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					                                                             [2009] UKUT 111 (AAC)
                                                             CR v CMEC
IN THE UPPER TRIBUNAL                                      Appeal No. CCS/2999/2008
ADMINISTRATIVE APPEALS CHAMBER

1.      This is an appeal by the parent with care (Mr R), brought with the permission
of the chairman, against a decision of an appeal tribunal sitting at Brighton on 6
December 2007. For the reasons set out below the Tribunal’s decision was in my
judgment wrong in law. I set aside the Tribunal’s decision and remit the matter for
reconsideration by a differently constituted appeal tribunal in accordance with the
directions in paragraph 30 below. I draw the attention of the parties and the new
tribunal to, in particular, paras. 28 onwards below.

2.    Mr R and the non-resident parent (Ms T) separated in November 2003. They
have two sons, now aged 13 and 12, who live with Mr R.

3.      The Tribunal’s decision was to dismiss Mr R’s appeal against a decision,
made on 20 November 2006, refusing Mr R’s application for a variation. The
variation application had had been made on the ground that Ms T’s lifestyle was
claimed to be inconsistent with her declared income. The Tribunal took the view that
it did not have jurisdiction to consider the correctness of the maintenance calculation,
or the question whether a variation should be made, in respect of any period before,
at the earliest, 8 August 2006. In the grounds of appeal to the Tribunal, and in this
appeal, Mr R has contended that he ought to have been paid child support
maintenance in respect of a period going back to 2004.

4.    It was stated in the Secretary of State’s submission to the Tribunal that it had
not been possible for the submission writer to locate all the documents relating to the
case, despite extensive efforts to locate them, and that the submission had been
prepared using evidence held on the child support computer system. This absence of
documentation has created considerable difficulty.

5.    In para. 4 of his submission in this appeal (p.99), the Secretary of State’s
representative sets out the sequence of decisions revealed by the computer.
Combining that with the chronology set out in the Secretary of State’s written
submission, and adding information from the documents in evidence before the
Tribunal, as elaborated on in oral evidence to the Tribunal and in explanations given
to me at the hearing, produces the following basic chronology.

      (1)     Prior to the separation Mr R and Ms T were living together in a house
owned by Ms T in Peacehaven, on which she had a number of mortgages. The
separation occurred in November 2003 when Ms T when to live in a flat in Kingston
which her new partner, Mr G.R., was renting. As I understood what was said to me at
the hearing, the children initially lived with Ms T, but later returned to live with Mr R,
who had remained in the Peacehaven house.

       (2)      In about February 2004 Ms T was unfairly dismissed from her job.

     (3)    On 8 April 2004 an initial maintenance calculation of £84.88 per week
was made, taking effect from 2 March 2004.




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       (4)   Ms T says that in early November 2004 she gave Mr R written notice to
leave the house, and then confirmed this in writing. Mr R says that he and the
children were evicted from the house by Ms T in early 2006.

       (5)    In a letter to the Brighton County Court apparently written in about
February 2005 Ms T said that in July 2004 she had formed a company with her new
partner and “began to seek freelance work” (p.27) She asserts that she was paid a
salary of £6,000 per annum. “With the help of my partner I managed to make ends
meet and cover the mortgage.”

       (6)    On 28 April 2005 the initial maintenance calculation was superseded
and altered to nil, with effect from 20 April 2004. It appears likely that the reasons for
that decision were (a) that initially the children were not living with Mr R and/or (b)
that Ms T had no earnings.

       (7)    Ms T applied for JSA with effect from 20 January 2006. After an appeal
to an appeal tribunal, in August 2006 income based JSA was awarded with effect
from 18 August 2006 (pp. 54; 57). Ms T says that she had to appeal again in respect
of a claim for a backdated payment in respect of the period from 21 January 2006 to
18 August 2006. (see p.84, reason 5). However, Ms T told me that no award for the
backdated period had ever been made.

      (8)    On 9 August 2006 a decision was made to the effect that the child
support maintenance liability remained at nil, with effect from 8 August 2006.

       (9)    On 13 October 2005, at a hearing of matrimonial proceedings in the
Brighton County Court, an order was made requiring Ms T to disclose her P60 and
last 3 wage slips.

        (10) On 16 October 2006 Mr R applied for a variation on the ground of
lifestyle inconsistent with declared income. No copy of that application is in the
papers, presumably owing to the mislaying of the documents referred to above. Mr
G.R. stated to me at the hearing that he had a copy of the application.

