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Howes (R on the application of) v Child Support Commissioners [2007] EWHC 559 (Admin)

Appeal by father against Child Support Commissioner's refusal to hear an appeal as it was considered out of time. Appeal allowed.

The attempts to make an application to appeal have a long and convoluted chronology as set out in this judgment by Mrs Justice Black. Her conclusion, quashing the Commissioner's decision, was not founded on any specific event but on the Commissioner's failure to take into account the whole of the litigation history. Importantly, the claimant had not been legally advised when he first made an attempt to lodge a notice of appeal.


Neutral Citation Number: [2007] EWHC 559 (Admin)

Case No: CO/292/2006

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28th March 2007

Before :

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Between :

The Queen on the application of Brian Dimon Peter Howes (Claimant)
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Child Support Commissioners (Defendant)
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Secretary of State for Work and Pensions (Interested Party)

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Mr David Burrows, Solicitor Advocate (instructed by David Burrows, Solicitors) for the Claimant
Mr Clive Sheldon (instructed by the Secretary of State for Work and Pensions) for the Interested Party

Hearing date: 20 February 2007
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Approved Judgment

Mrs Justice Black :
1. This application for judicial review by Brian Howes concerns the operation of the child support appeal system. Although the judicial review claim form, which was issued on 11 January 2006, refers to the decision which is challenged as being a decision of a Child Support Commissioner on 2 November 2005, in reality the challenge is to an earlier decision of the Child Support Commissioner on 21 September 2005. In view of the permission granted for the judicial review by Newman J in May 2006 which clearly contemplates an examination of the September decision, it seems to me that no point as to the time limits for the judicial review proceedings can now validly be taken and I have therefore considered the substance of the claim.

2. In 2003, the claimant was assessed as liable to pay £25.90 per week by way of child support in relation to his daughter (M) who was born in 2002. This assessment was made on the basis of him having an income of £228.84 net per week.

3. M's mother made a departure application on the basis that the claimant's lifestyle was inconsistent with the level of income used in the assessment. The departure was refused and M's mother appealed against that although her appeal was then treated as an appeal against the assessment.

4. The claimant's engagement with the appeal tribunal was limited. Ultimately the tribunal said of him, "Mr Howes has responded to directions in part but with the utmost economy." He did not attend the oral directions hearing in April 2004. He did not attend the full hearing in September 2004 though he provided additional evidence to the tribunal for it. A provisional decision was issued and the claimant sought to appeal. That application was treated as an application for a further oral hearing and the case was listed for 25 February 2005. Again the claimant did not attend. The tribunal proceeded in his absence and decided the matter that day, allowing the appeal of M's mother and ordering a recalculation of child support on the basis that the claimant had a net income of nearly £1,900 per week. They arrived at this taking into account profit he had made from property development. The tribunal's decision subsequently resulted in a revised assessment requiring the payment of £158 per week child support.

5. The tribunal provided written reasons with its decision. The reasons are also dated 25 February 2005 but the clerk's endorsement suggests that they were "issued to" the parties on 28 February 2005.

6. By virtue of section 24 Child Support Act 1991, an appeal against the decision of the tribunal can be made to a Child Support Commissioner on a question of law with leave of the chairman of the tribunal or, if that is refused, a Commissioner. The procedure is laid down in the Child Support Commissioners (Procedure) Regulations 1999.

7. Regulation 10(1) provides

" Subject to paragraphs (5) and (7), an application to a chairman for leave to appeal to a Commissioner from a decision of an appeal tribunal shall be made within one month of the date the written statement of the reasons for the decision was sent to the applicant."

8. It is common ground that in these regulations, "one month" means one calendar month. The application for leave to appeal therefore had to be made to the chairman within one month of 28 February 2005 which was the date on which the written reasons were sent to the claimant.

9. Regulation 12 provides

" (1) An application to a chairman or a Commissioner for leave to appeal shall be made by notice in writing, and shall contain–
(a) the name and address of the applicant;
(b) the grounds on which the applicant intends to rely;
(c) if the application is made late, the grounds for seeking late acceptance; and
(d) an address for sending notices and other documents to the applicant.
(2) The notice in paragraph (1) shall have with it copies of–
(a) the decision against which leave to appeal is sought;
(b) if separate, the written statement of the appeal tribunal's reasons for it; and
(c) if it is an application to a Commissioner, the notice of refusal or rejection sent to the applicant by the appeal tribunal."

