Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC CSC1/96 (12 December 1996)

 


Decision No: CSC1/96

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991

CHILD SUPPORT

Appeal to the Child Support Commissioner

on a question of law from the decision of the

Child Support Appeal Tribunal

dated 15 January 1996

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the absent parent, Mr K… Mc... against the decision of the Child Support Appeal Tribunal sitting at Newry, which dealt with a number of points which had been raised by him. The only issue on which Mr Mc... now appeals to the Commissioner is whether the Tribunal had been correct in holding that "excess mileage allowance", which had been paid to him by his employer should have been included in the calculation of his income for child support purposes. The Tribunal's finding of fact on this issue was that "the excess mileage allowance is income and had been correctly treated in the second-tier review as such." Their "reasons for decision" included the following:-

"The excess mileage was income, as it was not wholly, exclusively

and necessarily incurred in the performance of the duties of the

employment. Child Support (Maintenance Assessment and Special

Cases) Regulations, (Northern Ireland) 1992 Schedule 1 Regulation

1(1)(d)."

2. The grounds of the claimant's appeal are as follows:-

"The CSA state the excess mileage was income not wholly,

exclusively and necessarily incurred in the performance of

the duties of my employment. I do not believe in my position

this is the case. Without this allowance it would not have

been viable for me to take this position ie I could not have

afforded to take the redeployment."

His Notice of Appeal was accompanied by a letter in which Mr Mc... pointed out that, as he had explained to the Tribunal, he would have lost his job if he had not agreed to take redeployment with an excess mileage allowance. He further maintained that it was unfair to treat the allowance as profit, particularly as the use of his car had put him to considerable additional expense because he had been involved in two accidents.

3. In her written observations on the appeal, the Child Support Officer then concerned with the case submitted that the Appeal Tribunal had not erred in law on this issue, and she referred to a number of decisions of the GB and NI Commissioners in which similar questions had been considered.
4. I held an oral hearing at which Mr Mc... was present and the Child Support Officer was represented by Mrs Patricia McCann.

Mr Mc... had no further arguments to advance in support of his contention that the mileage allowance paid to him by his employer should not have been treated as income. He did not suggest that the allowance was anything other than payment in respect of his travel between his home and his place of work; but he expressed the opinion that in the particular circumstances of his case it was unfair that it should be regarded as income.

Mrs McCann submitted that the Appeal Tribunal had correctly decided that Mr Mc...'s mileage allowance was to be treated as income; but she went on to explain that from 18 April 1995 the Child Support Agency had been given a discretion with regard to travelling costs which enabled them to disregard part of an allowance of this nature. She said that in order to take advantage of this provision Mr Mc... should notify the Agency in writing that he wished to claim a deduction for travelling costs. The matter would then be considered.

5. As I explained to Mr Mc... at the hearing, the Courts have long recognised the distinction between expenses incurred in the performance of duties of employment, and those which are incurred in order to enable such duties to be performed: see for example, the decision in the case of Smith -v- Abbot, reported at [1994] 1 All ER 673. So far as the present case is concerned, the cost of travelling between Mr Mc...'s home and his place of work is an expense of the latter kind, and could not be said to be wholly, exclusively and necessarily incurred in the performance of the duties of his employment. My views on this subject have been set out in R1/94(FC) and it is unnecessary for me to refer to them in any detail. It is sufficient for me to state that I am satisfied that, in this instance, the Tribunal did not err in law in deciding that the excess mileage allowance paid to Mr Mc... was correctly included in the calculation of his income, and I accordingly dismiss this appeal. I need scarcely remind Mr Mc... that he should waste no time in requesting that consideration be given to the question of whether an amount should be allowed in respect of his travelling costs.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 December 1996