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Notes:
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Reported as [2013] AACR 18 Tribunal jurisdiction – revision on ground of official error – whether right of appeal against refusal to revise
Calculation of income – self-employed earnings – drawings made from capital of a partnership
The appellant was a non-resident father. On 9 February 2005 the Child Support Agency (CSA) confirmed by letter that he was liable to pay £25 per week in child support maintenance. The appellant neither appealed against nor challenged the decision at that time. From October 2009 the CSA made a supersession decision and reduced the appellant’s liability to £15 per week, apparently following a relevant change of circumstances. Again no appeal or challenge was made against the decision. In February 2011 the appellant’s solicitor asked the CSA to revise its decision of 9 February 2005 as it had wrongly assessed the appellant’s income. It refused to do so. In June 2011 the appellant’s solicitor appealed against the CSA’s refusal. In December 2011 a First-tier Tribunal (F-tT) hearing was held to decide whether or not to admit the appeal. It was argued by the CSA that there was no right of appeal against a refusal to revise and that any appeal against the decision of 9 February 2005 was out of time. It was argued for the appellant that there was no time limit in cases involving official error. Schedule 1 to the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 provides, as far as relevant to “2003 scheme” child support cases (in head (ii) of sub-paragraph (c)), that where a person has made an unsuccessful application for revision of a decision under regulation 3A(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, there is one month (extendable to 13 months) to appeal against the decision, running from the date of notification that the decision was not to be revised. The F-tT decided that the time limit for making an appeal could not be extended beyond 13 months from 9 February 2005, so that the appeal was not admitted for consideration. An appeal against that decision was accepted by the Upper Tribunal in view of the decision of the three-judge panel in LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27. The Child Maintenance and Enforcement Commission (which had replaced the CSA) did not support the appeal to the Upper Tribunal on the basis that case law restricted the operation of the relevant part of Schedule 1 to circumstances where the application for revision was made within a specified time, but also submitted that the appellant’s solicitor should have been regarded as having made an application for revision under regulation 3A(1), which would have meant that the appeal was in time. The appellant’s solicitor again argued that there was no time limit to appeal a refusal to revise on the basis of official error.
Held, dismissing the appeal, but requesting the Secretary of State to reconsider whether the decision of 9 February 2005 should be revised, that:
1. the decisions of the Tribunal of Social Security Commissioners in R(IS) 15/04 and of the Court of Appeal in Beltekian v Westminster City Council and another [2004] EWCA Civ 1784, reported as R(H) 8/05, held, in relation to regulations relating to other benefits but in similar terms to those of the relevant part of Schedule 1, that a new time for appealing only started to run when the regulation made express provision for an application for revision to be made, which was not the case for the ground of revision of official error. Those decisions were binding on the Upper Tribunal unless shown to be wrong. But the logic of the reasoning behind its conclusion appeared correct and so had to apply equally to the relevant part of Schedule 1. Even if the outcome was contrary to the CSA’s normal practice, that could not stand in the way of the outcome required by authority and convincing reasoning. Nor could the existence of a refusal of permission to appeal by an Upper Tribunal judge adopting the opposite outcome (paragraphs 25 and 27);
2. even if there had been a plain official error, as submitted for the appellant, a refusal to revise a decision could not trigger the running of a new period for appeal. There had to be one rule for all applications for revision on the ground of official error and subsequent refusals regardless of the strength or otherwise of the case for there having been an official error. Rule 2(3)(b) of the First-tier Tribunal Rules obliged the F-tT to deal with cases justly and fairly when interpreting any rule or practice direction. However, that duty is fundamentally addressed to matters of procedure, or the conduct of proceedings, or to the application of rules to particular circumstances in the course of proceedings. It could not have any influence over the interpretation of a provision directed to the question of whether proceedings could be commenced at all: that was a question of jurisdiction. The adoption of the general principle that cases should be dealt with fairly and justly had to stand against the actual terms of provisions defining the time for bringing appeals. It could not warrant any process of reading into such provisions exceptions or qualifications that were not in the legislation. Nor could the consequences, that a refusal to revise such a decision more than 13 months ago on the ground of official error could only be challenged by way of judicial review in the High Court or by way of making new applications for revision (paragraph 26);
3. an additional powerful reason in favour of the above conclusion was that sub-paragraph (c)(i) of the provision in Schedule 1 to the First-tier Tribunal Procedure Rules applied for the purposes of the original child support scheme but not for the revised scheme introduced for new cases from 2003. So for old scheme cases the statutory position was the same as for ordinary social security cases and the refusal of revision on the ground of official error could not trigger the running of a new period for appealing. It would be extraordinary, and could not possibly have been intended, if that was the position for old scheme cases but the reverse for 2003 scheme cases (under sub-paragraph (c)(ii)) (paragraph 28);
4. an officer of the Secretary of State was asked to reconsider revision of the decision of 9 September 2005 because, among other reasons, it appeared there had been an official error in assessing the appellant’s income, as it had been clearly established in previous decisions of the Child Support Commissioner and of the Upper Tribunal that the amount taken by a partner, or any self-employed earner, as “salary” or drawings from the business was irrelevant to the calculation of income from self-employment under paragraph 8 of the Schedule to the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 as at February 2005 (CCS/3156/2000, CCS/1246/2002 and AR v Bradford Metropolitan District Council [2008] UKUT 30 (AAC) (also reported as R(H) 6/09)) (paragraphs 30 to 35).
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