Case No: CO/2487/01 
Neutral Citation Number: [2002] EWHC 1125 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 22nd March 2002
Before :

HIS HONOUR JUDGE ALAN WILKIE QC

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Between :

	THE QUEEN ON THE APPLICATION OF ANTHONY PLUMB	Claimant	
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	THE SECRETARY OF STATE FOR WORK AND PENSIONS	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr N Blake QC & MR R DEMELLO (instructed by Liberty Legal Services) for the Claimant
MR T WARD & MR I BURNETT (instructed by Office of the Solicitor Department of Work and Pensions) for the Defendant

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Judgment

HHJ ALAN WILKIE QC:

1.	This is an application on the part of Anthony Plumb, the claimant, to challenge the decision of the Benefits Agency dated 22nd March 2001 refusing to reconsider the decision made by the Social Security Commissioner on 4th February 2000 which dismissed the claimant’s appeal against the decision of the adjudication officer deducting a sum of, then, £5.10 per week from his Job Seeker’s Allowance (JSA) on the grounds that the Child Support Officer (CSO) certified that the claimant had to make a contribution to maintenance of his child Rebecca.
2.	The application was launched on 14th June 2001 and filed on 21st June 2001 on a number of different bases.  Initially permission was refused by Mr Justice Collins on the papers on 31st August 2001 but on a renewed application for permission dated 1st November 2001 Mr Justice Hooper gave permission on two questions, namely:
(1)	whether Regulation 13 of the Child Support (Maintenance Assessment and Special Care) Regulations 1992 is ultra vires the Child Support Act 1991, by application of the principles set out in R v IAT ex parte Saleem and Raymond v Honey; and
(2)	Whether Regulation 13 (above) is incompatible with Article 8 of the ECHR.

3.	At the outset of the hearing of this application, Nicholas Blake QC for the claimant indicated that they would no longer be relying on the first matter upon which permission to proceed had been given.  Therefore the sole remaining ground upon which permission was given is ground 2, namely on the question whether Regulation 13 is incompatible with Article 8 of the ECHR.  At the outset, however, Mr Blake indicated that he sought permission further to argue that Regulation 13 is also incompatible with Article 1 of Protocol No.1 to the Convention.  Mr Ian Burnett QC for the Secretary of State resisted that application.  I heard full argument on the substance of the application of Article 1 of Protocol 1 before determining whether to grant permission for this additional ground to be argued.  In the light of my decision on the main ground, even were I to have granted permission to argue Article 1 of Protocol 1, the outcome would have been the same and therefore I refuse permission.
THE FACTS
4.	The claimant is divorced.  He has a child, Rebecca, whose date of birth is 10 September 1988.  During the course of Mr Plumb’s marriage, the arrangement was that he stayed at home and looked after Rebecca whilst his wife was engaged in full-time work.  Once the marriage broke down, Mr Plumb was determined to maintain his parental contribution to and support for Rebecca.  He was awarded unusually generous contact by Portsmouth County Court on 12th January 1998.  It was directed that Rebecca live with her mother, but that Mr Plumb have contact with her on the following terms:
(1)	staying contact every other weekend from Saturday 5pm to Monday 9am;
(2)	staying contact during half-term holidays and over the Christmas periods, the precise details of which are not in evidence;
(3)	weekly visiting contact on Wednesdays of 4 hours from after school until 7.30pm;
(4)	similar contact on Fridays every other week being the weekends when she was not staying with him;
(5)	Alternate Sundays non-staying contact of 10 hours.

5.	The home of Rebecca’s mother and her new partner is only a few hundred yards away from Mr Plumb’s home.  Rebecca has a room at Mr Plumb’s house with her own bed, clothing, books, toys, cutlery and other items which make it her own home.  It has been calculated that leaving aside the unspecified contact during half term and other holidays, Mr Plumb in fact provides some 1600 plus hours of care per annum and supplies 260 meals per annum.  It costs him between £11.50 and £16.70 per week to feed Rebecca depending on the extent of contact.  Mr Plumb has been on Job Seeker’s Allowance from the time of their separation in August 1997 and since that time has had to have recourse to the social fund for loans on six separate occasions, the last being on 14th December 2001.  His evidence is that in order to enable him to continue to have his level of contact with Rebecca, he has to live in extremely straitened circumstances and, of necessity, his contact with her does not involve the kind of ‘treats’, which are often associated with contact arrangements for a father where the child is living with the mother.  By way of contrast the evidence is that Rebecca’s mother is in full-time employment, has accommodation provided by her employer, earns approximately £15,000per annum and has a new partner who works in and owns his own company.  Currently, pursuant to the decision under review, Mr Plumb is having £5.40 per week deducted from his JSA and that is being diverted straight to Rebecca’s mother.
