UK Social Security and Child Support Commissioners' Decisions

R(CS) 5/04

(R (Qazi) v. Secretary of State [2004] EWHC 1331 Admin)

HC (Charles J)

CCS/3784/2002

14.6.04

Departure direction - costs incurred to maintain contact with children

The claimant, who was an "absent parent", applied for a departure direction to meet the costs incurred in maintaining contact with his daughters once a month under the terms of a court order. As he lived in London and the children lived in Wrexham, those costs included overnight accommodation as well as travel. His application was refused on the ground that the expenses did not fall within the prescribed description of special expenses as required by section 28F(1)(a) of the Child Support Act 1991 as amended ("the 1991 Act"). Regulation 3(1) of the Child Support Departure Direction and Consequential Amendments Regulations 1996 ("the 1996 Regulations") provided that "where any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount and, except where the context otherwise requires, any reference to such amount shall be construed accordingly". When converted to a weekly figure, the claimant's travel costs did not exceed the threshold of £15 a week set out in regulation 19(2) of the 1996 Regulations. His appeal to an appeal tribunal was rejected, as was his application for leave to appeal to a Child Support Commissioner.

On his application to the High Court for judicial review of the refusal of leave, it was not disputed that the allowable expenses were limited to travel costs by regulation 14(1) of the 1996 Regulations. It was argued by reference to regulation 3 of the 1996 regulations and what would be fair (or "just and equitable" using the language of section 28F(1)(b) of the 1991 Act) for the monthly expenses to be treated as weekly expenses, and also that the refusal of the departure direction was in breach of Article 3, Article 6 (in conjunction with Article 14), Article 8 and Article 1 of the First Protocol.

Held, dismissing the application, that:

regulation 19 of the 1996 Regulations set a threshold for the amount of special expenses in respect of which a departure direction could be given. It followed that if that threshold were not met no departure direction could be given (paragraph 24);

regulation 3 of the 1996 Regulations provided that the sum of £15 referred to in regulation 19(2)(a) was a weekly sum. It followed that the claimant failed to satisfy the threshold set by regulation 19 (paragraphs 25 and 26);

neither regulation 3 nor the general proposition as to what is fair or just and equitable founded an argument that the allowable parts of the claimant's monthly expenses should be treated as weekly expenses (paragraph 27);

the claimant's circumstances fell well short of the standard set for a breach of Article 3 by reference to the guidance in Pretty v. United Kingdom (paragraph 30);

as the claimant did not satisfy section 28F(1)(a) of the 1991 Act, the "just and equitable" requirement in section 28F(1)(b) was not triggered (paragraph 32);

there was force in the claimant's assertions that his ineligibility for a departure direction was not fair or just and equitable (paragraph 39), but even assuming Article 8 and Article 1 of the First Protocol were engaged and Article 8 was infringed, any infringement of his rights was justified as the child support regime was a proportionate response to a pressing social need.

Logan v. UK, Burrows v. UK, R (Plumb) v. Secretary of State for Work and Pensions followed; Hakansson and Sturesson, Campbell v. South Northamptonshire DC and another considered (paragraph 46).

Note: On 13 October 2004 Brooke LJ refused permission to appeal after an oral hearing ([2004] EWCA Civ 1355).

DECISION OF THE HIGH COURT OF JUSTICE

(ADMINISTRATIVE COURT)

The claimant appeared in person

Marie Demetriou (instructed by the Treasury Solicitor) appeared for the defendant

JUDGMENT

The Hon. Mr Justice Charles:

Introduction

1. The claimant was given permission to bring these proceedings for judicial review by Hale LJ. He had been refused permission on paper and on the reconsideration of that refusal.
2. In presenting his case the claimant has been assisted by a friend. I am sure that he is grateful for that assistance. I repeat my thanks to that friend.
3. The claim form challenges two decisions of the Child Support Commissioner ("the Commissioner"). The first decision is dated 26 September 2002 and is a refusal of permission to appeal a decision of the appeal tribunal. The second decision is dated 18 October 2002 and is a refusal to set the first decision aside.
4. The underlying decision is a refusal of an application for a departure direction. This decision was first made by the Secretary of State on 9 January 2002 and was reconsidered and affirmed in a letter dated 18 January 2002.
5. The appeal tribunal rejected the claimant's appeal on 29 July 2002. It is accepted that within the relevant time limit the claimant asked for a full statement of the appeal tribunal's reasons but one was not provided. It is further accepted that the Commissioner was under a misapprehension when he said that a request for such a statement had not been made in time.

