PS v Secretary of State for Work and Pensions & Anor (CSM)

A tribunal errs in law where it fails to consider relevant evidence bearing directly on a central factual issue, or fails to explain how that evidence is consistent with its contrary finding. Where the effective date of a child-support assessment depends on the date a maintenance enquiry form was sent, the evidence concerning sending and the recipient’s address must be properly assessed under the applicable regulations.

A legitimate expectation cannot require the Secretary of State to act inconsistently with statutory duties to determine child-support applications. Nor can delay, even if it engages Article 6(1) of the ECHR, entitle a tribunal to allow an appeal regardless of its merits where the tribunal has no power to compensate and remains required to determine the statutory appeal.

The father applied for child support maintenance in respect of Ryan. In 2013 the Secretary of State decided that the mother was liable for maintenance from 9 July 2001 to September 2012. The First-tier Tribunal allowed the mother’s appeal in part. It found that the case had properly been closed in 2007 and could be reopened only from February 2010.

The father appealed. He contended that the tribunal had overlooked records showing that the Child Support Agency had issued a maintenance enquiry form to the mother at a confident address on 9 July 2001. The mother advanced arguments based on regularity, legitimate expectation, Convention rights and the purposes of the statutory scheme.

The central issue was whether the tribunal had lawfully addressed the evidence relevant to the effective date and history of the father’s application.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law and was set aside. The appeal was remitted for a complete rehearing before a differently constituted First-tier Tribunal.

2. The tribunal failed to consider, or to explain its treatment of, records at pages 62 and 100 of the bundle. Those records were plainly relevant to the critical issue whether a maintenance enquiry form had been sent to the mother on 9 July 2001. Its finding that no such form had been issued could not rationally stand without engaging with that evidence: [33], [36].

3. Under regulation 30(2)(a) of the Child Support (Maintenance Assessment Procedures) Regulations 1992, where no assessment is in force, the effective date is generally the date on which a maintenance enquiry form is given or sent to the absent parent. If the form was posted to the mother at her then address on 9 July 2001, that date would prima facie fix the effective date: [34]-[35].

4. The presumption that public officials act regularly did not cure the tribunal’s error. It had not investigated all the relevant surrounding evidence or identified the statutory basis on which the father’s application could have been “closed”: [41]-[45].

5. The mother could not rely on legitimate expectation to prevent lawful adjudication of the father’s application. Any expectation requiring the Secretary of State to disregard statutory duties, revision, supersession or appeal machinery would be unlawful: [47]-[58].

6. The Article 1 Protocol 1 argument was bound to fail. Child-support liability under the Child Support Act 1991 did not fall within its ambit: [59]-[60]. Delay could not cause the tribunal to decide the appeal in a party’s favour regardless of the statutory merits: [70]-[72].

7. The new tribunal was directed to make detailed findings about all relevant applications and supervening events, supported by a comprehensive chronology and legal submission from the Secretary of State. It should avoid describing a case as “closed” unless that term has a proper statutory basis: [38]-[39].

• Upper Tribunal (Administrative Appeals Chamber): Allowed the father’s appeal, set aside the First-tier Tribunal’s decision for material legal error, and remitted the case for a fresh oral hearing.
• First-tier Tribunal, Liverpool: On 22 July 2014, allowed the mother’s appeal in part. It treated the father’s case as properly closed in 2007 and reopened it only from February 2010.