UK Social Security and Child Support Commissioners' Decisions

R(CS) 2/00
(Wakefield v. Secretary of State for Social Security and Anor.)

Mr. R. J. C. Angus CCS/3510/1997

20.1.99

CA (Peter Gibson and Schiemann LJJ and Wilson J)
8.2.00

Maintenance assessment – income – whether occupational pension payable as a result of disability following injury sustained at work should be disregarded as income

A maintenance assessment was carried out following the application of the parent with care of three qualifying children. The absent parent was a fireman who had sustained an injury at work which caused him a permanent disability, leading to his early retirement. He received an occupational pension, comprising an ill health pension because he was forced to retire on the grounds of disablement and an additional injury pension payable because his disablement arose through an injury sustained at work which was not his fault. The whole of his pension was included as income in the maintenance assessment. The absent parent applied for a review of that decision which was refused and he appealed to a child support appeal tribunal, contending that the injury pension, being compensation for personal injury, should be disregarded under paragraph 5 of Schedule 2 of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992. The tribunal rejected that contention and the absent parent appealed to the Commissioner. The Commissioner refused the appeal, deciding that paragraph 5, Schedule 2 does not apply because the injury pension was in the nature of a pension rather than compensation and accordingly was to be taken into account as income by virtue of paragraph 9 of Schedule 1 to the Regulations. The absent parent appealed to the Court of Appeal.

Held, dismissing the appeal, that:

payments made by reason of injury under an occupational pension scheme do not represent compensation for the injury.


DECISION OF THE CHILD SUPPORT COMMISSIONER

1. The decision of the Child Support Appeal Tribunal dated 24 April 1997 is not erroneous in law.
2. The appellant is the father and, for the purposes of the Child Support Act 1991 the absent parent of three qualifying children. The first respondent is the child support officer now concerned. The second respondent is the mother of the children and, for the purposes of the  Act, the parent with care.
3. The appeal is taken, with the leave of the chairman, against the tribunal's decision remitting the appellant's case to the Secretary of State with directions to the child support officer for the reassessment of child maintenance payable by the appellant.
4. Paragraph 7 of the tribunal's statement of findings in fact and reasons for decision is as follows:

"[The appellant's] occupational pension has been correctly taken into account in full. [The appellant] retired on medical grounds under the terms of the Fireman's Pension Scheme Order, and is now in receipt of a pension. Such payment is not compensation for personal injury, nor payment from a trust fund set up for such purpose. MASC Regs, Schedule 2, paragraph 5. Nor is Schedule 2, paragraph 8 appropriate.

MASC Regs 1992, Schedule 1, Part III, paragraph 9 covering period payment of pension or other benefit under an occupational pension scheme is appropriate.".

5. The only ground on which the appellant disputes the tribunal's decision is that the injury element in his fireman's pension should not be taken into account in assessing his income. His statement of his grounds of appeal is as follows:

"On 24 November 1993 I sustained personal injuries during the course of my employment as a fireman employed by [ ] Council. A floor collapsed under me whereby I fell 12 feet and sustained an injury to my left ankle which gave rise to a permanent disability which has been medically assessed as being 20%. As a result of this injury I was forced to retire from the [ ] Fire Brigade in 1985 since when I have been receiving a pension of which 65.32% is expressly stated to be a pension attributable to my injury with the balance being a basic retirement pension.

Under the provisions of [Schedule] 2 Child Support (Maintenance Assessment Etc) Regulations 1992, paragraphs 5 and 8, that proportion of my pension which is attributable to my personal injury and my consequential disability should be disregarded when calculating my income. That is something which the Tribunal ignored".