Background to the application for a departure direction

6. The claimant is the father of two children and is divorced from their mother. Both the children are girls and they were born in February 1992 and January 1995. The children live with their mother in the Wrexham area. The claimant lives in London.
7. An order for contact was made by consent in the Wrexham County Court. It provides that the claimant is to have weekend contact with the children once a month and that, in addition, there should be such further contact as the parties can mutually agree. The order provides that the children will be collected at 5 pm on the Saturday and returned at 5 pm on the Sunday. To have such contact the claimant has to travel to Wrexham and stay there overnight. On the weekends that contact takes place he stays with the children at a guest house. I have seen a CAFCASS report dated 29 November 2002 which indicates that this contact goes reasonably well. As Hale LJ remarked in her judgment clearly the cost to the claimant of taking up this contact is greater than it would normally be with a father who is living much closer to his children.
8. The claimant works and takes pride in his work. The mother of the children does not work and is in receipt of state benefits both for herself and the children.

The reason for the refusal of a departure direction

9. The reason why the application for a departure direction was refused by the Secretary of State was that in his view the allowable costs incurred by the claimant did not exceed the £15 per week threshold that the Secretary of State contends must be met before a departure direction in respect of contact costs can be met (my emphases). The notification of the decision of the appeal tribunal in its short form (and thus without giving full reasons) shows that the appeal tribunal agreed with this approach and conclusion of the Secretary of State. It states:

"Regulation 14 Child Support Departure Direction Regulations excludes the grounds upon which [the claimant] wishes to seek an allowance for expenses incurred in contact visits and they are outside the scope of approved costs.

Tribunal agrees the computations of the Secretary of State on page A3 of the submission. As a result the special expense threshold is not breached."

10. Leaving aside for the moment the points raised by the claimant on the Human Rights Act the question arises whether there is a mandatory provision in the relevant legislation which the claimant failed to satisfy and which justified the decision to refuse him a departure direction.

The relevant legislation on departure directions

11. This was gone through by both Rabinder Singh QC sitting as a Deputy High Court Judge when refusing permission and by Hale LJ when granting permission. They concluded, or proceeded on the basis, that the English legislation included a mandatory condition that the claimant did not satisfy.
12. The relevant provisions are to be found in the Child Support Act 1991 as amended ("the 1991 Act") and regulations.
13. Section 28A and 28F of the 1991 Act provides as follows:

"28A (1) Where a maintenance assessment ('the current assessment') is in force –

(a) the person with care, or absent parent, with respect to whom it was made, or

(b) where the application for the current assessment was made under section 7, either of those persons or the child concerned,

may apply to the Secretary of State for a direction under section 28F (a 'departure direction')

…

28F(1) The Secretary of State may give a departure direction if –

(a) he is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and

(b) it is his opinion that, in all the circumstances of the case, it would be just and equitable to give a departure direction."

I pause to comment that it is the contention of the Secretary of State that the claimant does not satisfy section 28F(1)(a) and therefore that section 28F(1)(b) is not engaged.

14. Paragraph 2 of Part I of Schedule 4B to the 1991 Act provides as follows:

"Special Expenses

2 (1) A departure direction may be given with respect to special expenses of the applicant which were not, and could not have been, taken into account in determining the current assessment in accordance with the provisions of, or made under, Part I of Schedule 1.

(2) In this paragraph 'special expenses' means the whole, or any prescribed part, of expenses which fall within a prescribed description of expenses.

