[2023] UKUT 175 (AAC)

A consent order obviously ought to have the consent of all parties. The Secretary of State could not give consent at the hearing before the First-tier Tribunal because she was not represented at the hearing. On the other hand, she could have objected to the purported consent order and applied for it to be set aside long before this case reached the Upper Tribunal, had she wished to refuse her consent. She did not, of course, have a financial interest in the case, but she did have a role to play in assisting the First-tier Tribunal to make a decision in accordance with the law.

It was the parents who had financial interests in the decision. Each parent obviously made a concession to some extent, although the father’s concession was probably greater. What the First-tier Tribunal plainly ought to have done, if it was minded to accept those concessions, was simply to make a decision based upon them. There are, I accept, some differences between a party giving consent to a consent order that may be to his or her disadvantage and a party making a concession, but those differences may be more apparent than real and are not to my mind significant in the circumstances of this case.

For instance, although the legislation requires a consent order to be “appropriate”, the grounds upon which the Upper Tribunal may find it to have been inappropriate to make a consent order overlap to a considerable extent with grounds upon which the Upper Tribunal may find the First-tier Tribunal to have unlawfully accepted a concession.

Similarly the First-tier Tribunal is not under any statutory duty to give reasons for a consent order (see rule 32(2) of the 2008 Rules, which provides that the First-tier Tribunal “need not … provide reasons for the order”) – although, in fact, the First-tier Tribunal did provide what purported to be a statement of reasons in this case – whereas accepting a party’s concession does not relieve the First-tier Tribunal from its general duty to give reasons (under rule 34). However, it is not in practice necessary for the First-tier Tribunal to give reasons for accepting a concession if the reason for doing so is self-evident because, for instance, the concession is not inconsistent with the legislation or compelling evidence and there was no obvious reason not to accept it. Equally, it may in practice be necessary for the First-tier Tribunal to record in a consent order (or a separate supplementary statement) sufficient information to enable it to be seen why it considered it to be appropriate to make the consent order, if the terms of the order would otherwise appear to be inconsistent with the legislation or with compelling evidence. This is because, in the absence of any explanation, the Upper Tribunal may infer from the surrounding circumstances that it was not appropriate to make the consent order and that the decision to make it was wrong in law(see, for example, Jones v Governing Body of Burdett Coutts School [1999] ICR 38 at 47). Or to put it another way, the Upper Tribunal may imply a duty to give reasons if, without such reasons, a consent order appears aberrant (see R. v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 W.L.R. 242 at 263).

Despite such differences as there may be, there is a common public interest in the finality of decision-making and, if a party either gives consent to a consent order or makes an individual concession, he or she can expect to be held to the bargain, whether it is made between all the parties or merely with the court or tribunal. The modern approach, at least in public law appeals brought on the ground of error of law, is less opposed to allowing a party to resile on appeal from a concession of law made in a lower court or tribunal than allowing a party to resile from a concession of fact, it being in the public interest that the “correct” decision be made, but this is subject to issues of fairness which are likely to be particularly important in child support cases. The parties in such cases are not just a public authority and a single citizen; there are two citizens involved and they are usually opposed to each other.

In the present case, where the First-tier Tribunal did purport to give reasons, the Secretary of State invites the Upper Tribunal to find that they were inadequate in circumstances where, it is submitted, the ultimate decision appears to be inconsistent with the legislation governing the calculation of child support maintenance and neither the decision nor the reasons given for it indicate why, in those circumstances, the First-tier Tribunal considered it to be appropriate to make a consent order or, I would add, accept the parents’ concessions.

I would be minded to uphold the First-tier Tribunal’s decision, notwithstanding that it was wrongly expressed as a consent order, if I were satisfied that the decision could be regarded as appropriate even though the First-tier Tribunal did not itself indicate why it thought it appropriate. However, for reasons that I will give below, I am not satisfied that the decision to accept the father’s concession can be regarded as having been appropriate.

An alternative way of putting essentially the same point is to consider whether adequate consent from the father was obtained and whether he did in fact concede as much as is suggested. I am not satisfied that he did.

There were, in reality, two elements to the concession. I have no doubt that the father and the mother both readily agreed that the father’s taxable income in the 2016/17 tax year was £81,725 and that they were content for that figure to be used for the purpose of calculating child support maintenance. They accept as much, and that was not an unreasonable approach for either of them to take. However, there is nothing in the terms of the consent order or the statement of reasons given by the First-tier Tribunal, or in the accounts of the father and mother as to what happened at the hearing before the First-tier Tribunal, to suggest that the father gave informed consent to the income from that year being used for the calculation of child support maintenance in preference to the income from any other tax year. It is clear that it was the First-tier Tribunal that suggested using the 2016/17 figure shown in the father’s tax calculation and there is no indication that, in asking for the father’s consent, it explained why that might be a more appropriate year than either 2015/16, which was the year originally considered relevant by the Secretary of State because it was the last year in respect of which an “HMRC figure” had been provided, or 2017/18, which was the year in respect of which “current income” was received that was, in the Secretary of State’s later view, more relevant because, by her calculation, it was more than 25% lower than any “historic” income”. These were the real points on which the Secretary of State had taken an approach more favourable to the father than the First-tier Tribunal’s suggested approach. Had the First-tier Tribunal had good reasons for suggesting that it was correct, or at least fairer, to apply the 2016/17 income rather than the income in the previous or subsequent year, I would have expected the explanation to appear in the statement of reasons that it provided. There is no such explanation, and I am left with the uneasy feeling that the father was given the impression that he had no realistic choice but accept that 2016/17 was the relevant year and that the only live issue was what his income in that year was when, in fact, the First-tier Tribunal had not properly addressed the issue of the relevant year before making its suggestion.

I do not rely on the father’s assertion that he was confused and misunderstood what was being said to him due to stress. He has not identified any misunderstanding, except in relation to the redundancy payment, and he has not suggested that the consequence of stress was that he was legally incapable of giving consent to a decision being based on the First-tier Tribunal’s suggestion.