[2006] UKSSCSC CSCS_6_2006 (22 June 2006) 

DECISION OF CHILD SUPPORT COMMISSIONER

Decision

1.	The decision of the Inverness appeal tribunal (the tribunal) held on 16 September 2005 is wrong in point of law.  Accordingly, I set it aside.  Acting under s.24(3)(a) of the Child Support Act 1991 (as amended), I substitute my own decision which is the one which I consider that the tribunal ought to have made.

2.	My substituted decision is that the decision of a decision maker (DM) on behalf of  the Secretary of State dated 31 January 2005 which ceased the appellant’s child support has not been demonstrated as correct by the Secretary of State and is therefore set aside.  The former determination on liability is restored.

Background

3.	The appellant to the Commissioner, as she was to the tribunal, is the parent with care and mother of the qualifying child and the second respondent is the non-resident parent and the child’s father.  (The DM’s submission is poorly prepared and variously refers to one child or two; however, I suspect that the other child has a different parent with care.)  I shall from now on call them the mother and father respectively.

4.	The facts as put to the tribunal, which no-one has disputed, are the following.  On 22 October 2004, a decision was made that the father was liable to pay child support maintenance in respect of the child.  On or around 7 January 2005, a DM was told that the father was moving to Australia on 31 January 2005 and would be working for and paid by an Australian employer.  This information appears to have been supplied by the father in a phone call.  It would seem that the father was going to work for the Australian branch of the same company for which he had worked in Great Britain and that the employer in Great Britain notified the Child Support Agency (CSA) that a deduction from earnings order could no longer be made in his case.  By decision dated 31 January 2005, a DM decided that “case to be closed” because of the above.

5.	The mother appealed to the tribunal and elected to have the case heard on the papers, to which no-one else objected.  The tribunal upheld the decision “… to cancel a maintenance assessment effective from 25.01.2005”.

6.	The tribunal reasoned thus:

	“The appellant confirmed in her letter of appeal that the NRP had left the UK to work in Australia.  His company confirmed that he would be paid in Australia and there was no evidence before the tribunal of a continuing connection with the UK.  The evidence did not suggest that the NRP was seconded by the UK company to work overseas but he had moved to work for the company based in Australia and that he would live, work and be paid there.

	Habitual residence in the UK is established after an appreciable period of residence in the UK.  The evidence suggested that the NRP no longer lived or had a connection with the UK.  There was no evidence of him having a settled and viable pattern of living in the UK.  There was no evidence that the NRP’s earnings would be subject to UK tax.  Although the appellant believed that the NRP would return to the UK, there was no evidence to suggest how long he intended to remain in Australia or when he was likely to return, if at all.

	The tribunal decided based on this evidence that the NRP was no longer subject to the jurisdiction of the Secretary of State for child support maintenance and that the decision to cancel the maintenance assessment was correct.”

Appeal to the Commissioner

7.	In her letter of appeal to the tribunal, the mother stated that the father had “gone on a working visa which only lasts a while so he intends to return to this country”.  She further commented, “this is only a temporary move and he will be returning”.

8.	In the grounds of her appeal to the Commissioner, the mother says that the father has been working throughout with the same British company and that he left Australia after five months and then “moved to Spain with the same company and worked out of Dubai and Britain”.  The application to appeal was refused by the legally qualified panel member who constituted the tribunal, on the basis that no error of law had been identified but rather facts stated which are after the date of the decision against which appeal was taken to the tribunal.

9.	I granted leave and the appeal is supported by the Secretary of State, who does not request an oral hearing (and neither have the other parties); the Secretary of State further suggests that it is unlikely that the case will need to be remitted to another tribunal.  The mother had no comment to make on the Secretary of State’s submission and the father did not reply.  I agree with the Secretary of State’s support; the mother has been poorly served by the adjudication so far.

