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Home > Judgments > 2012 archive

KH v CMEC [2012] UKUT 329 (AAC)

A decision of the Upper Tribunal Administrative Appeals Chamber (in a child maintenance assessment case), setting aside the decision of the First-tier Tribunal in light of an error of law and remitting the matter for reconsideration.

The appellant father was the qualifying child's absent parent. The child's primary carer, the mother, was respondent to the appeal. The Secretary of State was also represented on the appeal.

The father had initially appealed against a maintenance assessment which had more than doubled his previous contribution. The father, however, failed to attend the hearing of that appeal before the First-tier Tribunal and the decision went against him. The father then applied (by letter) to set aside the decision on the basis that he had not received notification of the hearing and had, in any event, been away at a funeral. The Tribunal declined to set aside the decision, finding that the father had received notice in advance of the hearing and thus should have attended.

The father appealed to the Upper Tribunal. The Upper Tribunal considered both reported and unreported authorities on the application of principles of natural justice, as well as Rules 31 and 37 of the First-tier Tribunal Procedure Rules. The court considered that a party who seeks to have a decision set aside is open to do so either by the Rule 37 procedure or by appeal using the natural justice argument. The Upper Tribunal did not consider itself bound by the finding of the First-tier Tribunal as to the father's notification; on the contrary, the Upper Tribunal accepted the father's evidence that the notification of the hearing had been delayed by poor weather and had not been received by him until after the decision. The father had therefore been unfairly deprived of an opportunity to make his case to the First-tier Tribunal.

It did not, however, automatically follow that the appeal should be allowed and the decision should be set aside; if in exceptional circumstances it was demonstrated that the error of law was not material the appeal need not be allowed. However, that was not so in the instant case. Accordingly, the decision of the First-tier Tribunal was set aside and the matter remitted for reconsideration before a new tribunal. The Upper Tribunal declined to deal with a further issue raised by the mother on appeal, suggesting an alternative procedural route instead.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


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DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER

The absent parent's appeal to the Upper Tribunal is allowed. The decision of the Bexleyheath First-tier Tribunal dated 26 January 2011 involved an error on a point of law, for the reason given below, and is set aside. The case is remitted to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for reconsideration in accordance with the directions given in paragraph 35 below and further directions to be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

REASONS FOR DECISION
1. In the language of the child support legislation the appellant is the absent parent of the qualifying child (Aaron). From now on I shall call him the father. I shall call the parent with care and second respondent the mother.

2. Both parents had requested an oral hearing before the Upper Tribunal, which took place on 10 September 2012. Mr Stephen Cooper, solicitor, instructed by DH/DWP Legal Services attended to represent as he thought the Child Maintenance and Enforcement Commission (CMEC). No-one had told him that CMEC had been abolished with effect from 1 August 2012 by the Public Bodies (Child Maintenance and Enforcement Commission: Abolition and Transfer of Functions) Order 2012 (SI 2012 No 2007) and its functions transferred back to the Secretary of State for Work and Pensions (article 3(1)). He was therefore representing the Secretary of State. I am grateful to all present for their assistance.

The background
3. The father's appeal to the Upper Tribunal is against the decision of the First-tier Tribunal that was concerned with his appeal against the amount of the maintenance assessments in effect from 5 February 2010 (£52.30 per week) and 26 March 2010 (£46.66 per week). Those amounts had been set by a decision dated 26 May 2010 revising the decision of 19 March 2010, under which the amount of the assessment in effect from 5 February 2010 had been set at £20.08 per week. It appears that the father's main difficulty was in understanding why the amount of the assessment should have doubled, but on his appeal form signed on 4 June 2010 mentioned some specific matters: that his circumstances had changed, his outgoings were higher, his travel to work costs had not been calculated correctly and that recent salary figures had not been taken into account. In a letter written immediately on receipt of notification of the decision of 26 May 2010 he said that his travel to work costs were £59 per week, but he had only been allowed £22.20 and had previously been allowed £30. He also referred to the mother's income having been taken into account, when it had not been previously, and about debts that he was having to repay. He enclosed pay-slips for December 2009, January 2010 and February 2010. The father also mentioned having to pay off a joint debt.

