L.A. v. SECRETARY OF STATE FOR WORK AND PENSIONS ETC
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Hamilton Lady Cosgrove Lord Bonomy | XA165/02 OPINION OF THE COURT delivered by LORD BONOMY in APPLICATION FOR LEAVE TO APPEAL under the Child Support Act 1991, Sections 25(2)(b) and (4) by L.A. Appellant; against (FIRST) THE SECRETARY OF STATE FOR WORK AND PENSIONS and (SECOND) T.V.I. Respondents; _______ |
Act: Macnair, Q.C.; Mowat Dean, W.S. (Appellant)
Alt: Brodie; Solicitor to the Advocate General (First Respondent): J.M. Scott; Balfour & Manson (Second Respondent)
25 March 2004
[1]The appellant's daughter T.G.A. was born on 18 June 1998 and is now almost 6 years of age. The appellant asserts that the second respondent is T's father. On 6 August 1998 the appellant applied to the first respondent, through the medium of the Child Support Agency, to make a maintenance assessment against the second respondent for T's support. On 24 June 1999 the first respondent refused the application on the ground that there was no jurisdiction to make the assessment because the second respondent was habitually resident outwith the United Kingdom. This application for leave to appeal from the decision of the Child Support Commissioner is just one of a number of subsequent episodes of procedure, which have, in effect, been confined to determining the question of habitual residence and jurisdiction. T's interests have been singularly ill-served by all the procedure undertaken so far. We were given no explanation as to why the real issue between the parties, that is whether the second respondent is T's father and thus bound to support her, has not been addressed. Whether jurisdiction lies with the first respondent, because the second respondent is habitually resident in the United Kingdom, or whether it lies with the Sheriff Court, because the second respondent is habitually resident outwith the United Kingdom, or, indeed, whether it lies with each in respect of different periods of time, the issue of paternity will have to be addressed. If the second respondent is not T's father, then the question of jurisdiction to make an assessment is academic. If he is, we would hope that a sense of responsibility would lead to the maintenance obligation being met by agreement. The second respondent has apparently worked offshore throughout the period from T's birth to the present day, earning a reasonable income.
[2]The issue of jurisdiction is dealt with in the Child Support Act 1991 (c. 48) section 44, which provided at that time that the Secretary of State had jurisdiction to make a maintenance assessment with respect to an "absent parent", such as the second respondent, "only if that person is habitually resident in the United Kingdom". In a decision dated 24 June 1999, the first respondent refused to conduct a maintenance assessment on the ground that the second respondent was believed not to be habitually resident in the United Kingdom at the date of the decision, the relevant date. When the appellant sought to appeal against that decision, the case was reviewed on 15 October 1999, but the decision of 24 June 1999 was not revised and the appeal continued. On 20 December 1999 the child support appeal tribunal, in the absence of the second respondent, decided that he was habitually resident in the United Kingdom on 6 August 1998 and had been continuously so up to 20 December 1999, and that he was the father of the child. That decision was set aside on 29 September 2000 on the ground that the second respondent had not received intimation of the hearing. At least one other hearing diet was discharged. Following a further hearing on 25 April 2001, confined to the issue of jurisdiction, at which the second respondent was not present but was represented, a differently constituted tribunal decided that he was habitually resident in the United Kingdom as at 6 August 1998 when the application was made and at 24 June 1999, the date of the determination which was the subject of the appeal. The tribunal's statement of reasons for their decision was issued on 8 June 2001. The second respondent appealed to the Child Support Commissioner. On 3 October 2002 he set aside the decision of the tribunal because it was "erroneous upon a point of law" and remitted the case to a freshly constituted appeal tribunal for re-hearing. On 13 November 2002 he refused the appellant leave to appeal against that decision. The appellant applied to us for leave. Counsel advised us that their arguments were effectively the same as they would present in the substantive appeal.
[3]It was not in dispute that, after separating from his wife around the end of 1996 or the beginning of 1997, the second respondent cohabited with the appellant from May to October 1997, and that at that time, and probably for a large part of 1998, he was habitually resident in the United Kingdom. Indeed, on 14 September 1998 when completing the Maintenance Enquiry form sent to him following the submission of the appellant's claim, he had added a note that "due to the nature of my work - I will shortly no longer be a resident in the U.K.". Therefore, the question for the first respondent and the tribunal was, in effect, whether he had lost or abandoned his habitual residence in the United Kingdom by the date of the original determination. There was some discussion before us of where the onus of proving that the second respondent was habitually resident in the United Kingdom lay. Since significant material supporting their competing contentions about the second respondent's habitual residence was placed before the tribunal by both the appellant and the second respondent, we do not consider that anything turns on the matter of onus. The role of the tribunal was to consider all material which had a bearing on the question of the second respondent's habitual residence and to determine whether he was habitually resident in the United Kingdom at the relevant time. As was pointed out in R. v. Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 All E.R. 81 at 94, the tribunal were bound to consider all relevant "material" and not confine their attention to evidence that would be admissible in a court.