     (11) There was a note on the CSA computer (pp 12-13), probably dated 2
November 2006, stating:

                “Preliminary consideration.
                               Applicant states the non-applicant’s lifestyle is
                significantly inconsistent with her declared income because she has
                worked as a freelance web designer for most of 2005 and as being
                employed she was able to go on long foreign holidays. Paid £2,000
                cash for a car and £1500 for car repairs along with due to receive
                monies from a car accident i.e. compensation payment.
                CS Variations Regulations 2000

                Reasonableness
                I consider it reasonable to send this to contest pending response.”




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The Secretary of State’s submission to the Tribunal said that “the decision maker
decided that [Mr R’s] application for a variation passed preliminary consideration”
and that Ms T’s representations were then invited. No copy of any such
representations was before the Tribunal.

       (12) On 20 November 2006 a decision was made refusing the application
for a variation, the reason given in the letter of that date to Mr R (p.10) being that the
application failed “as a result of grounds failure.”

      (13) Ms T’s JSA award ceased with effect from 1 December 2006, when
she obtained salaried employment. (p.84)

       (14) Mr R’s appeal form was signed on 7 December 2006. It attached a
copy of an e-mail from Ms T to him which spoke about the possibility of the sons
going to private school, at a possible cost of £10,000 per annum each.

       (15) On 20 February 2007 the existing maintenance calculation of nil was
superseded and a new assessment of £91.71 per week with effect from 21
November 2006 was made. On 21 February 2007 that amount was altered, by a
further supersession, to £61.16 per week with effect from 6 February 2007 (99).

      (16) In a letter dated 16 March 2007, relating to ability to pay potential
school fees, Ms T said that she and her new partner had “over £120,000 equity in the
house and £50,000 in the flat, and that the sale of the flat was imminent.”

       (17) By letter dated 23 March 2007 from the CSA (p.15) Mr R was notified
that the decision of 20 November 2006 had been reconsidered but not altered. “The
reason for this decision is that because [Ms T] was in receipt of a prescribed benefit
at the time of the application and because [Ms T] has shared care of your children
the liability was nil. Under Regulation 7(2)(b) of the Child Support (Variations)
Regulations 2000 an application for a variation made by a parent with care will be
refused if at the time of the application the non-resident parent is liable to pay less
than the flat rate.”

        (18) In a letter to the Tribunal received on 4 May 2007 (p.25) Mr R stated
that at a hearing in the Brighton County Court in (I think) February 2005 Ms T told the
Court she was working “and they needed proof of her earnings which turned out to
be £28,000 a year. I had told the CSA about this and the address of her work place,
but it seems they have lost this information.” Mr R further contended that from 2004
down to the date of the letter (May 2007) “my ex partner has worked more or less
continuously.” The letter stated that she had also received two lump sum payments
one for £10,000 for unfair dismissal from her job in 2004, and one for £10,000 from
an insurance payout. Mr R complained that he had had numerous changes of case
worker, resulting in a loss of some of the documents. See also Mr R’s letter dated 9
August 2007 at p.36H of the papers.

       (19) An initial hearing of the Tribunal on 20 August 2007 was adjourned for
further evidence to be provided.




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     (20) The Tribunal hearing was on 6 December 2007, at which both Mr R
and Ms T appeared and gave evidence at length. The Tribunal dismissed the appeal.

5.      The Tribunal decided that the only period with which it was concerned was
that from 8 August 2006 to 22 November 2006. It found that during that period Ms T
was in receipt of income based JSA. It held that Regulation 7(c) of the Child Support
(Variations) Regulations 2000 provided in those circumstances that an application for
a variation should fail. The Secretary of State’s representative apparently submitted
at the hearing that an adjournment might be necessary to obtain further evidence
directed to the question whether the Tribunal should “look behind” the award of JSA
– i.e. in order to consider whether the award had been wrong because Ms T and/or
her partner had income and/or capital which exceeded the relevant limits. The
Tribunal referred to two Social Security Commissioners’ decisions and said that no
adjournment was required because Ms T’s entitlement to JSA had been considered
by an appeal tribunal. It considered that CH/4014/2007 supported that view. The
Tribunal further said (as I interpret para. 10 of the “Reasons”) that a variation on the
ground of assets could in any event not have succeeded because Ms T’s net assets
were less than £65,000. It said that any monies received as a result of personal
injury would not be taken into account. It recorded (para 14 of the Reasons) that Mr
R stated that he had not been aware of the limited scope of the hearing, as regards
the time period covered, and that his stronger concern was in relation to decisions
made for the period 2004 to 2006.