4. The written CMEC submission, while stating that errors had been found in the decision of 19 March 2010 (against which the mother had appealed initially) such as to justify revisions, unhelpfully did not say what the errors were or how they resulted in an assessment that was said to be much too low. Instead it explained how the assessments made on 26 May 2010 had been calculated. It showed that those assessments had taken into account the father's earnings in January, February and March 2010 (information that had already been obtained from his employers) and the amounts of a bonus received in March 2009 and then (a lower amount) in March 2010. It was the change in the income required to be taken into account following the payment of the bonus that resulted in the slightly lower assessment from 26 March 2010. The submission showed that the presence in his family of a partner and three step-children had been taken into account in fixing his exempt and protected income, but also the addition of child benefit and child tax credit to his disposable income at the final stage of the calculation. The submission further explained how the mother's income was taken into account as she had ceased to be in receipt of working tax credit. The calculation of the father's travel to work costs in exempt and protected income in accordance with the fixed formula in Schedule 3B to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (the MASC Regulations) on the basis of a straight-line distance of 61 kilometres between home and work was set out. It was explained that an application could be made for departure directions to cover the actual reasonable costs of travel to and from work or the payment of debts accrued before separation.

5. A complicating factor is that the mother also appealed against the assessments made on 26 May 2010 (her initial appeal having lapsed on the revision). One of her main points in her appeal was that the father's housing costs at £110 per week seemed very high. That appeal was heard and decided by the tribunal at the same time as the father's appeal. No further appeal has so far been sought against the decision on the mother's appeal. I come back briefly in paragraphs 31 to 33 below to the implications in the present case.

The First-tier Tribunal hearing on 26 January 2011
6. Notices of the date, time and place of the tribunal's hearing were sent out by the Social Security and Child Support Appeals administration on 22 December 2010. There is not now any dispute that notices were sent on that date to both parents at their proper addresses. The hearing was to be on 26 January 2011.

7. The mother and a representative of CMEC attended on 26 January 2011. The record of proceedings on the mother's appeal noted no attendance or message from the father and that the hearing proceeded in his absence. The father's appeal was disallowed and the maintenance assessment from 5 February 2010 confirmed. The decision notice contained the following:

"[The father] did not attend but I that I had sufficient evidence to make a decision and was satisfied that the calculations were correct and that the assessment was as set out above."

The statement of reasons eventually signed on 5 June 2011 contained the following:

"1. The appeal was heard on 26.01.2011 when the second respondent, [the mother], attended as did a Presenting Officer, … . [The father] did not send any message explaining his non attendance and the appeal together with [the mother's] cross appeal numbered 168/10/04845 was heard in his absence. The clerk telephoned the work number supplied by [the mother] but there was no response. I was also told that he was abroad but had been in court on 15.12.2010. As there had not been any request for an adjournment and the other parties were present I heard the appeals in his absence. [The mother] gave evidence and I heard representations from [the Presenting Officer]."

8. The father wrote as follows on 2 February 2011 to the Chief Executive of Her Majesty's Courts and Tribunals Service:

"I find myself writing to you due to the fact that a tribunal hearing was heard on the 26th January 2011 in Bexleyheath without me being present.

Firstly I would like to bring it to your attention that I had not received the letter dated 22nd December 2010 notifying me of this date. I believe this was due to poor weather conditions and apparently the post office is still dealing with a backlog of mail.

It has also been brought to my attention that someone from the tribunal rang my place of employment enquiring of my whereabouts and they were told that I was on holiday. Due to unforeseen circumstances I had to take holiday owed to me to enable me to attend a funeral of a family member. Therefore I am asking for leave to appeal as I feel that it is my entitlement and right to express concerns with regards to this matter."

9. That letter was passed to a district tribunal judge, who treated it as an application to set aside the tribunal's decision under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The decision signed on 9 March 2011 was not to set aside the decision of 26 January 2011. The notice identified that a ground under rule 37(1)(c) was established, in that the father had not been present at the hearing, but concluded that the over-riding condition that it be in the interests of justice to set aside the decision was not met. The notice continued:

"[The father] was sent notification of appeal on 22.12.10. This notification was sent to the address recorded for him on file. The address was the same as that stated on his letter dated 02.02.11. The letter was not returned to the Tribunal Service as undelivered by the postal services. [The father] states he believes he did not receive the notification due to poor weather conditions and a backlog of mail. I do not find it credible that poor weather conditions would result in a delay of 5 weeks in the delivery of an item of mail. I find, on the balance of probabilities that [the father] received notification of the hearing date in advance of the hearing.

Having considered Rule 2, it is not in the Interests of Justice to set aside the Tribunal's decision.

The [father] has indicated a desire to appeal the decision to the Upper Tribunal. The Tribunal Judge should, therefore, be asked to prepare a statement of her reasons for the decision."

It was that direction that prompted the production of the statement signed on 5 June 2011.