(3) In prescribing descriptions of expenses for the purposes of this paragraph, the Secretary of State may, in particular, make provision with respect to –

(a) …

(b) costs incurred by an absent parent in maintaining contact with the child, or with any of the children, with respect to whom he is liable to pay child support maintenance under the current assessment;

(c) … "

15. Regulations 3, 14 and 19 of the Child Support Departure Direction and Consequential Amendments Regulations 1996 (SI No. 1996/2907) ("the 1996 Regulations") provide as follows:

"Determination of amounts

3 (1) Where any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount and, except where the context otherwise requires, any reference to such amount shall be construed accordingly.

…

Contact Costs

14 (1) Where at the time a departure direction is applied for a set pattern has been established as to frequency of contact between the absent parent and a child in respect of whom the current assessment was made, the following costs, based upon that pattern and incurred by that absent parent for the purpose of maintaining contact with that child, shall, subject to paragraphs (2) to (6), constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act –

(a) the costs of purchasing a ticket for travel for the purpose of maintaining that contact;

(b) the cost of purchasing fuel, where travel is for the purpose of maintaining that contact and is by a vehicle which is not carrying fare paying passengers; or

(c) the taxi fare for a journey or part of a journey to maintain that contact where the Secretary of State is satisfied that the disability of the absent parent makes it impracticable to use any other form of transport which might otherwise have been available to him

and any minor incidental costs, such as tolls or fees for the use of a particular road or bridge, incurred in connection with such travel.

(2) Subject to paragraph (3), where the Secretary of State considers any costs referred to in paragraph (1) to be unreasonably high or to have been unreasonably incurred he may substitute such lower amount as he considers reasonable, including a nil amount.

(3) Any lower amount substituted by the Secretary of State under paragraph 2 shall not be so low as to make it impossible, in the Secretary of State's opinion, for contact to be maintained at the frequency specified in any court order made in respect of the absent parent and the child mentioned in paragraph (1) where the absent parent is maintaining contact at that frequency.

…

Special expenses for a case falling within regulation 13, 14, 16 or 17

19 (1) This regulation applies where the expenses of an application fall within one or more of the descriptions of expenses falling within regulation 13 (travel to work costs), 14 (contact costs), …

(2) Special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act in respect of the expenses mentioned in paragraph (1) shall be –

(a) where the expenses fall within only one description of expenses, those expenses in excess of £15.00;

(b) where the expenses fall within more than one description of expenses, the aggregate of those expenses in excess of £15.00."

16. The claimant also referred me to Part VI of the 1996 Regulations and thus to paragraph 30 thereof which is headed "Factors to be taken into account and not to be taken into account in determining whether it would be just and equitable to give a departure direction". I need not set out that paragraph because it is common ground that it was not applied in this case. The dispute is as to whether it should have been applied.
17. I record that I was also referred to (i) paragraph 8 of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI No. 1992/1813) which relates to categories of interim maintenance assessment, and (ii) paragraph 11 of the Child Support (Collection and Enforcement) Regulations 1992 (SI No. 1992/1989) which concerns the "protected earnings rate".

The claim made by the claimant for a departure direction.

18. In making this claim the claimant listed costs which he incurred each month totalling £235.50 and added that in some circumstances the costs could go up by a further £10 to £15. Included within the breakdown he provided are the costs of the guest house in the sum of £80, costs for food in the total sum of £45 and other costs such as children's clothes, shoes etc in the sum of £30. Travelling expenses are also included.
19. By reference to the breakdown of costs provided by the claimant the Secretary of State allowed (i) the costs of the return journey from London to Wrexham, (ii) the costs of the return journey from the claimant's home to Euston and (iii) the children's travel costs from their home to Wrexham. The total of those monthly costs converts to the sum of £14.38p per week (calculated by multiplying them by 12, then dividing them by 365 to reach a cost per day and multiplying that cost per day by 7).
20. In my view correctly: (a) this calculation was not challenged, and (b) it was not expressly argued that on the correct interpretation of regulation 14 of the 1996 regulations the Secretary of State should have included as "special expenses", and thus allowable costs, any of the other costs listed by the claimant in making his application for a departure direction. I deal with the claimant's general argument based on section 3 of the Human Rights Act at the end of this judgment.

