DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Newport First-tier Tribunal dated 19 August 2009 under file reference 194/07/01211 involves an error on a point of law.  The First-tier Tribunal’s decision is therefore set aside.  

The Upper Tribunal is in a position to re-make the original decision under appeal.  

The mother’s appeal is allowed.  The findings of the Newport First-tier Tribunal sitting on 19 August 2009 under reference 194/07/01211 are adopted in full, subject to one exception, namely that there is insufficient information to replace the interim maintenance assessment by a full assessment with effect from 2001. The case is therefore remitted to the Commission to recalculate the amount of the child support assessment in accordance with the following directions.

(1) The effective date is 15 May 2001.

(2) The interim maintenance assessment of £134.93 a week effective from 15 May 2001 remains in force until the father was awarded income support.  

(3) A separate maintenance assessment from the new effective date of 12 June 2007 then applies, reflecting the fact that the father had been awarded income support from 15 June 2007 and so was liable to pay the minimum amount in lieu of child support maintenance.

(4)  The mother had no assessable income throughout the period in question.

(5) The direction of the First-tier Tribunal on 19 August 2009, in the decision now set aside, that the issues of the father’s entitlement to income support and to housing and council tax benefit are referred to the Department for Work and Pensions (DWP) and the local authority respectively is reaffirmed.

This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1.		The appellant’s appeal to the Upper Tribunal is allowed, although the outcome may well be of no real advantage to him. The decision of the Newport First-tier Tribunal dated 19 August 2009 under file reference 194/07/01211 involves an error on a single point of law.  The tribunal’s decision is set aside.  

2.		The Upper Tribunal is in a position to re-make the decision under appeal.  The decision that the First-tier Tribunal should have made is as set out above.  That decision is essentially in the same terms as the decision that the Newport First-tier Tribunal made with one important exception.  For the reasons that follow, and with some considerable reluctance, I conclude that the tribunal erred in finding that there were grounds for replacing the interim maintenance assessment with a standard maintenance assessment covering the period from 2001.

The background to this appeal

3.		The issue in this appeal concerns the appropriate level of child support maintenance payable by the appellant (the father) in respect of his son over a period of some years.  The son is disabled and lives with the mother.  As is often the case, the parents’ respective views are deeply entrenched and embittered.   I propose to say as little as possible about that aspect of the case.

4.		While many of the circumstances of this case are in dispute, the essential sequence of events in terms of the timetable of the Child Support Agency’s various assessments does not appear to be seriously contested.  Initially the Agency decided that the father had not provided evidence of his income and so made a Category A interim maintenance assessment (IMA) with effect from 15 May 2001 at the rate of £134.93 a week.  That decision was made on 12 December 2002.  The father did not meet his liability under the IMA and it appears that arrears of over £30,000 accumulated.  Those arrears were secured by way of a charge on a property owned by the father.

5.		On 20 June 2007 the Agency revisited that decision to impose an IMA.  Its new decision was that the father’s liability to pay child support maintenance was reduced to nil with effect from 14 May 2001 (this appears to have been a typographical error for 15 May 2001), except for a limited period between July and September 2002 when the liability was set at £15.63. 

6.		On 26 June 2007 a further decision was taken by the Agency.  Its effect was that the maintenance liability was £5.50 a week from 8 July 2003 until 6 October 2003 but otherwise nil.  The net result, as the First-tier Tribunal pointedly observed, was that arrears of nearly £32,000 were reduced to the paltry sum of £75 “at a stroke”.

7.		The mother, unsurprisingly, appealed the Agency’s decision.  She argued, in short, that the father’s income was different to (and presumably she meant higher than) the income he had declared to the Agency. 

The First-tier Tribunal decision

8.	The mother’s appeal was lodged on 22 July 2007.  Suffice to say it had a protracted and troubled procedural history at the First-tier Tribunal.  Various directions were issued by the tribunal and some evidence and submissions sent in by the parties.

9.	The substantive hearing of the mother’s appeal took place on 19 August 2009 – some two years after her appeal.  Plainly this delay was in nobody’s real interests, least of all the boy who was the subject of these proceedings.  The tribunal itself, comprising an experienced district tribunal judge and equally experienced financially qualified member, was sitting in Newport, Wales.  The mother appears to have been present in Newport.  The father participated by video-link from Liverpool and the Agency’s presenting officer by video-link from Blackpool.  I note simply that the logistics of such listing arrangements are a matter for the good judgment of the First-tier Tribunal and do not normally give rise to any challenge before the Upper Tribunal.