The appeal to the Upper Tribunal
10. I gave the father permission to appeal on 16 November 2011 (not issued by the Upper Tribunal (AAC) office until 13 January 2012), saying this:

"A First-tier Tribunal may only proceed with a hearing in the absence of a party to the proceedings if the conditions of rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 are met. Here, it would have been better in the circumstances if the tribunal had expressly recorded in its statement of reasons that it was satisfied that reasonable steps had been taken to notify the father of the hearing on 26 January 2011, so that the condition in rule 31(a) was satisfied. However, it can probably be presumed from the note in the typed part of the record of proceedings of the date of notification of the hearing date that (in the absence of evidence to the contrary) notice was sent to each party's last known or notified address and that therefore reasonable steps had been taken. The condition in rule 31(b) is that the tribunal considers that it is in the interests of justice to proceed with the hearing. Here, the tribunal did not expressly refer to that test in its statement of reasons or note the existence of rule 31, although it did refer to factors (the absence of a request for an adjournment and the presence of the mother and a representative of CMEC) that it had taken into account in deciding to proceed. In those circumstances, there is in my view an arguable case to be made that the tribunal's reasons were inadequate in failing to show that it had applied the test in rule 31(b), although there is also of course a case to be made that it had applied that test in substance."

11. Rule 31 provides:

"31.  If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—

(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b) considers that it is in the interests of justice to proceed with the hearing."

12. In the written submission dated 8 February 2012 on behalf of CMEC it was accepted that the tribunal had, in the light of the decision of Upper Tribunal Judge Lane in JF v Secretary of State for Work and Pensions (IS) [2010] UKUT 267 (AAC), arguably taken too narrow a view of the considerations relevant to whether to proceed in the father's absence and failed to explain why it was fair and just to do so. But it was submitted that, since the tribunal concluded that the maintenance assessments had been correctly calculated and it would appear that that conclusion would not have been any different if the father had been present, the tribunal could be seen to have applied the rule 31 test in substance. It should therefore be concluded not to have erred in law.

13. In their replies the parents did not engage with the legal issues raised above, but both asked for an oral hearing. When granting those requests I raised some further questions of law, with the intention mainly of seeking the views of CMEC. In brief, they were whether the effect of rule 31 was that, if its conditions were met, the normal application of the principles of natural justice in circumstances where a party to proceedings did not receive notice of a hearing was excluded and whether the father's appeal against the tribunal's decision of 26 January 2011 should be taken as encompassing an appeal against the refusal to set aside of 9 March 2011 or, if not, whether the Upper Tribunal could now give permission to appeal against that refusal. In the event, I do not need to give a final view on those extra questions.

Submissions at the hearing on 10 September 2012
14. At the hearing on 10 September 2012 the father told me that, as far as he could now remember of the details, the first that he had learnt of the hearing on 26 January 2011 was when he received his copy of the decision notice that was apparently sent out on the same date. By the time that he wrote his letter of 2 February 2011 the notice sent on 22 December 2010 had arrived. He could not remember exactly when it arrived, but he was sure that it was after 26 January 2011. There is no way of independently verifying the late delivery of the notice. I have no reason to doubt what the father has said. In my judgment, considering the very severe weather over late December 2010 and January 2011 and the press stories at the time about postal delays, it is credible that the notice could have been delivered as late as after 26 January 2011. The father has been consistent in what he has said about the matter. Therefore I proceed on the basis that he did not receive notice of the hearing on 26 January 2011 and make a finding to that effect.

15. Mr Cooper, on behalf of the Secretary of State (formerly CMEC), took a rather stricter view of rule 31 than had the author of the submission of 8 February 2012. He was very doubtful whether an authorisation under rule 31 of a tribunal's proceeding in the absence of a party could "trump" the principle of natural justice that all parties to proceedings are entitled to a fair opportunity to make their case before a decision is made. He pointed to the over-arching importance given to principles of natural justice, in conjunction with the right to a fair trial under article 6 of the European Convention on Human Rights (ECHR), and suggested that it would require the very clearest of language in Procedure Rules to exclude the operation of the principles of natural justice. If a party, through no fault of their own, does not receive notice of a hearing, that would be a prime example of a breach of the principles of natural justice even though the tribunal concerned and its administration may not have been at personal fault in any way. However, Mr Cooper submitted that I did not have to reach a conclusion on the "trumping" question because the tribunal of 26 January 2011 had not showed that it had applied the conditions of regulation 31 so as to give it authority to proceed in the father's absence.