6. In his submission of 7 November 1997 the child support officer now concerned did not support the appeal. He submitted that, contrary to what is argued in the statement of grounds of appeal, the tribunal did address the issue of whether or not the fireman's injury pension should be disregarded in the calculation of the appellant's income. That part of the child support officer's submission is, as can be seen from paragraph 7 or the tribunal's reasoning which I quote above, clearly correct. The child support officer submitted also that the tribunal was correct in its conclusion that the injury element in the appellant's pension is not excluded from aggregation by paragraph 5 of Schedule 2 to the Child Support (Maintenance Assessment and Special Cases) Regulations 1992, "the MASC Regulations". That is because the fireman's injury pension is a pension paid in respect of incapacity and payment of it is not, per se, compensation for personal injury. Moreover, paragraph 8 of Schedule 2 which the appellant cites refers specifically to Social Security benefits and payments of compensation for non-payment of such benefits.
7. The making of a maintenance assessment in accordance with the 1991 Act involves the calculation of the respective net incomes of the absent parent and the parent with care. Schedule 1 to the MASC Regulations specifies the sources of income which are to be taken into account in those calculations and Schedule 2 specifies those amounts which are to be disregarded. In Part III of Schedule 1, under the heading "Other Income", paragraph 9 is as follows:

"Any periodic payment of pension or other benefit under an occupational or personal pension scheme or a retirement annuity contract or other such scheme for the provision of income in retirement".

Paragraph 5 of Schedule 2 specifies the following disregard:

"Any compensation for personal injury and any payments from a trust fund set up for that purpose.".

8. I heard the appeal on 15 September 1998. The appellant was present and represented by Mr. R. A. Dukes, Solicitor. The child support officer was represented by Mr. Scoon of the Office of the Solicitor to the Secretary of State for Social Security. I am grateful to Mr. Dukes and Mr. Scoon for their submissions.
9. Mr. Scoon did not adhere to the child support officer's submission to the Commissioner. He said that it was accepted that the pension paid to the appellant related directly to injury and was, therefore, a payment of compensation for personal injury within the meaning of paragraph 5 of Schedule 2 to the MASC Regulations. In support of this view he referred to the Inland Revenue treatment of the pension for income tax purposes. It was given an extra-statutory exemption from tax as would be seen from the appellant's payslips. The non-injury part of the pension was theoretically taxable but that was probably offset by personal allowances. Mr. Scoon referred me to document 174 of the bundle which is a letter from the appellant's local authority employer advising him that the authority had, for the purposes of section 66 of the Fireman's Pension Scheme Order, decided that he had been permanently incapacitated by a qualifying injury (as defined in the scheme) for the performance of his duties as a fireman and that the degree of disablement was 20%. He referred me also to document 134 of the bundle which is a pension certificate for income tax purposes issued in May 1993 in respect of the tax year 1993/94 which shows no tax payable on the pension paid from April 1993 to March 1994.
10. Mr. Dukes agreed with Mr. Scoon. He produced a copy of a letter of 30 May 1997 from the administrators of the pension fund (which I have put in the appeal bundle as document 200A) confirming that the appellant receives a Fire Brigade Basic Pension of £225.71 gross per month and a Fire Brigade Injury Pension of £425.09 (tax free) per month. The relevant date for the maintenance assessment is, said Mr. Dukes, 31 March 1994 and of the weekly amount of the total pension of £138.52 there should be disregarded £90.48 per week. He did not have a copy of the Fireman's Pension Scheme Order but the pension would be paid under the current Order.
11. I suggested to Mr. Scoon and to Mr. Duke that the payment being made to the appellant was a pension within the meaning of paragraph 9 of Schedule 1 to the MASC Regulations and, as such, not to be disregarded in the calculation of the appellant's income. Mr. Dukes argued that only the basic pension was covered by paragraph 9. The injury element came within paragraph 5. Mr. Scoon accepted that paragraph 9 could, at first sight, cover the appellant's pension but paragraph 5 was a specific derogation from the generality of paragraph 9.
12. As his employer's decision to retire the appellant on the grounds of incapacity was intimated to him on 27 June 1985 the pension scheme under which pension was awarded was that enacted in the Firemen's Pension Scheme Order 1973 (SI 1973/966). The Scheme provides for a fireman's ordinary pension to be paid to a fireman retiring at the age of at least 50 years with at least 25 years pensionable service, a fireman's short service award for a fireman who for reasons of age or an inadequate period of service does not qualify for an ordinary pension, and a fireman's ill-health award for a regular fireman who is permanently disabled and retires on that account. The provision relevant to the appellant in this case is Article 15. That provides for an injury pension for a fireman who has suffered a disabling injury in the course of his duty. It is in the following terms:

"(1) This Article shall apply to a regular fireman who retires or has retired and is permanently disabled where his infirmity of mind or body is occasioned by a qualifying injury.