10.	On this occasion the tribunal’s decision was stated to be as follows.  In short, the mother’s appeal was allowed.  The tribunal’s decision notice ruled that the effective date was 14 May 2001 (again, a minor error for 15 May 2001) and that the father’s income had been £692.30 net per week throughout the period in question, namely from 15 May 2001 up to the award of income support in June 2007 (an award on which the tribunal cast serious doubt).  The tribunal gave summary reasons, including the finding that the father’s income was “£30,000 per annum”.

11.	The district tribunal judge also issued a very comprehensive and detailed Statement of Reasons, running to some 22 pages of printed text.  There is much to be commended in this decision.  It is clearly-organised, well-written and conveniently “signposted” with headings.  Whilst the father is clearly very unhappy with its findings, the tribunal’s Statement of Reasons pulls no punches.  It reviews and evaluates the evidence, makes findings of fact and gives reasons.  That is the job of the First-tier Tribunal.  The Statement of Reasons includes a damning finding against the father in terms of his lack of credibility: “He is not a man whose account can be in any way relied on”.  That is also the job of the tribunal, if it finds that conclusion to be justified on the evidence. This is not a mere assertion in this case – that adverse finding is carefully substantiated by reference to the wealth of evidence in the case.  As I indicated when granting the father permission to appeal, questions of credibility are pre-eminently questions of fact for the First-tier Tribunal to determine.  It is certainly not the task of the Upper Tribunal to tell the First-tier Tribunal how to weigh and evaluate the evidence or who to believe. 

The proceedings before the Upper Tribunal

12.	The father’s grounds of appeal were essentially three-fold. First, that the tribunal acted in breach of the Data Protection Act 1998 in relying on evidence about the father’s friend Miss H.  Secondly, he argued that the tribunal wrongly relied on evidence which had been obtained in the course of proceedings in the family courts and then put in evidence in the present case by the mother.  Thirdly, he argued that the tribunal did not make sufficient findings of fact or give adequate reasons as to how they had assessed his income.	

13.	The mother has been invited to comment on the father’s appeal to the Upper Tribunal but has not responded.  It is probably safe to assume that she supports both the decision and the reasoning of the First-tier Tribunal.

14.	The Commission has been represented in these proceedings before the Upper Tribunal by S.A. Powell.  In a detailed and careful submission, the Commission’s representative does not support the father’s appeal on the first two points.  However, the Commission’s representative supports the father’s third ground of appeal, inasmuch as it is argued that the tribunal did not make sufficient findings of fact to support the conclusion that the father had an income of £36,000 net a year throughout the period from 2001 to 2007.  But, it is suggested, evidence was available to the tribunal in the form of the father’s purchase of a property in September 2002 with a mortgage of £110,000.  The Commission’s representative therefore invites the Upper Tribunal to re-make the tribunal’s decision to the same effect and in those terms.  I will review these various arguments in turn.

The argument based on the Data Protection Act 1998

15.	The father’s argument is that the Agency acted in breach of the Data Protection Act (DPA) 1998 in accessing official information about his friend Miss H without her consent and that the tribunal compounded this breach by relying on that information. The information in question related to a schedule of earnings for Miss H relating to 2002, which the Agency had obtained and submitted as part of the bundle of evidence supporting its initial submission to the tribunal.  I should perhaps add that Miss H was found by the tribunal (and conceded by the Agency) not to be the father’s “partner”, in the sense that term is used in the child support legislation.

16.	The Agency has certainly apologised to Miss H and made a token payment of compensation to her in connection with this matter (letter dated 25 April 2008).  The father then requested that the information in question be deleted from the tribunal file for the mother’s appeal.  The district tribunal judge issued Directions on 27 June 2008, stating that the complaint was a matter between Miss H and the CSA and that the tribunal could determine any issues of relevance or admissibility of contested evidence.  As I noted when granting permission to appeal, it is difficult to see what criticism can be made of those Directions.

17.	It is important to note that section 35 of the DPA 1998 states as follows:

Disclosures required by law or made in connection with legal proceedings etc 

“(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary— 
(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or 
(b) for the purpose of obtaining legal advice, 
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.”

