it”.
46.	Secondly, the interest payments incurred in relation to the LSC charge were not “in respect of the provision of a home”.  As well as CCS/012/1994, reference might be made to the decision in R(CS) 12/98 by Mr Commissioner Rice, who held (at paragraph 10) that:
“It would seem to me that it is all a matter of degree. If a person has an unchallengeable right to the occupancy of a home, he has been provided with that home, and any unconnected action on his part resulting in the payment of mortgage interest is, as regards qualifying for housing costs (as that term is to be understood in the relevant provisions of the child support legislation) wholly unnecessary.”
47.	In reaching this conclusion I take into account Mr Commissioner Mesher’s comment in CCS/1707/2003 (at paragraph 18) that:
“the general condition in paragraph 1 should operate only in a fairly broad way to exclude payments which are completely unconnected with the continuing provision of a home, such as the taking out of a mortgage or other loan secured on the home to raise capital for business purposes or personal expenditure like a holiday or a wedding.”
48.	The tribunal chairman in the decision under appeal rightly acknowledged that this was not a straightforward case of personal borrowing (for example, for a holiday) being consolidated into a secured loan.  But the fact remains that the LSC charge was ultimately a means of enforcing a debt in respect of the father’s liability to make a contribution to his legal costs in the divorce proceedings.  
49.	The point may be illustrated by way of a hypothetical example.  If the father had not had access to legal aid, he would doubtless have had to meet his legal costs privately.  If he did not have the capital readily to hand, he would have had to borrow the capital to meet those costs.  In all probability a bank would not have advanced such funds on an unsecured basis, and would have insisted on security by way of a charge on the property.  But that process would not mean that the consequential interest payments had been incurred “in respect of the provision of a home”.  They would have been incurred in respect of a debt owed to the bank in respect of funds used to meet legal costs.  The father in this case should not be in any better position as regards his liabilities under the child support scheme merely because he was legally aided rather than a private-paying client in his matrimonial proceedings.
50.	Thirdly, notwithstanding the failure to fall within paragraph 1 of Schedule 3, the interest payments in question were not “necessarily incurred for the purpose of purchasing… or otherwise securing possession of the home” within paragraph 4(1)(a), for the reasons outlined above. The decision of Mr Commissioner Jacobs in CCS/1418/2003 is in point here.  In that decision the Commissioner ruled that mortgage interest payments on a loan of £42,500, secured on the home, were not eligible housing costs.  The loan had been incurred so as to enable the non-resident parent to pay a lump sum to his ex-partner on divorce.
51.	The Commissioner held as follows at paragraph 18:
“All that the evidence shows is that there was a debt that arose from the court order and that it was discharged by means of money raised on mortgage. It may be that the absent parent could only have raised the money by selling or mortgaging his home. But that does not mean that it was raised for the purpose of securing possession of the home within the meaning of paragraph 4(1)(a). I read those words as requiring that the possession should be in doubt or at risk before the expenditure is incurred. Without that doubt or risk, there is no basis for it being ‘secured’. The debt arose separately from the home. The money was raised to discharge it. It could, let us suppose, only be raised by being secured on the property. On that basis, the most that can be said is that the absent parent could only avoid selling his home by incurring the mortgage costs. But merely avoiding having to sell his home is not the same thing as securing possession of it. His possession is only at risk by virtue of the funding arrangement that he has chosen to pursue. It is not sufficient that the possession should be at risk as a result of the very transaction that gives rise to the cost the eligibility of which is in issue.”
52.	Those principles are directly applicable to this case.  I therefore conclude that there was no error of law in the tribunal’s decision on issue 2.  
Issue 3 – the applicability of a deduction from housing costs for “business use”

53.	The final issue is whether the father was entitled to have the entirety of his eligible housing costs (as defined above, following the resolution of issue 2) taken into account for the purposes of the calculation of the maintenance assessment.  The Secretary of State had decided in September 2003, on revising the May 2003 decision,  that as the father conducted his business from home his housing costs were to be reduced by one-seventh.