(2) A fireman to whom this Article applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Part V of Schedule 1; but payment of an injury pension shall be subject to the provisions of paragraph 5 of the said Part V and, where the fireman retired before becoming permanently disabled, no payment shall be made in respect of the period before he became so disabled.".

13. Part V of Schedule 1 provides that an injury award shall be calculated by reference to the degree of disablement, the fireman's average pensionable pay and the number of his completed years of pensionable service and will be the sum, expressed as a percentage of average pensionable pay, specified in the table applying those factors which is incorporated in that part of the Schedule. It is also provided that the amount of an injury pension shall be reduced by three-quarters of the amount of any other pension which is payable to the fireman and which is calculated by reference to the years of pensionable service. Paragraph 4 of that part of the Schedule provides also that the injury pension shall be reduced by the amount of certain of what would now be described as Social Security benefits, including disablement pension payable under the then section 12 of the National Insurance (Industrial Injuries) Act 1965.
14. The Firemen's Pension Scheme Order 1973 has been replaced by The Firemen's Pension Scheme Order 1992 (SI 1992/129) and I have no doubt that Mr. Dukes is correct in saying that it is under the new order that the appellant's pension is paid. The change in enactment is of no significance because those provisions which are relevant to the appeal are in substantially the same terms in the two orders and there are saving provisions in the new order for existing pensions.
15. At first sight Mr. Dukes' and Mr. Scoons' view that the appellant's injury pension comes within the scope of paragraph 5 of Schedule 1 to the MASC Regulations seems incontrovertible. One of the fundamental rules of statutory interpretation is that words are given their ordinary meaning unless there is some reason for not doing so and in arriving at their interpretation of paragraph 5 Mr. Dukes and Mr. Scoon were, I assume, applying that rule. "Compensation" is something which balances or makes recompense for something else and the payment of his injury pension could be said to be recompense to the appellant for having been injured on duty. However, I have come to the conclusion that that is an over simple approach to the interpretation of paragraph 5.
16. I think that the expression "compensation for personal injury" as used in paragraph 5 is limited in its meaning to payment made to an injured party by the person who is liable in the law of tort to make reparation for the injury or who accepts such liability. If that expression encompassed payments made by anyone other than one under such liability there would be no need for the inclusion in the paragraph of the words "any payments from a trust fund set up for that purpose" because any payment in respect of personal injury would, irrespective of its source, be covered by the first part of the paragraph. Accordingly, it is my view that the scope of paragraph 5 is not wide enough to include the payments made to the appellant under his former employer's pension scheme. Under that scheme injury pensions are paid irrespective of who, if anyone, was responsible for the injury and the injury pension is an enhancement of the retirement pension of a fireman who has had to retire from the Fire Service because of disablement resulting from an injury sustained in the course of his duty. It is in the nature of a pension rather than compensation. It is in my view a periodic payment of pension or benefit within the meaning of paragraph 9 of Schedule 1 to the MASC Regulations.
17. I have considered Mr. Scoon's argument that paragraph 5 is a specific derogation from the generality of paragraph 9 of Schedule 2. If Mr. Scoon's and Mr. Duke's interpretation of paragraph 5 is accepted that paragraph would be less specific than paragraph 9 because it would cover payments of both capital and income from whatever source including pension schemes. Paragraph 9 is specifically limited to a periodic payment of pension or benefit under an occupational pension scheme or other arrangement for the provision of income in retirement. Therefore paragraph 5, interpreted as generally as suggested by Mr. Scoon and Mr. Dukes, could not be a specific derogation from the generality of paragraph 9. The two paragraphs, to my mind, deal with entirely different types of payment.
18. I am confirmed in my opinion as to the correct interpretation of paragraph 5 by a consideration of the scheme of the 1991 Act and the MASC Regulations. Schedule 1 to the 1991 Act and Schedule 1 to the MASC Regulations specify how the child support officer should calculate the amount required to maintain a qualifying child and the sum which should be paid by the absent parent to the parent with care as a contribution to that maintenance requirement having regard to the parents' respective financial positions. To calculate that contribution it is necessary to calculate the net income of each parent. It will be seen from an examination of Schedules 1 and 2 to the Regulations that, in general, Schedule 1 provides for the aggregation in the income calculation of all the forms of income, including the generality of social security benefits, which an adult would use for the maintenance of himself and his family and which would normally be regarded as part of a family's total resources. Schedule 2 provides for the disregard of any money paid for some purpose special to the recipient, including the "earmarked" Social Security benefits such as attendance allowance, disability living allowance and increases in disablement benefit (but not disablement benefit itself).
19. My view is, therefore, that the scheme of the legislation, particularly Schedules 1 and 2 of the MASC Regulations, is that there is to be included in a parent's income all of the receipts which two parents living together with their children would regard as the household income and Schedule 2 excludes such payments as the payer intends to be applied to some particular need of the payee. If the appellant and the second respondent were still living together in a household with their children the appellant's entire pension would be, as were the earnings by reference to which it is calculated, part of the household resources. There is no logical reason for the injury element in the pension to be excluded from the family resources on the separation of the parents. Moreover, the application of paragraph 5, interpreted as suggested by Mr. Scoon and Mr. Dukes, to any pension scheme similar to that of the appellant could result in the anomaly which I describe in the following paragraph.
20. The terms of the appellant's pension scheme are such that a fireman who retired with less than five years service, having sustained a qualifying injury which had caused more than 75% disablement, would qualify for a gross injury pension of 85% of pensionable pay. The short service pension for which he would qualify would be at the most 5/60 or 1/12 of pensionable pay. The reduction to be applied to the injury pension would, therefore, be minimal and the retirement pension payable would consist almost entirely of the injury element. The result in a child support case would be, if paragraph 5 applied, that a pension which amounted to over 80% of the relevant parent's pensionable pay, and which in most cases would account for almost the whole of his or her retirement income, would not be aggregable in the calculation of the absent parent's liability for child support. Such a result is clearly anomalous and not consistent with the scheme of the Child Support legislation. There would be the further anomaly that an occupational disablement benefit would be disregarded but the state disablement benefit, the amount of which is deductible from the occupational benefit under the fireman's scheme, would be aggregable in terms of paragraph 6 of Schedule 1.
21. For the foregoing reasons the appeal fails and my decision is in paragraph 1 above.