6.     In a letter dated 11 February 2008 (p.82), before he had seen the Statement
of Reasons, Mr R said that he wanted to appeal owing to the fact that at the Tribunal
hearing it became apparent that Ms. T was claiming JSA “either by mistake or
fraudulently”. He also said that this would also be true for the whole period from 2004
as she admitted to living with her partner who was working, and that she had also
been working. He wanted the whole case looked at again, and not just the narrow
period in 2006 which the Tribunal had considered.

7.    In a letter written after receipt of the Statement of Reasons (p.86) Mr R made
roughly the same points.

8.     In his OSSC 1 form Mr R said that Ms T had received over £50,000 during the
period 2004-6, and owned a house with over £60,000 in equity. (p.93)

9.      I remind myself that the appeal to the Upper Tribunal can only succeed if the
First-tier tribunal’s decision was in some respect wrong in law. I held an oral hearing
of the appeal, at which Mr R and Ms T appeared in person, Ms T being accompanied
and assisted by Mr G.R, and the Child Support Maintenance and Enforcement
Commission was represented by Mr Leo Scoon, of the Office of the Solicitor to the
Department for Work and Pensions.

A.    The decision(s) and period under appeal

10.    Mr R has asked in a number of letters what he can do to get the period from
early 2004 to August 2006 reconsidered. The main thrust of his submissions to me is
that the correct amount of maintenance in respect of that period should also have
been looked at. Mr R accepts that he did not formally (i.e. in writing) appeal against


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                                                           CR v CMEC
the decision of 28 April 2005. However, he says that he did make several telephone
calls to the CSA in 2005 saying that the nil award was not correct, and supplying
information to the CSA, and that it is not his fault that the CSA has lost its
documents. He says that he was eventually advised by the CSA to make the
variation application, which he duly did. It is of course not my function to advise Mr R
how he should proceed. My only function is to decide the appeal actually before me.

11.    It does appear, from what Ms T told me at the hearing, that she was for a
period in 2005 employed at a salary of £28,000 a year. It therefore looks as though
some child support maintenance would have been found to be payable by Ms T in
respect of at least that period, if the matter had been properly reconsidered by the
CSA at that time. Mr R contends that Ms T was, in addition, working freelance as a
web designer in 2006, but Ms T’s contention is that she earned only a very small
amount from that.

12.     However, on the face of it the only decision actually under appeal to the
Tribunal was that dated 20 November 2006, refusing Mr R’s application for a
variation on the ground of lifestyle inconsistent with declared income. That
application had been made on 16 October 2006. Mr R’s appeal form (p.19) stated
that the date of the letter telling him about the decision he wanted to appeal against
was 20 November 2006.

13.    As pointed out by the Secretary of State in his submission in this appeal
(p.100), the only earlier decision which could possibly also have been under appeal
was that dated 9 August 2006, which on the face of it was a decision refusing to
supersede with effect from the previous day – i.e. 8 August 2006. The decision prior
to that was that made on 28 April 2005. The absolute 13 month time limit for
appealing against the decision of 28 April 2005 (i.e. the period after which no
extension of the time for appealing could have been granted) had expired in about
May 2006. The decision of 28 April 2005 could therefore not possibly have been
under appeal to the Tribunal.

14.     The only way, as I see it, in which any period before August 2006 could
possibly have fallen for consideration by the Tribunal was if (i) the decision of 9
August 2006 was properly under appeal to it and (ii) the decision of 9 August 2006,
although expressed to have effect only from 8 August 2006, should have considered
the maintenance payable from a much earlier date because Mr R, by his telephone
calls to the CSA from 2005 onwards, had in effect been requesting that the decision
of 28 April 2005 be superseded. What the CSA must have been dealing with on 9
August 2006, so the argument would run, was an application for supersession which
had first been made a long time previously.

15.    The application for a variation which Mr R made on 16 October 2006 was
made more than one month after the decision of 9 August 2006. It was therefore an
application for a supersession, rather than a revision, of the decision of 9 August
2006. However, as the Secretary of State’s representative has pointed out in his
submission in this appeal, the Secretary of State would have had power, under reg. 4
of the Social Security and Child Support (Decisions and Appeals) Regulations 1999,
to extend the one month time limit for applying for revision of the decision of 9
August 2006. The fact that the Secretary of State’s submission to the Tribunal stated


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                                                          CR v CMEC
that the decision of 20 November 2006 was a refusal to revise (as opposed to a
refusal to supersede) and that it had effect from 8 August 2006, might possibly
indicate that that power was implicitly exercised (although see the submission in this
appeal at p.99, indicating that the computer record of the decision states that it had
effect from 3 October 2006). If the time for applying for revision was extended, the
effect is that the decision of 20 November 2006 was a refusal to revise the decision
of 9 August 2006. That means that Mr R’s appeal was in substance an appeal
against the decision of 9 August 2006, but that the one month time limit for appealing
ran only from 20 November 2006 (reg. 31(2)(a) of the 1999 Regulations), which
means that there will have been an appeal before the Tribunal against the decision
of 9 August 2006.