[4]The Commissioner's role was confined to determining whether the tribunal had erred in law in reaching this decision. The errors in law identified by the Commissioner, on which he sustained the appeal, were (1) the taking into account by the tribunal of material irrelevant to their determination, (2) their apparent failure to take account of relevant material and (3) their failure to give adequate reasons for deciding that it was not established that the second respondent was not habitually resident in the United Kingdom. Mr. Macnair, Q.C., counsel for the appellant, submitted that the Commissioner had erred in law in his approach to, and interpretation of, the tribunal's statement of reasons for their decision. He invited us to grant leave to appeal, to thereafter allow the appeal and to recall the Commissioner's decision and restore that of the tribunal. Mrs. Scott, counsel for the second respondent, and Mr. Brodie, counsel for the Secretary of State, invited us to refuse leave, failing which to refuse the appeal. Mr. Brodie adopted the submissions of Mrs. Scott on all matters material to our decision.
[5]Under reference to the opinion of Hale L.J. in Cooke v. Secretary of State for Social Security [2001] E.W.C.A. Civ. 734 at paras. 14-17 Mrs. Scott submitted that, in considering an application for leave to appeal, this Court should accord special respect to the decision of the Commissioner because of his greater experience in, and understanding of, the technical and complex issues that arise under social security legislation. We are satisfied that no such issues arise in this case and have not considered further whether, and in what circumstances, the approach desiderated by Mrs. Scott might be appropriate.
[6]The Commissioner decided, in the first place, that the tribunal had erred by taking account of irrelevant material considerations, namely the fact that the second respondent worked for a German company but paid income tax and national insurance contributions in the United Kingdom. The second respondent apparently worked in the British sector of the Continental Shelf. The basic rule is that a non-resident is liable to pay tax in the United Kingdom on earnings from employment within the United Kingdom - Income and Corporation Taxes Act 1988 (c. 1) section 19(1). That principle is extended to work on parts of the Continental Shelf which are designated as parts of the British sector by Order in Council made in terms of section 1(7) of the Continental Shelf Act 1964 (c. 29). Section 830(5) of the Income and Corporation Taxes Act 1988 provides:
"Any emoluments from an office or employment in respect of duties performed in a designated area in connection with exploration or exploitation activities shall be treated for the purposes of income tax as emoluments in respect of duties performed in the United Kingdom."
The same applies to national insurance contributions. An individual resident and ordinarily resident in the United Kingdom is, of course, equally liable to pay income tax on emoluments and to make corresponding national insurance contributions.
[7]Mrs. Scott submitted that the tribunal had taken account of material which was, on the face of it, neutral and thus irrelevant as a factor justifying the conclusion that the second respondent was habitually resident in the United Kingdom. Mr. Macnair, on the other hand, submitted that, because the question for the tribunal was whether the second respondent was no longer habitually resident within the United Kingdom at the material time, what mattered was whether the facts found proved by the tribunal pointed to the loss of his habitual residence. Viewed in that way, these factors were indicative of no change in the habitual residence of the second respondent. There had been no material before the tribunal to indicate any change in the second respondent's employment or in the basis for his liability for tax and for national insurance contributions. The absence of such evidence was simply an indicator of stability and the absence of change. He referred to the tribunal's reference to employment in their findings in fact and their reasons.
[8]We agree with Mr. Macnair that the second respondent's employment was relevant to the issue of habitual residence for the reason he gave, and that the tribunal did not attach undue significance to it. Their findings in fact were stated briefly as follows:
"The respondent is a Dutch national. He came to live in the United Kingdom in 1983 and became habitually resident here. He is married to a British Citizen. He is joint proprietor of the matrimonial home at [address in Edinburgh]. He is cited in the telephone directory at that address and was a regular visitor there following his separation from his wife at the end of 1996 or the beginning of 1997. He cohabited with the respondent from May to October 1997.
The respondent works for a German company but pays income tax and national insurance in the United Kingdom. The respondent keeps a car in Edinburgh which is road taxed until May 2001."
In their "Reasons for the Decision" they said this:
"In CCS/7395/1995 and CCS/7207/1995 both reproduced in the appeal papers, Commissioner Rice referring to the content of the Child Support Legislation found that:
'In determining as a question of fact whether in the above content (sic) 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 reasons for his move abroad, and the nature of any work being undertaken there, are also material. It is not enough to look at the length and actual continuity of the actual residence abroad'.