16. Mr Cooper first drew attention to the condition in rule 31(a) that the tribunal be satisfied that at least reasonable steps had been taken to notify the absent party of the hearing and to the best practice that had been followed in the equivalent tribunals several years ago of checking that there was a record of the notice having been sent to the right address before proceeding in a party's absence. He submitted that as the tribunal had, by failing to address rule 31 directly in its record of proceedings, decision notice or statement of reasons, failed to show that it was satisfied that reasonable steps had been taken to notify the father of the hearing, the necessary basis under rule 31(a) for going on to exercise the discretion under rule 31(b) had not been established. The mere presence of the pre-typed date for notification of the hearing on the record of proceedings could not show that the tribunal itself had taken any steps to check that that notification had been properly sent to the father. Further, he said that that failure was not cured by the fact that it is now known that, if the tribunal had checked, it would have found that notification had been sent to the father at the right address on 22 December 2010.

17. Mr Cooper submitted secondly that, if the tribunal had been entitled to consider the conditions in rule 31(b), it failed to show that it had properly considered all the relevant factors in exercising the discretion to proceed in the father's absence. It had merely mentioned some factors pointing in favour of proceeding – that the mother and a representative of CMEC were present, that there had been no request for an adjournment and that it was considered that there was sufficient evidence to make a decision. There had been no weighing up of those factors with factors pointing against proceeding and no conclusion in terms of the interests of justice or of whether it was fair and just to proceed in the father's absence. Mr Cooper submitted that it was not enough for the tribunal simply to say that there was sufficient evidence to make a decision, when it could not be known what evidence the father could have given if present. That had to be put into the interests of justice weighing process.

Rules 31 and 37 of the First-tier Tribunal Procedure Rules and natural justice
18. I am in agreement with the general thrust of Mr Cooper's submissions. However, with respect to him (and apologies because it was me who set the hare running about the possible effect of rule 31 on the application of the principles of natural justice), after further reflection I find the simplest way of dealing with the present case and hopefully giving practical guidance for other cases is to approach it from the natural justice end and to say what I consider the relationship to be between that and rule 31, as well as rule 37 on setting aside.

19. First, compliance with the conditions in rule 31 for proceeding in the absence of a party plainly does not prevent the setting aside of the tribunal's decision under rule 37 on the ground that a party or representative was not present at the hearing, if it is in the interests of justice to do so. If the authority to proceed given by rule 31 is rendered in a sense provisional by a rule using exactly the same criterion of absence/presence, then in my view it must even more so yield to a breach of the principle that a party must have a fair opportunity to make his or her case. The question of whether that principle is breached is broader that the mere question of whether the party was present at a hearing or not.

20. In a decision of a Social Security Commissioner, Mr Commissioner Rice, in R(SB) 55/83 it was held that the existence in the then governing procedural regulations of a provision that a document or notice about proceedings was deemed to have been sent or given to a claimant if posted to his last known address prevented the claimant relying in an appeal against the tribunal's decision on a breach of the principles of natural justice through notice of the hearing not having been received. The Commissioner held that in those circumstances the only remedy available was an application for setting aside on the ground of not having been present at the hearing or of a relevant document not having been received at an appropriate time. Other Commissioners have taken a different view in the light of developments in the procedural rules, in the application of the ECHR and in the authoritative case-law: see decisions CDLA/5413/1999 and CIB/303/1999 (available on the Upper Tribunal (AAC) website). I do not need to pursue the precise point because the current Procedure Rules do not contain any provision deeming a notice to have been given if posted.

21. General arguments have been raised that the existence of rule 37 on setting aside or of a decision refusing a setting aside in a particular case prevents reliance on non-receipt of notice of a hearing to found a case on breach of the principles of natural justice. In my judgment, the weight of Commissioners' authority is clearly against such an argument. R(SB) 55/83 did not adopt the argument. It turned on the deemed giving of notice and merely noted that setting aside was the only remedy then available. Nor did R(SB) 19/83 specifically decide the point. There Mr Commissioner Monroe commended the use of the setting aside procedure in cases of non-receipt of the notice, but, as no such application had been made and would by the time of his decision have been long out of time, saw no objection to dealing with the point on the appeal against the tribunal's decision. But in that case it could not be proved that notice had been posted to the claimant, so that under the regulations then in force there was no capacity to proceed with the hearing without the claimant's consent. The Commissioner did not have to deal with natural justice. By contrast, the point did arise in R(SB) 22/83, a decision often overlooked in this context. The claimant there mistakenly thought that his hearing was on the day after that given in the notification that he had received and so was not present on the right day. An application to set aside was refused and the claimant then appealed to a Social Security Commissioner. Mr Commissioner Goodman said this in paragraph 3 of his decision:

"In my judgment the jurisdiction of a Commissioner to set aside a tribunal's decision on the ground of a breach of the rules of natural justice where there is a denial to a party of the right to be heard … is additional to the jurisdiction conferred on the body or person which gave the decision, under the [Social Security (Correction and Setting Aside of Decisions) Regulations 1975]. A refusal by that person or body to set aside a decision in no way binds the Commissioner nor precludes him from considering the point on appeal."