18.	Proceedings before the First-tier Tribunal are, of course, legal proceedings.  This means that if the tribunal directs disclosure of a particular document, then section 35(1) applies and the 1998 Act cannot be relied upon to justify non-disclosure.   However, this was not a case where the tribunal ordered the production of the schedule of earnings in question.  It had simply been sent in by the Agency, even though it related to an individual who was not a party to the proceedings.  As the district tribunal judge noted, the dispute about how it was obtained and then used was a matter between the Agency and Miss H and not directly relevant to the present appeal.

19.	Section 35(2) further provides that, even if there is no specific order, personal data are exempt from the non-disclosure provisions in the Act in the circumstances set out.  In the present case the tribunal made a passing reference to the schedule in question.  However, it was never a major plank of their fact finding and reasoning.  It is always for the tribunal to decide what evidence to admit and how much weight to attribute to it.  Thus, regardless of section 35 of the 1998 Act, as a matter of principle admissibility is a matter for the tribunal to determine, as the strict laws of evidence do not apply to tribunal proceedings.  

20.	Indeed, the father’s arguments on this point are based on a fundamental misunderstanding of the legal position.  He complains that the Agency admitted it had made a mistake and then informed the Tribunals Service that the information in question had been improperly obtained, and so should be removed from the bundle and destroyed.  Precisely what the Agency said is not strictly relevant, for it is not the Agency’s job to tell the tribunal what to do.  The Agency, in the same way as each parent, is simply a party in the proceedings before the First-tier Tribunal.  Like any other party they can make representations and provide submissions.  However, decisions on admissibility are ultimately for the tribunal alone to determine.  The basic principle is clear – if evidence may be probative, it can be admitted.

21.	For these reasons, whatever grievance Miss H may have against the Agency’s conduct, there is no merit in the father’s ground of appeal in these proceedings which seeks to rely on the Data Protection Act 1998.  In any event the schedule of Miss H’s earnings for 2002 was only a small part of the evidence considered by the tribunal; even if it had been wrongly admitted (which I do not find to be the case), it had no material effect on the overall outcome.

The argument based on the confidentiality of the family court evidence 

22.	The father’s second ground of appeal is that the tribunal was wrong to rely on documentary evidence which had been part of separate proceedings under the Children Act 1989 between the parties in the civil courts.  The papers in question included copies of Land Registry entries for properties in which the father had an interest, along with associated documents, e.g. redemption statements and a compulsory purchase order.  The mother sent this evidence to the tribunal with a covering letter dated 12 October 2007.

23.	The father complained immediately, arguing that the mother did not have his consent to do so and that it was “illegal” for her to forward any documentation from the family courts to third parties (e.g. tribunals).  On 15 November 2007 a tribunal chairman issued a direction requiring the mother to produce any documentation on which she relied, including court orders relating to the father’s obligation to disclose his income “having first obtained the necessary consent from the court”.  The tribunal also ordered the removal of one document (which appears to have been an affidavit – or part of an affidavit – sworn by the father in the court proceedings).  The father continued to raise objections to the use of this evidence.

24.	On 26 February 2008, in the course of extensive further directions, a district tribunal judge ruled as follows:

“From 1 October 2007, provisions have been amended to authorise the communication of any information relating to the proceedings to the Secretary of State, any representative and any appeal tribunal for the purposes of making or responding to an appeal under section 20 of the Child Support Act 1991, or for the determination of that appeal.  The relevant statutory instruments are 2007/2187 and 2188.  That authorises the use of documents relied on in court in these proceedings without further authority unless their use is prohibited expressly, as is typically the case with welfare reports.  Most documents used in court proceedings can simply be sent in for the tribunal to see.”

25.	The evidence submitted by the mother related solely to financial matters.  There is no suggestion that there was any attempt to introduce a court welfare report about the child in question.  On 12 March 2008 the mother then submitted a further and more extensive batch of documentary evidence from the court proceedings, most of which comprised bank statements and property records and which were to prove central to the tribunal’s subsequent findings.  