The argument of the Secretary of State

21. The Secretary of State argues that the 1991 Act and the regulations have been applied correctly in this case. Counsel for the Secretary of State points to the findings and approaches of Rabinder Singh QC and Hale LJ to this effect.
22. I agree.
23. The starting point is to consider whether section 28F(1)(a) has been satisfied. To do that one has to consider paragraph 2 of Schedule 4B and the 1996 Regulations.
24. In my view it is clear that regulation 19 of the 1996 Regulations sets a threshold for the amount of special expenses in respect of which a departure direction may be given. It follows that regulation 19 provides that if that threshold is not met no departure direction may be given.
25. In my judgment regulation 3 of the 1996 Regulations provides that the sum of £15 referred to in regulation 19(2)(a) is a weekly sum.
26. It therefore follows that in this case the claimant failed to satisfy the threshold set by regulation 19.
27. Before me it was argued by reference to regulation 3 and what would be fair (or just and equitable) that the claimant's monthly expenses should be treated as weekly expenses. I am not sure whether these arguments have been put before. In my judgment they are wrong. My main reasons for this conclusion are:

27.1 Whether regulation 3, or the more general proposition as to what is fair or just and equitable, is being considered the focus is on what expenses have been incurred and not on what expenses might have been incurred if, for example, more money was available and the primary carer was willing for there to be more contact.

27.2 If the claimant travelled for staying contact each week he would get more by way of departure allowance, although of course he would also incur much higher expenses which do not fall to be taken into account. Indeed it is the fact that a substantial part of his expenses are not allowable for the purposes of a departure direction that causes the claimant much of his difficulties and in my view this fact and the difficulties it causes do not found an argument that the allowable parts of his monthly expenses should be treated as weekly expenses.

27.3 Regulation 3 is a provision which applies to the interpretation of the 1996 regulations as a whole and the phrase "except where the context otherwise requires" is one that has to be applied to the provisions of the regulations and their general application. In my view it follows that it is not a gateway to a departure from a weekly determination (or, as argued, to a result that treats a monthly expenditure as a weekly expenditure) by reference to the facts of an individual case and an argument based on fairness, or what is just and equitable.

Conclusion on the construction and application of the primary and secondary legislation without taking into account the Human Rights arguments

28. The claimant did not satisfy section 28F(1)(a) and the refusal of the departure direction was justified.

The Human Rights arguments

29. The claimant has relied on Article 3, Article 6 (and in conjunction with it Article 14), Article 8 and Article 1 of the First Protocol.

Article 3

30. I shall refer in general terms to the matters the claimant relies on in respect of his assertion of a breach of Article 3 when dealing with Article 8. As I pointed out during the hearing in my judgment those matters fall well short of the standard set for a breach of that Article by reference to the guidance in paragraph 52 of the judgment in Pretty v. United Kingdom [2002] 2 FCR 97 at 131, which is in the following terms:

"As regards the types of "treatment" which fall within the scope of Article 3 of the Convention, the Court's case-law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also falls within the prohibition of Article 3 … . The suffering that flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible … "

Article 6 (together with Article 14)

31. The claimant relies on and deploys these Articles throughout the decision-making process and thus from his application for a departure direction up to and including the refusal of permission to bring proceedings for judicial review.
32. The short answer to all these arguments is that given the conclusion that I (and earlier decision-makers) have reached that the claimant did not satisfy section 28F(1)(a) they lead nowhere because subject to the points on Article 8 and Article 1 of the First Protocol the decision to refuse the claimant a departure direction was correct in law. For example:

(a) Much of the claimant's arguments related to his assertion that what he refers to as the "just and equitable requirement" was not applied. The short and complete answer to those arguments is that such requirement was not triggered.