However, the Commissioner decided that in the circumstances that the claimant had been properly notified of the date and simply made a mistake about it there was no breach of the principles of natural justice, nor was there a breach of the provision in the then procedural rules about proceeding if a party failed to attend. Thus, the proposition quoted above may not have been strictly necessary to the decision, but I do not think that the decision would have been given the status of a reported decision if at least a majority of the Commissioners at the time had not thought that it was correct in law.

22. So far as the two unreported decisions mentioned above are concerned, in CDLA/5413/1999 Mr Commissioner (now Upper Tribunal Judge) Williams held in paragraphs 26 and 27, accepting a submission on behalf of the Secretary of State on this point, that the setting aside procedure for the tribunal below was not an exclusive remedy and that points that would have been relevant in that procedure are to be taken into account by a Commissioner in carrying out the duty to determine on an appeal if the tribunal below has erred in law. There had been no application to set aside in that case. The Secretary of State's submission apparently did not refer to R(SB) 22/83. In CIB/303/1999, Mr Commissioner (now Upper Tribunal Judge) Rowland held in paragraph 12, in a case in which an application to set aside had been refused by the tribunal below, that, given the fundamental importance of the right of access to a court or tribunal, the scope of the right of appeal to a Commissioner could not be limited by the regulations on setting aside by the tribunal below. The Commissioner made a rather faint suggestion that the position might be different if there were a right of appeal against a refusal to set aside. Such a right now exists under the Tribunals, Courts and Enforcement Act 2007 regime (see MP v Secretary of State for Work and Pensions (DLA) [2010] UKUT 103 (AAC), referred to when I granted the requests for an oral hearing, with a copy included in the papers). However, I do not see why that should be allowed to limit the scope of an appeal against the tribunal decision on the basis of the principles already accepted.

23. The only previous decision pointing to the contrary seems to be that of Mr Commissioner May QC in CSDLA/303/1998. A copy of that decision is not available on the Upper Tribunal (AAC) website. The issue was whether there had been an error of law when the appeal tribunal heard an appeal in the claimant's absence, in the circumstance that her representative had made a request by fax for a postponement two days in advance of the hearing date and had not received any response. An application for setting aside was refused, the appeal tribunal saying that it was not satisfied on the balance of probabilities that the postponement request was faxed the Tribunals Service, as there was no record of it ever having been received. The appeal tribunal also noted that the representative had given no explanation of why he and/or the claimant had not attended the hearing when he had not been informed of any postponement. Mr Commissioner May said this in paragraph 11:

"Thus the factual issue as to whether there was a written request for a postponement was determined by that tribunal. Having been determined in the way it was. I do not consider that it is open to the claimant to seek to raise the same issue further by way of an appeal to the Commissioner under the guise of an asserted breach of the rules of natural justice by the tribunal which originally heard the appeal. This is because there could be no question of unfairness arising as the claimant had been provided with the remedy of seeking set aside and the tribunal which heard her application had determined as a matter of fact that no request for a postponement had been faxed."

Since the Commissioner had concluded that there had been no breach of the rules of natural justice, in the light of claimant's representative's acceptance that he had had no right to presume that the hearing would be postponed following his request, the above statement was not strictly necessary to the decision. Since there was also no reference to the decisions cited above and to the principles discussed there, I do not think that the decision in CSDLA/303/1998 can be followed in preference to the consistent line of decisions, some of them reported and therefore carrying greater weight, referred to above. I cannot see any warrant for a position where, when the Upper Tribunal is required to consider whether there has been a breach of the principles of natural justice in relation to a First-tier Tribunal's decision despite that tribunal having refused to set the decision aside under rule 37 of the First-Tier Tribunal Procedure Rules, the Upper Tribunal could be bound to accept a finding of fact made in the refusal to set aside.

Breach of the principles of natural justice
24. That is enough to decide the present case. Although the tribunal of 9 March 2011 found as a fact that the father had received notification of the 26 January 2011 hearing in advance of that date, that does not bind the Upper Tribunal on the appeal. I take a different view of the balance of probabilities, having also seen and heard from the father at an oral hearing, and make the finding in paragraph 14 above. The decision of the tribunal of 26 January 2011 accordingly involved an error of law in the form of a breach of the principles of natural justice. The father was, through no fault of the tribunal or of the First-tier Tribunal administration and through no fault of his own, deprived of a fair opportunity of making his case to the tribunal of 26 January 2011.

