Upper Tribunal (Administrative Appeals Chamber), March 18, 2009,  UKUT 53 (AAC)
|Resolution Date:||March 18, 2009|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
 UKUT 53 (AAC)
 UKUT 53 (AAC) (18 March 2009)
Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the Colchester appeal tribunal (held on 13 August 2007 under reference 132/06/00259) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).
The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion section 20(7)(a) of the Child Support Act 1991, any other issues that merit consideration in accordance with Ms Powell's submission at pages 912 to 919.
The District Tribunal Judge will need to consider the composition of the panel that hears this appeal. I notice that a financially qualified panel member sat on 13 August 2007.
Reasons for Decision
This appeal concerns the child support maintenance payable in respect of Adam. The appellant and second respondent are his father and mother or, in the language of the child support legislation, his non-resident parent and parent with care. The first respondent is the Child Maintenance and Enforcement Commission, which has now replaced the Secretary of State as decision-maker.
The case began with an application by the parent with care to vary the maintenance calculation of the non-resident parent's liability for child support maintenance in respect of Adam. The Secretary of State refused the variation and the case came before the appeal tribunal at the behest of the parent with care. The tribunal allowed her appeal and agreed to a variation. I gave the non-resident parent permission to appeal on the ground the tribunal had overlooked regulation 18(3)(d) of the Child Support (Variations) Regulations 2000, which excludes from consideration assets used in the course of a business.
A. The submission by S A Powell
The Commission has made two submissions in this case. The first was by S A Powell (pages 912 to 919). She agreed with the grounds on which I had given permission to appeal and identified other errors in the tribunal's decision. I accept her submission in its entirety. It will provide the First-tier Tribunal with a useful framework within which to conduct the rehearing. The parent with care's representative has commented on the Commission's submission (pages 956 to 959). Those comments will be before the tribunal at the rehearing.
I need only summarise the errors identified by Ms Powell:
· the tribunal used the wrong effective date for the variation;
· it wrongly took account of business assets;
· it overlooked the non-resident parent's income as a director;
· it wrongly calculated the non-resident parent's self-employed earnings;
· it overlooked the non-resident parent's income from property.;
· it failed to investigate the non-resident parent's ownership of shares; and
· it failed to take account of (a) the effect of the...
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