Typically, an appeal has to be made within the Child Maintenance Service (CMS). This is managed through the process of raising a Mandatory Reconsideration, essentially, an appeal.
For example, if the receiving parent states the paying parent has more income than declared; i.e., if they are self-employed or run a limited company, where they are typically in a position to control how much income is taken and the method of drawing the income, they would initially raise a Mandatory Reconsideration to appeal, each side would submit any evidence to support their respective positions, and the CMS would make a decision. Once the Mandatory Reconsideration has a decision, if either side do not agree with the decision, the next step is to apply to have a hearing at a First Tier Tribunal.
The Mandatory Reconsideration process is explained in another of our blogs here.
In the example above, let’s assume the receiving parent was unable to prove that the paying parent earned more than they declared, other than demonstrate their lifestyle is incommensurate with their income, i.e. a large mortgage, luxury holidays and/or luxury cars.
Once the CMS has considered the Mandatory Reconsideration, they will either accept or reject the appeal. If they accept, and the receiving parent disagrees, or they reject, and the paying parent disagrees, the process for recourse is to apply to the court for a First Tier Tribunal.
To apply to court for a First Tier Tribunal, you need to complete an SSCS2 form, which can be downloaded here.
In section 6, and additionally on page 10, you would outline your reasons for your appeal. This needs to be succinct, but with enough weight to ensure a judge will issue directions. In the case of our example, assuming the receiving parent is the appellant, the receiving parent needs to make the case as to why the paying parent’s lifestyle is incommensurate with his/her means; for example, they declare only £n income, yet holiday 4x/6x each year in far-flung, luxurious, expensive destinations, they are known to have a significant mortgage, perhaps with minimal equity, (meaning they need to service a large mortgage), and/or they have several vehicles of high value (which means they don’t need to only cover the outlay for purchase, but also insurance and running costs).
At this point, all that needs to happen is for the appellant to detail what they find is not in keeping with the income declared. It is absolutely key to keep the message factual, on point and free of emotion.
Once the SSCS2 has been accepted and a reference has been issued, the next steps are for a judge to issue directions, typically, in our example, ordering the paying parent to provide financial disclosure. This will typically include, personal and business (if appropriate) bank statements, credit cards and all othe financial documentation allowing the judge, in the hearing, to make a clear decision and order based on the findings in front of him/her.
If the respondent, or the CMS, if addressed in the directions, do not respond as directed, the party/parties will be warned and further directions may issued. The respondent will be warned that if they have failed to submit some/all of the information directed, an adverse inference may be drawn. This means the judge will make a decision without the necessary paperwork in front of them, typically, not in the respondent’s favour.
The next step is for the judge to issue a hearing. This is typically a full and final hearing, however, there is always the chance it will be adjourned if information is missing.
Whilst the directions and hearing listing are being processed, the appellant can make a submission. We would typically encourage the appellant to make a submission that encourages the judge to ask for specific information likely to support the appellant’s argument.
Once the initial submission is made, we wait for directions. Once directions have been issued, and all parties have responded, either partly, or in full, a bundle is distributed, which is numbered pages of all evidence submitted. This will be used in the hearing. It is imperative that both parties check the bundle for accuracy, and submit any additional evidence to counter anything submitted within the bundle where, for example, the evidence in the bundle may only provide one side of the story.
Following the conclusion of the First Tier Tribunal, a Decisions Notice is issued to all parties, and if requested (we advise you always request), a Statement of Reasons.
First Tier Tribunals typically take between 6 and 18 months from submission of the SSCS2.
It is possible to be represented at the Tribunal by either a McKenzie’s friend or barrister. If you do not have a solicitor, you can only use a Direct Access barrister. If you have a solicitor, s/he can instruct a barrister on your behalf.
Whether you should have representation or not is something to be discussed as it is individual to your case.
Upper Tier Tribunals are discussed here.
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