CSA Decisions That Are Wrong in Law

Decisions that are wrong in law can be made in numerous circumstances. In the first instance, the CSA can interpret the law wrongly. This may be that they have wrongly judged case law, a statute (Act of Parliament) or other regulation.

The CSA may also come to a decision that is not supported by any evidence, or could fail to give sufficient reasons for coming to a particular decision. In other cases, the CSA could fail to give proper regard to an issue in a case that is important, or alternatively take into account something that should not have been considered. If a decision has been made wrongly, it is capable of being superseded in these circumstances.

Procedure

Any party to a calculation can apply for supersession at any time. If the supersession relates to an application for a variation, or a supersession of a previously agreed variation, then the other parties involved may be consulted. On receiving an application for supersession, the CSA has one of four options available to it:

• it can refuse to supersede on the basis that there are no grounds to do so
• it can find that there are grounds for superseding the decision, but that the maintenance calculation should not be changed
• it can change the maintenance calculation
• it can cancel the maintenance calculation

Ultra Vires

Occasionally appeals tribunals and commissioners have found that the regulation that has been used to make a decision is not a regulation that has been made lawfully. In these situations, the regulation is said to be made ‘ultra vires.’ This translates as ‘beyond the scope of its powers.’

European Law

The courts, child support commissioners and tribunals, as well as the CSA itself and JobCentre Plus are all under a duty to follow the law. In some cases, however, the domestic law may not be entirely compatible with European law. Decisions that are made contrary to European legislation are wrong in law. In practice, the law of the European Court of Human Rights is more likely to be applicable in child support cases than European Union law. In the case of EU law relating to the equality of men and women regarding social security matters, commissioners have determined that this does not apply in the realm of child maintenance issues.

In terms of human rights law (ECHR), the domestic courts are required to interpret this in so far as is possible to do so. Courts, and child support commissioners, are not able to override the European law in order to ‘fit’ with the domestic law. If EU and UK law are found to be incompatible with one another, the courts can declare this incompatibility.

However it is important to note that EU law reigns supreme in these circumstances. The European Court of Human Rights provides a vehicle by which the courts and child support commissioners are able to override incompatible domestic law. In practice, circumstances in which this occurs are few and far between, and anyone seeking a potential challenge should seek specialist legal advice. Legal aid may be available for these types of cases.