In this case the fact that the respondent had for a long time been habitually resident in the United Kingdom was not in dispute. He continued in the same employment. The payslip produced by the respondent (U6) appeared to the tribunal to indicate that the respondent paid tax and national insurance in the United Kingdom. It bore all the hallmarks of a typical U.K. salary statement. It was written in English and showed the respondent's national insurance number. The respondent's wife continued to live in the matrimonial home which remained in joint names and the respondent was still listed in the telephone directory as living at that address".
It would be wrong, in our view, to read more into those passages than that the tribunal considered the absence of change in employment to point towards no change in habitual residence. By doing so the Commissioner erred in his approach to this issue.
[9]On the second ground on which the Commissioner sustained the appeal, Mrs. Scott submitted that the tribunal had apparently failed to have regard to material indicating that the second respondent was taking active steps to sever his links with Scotland, namely correspondence relating to the removal of his name from the electoral register and to the termination of his responsibility for payment of council tax at the matrimonial home.
[10]It was accepted for the appellant that the tribunal did not mention that they had had before them a letter from the electoral registration officer to a solicitor then acting for the second respondent, Lindsey McGregor, dated 29 March 1999, confirming that his name would be removed from the 2000 electoral register which came into force on 16 February 2000. That bore to be in response to a letter of 20 March from the second respondent. In the copy documents before us all addresses were blanked out, and we were advised that that may well have been the position before the tribunal. It is possible that the letter refers to the address of the matrimonial home. However, it is not possible to infer more from it than that the second respondent sought removal of his name from the electoral register because he was no longer resident at that address. That does not appear to us to have any significance in the case, since he acknowledged that he continued to be habitually resident in the United Kingdom after separating from his wife and leaving that address. The tribunal also made no reference to a letter dated 20 March 1999 from the second respondent to the "Community Charge Register" and a letter from the Council Tax Manager to the said Lindsey McGregor, dated 24 March 1999, which could be a reply thereto. Again, all reference to addresses had been obliterated from the documents before us. It was not possible to divine any more from them than that the second respondent sought to ensure that he was no longer held responsible for local authority taxation in respect of the matrimonial home.
[11]In our opinion that material did no more than confirm something accepted by the tribunal, namely that the second respondent had, by the beginning of 1997, separated from his wife and left the matrimonial home. It is no surprise that this correspondence was not specifically referred to in the statement of reasons in which the tribunal stated clearly that they "considered the whole evidence in the appeal papers, evidence led and produced at the tribunal hearing and the submissions for the parties." In these circumstances, we consider that the Commissioner erred in reaching the view that the tribunal's decision was flawed in respect of the absence of any reference to these matters.
[12]The third ground on which the Commissioner sustained the appeal was in relation to the adequacy of their reasons for their decision, in particular their failure to explain what they made of a letter in support of the appellant's case written by a Dutch national suggesting that written material presented on behalf of the second respondent was of little or no significance in indicating that he was establishing residence in the Netherlands and was abandoning the United Kingdom.
[13]Mrs. Scott submitted that, since the tribunal had failed to explain their position in relation to the letter, the informed reader and the Court were left in real and substantial doubt about the reasons for the decision made. The tribunal's decision had, therefore, to be set aside. For that proposition she relied upon a summary of the obligations of decision-making bodies, such as the tribunal in the present case, stated by Lord Macfadyen in Singh v. Secretary of State for the Home Department 1998 S.L.T. at 1374J and adopted by the Court in Singh v. Secretary of State for the Home Department 2000 S.C. 219 at 222, 2000 S.L.T. 243 at 245. That the reasons given for a decision should leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were, and what were the material considerations which were taken into account in reaching it, is not controversial. In considering exactly what is required the Court, at page 246, approved the views of Lord Penrose in Asif v. Secretary of State for the Home Department 1999 S.L.T. 890 at 894G-H, where he said:
" ... nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it".
That echoed the words of Woolf J. in Crake v. Supplementary Benefits Commission [1982] 1 All E.R. 498 at 506B where, in relation to a supplementary benefit appeal tribunal, he said:
"It has got to be borne in mind, particularly with tribunals of this sort, that they cannot be expected to give long and precise accounts of their reasoning; but a short and concise statement in clear language should normally be possible which fairly indicates to the recipient why his appeal was allowed or dismissed; and it seems to me quite clear that when one looks at the findings of this tribunal together with the reasons for its decision, it falls far short of the standard which the Act requires."
In our opinion, the question whether the statement of reasons leaves the informed reader and the Court in any real and substantial doubt about how material relevant to their decision was treated by the tribunal should be addressed in the light of the views expressed by Lord Penrose and Woolf J.
