Milton v Secretary of State for Department of Work and Pensions

Permission to appeal from a specialist Child Support Commissioner should be granted with special caution where a statutory two-tier appeal structure can address the issues expertly. An application for a departure direction may be withdrawn by the applicant before referral, but after referral only the Secretary of State may withdraw it under regulation 40. A hearing is not unfair merely because an issue arises near its conclusion, provided the affected party has a proper opportunity to respond. A tribunal may infer continuing undeclared financial benefits from evidence of lifestyle and a known benefit, and may make a reasonable estimate where direct evidence of the amount is unavailable.

Mr Milton sought permission to appeal against a Child Support Commissioner’s dismissal of his appeal from an appeal tribunal. The tribunal had dismissed his challenge to a child-support assessment but allowed his former wife’s application for a departure direction, finding that his lifestyle was inconsistent with his declared income and attributing an additional £33 weekly net income to him.

The Commissioner held that the departure-direction application had not been withdrawn after referral and rejected complaints that the tribunal’s treatment of a rent-free period was procedurally unfair or unsupported by evidence. The central issues were whether the application had been withdrawn, whether the hearing was fair, and whether the tribunal’s findings were legally sustainable.

Permission to appeal was refused unanimously. Lady Justice Smith gave the judgment, with Laws LJ and Latham LJ agreeing.

1. The Court applied the cautious approach described in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734. Where there is a statutory, independent, two-tier appellate structure operating in a specialist field, the Court of Appeal should recognise the expertise of the specialist appellate body when considering permission.
2. Under section 28(D) of the Child Support Act 1991, withdrawal concerns an application before the Secretary of State has considered it under subsection (1), and therefore before referral to the appeal tribunal. The section, and section 28 as a whole, did not provide for withdrawal after referral.
3. Regulation 40 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 governed withdrawal after referral. It permitted the Secretary of State, rather than the applicant, to withdraw the referral. The Commissioner was therefore plainly correct on that issue.
4. The hearing was not unfair. Although the rent-free arrangement was addressed at the end of the hearing, Mr Milton had given evidence about it and had an adequate opportunity to respond. The fact that the issue arose late did not establish procedural unfairness.
5. The tribunal had abundant evidence of the rent-free benefit and was entitled to infer, from that benefit and the wider evidence of lifestyle and undeclared income, that further undeclared financial benefit existed. In the absence of direct evidence of its continuing amount, estimating it by reference to the known £33 weekly benefit was not perverse.

There was no realistic prospect of either proposed ground succeeding before the full court. The order was: application refused.

• Court of Appeal (Civil Division) — On 28 July 2006, in [2006] EWCA Civ 1258, refused permission to appeal.
• Child Support Commissioner — Dismissed Mr Milton’s appeal on points of law, including the alleged withdrawal of the departure-direction application and procedural-fairness complaints.
• Appeal tribunal — Dismissed the appeal against the assessment but allowed the application for a departure direction, treating Mr Milton as having an additional £33 weekly net income.