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

Where a party in child support proceedings may be deterred from attending a hearing by a non-fanciful fear of intimidation, the First-tier Tribunal must address that issue when deciding whether to proceed in the party’s absence. Under the overriding objective and Rule 31, it must consider whether proceeding is in the interests of justice and whether proportionate case-management measures could secure each party a reasonable opportunity to participate without intimidation.

A tribunal need not determine the truth of the allegations by a separate trial. It must nevertheless consider practical measures, including remote participation, security, physical separation and managed arrival and departure arrangements. Failure to consider those matters, or to explain why proceeding in absence was fair, may be an error of law.

The non-resident parent appealed to the First-tier Tribunal against a child-support maintenance calculation. He relied on a contact order and asserted that he had overnight care of the children. The parent with care disputed the actual arrangements and told the Tribunal that fear arising from the former relationship and alleged intimidation prevented her from attending the hearing.

The First-tier Tribunal proceeded in her absence, accepted the non-resident parent’s evidence and allowed his appeal. It did not explain why proceeding without her was in the interests of justice or consider adjustments that might have enabled her participation. She appealed to the Upper Tribunal, which considered the proper exercise of the First-tier Tribunal’s case-management powers where a parent fears intimidation.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for error of law and the child-support appeal was remitted to a differently constituted First-tier Tribunal for an oral rehearing.

2. Rule 31 permitted the First-tier Tribunal to proceed in a party’s absence only if it considered that doing so was in the interests of justice. That assessment had to be made consistently with the overriding objective in Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, including the duty, so far as practicable, to enable full participation.

3. The First-tier Tribunal gave no express consideration to Rule 31 and no adequate reason for proceeding despite evidence that the absent parent might have stayed away through fear of intimidation. Its acceptance of the attending parent’s evidence made the omission material. It also failed to consider case-management arrangements that could have afforded both parties a reasonable opportunity to attend and present their cases.

4. The entitlement to attend under Rule 28 is an entitlement to attend without intimidation. In child-support proceedings, the determination engages civil rights and must be compatible with the fair-hearing and equality-of-arms requirements of Article 6(1). The Tribunal must consider whether the circumstances call for measures under the sensitive-witness Practice Direction.

5. No fixed blueprint applies. The Tribunal need not conduct a mini-trial into the truth of intimidation allegations. If the concern is not fanciful, it must consider suitable arrangements, which may include telephone or video participation, security, physical separation, screens, and managed waiting, entrance and departure arrangements.

The rehearing was directed to take place before a judge who had not decided the original appeal. The parent with care was directed to identify measures that would enable her attendance.

• Upper Tribunal (Administrative Appeals Chamber): allowed the parent with care’s appeal, set aside the First-tier Tribunal’s decision under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a), and remitted the case for rehearing under section 12(2)(b).
• First-tier Tribunal: on 14 April 2015, allowed the non-resident parent’s appeal concerning child-support maintenance and found shared care at one night per week for all three children.