THE STATUTORY FRAMEWORK
6.	The relevant primary legislation is the Child Support Act 1991.  Section 1 of that Act imposes a duty to maintain.  Sub-section 1 provides that for the purpose of this act each parent of a qualifying child is responsible for maintaining it.  Sub-section 2 provides that for the purposes of the Act an absent parent shall be taken to have met his responsibility to maintain any qualifying child by making periodical payments of maintenance as may be determined in accordance with the provisions of the Act.  Section 3, sub-section 1 provides that a child is a qualifying child if one of his parents is in relation to him an absent parent.  Sub-section 2 provides that the parent of any child is an ‘absent parent’ in relation to him if (a) that parent is not living in the same household as the child and (b|) the child has his home with a person who is, in relation to him, a person with care.  Save for this provision, there is no further definition in the Act of an absent parent.
7.	Sub-section 3 defines a “person with care” in relation to any child if he is a person (a) with whom the child has his home, (b) who usually provides day to day care for the child and (c) who does not fall within a prescribed category of person.
8.	In this case it is common ground that Rebecca’s mother is a “person with care” for Rebecca.  The question whether Mr Plumb was ‘an absent parent’ fell to be decided by reference to Section 3(2)(a), namely whether he was not living in the same household with the child.  The evidence for the Secretary of State on this question is that of Velda Andrews, a Grade 7 Officer on the Child Support Policy Section of the Department for Work and Pensions.  Her account is to the effect that as a matter of policy the determining factor is whether that parent has care of the child for 104 nights a year.  It is common ground that Mr Plumb does not have care of Rebecca for 104 nights a year and so he was regarded as an absent parent.  No challenge is or could be lodged against that conclusion.  First, it is far too late for that conclusion to be challenged, Second even if the policy were flawed, and I am not asked to say that it is, on any view Mr Plumb would be an absent parent.  
9.	Section 42 of the Act provides for special cases.  Sub-section (1)  provides that 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 the Act.  Sub-section 2 sets out a number of examples which regulations may provide to be special cases.  It includes (f) ‘a qualifying child has his home in two or more separate households’.  Regulations have been made pursuant to Section 42.  They are the Child Support (Maintenance Assessments in Special Cases) Regulations 1992.  Regulation 1 is the interpretation regulation.  Within that regulation ‘day to day care’ is defined as meaning care of not less than two nights per week on average and during a 12-month period ending with the relevant week.  Part III of these regulations provide for special cases.  Regulation 20 deals with where persons are treated as absent parents.  Sub-regulation 1 provides that where the circumstances of a case are that (a) two or more persons who do not live in the same household, each provide day to day care for the same qualifying child then the case shall be treated as a special case for the purposes of the Act.  Within those circumstances the parent who provides care to a lesser extent than the other is to be treated as the absent parent for the purpose of the Act and regulations.  Thus even if, as a matter of colloquial usage, it may be said that Rebecca lives in two households, her mothers and her fathers, by virtue of the fact that Mr Plumb does not have care of her for 104 nights a year, he does not, on any view, provide day to day care as defined so as to fall within a special case and so he has to be regarded pursuant to the statutory scheme, as an absent parent.	
10.	Section 43 of the Act provides for contribution to maintenance by deduction from benefit.  Sub-section 1 provides that the section applies where by virtue of paragraph 5(4) Schedule 1, an absent parent is taken for the purposes of that Schedule to have no assessable income.  Paragraph 5(4) of Schedule 1 provides that where an income based job seeker’s allowance is paid to a parent who is an absent parent, that parent shall be taken to have no assessable income.  Section 43(2) empowers the Secretary of State to make regulations with a view to securing that payments of prescribed amounts are made with respect to qualifying children in place of payments of child support maintenance.
