UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is that the decision of the Liverpool appeal tribunal, held on 26^th November 2001 under reference U/06/900/2001/00225, is not wrong in law.

The appeal to the Commissioner

2. The appellant in this case is, in the terminology of the child support legislation, an absent parent. I shall refer to him in those terms.
3. The case comes before me on appeal to a Commissioner against the decision of the appeal tribunal brought with the leave of the tribunal's chairman. The Secretary of State does not support the appeal. The absent parent asked for an oral hearing of the appeal. I refused that request in my direction of 14^th August 2002.

The issue

4. The issue in this case is whether the treatment of the maintenance paid for the absent parent's step daughter is a violation of a Convention right under the Human Rights Act 1998.

Two assumptions

5. I have written this decision on the basis of two assumptions. Both relate to the way in which the absent parent has presented his case. Both are favourable to him.
6. First, the absent parent has presented his argument on the basis that the maintenance is payable to his stepdaughter. That is possible. However, it is, I believe, unusual. The more usual arrangement is for maintenance to be payable to a child's mother for the benefit of the child. I have dealt with the case on the basis that the maintenance is payable to the stepdaughter and not to her mother. My reasoning would be the same even if the maintenance were payable to her mother instead.
7. Second, the Convention rights on which the absent parent relies are not his own, but those of his stepdaughter. I have assumed, but do not decide, that he is entitled to try to rely on those rights to his own advantage.

The treatment of the maintenance in child support law

8. In order to determine the absent parent's human rights arguments, it is important to identify the significance of the maintenance paid to his stepdaughter in the assessment of his liability for child support maintenance. This maintenance is taken into account in calculating the absent parent's protected income: see regulation 11(2)(a)(i) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. That calculation is but one step in the formula calculation under Schedule 1 to the Child Support Act 1991. The earlier steps in the formula calculation concentrate on the absent parent's own income. The protected income step takes into account the income of the absent parent's present family unit. Its purpose is to balance the interests of the absent parent's family against his responsibility, under section 1(1) of the Act, to maintain his children. It tests whether there is sufficient income left to the present family as a whole to meet their basic needs. So, the income from his stepdaughter was not directly taken into account in calculating the amount of the absent parent's child support liability. The protected income calculation can have only one of two effects. It may show that the absent parent's family has sufficient income to meet its basic needs, in which case it has no effect on the calculation under the earlier steps in the formula. Or it may show that the family does not have sufficient income for that purpose, in which case the calculation made under the earlier steps in the formula is adjusted to protect the family.

The purpose of maintenance

9. It is also important to understand the nature of maintenance paid to the stepdaughter by her natural father. It is a sum calculated by reference to the cost of the stepdaughter's everyday needs, like food and clothing. Its payment discharges her father's liability in respect of maintenance. It is intended to cover the financial needs of his daughter. However, once it has been paid to her, she does not hold it on trust. She is not under a duty to use in for any particular purpose. She is free to save it or to spend it as she wishes.

The human rights arguments

10. The absent parent has relied, under the Human Rights Act 1998, on the Convention rights in Articles 6, 8 and 14 of the European Convention on Human Rights and on Article 1 to Protocol 1 to the Convention.

Article 1 of Protocol 1

11. Article 1 of Protocol 1 deals with the protection of property. I need only refer to the first paragraph. It provides:

'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by the law and by the general principles of international law.'

12. What is the relevant possession in this case? The stepdaughter has two possessions. Her first possession is the legal right to be paid the maintenance by her natural father. The protected income calculation does not affect that right. Indeed, it assumes that the right will continue to exist and to be satisfied. It neither deprives the daughter of her right nor interferes with the peaceful enjoyment of it. The daughter's second possession is the money she receives when the maintenance is paid. Child support law does not deprive her of the money. So, the only issue is whether there has been a violation of her right to peaceful enjoyment of the money when it is actually received.
13. The European Court of Human Rights has held that not every provision that may have an impact on a person's enjoyment of a possession is a violation of the right to peaceful enjoyment. There will only be a violation if the legislation does not strike a

'fair balance … between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'

See the judgment of the Court in Sporrong and Lönnroth v Sweden (1983) 5 European Human Rights Reports 35 at paragraph 69.