25. In all but exceptional cases it would follow from such a conclusion that the decision of the tribunal should set aside. No-one can say what difference the presence of the party, including the evidence that might have been given or the doubt that might have been cast on other evidence, might have made. However, if the decision of the tribunal gave the absent party everything that he or she could have been given under the law on that party's version of the case, consideration might need to be given to whether the circumstances fell into the exceptional category. The Upper Tribunal might exceptionally decide that the error of law was not material or that the discretion in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 should be exercised not to set aside the tribunal's decision even though it involved an error of law or that, if the tribunal's decision were set aside, a decision to the same effect should be substituted.

26. In the present case, the tribunal's decision, by adopting the conclusions and explanations of the CMEC submission set out in paragraph 4 above, appeared to get close to those circumstances. It was demonstrated that in nearly all respects the assessments under appeal either already took account of the matters that the father was saying should be taken into account or those matters could only be taken into account through the making of a separate application for a departure direction. At first sight, that appeared to be so in respect of travel to work costs, where the legislation provides a fixed formula based on the straight-line distance between home and place of work for the amount to go into exempt and protected income, with actual costs only capable of being taken into account in a departure direction. However, it emerged at the oral hearing of 10 September 2012 that there was something relevant that the father could have raised if he had been at the hearing on 26 January 2011. When I asked the father what he said was wrong with the calculation of his costs under the fixed formula he said that the straight-line distance of 61 km that had been used was wrong, suggesting that the measurement had not been made from his home but from the place where he boarded a coach. Be that as it may (and it will have to be investigated by the new tribunal), that put some flesh on the otherwise rather general challenge to the amount allowed and to the reduction from £30 to £22.20. It appears that the father may have changed address as part of the changes in circumstances that prompted the making of a new maintenance assessment with effect from 5 February 2010. That could possibly have explained the difference in the amount allowed, although it seems rather a large difference if the move was in the same general area. It is also the case that the MASC Regulations refer to home and place of work, while the CMEC (now Secretary of State) computer programme works on postcodes (see page 25), which might, if rural areas are involved, not produce a strictly accurate figure. There was thus an issue of fact to be resolved that the presence of the father at the hearing might have prevented from being overlooked and on which he could contribute relevant evidence. This is then a good example of a case where it might have appeared that a party's presence could have added nothing, so that the justification for the reduction in the travel to work amount was not explored, but further examination revealed that there was something relevant that could have been raised and could have made a difference.

27. Accordingly, the error of law that I have found is material and requires the setting aside of the decision of the tribunal of 26 January 2011.

Rule 31
28. In that event, I do not then need to decide whether or not there was also an error of law in a failure to show that the tribunal had authority to proceed under the conditions in rule 31 of the Procedure Rules. I do, though, consider that the view that I have taken above about the application of the principles of natural justice even if the conditions of rule 31 have been met simplifies things for tribunals when considering when to proceed with a hearing in the absence of a party. It does so in this way. It is a relevant factor in considering the interests of justice under rule 31(b) that, if the tribunal does proceed, the absent party has the opportunity not only to apply for a setting aside under rule 37, but also, if that is unsuccessful or if a timely application is not made, to raise the natural justice argument of having been deprived of a fair opportunity to state his or her case in an application for permission to appeal to the Upper Tribunal and any subsequent appeal. There is the opportunity to explain the circumstances of the absence from the hearing in a way that the tribunal may well have not been able to find out about by any enquiries on the day of the hearing. The existence of those long-stops to protect the absent party could then operate as factors in favour of proceeding with a hearing if the tribunal is otherwise satisfied that it has sufficient evidence properly to come to a decision and that there are no others factors pointing towards an adjournment (eg the emergence of new points on which natural justice requires that an absent party be given the opportunity to comment).  That seems to me of more practical help than resort to the overriding objective under rule 2, where the general objective of dealing with cases justly and fairly adds little or nothing to the interests of justice and the specifically mentioned factors often seem to cancel each other out in this context (eg avoiding delay and ensuring, so far as practicable, that parties are able to participate fully in the proceedings).