11.	The 1992 Regulations already referred to also are made under Section 43 and make the provision there referred to.  Regulation 28(1) provides that where an absent parent’s assessable income is deemed to be nil pursuant to Section 43 and the absent parent is aged 18 or over and does not satisfy certain other provisions, then the prescribed amount to be made by way of maintenance contribution by such a person in the manner secured by the regulations is the minimum amount prescribed by Regulation 13(1).  Regulation 13(1) currently provides that the minimum amount is 10% of the Income Support Personal Allowance for a single claimant aged not less than 25.  Currently the income support personal allowance for a single claimant aged not less than 25 is £54 hence the deduction made from that benefit is, prima facie, £5.40.
12.	The deduction which is due to be made on account of child support maintenance is, however, subject to the detailed arrangements set out in Schedule 9 of the Social Security (Claims and Payments) Regulations 1987.  In particular, paragraph 8 of Regulation 9 sets a ceiling of 25% of the single claimant’s personal allowance which may be deducted without consent and paragraph 9 provides for priority as between certain debts which may be the subject of automatic direct deduction.  The automatic deduction on account of Child Support Maintenance is the lowest priority and Regulation 7A(4) provides that in such cases the sum to be deducted on account of child support maintenance is reduced from £5.40 to £2.70per week.
The Article 8 Challenge
13.	Mr Plumb claims that the deductions of £5.40 per week currently being made from his JSA infringe his right to respect for his private family life protected by Article 8.1.  The defendant denies that a deduction by way of child support maintenance can amount to an infringement of Article 8.  It is said by the defendant that this would amount to an assertion that the Secretary of State is obliged to provide him with a further £5.40 per week to spend as he wishes and that it is well established that Article 8 imposes no positive obligation upon the State to provide financial assistance for the protection of family life.
14.	As an alternative, the defendant asserts that even if the deduction is capable of constituting an infringement of his right to respect for his private family life, in fact in the present circumstances, there is no such infringement.  In the further alternative, the defendant contends that if there is an infringement, then nonetheless it is excused by virtue of the terms of Article 8.2, namely:
 “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 and freedoms of others”.
15.	It is correct to say, as the defendant contends, that there is an impressive array of authority to the effect that Article 8 imposes no obligation on the state to provide financial assistance.  Where Article 8 is the only article in play that is certainly the case.  (Petrovitch v Austria [2001] 33 EHRR at 307, paragraphs 25 and 26).  The complaint was that the refusal to pay a parental leave allowance to a father violated Article 8 and 14 where circumstances were that such an allowance would be paid to a mother.  The court said that it agreed with the Commission that the refusal to grant a parental leave allowance cannot amount to a failure to respect family life since Article 8 does not impose any positive obligation to provide the financial assistance in question.  The fact that the payment of such an allowance fell within the scope of Article 8 so as to found a claim of discrimination pursuant to Article 14 was neither here nor there to its relevance to the present application. I agree.   In the case of Vaughan v UK [1987] the Commission, confronted with a complaint that an unemployed person in receipt of supplementary benefit was unable to recover the cost of travelling expenses incurred in picking up and delivering his child from and to his former house  constituted alleged infringement of Article 8, concluded that the right to respect family life does not impose an obligation on states to provide financial assistance for the purpose of ensuring that individuals do enjoy family life to the fullest.  The case of Sharon Tucker v Secretary of State for Social Security (unreported) concerned the question of housing benefit.  Although obiter, the dictum of Mr Justice Maurice Kay was to the effect that any attempt to rely upon Article 8 alone to sustain a convention right to a welfare benefit faced difficulty. In the case of Painter v Carmarthenshire County Council Housing Benefit Review Board on 4th May 2002 (unreported) Mr Justice Lightman stated that it was conceded that the refusal of housing benefit cannot of itself constitute a breach of Article 8, a concession rightly made because Article 8 imposes no positive obligation to provide financial assistance for the provision of housing or the protection of family life.
16.	In the case of Joanne Reynolds v Secretary of State for Work and Pensions, decided on 7th March this year (unreported), Mr Justice Wilson had to deal with a complaint of alleged breach of Article 8 by a young mother who was complaining that her income support at the age of below 25 was at so low a level that her private life was gravely impoverished and her ability to maintain her home was substantially impaired.  Mr Justice Wilson cited the case of Tucker and Vaughan and concluded that the broadly worded principle in Article 8 is not apt to a challenge to the level of the social security payment.
