[2007] UKSSCSC CSCS_14_2007 (29 November 2007)

	DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	My decision is that the decisions of the tribunal in the above cases given at Stirling on 28 March 2007 are erroneous upon a point of law.  I set them aside.  I make the decision I see appropriate in respect of both under reference to the findings in fact made below.  That decision in each appeal to me is that there was no right of appeal against the decision of 10 January 2005, as purportedly revised by decisions of 26 April 2005 and 26 July 2006.  The decisions of 26 July 2006 and 26 April 2005 purporting, in the former decision, to revise the decision of 26 April 2005, including making a purported decision in respect of the child, K, whether as included as part of the revisal of the decision of 10 January 2005, as revised on 26 July 2005, or as a supersession of it on 26 July 2005 and, in the latter decision, revising the decision of 10 January 2005, are incompetent, inept and of no effect.  They are set aside.  There is an outstanding appeal by the mother against the decision of 10 January 2005, which should be placed before an appeal tribunal for a decision.  That appeal should be listed before the same tribunal and on the same date as CSCS/16/2006.  There are, further, (1) the application of 19 May 2005 in respect of K and (2) an outstanding maintenance application form by the father dated 1 or 3 June 2005, both of which should be placed before the Secretary of State for decisions after the outstanding appeal before the tribunal has been determined.  The Secretary of State will also have to consider the decisions made subsequent to the the decision, or decisions, of 26 July 2006 following my decision in the appeals before me.  

2.	In this case, the father of the children, whom I shall identify as K, L and M, made appeals to a tribunal against the decision, or decisions, of a decision maker dated 26 July 2006.  One appeal related to L and M.  The other related to K.  The tribunal made an identical decision in respect of each appeal.  The father of the said children thereafter appealed to the Commissioner against the tribunal’s decision.  These appeals were heard before me on 25 September 2007, when an adjournment was required to enable the Secretary of State to produce a chronology of the decision making in the case and the relevant decisions, and 26 November 2007.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mr Matheson, Solicitor, of the Office of the Solicitor to the Advocate General.  The appellant, who is the father, and the mother, who is the second respondent, appeared on their own behalf.  For ease of reference, I will refer to the parties in the appeal before me as “the father”, “the mother” and “the Secretary of State”.

3.	The history of the case is that the mother made an application for maintenance on a maintenance assessment form in respect of the children L and M on 6 July 2004.  Thereafter, the chronology is as stated by the Secretary of State in the chronology presented to me.  The appendices referred to in that chronology can be found in the appeal papers in both appeals.  The chronology is as follows:

“10 January 2005
Appendix 2	Decision made that [the mother] is not the principal provider of day to day care.  Therefore application ‘cancelled’ and case closed.	
27 January 2005
Appendix 3	On 13 January 2005 [the mother] disputed decision dated 10 January 2005.  Decision maker (‘DM’) refused to revise.	
22 February 2005
Appendix 5	Telephone call received by CSA from [the mother] stating she wished to apply for child support maintenance for K.  MAF issued.  Completed application received on 25 February 2005.	
26 April 2005
Appendix 4	DM revised decision dated 10 January 2005 and ‘re-opened’ case, finding that case had been ‘closed’ incorrectly.  As a result, DM made an initial MC in respect of L and M for £22.50 per week from the effective date of 8 November 2004.  Additionally, a ‘Schedule 1, para 15’ supersession was made with an effective date of 21 March 2005 for £47.75	
19 May 2005
Appendix 6	Further MAF completed by telephone on behalf of [the mother] in respect of application for K.	
26 July 2006
Appendix 7	DM revised decision dated 26 April 2005.  Amount payable changed to £44.57 per week from effective date of 8 November 2004 in respect of L and M.  Additional decision made under Schedule 1, para 15 for £69.29 per week from effective date of 17 July 2006 in respect of L, M and K.	
8 August 2006
Appendix 8	[The mother] disputed above decision in respect of effective date for commencement of child support for K.  DM refused to revise decision dated 26 July 2006	
15 December 2006
Appendix 9	DM revised maintenance calculation.  Amount payable changed to £51.43 per week from effective date of 8 November 2004 and £80.00 per week from 17 July 2006	
19 February 2007
 Appendix 10	DM superseded maintenance calculation.  Amount payable £51.43 per week from effective date of 12 February 2007 in respect of M and L (K removed from calculation).  Additional supersession made for same amount (£51.43) payable from 16 April 2007 in respect of M and L (reason not known).”	
	
It should also be noted that on either 1 or 3 June 2005 the father made a maintenance application for the children, L and M.  That is contained in Appendix 11 of the appeal papers.  The decision in relation to K is said to have been made under Schedule 1 paragraph 15 of the Act.  It is not clear whether it simply forms part of the purported revision on 26 July 2006 or whether it purported to be a supersession of the decision of 10 January 2005, as purportedly revised.  I have taken it to be the former.  If, however, it is the latter, this is of no moment, as the affect of my decision is the same.  I have sought to reflect both possibilities in my decision in paragraph 1.

4.	Upon consideration, from Appendix 7, of the chronology presented to me by the Secretary of State, I raised with Mr Bartos the question as to whether the decisions of 26 July 2006 and 26 April 2005 were competent decisions.  I did so in the context of the relevant statutory provisions.  

