IN THE UPPER TRIBUNAL	Case No.  CCS/2466/2011
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  This appeal is dismissed.

REASONS FOR DECISION

1.	This is an appeal against a decision of the First-tier Tribunal dated 2 March 2011, brought by the father of the qualifying child with permission granted by Upper Tribunal Judge Mesher.  I held an oral hearing in Cardiff, at which the father was represented by his mother, the Secretary of State was represented by Mr Stephen Cooper, solicitor, as agent for the Solicitor to the Department for Work and Pensions, and the mother appeared in person.

2.	The father had appealed to the First-tier Tribunal against a decision dated 14 April 2009 which, as revised on 20 April 2009, was to the effect that he was liable to pay £114.64 per week child support maintenance to the mother, with whom the qualifying child lived, with effect from 13 January 2009.  In its submission to the First-tier Tribunal, the Child Maintenance and Enforcement Commission (“the Commission”, which then made decisions on behalf of the Secretary of State) had identified an error in its calculation because wrong tax credit rates had been used in the calculation of both the father’s net income and his wife’s income.  The First-tier Tribunal upheld the Commission’s decision, save in respect of that error which it agreed should be corrected.  In reaching its conclusion, it accepted that the documents produced by the father were an accurate record of his financial situation and that he had no hidden income and it based the maintenance calculation on the records for the financial year 2007-2008, which was the last complete financial year before the effective date of the assessment.

3.	Following the hearing, the father asked that the First-tier Tribunal’s decision be set aside on the ground that he did not receive all the relevant documents before the hearing, that the mother had been allowed to interrupt his submissions and that, while the Commission had effectively been allowed to correct errors at the hearing, he had not been allowed to challenge an error made by the Commission “regarding the percentage of shares”.  That application was refused.  A statement of reasons for the substantive decision having been provided, the father sought permission to appeal on the grounds on which he had previously applied for a setting aside.  That was refused by the First-tier Tribunal judge after he had listened to a recording of the hearing.  The father then applied to the Upper Tribunal for permission to appeal on the same grounds, although he also said that further, unparticularised, errors had been found.

4.	Judge Mesher directed an oral hearing of the application for permission to appeal, indicating that he was not convinced on paper by the father’s grounds and explaining why it seemed to him unlikely that the father had not received any relevant documents.  In particular, he observed that the father had completed an enquiry form, which Judge Mesher understood was routinely sent out with the initial bundle of documents in a case, i.e., docs 1 to 80 in this case.  The Secretary of State made a written submission, pointing out that there was a possibility that Judge Mesher had been wrong to suggest that the enquiry form would have been sent with the initial bundle of documents and then, after a further direction by Judge Mesher, explained that the practice of sending an enquiry form with the bundle of documents had ceased three years earlier.  The current practice was for the relevant decision-maker, in this case the Commission, to send the bundle of documents to each party at the same time as sending it to the First-tier Tribunal and then for the First-tier Tribunal to send out the enquiry form.

5.	At the hearing before Judge Mesher, that issue receded into the background.  Judge Mesher granted permission to appeal because the Secretary of State’s representative submitted that regulation 10A of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (SI 1992/1815) had the effect that the father ought to have been taken to have had no assessable income and Judge Mesher considered that the point raised an issue of interpretation that merited further consideration.  He doubted the correctness of the Secretary of State’s submission as a matter of ordinary domestic law but suggested that there might be an arguable point in the light of the Human Rights Act 1998.  Subsequently, the Secretary of State resiled from the argument advanced at the hearing and submitted that regulation 10A could not assist the father.  Judge Mesher granted both parents’ requests for an oral hearing.

6.	Before I turn to regulation 10A, it is convenient to deal with the father’s other grounds.  Firstly, it seems unlikely that the father did not receive the initial bundle of documents.  The mother and the First-tier Tribunal received their copies, which would have been sent at the same time, and the father seemed unclear as to what he should have had which seems to be why this issue was not raised before the First-tier Tribunal.  That at least raises the possibility that he might have received the bundle and then put it on one side and failed to take it to the hearing.  It is, though, possible that he did not receive it.  But, even if that were so, I would agree with Mr Cooper’s submission that the father anyway did not suffer any prejudice through not having the bundle.  The First-tier Tribunal decided the case before it on the basis that the father’s evidence was correct and the father, who now has the documents, has not been able to point to any element of the calculation adopted by the First-tier Tribunal that was incorrect.  In particular, the extent of his shareholding in his company was not material because the amount he had received as a dividend was not in dispute.  Therefore, even if the father did not receive the bundle of documents, the First-tier Tribunal’s decision was not wrong in law on that ground.

7.	The same point can be made as regards what the father says about the mother’s comments during the hearing before the First-tier Tribunal.  The First-tier Tribunal judge listened to a recording of the hearing before rejecting that ground.  I have not listened to the recording but, even if there was something inappropriate in the conduct of the hearing, it cannot have made any difference to the outcome in this case.

