[2008] UKSSCSC CCS_1664_2007 (25 January 2008)
CCS/1664/2007

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	My decision as Child Support Commissioner is as follows.  It is given under section 24(2) of the Child Support Act 1991:

The decision of the Cambridge appeal tribunal held on 19 February 2007 under reference 140/06/00345 is wrong in law.  It follows that I set aside the tribunal’s decision.

In addition to setting the tribunal’s decision, by virtue of section 24(3)(b) of the Child Support Act 1991 I substitute my own decision as the one that the tribunal should have made on the appeal before it:

The father’s appeal against the Secretary of State’s decision of 16 August 2006 that he was liable to pay £27 a week as from 26 June 2006 is allowed and the decision of the Secretary of State revised in part.  The correct effective date for this maintenance calculation was 6 April 2006.  The amount of income by way of WTC payable at that date was £101.  That income should be attributed to the period from 6 April 2006 to 17 July 2006 only.  The matter is remitted to the Secretary of State to make the necessary calculations and implement the revised decision.  The Secretary of State should then follow this revised decision with a supersession decision on the ground of change of circumstances from the date on which WTC entitlement ceased.

In the event of any dispute as to the consequential calculations flowing from this decision, the matter may be referred back to myself for final determination, or to any other Commissioner should I be unavailable.

There is, however, an important matter of unfinished business, which I explain further below.  In short, the father still has an outstanding appeal to a tribunal relating to an earlier period that has not been determined.

The terminology used in the Commissioner’s decision

2.	In the terminology of the child support legislation, the appellant is the non-resident parent under the maintenance calculation, the first respondent is the Secretary of State and the second respondent is the parent with care.  For convenience, however, I shall refer to them as the father, the Secretary of State and the mother respectively.

The central issue in this appeal

3.	The central issue at the heart of this appeal concerns the complicated interaction of the child support and tax credits systems.  In summary, the Child Support Agency (CSA) calculated the father’s child support liability for a period from June 2006 on the basis that his total income from working tax credit (WTC) for that tax year (2006/07) was £101.  However, Her Majesty’s Revenue and Customs (HMRC) had also decided that the father had been overpaid WTC for the previous tax year (2005/06) by some £1,235.10, which the father had repaid in a lump sum, it seems in the course of the 2006/07 tax year. 

4.	The question for the tribunal in this case is this: was the child support assessment as from June 2006 correctly based on the figure of an income from tax credits of £101?  Or should that assessment have been adjusted to reflect the fact that the father’s tax credit entitlement for the previous tax year had been adjusted and that he had repaid £1,235.10?

A brief background to the case

5.	It is clear from the file that there has been some uncertainty about the sequence of decisions in this matter. For the purposes of the present appeal the material facts are as follows.  On 16 August 2006 the Secretary of State notified the father that he was liable to pay £27 a week in child support for his son from what was said to be the effective date of 26 June 2006 (see print-out at doc 65).

6.	In a letter dated 25 September 2006 the father appealed “against the CSA decision not to include the sum of £1249.39 demanded from and paid back to the Working Tax Credit office” (doc 17).  (This figure actually appears to have comprised the £1,235.10 overpayment for 2005/06 and an overpayment of £14.29 for another period).  The CSA rejected the father’s arguments in its letter dated 10 November 2006 (doc 9).  The father reiterated his arguments in a letter dated 17 November 2006 (doc 11). On 25 November 2006 the CSA obtained confirmation that the father had been paid £101.00 in total in tax credits between 6 April 2006 and 17 July 2006 (a period that included the effective date), when his claim ended (docs 13-14).

The decision of the appeal tribunal

7.	The Cambridge tribunal heard the father’s appeal on 19 February 2007.  The tribunal consisted of a lawyer member and an accountant member.  The father attended with his representative; a CSA presenting officer was also present.  The mother did not attend.