5.	Section 11 of the Child Support Act 1991 provides:

“11 (1)	An application for a maintenance calculation made to the Secretary of State shall be dealt with by him in accordance with the provision made by or under this Act.
 	(2)The Secretary of State shall (unless he decides not to make a maintenance calculation in response to the application, or makes a decision under section 12) determine the application by making a decision under this section about whether any child support maintenance is payable and, if so, how much.”

Section 16 of the Act provides:

“16(1) any decision to which subsection (1A) applies may be revised by the Secretary of State‑
…
(1A) This subsection applies to‑
(a)	a decision of the Secretary of State under s.11, 12 or 17;
…”

Section 20(1) of the Act provides:

“20(1)	A qualifying person has a right of appeal to an appeal tribunal against‑
(a)	a decision of the Secretary of State under s.11, 12 or 17 (whether, as originally made or as revised under s.16);
(b)	a decision of the Secretary of State not to make a maintenance calculation under s.11 or not to supersede a decision under s.17;
…”

6.	In the decision of 10 January 2005, it would appear from the record at page 117 in CSCS/15/2007 that the father, on the evidence presented, was regarded as being the principal carer of the children, L and M.  The decision, therefore, was to close the application made by the mother.  This was intimated to the father on 10 January 2005 in a letter which said:

“This letter is to tell you that the application for child maintenance has been cancelled or ceased to have effect for L and M.

The reason for cancellation or withdrawal

The decision maker has studied the evidence supplied by both parties concerning primary care of L and M.  The decision maker has decided that [the father] is the primary carer.”

7.	It was Mr Bartos’s submission that this was a decision under s.11 of the Act.  That submission is not one which I am prepared to accept.  The decision was one by the Secretary of State not to make a maintenance calculation in response to the application.  A decision under s.11 is a  determination of the application by making a decision as to whether any child support maintenance is payable and, if so, how much.  The decision making power set out in s.11(2) is conditional upon the Secretary of State making such a determination.  In these circumstances, I am satisfied that a decision not to make a maintenance calculation in response to the application is not a decision under s. 11, which is capable of revision under s.16.  A decision of the type made here, namely, not to make a determination, is specifically excluded.  Mr Bartos did not offer any arguable basis upon which that analysis is not correct.  I directed him s.20(1), which sets out the rights of appeal to an appeal tribunal.  It provides for an appeal against a decision of the Secretary of State under s.11 in s.20(1)(a) and a decision under s.20(1)(b) not to make a maintenance calculation under section 11.  If the refusal to make a calculation was a decision under s.11, then it would appear to me that there would be no need for s.20(1)(b).  Mr Bartos accepted that, but still maintained that a decision to refuse to make a calculation could be regarded under s.11.  It seems to me that the statutory provisions laid out in the Act have the obvious logic that the remedy for a refusal to make a maintenance calculation is an appeal, which, in this case, the mother sought to make.  I should perhaps add that, if the decision relating to K was a separate decision on 26 July 2006, superseding the decision of 10 January 2005, as revised on 26 July 2006, the result would be exactly the same.  This is because s.17(1)(a) of the Act, which provides for supersession of a decision under s.11 or 12, whether as originally made or as revised under s.16, and this would not encompass, for the reasons set out above, supersession in respect of the Secretary of State declining to make a maintenance calculation.  Accordingly, the decision would be incompetent on these grounds also.  

8.	As can be seen from the chronology which I have quoted above, the mother’s appeal was never heard by a tribunal.  However, having determined that both purported revisions and, if there is also a purported supersession on 26 July 2006 in respect of K, that supersession, are incompetent, her appeal remains to be heard by a tribunal.  On my view of the case, the tribunal erred in law because it did not address the issue which is the substance of my decision.  In these circumstances, their decision falls to be set aside.  It thus follows that the mother’s appeal in relation to the refusal on 10 January 2005 falls to be placed before a tribunal.  It is also apparent that the additional decision made in respect of K, following the maintenance application of 19 May 2005, falls to be determined by the Secretary of State, as, on either view of the decision making process, in that regard the decision made was incompetent.  There is, further, an application by the father for the children, L and M, of 1 or 3 June 2005, which also falls to be dealt with.  It would be proper for the Secretary of State to await the outcome of the mother’s appeal against the decision of 10 January 2005 before dealing with these applications and the decisions made subsequent to 26 July 2006.  It should perhaps also be noted that the Secretary of State lodged before me the letter of appeal made by the mother against the decision of 10 January 2005, which was received on 3 February 2005.  It is in the bundle.  I should perhaps also add that neither the father nor the mother sought to present an argument which contradicted the proposition I put to Mr Bartos that the revisions of 26 April 2005 and 26 July 2005 were incompetent.  Indeed, the mother indicated that she would prefer that the whole matter be looked at again.  The father had also maintained that he was unaware of the decision making process until subsequent to 26 July 2006.

9.	Mr Bartos made submissions, in the event that I accepted his submission that the revisions were not incompetent, that the tribunal erred in law for the reasons set out in the written submissions by the Secretary of State in both appeals.  Having taken the view that I have, I do not consider that it would be advisable to express any views on these submissions in respect that they might pre-empt decisions made by both the tribunal, which will require to hear the mother’s appeal, and the Secretary of State in relation to the respective applications by the mother and father.  These decisions will carry their own rights of appeal.  I consider, having taken the clear view I have in respect of competency, it is best to leave the matter like that.  The written submissions of the Secretary of State on these matters will be available to the tribunal.  The disposal of the appeal is as set out in paragraph 1.

10.	The appeals succeed.

					(signed)
					D J MAY QC
					Commissioner
					Date:  29 November 2007