8.	I turn, then, to regulation 10A of the 1992 Regulations, which provides –

“10A.–(1)  Subject to paragraph (2), where working tax credit is paid to or in respect of a parent with care or an absent parent, that parent shall, for the purposes of Schedule 1 to the Act, be taken to have no assessable income. 
  (2) Paragraph (1) shall apply to an absent parent only if— 
    (a)	he is also a parent with care; and 
    (b)	either— 
    (i)	a maintenance assessment in respect of a child in relation to whom he is a parent with care is in force; or 
    (ii)	the Secretary of State is considering an application for such an assessment to be made.”

9.	The father is married and lives with his wife and her two children from an earlier relationship.  At the material time, in 2009, he had not formally adopted the children although he was, of course, treating them as though they were his own.  He was thus their step-father.  His wife had applied for child support maintenance from her children’s father but it appears that for at least most of the time his liability was assessed as nil.  Whether rightly or not, the father in the present case is aggrieved about that because his wife had had to pay her children’s father a substantial sum to buy out his share of their former joint home and because, he says, he was working.  Moreover, the father in the present case has made payments to the mother, initially under an agreement with her and more recently by way of child support maintenance.  However, arrears of child support maintenance have accrued while he has been supporting three children.  

10.	Encouraged by the Secretary of State’s original submission to Judge Mesher and Judge Mesher’s reference to the Human Rights Act 1998, the father now argues that regulation 10A must be read as having applied to him, in which case his liability for child support maintenance from 13 January 2009 would have been nil and the First-tier Tribunal erred in law in deciding otherwise.

11.	It is not in dispute that, at the material time, the father was an “absent parent” in relation to the qualifying child, that he was in receipt of working tax credit and that there was a maintenance assessment in force in respect of his wife’s children.  The issue is whether he was a “parent with care” in respect of those children.

12.	By both regulation 1(2) of the 1992 Regulations and section 54(1) of the Child Support Act 1991, “‘parent with care’ means a person who, in respect of the same child or children, is both a parent and a person with care”.  It is not in dispute that the father was a “person with care” of his wife’s children by virtue of the definition in section 3(3) of the Child Support Act 1991.  So the question becomes simply whether he was a “parent”.  Section 54(1) of the 1991 Act provides –

“‘parent’, in relation to any child, means any person who in law is the mother or father of the child”.

13.	In R(CS) 6/03, to which the Secretary of State has referred me, Mr Commissioner Levenson, as he then was, considered who in law was the father of a child and said –

“9. 	My understanding of the meaning of “father” in English law accords with that explained in Cretney and Masson’s Principles of Family Law (6th edition 1997 at page 626) that, subject to exceptions, “the law recognises the child’s biological father as his legal father”. The exceptions relate to a presumption of fatherhood if a child is born to a married couple during the marriage, to adoption and to situations where the provisions of section 28 of the Human Fertilisation and Embryology Act 1990 are relevant. Obviously they do not apply in this case. On page 628 the authors state that “Social fathers can become legal fathers through adoption” and on page 645 they add that:

“Other people, most frequently step-parents … may take on the role of parent but these “social parents” do not automatically acquire parental responsibility either by marrying a parent or looking after the child”.

10. 	I also note that section 3(2) of the Child Support Act 1991 deals with the concept of an absent parent. If “parent” includes step-parent, as the father in the present case contends, then a step-parent could become an absent parent and liable to pay child support maintenance in respect of the stepchild. That cannot be the intention of the legislation.”

He therefore concluded that, as a matter of English law, a step-father was not a parent.

14.	The father refers me to the Commission’s “technical consultation” on the draft Child Support Maintenance Calculation Regulations 2012 and, in particular, to the list on page 8 of “Some words and phrases used in this consultation and what they mean”.  This includes –

“parent with care	A person who provides a home and day to day care for a qualifying child.

This covers persons who are not parents but who are the main day-to-day carer of the children.  For example, this could be a grandparent or a guardian.”	

Regrettably that is just wrong, even in relation to the 2012 Regulations.  The term described in the second column is actually “person with care”, as defined in section 3(3) of the 1991 Act, and not “parent with care”.  The document is not an authoritative statement of the law, even though it ought to have been accurate, and it does not cause me to doubt the correctness of Mr Commissioner Levenson’s interpretation of English law.

15.	Mr Commissioner Levenson did refer to the Human Rights Act 1998 but he did not consider it in detail because he was hearing an appeal in relation to a decision made before that Act came into force.  It is now in force and introduces into English law the European Convention on Human Rights so that domestic legislation must, if possible, be construed in a way that is consistent with the Convention.  If subordinate legislation, such as the 1992 Regulations, cannot be construed consistently with the Convention, it will generally be invalid.

16.	The potentially relevant articles of the Convention, as identified by both Mr Commissioner Levenson and Judge Mesher, are Articles 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) but Mr Cooper also identified Article 1 of Protocol 1 (Protection of Property) as potentially relevant.  It cannot, I think, be suggested that there is any breach of either Article 8 or Article 1 of Protocol 1 by themselves; the question is whether there is a breach of Article 14 taken together with those other articles.  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.”