14. So, the issue for me to determine is this. Does regulation 11(2)(a)(i) strike a fair balance between the general interest and the fundamental right of the absent parent's stepdaughter? My answer is that it does. Why?
15. I have already set out the nature of the stepdaughter's maintenance and how and why it is taken into account in the child support formula. Her maintenance is calculated on the basis of need. It is paid to meet, or at least to contribute towards the cost of, that need. The protected income calculation takes it into account as part of the general pool of income available to meet the needs of the absent parent's present family. It may be that the maintenance is not in practice treated as part of that pool. It may be that it is retained as savings for the future. It may be that is reserved for special expenditure on the stepdaughter that could not otherwise be afforded. However, the legislation assumes that it will be used for the purpose for which it was calculated and paid. That is legitimate. In the terms of the Strasbourg jurisprudence, it is proper to take this into account in determining whether a fair balance has been struck between the daughter's fundamental right and the demands of the general interest of the community.
16. The interest of the community includes the absent parent's natural children, the 'qualifying children' for the whom child support maintenance is being calculated. That interest is reflected in the child support legislation. That legislation makes it the absent parent's responsibility to maintain those children, along with their mother. It prevents that responsibility being borne by the mother alone or imposed, in whole or in part, on the benefit system. That is a legitimate general interest for a community to adopt. It is not in the general interest, as so expressed, for child support maintenance to be lower than it otherwise need be because an absent parent is treated as being responsible for a child for whom maintenance is being paid by someone else.
17. So, my conclusion is that there is no violation of the Convention right in Article 1 of Protocol 1. I do not need to rely on any of the defences expressed in that Article. On my analysis, the stepdaughter's right to the peaceful enjoyment of her maintenance is not violated by the terms of regulation 11(2)(a)(i).

Article 14

18. Article 14 deals with discrimination. It 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.'

19. The Secretary of State argues that, because there is no breach of any other Convention right, this Article does not apply. I reject that argument. If it were correct, Article 14 would be redundant. The Strasbourg jurisprudence has held that it is sufficient if a case falls within the ambit of another Article without the need for a violation of that Article. See the decision of the European Court of Human Rights in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 European Human Rights Reports 471 at paragraph 71.
20. At this point, I make another assumption in the absent parent's favour. I assume that the circumstances of this case come within the ambit of Article 1 of Protocol 1, although there has not been a violation of that Article.
21. The basis of the discrimination alleged by the absent parent is this. His stepdaughter's maintenance is paid under a court order. As such, it is taken into account in the protected income calculation. However, if his stepdaughter's maintenance were paid under the child support legislation, instead of under a court order, it would have been treated differently. That is the effect of the interpretation of regulation 11(2)(a)(i) by Mr Commissioner Henty in CCS/1020/2000. The basis for that decision (paragraph 7) was that, if regulation 11(2)(a)(i) included child support maintenance, it would result in 'an endless circle of reassessments'. Is that discrimination? My answer is that it is not. Why?
22. In order for there to be discrimination, there must be a difference of treatment that has no objective or reasonable justification. In other words, it must pursue a legitimate aim. See the decision of the European Court of Human Rights in Lithgow v United Kingdom (1986) 8 European Human Rights Reports 329 at paragraph 177.
23. In this case, there is a difference in treatment. It is based on the difference between maintenance paid under a court order and maintenance paid under the child support scheme. In this case, the child support scheme applies because the parent with care of the absent parent's children is receiving state support through a working families' tax credit. Originally, the child support scheme was designed to take over the bulk of the courts' responsibility for all maintenance for children. It has not been brought fully into effect. It has come into effect for all cases in which the person with care is receiving state support. But the administrative and political difficulties with the scheme have prevented it being given the scope that was originally envisaged. Those difficulties have caused frequent amendments. A series of radical changes have recently been enacted, but have not yet come into force.
24. Why is there this difference in treatment in this case? It arises from a combination of transitional issues and the inherent logic of the scheme.
25. In so far as the difference in treatment arises from the transition to the child support scheme, it has an objective and reasonable justification and pursues a legitimate aim. Whenever a new legislative system is introduced, the change from the former system has to be managed. That is done by transitional provisions. Those provisions will inevitably involve differences of treatment. A distinction between cases that involve state support and those that do not is objective and reasonable.
26. Government policy on the scope of the child support scheme has changed. Originally, the policy was that the scheme would cover all cases. Now it appears that the scheme will largely be confined to cases in which the person with care is receiving state support. In so far as the difference in treatment arises from this change of policy, it has an objective and reasonable justification and pursues a legitimate aim. The state obviously has a special interest in the amount of maintenance paid by an absent parent when the person with care and the qualifying children are receiving public financial assistance. It is legitimate to ensure that the cost of bringing up a child is not transferred from the parents to the state when one of the parents is in a position to make a financial contribution.
27. Any scheme for calculating maintenance will have its own structure. It is inevitable that in order to maintain the coherence of the overall structure of the scheme, decisions may have to be made that involve differences of treatment. The decision in CCS/1020/2000 was necessary in order to maintain the coherence of the scheme by ensuring that it did not involve endless circularity in calculations. In so far as the difference in treatment arises from this consideration, it has an objective and reasonable justification. It pursues the legitimate aim of having a workable and coherent system.

Other Articles

28. The absent parent also relied before the appeal tribunal on Articles 6 and 8. Like the tribunal, I do not understand the reference to Article 6. As regards Article 8, I need do more than refer to the comprehensive judgment of Mr Justice Munby in The Queen on the application of Denson v Child Support Agency [2002] EWHC 154 (Admin), which reviews the Strasbourg jurisprudence rejecting challenges to the child support scheme under this Article.

Summary

29. The absent parent's challenges to the child support scheme on human rights grounds fail. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 9th September 2002