My conclusion and reasons

Incorrect approach to supersession

10.	Section 44 of the Child Support Act 1991 (the Act) provides as follows:

“(1)	The Secretary of State shall have jurisdiction to make a maintenance calculation with respect to a person …. only if that person is habitually resident in the United Kingdom except in the case of a non-resident parent who falls within sub-section (2A).
…
(2A)	A non-resident parent falls within this subsection if he is not habitually resident in the United Kingdom, but is – 
…
(c)	employed by a company of a prescribed description registered under the Companies Act 1985 in England and Wales or in Scotland …”.

11.	Then regulation 7B(18) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, (the regulations) reads:

	“Where a superseding decision is made … and the relevant circumstance is that the non-resident parent … has moved out of the jurisdiction, the decision shall take effect from the first day of the maintenance period in which the non-resident parent … leaves the jurisdiction and jurisdiction is within the meaning of section 44 of the  [Act]”.

12.	What is in issue in the present case is not a new application but a supersession of an existing maintenance calculation; the onus therefore lies on the father to make it out.  The tribunal pays no overt regard to this or to the fact that it could not take account of circumstances beyond the date of the decision under appeal except to the extent that such circumstances reflected the position at the relevant date.  That date was the same date, the tribunal found, as the one on which the father left the United Kingdom to work in Australia. 

13.	The language of the tribunal, for example, “the evidence suggested that the NRP no longer lived or had a connection with the UK” or “there was no evidence of him having a settled and viable pattern of living in the UK”, strongly indicates that the tribunal proceeded on the premise that it was for the mother to establish the DM’s jurisdiction; rather, however, it was for the father to establish that the Secretary of State no longer had jurisdiction.

14.	Because of the investigative role of a tribunal, where the onus lies is usually immaterial.  A tribunal must consider all material which has a bearing on the relevant issue, in this appeal the father’s habitual residence, and then determine that point on a preponderance of probabilities.  However, this pre-supposes that there is some prima facie support for the proposition that the father is not habitually resident in the jurisdiction.  In the present case, having regard to the paucity of evidence in that respect, the tribunal’s finding on habitual residence was perverse.

Retained habitual residence

15.	The tribunal wrongly concentrates on when habitual residence in the United Kingdom could be established.  In the context of a person newly arrived in this country and when there is then possible entitlement to social security benefits, the Court of Appeal in the Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65 at paragraph 28 confirmed the test as being whether:

	“… he or she has genuinely adopted this country as his or her normal place of residence.”

Thus, in terms of acquiring habitual residence, the constituent requirements are both an appreciable period of actual residence, and the genuine intention to settle here.

16.	But the present case it is entirely different.  Firstly, the context is the child support legislation and not a claim for a social security benefit and, secondly, the father undeniably had habitual residence in this country up to the day he left so that the focus is therefore the quite different one of whether and when he has lost it.
17.	As Mr Commissioner Rice said at paragraph 9 of R(CS) 5/96:

	“The context of the case I have to consider is different.  As I understand it, the purpose underlying the child support legislation is the social need to require absent parents to maintain, or contribute to the maintenance of, their children.  In determining as question of fact whether in the above context a person has ceased to be habitually resident in this country, it appears to me that emphasis should be put on factors directed to establishing the nature and degree of his past and continuing connection with this country and his intentions as to the future, albeit the original reason for his move abroad, and the nature of any work being undertaken there are also material.  It is not enough merely to look at the length and continuity of the actual residence abroad.” (original emphasis)

18.	In the present case, as circumstances may not be taken beyond the date of the decision under appeal, which is the date when the father moved to Australia, the issue is whether on that date he ceased to be habitually resident.  He has two children here, the qualifying child born only in 1997; on this basis alone, it is an extraordinary statement by the tribunal that “[t]he evidence suggested that the non-resident parent no longer … had a connection with the UK”.  In his new work he was to be paid by an Australian employer.  There is no information on his tax status although the tribunal made assumptions about it.  Tax status more usually depends on residence (having a home here and not being just a short stay visitor), rather than on habitual residence, so that a liability for tax is not usually helpful on the latter point. However, as accepted by an extra division of the Inner House of the Court of Session on 25 March 2004, in the application for leave to appeal by L.A. v (first) the Secretary of State for Work and Pensions and (second) T.V.I., if there is no change in a person’s employment or in the basis of his liability for tax and for national insurance contributions, this may be an indicator of stability; which then suggests that there has been no change in the habitual residence of one who unquestionably had habitual residence in the United Kingdom where the issue has become whether he has lost or abandoned that by the relevant date.