26.	The father again strenuously objected.  He produced a copy of a county court order dated 28 February 2008, made under the Children Act 1989, by which the court gave the mother permission “to disclose to the Child Support Agency details of the [father’s] financial circumstances disclosed in these proceedings”.  He argued, rather disingenuously, that this only gave her leave to disclose material to the Agency, and not to the tribunal.  He also stated that he was appealing against the court’s order.  He later produced a copy of a court order dated 1 April 2008 suspending the 28 February 2008 order and adjourning the matter generally.  A month later he wrote demanding further assurances that the documents in question would be destroyed, also announcing that because of the invasion of his privacy “I will not accept any decision reached by this tribunal”.

27.	A tribunal clerk then wrote to the father on 12 June 2008 in some detail and plainly on the instructions of a tribunal judge.  That letter essentially explained the legal position as set out in the earlier directions of 26 February 2008 but in rather more detail.

28.	The father argues that the court order dated 1 April 2008 refused the mother “the right to disclose ANY documentation from the Children’s Act [sic] proceedings” and that the evidence in question had been “illegally distributed”. As indicated when granting permission to appeal, it is by no means clear that the order of 1 April 2008 actually does what the father claims it does.  The District Judge’s order suspended the earlier ex parte order and adjourned the mother’s application.  It was not, in terms, an express prohibition of disclosure of such documentation.  In particular, as a matter of principle, the court order could not override any express statutory provision.

29.	At this stage it is important to note that there have been various changes in recent years to the statutory provisions in question. The Family Proceedings Rules (FPR) 1991 (SI 1991/1247) govern proceedings under the Children Act 1989 in the civil courts.  Originally, the rule on the confidentiality of documents was simple: “no document, other than a record of an order” held by the court and relating to family proceedings was to be disclosed, other than to certain classes of person, without the leave of the court (Rule 4.23).
30.	On 5 April 1993 the Child Support Act 1991 came into force for most purposes.  The FPR 1991 were amended on the same date in various ways (see the Family Proceedings (Amendment) Rules 1993 (SI 1993/295)).  One such change was the inclusion of a new Rule 10.21A, which provided for the disclosure of information under the 1991 Act.  In short, it provided that where the Agency required an individual to provide certain information or evidence, nothing in Rule 4.23 “shall prevent that person from furnishing the information or evidence sought or require him to seek leave of the court before doing so”.  The impact of the general bar on disclosure without a court order was discussed in decisions of the then Child Support Commissioners (see CCS/4438/2001 and CCS/3749/2003). In R(CS) 5/06, Mr Commissioner Williams (as he then was) recommended that a party seeking to produce court documents to a child support tribunal should seek a court ruling to that effect (at paragraphs 17-18).
31.	The FPR were further amended with effect from 31 October 2005 by the Family Proceedings (Amendment No 4) Rules 2005 (SI 2005/1976).  Rule 4.23 was abolished.  Instead, Rule 6 of the 2005 Rules inserted a new Rule 10.20A into the FPR 1991 entitled “Communication of information relating to proceedings”, which concerned hearings held in private.  In particular, Rule 10.20A(2) provided that “For the purposes of the law relating to contempt of court, information relating to the proceedings (whether or not contained in a document filed with the court) may be communicated” in any one of three specific circumstances.
32.	The first situation was where the court gave permission; the second where the court made a direction; and the third was to one of a limited number of persons, such as the parties and their representatives and other relevant professionals, but not including tribunals.  A Table in Rule 20.10A(3) set out the circumstances in which such individuals could pass on information to third parties for particular purposes.  As originally drafted, the Table did not include tribunals amongst such third parties.

33.	The difficulty with the father’s argument is that Rule 20.10A was then itself amended with effect from 1 October 2007 by the Family Proceedings (Amendment) (No. 2) Rules 2007 (SI 2007/2187).  Rule 20 of the 2007 Rules amended the Table in Rule 10.20A(3) of the FPR 1991, so as to enable a party to communicate any information relating to family proceedings governed by rule 10.20A to, amongst others, the Secretary of State (in practice the Agency) and also to an appeal tribunal under section 20 of the Child Support Act 1991.  Similarly, Rule 21 of the 2007 Rules amended and expanded Rule 10.21A of the FPR 1991, allowing a party to communicate any information relating to ancillary relief proceedings, in a divorce case held in private, to the Secretary of State or an appeal tribunal, and subject to any court direction.