10. On 21 March 2005 the claimant's accountants wrote to the tribunal indicating that he wished to appeal. I have not seen a copy of that letter but the Commissioner's decision of 21 September 2005 says that it says that he wished to appeal and continues "due to illness there has been a delay in replying in full, but this will follow within the next 21 days." The Commissioner comments that this was not in itself a valid application for leave to appeal because it did not contain the grounds on which the claimant intended to rely.

11. On 22 March 2005 the clerk to the tribunal apparently wrote to the claimant's accountants notifying them that any application received after 27 March 2005 would be treated as late. The Commissioner's decision of 21 September 2005 tells us that on 24 March 2005 the accountants sent a fax to the clerk to the tribunal saying that their letter of 21 March 2005 was an application for leave to appeal. It seems that the clerk was not satisfied that this was correct because he replied by sending a copy of Form OSSC 1 (which is entitled "Application for leave to appeal to a commissioner and notice of appeal") and stating that reasons for the appeal had not been lodged and without reasons there was nothing to put before the chairman. Unfortunately, this communication was sent on 29 March 2005 which was after the expiry of the one month for seeking leave, whichever view one takes of the precise method of calculating that calendar month.

12. On 29 March 2005, the claimant filled in and signed an "Appeal Form". In the box which asks "which decision you are appealing against" he says "maintenance assessment". In the box which asks "the date of the letter telling you about the decision" he says "04/03/05". The form asks, "Why do you think that the decision is wrong? Please give exact reasons.". The claimant has given two reasons:

"1. I disagree with the calculation of my maintenance assessment. The sale of my own home should not be taken as trading profit.
2. By the findings of the tribunal my net income figure changed as of 31-08-02. Therefore arrears of £20,053.44 should be re-calculated."

He indicates that more information is to follow.

13. As directed at the foot of it, the Appeal Form was sent by the claimant to the CSA Appeals Unit where it was received on 31 March 2005. The CSA Appeals Unit forwarded it to the tribunal Appeals Service who received it on 11 April 2005.

14. There was some debate in the hearing before me as to what this Appeal Form was and, in particular, whether it was an attempt by the claimant to appeal/seek leave to appeal the tribunal's decision of 25 February 2005 or an appeal against the Secretary of State's decision reassessing his child support which it appears was taken extremely promptly following the tribunal's decision. I was told that the claimant was informed of the revised assessment on 3 March 2005. The Appeal Form gives "the date of the letter telling you about the decision" as 4 March 2005 which I suppose might actually be the date on which the 3 March 2005 communication was received by the claimant; I was not told of any other decision letter that was sent to the claimant at around this time to which he might have been referring. It is not surprising that in these circumstances the Commissioner assumed that the Appeal Form related to the revised child support assessment. He said of it, "In my judgment that was not strictly an application for leave to appeal against the Tribunal's decision.". In contrast, the CSA Appeals Unit did not appear to view things in the same way. I asked on what basis they forwarded the Appeal Form to the tribunal Appeals Service and, after enquiries were made, I was told that the procedure adopted showed that it had been forwarded because it was seen as associated with the proposed appeal against the 25 February 2005 tribunal decision. If it had been sent on for determination as an appeal against the Secretary of State's decision in relation to the revised assessment, the CSA Appeals Unit would have prepared certain paperwork to accompany it to the Appeals Service and they did not do this. In these circumstances, it is not surprising that the Secretary of State conceded in argument before me that the claimant may in fact have thought by this stage that in order to appeal the tribunal decision he had to appeal the Secretary of State's decision. If those whose day to day job is working with the child support rules and regulations were confused, how much greater might be the affliction of a would-be appellant.

15. The Commissioner, in what is a very careful and detailed procedural history, records that on 11 April 2005 the clerk (presumably of the tribunal) wrote to the claimant notifying him of receipt of the Appeal Form and asking him to clarify what action he sought, stating that any application for leave to appeal would now be considered late.

16. Meanwhile, the claimant had consulted Mr Burrows, the solicitor who represented him in front of me. Mr Burrows had seen him on 7 April 2005 although, judging by the terms of the letter that Mr Burrows wrote to the clerk to the tribunal on 11 April 2005, the claimant had consulted him rather sooner than that and had had to wait for an appointment. Mr Burrows' first line of attack was to ask for the tribunal chairman to set aside her decision of 25 February 2005 on the basis that the claimant was not present at the hearing. He indicates in the letter that the claimant had been advised by an accountant who apparently suggested to the claimant that attendance was not necessary. The second line of attack was to pursue an appeal. The letter reads,

"Assuming the appeal must go ahead we understand that Mr Howes so far has done an extremely brief notice. He believes it was in time. Perhaps you could confirm whether or not that is the case."