17.	Mr Blake has sought to argue that each of these cases is distinguishable from the present one.  In each of these cases, the question in issue was whether the claimant was entitled to an additional sum by way of benefit failure to pay which additional sum was said to infringe Article 8. Thus, he argued, the essence of these complaints was that which had been rejected in Petrovitch, namely that of seeking to impose upon the state a positive obligation to provide the financial assistance in question.  By way of contrast, Mr Blake asserts, Mr Plumb is not seeking to assert the positive obligation to provide him with further financial assistance.  What he complains of is that the financial assistance to which he is already entitled, is being reduced by way of the deduction by diverting the sum which ought to be paid to him, to Rebecca’s mother.  Mr Burnett countered by saying that as a matter of substance, the essential complaint is that the net effect of the operation of the benefit system, in tandem with the relevant rules pertaining to child support, leave the claimant with insufficient funds to enjoy his family life.  In other words the state should, on the claimant’s case, pay him more money (or deduct less, which amounts to the same thing).  In my judgment Mr Burnett is wrong in saying that the deduction of a benefit to which Mr Plumb is prima facie entitled is the same as declining to pay him a sum to which he is not yet entitled. Thus, in my judgment, a deduction by the state of a sum from that which the state has already determined Mr Plumb is entitled to receive, is capable of amounting to an interference with his Article 8 rights.  Whether it does or not depends on the facts of the circumstances in question.
18.	There is some guidance from Europe on this latter question.  In the unreported case of Logan v U.K. in 1994, a complaint was made by Mr Logan that the amount of maintenance he was required to pay under the Act, left him with insufficient money to enable him to maintain reasonable contact with his children.  In that case the applicant was allowed access every second Sunday from 10a.m. to 4p.m., he living 30 miles from the children’s home.  Orders were made pursuant to the Act which, he claimed, meant that he was now only able to visit the children once per month instead of once per fortnight.  His complaint was that after having paid maintenance payments he was left with insufficient money to maintain reasonable contact with his children.  The Commission concluded that the relevant legislation, insofar as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature effect family life.  It went on to conclude that in the light of the factual information supplied by the applicant, the Commission did not consider that he had shown that the effect of the operation of the legislation in his case was of such a nature and degree as to disclose any lack of respect for his right under Article 8 and in the circumstances the Commission did not find it necessary to go on to consider whether, had there been an interference, it would have been justified within the meaning of Article 8, paragraph 2 of the Convention.  A similar outcome was reached in the unreported case of Burrows v U.K. in 1995.  In that case there were maintenance payments assessed under the Act which the claimant complained had led directly to the break up of his second family and further he could no longer afford access to his third child who lives 200 miles away.  He complained that by refusing to recognise the costs of travelling to his children and refusing to recognise his real housing costs, the Government had failed to respect the need for continued contact with his children via access and overnight residence.  The Commission referred to Logan where it had held that the relevant child support legislation does not, by its very nature, effect family life and went on to conclude that in the light of the information provided by the applicant, it did not consider that the applicant had shown that the effect of the operation of the legislation in his case was of such a nature and degree as to disclose any lack of respect for his rights under Article 8.
19.	Thus, the European cases indicate that whilst the provisions of the legislation itself may not directly affect family life, the effects of decisions made pursuant to the legislation may do so, depending upon the nature and degree of interference caused in consequence of the payment or deduction from benefit required to be made.  In my judgment, having regard to the evidence of Mr Plumb in this case, it is clear that he is a devoted and determined father who has been prepared to suffer straitened circumstances in order to maintain the full level of his contact with Rebecca and has succeeded in so doing over a period of years.  Thus his position falls very far short of those described respectively in the cases of Logan and Burrows where the quantity of contact between absent parent and child was substantially diminished as a result, it was claimed, of the maintenance payments being made pursuant to the legislation.  Just as the Commission in those cases concluded that there was no interference with the applicant’s Article 8 rights by virtue of the facts disclosed there, so in the present case I conclude that nothing that Mr Plumb has given evidence of amounts to an interference of his private and family life.
