Tribunal Appeals

“Tribunal Appeals.  Where either you or your ex does not agree with the decision made by the Child Maintenance Service it is then open to make an appeal to a Tribunal.  If you do not agree with the decision made by the Child Maintenance Service you will first of all need to make sure you have requested a mandatory reconsideration and you should have received back from the Child Maintenance Service a Mandatory Reconsideration Notice.  You can then apply for an appeal to the Tribunal Service by filling out the appropriate form referred to in the Mandatory Reconsideration Notice and sending it through to the address given. Once an appeal is accepted the Child Maintenance Service will then draw up a “submission” which will relay all of the evidence they have used to make their decision and a copy of all the documents they have used.  They will indicate in the submission whether they intend to defend the matter which they usually will. Once you receive the bundle it is very important that you go through it and examine how the CMS has reached the decision they have made. Even if the CMS have changed their mind and decided that they support your appeal it is important to realise that a Judge is the person who will make the final decision, taking the matter to Tribunal takes the decision making process out of the CMS’s hands entirely and Judges frequently disagree with CMS decisions, hence the reason why Tribunals are frequently successful.  It is therefore important that you critically examine the bundle and consider whether any further evidence could be filed upon your behalf which would help prove what you say. If you do have that kind of evidence then you need to send it into the Tribunal together with a letter explaining its relevance and how you believe it helps your case. You may also take the view that it would be helpful if your ex were to file certain documentation or information in which case you can include in your letter a request for directions asking the Judge to make disclosure orders about certain evidence that your ex might have and why you believe it would help understand the case.  Finally, if you believe the CMS has any relevant evidence that is not in the bundle then you should add that to your letter. After a while you will hear from the Tribunal with an initial date.

Hearings are not block listed which means that if your case is fixed at 10 o’clock it will be heard at 10 o’clock, if it is fixed at 10:45 it will be heard at 10:45.  It is most important therefore that you arrive early. If you have any documentation you will need to present that to the Usher on arrival. The Tribunal itself consists of a Judge sitting in a large room behind a desk.  There are no gowns, wigs or gavels, the Judge simply sits in a suit, introduces themselves and ensures the identity of everyone around the table (you, the CMS Officer, your ex, Lawyers etc) the Judge will then typically request the Child Maintenance Service to explain the case and if it is your appeal once the CMS has finished the Judge will ask you to expand on why you think the CMS got it wrong.  Here if you are going to rely on any evidence you will need to have ensured that you have filed it beforehand and ideally it will be part of the bundle and you will be able to refer to the page number pointing to the evidence that you want to refer to. I always remind clients that at these hearings the Judge knows nothing more about you than what is in the paperwork. He knows nothing more about the case than what is in the paperwork.  If it is not in the paperwork the Judge does not know it! Furthermore, do not assume the Judge has had the time to go through all of the paperwork, the Judge probably has not had that kind of amount of time and therefore it is important that you are ready to indicate the paperwork that you believe is important and why you believe it assists your case. The Judge will then turn to your ex and ask for their replies to your observations and finally back to the CMS to see whether or not the emerging evidence has changed their mind.  With all of this done the Judge will then make a decision, that can be immediately applied or alternatively the Judge may decide that they need further documentation from you, your ex or the Child Maintenance Service in order to consider the matter. If he decides the case is complicated then there will be a delay with a new date listed that will probably be listed either for a double slot (1 hour 30 minutes) or a session (half a day). Really complex cases can be listed for a whole day. In very rare cases they can go on for two or even three days, that however is very rare.

Very often people approach the next hearing quite casually despite the fact that the paperwork can considerably increase as a result of the directions given by the Judge.  It is very important to realise that when the case is finally heard before a First Tier Tribunal that Judge will be making all of the calls on the facts. If you disagree with the Judge’s outcome it is not the case that you can appeal never-endingly, it is possible to appeal against a final trial outcome, but only on a point of law and therefore at the forthcoming hearing of the case that is your only opportunity to ensure that the Judge reads the facts the way that you want him to.  The final hearing therefore of your Tribunal case is very important and should not be taken as simply a step in an appeal process.