17.	In JM v United Kingdom [2010] ECHR 1361 the European Court of Human Rights held that discrimination within the child support scheme could give rise to a case under Article 14 taken with Article 1 of Protocol 1, contrary to the view of the House of Lords in the appeal brought by the same applicant (M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91).  In TD v Secretary of State for Work and Pensions [2013] UKUT 282 (AAC), Judge Levenson has held that he was bound to follow the House of Lords authority rather than the decision of the European Court of Human Rights.  But even in the absence of binding domestic authority, I would not accept that there was unlawful discrimination contrary to Article 14 in the present case.

18.	In JM v United Kingdom, the Court said –

“54. 	As the Court's case-law establishes, for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations, such difference being based on one of the grounds expressly or implicitly covered by that provision. Such a difference in treatment is discriminatory if it lacks reasonable and objective justification, that is to say it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim pursued.”

19.	The father argues that there was unlawful discrimination in the circumstances of this case because he was treated differently as a step-parent from the way a parent would have been treated in identical circumstances.  He submits that this resulted in unfairness because proper allowance was not made for the fact that he was substantially supporting his step-children.  I accept that treating a step-parent differently from a parent for no justifiable reason could be contrary to Article 14.

20.	However, I do not consider that there is in fact different treatment here.  This is because regulation 10A would not have applied had he been the father of his wife’s children and, indeed, should not have applied when he adopted them.   The reason for this is that, as the Secretary of State submits, if both parents of children are living with them, there is no absent parent in relation to those children.  When the father adopted his step-children, he replaced their real father as their father and so their real father ceased to be an absent parent in relation to them. 

21.	Moreover, the fact that an absent parent may have some de facto financial responsibility for step-children living in his household, as well as for the qualifying child, is recognised within the formula for the calculation of child support maintenance through the concept of protected income and through the housing costs element of exempt income.  I accept that step-parents are treated differently from parents inasmuch as the living costs (other than housing costs) of step-children are not included within exempt income.  However, this seems justifiable on the basis that the responsibility for the standard of living of the step-children can properly be placed on the shoulders of those who are in law their parents.  When the father in this case adopted his step-children, that should have affected the calculation of his exempt income.

22.	It had always been the case that those entitled to income support of income-based jobseeker’s allowance were treated as having no assessable income.  That was clearly because the policy was that those on such a low income could be expected to contribute only the minimum child support maintenance to their children, even if they had some disregarded earnings from part-time employment, and the simple rule avoided the necessity of calculating income in more detail.  Regulation 10A extended that approach to those entitled to equivalent income-related benefits when working for more than 16 hours a week.  It was introduced in 1996 in respect of those entitled to family credit and disability working allowance, which were predecessors of working tax credit.  It is to some extent anomalous, because, in many cases, it treats as having no income those who would otherwise be able to contribute more than the minimum amount of child support maintenance to the maintenance of a child.  It may well be that administrative convenience was one reason for introducing it.  On the other hand, neither family credit nor disability working allowance was a particularly generous benefit and so the anomalous effect of the provision was limited when it was first introduced and was easily justifiable.  

23.	It is important to note that paragraph (1) of regulation 10A applies only to parents of the qualifying child, so that it does not apply to a person with care who is not the qualifying child’s parent.  This is so, even though the qualifying child will inevitably be living with the person with care and so may other children.  The Secretary of State’s submission is that paragraph (2) is drafted as it is so that an absent parent is not placed in an unreasonably advantageous position relative to both a person with care or other absent parents merely by virtue of having children – inevitably other than the qualifying child – living with him.  That is achieved by applying regulation 10A to an absent parent only when he or she is in exactly the same position as a parent with care to whom regulation 10A applies.  Such an absent parent is one who is a parent with care of a child who is a qualifying child in relation to a claim for child support maintenance that has been made by that parent.  I do not consider that paragraph (2) can be said to give rise to any unfairness in the present case.  

24.	It might be argued that the introduction of the more generous working tax credit heightened the anomaly inherent in regulation 10A, although the anomaly has again been reduced by alterations as working tax credit has been made less generous.  However, that anomaly – that it enables some of those who could afford to pay more child support maintenance to escape liability – is not relevant to the argument in the present case.  Revoking regulation 10A or finding it to be invalid altogether would not assist the father and this is not a case where the mother has the advantage of regulation 10A and the father does not.  (The mother was regarded as a having an assessable income of nil by virtue of her entitlement to income-based jobseeker’s allowance and was therefore clearly not entitled to working tax credit.)

25.	Therefore, although there may possibly be room for argument as to whether the relevant version of the child support scheme makes adequate appropriate provision for an absent parent’s responsibilities towards step-children and as to the fairness of applying regulation 10A in any case, I would not accept that the father was a victim of discrimination under Article 14 as a result of regulation 10A not applying in his case, even if it were open to me to hold that the child support scheme engaged Article 1 of Protocol 1 to the Convention.

26.	For all these reasons, the father’s appeal must be dismissed.

Mark Rowland
18 November 2013