Date: 20 January 1999 (signed) Mr. R. J. C. Angus
Commissioner

The absent parent appealed to the Court of Appeal. The decision of the Court of Appeal follows.


 


DECISION OF THE COURT OF APPEAL

The Appellant appeared in person.

Miss N. Lieven (Instructed by DSS, New Court, 48 Carey Street, London WC2A 2LS) appeared on behalf of the First Respondent.

The Second Respondent did not appear.

LORD JUSTICE PETER GIBSON:

I will ask Mr Justice Wilson to give the first judgment.


MR JUSTICE WILSON:

22. Should such part of an absent parent's occupational pension as relates to an injury sustained by him be taken into account in the assessment of maintenance to be paid by him with respect to a child under the Child Support Act 1991? Such is the question raised by this appeal.
23. The Appellant father has three daughters. They are now aged 22, almost 20 and 17. Their mother is the Second Respondent to the appeal but she takes no active part in it. When the parents' marriage broke down, the mother became the "parent with care" of the girls for the purposes of the Act of 1991 [the Act] and the father became the "absent parent".
24. The father is now 46 years old. In 1979, when he was 25 years old, he became employed as a firefighter by the Greater London Council. In 1983, while he was fighting a fire, the floor beneath him collapsed; he fell twelve feet and injured his left ankle. He developed osteoarthritis in the ankle and became incapable of continuing in the fire service. In 1985 he was adjudged to be partly - namely 20% - disabled and was forced to retire.
25. From the date of his retirement the father has been paid a pension referable to his service as a firefighter. The pension has been paid pursuant to the schemes successively set out in the Firemen's Pension Scheme Orders of 1973 (SI 1973 No. 966) and of 1992 (SI 1992 No. 129).
26. Under the schemes, which for present purposes can be taken to be identical, the father's pension has been in two parts, namely the "ill-health pension" and the "injury pension". The ill-health pension has been payable because he was required to retire on grounds of disablement. It was calculated by reference to his final pensionable pay and the number of years of his service. The injury pension has been payable because his disablement was caused by an injury received by him in the execution of his duty otherwise than by his own fault. That was calculated by reference to final pay, years of service and the proportion of disablement; and was reduced pound for pound by 75% of the ill-health pension. By extra-statutory concession the injury pension, being payable by reference to injury sustained on duty, has not been subject to income tax. Both parts of the pension have been increased each year in line with inflation: by March 1994 the ill-health pension had risen to £205 per month gross and the injury pension to £385 per month.
     