8.	The appeal tribunal disallowed the father’s appeal, ruling that the father remained liable to pay £27 a week in child support with effect from 26 June 2006.  In its short decision notice, issued on the day (doc 38), the tribunal made two findings.  The first was that the tribunal decided that as at the effective date of 26 June 2006 the sum of £101 in WTC had been correctly included for the 2006/07 tax year as part of the father’s income.  The second finding was that the father’s WTC repayment of £1,249.39 related to an earlier period, prior to 6 April 2006, and could not be retrospectively taken into account in relation to the decision under appeal before the tribunal.

9.	The tribunal chairman subsequently issued a statement of reasons for the tribunal’s decision (doc 41-42), explaining the tribunal’s findings and reasons in a little more detail.  On the issue relating to the WTC overpayment and repayment, the tribunal reasoned simply as follows: “For Child Support purposes, in [the father]’s hands tax credit was income and its legislation does not provide for retrospective payments paid in excess”.

The appeal to the Child Support Commissioner

10.	The father now appeals to the Child Support Commissioner, with the permission of a tribunal chairman.  The father’s representative has elaborated on the grounds of appeal put to the tribunal (docs 44, 47, 50-51).  The mother continues to take no part in these proceedings – her only, and pointed, observation is that the appeal is a “waste of taxpayers’ money” (doc 71).  That may or may not be so, but it is the Commissioner’s role to determine appeals on points of law.

What is the rate of the tax credit “payable at the effective date”?

11.	The assessment of the father’s income was governed by the rules set out in the Schedule to the Child Support (Maintenance Calculation and Special Cases) Regulations 2000 (SI 2001/155).  So far as income from tax credits is concerned, at the material time, paragraph 11(1) of the Schedule read as follows:

“Working tax credit
     11.  - (1) Subject to sub-paragraph (2), payments by way of working tax credit shall be treated as the income of the non-resident parent where he has qualified for them by his engagement in, and normal engagement in, remunerative work, at the rate payable at the effective date.”

This appeal turns on the meaning of the phrase “at the rate payable at the effective date”.  Nothing turns on sub-paragraph (2) of regulation 11 in the context of this appeal. 

12.	The father’s representative argues that “the rate payable at the effective date” in June 2006 must take into account not just the actual £101 payment of tax credits but also the repayment in respect of the previous year’s overpayment of WTC.  I am not persuaded by the three particular arguments advanced by the father’s representative in the context of this appeal.

13.	His first argument is that “payable” in paragraph 11 means payable in the sense of what is legally entitled to be paid, citing the venerable authority of a statement of Sir James Romilly MR in the nineteenth century decision of Howard v James (1860) 28 Beav 523 at 528-529.  I have to say I do not find the decision of Howard v James especially helpful in the present context.  

14.	As the Court of Appeal observed in Morton v Chief Adjudication Officer [1988] I.R.L.R. 444, also reported as R(U) 1/88, a case turning on the meaning of “payable” in relation to unemployment benefit: “The word ‘payable’ is not a term of art… It is a word which is capable of bearing different meanings in different contexts.”  In that case the Court of Appeal ruled that an industrial tribunal award was “payable” if it was “due and owing” at that time, even if there was scant prospect of the award actually being met as the employer was in liquidation.  I note, however, that Slade L.J. added one rider to his judgment, namely that “if the award in any case were to be followed by an appeal, the sum awarded would, I think, cease to be ‘payable’ if there was either an order staying payment of the original award, or the appeal was allowed”.  I return to this point later.

15.	I should add that I have also considered the decision of Mr Commissioner Jacobs in CCS/4378/2001.  There the Commissioner held that an overpayment of the father’s salary was not part of that parent’s earnings at the time when it was made.  On the face of it, this decision might be thought to support the father’s argument in the present appeal.  However, Mr Commissioner Jacobs was dealing with a very different legislative provision and made it clear that the interpretation of statutory language must depend on its context. 

