[2024] UKUT 136 (AAC)

This is an appeal against the decision of the Teeside First-Tier Tribunal (F-tT). Mr LF is the Appellant in these proceedings and the non-resident person for the purposes of the child maintenance regime. Mrs LF is the Second Respondent and the person with care within that regime. The First Respondent is the Secretary of State for Work and Pensions who is responsible for the Child Maintenance Service (CMS). Child maintenance was payable by the Appellant in relation to two children, born in January 2000 and July 2001.

The case relates to decisions of the Child Maintenance Service on 7 March 2018 and 22 May 2018. The issue in the case is the date on which an increase in weekly child maintenance liability to £137.03 should take effect. That increase was the result of CMS using the Appellant’s current income, rather than his historic income. The Respondents say that the increase should take effect from the effective date of the initial maintenance calculation (the date that any child maintenance was first due), 18 January 2017. The Appellant’s position has varied over time, but his position now is that the increase should take effect from some months later, 30 August 2017. The legal issues which arise include: the date on which a revision for official error takes effect, whether decisions by the Secretary of State were nullities, and whether a refusal to supersede can be revised or official error.

CMS calculates weekly maintenance on the basis of either historic or current income, applying the Child Support Act 1991 (‘the 1991 Act’) and the Child Support Maintenance Calculation Regulations 2012 (‘the 2012 Regulations’). Regulations 34(1) & (2) set out the following:

The central dates are :

This case has had a lengthy and unfortunate journey through the tribunals thus far. After two adjourned hearings in the F-tT the case was heard on 18 June 2019. An appeal against the decision was allowed by the Upper Tribunal (CCS/70/2020) and the case was remitted to the F-tT in May 2021. For various reasons that rehearing was not heard until 18 May 2022, almost three years after the first F-tT decision.

The F-tT in May 2022 was invited by the Secretary of State to find that the decisions of 7 March 2018 and 22 May 2018 were nullities, and did so.

The F-tT’s Decision Notice following the 18 May 2022 hearing said that the Appellant was liable to pay £137.03 weekly child maintenance from 21 March 2017.

The F-tT said in the Decision Notice that:

The F-tT changed its position in the Statement of Reasons. That records: ‘The decision that should have been made is that [the Appellant] was liable to child maintenance from effective date 18/01/2017 based on gross income of £45,639.12 leading to a liability of child maintenance of £137.03 per week from effective date 18/01/2017.’ The F-tT’s new position was more adverse to the Appellant than the Decision Notice, backdating the increase in child maintenance for a further two months.

The F-tT invited either party to apply for its decision to be set aside on the basis that its Statement of Reasons was not in accordance with the Decision Notice. Neither party made that application. The Appellant applied for permission to appeal to the Upper Tribunal which was granted by District Tribunal Judge Mahil on 25 November 2022 on the basis of that accepted error in the F-tT’s findings. The notice of permission was not issued to the parties until 4 January 2023.

Upper Tribunal Judge Hemingway admitted the appeal on 8 June 2023, extending time.

The Appellant’s initial grounds of appeal were:

The Secretary of State made submissions dated 14 July 2023 which supported the appeal on ground C alone, and invited me to remit the case to the F-tT. The Secretary of State’s position has subsequently changed.

The Appellant made further submissions dated 26 November 2023. He said that the appeal is against the decision made on 7 March 2018, and he expanded on his argument in relation to inaccurate information. The Appellant raised further issues in relation to CMS’s management of the mandatory reconsideration process and raises a number of factual matters. The Appellant sought an oral appeal hearing.

The Second Respondent made submissions received on 26 October 2023; these are factual submissions which do not relate to the points of law under consideration although it is clear that the Second Respondent does not agree that there has been any error of law and, understandably, seeks certainty and a fast resolution.

I made directions on 13 March 2024 in which I set out my provisional view relating to errors of law and directed an oral hearing. I noted that ‘the quality of SSWP’s engagement with the case to date has not been adequate. Written submissions have often been erroneous and/or incomplete. These further written submissions, and oral submissions at the hearing, must be of a better quality in order to properly assist the Upper Tribunal, and must be closely tethered to the statutory framework and statutory language.’

I directed submissions on the following points. The Secretary of State was required to make submissions on these points, and other parties were permitted to:

I received written submissions as directed from the First Respondent. I received further submissions from the Appellant. I did not receive further submissions from the Second Respondent.

I held a hearing on 23 April 2024 at Field House, London. The Appellant represented himself. The Secretary of State was represented by Mr Simpson of counsel. I had expedited the hearing, given the previous delays in the case, and am grateful to the parties for facilitating the tight timetable which I put in place.

The Appellant’s position remained that the F-tT had made errors of law. The Appellant invited me to remit the case to the F-tT for a further decision. The Appellant submitted that the correct decision was that the increased payment should be backdated to 30 August 2017; in other words that CMS had made the correct decision on 7 March 2018, and wrongly changed that decision on 22 May 2018. The Appellant maintained that some of the decisions made by CMS in this case were nullities, but (and I mean no criticism by this) was not clear about what he meant by that, nor what the result would be.

The Secretary of State’s position was also that the F-tT had made errors of law. The Secretary of State invited me to remake the F-tT’s decision. The Secretary of State submitted that the correct decision was that the increased payment should be backdated to the start of child maintenance payments,18 January 2017. The Secretary of State no longer maintains that any of the decisions in this case were nullities.

The F-tT made an error of law in the procedure it adopted when it changed its mind on the key issue at the point of drafting the Statement of Reasons. The resulting position is that there is a conflict on the key issue between the Decision Notice (which records that the F-tT’s decision is a supersession with an effective date of 21 March 2017) and the Statement of Reasons (which records that the F-tT’s decision is a revision with an effective date of 18 January 2017).

A First-tier Tribunal may set aside a decision if it is in the interests of justice to do so (Rule 37 Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008) or undertake a review of a decision on an application for permission to appeal where it is satisfied that there was an error of law in the decision (Rule 40 Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008). A review can lead to amended reasons or correction of a decision, which must then be notified to the parties under Rule 40.

In this case, although the F-tT identified an error at the stage of producing a Statement of Reasons, the F-tT did not set aside its decision under Rule 37, nor undertake a review of its decision on receipt of the appeal notice. There was therefore no amendment to the initial decision notice within the procedure allowed for by Rule 40.

The result is that there are two conflicting decisions made by the same F-tT, and both are in existence. Both the Appellant and the Secretary of State submit that an error of law arises. The Secretary of State helpfully draws my attention to LA v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0482 (AAC) 11 in which Tribunal Judge Mitchell stated that:

I agree with Judge Mitchell’s approach. The inconsistency between the Notice and the Statement amounts to a material error of law.