Child Support Appeal Tribunals lessons from the UK

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Child Support Appeal
Tribunals lessons from the UK

• Prof Nick Wikeley
• University of Southampton UK

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My CS background

• qualitative research (Child Support in Action,
  Hart Publishing, 1998)
• quantitative research (DWP Research Report No
  152, 2001)
• legal research (Child Support Law and Policy,
  Hart Publishing, 2006)
• judicial experience (deputy Child Support
  Commissioner since 2001)

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CSA appeals Australia

• Objections procedure
• Appeals to the court
• Changes of assessment
• Lack of external review

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Australia calls for change

• Child Support Evaluation Advisory group (1992)
• Joint Select Committee (1994)
• Every Picture Tells a Story (2003)
• Ministerial Taskforce on Child Support (2005)

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Common features in CSAs

• national agency
• assessment, collection and enforcement
• formula basis for assessment
• exclusion of courts

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Main differences

• UK scheme was retrospective
• UK scheme has stronger social security focus
• UK scheme is NOT universal
• Australian scheme has much closer links with tax
  system

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UK child support new and old

• Legislation in Child Support Act 1991
• Original (old) scheme in force 5 April 1993
• Departures in Child Support Act 1995
• New formula in Child Support Pensions and Social
  Security Act 2000
• New scheme in force 3 March 2003

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UK appeals system from 1991

• House of Lords
• ?
• Court of Appeal
• ?
• Child Support Commissioner
• ?
• Child Support Appeal Tribunal
• ?
• Child Support Officer (CSA civil servant)

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UK appeals system after 1998

• House of Lords
• ?
• Court of Appeal
• ?
• Child Support Commissioner
• ?
• Appeal Tribunal
• ?
• Secretary of State (CSA civil servant)

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Appeals after Leggatt

• House of Lords
• ?
• Court of Appeal
• ?
• Upper Tribunal Commissioners
• ?
• First-tier Tribunal
• ?
• Secretary of State (CSA civil servant)

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CSA decisions open to appeal

• does the CSA have jurisdiction to act?
• what is the effective date?
• what is the NRPs income?
• what is the correct formula assessment?
• should the formula be varied?
• should PWC by subject to a penalty?

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CSA appeals in UK volumes

• CSA caseload c. 1.5 million cases
• appeal tribunals c. 5,000 cases p.a.
• Commissioners c. 200 appeals p.a.
• Court of Appeal c. 20 cases since 1993
• House of Lords 4 cases since 1993

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Positives in UK appeal system

• low cost system
• accessible tribunals
• expert tribunals
• body of precedent

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Problems with UK CSA appeals

• fragmentation of appeal rights
• tribunal role confusion
• decision making sclerosis
• absence of whole case approach
• lack of voice for the child

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Fragmentation of appeals

• liability ? appeal tribunals
• paternity ? magistrates courts
• DEO appeals ? magistrates courts
• liability orders ? magistrates courts
• other enforcement ? county court

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Role confusion in tribunals

• the Appeals Service has an enabling and
  inquisitorial role for its tribunals
• mapping an inquisitorial system onto an
  adversarial dispute causes problems
• tribunals do not have the tools for the job

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A District Chairman writes.

• It is a complex scheme which does not transfer
  readily to a multi-party, adversarial system.
  There is no finality. There is too much
  complexity. The Agency does not understand it. It
  is unworkable and incredibly expensive to
  operate. It circumvents appeal rights and defies
  understanding.

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Decision making sclerosis

• institutionalised delay and uncertainty
• (Commissioner Jacobs, CCS/1535/1997)
• as a result there is plenty of scope of parents
  to find themselves going round in circles
• (Commissioner Jacobs, R(CS) 3/01).

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Salami adjudication

• no power allowing a tribunal or Commissioner
  to pull together all outstanding disputes and
  make one overall decision. The legislation
  encourages the proliferation of separate
  decisions, even though they may all be concerned
  with a single underlying area of dispute.
• Commissioner Howell, CCS/11588/1995

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The childs voice

• Children are not parties to appeal
• Children have no voice in appeal
• Children have no right to child support
• Kehoe (2005 UKHL 48 2006 1 AC 42)
• Child Support Act 1991, s 7 (Scotland)

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CS appeals empirical evidence

• low levels of client awareness
• dispute processing not dispute resolution
• abdication of inquisitorial role
• low levels of client satisfaction
• appellants are CS compliant

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Lessons from the UK

• adversarialism needs to be managed
• finality needs to be ensured
• avoid fragmentation of appeal routes
• consider childs voice
• CSATs are not SSATs

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Contact details

• Professor Nick Wikeley
• John Wilson Chair in Law
• School of Law
• University of Southampton
• Highfield
• Southampton S017 1BJ
• UK
• Tel [phone]
• Fax [phone]
• e-mail njw_at_soton.ac.uk