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Notes:
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Reported as [2011] AACR 38
Child support – variation where income from company or business under control of non-resident parent– whether “just and equitable” requirement allows for part only of relevant income to be taken into account – relevance of facts found in court proceedings – meaning of “control” – effect of failure to notify non-resident parent of application
Judicial review – scope of judicial review of the refusal of permission to appeal by the Upper Tribunal – standard to be applied
The appellant in Cart appealed to the Social Security and Child Support Tribunal (whose jurisdiction has since been taken over by the First-tier Tribunal) against the refusal of the Child Support Agency to revise a variation in the level of child maintenance to be paid to the parent with care for the support of one of their children. The parent with care had applied for a variation under regulation 19(1A) of the Child Support (Variations) Regulations on the ground that the non-resident parent had dividend income from his business that had not been taken into account. The appeal was dismissed and the non-resident parent applied for permission to appeal to the Child Support Commissioners. In June 2008, a Commissioner gave him permission to appeal on three grounds but refused him permission to appeal on a fourth. The functions of the Child Support Commissioners were then taken over by the Administrative Appeals Chamber of the Upper Tribunal. Section 28F(1)(b) of the Child Support Act 1991, as amended, provides that “The Secretary of State may agree to a variation if it is his opinion that, in all the circumstances of the case, it would be just and equitable to agree to a variation. The first argument before the Upper Tribunal on behalf of the non-resident parent was that the discretion in that provision extended to a power to take into account less than the whole relevant income in applying regulation 19(1A). The Secretary of State relied on regulation 19(5), under which the “additional income” to be taken into account where paragraph (1A) applies “shall be the whole of the income …”; and regulation 25 under which effect “shall be” given to the variation by increasing the net weekly income by the weekly amount of the additional income, to argue that the whole amount must be taken into account. It was also argued that issue estoppel should operate to bind the tribunal to accept the findings on income made in matrimonial proceedings and that the tribunal had failed to justify its finding that the non-resident parent had control of the dividend income received from the business. The non-resident parent also asked for a reconsideration of the refusal of permission to appeal on the fourth ground, based on the procedural defect of non-notification of the application to the non-resident parent.
Held, by the Upper Tribunal, dismissing the appeal on the three grounds for which permission had been given and confirming refusal of permission on the fourth, that:
1. the statutory scheme was not to be read as imposing an all or nothing approach as the regulations must be interpreted in a way that was consistent with the legislation as a whole and a rigid interpretation of regulation 19(5) would produce simplicity at the cost of what was fair and equitable, being contrary to the spirit of the general requirement that a variation should be agreed only if it is “just and equitable”, and also inconsistent with the duties to maintain (sections 1(1) and 28E(2)(a) of the Act) and to take account of the welfare of all children likely to be affected (sections 2 and 28F(2)(a)) (paragraphs 36 to 47);
2. although issue estoppel did not formally apply to child support proceedings, it was appropriate for decision-makers and tribunals to take account of, and pay proper respect to, the findings of another court. Tribunals had to make the best findings they could on the information and evidence available to them, including findings made by previous tribunals and family courts, but the significance of those findings would depend on their reliability and relevance (paragraphs 52 to 58);
3. there was no reason to restrict control to sole control, as the language and context of regulation 19(1A) indicated that control meant effective rather than legal control and the focus of that language was on the reality and practicality of control, which was a matter of fact (paragraphs 63 to 65);
4. defects in the procedure or the decision could not affect the existence of the application itself and the effect of procedural failings no longer depended on whether the legislation was analysed as mandatory or directory, the focus being on the impact of the failure and on presumed statutory intention. In this case the non-resident parent was not prejudiced or worse off as a result of the defect in procedure: R v Soneji [2005] UKHL 49; [2006] 1 AC 340 cited (paragraphs 27);
5. although the tribunal had misdirected itself that the just and equitable requirement imposed an all or nothing test, it had given adequate reasons for taking account of the whole amount in the present case and neither the financial position of the parent with care nor the alleged insolvency of the non-resident parent was a relevant consideration under the current scheme (paragraphs 48 to 50).
The appellant sought judicial review of the Upper Tribunal’s refusal of permission to appeal on the fourth point. The case raised the issue of the scope of judicial review of the Upper Tribunal, since the Tribunals, Courts and Enforcement Act 2007 had conferred on the Upper Tribunal a statutory jurisdiction equivalent to the judicial review jurisdiction of the High Court, but with no express provision to limit or remove the supervisory jurisdiction of the High Courts and the Court of Session to review the decisions of the Upper Tribunal. The Divisional Court held that, in the light of the system introduced by the 2007 Act, the exercise of the supervisory jurisdiction of the High Courts should be limited to certain exceptional cases. The Court of Appeal, applying R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475, held that the unappealable decisions of the Upper Tribunal were amenable to the supervisory jurisdiction of the High Court in those cases only where the Upper Tribunal had exceeded its own jurisdiction in the sense understood prior to the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 or where it conducted the hearing so unfairly as to render its decision a nullity. The appellant appealed to the Supreme Court, where his case was heard with R (MR (Pakistan) (FC)) v the Upper Tribunal (Immigration and Asylum Chamber and another and Eba v Advocate General for Scotland [2011] UKSC 29 (reported as [2011] AACR 39).
Held, dismissing the appeals except on the preliminary issue, that:
1. the changes in the structure of the tribunal system by the 2007 Act had brought about a strategic reorganisation of the tribunals system by making it more coherent and improving its expertise and were sufficiently significant to demand a reappraisal of the scope of the judicial review jurisdiction (paragraphs 118 to 20);
2. the proper use of judicial resources required a restriction on the right of recourse to the courts, even if the result was that some arguable errors of law might go uncorrected and the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law (paragraphs 41, 89 to 90, 100, 122);
3. however, in the absence of any clear and explicit recognition that the Upper Tribunal was to be permitted to make mistakes of law, and in view of its status as a superior court of record, empowered to set precedent, often in a highly technical and fast moving area of law, the “exceptional circumstances” approach adopted by the Court of Appeal was too narrow (paragraphs 39 to 44. 92, 100, 110 to 111);
4. the very fact that Parliament, by section 13(6) of the 2007 Act, had prescribed the same criteria for the grant of permission to appeal from the Upper Tribunal to the Court of Appeal as apply to second-tier appeals in the courts of England and Wales destroyed any possibility of an absolutist argument to the effect that the rule of law required, post-Anisminic, unrestricted judicial review over all unappealable decisions of courts or tribunals of limited jurisdiction to ensure that they are not permitted, unsupervised by the higher courts, to commit errors of law (paragraph 99);
5. (referring with approval to R (Wiles) v Social Security Commissioners [2010] EWCA Civ 258; [2010] AACR 30) the second-tier appeals criteria of “some important point of principle or practice” or “some other compelling reason” offered a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself, and would recognise that the new and in many ways enhanced tribunal structure deserved a more restrained approach to judicial review than had previously been the case, while ensuring that important errors could still be corrected (paragraphs 57, 92, 94, 105, 130 to 131);
6. while, in the court’s view, it would be totally disproportionate to allow the four-stage system of paper and oral applications to both the High Court and the Court of Appeal in such cases, that was a matter for the Civil Procedure Rules Committee to determine (paragraph 58, 93, 101).
The court dismissed all three cases, holding that there was nothing to bring them within the second-tier appeals criteria.
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