    
27. The father sued the Greater London Council for damages for breach of duty in relation to his injury. In 1987 he settled the claim for a payment of £100,000. The manner of his deployment of it is unclear; and no question is raised as to the proper treatment of it, or of any income still generated by it, under the Act.
28. In 1993 the mother applied under the Act for a maintenance assessment against the father with respect to the girls. In April 1996 a child support officer made the operative assessment. In calculating the father's income for the purposes of the assessment - which was in the sum of £51.33 per week for all three girls, backdated to 31st March 1994 - the officer took into account both parts of the father's fire service pension.
29. In May 1996 the father applied under s. 18(2) of the Act for a review by a second child support officer of the assessment which had been made. One of his grounds for the review was that his injury pension should not have been included in the calculation of his income.
30. In July 1996 the second child support officer refused to conduct the review on the basis that there were no reasonable grounds for the father's application.
31. In August 1996 the father appealed to a child support appeal tribunal under s. 20 of the Act against the refusal of the application for a review. At the hearing in April 1997 the tribunal rejected the father's submission that his injury pension should not have been included in the calculation of his income. The chairman gave leave to appeal to a Child Support Commissioner on that question of law.
32. On 15 September 1998 Mr Commissioner Angus conducted an oral hearing of the appeal. The child support officer had filed a written submission to the Commissioner in which he sought to uphold the ruling of the tribunal. But at the hearing the solicitor from the office of the DSS who appeared on behalf of the child support officer agreed with Mr Dukes, the father's solicitor, that the tribunal had been wrong to hold that the father's injury pension had been properly included in the calculation of his income.
33. By written decision dated 20 January 1999 the Commissioner, contrary to the unanimous professional submission to him, dismissed the father's appeal. He gave the father leave to appeal to this court under s. 25 of the Act on that question of law.
34. For financial reasons the father has not been represented on the appeal to this court. But Mr. Dukes has helped him to prepare an immaculate skeleton argument. The Secretary of State has been represented by Miss Lieven of Counsel; through her, he has reverted to the original stance of the child support officer and so opposes the appeal.
35. By paragraph 5(1) of schedule 1 to the Act the assessable income of an absent parent must be calculated by reference in part to his net income, expressed algebraically as N, which in turn must be calculated in accordance with regulations, in particular the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (SI 1992 No. 1815) ["the regulations"].
36. Regulation 7 of the regulations provides:

"(1) Subject to the following provisions of this regulation, for the purposes of the formula in paragraph 5(1) of Schedule 1 to the Act, the amount of N (net income of absent parent) shall be the aggregate of the following amounts-

...

(c) the amount, determined in accordance with Part III of Schedule 1, of the other income of the absent parent;

...

(2) Any amounts referred to in Schedule 2 shall be disregarded."

37. Part III of schedule 1 to the regulations lists "the other income" to be taken into account in the calculation of N. It includes the following:

"9. Any periodic payment of pension or other benefit under an occupational or personal pension scheme or a retirement annuity contract or other such scheme for the provision of income in retirement."

This paragraph was central to the Commissioner's conclusion.

38. Schedule 2 to the regulations lists the amounts to be disregarded in the calculation of N. It includes the following:

"5. Any compensation for personal injury and any payments from a trust fund set up for that purpose."