It goes on to list a number of points of law "mostly in connection with the Tribunal's treatment of self-employed income and "development profits"" which would be raised by way of appeal. It requests that if the chairman were to decide not to set aside the original decision, three more weeks from then should be allowed "to enable properly formulated grounds of appeal" to be provided.

17. Mr Burrows complained in the 11 April 2005 letter about the fact that decisions of the Commissioners to which the tribunal had referred were not readily available "on conventional sources" which was holding up his research. He raised this point again in front of me. However, my own researches suggested that at least some of the decisions were probably available from the Tribunals Service website although my understanding of the system was imperfect and I did not check for each decision to which reference was made in the tribunal decision.

18. On 12 April 2005, the clerk to the tribunal replied to Mr Burrows. He indicated that he could not act on Mr Burrows' request unless the claimant formally authorised Mr Burrows to act on his behalf. He also informed Mr Burrows that the claimant "has not currently made a specific application to The Appeals Service, however his representative, not yourselves, have informed us that they are in the process of submitting an application for leave to appeal to the Commissioners."

19. Mr Burrows duly forwarded the authority to act on 6 May 2005. He referred to the Appeal Form dated 29 March 2005. He concluded, "You have our predecessors' letters of 11 March 2005 and their fax of 24 March 2005. We hope you can treat this as indication of Mr Howes's intention to appeal (if this turns out not to be a set aside issue)."

20. On 9 May 2005, the clerk to the tribunal replied to Mr Burrows, dealing with his letters of 11 April and 6 May 2005. This letter reads:

"….Mr Howes's 'brief notice' was received late by the CSA and The Appeals Service, notwithstanding this, as late applications may be considered, Mr Howes was invited to explain what application he sought and to provide as he stated 'more information to follow'; however he made no further contact.

Mr Howes was also informed that his representative at that time, [sic] had already notified The Appeal Service that they intended to lodge an application for leave to appeal, despite having written to them, no documents forming such an application has [sic] been forthcoming…."

It concludes that the case file had been sent to the Chairman to consider the request that she set aside her decision.

21. This letter from the clerk is interesting in that it appears (from the way she treats the "brief notice") that she, like the CSA Appeals Unit, was viewing the Appeal Form of 29 March 2005 as a notice of appeal against the tribunal's decision of 25 February 2005 and not as an appeal against the Secretary of State's revised assessment decision. This part of the history is recorded by the Commissioner in his September 2005 decision in this way:

"On 9 May the Clerk replied saying that the file had been sent to the Chairman to consider the set aside request. It was further made clear that no documents constituting an application for leave to appeal had been received from Mr H's previous representative."

22. On 12 May 2005, the clerk to the tribunal wrote to inform Mr Burrows that the application to set aside the decision of 25 February 2005 was "outside the one month time limit" and had not been accepted by the chairman.

23. On 1 June 2005, Mr Burrows replied. His letter reveals a confusion which I too felt when I read the 12 May 2005 letter. Mr Burrows seemed unclear as to whether the chairman had dealt with his request as an application to set aside her earlier decision or an application for leave to appeal. The clerk's mention in the letter of 12 May 2005 of a one month time limit and the information that "I asked the chairman to consider if there were special reasons for the delay that would let him [sic] accept the application even though it was late" bring to mind an application under regulation 10 for leave to appeal rather than an application to set aside but the letter speaks of an application to set aside. Mr Burrows appears to have settled on the clerk's letter being an indication that the chairman had refused leave to appeal out of time but he was also proposing to work on the assumption the application to set aside was being refused too.

24. On 3 June 2005 the clerk wrote again to Mr Burrows explaining that the letter of 12 May 2005 had in fact conveyed a decision to refuse the application to set aside the 25 February 2005 decision and the Appeals Service were of the view that no formal application for leave to appeal had actually been received.

25. It might not be unfair to say that by this stage, arguments were becoming rather circular and confusing. Looking at the situation in purely lay terms, an indication had been given as early as 21 March 2005 of the claimant's wish to appeal and on 29 March 2005, the claimant (not yet assisted by a lawyer) had signed and sent off a notice of appeal, received by the Appeals Service on 11 April 2005, which had been treated by some at least as a notice of appeal against the 25 February 2005 decision and which included an indication, albeit skeletal, of what would be a major plank of any appeal he were to be allowed to launch i.e. the argument that the profit on the sale of his house should not be treated as trading profit. April and May went by with everyone bogged down in a procedural quagmire, possibly not assisted by the claimant himself who may have continued to be less than helpful in that he had not provided the extra information he had indicated would follow his Appeal Notice. June disappeared, possibly awaiting action from a rather busy Mr Burrows, though I am not sure about this.

