KH v CMEC (CSM)

Factual and Procedural Background

The appeal concerns a maintenance assessment dispute involving an absent parent (referred to as the father) and the parent with care (referred to as the mother) regarding the amount of child maintenance payable for a qualifying child. The father appealed against the First-tier Tribunal's decision dated 26 January 2011, which had disallowed his appeal against revised maintenance assessments effective from February and March 2010. The father contended that his financial circumstances, including travel to work costs and income, had not been properly considered. The mother also appealed aspects of the assessments, particularly the father's housing costs, with her appeal being decided concurrently.

Notification of the hearing on 26 January 2011 was sent to both parents, but the father did not attend and the hearing proceeded in his absence. The tribunal concluded the assessments were correct and dismissed the father's appeal. The father later claimed he had not received notice of the hearing due to postal delays caused by severe weather. An application to set aside the tribunal's decision was refused on the grounds that the father was likely notified, and it was not in the interests of justice to set aside the decision. The father was granted permission to appeal to the Upper Tribunal.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by proceeding with the hearing in the father's absence without adequately applying the conditions set out in rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
2. Whether the tribunal's decision involved a breach of the principles of natural justice by depriving the father of a fair opportunity to make his case due to non-receipt of hearing notice.
3. The relationship and interplay between procedural rules (rules 31 and 37) and the fundamental principles of natural justice in cases where a party does not attend a hearing.
4. The extent to which the tribunal must demonstrate satisfaction that reasonable steps were taken to notify an absent party and that it is in the interests of justice to proceed without them.
5. The implications of the mother's concurrent appeal on the father's appeal and the scope of issues to be considered on rehearing.

Arguments of the Parties

Appellant's Arguments

• The father argued he did not receive notice of the hearing due to postal delays caused by adverse weather conditions and thus was deprived of the opportunity to attend and present his case.
• He contested the calculation of travel to work costs, asserting the distance used was incorrect and that his actual costs were higher.
• The father also raised concerns about his changed financial circumstances, including debts and income not properly accounted for in the assessments.

Respondent's Arguments

• The representative for the Secretary of State (formerly the Child Maintenance and Enforcement Commission) acknowledged that the First-tier Tribunal may have taken too narrow a view of proceeding in the father's absence under rule 31.
• It was submitted that the tribunal had, in substance, applied the rule 31 test and that the maintenance assessments had been correctly calculated and would likely remain unchanged even if the father had been present.
• The representative expressed doubts about whether rule 31 could override the fundamental principles of natural justice, especially where a party did not receive notice through no fault of their own.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal found that the First-tier Tribunal's decision dated 26 January 2011 involved an error of law due to a breach of the principles of natural justice. This arose because the father did not receive notice of the hearing in time to attend, through no fault of his own or the tribunal administration. The tribunal had proceeded in his absence without adequately demonstrating satisfaction of the conditions in rule 31, namely that reasonable steps had been taken to notify the father and that it was in the interests of justice to proceed.

The court emphasized that compliance with rule 31 does not preclude setting aside a tribunal decision under rule 37 if it is in the interests of justice, particularly where natural justice principles require a fair opportunity to present one's case. The Upper Tribunal found credible the father's account of late delivery of notice due to severe weather and postal delays, differing from the First-tier Tribunal's finding on the balance of probabilities.

The court analyzed relevant case law and procedural rules, concluding that the setting aside jurisdiction and appeal rights ensure that natural justice considerations cannot be overridden by procedural rules alone. The tribunal's failure to explicitly apply and record consideration of rule 31's conditions was criticized, and best practice guidance was reiterated, including the duty of tribunals to verify notification before proceeding in a party's absence and to record such verification.

On the substantive maintenance assessment issues, the court noted that while many of the father's concerns were addressed or could only be considered via separate applications, there was a material factual issue regarding the calculation of travel to work costs. The distance used in calculations appeared inaccurate, potentially due to postcode-based measurement rather than actual home-to-work distance. The father's presence at the hearing might have prevented this oversight, underscoring the materiality of the natural justice breach.

The court declined to definitively rule on all procedural points raised but provided practical guidance on the relationship between procedural rules and natural justice, stressing the importance of fairness and opportunity to be heard.

Holding and Implications

The Upper Tribunal ALLOWED the absent parent's appeal and set aside the First-tier Tribunal's decision of 26 January 2011 on the basis of an error of law involving a breach of natural justice.

The case is remitted to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for a complete rehearing of the father's appeal against the maintenance assessments made on 26 May 2010. The new tribunal is not bound by previous findings except that it cannot make findings less favourable to the father regarding housing costs than those embodied in the existing assessments. The new tribunal must consider all points raised by the father, including the factual issue concerning travel to work costs, and determine the matter afresh based on the evidence and submissions.

No new legal precedent was established beyond clarifying the application of procedural rules in relation to natural justice and the necessity of proper notification and fair hearing opportunities. The decision underscores the importance of tribunals adhering to procedural safeguards to ensure fairness, especially when proceeding in the absence of a party.