(b) I would however add that, subject to his arguments on Article 8 and Article 1 of the First Protocol, the claimant's reliance on and interpretation of the just and equitable requirement was also misplaced to the extent that he sought to rely on it to obtain a departure direction for expenses incurred that are not within the prescribed description of special expenses (see Part I Schedule 4B to the 1991 Act and regulation 14 of the 1996 regulations). Indeed as mentioned in paragraph 20 hereof, in my view correctly it was not expressly argued that on the true construction and application of the UK legislation "special expenses", and thus the allowable costs for a departure direction, included costs other than those taken into account by the Secretary of State, and

(c) the claimant's arguments based on allegations of procedural irregularity and lack of reasons lead nowhere because if there was a further hearing or consideration of his application for a departure direction the same result would be reached (i.e. it would be refused because section 28F (1)(a) was not satisfied).

33. He also relied on these Articles in respect of problems he encountered in respect of a deduction of earnings order and the manner in which those problems were dealt with by officers of the Secretary of State. His primary complaint was that they did so on the telephone which he asserts was not suitable in his case because of his speech disability and led to him being recorded as not speaking English (which he asserts is a slant against his intelligence and dignity). On examination it appeared that the essential problems related to what his employer rather than the Secretary of State had done and in any event in my judgment the complaints made against the Secretary of State in this context do not constitute a breach of Article 6 together with Article 14 (or Article 3).

Article 8 and Article 1 of the First Protocol

34. I deal with these together. I agree with counsel for the Secretary of State that it was these provisions (rather than the other human rights arguments advanced by the claimant) that Hale LJ had in mind when giving permission to the claimant to bring these judicial review proceedings.
35. The factual background asserted by the claimant is that if he was to be given a departure direction (or its equivalent) and there was therefore a consequential reduction in what he paid by way of child support maintenance, his ex-wife and children would be no worse off because what they received in state benefits would be increased by the reduction. This was not disputed. It was however disputed that the claimant retained less than his protected income. Indeed this argument was abandoned by the claimant during the hearing albeit that he maintained his assertion that he would be better off on the dole.
36. At the heart of the difficult position the claimant finds himself in is that a large amount of the expenses he incurs in having contact with his children are not "special expenses" and therefore do not get taken into account in calculating a departure direction for the claimant. Most of them are however inevitable costs of contact (e.g. and in particular the cost of the guest house). Additionally his allowable costs are converted to a weekly cost for the purposes of the £15 threshold.
37. The claimant does not have a substantial income and it is clear that his payments of child support maintenance and his expenditure on contact have a significant effect on the money available to him to spend on other things. He realistically cannot afford to have more staying contact with his children if his ex-wife (or the court) was to agree to it or order it. To my mind the claimant deserves credit for the very considerable efforts (both in time and money) that he expends in maintaining monthly staying contact with his daughters. In my view the financial problems caused to him by the fact that under the UK legislation he is not eligible for a departure direction is a disincentive to him maintaining contact with his daughters.
38. As I indicated during the hearing I have considerable sympathy for the position the claimant finds himself in relating to maintaining contact with his daughters. Whether the children will travel for contact is something for the future that would be determined by agreement, or an order based on the test that the welfare of the children is paramount.
39. In my view, as matters stand there is force in the assertions that the ineligibility of the claimant for a departure direction (by virtue of the combined effect of regulations 3, 14 and 19 of the 1996 regulations) (i) is not fair, or just and equitable, and (ii) operates as a disincentive to the claimant in maintaining monthly staying (or visiting) contact with his daughters. But I acknowledge immediately that these are free standing assertions which do not found a breach of Article 8 or Article 1 of the First Protocol. They are however starting points for the claimant's arguments based on those Articles.
40. I was referred by counsel for the Secretary of State to three cases which provide strong support for the propositions (a) that the UK legislation (and thus in particular regulations 3, 14 and 19 of the 1996 regulations) does not itself infringe Article 8, and further (b) that its application in the claimant's case is not incompatible with his Article 8 rights. These cases were two decisions of the Commission declaring that claims were inadmissible namely Logan v. UK (App. No. 24875/94) and Burrows v. UK (App. No. 27558/95) which are discussed and applied in R (Plumb) v. Secretary of State for Work and Pensions [2002] EWHC 1125 (Admin) (see in particular paragraphs 3, 5, 15, 17 to 21 of the judgment).
41. Those cases also provide the basis for an argument that Article 1 of the First Protocol is not engaged by the relevant UK legislation and its effect on the claimant (see paragraph 2 under the heading "Law" in Burrows and paragraph 3 of the judgment in Plumb). However counsel for the Secretary of State did not press this argument and as a result invited me to consider the challenge based on Article 1 of the First Protocol together with Article 8 on the proportionality argument relating to them both namely, in the case of (a) Article 1 of the First Protocol the proportionality between the means employed and the aim sought to be realised (see Burrows and Hakansson – see below), and (b) in the case of Article 8, Article 8(2).
42. In this context the claimant referred me to a decision of the European Court of Human Rights, Hakansson and Sturesson (1990) A171-A [App. No. 11855/85] and in particular to paragraph 51 thereof which relates to Article 1 of the First Protocol, and to a decision of the Court of Appeal Campbell v. (1) South Northamptonshire DC and (2) the Secretary of State for Work and Pensions [2004] EWCA (Civ) 409 [reported as R(H) 8/04] and in particular to the second paragraph of the citation from Sentges v. Netherlands in paragraph 29 thereof (which is within a heading "Proportionality and insufficient nexus" in which Logan is cited). Based on those decisions the claimant submitted that he has had to bear "an individual and excessive burden" (Hakansson) and that he has "demonstrated the existence of a
     
