Child maintenance appeals
Section 4 of the Child Support Act 1991 (the Act) enables individuals with the care of any qualifying child or a non-resident parent, to apply for a maintenance assessment with respect to that child. Since 2012, such applications have been dealt with by the Child Maintenance Service (CMS). This article discusses the procedure of appealing a CMS assessment to the social entitlement chamber of the First-Tier Tribunal under section 20 of the Act.
Persons with care or non-resident parents can challenge the majority of CMS decisions on grounds of fact or law. Section 20 of the Act lists the decisions which may be appealed:
- maintenance calculations pursuant to section 11 of the Act (whether as originally made or as revised pursuant to section 16)
- default or interim calculations made pursuant to section 12 of the Act (whether as originally made or as revised pursuant to section 16)
- supersession decisions pursuant to section 17 of the Act (whether as originally made or as revised pursuant to section 16)
- decisions not to make maintenance calculations pursuant to section section 11 of the Act
- decisions not to make a supersession
- the imposition of a requirement to make penalty payments or their amount
Prior to issuing an appeal a ‘mandatory reconsideration’ must be sought – a request for a revision of the decision within 30 days of its receipt. If an appeal is made without this request, the appeal will be treated as a request for mandatory reconsideration.
If the party is not satisfied with the reconsideration, they may apply for an appeal to the First-Tier Tribunal and a copy of the mandatory reconsideration notice must be sent with the notice of appeal.
The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 establish the necessary procedure. Namely, effect must be given to the overriding objective, cases must be dealt with fairly and justly, and all parties must aid the Tribunal in furthering the objective and cooperate.
Applications for appeal are made by completing a SSCS2 Form. The form requires information concerning:
- the parties to the appeal
- any representative instructed
- any reasons for delay in issuing the appeal
- reasons why an appeal is sought
- the type of hearing sought
Appeals must be received by the First-Tier Tribunal within one calendar month of the date on which the mandatory reconsideration notice was sent to the appellant (rule 22 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008).
Requests can be made for this time limit to be extended up to one year after the expiration of the last date for appealing via the SSCS2 Form. Reasons for delay must be provided. Any objections from the CMS and other party to extending the time limit will be welcomed before the Tribunal decides whether to admit the appeal.
Once appeals have been admitted, HMCTS will provide formal acknowledgment and notice will be given to the CMS and the other party. The CMS must respond to the appeal within 42 days of receiving the notice of appeal and this response will be provided to all the parties and the Tribunal. The response should attach a copy of any written record of the decision being challenged and copies of all CMS documents which are relevant to the case. The appellant and any other party are provided the opportunity to make written submissions and supply further documentation in reply to the CMS response.
There are no stringent rules regarding what/when evidence may be disclosed for the hearing. HMCTS guidance states that:
- documents can be provided to support an appeal, these should be sent to the Tribunal as early as possible. Producing documentation at the last moment may result in the Tribunal adjourning the hearing
- witnesses can be called at the hearing (although the Tribunal has no power to force someone to attend)
- if posting documents to the Tribunal, a cover sheet setting out the 16-digit reference number provided must be used
- as a general rule, the DWP and other parties are entitled to see documents sent in as evidence
If the appellant opts not to take part in the hearing, they will be advised to send any further evidence in support of their appeal within 28 days of being informed that the CMS have sent their response.
Practice Direction 12G of the Family Procedure Rules allows a party to communicate information relating to proceedings held in private to the First-Tier Tribunal dealing with an appeal made under section 20 of the Child Support Act 1991. This means that information concerning previous Children Act proceedings, although held in private, may be disclosed in support of an appeal.
Usually a hearing will be listed to determine the appeal, unless the appeal has been struck out or each party has consented to proceed without a hearing and the Tribunal considers this to be appropriate. Hearings are held in public unless the Tribunal directs otherwise.
Case management powers
The Tribunal has the power to:
- direct the production of documents, information, evidence or submissions
- exclude evidence
- strike out an appeal
- determine that an issue should be dealt with primarily before the appeal proceeds
- summon witnesses to attend the Tribunal to give evidence and/or produce documents
- prohibit disclosure or publication of certain documents or information likely to cause the public to identify individuals who the Tribunal considers should not be identified
Determining the appeal
In making its decision, the Tribunal cannot consider any issue not raised by the appeal, which means an issue raised by one of the parties before or at the hearing. The Tribunal may raise issues itself if it is in the public interest to do so. According to section 20(7)(a) of the Act, the Tribunal must not take into account any circumstances which were not obtained when the CMS made its decision. This means that the Tribunal cannot consider changes of circumstances after the date of decision, however it can consider evidence created after the decision if it relates to circumstances during the relevant period.
The First-Tier Tribunal may allow or refuse the appeal. If the Tribunal allows the appeal, they can either make their own decision or remit the case back to the CMS with directions. If they remit the matter, the substitute decision is still considered to be one made by the Tribunal. This has the effect that an appeal against a decision made on an appeal to the First-Tier Tribunal, whether made by the Tribunal themselves or upon remission by the CMS, lies only to the Upper Tribunal.
The Tribunal has no powers as to costs but may dispose of proceedings by way of a consent order if it considers it appropriate. Decisions may be given orally at the hearing but a written decision notice should be issued as soon as reasonably practicable after the hearing. This notice should include details of any right to appeal and the time limit for doing so.
An application may be made for permission to appeal to the Upper Tribunal if it is alleged that the First-Tier Tribunal erred in law. Such applications may be made within one month of the latest date on which the First-Tier Tribunal sends to the person making the application the relevant decision notice, a notification of amended reasons or a notification that an application for the decision to be set aside has been unsuccessful. The First-Tier Tribunal may review its own decision if it is satisfied there has been an error or law, clerical mistakes or other accidental slips. Further, the Tribunal can set aside its own decision where it is in the interests of justice to do so and the necessary conditions are satisfied.