16.     However, on the face of it the decision of 9 August 2006 had effect only from
8 August 2006. However, I think that there was evidence before the Tribunal which
required it at least to consider whether, in the decision of 9 August 2006, the CSA
ought to have investigated the position back to early 2005. There was material
before the Tribunal which indicated that Mr R may have been applying for
supersession on the ground of a change of circumstances (i.e. that Ms T was
working) for a long time for before 8 August 2006. An application for supersession
does not have to be in writing; it can be made orally. I refer to the terms of Mr R’s
letter to the Tribunal received on 4 May 2007 (p.25), which I summarised in para.
4(18) above. In addition, the Record of Proceedings indicates that Mr R gave some
evidence to the Tribunal about what happened in 2005 and 2006. Mr R’s evidence to
me was that he rang the CSA several times in 2005, and in his letter of 28 November
2008 (p.110) he had said that “I have asked the CSA and now the Tribunal to look
into these matters repeatedly over a period from 2005 until the present day.” Mr G.R
told me at the hearing that he and Ms T had had a lot of contact with the CSA and
had been keeping it up to date, and that they had sympathy with Mr R to the extent
that the CSA’s conduct had been thoroughly unsatisfactory; for example, it had
issued confusing and apparently contradictory decision letters. If Mr R was in effect
requesting a supersession from early 2005 onwards, there is no evidence that those
requests were dealt with by any earlier decision than that made on 9 August 2006. It
is therefore arguable that the decision of 9 August 2006 should have considered
whether the nil assessment was correct as from a much earlier date than 8 August
2006.

17.    In my judgment, therefore, and contrary to the provisional view which I stated
in my Direction dated 19 February 2009 and at the hearing, the Tribunal’s decision
was wrong in law in that it did not properly consider the issue whether the
correctness of the maintenance assessment should be looked at in respect of a
period going back to 28 April 2005. The Tribunal’s decision must therefore be set
aside on that ground.


B.    The correctness of the Tribunal’s decision in respect of the period from 8
August 2006 onwards.

(1)   The position on the footing that the Tribunal could not go behind the JSA
awards



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                                                            CR v CMEC
18.     Reg. 6 of the Child Support (Variations) Regulations 2000 sets out
circumstances in which the Secretary of State may “reject” an application for a
variation “on completing the preliminary consideration.” One of the circumstances in
which reg. 6 applies is where “the application has been made in one of the
circumstances to which regulation 7 applies.” Reg 7(1)(a) applies where “the
application [for a variation] is made by a relevant person and a circumstance set out
in paragraph (2) applies at the relevant date.” In my judgment para. (2)(b) applied.
This applies where “the non-resident parent is liable to pay the flat rate of child
support maintenance owing to the application of paragraph 4(1)(c) of Schedule 1 to
the [Child Support Act 1991], or would be so liable but is liable to pay less than that
amount, or nil, owing to the application of paragraph 8 of Schedule 1 to the Act …”.
Paragraph 4(1)(c) of Schedule 1 to the 1991 Act provides that the flat rate of £5 is
payable if the nil rate does not apply and [“the non-resident parent”] or his partner (if
any) receives any benefit prescribed for the purposes of this paragraph of this sub-
paragraph.” Income based JSA is prescribed for the purposes of para. 4(1)(c): see
reg 4(2) of the Child Support (Maintenance Calculations and Special Cases)
Regulations 2000. Para. 8(2) of Schedule 1 to the 1991 Act provides that if the flat
rate is payable because the non-resident parent falls within para. 4(1)(b) or (c) or
4(2), and if (as in the present case) the care of a qualifying child is shared, the
amount of child support maintenance is nil.

19.    In my judgment Ms T would have been liable to pay the flat rate under para.
4(1)(c) of Schedule 1, but for the fact that care was shared, which made the amount
of maintenance nil. Regulation 7(2)(b) of the Variations Regulations therefore
applied.