Article 8(2)
20.	Even if I am wrong about this and the facts in this case do disclose such interference, the defendant asserts that nonetheless, any such interference as there might be does not give rise to a breach of Article 8 because it falls within the terms of Article 8(2).  The claimant accepts that the interference of which he complains is in accordance with the law and that there is a pressing social need to which the child support regime is a response.  Both sides agree that in matters of social and economic policy, the executive enjoys a right to a wide measure of respect for its policy choices, dis-entitling the court to intervene, even if broad choices create some injustice at the margins of their application. They also agree that the question which the court has to decide involves questions of balance between competing interests and issues of proportionality.  In essence, what the claimant says is that he is an absent parent only by virtue of the operation of the ‘104 night rule’.  If one calculates the number of hours of care involved for a parent who satisfies the 104-night rule, then he cares for Rebecca for a larger number of hours per year than such a parent and provides significantly more meals throughout the year than such a parent. Furthermore, he says that the Government has recognised that a person in his circumstances should no longer be required to suffer a deduction from his benefit as the amended provisions of the scheme will upon their taking effect henceforth provide that anyone who has care of a child for more than 52 nights per year will no longer be required to make any contribution to the maintenance of the child if they are in receipt of a Job Seeker’s Allowance.  These provisions have not yet been brought into effect, but may be brought into effect in April of this year in a phased way.  Mr Blake on behalf of Mr Plumb argues that the terms in which the Green Paper and the White Paper, which led to the development of this new policy, reveal a recognition that the existing rules from which Mr Plumb suffers, were unfair and denoted an unfair balance of interest between, in this case, an indigent parent who is nonetheless substantially caring for his child and the requirement that an otherwise absent parent should make some financial contribution to the care of his child.
21.	In my judgment there is nothing in the language or in the context of either the Green or the White paper to enable me to conclude that the Government itself has accepted that the previous regime was anything other than lawful, even though the whole regime was being the subject of review and changes have been made in some cases advantageous to persons in the same position as Mr Plumb and in other cases advantageous to those who might be in receipt of maintenance.  In particular, it is of note that the new scheme still maintains as the hallmark of care, the overnight stay, as distinct from contact and, therefore, does not equate daytime care with overnight staying care.  Nor do I find anything unlawful in Parliament passing legislation which brings the new regime into effect in phases.   It therefore follows that, had I been persuaded that the impact of the deduction from Mr Plumb's job seeker’s allowance was such as to constitute interference with his Article 8 rights, my conclusion would have been that it would have been justified pursuant to Article 8(2) and so he would not establish an actionable breach of Article 8.
22.	It therefore follows that, in my judgment, Mr Plumb’s applications for Judicial Review fails and I dismiss his application.
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JUDGE WILKIE: For the reasons given in the draft judgment which has been distributed to the parties, the application for judicial review fails and I dismiss the application. 
MR DE MELLO: Both my learned friends and I have not had the benefit of seeing the draft judgment. So I cannot tell you whether I want to ask for permission. 
JUDGE WILKIE: I will give you a couple of minutes just to look through. I think probably starting at page 11 is where you might want to.... 
MR DE MELLO: Thank you. (Pause) 
     My Lord, I have quickly read through the pertinent parts of your Lordship's judgment, and given your conclusions on paragraph 16 - sorry is it paragraph 16. There are two 16s. The first paragraph 16 on page 11, I see that it might be difficult to persuade your Lordship to grant me permission to appeal because your Lordship has made a finding of fact. But, nevertheless, with some audacity, I do ask for permission. 
JUDGE WILKIE: I found your argument as a matter of law persuasive, but as a matter of fact unfortunately you did not suceed.
MR DE MELLO: I see that, but nevertheless I safeguard my client's position by asking for permission to appeal for the same reasons advanced by Mr Blake, and I need not rehearse those arguments. I also see your Lordship has not touched on Article 1 of the First Protocol, but I think your Lordship---- 
JUDGE WILKIE: Sorry, well I dealt with that in paragraph 3.... 
MR DE MELLO: I see. 
JUDGE WILKIE: ....of the judgment. 
MR DE MELLO: I was going to say the outcome would be the same, given your findings in the first paragraph 16 on page 11. 
JUDGE WILKIE: Yes. 
MR DE MELLO: But I need say nothing else. That is my submission.
JUDGE WILKIE: Thank you.
	Ultimately my decision was one based on fact, and therefore I refuse you leave. 
MR DE MELLO: The second thing is the claimant has the benefit of a legal aid certificate, now called a public funding certificate. May I have the necessary order for taxation?
JUDGE WILKIE: Certainly, yes. 
MR DE MELLO: I am most grateful. 
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