26. There is then a document entitled "Notice of Appeal" dated 12 July 2005 seeking permission to appeal the 25 February 2005 decision. For the first time, it fully sets out the proposed grounds of appeal. It was sent to the clerk to the tribunal on 13 July 2005 with a letter from Mr Burrows. That letter suggested that the Appeal Notice dated 29 March 2005 was a valid request for leave to appeal and (a point which Mr Burrows concedes now was wrong) was in fact in time. It requested that if this was not accepted, time should be extended for consideration of the appeal. It says, "…given the confusion over documents, these might be said to be 'special reasons' (reg 10(5))".

27. Regulation 10(5) is as follows

"(5) Where an applicant has not applied for leave to appeal within one month in accordance with paragraph (1), but makes an application within one year beginning on the day the one month ends, the chairman may for special reasons accept the late application."

28. The chairman refused to accept that any application had been made within the one month time limit set by regulation 10(1) and refused to accept the late application in accordance with regulation 10(5). Her decision is dated 21 July 2005. She treated the letter from the claimant's accountants of 21 March 2005 as an application for leave to appeal but one which was defective because it did not contain grounds so she rejected that. She treated the 29 March 2005 Appeal Notice as an "attempt at an application for leave to appeal" but, rightly, said it was late. She treated the 11 April 2005 letter from Mr Burrows as an application for leave to appeal but noted that it did not include a request for an extension of time. She records receipt of the Grounds of Appeal in July 2005 with an application for the extension of time but implicitly refuses to accept that there were special reasons for accepting a late application for leave to appeal and concluded "I refuse to extend time.".

29. The next documents in the sequence are a Notice of Appeal seeking permission to appeal to the Commissioner, dated 22 August 2005, and a completed Form OSSC 1 of the same date. I referred to OSSC 1 earlier. It is the form for an application for leave to appeal to a commissioner and notice of appeal. I think Mr Burrows would concede that it has not been filled in correctly and, in particular, Section F should have been completed. However, the intention was clear, the Commissioner did not take any point about it, and nothing turns on it here.

30. The Commissioner's decision is dated 21 September 2005. His powers arose under regulation 11 of the 1999 regulations. That provides:

"(1) An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.
(2) Subject to paragraph (3) an application to a Commissioner shall be made within one month of the date that notice of the refusal or rejection was sent to the applicant by the appeal tribunal.
(3) A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.
(4) In paragraph (3) the final date means the end of a period of 13 months from the date on which the decision of the appeal tribunal or, if later, any separate statement of the reasons for it, was sent to the applicant by the appeal tribunal."

31. The Commissioner's reasons concentrate upon the matters that arise in connection with regulation 11(3). He decided:

"The applications to the chairman were made late and not accepted. I also do not accept the applications as I consider that there are no special reasons for doing so."

32. The claimant challenges this decision as unreasonable. The essence of his argument is that the Commissioner failed to take into account all the material factors in exercising his discretion and/or failed to give appropriate weight to them.

33. The Commissioner summarises the factors that he took into account in arriving at his decision in a relatively short passage in Section B at the end of his Reasons, following his detailed recital of the procedural history in Section A. Section B reads:

"B. I consider that there are no special reasons for exercising the power in reg. 9(3) of the Social Security Commissioners (Procedure) Regulations 1999 to accept either of the applications for leave to appeal notwithstanding that leave from the chairman was not sought within the required time.

As regards the application in respect of the Tribunal's decision directing that the child support maintenance be recalculated, in my judgment there was no application to the chairman for leave to appeal in a form which could have been put before the chairman for decision until receipt by the Appeals Service of the letter of 13 July 2005. That was nearly 4½ months after the Statement of Reasons had been issued – i.e. nearly 3½ months late. Even taking into account the change of representatives, the application to set aside, and the fact that the case was of some complexity, I do not think that delay of anything like that length of time was justified. It is plainly of particular importance in child support cases (where, unlike the position in social security appeals, persons other than the proposed appellant and the Secretary of State are affected) that time limits be adhered to. I do not overlook that substantially increased amounts of child support maintenance are payable in consequence of the Tribunal's decision, or that an appeal might have had some merit: I have some doubts whether the Tribunal correctly applied the provisions of paras. 2A to 5A of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992."

34. The regulations to which the Commissioner referred were the wrong regulations but he corrected that in his decision of 2 November 2005 (refusing to set aside the 21 September decision) and, as the terms of the two sets of regulations are the same, it does not matter.