20.     The Secretary of State’s submission to the Tribunal said that the decision
maker should have rejected the variation application at the preliminary stage under
reg. 6 of the Variations Regulations, because reg. 7(2)(b) of the Variations
Regulations applied. In my judgment the application could have been rejected on
that ground, but reg. 6(1) is merely permissive. It is clear that the decision maker
decided not to reject it following preliminary consideration. I agree with Mr Scoon’s
submission that in those circumstances it is not open to a tribunal simply to say that
the application ought to have been rejected under reg. 6, and to decide the appeal
on that basis. The tribunal must go on to consider the substantive grounds of the
application for variation. If the application must fail in any event, by reason of the
factor which led to reg. 6 applying, then this will at the end of the day make no
difference. In my judgment the Tribunal therefore erred in law in saying that the
variation application had to fail simply because para. 7(2)(c) applied.

(2)     Was the variation ground made out?
21.     Regulation 20 of the Variations Regulations (lifestyle inconsistent with
declared income) applies in two sets of circumstances, set out in reg. 20(1) and (2).
As I see it, those paragraphs can only apply, in a case where the nil rate is payable,
if the reason why the nil rate is payable is that either para. 5(a) or 5(b) of Schedule 1
to the 1991 Act applies. Para 5(a) did not apply. Para. 5(b) applies where the non-
resident parent has a net weekly income of below £5. It is Mr R’s contention that that
was not the case either. The reason why the assessment was nil is that para. 8 of
Schedule 1 applied. It therefore appears to me that reg. 20 of the Variations



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                                                           [2009] UKUT 111 (AAC)
                                                           CR v CMEC
Regulations was not applicable: a variation ground under this regulation was not
made out.

(3)    Should the Tribunal have questioned the correctness of the JSA award?
22.    It appears that the award of JSA, apparently made by an appeal tribunal,
which took effect from 18 August 2006, was made under a mistake. From what Ms T
and Mr G.R. told me at the hearing the position was that at the time when Ms T
applied for JSA in January 2006 she was living at the house in Peacehaven, having
obtained possession from Mr R, but Mr G.R. was working and living in London during
the week and living with Ms T at the house at the weekends. By August 2006,
however, Mr G.R. was living with Ms T throughout the week in the house at
Peacehaven and commuting to London, in which case the award of JSA should not
have been made, because Ms T was living with a partner who was in remunerative
employment. Ms T did not appear at the tribunal hearing, which was determined on
the papers.

23.    I follow the decision of Mr Commissioner (as he then was) Levenson in para.
13 of CCS/3452/2007 that, in relation to the question whether a parent “receives” a
relevant benefit within the meaning of provisions such as that in para. 4(1)(c) of
Schedule 1 to the 1991 Act, an appeal tribunal cannot go behind (i.e. consider the
correctness of) an award of benefit “unless there has actually been a criminal
conviction (or, possibly, an admission of fraud) during the course of tribunal or court
proceedings.” In the present case there has been at most an admission that Ms T
had some responsibility for the incorrect award of JSA being made by not informing
the JSA appeal tribunal that she had started living with Mr G.R. But that is not in my
judgment an admission of “fraud” for these purposes. The question for me is, strictly,
not what decision should have been reached on the evidence before me, but
whether the Tribunal erred in law in its approach. However, it is difficult to ascertain
from the Record of Proceedings precisely what evidence was given in this respect.
But even on the footing that the Tribunal ought to have ascertained the facts which I
have referred to in para. 22 above, it was in my judgment right not to consider
whether the JSA award was correct.

24.     I would state that, in any event, Ms T’s evidence is that during the material
period August to November 2006 she had no income of her own, and that her
lifestyle was funded entirely by Mr G.R. Mr R has not been able to produce any
evidence to rebut that. Under reg. 20(3)((d) of the Variations Regulations a variation
cannot be made on the “lifestyle inconsistent” ground where the non-resident
parent’s lifestyle is paid for from the income of a partner.

(4)    Should the Tribunal have considered whether the ground of variation in reg.
18 of the Variations Regulations (assets) applied?
25.    Reg. 18 of the Variations Regulations provides that a variation can be made
where the non-resident has assets with a net value of £65,000, although certain
types of asset are excluded.

26.    In my judgment, looked at in the round, the material before the Tribunal did
not raise, as an issue in the appeal, the question whether a variation ought to be
made on the ground that Ms T had assets in excess of £65,000. The Tribunal
therefore did not err in law in not considering this.


