CCS/1980/2007

DECISION OF THE CHILD SUPPORT COMMISSIONER

Hearing and Decision

1. The appellant is the father and the second respondent is the mother of two children (born 10th February 1998 and 20th March 2000) who were qualifying children for the purposes of the child support legislation. The mother and father have not lived together during the period to which this appeal relates but did so from about 1990 to about 2004. They married on 16th August 1997 and a decree nisi of divorce was granted on 2nd March 2005.

2. The appeal is brought by leave of the chairman of the tribunal granted on 15th May 2007 and in the most technical sense only it succeeds. In accordance with the provisions of section 24 of the Child Support Act 1991 I set aside the decision made by the Bournemouth tribunal on 13th February 2007 under reference 192/06/00049. However, I substitute my own decision to the same effect. This is that the father is liable to pay to the mother child support of £37 weekly with effect from 20th December 2005 in respect of the qualifying children.

3. I held an oral hearing of this appeal on 17th March 2008. The father and mother both attended in person but neither was represented. The Secretary of State was represented by Mr Scoon from the Office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their attendance and assistance and for the dignified way in which each parent presented their case. At the end of the hearing I directed that further legal submissions be made.

4. My decision is based on specific legal issues and it is not necessary to go into the whole history or detail of the matter or to comment on the points raised by the parties that are not relevant to those issues or that relate to subsequent events. The facts are not now disputed and, subject to anything I say below, I adopt the findings of fact made by the tribunal.

Background and Procedure

5. At all relevant times the mother has been entitled to and has received child benefit in respect of both children. Since about July 2005 there has been shared care of the children, who have resided half of the time with each of the parents. It is agreed and was found by the tribunal that each of the parents makes an equal contribution to the care of the children.

6. On 7th December 2005 the mother applied for child support and on the basis of the shared care arrangements the Secretary of State decided that the mother was the parent and person with care and that the father was liable to pay to the mother child support of £37 weekly with effect from 20th December 2005 in respect of the children.   On 16th February 2006 the father appealed to the tribunal against that decision of the Secretary of State. 

7. The tribunal considered the matter on 27th June 2006 and 13th February 2007 and confirmed the decision of the Secretary of State. There was no significant dispute as to the basic facts. On 15th May 2007 the chairman of the tribunal gave leave to the father to appeal to the Commissioner against the decision of the tribunal and on 20th December 2007 I directed that there be an oral hearing of the appeal.

8. The father accepted that the decision made by the Secretary of State and the tribunal followed from the wording of the regulations, but contended that in treating him as the absent or non-resident parent and the mother as the parent and person with care the regulations operated in an unfair and discriminatory way and that there must be some room for the exercise of discretion. (He did not pursue, correctly in my view, an earlier argument that a previous period when he cared for the children for a greater share of the time should be taken into account). The Secretary of State and the mother opposed the appeal and supported the decision of the tribunal. The mother confirmed that she was not seeking through the means of this appeal to have the £37 assessment increased (she did not pursue, correctly in my view, a previous argument as to the respective incomes of the two households)

The Child Support Provisions

9. Relevant provisions of the Child Support Act 1991 as amended provide as follows:

1(3) Where a maintenance calculation made under this Act requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.

3(2) The parent of any child is a non-resident parent, in relation to [the child], 
if – 
(a)	that parent is not living in the same household with the child; and 
(b)	the child has his home with a person who is, in relation to [the child] a person with care.

3(3) A person is a “person with care”, in relation to any child, if he is a person - 	(a) with whom the child has his home [and]
(c)	who usually provides day to day care for the child (whether exclusively or in conjunction with any other person);

3(5) For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.

42(1) The Secretary of State may by regulations provide that in prescribed circumstances a case is to be treated as a special case for the purposes of this Act.

42(2) Those regulations may, for example, provide for the following to be special cases
(a)	…
(b)	there is more than one person who is a person with care in relation to the same child;

10. The Secretary of State has made regulations authorised by section 42(2) and the relevant parts of regulation 8 of the Child Support (Maintenance Calculation and Special Cases) Regulations 2000 provide as follows:

	8(1) Where the circumstances of the case are that  - 
(a)	two or more persons who do not live in the same household each provided day to day care for the same child … ; and 
(b)	at least one of those persons is a parent of the child
that case shall be treated as a special case for the purposes of the Act

8(2) For the purposes of this special case a parent who provides day to day care for a child of his is to be treated as a non-resident parent for the purposes of the Act in the following circumstances – 
(a)	…
(b)	where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that care is provided to the same extent by both but each provides care to an extent greater than or equal to any other person who provides such care for that child – 
(i)	the parent who is not in receipt of child benefit for the child in question; or
(ii)	…..

11. Although inelegantly worded the clear meaning of the provisions is, to put it crudely, that although both parents may be persons with care, if one of them gets the child benefit, the other is treated for the purposes of the Act as the non-resident parent. In the present case the mother receives the child benefit, and that means that the father is treated as the non-resident parent even though in reality he provides just as much care as the mother.

12. The tribunal was told that the mother received or continued to receive the child benefit as part of the financial agreement between the parents. Applying regulation 8(2)(b)(i) the tribunal made two observations on which I must comment. The first was:
“Child benefit is paid to the [mother] as it always has been since the birth of the children. The [father] has not applied to the Secretary of State for these arrangements to be changed. I accept that this was left unchanged as part of the financial arrangements between the parties and I attach no particular significance to this situation”.