    

special link between the situation complained of and the particular needs of his or her private life" (Campbell).

43. In my view it is important to read on in the quote cited in Campbell because it points out that even assuming such a special link "regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to taken to ensure compliance with the Convention".
44. The proportionality issues were dealt with in paragraph 20 of the judgment in Plumb on the basis that the earlier conclusion that Article 8 was not engaged was wrong and thus on the hypothesis that Mr Plumb's Article 8 rights were infringed. It was concluded on that hypothesis that (a) such infringement of his Article 8 rights would have been justified, and (b) a claim based on Article 1 of the First Protocol would also fail (see paragraph 3).
45. On the following assumptions which favour the claimant namely that in this case (i) Article 8 is engaged and the claimant's Article 8 rights have been infringed, and (ii) Article 1 of the First protocol is engaged, I have concluded (in line with the Plumb and Burrows cases) that the claimant fails (and the Secretary of State succeeds) on the proportionality arguments. My main reasons for this conclusion are:

45.1 I agree with the approach in Plumb (which is in line with the citation in Campbell) that there is a pressing social need to which the child support regime is a response and that in respect of it the executive enjoys a wide margin of appreciation in its policy decisions, and

45.2 in my view in the balance of competing considerations relating to the proportionality arguments these points outweigh the points advanced by the claimant which include (i) the disincentive to maintaining, and the difficulties in respect of, his contact with his daughters, and (ii) the unfairness and inequity that the claimant can point to arising from the policy decisions made and reflected in the UK legislation (and in particular regulations 3, 14 and 19 of the 1996 regulations).

46. It follows that in my view the arguments and challenge of the claimant based on Article 8 and Article 1 of the First Protocol fail.

Tailpiece

47. The claimant advanced arguments based on section 3 Human Rights Act that the present UK legislation should be construed so as to enable him to have a departure direction, or its equivalent, by reference firstly to his arguments on what he referred to as the "just and equitable requirement" and secondly to the proposed changes in the regulations. These were ingenious but in my view hopeless arguments.

Conclusion

48. Though I have sympathy for the predicament of the claimant, for the reasons I have given I dismiss his application.