54.	The Secretary of State’s decision was based on the father’s response to an inquiry, in which the father wrote:

“I only use one room for business purposes which is separately rated for business rates and which payments appears in my Accounts.  I have four bedrooms…There is a sitting room and a study.  No part of my mortgage is treated as a business expense.”

55.	The tribunal considered the evidence, concluded that there was mixed use, with the dining room being used as the father’s office, and confirmed the reduction of one-seventh in the father’s housing costs as appropriate on the evidence.  

56.	The father challenges the tribunal’s findings on two principal grounds.  First, he says there should be no reduction at all, as the dining room has not been converted, retains a serving hatch to the kitchen and is also used for recreational purposes.  Secondly, he argues that the deduction should in any event be one-eighth, rather than one-seventh, as the kitchen has a dining area with a separate door and is a dual purpose room.  Alternatively, the father contends, the deduction should be one-eighth as he had previously omitted to mention a downstairs cloakroom.

57.	The child support legislation provides that where there is mixed use of property for residential and business purposes, then the eligible housing costs are to be reduced appropriately.  The relevant provision is paragraph 5 of Schedule 3 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.  This states as follows:

“Accommodation also used for other purposes
    5.    Where amounts are payable in respect of accommodation which consists partly of residential accommodation and partly of other accommodation, only such proportion thereof as is attributable to residential accommodation shall be eligible to be taken into account as housing costs.”

58.	The decision on whether a reduction for mixed use is applicable must ultimately be a question of degree, depending on the facts found to apply.  The tribunal chairman has carefully set out his findings of fact: that the kitchen diner is one room; that the father works from home as a solicitor using the dining room as his office; that it is separately rated for business purposes; that the father employs some staff and that he does not go elsewhere to work; and that there is occasional recreational use of the dining room.

59.	The tribunal chairman, on the evidence before him, was perfectly entitled to reach the conclusion that he did, both on the application of the mixed use provision and on the amount of the consequential reduction.  These were classic questions of fact and degree for the tribunal at first instance.  The chairman clearly applied the correct legal test; he expressly found that this was not the situation of “a desk in the corner of a living room”, where no such deduction would be appropriate.  This echoes the learned commentary on the statutory provision in E Jacobs and G Douglas, Child Support: The Legislation (1999) at p 356.

60.	I have considered whether, as a matter of law, paragraph 5 of Schedule 3 applies only in situations where there is a clear division within the property between the residential and (for example) business user.  This argument is implicit in the father’s point that the dining room had not been converted in any way.  If this interpretation were to apply, then paragraph 5 would operate only where there was wholly discrete and separate accommodation within the property (for example, a downstairs shop with a flat above, as is commonplace in many corner shops).

61.	I do not read paragraph 5 of Schedule 3 in such narrow terms.  I do not believe that it was the intention of the legislation so to provide.  As I have indicated, in my view it is a question of fact and degree as to whether there is mixed use.  This conclusion also sits more comfortably with the treatment of the apportionment of business and personal usage expenses for self-employed non-resident parents under the child support legislation (e g the running costs of a car with both business and private usage).  The chairman in this case reached the conclusion that the dining room was effectively ‘other accommodation’ and explained his reasons for that finding adequately.  

62.	In my judgment the father’s other arguments in relation to the mixed use deduction are essentially an attempt to reopen findings of fact which have been properly made and explained by the tribunal.  The tribunal chairman found against him on the kitchen diner point and that is the end of that matter.  As for the father’s omission to mention the existence of a downstairs cloakroom, then the simple answer is that he should have raised this point earlier.  The appropriate time and place to argue the point was at the tribunal, if not before.  It does not give rise to a point of law on appeal to the Commissioner.  As a solicitor, the father should be in a good position to appreciate the importance of fully marshalling one’s evidence and arguments before the fact-finding tribunal.  The father will also be familiar with the Latin legal maxim “de minimis non curat lex” (the law is not concerned with trifling matters).

Summary

63.	It follows from the above that I do not accept any of the father’s arguments on the three issues in the case.  The Statement of Reasons issued by the tribunal discloses no error of law.  Accordingly I dismiss this appeal.

	(signed on the original)	N J Wikeley
		Deputy Commissioner

		1 July 2005