At the contested hearing.  The Judge will invite everyone to speak and allow everybody to present their cases.  In particular for any point that you need to make you need to try as far as you can to provide proof of it and be able to point the Judge to where that truth exists in the bundle.  I will remind you again, the Judge does not know anything about your case other than what is in the bundle. Make sure it is there. If you are intending to call witnesses to support you then make sure that you disclose this to the Tribunal well in advance of the hearing.  The only outcomes of turning up to a 45 minute hearing with two witnesses is either the Judge will refuse to allow them to be called (as is the Judge’s right) or alternatively the case will be adjourned to another date. Furthermore, you are not allowed to surprise the Judge, the CMS or your ex with your witnesses, so you will therefore need to ensure that witness statement are sent in so that everyone knows what your witnesses are going to be saying.

Finally, do not forget your witnesses will be able to be questioned by not only your ex or your ex’s Lawyer but also by the Judge.  It is not a case of your witnesses simply turning up, telling their stories and walking out of Tribunal.

Make sure that you know what you want.  It places Judge’s in terrible positions if you just simply assert there are so many wrong things about your ex’s case but you then do not tell the Judge what you want doing about them and most of all – most of all – make sure that the documentation you file says what you say it actually says.  I think the most common issue I have with clients is the production of documents that they insist says a certain thing but when read carefully just do not confirm what my client thinks they confirm. Remember again, the Judge only knows what is in the file and what he hears in Court.

Once all the evidence is heard and particularly if it is a long case the Judge will probably not give a decision right away but will instead send one out in writing.  Once the decision is received the Child Maintenance Service will then enact that decision putting the figures in the boxes that the Judge has found and reprinting the maintenance calculation.

What if I remain unhappy with the Tribunal’s decision?  It is possible to appeal to an Upper Tribunal from a First Tier Tribunal decision.  You are not allowed to appeal on the facts, you are only allowed to appeal on the law.  The Judge will initially provide a Decision Notice, either on the day or via the post a few days later but if you are unhappy with the outcome you need within a month of the date on the Decision Notice to write to the Judge requesting a Statement of Reasons.  This should then be provided within a few weeks, once you receive that you will have a month to put in an appeal against the Judge’s decision. Your request will be a request for permission to appeal and you simply send a letter in. You will need to point out where you feel the Judge went wrong in law – remember what I said earlier, the Judge is the sole decision maker of the facts, if you disagree with the facts as he found them then that is not a reason to be able to appeal – for instance you would have a legitimate ground of appeal if the Judge found that you were diverting income when in fact you had decided to take a years sabbatical and were not earning any income.  Or if the Judge found that there could be no backdating of an assessment when there was clear evidence of a letter from you on the bundle requesting an assessment at the time you said you wanted it backdated to. On the other hand if the Judge finds that the children spent 160 nights with your ex and you disagree with that finding you would not have a valid ground of appeal as the finding that there was 160 nights spent is a matter of fact and not law.

A request for permission to appeal to the Upper Tribunal is almost always rejected, that is because the process is there to allow a Judge who make a decision they do not like because of way the law has been previously read by Upper Tribunal decisions to be brought to the attention of the Upper Tribunal by the First Tier Judge giving permission.  Since most Judges actually agree with the decision that they are making and do not feel their hands are bound the wrong way by Upper Tier Tribunal decisions, almost all requests for permission to appeal are refused and once you receive the refusal you will then have a month to appeal to the Upper Tribunal completing the form that will be sent to you by the First Tier Tribunal.

Upper Tier Tribunal appeals are always complex and pivot solely and only on interpretation of the law.  Whether your appeal is to a First Tier Tribunal or to an Upper Tribunal it is very important to obtain advice to help you understand how the Tribunal works.

Bob Pape specialises in appearing before Tribunals and Upper Tribunals and has appeared before the Tribunal Service literally hundreds and hundreds of times since commencing Child Support Solutions in 1997 and is one of the most experienced Tribunal Advocates in the UK.”