13. If the tribunal was stating that it was not relevant for child support purposes in this case how it came about that the mother was receiving the child benefit, then that is correct as far as the child support scheme is concerned. However, these words could also be read as stating that the entitlement to child benefit itself was not significant. That would not only be incorrect, it would be inconsistent with the reference made by the tribunal to the provisions of regulation 8(2)(b)(i). I would not wish any of the parties to gain the impression that the receipt of child benefit was insignificant in this case.

14. The other observation was:

“Either parent as resident or non resident can apply for a Maintenance Assessment. In this case [the mother] has done so on the basis that she is the parent with care. 

On the facts before me I conclude that the facts support this conclusion. They might equally have supported a view that [the father] was the parent with care had he made the application on this basis.”

15. No doubt the tribunal wished to acknowledge the degree of care provided by the father, but insofar as it was stating that the person with care for the purposes of the Act would be the one who got their application in first, that was clearly incorrect. Again, I would not like the parties to gain the impression that this was a correct statement of law or that it was a justified basis for the tribunal’s decision. That is why I have set aside the decision made by the tribunal and substituted my own, albeit to the same effect.

The Validity of the Child Support Provisions

16. At the oral hearing, issues arose about the vires and rationality of the rule in regulation 8(2)(b)(i), and about its compatibility with European and human rights law. As I understand his latest submissions, the father is not suggesting that the regulation is invalid on either of these grounds, and I can see no serious argument to support any such suggestion. I agree with the comments of the Commissioner in paragraph 21 of R(CS) 14/98, to which the father and the Secretary of State have both referred:

“In my view, it is inconceivable that Parliament should not have given the Secretary of State the power to make regulations to provide for a case where both parents provide care and that the Secretary of State should not have exercised those powers …”,

17. In that case the Commissioner rejected an argument that provisions of regulation 20 of the Child Support (Maintenance Calculation and Special Cases) Regulations 1992 (which contained equivalent provisions to those in regulation 8(2)(b)(i) of the 2000 Regulations) were ultra vires.

18. The rule might be controversial in policy or political terms, and a different view of what rule should be made could have been taken, but it is not a rule that no reasonable Secretary of State acting rationally could have made.

19. I can find no basis for suggesting that the rule breaches any provision of European Union law and in particular I agree with the Secretary of State that neither the child support scheme nor the child benefit scheme is within the scope of Council Directive 79/7/EEC on equal treatment in matters of social security.

Human Rights Law

20. That leaves the issue of whether there is any breach of human rights law and specifically the position under the Human Rights Act 1998, which came fully into force on 2nd October 2000. Amongst other matters, the Act provides for direct application of the European Convention on Human Rights (“the Convention”) in UK domestic law.

21. The main relevant provisions of the Human Rights Act 1998 are as follows:

3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights. 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

6(2) Subsection (1) does not apply to an act [of a public authority] if-
(a)	as a result of one or more provisions of primary legislation the authority could not have acted differently; or
(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 

6(3) In this section "public authority" includes –
(a)	a court or tribunal

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
	(a) …
(b)	rely on the Convention right or rights concerned in any legal proceedings

Articles 8 and 14

22. These Articles have not been referred to expressly, and I have to consider whether the way in which the father has been treated is in breach of Articles 8 and 14 of the Convention. Article 8 provides:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others.  

Article 14 provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (my emphasis).

23. The father argues that there has been discrimination because “Child [Benefit] is awarded in the first instance to the mother of the child. Therefore, in cases where both parents provide equal day to day care, Child Support is paid in the first instance from the father to the mother … [even] where the mother … has a considerably greater personal income than the father”.

24. Although there is no suggestion that there has been a breach of article 8, the father is entitled to the protection of article 8 in a manner that does not breach article 14. I assume for the purposes of my decision that the rights of parents in connection with the child support scheme come within the protection of article 8, although the Secretary of State does not accept this. However, in my view there has been no breach of article 14. As I stated above, the tribunal found that child benefit continued to be paid to the mother as part of the financial arrangements between the parties. As part of these arrangements the father did not apply for child benefit to be paid to him. Thus, in this particular case, the Secretary of State has not made any decision as to who of competing applicants should receive the child benefit – it has been settled between the two parents. The effect on liability to pay child support could have been (and for all I know, was) taken into account when making those arrangements.

Entitlement to Child Benefit

25. The father clearly has in mind the following provisions of the Social Security Contributions and Benefits Act 1992:

S.144(3) Where apart from this subsection two or more persons would be entitled to child benefit in respect of the same child … for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 to this Act.

25. Schedule 10 sets out the priority of entitlement. The only overtly gender based priorities are dealt with in paragraph 3, which gives priority to the wife when husband and wife are residing together, and paragraph 4(2) which gives priority to the mother when unmarried parents are residing together. Clearly, subject to what I say below, neither of these situations arises in the present case.

26. There is a default provision in paragraph 5 which applies when none of the other paragraphs applies, which is that those potentially entitled can elect which of them is in fact to be entitled and, in default of such election, such of them is entitled as the Secretary of State “may in his discretion determine”. As I have indicated, in the present case it has not been necessary for the Secretary of State to make such a determination.

27. The father might argue that there was discrimination when he and the mother were married and residing together, but I have no evidence of the circumstances in which child benefit first came to be awarded and, in any event, the situation changed when they separated and when they reached the separation or divorce settlement. I see no real basis for an argument that there was a breach of article 14 once the situation arose which gave rise to the possibility of a child support application (and it is not necessary for me to comment on what the position was prior to that time or to speculate on what the position might have been subsequently if the father had applied for child benefit to be paid to himself).

H. Levenson
Commissioner

27th June 2008