16.	In my judgment, therefore, the first argument of the father’s representative is misplaced.  The meaning of the term “payable” is not fixed.  Like a chameleon, it takes its colour from its context.  The question here is on the face of it a simple one: as at the effective date of 26 June 2006, what was the rate of tax credit income that was payable?  The answer is that at that date the sum of £101 was payable in respect of (at least part of) that tax year.  To that extent the tribunal asked itself the right question and got the right answer.

17.	In relation to this point I agree with the representative of the Secretary of State that the decision of Mr Commissioner Angus in decision CCS/3018/2006 is relevant.  However, for reasons that I will explain, it is not entirely on all fours.  In that case, the appeal tribunal had decided, as the father argues here, that it could take into account an overpayment of tax credits in establishing a person’s true tax credit income for a child support assessment.  The Secretary of State then appealed successfully to the Commissioner against the appeal tribunal’s decision.  

18.	In CCS/3018/2006 Mr Commissioner Angus explained how the tax credits decision- making machinery operated.  The Commissioner noted how, under the Tax Credits Act 2002, the initial decision to award tax credits was a provisional decision, and the end of year final entitlement decision might reach a different view, resulting in an overpayment of tax credits.   Mr Commissioner Angus concluded that “the rate of tax credit payable in the year in question remains at the rate of the award and it is the payments at that rate which are relevant to paragraphs 11(1) and 13A of the Schedule to the Maintenance Calculation and Special Cases regulations” (paragraph 12).  The Commissioner therefore ruled that the tribunal in that case had misdirected itself in deciding that the amount to be included under paragraph 11 of the Schedule to the 2000 Regulations “does not include the amount by which the award of tax credits exceeded the rate of entitlement as subsequently decided in the end of year review” (paragraph 13).

19.	The decision and the reasoning in CCS/3018/2006 certainly lends weight to the Secretary of State’s argument that as at the effective date in June 2006 the payment of £101 in WTC alone was relevant.  That was the amount “payable at the effective date”.  However, it is important to consider the factual context of Mr Commissioner Angus’s decision in CCS/3018/2006.

20.	The detailed facts of that case are not evident from the Commissioner’s decision.  However, it is clear from the summary in paragraph 3 of the Commissioner’s decision that the tribunal in that case had refused to consider the actual amount paid in the period of assessment, which had included an overpayment of tax credits.  Rather, the tribunal had (wrongly) had regard to the subsequent net entitlement “established by a review carried out at the end of the tax credit year and after the date of the decision on the child maintenance assessment”.  That last fact alone meant that the tribunal in that case should not have had regard to the final entitlement decision.  This is because section 20(7)(b) of the Child Support Act 1991 specifically directs that an appeal tribunal “shall not take into account any circumstances not obtaining at the time when the Secretary of State made the decision”.

21.	In the present case, of course, the facts were materially different – the father was in essence complaining about the failure to have regard to the overpayment in relation to the previous year (2005/06), and not the present year (2006/07).  In addition, by the time the decision about child support liability under appeal was made, the WTC overpayment decision had already been made.  So in CCS/3018/2006 the tribunal and the Commissioner were concerned with a current payment of tax credits that was later readjusted, after the child support decision was made.  In the case now under appeal there was in reality no dispute over the actual in-year payment (of £101 in WTC); rather the dispute centred on the father’s WTC entitlement for an earlier period – before the effective date and indeed in an earlier tax year.

22.	I might add that the protean (i.e. changing) nature of the word “payable” may also be illustrated by reference to the decision of the House of Lords in a tax case, Income Tax Special Commissioners v Linsleys (Established 1894) Ltd [1958] 2 W.L.R. 292.  The House of Lords held in that case that profits tax was “payable” within the meaning of the Finance Act 1952 even though eventually no such tax would be payable if an election was made under the Finance Act 1947.   