19.	Nevertheless, the above case also underscores that in the United Kingdom the basic rule is that even a non-resident is liable to pay tax in the United Kingdom on earnings from employment within the United Kingdom.  (The father there worked for a German company in the British sector of the Continental Shelf.)  The same may well apply in Australia so that payment of tax in that country on his earnings from work there carries little weight in an assessment of whether such a tax payer ceased to be habitually resident in the country he has just left.

20.	In determining whether a person has ceased to be habitually resident, one must consider the circumstances of their departure and what followed it in order to determine whether it can be inferred that there is no longer the necessary intention to regard the United Kingdom as a home (it does not have to be the only such place); the period abroad may become of such a degree and nature that it is incompatible with a continuing habitual residence in the United Kingdom.  The relevant factors were set out by Mr Commissioner Rice in R(CS) 5/96 in the passage I have already quoted at my paragraph 17 above.  One cannot take account of the period abroad in this case, because it post dates the relevant decision, except to the extent that what happened later indicates what were his intentions on leaving.

21.	There is nothing in the present case about the father’s circumstances, his former life, his current work, his ties in this country (in particular his two children here) to suggest that the father will not in due course return to this country or that he has in any way abandoned his close connection with it.  While one cannot give general guidance because so much depends on the circumstances of each case, and on the settled intentions of the person in question, there must at minimum in my view be evidence that he has “burned his boats” with respect to continuing residence in this country; where, utilising as analogous in reverse, the factors suggested by Lord Slynn in Nessa v Chief Adjudication Officer [1999] 4 All ER 677 as relevant to the acquisition of habitual residence, the person leaving takes all his possessions, does everything necessary to establish residence in the new country before going there, seeks to take a family, already has ‘durable ties’ to the country of new residence and severs ties with his former home, some or all of this may suggest he has ceased to be habitually resident in the latter country.  Someone who goes abroad to take up a job without these sorts of indicators, however, would not, in general, lose their habitual residence immediately.  As ever, it is a question of fact in the individual case.

22.	The tribunal reached a perverse conclusion on habitual residence.  As was said at paragraph 13 in R(CS) 5/96:

	“… the tribunal were not entitled on the evidence before them to reach the conclusion they did.  They either misinterpreted the meaning of ‘habitually resident’ or reached a conclusion on the facts which could not be reasonably upheld.”

23.	That case was an application for a maintenance assessment and therefore the Commissioner was obliged to remit the matter to a tribunal for calculations.  The present appeal is one where there has already been an assessment, but wrongly superseded.  It is therefore unnecessary for me to remit the matter to a tribunal.  The former calculation continues subject to future applications to change it.

Failure to consider whether the father has deemed habitual residence under s.44(2A)(c) of the Act

24.	If the father’s employment relationship with the United Kingdom is of a prescribed description, he is treated as habitually resident.  Regulation 7A(1) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 is made under the authority of the above; on the basis of the information supplied by the UK employer, that a deduction from earnings order could no longer be made in the father’s case, no deeming is appropriate in the present circumstances, but the tribunal erred in law by its failure to consider whether the regulatory provision applied.

Summary

25.	For the above reasons, the tribunal erred in law.  Having regard to the evidence, I am able to substitute my own decision as set out in paragraph 2 above.

						(Signed)
						L T PARKER
						Commissioner
						Date:  22 June 2006