34.	The purpose behind these changes was set out in the accompanying Explanatory Memorandum to the statutory instrument in question as follows (at paragraphs 7.11 and 7.12):

“7.11 The amendments to the rules relating to disclosure of information are prompted by concerns that people are attempting to disclose information relating to proceedings concerning children or family proceedings of a financial nature to Child Support Appeal Tribunals without permission of the court dealing with the family matter. Unless prior permission of the family court has been given to disclose this information, the Child Support Appeal Tribunal is having to adjourn the appeal proceedings in order for the people involved to seek the permission of the family court to disclose the relevant information. This is leading to considerable delay and dissatisfaction with the child support system. 

7.12 The amended rules make provision for automatic disclosure of information relating to proceedings concerning children which are heard in private and ancillary relief proceedings in a county court or the High Court or financial proceedings akin to ancillary relief proceedings in a magistrates’ court. Ancillary relief proceedings are those proceedings concerning financial matters arising upon dissolution of a marriage or a civil partnership. The amendments provide that information relating to these proceedings may be given to the Secretary of State, a McKenzie Friend, a lay adviser or to an appeal tribunal as long as it is for the purposes of an appeal heard by a Child Support Appeal Tribunal. The effects of this amendment are that child support appeals will be processed with minimal delay and people who are disclosing such information will no longer run the risk of being held in contempt of court for doing so.”

35.	The changes made in October 2007 to the FPR effectively overtook the guidance of Mr Commissioner Williams in decision R(CS) 5/06, which was decided under the previous law.  In the present case the parties had never been married.  The family proceedings in the county court were under the Children Act 1989 and so were governed by Rule 10.20A. On that basis, at least after 1 October 2007, the mother was perfectly entitled to disclose such documents without making any application to the county court.  The father complains that the mother was distorting the evidence by selective disclosure.  If that was actually the case, then the remedy of course was in his own hands, namely to make full disclosure himself.

36.	In the present case the father makes the further point that the mother’s appeal was originally lodged in July 2007, before the amendments noted above came into force.  He says he should not be prejudiced by the fact that the case took so long to come before the tribunal.  This is not a persuasive argument for two reasons.  First, at least part of that delay was due to the father’s own non-compliance with directions issued by the tribunal.  Secondly, in the absence of a clear savings or a specific transitional rule, the general approach to procedural changes in courts or tribunals is that it is fair to apply such changes to ongoing proceedings (see Attorney-General v Vernazza [1960] AC 965).

37.	Finally, and for the record, I note that Rule 10.20A has itself now been revoked. It was removed by Rules 2 and 4(b) of the Family Proceedings (Amendment) (No.2) Rules 2009 (SI 2009/857), with effect from 29 April 2009.  The 2009 Rules substitute a much more comprehensive code of provisions governing the “Communication of information: proceedings relating to children”, now to be found in Part XI of the FPR 1991, as amended.  These changes follow the previous government’s consultation document entitled Confidence and confidentiality: openness in family courts – a new approach (Cm 7131) and the official response to that consultation, Family Justice in View (Cm 7502).

38.	I also note that section 49B of the Child Support Act 1991, which is entitled “Disclosure of information relating to family proceedings”, and is to be inserted by section 39 of the Child Maintenance and Other Payments Act 2008, is not yet in force.

The argument based on the tribunal’s assessment of the father’s income	

39.	The father’s third ground of appeal relates to how the tribunal assessed his income for the period going back to 2001.  As I indicated when granting permission to appeal, this appeared from the outset of these proceedings to be potentially the strongest ground of appeal.

40.	The father’s challenge can be summed up by this extract from one of his letters: “I have been told that I earned 700 pounds a week, this has never been quantified and as such the decision is void as procedure and law have not been adhered to.  I have not seen a breakdown of this alleged earning potential, where the money has allegedly come from, and how it was earned or indeed how it could have been attributed to me at all…”.  He continued: “the tribunal judge used inference to assume I earned £692 net PER WEEK for a period of 6 years.  There is no alteration in the figures to account for illness or periods when I can prove I wasn’t earning.  I provided information from the Student Loans Company to confirm that I was in receipt of a student loan for 4 years, whilst in full-time university education – this was ignored.  How can this be legally or procedurally correct?”