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27.    Even if the Tribunal ought to have considered it, on Ms T’s evidence to me the
only significant assets which she had during the period 8 August to 20 November
2006 were (a) the Peacehaven house, which is excluded for these purposes and (b)
the Newhaven flat, which Ms T told me was sold in September 2007 for £120,000.
After payment of a mortgage of £68 – £70,000, she was left with equity of about
£50,000. I would therefore have found, on the evidence before me, that Ms T did not
have net assets, of a nature counting for the purposes of reg. 18, of more than
£65,000.

My conclusions
28.    The overall effect of my decision is therefore as follows. First, as regards the
position from 8 August 2006 onwards, although the Tribunal made an error of law, it
reached the right result, and therefore that error does not justify setting aside the
Tribunal’s decision (paras. 18 to 27 above). Secondly, the Tribunal’s decision must
be set aside as wrong in law for failing, when considering whether it had jurisdiction
in respect of a period before 8 August 2006, to consider whether the decision of 9
August 2006 should have dealt with the correctness of the maintenance calculation
with effect from a much earlier date than 8 August 2006. It is particularly material
here that (a) Mr R’s evidence is that he complained to the CSA in 2005 that the nil
award was not correct (para. 10 above) and (b) Ms T told me that she was for a
period in 2005 employed at a salary of £28,000 a year (para. 11 above), which has
never been taken into account in a maintenance assessment.

29.    Mr R and Ms T both asked me, if I concluded that an earlier period should be
looked at, to make my own decision on the correct amount of maintenance payable,
in order to put an end to this matter, which has already involved three hearings. I am
hugely sympathetic to that, in principle.

30.    With that in mind, following the oral hearing before me I made a Direction on
11 May 2009 requiring copies of the entries on the CSA computer in 2005 and 2006
to be provided by CMEC. I considered that this might enable me at least to decide
the question whether the decision of 9 August 2006 should have dealt with the
correctness of the maintenance calculation from a much earlier date than 8 August
2006. (Contrary to what is stated on p.99, the Secretary of State’s submission in this
appeal (p.99) had not in fact attached copies of the computer printout of the
decisions). Copies of the computer entries have been provided, but unfortunately I
do not find them to be helpful. Initially, illegible copies were supplied. When legible
ones were supplied, they appear to have included only copies of records of
communications with Ms T, and not with Mr R. I am therefore not really any further
forward, even on that limited point. If I had decided that an earlier period should be
looked at, I would not have had the information available to made findings as to Ms
T’s earnings back to April 2005.

30.   The new tribunal should in my judgment proceed as follows:

        (1)  It should make a finding as to whether, at some time before 8 August
2006, Mr R in effect applied for a supersession (on the ground of a change of
circumstances) of the decision of 28 April 2005 by a request which was not dealt with
until 9 August 2006. If it so concludes, it will have jurisdiction back to the date when


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                                                           CR v CMEC
the supersession application was first made. The thoroughly unsatisfactory position
here has come about largely as a result of the loss of documents by the CSA,
although it must be said that Mr R has not helped himself by not putting anything in
writing to the CSA in 2005 and much of 2006, and by not keeping copies of what he
received from the CSA. However, it is possible that further relevant documents may
be forthcoming from the Secretary of State (e.g. computer entries), or from Ms T. Mr
G.R. informed me at the hearing that they still had, for example, a copy of Mr R’s
completed October 2006 variation application form.

        (2)     If the new tribunal concludes that the continued correctness of the nil
calculation should have been reconsidered by the Secretary of State with effect from
a date earlier than 8 August 2006, it should then reconsider, in respect of that period,
(i) the correctness of the calculation under the main formula, and (ii) whether either
the lifestyle inconsistent or the assets ground of variation applied.

       (3)   As regards the period from 8 August 2006 onwards, the new tribunal
should hold that a nil calculation is correct, unless any of the evidence which
emerges in respect of the earlier period shows that the decision of the Tribunal which
sat on 6 December 2007 was wrong for some reason.

31.     The matter will therefore have to come to before a district Judge for directions
in relation to the rehearing. The Directions will need to include at least a Direction
that the Child Maintenance and Enforcement Commission prepare a further
submission specifically addressing the question whether there was any contact by Mr
R between April 2005 and August 2006 which amounted to a request by Mr R for a
supersession of the subsisting maintenance calculation.

32.     I can only conclude by again stating my regret that I have not been able to
finally dispose of this matter.



                                                                   Charles Turnbull
                                                        Judge of the Upper Tribunal
                                                                      24 June 2009




CCS 2999 2008                             10

				
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