29. I do not wish to express any definite conclusion on whether a tribunal is entitled to rely on the entry by a clerk of a date for the notification of the hearing on the pre-printed part of the record of proceedings or whether it is required to check itself whether there is an administrative record of notification to the particular party who is absent and to the right address and to state that it had done so. I think that if that were required as a matter of law there would be some reluctance to set aside decisions on appeal on that ground alone where the evidence was that proper notification had been given. On the other hand, I have no doubt whatsoever that best practice remains as it was stated in paragraph 7 of decision R(SB) 19/83:

"As a practical matter it is the duty of the appeal tribunal when a claimant does not attend and is not represented on the appeal to ask the tribunal clerk if the claimant has been properly notified of the hearing … . And the record of proceedings should show that this has been done or (where this is the case) how otherwise the tribunal was satisfied that the absent claimant was notified of the hearing."

I have omitted some of the more specific guidance given by the Commissioner about the tribunal clerk being prepared to answer such questions and what forms should ideally be available, as that is out of date. However, it would save a great deal of subsequent time and trouble if tribunals would carry out or instruct the equivalent checking in cases where a party has not turned up at a hearing, along with the necessary check on whether any relevant communication has been received from that party, and note preferably on the record of proceedings (or/and in any statement of reasons) what had been done and the result.

30. In relation to the question of whether the tribunal of 26 January 2011 adequately showed that it had applied the test of the interests of justice under rule 31(b), on the assumption that rule 31(a) was satisfied, again I do not wish to express a definite conclusion. There is considerable force in Mr Cooper's criticisms of what was said on the decision notice and the statement of reasons. Any tribunal that does not expressly refer to rule 31 or at least to a test of the interests of justice when it has made a decision after a hearing from which a party was absent has laid itself open to anxious scrutiny. That is both because rule 31 goes to the tribunal's capacity to proceed with a hearing at all and because the discretion under rule 31(b) is a judicial discretion, as emphasised by Judge Lane in JF. Such a discretion must be exercised consciously, with proper regard to the governing test, and the tribunal must show, at least if a statement of reasons is requested, that the relevant factors have been considered and weighed up. That need not be done with any great elaboration (in many cases a few sentences will suffice), but for the reasons given above it must be done in any statement. It would certainly be best practice, and again calculated to avoid subsequent expenditure of time and trouble, for a similar explanation to be recorded on the record of proceedings. There is at least considerable doubt whether the tribunal here did enough to show that it had taken into account relevant factors and had weighed them up with proper regard to the test of the interests of justice.

The father's housing costs and the mother's appeal to the tribunal of 26 January 2011
31. I can now come back to the relevance of the decision of the tribunal of 26 January 2011 on the mother's appeal against the assessments made on 26 May 2010, in which it appears that the main argument being made for the amount of the assessments to be higher was that the father's housing costs were too high. Any question of whether a partner's contribution to housing costs should be taken into account could only be dealt with in a separate application for a departure direction. There is no copy of the tribunal's decision notice on the mother's appeal in the papers before me, but the record of proceedings and some post-decision correspondence between CMEC and the tribunal judge has for some reason got into the papers for the present appeal. The record of proceedings at page 58 shows the CMEC presenting officer saying that it appears not to have asked for a copy of the father's rental agreement and the tribunal judge saying that the rent and the council tax should be verified. Then the memo dated 15 February 2011 from CMEC (page 63) shows that the decision notice had stated that the father's rental liability from 5 February 2010 was to be verified by CMEC obtaining a copy of his rent book or tenancy agreement and using the figure thus obtained. The memo said that the father had been asked for the information on 31 January 2011 (presumably being given 14 days) and had not replied. CMEC asked how the judge wished it to proceed, bearing in mind that if housing costs were altered on the mother's appeal, that might require an amendment of the decision notice on the father's appeal, in its endorsement of assessments of particular amounts. I think that that particular difficulty could have been got over, by interpreting the decision on the father's appeal as being that the amounts of the maintenance assessments should not be below those stated. Be that as it may, the tribunal judge directed on 21 March 2011 (page 61) that, although it would have been desirable for the rental liability to be verified, since there was no evidence to counter what the father had claimed the existing figures should stand. Thus no question would arise of amending the decision notice on the father's appeal.