This paragraph is central to the father's appeal.

39. We have heard argument as to the relationship between paragraph 9 of schedule 1 and paragraph 5 of schedule 2. Miss Lieven disputes the father's contention that the former must be read subject to the latter. But I am clear that if, which she denies, paragraph 9 would include an amount which paragraph 5 would exclude, the latter must prevail. That conclusion is to be drawn from the fact that, as set out in paragraph 15 of this judgment, regulation 7(1) is expressed to be subject to regulation 7(2).
40. So the question becomes: is the father's injury pension "compensation for personal injury" for the purpose of paragraph 5?
41. An initial complication, which lies to the side of the case, is that "compensation for personal injury" might often be expected to take the form of a capital payment. How would such a payment be treated in the identification of (to use the words in the title of schedule 2) the "amounts to be disregarded" in the calculation of N? Regulation 2(1) of the regulations provides:

"Where any amount falls to be taken into account for the purposes of these Regulations, it shall be calculated or estimated as a weekly amount and, except where the context otherwise requires, any reference to such an amount shall be construed accordingly."

So "compensation" is an "amount"; and, being an amount which falls to be taken into account for the purpose of the disregard provisions of the regulations, it must be calculated as a weekly amount. It does seem that the reference in paragraph 5 to "compensation for personal injury" was intended to refer to payments in the character of income; and the conjunctive reference to "payments from a trust fund" may fortify that conclusion even though such would not exclude payments of capital.

42. The father argues, incontrovertibly, that his entitlement to the injury pension is squarely founded upon his injury. But does it follow, as he submits, that the pension must be "compensation" for the injury? Even if, on the day after leaving the fire service, he had obtained employment as highly remunerated as his former employment, he would still have been entitled to the injury pension. The pension, although calculated in part by reference to the degree of his disablement, was not calculated by reference to his likely loss of income or to any expense relating to the injury. The injury was simply the trigger for an extra pension. When entitlement to a pension arises, let us say, because the pensioner has reached the age of 65, can the pension be described as compensation for his having reached that age?
43. I also consider that, in conceding that the ill-health pension falls to be taken into account, the father's position is illogical. The ill-health pension was founded upon his disablement which, in turn, was wholly attributable to the injury. But for the injury, neither pension would be payable. The question, in both cases, is whether they represent compensation for it.
44. The Commissioner noted that, by virtue of regulation 7(1)(b) and paragraph 6(2) of schedule 1 to the regulations, a disablement pension paid to an absent parent under s. 103 of the Social Security Contributions and Benefits Act 1992 would fall to be taken into account in the calculation of N. By virtue of s. 94 of the Act of 1992, such a pension is payable only where the disablement arises out of personal injury caused by an accident in the course of employment. The Commissioner said - and I agree - that it would be anomalous that, while social security payments referable to disablement arising in such circumstances should be brought into account, analogous payments under occupational schemes should not be brought into account; and that such was a legitimate aid to the construction of paragraph 5.
45. The Commissioner also noted, however, that, by paragraph 9(b) of schedule 2 to the regulations, an increase of disablement pension under ss. 104 or 105 of the Act of 1992 falls to be disregarded in the calculation of N. Increases are payable under those sections to a pensioner who by reason of the disablement requires constant attendance by another person. Other parts of paragraph 9 require disregard of other social security payments which arise out of the need of a disabled pensioner for a substantial degree of such attendance. Equally, paragraph 8 requires disregard of a disability living allowance which, under ss. 71-73 of the Act of 1992, is payable to someone so severely disabled as to require a significant degree of care, or assistance in relation to mobility, from another person. In my view these exclusions are relevant to the scope of the exclusion for "compensation for personal injury" outside the realms of social security in paragraph 5.
46. In his argument the father introduces an analogy with the law of ancillary relief following divorce set out in ss. 23-25 of the Matrimonial Causes Act 1973. He submits that a claim for ancillary relief would not be assessed by reference to any compensation or damages for personal injury received by one party because such would be regarded as personal to that party. With respect, the submission is mistaken. In proceedings for ancillary relief the law, which I collect primarily from the decision of this court in Wagstaff v. Wagstaff [1992] 1 WLR 320, is in my view as follows:

(a) an occupational pension of each of the two forms paid to the father in this case should be taken into account, without qualification, pursuant to s. 25(2)(a) of the Act of 1973;

(b) any sum paid, whether within an award of special damages or otherwise, in order to compensate a party for loss of earnings caused by injury should also be taken into account, without qualification, pursuant to the same sub-section; the court would regard it as illogical that, while earnings should be taken into account and thus be fully available for the support of the family, a sum paid by way of compensation for their loss should be treated otherwise;

(c) any sum paid, whether within an award of special damages or otherwise, in order to compensate a party for the extra expense in looking after himself caused by injury, i.e. loss of amenity, should also be taken into account pursuant to the same sub-section, subject to the fact that he will have an extra "financial need" which should also be taken into account pursuant to s. 25(2)(b); these factors will not necessarily cancel out; and

(d) any sum paid, whether within an award of general damages or otherwise, in order to compensate a party for pain and suffering caused by injury should also be taken into account pursuant to the same sub-section, subject to the fact that, save perhaps indirectly, the pain and suffering fall to be borne by him alone, such being a "circumstance" which should also be taken into account pursuant to s. 25(1); as before, these factors will not necessarily cancel out.

47. I am clear that the effect of paragraph 5 of the regulations is to require the assessment for the purposes of the Child Support Act 1991 to depart from the court's assessment of claims for ancillary relief in respect of payments of the types referred to in (c) and (d) of the preceding paragraph of this judgment. Amounts paid by way of compensation for loss of amenity and for pain and suffering caused by personal injury must be altogether disregarded for the purposes of the Act of 1991. The grey area relates to payment of the type referred to in (b), namely of sums paid by way of compensation for loss of earnings. Arguably the words of paragraph 5 require in that respect a disregard which would be wholly illogical. Fortunately, however, the present case concerns payment of the type referred to in (a). In my view, for the reasons given, payments made by reason of injury under an occupational pension scheme do not represent "compensation" for it. The manner in which the Inland Revenue chooses to treat the injury pension is irrelevant.
48. So I would dismiss the appeal.

LORD JUSTICE SCHIEMANN:

I also would dismiss the appeal on the basis that payments made by reason of injury under an occupational pension do not represent compensation for that injury.
 


LORD JUSTICE PETER GIBSON:

I feel considerable sympathy for Mr. Wakefield: first, for the injury he has suffered and, second, because of the way the matter proceeded before the Commissioner, when Mr. Wakefield found his case supported by the legal representative for the Secretary of State only to find the Commissioner, on giving his determination, taking a different view. But it was the Commissioner's duty to construe the regulations properly, and on this appeal we must do likewise.

Mr. Wakefield has had the assistance of a solicitor in preparing his skeleton argument, and I would pay tribute to the lucid way in which the argument has been set out. He has submitted that the Commissioner misdirected himself, in particular because he had read into paragraph 5 in schedule 2 to the Child Support (Maintenance Assessment and Special Cases) Regulations 1992, words which are not there. He says it would have been open to Parliament to define compensation as being a payment from a person liable in tort to make reparation, but it did not do so. He points out that he received his injury pension solely because of his injury, and he says that had he not been injured he would not have received the injury pension.

The question turns on the true construction of paragraph 5 of schedule 2 set within the scheme of the regulations. I do not think the fact that the injury pension would not have been payable but for the injury means that the injury pension was "compensation for personal injury". Those words naturally connote the periodic payments payable by reason of liability for the personal injury, rather than any payment consequential on the injury.

Further, the scheme of the regulations seems to me to support the view that the income which would have been received by the parents, had they continued to live together, is what must be taken into account subject only to specific disregards. Those disregards require the leaving out of account of, for example, payments for particular purposes which would not have been part of the income of the family unit. It cannot be said that the injury pension would have been outside the income of the family unit.

For these, as well as the reasons given by Mr. Justice Wilson, I too would dismiss this appeal.

Order: Appeal dismissed.