23.	In that case Lord Reid agreed with the Income Tax Special Commissioners’ contention that “profits levy is ‘payable’ within the meaning of this section although not finally payable because events in subsequent years may cause the amount ‘payable’ to be ultimately reduced” (at 306).  Similarly, as Lord Somervell of Harrow stated, “The ordinary meaning of ‘payable’ is…payable at the time of computation disregarding the fact that subsequent events may destroy the liability” (at 309).  This decision indicates that, in certain contexts, a sum is “payable” at a particular time even if subsequent events may undermine and indeed entirely negate that conclusion.  Although not cited in CCS/3018/2006, the decision of the House of Lords in Income Tax Special Commissioners v Linsleys adds further weight to the conclusions of Mr Commissioner Angus on the law in relation to the factual context of that case.

Was there an official error?

24.	The second argument of the father’s representative is that the Child Support Agency’s decision was based on an “official error” and should therefore be revised.  In my view this is to misunderstand the legal framework in the present case.  I am not satisfied that there was an official error by the Agency in relation to the actual decision under appeal, subject to what I say later about the effective date.  HMRC made a provisional decision and then later a final entitlement decision on the basis of the evidence available to them at the relevant times.  The Secretary of State, acting though the Child Support Agency, then made maintenance calculations based on these awards of tax credits.  That in itself does not amount to an official error.

Has there been a breach of the father’s human rights?

25.	The third argument put on behalf of the father is a human rights argument.  His representative alleges that the failure to have regard to the repayment of the tax credit overpayment represents a breach of the father’s right to peaceful enjoyment of his possessions under Article 1 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR for short).  It is true that this argument was apparently neither put to nor considered by Mr Commissioner Angus in CCS/3018/2006.

26.	The short answer to this point is that the House of Lords has ruled in Secretary of State for Work and Pensions (Appellant) v. M [2006] UKHL 11 that the child support system does not impinge on a parent’s Article 1 Protocol 1 rights.   As Lord Mance observed, the relevant child support regulations in that case “were not expropriating anything belonging to the absent parent, but seeking to achieve a fair measure of the absent parent's pre-existing obligation to support his or her children” (at para. 159).

27.	Even if this matter did fall within the scope of Article 1 of Protocol 1, the father’s representative has not persuaded me that the measure is disproportionate.  In the normal course of events these matters would even themselves out, as often an overpayment of tax credits in one period is recovered by way of reduced payments in a later period.  The well-publicised difficulties in operating the tax credits scheme do not affect this point.

28.	The fact is that the child support system is at present based on using a non-resident parent’s current net weekly income, and at the time in question at the assumed effective date in June 2006, which fell within the 2006/07 tax year, his net income from tax credits of £101 was properly included.

29.	It is also true that in its proposed reforms of the child support system, the Government plans that tax credits income will not be included as part of a non-resident parent’s income for assessment purposes (A new system of child maintenance, Cm 6979, December 2006, paragraph 4.17).  However, this reflects the proposed move to gross historic incomes and a desire for greater simplicity.  It does not undermine the fact that the law at present is clearly that actual tax credit payable at a particular point in time is to be included.  However, this is not the end of the matter.  There are two remaining problems.

The first remaining problem: the effective date

30.	The first remaining problem concerns the effective date for the decision on the maintenance calculation that was under appeal to the tribunal.  The tribunal declared this to be 26 June 2006.  This appears to be based on a CSA print out of the computer list of telephone calls received (doc 16).  The CSA’s submission to the tribunal referred to copies of earlier letters that the father later sent in with his appeal, but stated that no record of the receipt of these letters could be found.  The tribunal’s Statement of Reasons refers to the father’s letter of 4 April 2006 but gives no explanation as to why the date of 26 June 2006 was preferred as the effective date for the father’s application as against the date of receipt of the 4 April 2006 letter (assuming the tribunal found it had been received, on which it made no finding).

