THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DETERMINATION OF THE UPPER TRIBUNAL JUDGES

The Upper Tribunal declines to exercise its power under Section 25 of the Tribunals Courts and Enforcement Act 2007 upon a reference by the First-tier Tribunal (Social Entitlement Chamber), dated 2 October 2009.  No order for production of the documents specified in that reference i.e. those previously specified in the directions by the First-tier Tribunal (Social Entitlement Chamber) dated 29 July 2009 is made.  The case is remitted to the First-tier Tribunal (Social Entitlement Chamber) to proceed as accords.  

REASONS FOR DETERMINATION

1.	On 2 October 2009, a tribunal judge of the First-tier Tribunal (Social Entitlement Chamber) made a reference to the Upper Tribunal under rule 7(3)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, document 188A, relating to the failure of the second respondent (the non-resident parent) to produce the documents specified in a direction made by her on 29 July 2009, documents 184-185, i.e. all his bank statements covering the period 1 June 2007 - 31 December 2007 inclusive and all his credit card statements covering the same period.  An identical reference was also made on the same day in CSCS/493/2009, a case involving the same parties which had been conjoined with this one in proceedings before the First-tier Tribunal.

2.	Because of the novelty of these references and since they involved important points of principle and practice, an oral hearing to determine them was convened on 2 December 2009 before a panel of three judges of the Upper Tribunal.  The appellant (the parent-with-care) and the second respondent were both present but unrepresented.  The first respondent (The Child Maintenance and Enforcement Commission) was represented by Mr Simon Collins, Advocate, instructed by the Office of the Solicitor to the Advocate General for Scotland. 

3.	The issue in this case is conveniently summarised in paragraph 3 of document 196, part of the written submission of the first respondent to the Upper Tribunal.   It is the calculation of the second respondent’s Child Support Maintenance Liability, unlike CSCS/493/09 which relates to a departure application made by the appellant. The reference asks the Upper Tribunal to exercise its power under Section 25 of the Tribunals Courts and Enforcement Act 2007 in respect of the second respondent’s failure to comply with the requirement to produce the documents referred to in paragraph 1 above imposed upon him by the direction of 29 July 2009.  Section 25(1)(b) of the above Act, read along with sub-section (2)(b), confers on the Upper Tribunal “in Scotland, the same powers, rights, privileges and authority as the Court of Session” in relation to “the production and inspection of documents”.  Rule 7 (3) – (4) of the Upper Tribunal Rules 2008 specifically enable us to exercise those powers on a reference from the First-tier Tribunal like this one as if the requirement to produce documents imposed by that tribunal had been imposed by the Upper Tribunal.  The Court of Session “has inherent power to compel the parties to a cause to produce documents which may have a bearing on the issues between them”, per Lord Justice-Clerk Thomson in Young v National Coal Board 1957 S.C.99 at p105.  The statutory provisions which we have just cited confer that same power upon us.  It necessarily follows that we can only order production of documents in circumstances where the Court of Session could do so, i.e. if they are relevant to the issues between the parties in any given case.  Mr Collins submitted that it was difficult to see how the documents referred to in paragraph 1 above could be relevant to the issues arising in this case, relating as it did to the maintenance calculation as distinct from those arising in CSCS/493/09.  That position was not contradicted either by the appellant or the second respondent.  We agree with Mr Collins’ submission, especially having regard to the relevant week in this case, 28 August 2006 – 3 September 2006.  See paragraph 21 of document 145, a submission by the Secretary of State in earlier proceedings in the Upper Tribunal in this case. That submission was accepted by the Presiding Judge in paragraph 1 of his decision in CSCS/10/08, document 171.  Accordingly, we hold that the above documents are not relevant to the issues arising between the parties in this particular case.  Thus, in our determination of the reference, we have declined to make an order requiring production of the documents specified in paragraph 1 above.  

4.	The merits of the appeal are unaffected by this determination.  They remain open for decision by the First-tier Tribunal to whom the case is now remitted. 

(Signed)
DJ MAY QC			
Judge of the Upper Tribunal
Date: 10 December 2009

(Signed)
AJ GAMBLE	
Judge of the Upper Tribunal
Date: 10 December 2009	

(Signed)
DS BURNS QC
Deputy Judge of the Upper Tribunal	
Date: 10 December 2009