41.	I note in the first place that the tribunal’s Decision Notice includes a typographical error.  The Decision Notice states a finding that the father was earning £30,000 per annum.  The Decision Notice also includes a finding that his income was £692.30 net per week throughout the period in question – a figure which is the exact weekly equivalent of £36,000 net p.a.  However, the full Statement of Reasons also records a finding that the father’s net income was at least £3,000 a month, which indeed by simple arithmetic is £36,000 a year.  On that basis any reference to £30,000 a year in the tribunal’s decision or reasoning is presumably meant to read £36,000.  This is a typographical error and not a material error of law.

42.	So where did the earnings figure of £36,000 p.a. itself come from? The tribunal’s income findings were based on the father’s bank statements for the period from July 2006 until August 2007.  The tribunal made detailed findings of fact running to several pages and concluded that those bank statements demonstrated a lifestyle of at least £2,500 a month, and with “substantial routine expenditure” not going through the account, amounting in practice to at least £3,000 net a month in total (or £36,000 net p.a.).  It must also be recognised that the tribunal made very strong and adverse credibility findings against the father.  The only income he admitted to was £3,000 per year by way of a student loan between 2001 and 2004 and some modest part-time earnings in 2003.  The tribunal referred to his property dealings, rental income and his work as a taxi-driver and driving instructor.  The tribunal specifically found that the father’s assertions about his true level of income at various points in time was not only far fetched but unreliable.  In those circumstances it seems to me the tribunal was entitled on the evidence before it to conclude that the father’s income in 2006/07 was in the order of £36,000 net a year.

43.	The tribunal, however, did not confine this finding to 2006/07.  It applied the same finding to each year since 2001.  It concluded that there was no basis to make stepped findings, as the father had not put forward any evidence.  When granting permission to appeal, I suggested that it was arguable whether the evidence before the tribunal supported its finding that the net income of £36,000 applied throughout the period in question, i.e. “the entire period of the interim maintenance assessment from the first effective date”.  

44.	I am satisfied, however, that the tribunal understood the relevant law correctly.  As I also indicated when granting permission to appeal, the tribunal identified the relevant circumstances in which an IMA can be replaced by a full assessment.  The tribunal’s interpretation of the law is consistent with the analysis of the Court of Appeal in Secretary of State for Work and Pensions v Boyle and another [2008] EWCA Civ 210.  At paragraph 21, the Court of Appeal referred to regulation 8D of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI 1992/1813) as follows:

“where there is an interim maintenance assessment, if the Secretary of State has sufficient information to make a full maintenance assessment covering the entire period of the interim maintenance assessment from the first effective date, the Secretary of State is obliged to convert the interim maintenance assessment to a full maintenance assessment for the entire period, thereby backdating it. However, if the Secretary of State does not have sufficient information for the entire period but only, perhaps, for part of it the interim maintenance assessment remains in force for the period up to the date when the information is provided but can cease to have effect for the future from the date when sufficient information is provided.” 

45.	The question is whether the tribunal indeed had such “sufficient information”.   As noted at paragraph 14 above, the Commission’s representative argues that such evidence was available in the tribunal’s finding that the father had obtained a £110,000 mortgage in 2001.  On the basis that the mortgage was based on three times his then gross income, this would support the conclusion that his income in 2001 was around £36,000 gross.  The Commission’s representative concedes that the tribunal did not actually draw this inference from the 2001 mortgage, and had it done so the father’s net income would of course have been lower than that arrived at by the tribunal.  It is argued by the Commission that the tribunal therefore erred in law by applying the £36,000 net figure to the entire period from 2001 to 2006/2007.

46.	The father argues that this was a self-certification mortgage, arranged through a broker, at a time when mortgages were being offered without any proper checks from the mortgage lenders.  I have to say that this is a deeply unattractive argument, as he appears to be conceding that he misled the mortgage company as to his true earnings at the time.

47.	I entirely understand the tribunal’s desire to provide a degree of finality for the parties, and to avoid the risk of further litigation, by replacing the IMA with a proper maintenance assessment for the entire period in dispute.  However, the tribunal could do so only if it had “sufficient information”.  I am reluctantly driven to the conclusion that it did not have such information.  Its focus was primarily on the father’s income and outgoings for 2006/07.  The fact that the father obtained a £110,000 mortgage in 2001, relied on now by the Commission’s representative, is too speculative a basis to apply the finding of £36,000 net income a year to cover the entire period of the IMA over some five years.  In addition, the tribunal did not make any findings as to the impact on the father’s earnings of being a full-time student between 2001 and 2004 and his later apparently extensive periods of illness.