31.	In my judgment this is an error of law, given the absence of any adequate explanation.  For that reason I have to set aside the tribunal’s decision.   However, I am satisfied that I can substitute my own decision to replace that of the tribunal.  Given the tenor of the correspondence on file, which shows the father getting increasingly exasperated, I am quite satisfied that the father sent the letter dated 4 April 2006 to the CSA.  I think the most likely explanation is that it was mislaid by the CSA.  On the balance of probabilities, given the nature of the postal service, I think the letter was received on 6 April 2006.  I therefore find that the effective date for this application for a supersession was 6 April 2006.

32.	This effective date conveniently falls at the start of the 2006/07 tax year.  It is not in dispute that the father received a payment of WTC of £101 for the period from 6 April 2006 to 17 July 2006, both dates included.  The question then is how that income is to be attributed across the year.  The tribunal took the view that the £101 was properly allocated across the whole tax year of 52 weeks, so increasing the father’s net weekly income by £1.94 a week.  

33.	The tribunal did not consider the possibility raised in the CSA submission to the tribunal that the payment of £101 should have been attributed solely to the actual period which it covered.  If so, the £101 should have been divided by the number of weeks over which it was paid, which would naturally have increased the father’s weekly net income for that period.  That calculation could then have been followed by a supersession decision from the date the WTC entitlement ceased, reflecting the new income level.

34.	It is arguable that the tribunal’s failure to address this point was itself an error of law but I need not resolve that as I have set aside the tribunal’s decision on other grounds.  However, in my judgment the proper approach is indeed the option set out in the previous paragraph.  The reason for this is that regulation 2(4) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (SI 2001/155) states that:

“(4) In taking account of any amounts or information required for the purposes of making a maintenance calculation, the Secretary of State shall apply the dates or periods specified in these Regulations as applicable to those amounts or information, provided that if he becomes aware of a material change of circumstances occurring after such date or period, but before the effective date, he shall take that change of circumstances into account.”

35.	Therefore, the decision that I substitute for that of the tribunal is as follows:

The father’s appeal against the Secretary of State’s decision of 16 August 2006 that he was liable to pay £27 a week as from 26 June 2006 is allowed and the decision of the Secretary of State revised in part.  The correct effective date for this maintenance calculation was 6 April 2006.  The amount of income by way of WTC payable at that date was £101.  That income should be attributed to the period from 6 April 2006 to 17 July 2006 only.  The matter is remitted to the Secretary of State to make the necessary calculations and implement the revised decision.  The Secretary of State should then follow this revised decision with a supersession decision on the ground of change of circumstances from the date on which WTC entitlement ceased.

In the event of any dispute as to the consequential calculations flowing from this decision, the matter may be referred back to myself for final determination, or to any other Commissioner should I be unavailable.

	This leaves the second and more serious problem.

The second remaining problem: an unresolved appeal

36.	As has been explained above, the tribunal in this case was concerned with the father’s appeal against the decision of 16 August 2006 that he was liable to pay £27 a week as from 26 June 2006 (doc 65).  That effective date was based on the father’s letter and telephone calls to the CSA on that date (see docs 16 and 21).  That decision in turn revised an earlier decision of 3 August 2006 that the father was liable to pay £34 a week from that effective date (doc 64).

37.	As the Secretary of State’s representative now points out, the staff member dealing with the case did not revisit a separate decision, also dated 3 August 2006, that the father was liable to pay £34 a week as from the earlier effective date of 12 December 2005.  As there was no decision on 16 August 2006, relating to that earlier period, it followed that technically there was also no appeal against it before the tribunal.

38.	At this point it is necessary to go back a few steps. According to the Secretary of State’s representative, a maintenance calculation was made on 8 November 2005 with an effective date of 10 October 2005 that the father was liable to pay £46 a week in child support for his two children (doc 60).  The precise income figures may be in dispute but I note that in June 2006 the father complained about having to pay £46 p.w. for the previous 28 weeks when he thought the figure should be less.

39.	The Agency’s next action seems to have been the two decisions dated 3 August 2006 and referred to in paragraphs 36 and 37 of this decision.  Decision 1 had the effective date of 26 June 2006 and Decision 2 the effective date of 12 December 2005, although the amount payable under each was the same.  Decision 2 was it seems a supersession decision, removing the father’s daughter from the calculation as she was no longer a qualifying child from December 2005.