35. Mr Burrows attacked the Commissioner's consideration of the question of special reasons as cursory. He submits that the Commissioner concentrated only on the chronology and determined the matter solely on the basis that time limits must be adhered to. I do not consider this to be fair to the Commissioner. It is true that he did not dwell on other factors but he did identify them as follows:

36. I agree with the Secretary of State that Part B of the Reasons cannot be read in isolation from the fairly detailed procedural history which the Commissioner narrated in Part A which amplifies some of the points listed in Part B. From it, one can learn, for example, what the Commissioner means by his reference to the change of representatives and the application to set aside.

37. Mr Burrows submits that guidance is required as to the considerations that should be taken into account in deciding whether there are special reasons for accepting a late application. He argues that in the absence of identified factors, there is unacceptable uncertainty. He advocates the use of a checklist and proposes that the approach in CPR 3.9 should be adopted and, by implication, invites me to evaluate the sufficiency of the Commissioner's approach to his task by reference to CPR 3.9.

38. CPR 3.9 provides:

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence

39. Mr Burrows does not produce any authority for importing the CPR 3.9 approach or even simply the checklist in CPR 3.9(1) into the Child Support Commissioners (Procedure) Regulations 1999. I note that in the case of Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 upon which he relies as a useful explanation of the operation in practice of CPR 3.9, the Court of Appeal referred back to the earlier case of Audergon v La Baguette [2002] EWCA Civ 10 in which it had deplored the creation of judge-made check-lists which it considered an approach which carried the inherent "danger that a body of satellite authority may be built up…leading in effect to the rewriting of the relevant rule through the medium of judicial decision". It seems to me that that danger potentially exists as much when one imports a checklist from one set of rules to another as when one invents one's own checklist. There was no reason why the Child Support Commissioner (Procedure) Regulations could not have contained an equivalent provision to CPR 3.9 or a checklist of some sort for the use of Commissioners considering the issue of special reasons if that had been thought appropriate. No doubt the sort of matters to which reference is made in CPR 3.9(1) may quite often also be relevant in cases considered by Commissioners under regulation 11(3) but I do not think it appropriate to impose upon Commissioners an obligation to refer to CPR 3.9(1). The concept of special reasons is a broad and flexible one and the factors that are relevant will be dependent upon the circumstances of the individual case.

40. The difficulty with the Commissioner's decision is not therefore, in my view, that he concentrated on the question of delay to the exclusion of other relevant factors. The problem as I see it is that his analysis of that delay omitted from it material considerations which it was incumbent on him to put into the balance when determining how to exercise his discretion.

41. He concluded from the procedural chronology that the request for leave was first made to the tribunal 3½ months out of time and it was that period of time which he took into account when considering whether the delay on the part of the claimant was justified and arriving at his view that the importance of time limits was sufficient to outweigh other considerations. In so doing, he failed to take a proper view of events as a whole. In particular, his analysis failed to take account of the attempts that the claimant, who was not then acting through lawyers, had made to indicate that he wished to appeal, firstly by his accountant's letter which, albeit defective, was sent within the one month allowed for an application for leave and, more significantly, by his Notice of Appeal of 29 March 2005. It seems to me likely that the Commissioner's legal analysis was correct when he treated this as an appeal against the Secretary of State's decision by way of reassessment and not as an application for leave to appeal the Tribunal's 25 February 2005 decision but he should, in my view, have recognised that it was very possible that the claimant thought that by filing it, he was progressing his appeal from the Tribunal. As I have already recorded, it is now known, as a result of the research done during the course of the hearing in front of me, that that is how the CSA Appeals Unit treated the Notice. I appreciate that the form was still deficient in that it was one day out of time and it did not actually seek leave to appeal but it has to be recalled that the claimant still had no lawyer acting for him at that time. In my judgment it was incumbent on the Commissioner at least to consider these earlier attempts by the claimant to appeal so that he could take a proper view of the nature and degree of the delay he was being asked to override and how it weighted in the scales with the other factors and not least the weighty fact that this was an appeal that he himself thought might have merit. His omission of these early appeal attempts from his consideration means that he was unable to carry out the balancing exercise correctly and his decision was therefore irrational. Plainly, there will be cases in which, quite properly, failure to adhere to time limits will lead to a claimant being unable to pursue a meritorious appeal and therefore potentially suffering a very significant financial loss but that decision can only be taken with the full circumstances in mind.

42. It follows that the Commissioner's decision must be quashed. I have it in mind simply to send the matter back for further consideration by a Commissioner but I am prepared to entertain further submissions about this when this judgment is handed down if it is proposed that I should take a different course. If the advocates are able to agree an order, I am happy to dispense with attendance when the judgment is handed down provided that a copy of the proposed order signed by both sides is supplied in good time before the date and I approve its contents.