The Upper Tribunal’s conclusion

48.	My conclusion, therefore, is that the tribunal erred in law, but in one respect only, by not making sufficient findings or giving adequate reasons for why the income figure of £36,000 net per year was applied to the entire period of the IMA.  I set aside the tribunal’s decision on that basis alone. The other grounds of appeal are dismissed.  

49.	I have considered the most appropriate way to dispose of the appeal.  One option would be to send the matter back for re-hearing before the First-tier Tribunal.  However, I do not think that would be just in all the circumstances.  The father has had ample opportunity to provide the evidence required by tribunal directions.  He has not complied.  He has also been the subject of a comprehensive and indeed damning adverse credibility finding, following a lengthy and detailed First-tier Tribunal hearing.

50.	In those circumstances the appropriate course of action is for the Upper Tribunal to substitute its own decision.  The Upper Tribunal’s decision is that the interim maintenance assessment of £134.93 a week effective from 15 May 2001 remains in force for the bulk of the period in question.
51.	The issue then is when that IMA ceases.  The normal rule is that where there is sufficient information to make an ordinary maintenance assessment for only part of the period, then the IMA ceases to have effect on the first day of the maintenance period in which the Commission receives the information (see regulation 8D(6) of the Child Support (Maintenance Assessment Procedure) Regulations 1992).  The effective date of the full assessment is also that date (regulation 30A(1) of the same Regulations).  In the present case the information relating to the 2006/07 bank statements was not made available until March 2008 (when in fact copies were supplied by the mother).  This might suggest that the 2001 IMA remained in force until March 2008.

52.	However, there is a further complication.  The tribunal noted that the father had been awarded income support from 15 June 2007.  The tribunal plainly had serious doubts about that award.  According to the decision notice, the award was “inconsistent with the evidence before the tribunal”.  Moreover, “in relation to the award of income support, it is not clear that he is entitled to it.  In fact, it is clear that he is not”.  The tribunal gave two illustrations, one of which was the finding that the father was the owner of a property which was not his home and was not covered by any relevant disregard at the date he claimed income support.  The tribunal directed that the issue of the father’s entitlement to income support be referred to the DWP for further investigation, and that the Commission should revisit the assessment in the event that the award was revised and withdrawn.  It is unclear what steps, if any, have been taken in that regard since the tribunal’s direction.

53.	The Commission’s representative suggests that the tribunal erred in law by failing to consider the impact of the income support award. I disagree.  The tribunal made it clear that it was well aware that the income support award would have the effect of reducing the father’s child support liability.  However, it also made it plain, as described above, that it took the view that there was no valid basis for the award of income support on the evidence it had received.

54.	The fact remains that as from 15 June 2007 the father had an award of income support.   On that basis he was treated by law as having a nil assessable income (paragraph 5(4) of Schedule 1 to the 1991 Act) and as required to pay the minimum weekly amount of child maintenance (section 43 and paragraph 7 of Schedule 1 to the 1991 Act, along with regulation 13 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (SI 1992/1815)).

55.		On that basis a stepped assessment under paragraph 15 of Schedule 1 to the 1991 Act is required.  My decision is that the interim maintenance assessment of £134.93 a week effective from 15 May 2001 remained in force until the father was awarded income support.  A separate maintenance assessment from the new effective date of 12 June 2007 should then apply, reflecting the fact that the father had been awarded income support and so was liable to pay the minimum amount in lieu of child support maintenance.  The effective date of the new assessment is the first day of the new weekly maintenance period in which the change occurs, and in the present case each period starts on a Tuesday, hence the start date of 12 June 2007.

56.	Although this decision concludes these particular proceedings, subject to any further appeal, it does not mean that this is the end of the matter.  If the DWP have taken or take any steps to revise the father’s award of income support, then that of course may result in further changes to the child support assessment by the Commission, which will attract their own rights of appeal.
Conclusion

57.		For the reasons explained above, the decision of the tribunal involves an error of law.  The Upper Tribunal therefore allows the appeal and sets aside the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The Upper Tribunal remakes the decision in the terms set out above (section 12(2)(b)(ii) of the 2007 Act).  

Signed on the original			Nicholas Wikeley
on 20 October 2010				Judge of the Upper Tribunal