40.	The Secretary of State accepts that the father lodged an appeal on 10 August 2006 but has not produced the letter of appeal.  The original submission to the tribunal stated that this appeal had lapsed because of the revised decision made on 16 August 2006.  That is undoubtedly true so far as the father’s appeal on 10 August 2006 against Decision 1 was concerned (Child Support Act 1991, section 16(6)).

41.	However, the same is not true of the father’s appeal on 10 August 2006 against Decision 2.  Decision 2 was left unaffected by the actions of the decision maker on 16 August 2006.  It follows that the father has never had his appeal against Decision 2 (with the effective date of 12 December 2005) determined by a tribunal.

42.	The Secretary of State’s representative now accepts that Decision 2 should have been revisited on 16 August 2006 and is unable to explain why this did not happen (doc 61).  He invites the Commissioner to remit the matter to the Secretary of State for him to make a decision in respect of the maintenance calculation effective from 12 December 2005, if only for him to make a decision refusing to revise Decision 2.  This would carry fresh appeal rights before a new tribunal.

43.	I am not satisfied that this is an appropriate way forward.  The fact is that this father lodged an appeal on 10 August against the decision effective from 12 December 2005 and that appeal has never been dealt with by a tribunal.  I see no reason why the father should have to wait for the Secretary of State to make what may well be a refusal to revise that decision.  In any event, the Secretary of State retains the power to revise the earlier decision so long as there is an appeal pending which has yet to be determined: see regulation 3A(1)(cc) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991).

44.	It is clear from the correspondence on file that the father had made repeated attempts to get the CSA to address his concerns.  He telephoned the CSA on 27 March 2006 about the HMRC demand for a repayment of tax credits (doc 15).  As we have seen, he repeated this request by letter dated 4 April 2006 (doc 23).

45.	The father’s other appeal, which was lodged on 10 August against the decision that was effective from 12 December 2005, should now be considered by a tribunal.  The Secretary of State should prepare a fresh submission for the new tribunal explaining the background to and the reasoning behind that decision.  That tribunal will, of course, have to consider what was “the rate payable at the effective date” as regards the father’s WTC.

46.	The father states in his letter of 26 June 2006 (doc 21) that he had been awarded £44.64 in WTC in the 2005/06 tax year.  It is well known that tax credit awards can go up and down.  In the final tax credits award for 2005/06, dated 17 May 2006 (doc 29), the father is recorded as having received a total of £2157.69 in WTC during that year (£1337.50 from his employer and £820.19 from HMRC).  This results in a weekly payment on average across the year of £41.49.  However, that end of year notice also reported the overpayment on the year (2005/06) of £1,235.10, leaving his correct WTC entitlement for the year as £922.59.

47.	The question for the new tribunal is which figure it should use for the father’s WTC income as “the rate payable at the effective date”.  Should it be the figure that was actually in payment as of the week containing the effective date of 12 December 2005.  If so, this will presumably be in the order of £41.49 a week.   Or should it be based on the final entitlement figure for the year, in which case it will be £17.74 a week (£922.59 divided by 52)?

48.	Of course, I can only offer guidance to the tribunal, as this particular decision is not under appeal to the Commissioner given the failure to process the father’s earlier appeal properly.  However, the correct approach appears to me to be as follows.  If the Secretary of State’s child support maintenance calculation decision was made in say January 2006, then “the rate payable at the effective date” is in the order of £41 a week (or whatever was the then precise figure), as that was the amount then being paid in December 2005.  The fact that that entitlement figure might change later does not affect that outcome at that time.  That seems to be the import of Mr Commissioner Angus’s decision in CCS/3018/2006.