[14]The letter from the Dutch national, Saartje Drijver, was not only referred to by the tribunal, but was plainly relied upon by them. The Commissioner recognised that the tribunal did rely upon it, but considered that they should have spelt out its significance for them in their reasons. In his decision he dealt with the matter in this way:
"The tribunal appears in my view to have drawn conclusions from this letter which undermined the [documentary] evidence led by the appellant. However, having done so, they do not in clear terms set out what they made of it. All they said was:
'Against that background the tribunal considered the letter dated 18 April 2001 (X2) from [Saartje Drijver] a Dutch national which was produced on behalf of the appellant. The tribunal accepted that it might not be too difficult for a Dutch national to register at their local town hall as resident at a particular address particularly where as in this case the address of a relative was used. Having established an address in this way, it also seemed possible that obtaining a driving licence and identity card would not be too difficult.'
[15]It seems to me that in these circumstances the tribunal erred in law."
In our opinion the Commissioner erred by taking that statement of the tribunal out of context. Immediately before that, the tribunal referred to the various documents produced for the second respondent, including a certified entry from the 'Register of Amsterdam' which bore to show that he had been resident in the Netherlands since 20 November 1998, a summons to him to vote in local authority elections on 1 March 1999, a letter from a Dutch advocate declaring that he was resident in the Netherlands and had his permanent address and habitual residence in Amsterdam, a copy of his Dutch driving licence, a copy of his Dutch identity card, and letters dated September and October 1998 indicating that he had been making enquiries about property in Amsterdam. They then said this:
"In considering the evidence presented on behalf of the respondent, the tribunal in the absence of the respondent had no means of testing its credibility or reliability. The tribunal felt that the evidence for the respondent should be treated with some caution. It was not unreasonable to infer that the respondent wished to avoid liability for the maintenance of his daughter and that he was aware of the advantage from that point of view of not being resident in the United Kingdom. When signing the Maintenance Enquiry form on 14/9/98 the respondent added a note that 'due to the nature of my work - I will shortly no longer be resident in the UK'. He had threatened not to pay a penny (B23) and apart from a few purchases for his daughter had not made any voluntary maintenance payments. He had denied paternity but there was no evidence that he had sought to clarify matters by DNA testing or otherwise. Indeed there was persuasive evidence in the appeal papers that the respondent did acknowledge the paternity and wished to be involved with his daughter."
The paragraph founded upon by the Commissioner followed, and the tribunal went on thereafter:
"A letter from the respondent's uncle (CC2) dated 19 December 2000 stated that the respondent lived with him for the time being, paying for board and lodging until he found his own apartment in [ ... ]. However, the tribunal accepted that on 3/1/99 the respondent told [the appellant] that he had given his uncle's address in [ ... ] to get the CSA 'off his back'.".
These three paragraphs together explain the tribunal's approach to the evidence tendered for the second respondent to indicate an increasingly close connection with the Netherlands. Read as a whole they explain clearly, in our opinion, why the tribunal decided that that material did not persuade them that the second respondent had ceased to be habitually resident in the United Kingdom. The tribunal gave a number of reasons for approaching the material with some caution. The second respondent had chosen not to attend the hearing before the tribunal and had accorded priority to his work commitments. The tribunal did not have the benefit of his evidence to assist their assessment of the material presented on his behalf. They did, however, have the letter from Saartje Drijver and the appellant's evidence about the second respondent's reason for giving his uncle's address in Amsterdam. The tribunal concluded that, even accepting the material presented on behalf of the second respondent at face value, they did not consider that it was sufficient to prove the amount of time that he had actually spent in Holland between the date of the application up until 15 October 1999. They then went on to refer to other material. They made reference first of all to the apparent absence of any change in his employment. There was also a letter from his solicitor to the Child Support Agency dated 21 June 1999 in which it was stated that: "A reconciliation [with his wife] has not taken place but cannot be ruled out". In addition, the tribunal accepted the evidence of the appellant detailing the occasions between 5 September 1998 and 30 September 1999 when the second respondent had been seen in Edinburgh, and the evidence indicating that he still kept a car on the road in Edinburgh. Looking, therefore, at the tribunal's reasoning as a whole, we consider that the Commissioner erred in deciding that the tribunal did not set out in clear terms what they made of the letter from Saartje Drijver. That letter was different from positive evidence of fact contradicting evidence or material produced for the second respondent, thus giving rise to a factual dispute which the tribunal had to determine and give reasons for deciding one way or the other. The letter was simply comment on the material submitted for the second respondent, and it is plain that the tribunal gave it no higher status than that.
[16]For these reasons we consider that the tribunal did not err in law in reaching the decision which they made following their consideration of all the material presented to them. We shall, therefore, grant leave to appeal, allow the appeal and reinstate the decision of the tribunal of 25 April 2001 that the second respondent was habitually resident in the United Kingdom on 6 August 1998, when the application for Child Support Maintenance was made, and on 24 June 1999, the date of the decision under appeal.