32. The mother now says, if I have understood it correctly, that she has evidence that the rental liability claimed by the father did not start from the dates that he had put forward. At the oral hearing I said that I could not make any rulings about housing costs in the appeal currently before the Upper Tribunal and that I thought that the mother's remedy was to go back to the child support administration to seek the implementation of the decision of the tribunal of 26 January 2011 on her appeal. In relation to that second point I had forgotten at the time the existence of the tribunal judge's direction of 21 March 2011. In the light of that direction, it is hard to see how CMEC or now the Secretary of State could implement the decision of the tribunal as it stands in any other way than as indicated by the tribunal judge in that direction. That would not though prevent some different approach being adopted to housing costs in the new reduced maintenance assessment that came into effect from 9 July 2010 by virtue of a decision notified on 12 July 2010. The tribunal's decision would not be binding in relation to that or any later assessments. But that leaves a difficult question about what the mother can be permitted to argue on the father's appeal against the maintenance assessments made on 26 May 2010, which is being remitted to a new tribunal for rehearing. In a more usual case, which would have seen merely the father appealing against those assessments and that appeal being remitted by the Upper Tribunal, it would have been open to the mother to argue that the housing costs allowed to the father in the assessments under appeal were higher than his actual liability or had been allowed from wrong dates and to put forward any evidence she had to support that argument. That would be on the basis that the assessment under appeal was made following notification of changes of circumstances (including in housing costs) by the father and that his appeal had raised the issue of the correctness of the calculation of the maintenance assessments, so that the tribunal was entitled to consider the overall correctness of the assessments following on the changes of circumstances notified. However, the existence of the decision of the tribunal of 26 January 2011 on the mother's appeal would seem, so long as it stands, to prevent any new tribunal from coming to a different decision on the father's housing costs in the period covered by the two assessments.

33. It would be improper for me to give anything like advice to the mother about the best way for her to proceed. But, having made a suggestion about a possible remedy for what she sees as wrong in the maintenance assessments under appeal that on reflection is not open to her, I think that I can suggest what might be an alternative, without any prediction as to the likely outcome. She could still, despite the lapse of time, apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the decision of the tribunal of 26 January 2011 on her appeal (ref no 168/10/04845), perhaps based on an inconsistency between the terms of the decision notice and the tribunal judge's direction of 21 March 2011. There is no absolute time limit for an extension of time either for providing a statement of reasons, if necessary, or for applying for permission to appeal. However, the salaried tribunal judge who constitutes the tribunal considering such applications under rule 38 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 is required by rule 39(1) first to consider whether the tribunal's decision should be reviewed under rule 40, which would involve being satisfied that there was an error of law in the decision. If such a review is carried out (after the proper procedure for allowing representations from all parties) the decision of the tribunal reviewed can be set aside and there can be a rehearing of the appeal. There could in that event be a direction for the mother's appeal to be reheard at the same time as the rehearing of the father's appeal that I have directed, which would enable all aspects of the maintenance assessments under challenge to be considered together. But all that would depend on an application being made by the mother, if she still wants to pursue the matter for the period concerned. It would probably also depend on the explanation she could give in that application for not having challenged the decision of the tribunal of 26 January 2011 before and would certainly depend on the independent judgment of the First-tier Tribunal on the issues arising on the application.

Conclusion and directions
34. For the reason given above, the decision of the tribunal of 26 January 2011 must be set aside as involving an error on a point of law. The father's appeal against the maintenance assessments made on 26 May 2010 is accordingly remitted to a First-tier Tribunal for reconsideration in accordance with the following directions.

35. The tribunal judge who constituted the tribunal of 26 January 2011 is not to constitute the new tribunal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any conclusions expressed or findings made by the tribunal of 26 January 2011 when disallowing the father's appeal. The new tribunal is, in accordance with paragraphs 31 to 33 above, directed that it cannot, in the specific appeal that has been remitted, make findings of fact about the father's housing costs in the period covered by the assessments under appeal that are less favourable to him than those embodied in those assessments. Although I have suggested above that the issue of the father's travel costs to and from work may be the only one on which there could potentially be a different outcome than in the assessments under appeal, the new tribunal should consider all the points raised in the father's appeal except to the extent that he indicates that he no longer relies on them. Consideration needs to be given to how the father can present his case and provide relevant evidence about the straight-line distance between his home and his place of work if he does not wish to reveal his address to the mother. The starting point may be to require the Secretary of State to make a fresh written submission explaining the basis for the amounts that had been allowed for housing costs before and after 5 February 2010 and what the explanation is for the reduction, on the assumption that the father is right about the amount previously allowed. The father could then consider what evidence he wished or was able to present, including evidence of more precise measurements than from postcode to postcode. The district tribunal judge who, in the normal way, considers the arrangements for the rehearing is to consider what directions to give about that. That judge will be much more familiar than I am with the requirements of confidentiality at the level of a First-tier Tribunal hearing. I do not need to give any directions of law. The evaluation of all the evidence will be entirely a matter for the judgment of the new tribunal.

(Signed on original): J Mesher
Judge of the Upper Tribunal    
Date:         18 September 2012