49.	The material facts of this case are different.  The tribunal will be concerned with a decision taken on 3 August 2006 to make a maintenance calculation with an effective date of 12 December 2005.  Yet on the facts of this case by 3 August 2006 the decision maker had had sight of the final tax credits award for 2005/06.  That being so, it seems to me arguable that “the rate payable at the effective date” is the sum of £17.74 a week.  True, the father was paid £41.49 a week as at December 2005 but the amount payable  was £17.74 a week.

50.	As regards the 3 August 2006 decision, a tribunal taking this approach would not be in breach of section 20(7)(b) of the Child Support Act 1991 because it would not be taking “into account any circumstances not obtaining at the time when the Secretary of State made the decision or imposed the requirement”. The tribunal would also be giving proper effect to the requirement that the decision maker must take a change of circumstances into account “if he becomes aware of a material change of circumstances occurring after such date or period, but before the effective date” (regulation 2(4) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000).

51.	This approach would not be inconsistent with that of CC/3018/2006 because of the material difference in the facts of the two cases.  Such an approach would also be entirely consistent with the decision of the Court of Appeal in Morton v Chief Adjudication Officer [1988] I.R.L.R. 444, also reported as R(U) 1/88.  It will be recalled that Slade L.J. added one rider to his judgment, namely that “if the award in any case were to be followed by an appeal, the sum awarded would, I think, cease to be ‘payable’ if there was either an order staying payment of the original award, or the appeal was allowed”.  

52.	I have also considered the history of paragraph 11 of the Schedule to the Child Support (Maintenance Calculation and Special Cases) Regulations 2000.  As originally drafted, it read thus:

“Working families’ tax credit
     11.  - (1) Subject to sub-paragraphs (2) and (3), payments by way of working families' tax credit under section 128 of the Contributions and Benefits Act, shall be treated as the income of the non-resident parent where he has qualified for them by his engagement in, and normal engagement in, remunerative work, at the rate payable at the effective date.”

53.	This provision was presumably relatively easy to operate when Working Families' Tax Credit	 (WFTC) existed.  Awards of WFTC were made on a fixed term basis for 26 weeks.  They could only be changed within that period of 26 weeks on very exceptional grounds.  Furthermore, there was no reconciliation process at the end of the award to ascertain what the actual level of income had been during that past period.

54.	In 2003 paragraph 11 of the Schedule to the Child Support (Maintenance Calculation and Special Cases) Regulations 2000 was amended simply by substituting “working tax credit” for “working families’ tax credit”.  It is unclear whether any thought was given to the fundamental differences between WFTC and WTC identified in the preceding paragraph.  Be that as it may, the current wording of paragraph 11 has to be applied in the context of the WTC scheme and not the old WFTC scheme.

The Child Support Commissioner’s decision

55.	My decision is therefore as follows. The decision of the Cambridge appeal tribunal held on 19 February 2007 under reference 140/06/00345 is wrong in law.  It follows that I allow the father’s appeal against that decision.  I substitute for the tribunal’s decision the decision that it should have made.  I have set this out at paragraphs 1 and also 35 above.  However, that is not the end of the matter.

56.	I have explained the remaining problem above.  This is that the father’s appeal dated 10 August 2006, against the decision of 3 August 2006 with an effective date of 12 December 2005, has not been adjudicated upon by a tribunal.  

57.	It seems to me, however, that the following steps should take place as a matter of urgency.  I therefore direct that:

(1)	The Secretary of State should prepare a fresh appeal submission relating to the father’s appeal of 10 August 2006 against the decision of 3 August 2006, which had an effective date of 12 December 2005.

(2)	The Secretary of State should send that appeal submission to the Tribunals Service within one month of receipt of this decision.

(3)	The Tribunals Service should place this decision and the case file before a district Chairman for further case management directions as regards listing and other arrangements.

(4) 	The new tribunal may wish to have regard to the guidance offered at paragraphs 36-54 above in dealing with that appeal.

	(signed on the original)	N J Wikeley
		Deputy Commissioner

		25 January 2008