UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CCS_1077_2006 (11 August 2006)

DECISIONS OF THE CHILD SUPPORT COMMISSIONER
1. My decisions are given under section 24 of the Child Support Act 1991:

The decisions of the Stockport appeal tribunal under references U/06/938/2005/00700 and 01643, held on 13 January 2006, are not wrong law.

The appeals

2. These cases concern the formula assessment of child support maintenance in respect of Ross. In terms of the child support legislation, the appellant is his absent parent and the second respondent is parent with care. I shall refer to them in those terms.

History and background

3. The absent parent appealed against two formula assessments by the Secretary of State. One was for £102.42 from the effective date of 2 November 2004. The other was for £89.99 from the effective date of 7 June 2005. The appeals came before the same tribunal on the same day. At the outset, the absent parent made clear that he was concerned by only one issue. He was assessed under the original child support scheme, whereas he considered that he should be assessed under the reform scheme, which began to come into force from 3 March 2003. He argued that the assessment under the original scheme was discriminatory and in breach of his human rights. The presenting officer for the Secretary of State accepted that the maintenance calculation under the reformed scheme would be for less than the assessments under appeal.
4. The tribunal dismissed the appeal. The chairman decided that he had no power to circumvent the existing legislation and noted that, under regulation 15 of the Child Support (Transitional Provisions) Regulations 2000, existing cases were only converted when the reformed scheme came into force in respect of them.
5. The chairman gave the claimant leave to appeal to a Commissioner. I gave case management directions for observations to be made by all the parties.
6. The Secretary of State's representative did not support the appeals. In the absence of any specific human rights argument, he made a submission in general terms. He referred to a number of cases in which the courts had found that the original child support scheme was not in violation of a parent's Convention rights under the Human Rights Act 1998. He also referred to the judgment of Lord Justice Brooke in R (Qazi) v Office of the Child Support Commissioner and the Secretary of State for Work and Pensions [2004] EWCA Civ 1355, in which he explained why he was refusing leave to appeal to the Court of Appeal against the dismissal of an application for judicial review. The applicant had offered to do the calculations necessary for the reformed scheme himself and argued that it could be applied to him even if it could not be made generally available. Lord Justice Brooke rejected the suggestion, saying (paragraph 17):

'Government cannot work in that way and I can see nothing in the European Convention on Human Rights which in any way inhibits the Government from bringing in staged changes in the regulations when resources permit them to do so.'

7. The parent with care made general comments on the appeal, but did not address the human rights issues.
8. The absent parent replied by a solicitor. The solicitor wrote that counsel would attend any oral hearing and would make oral submissions. The solicitor added 'for the sake of clarity' that there was no concession that the case law and submissions cited by the Secretary of State were either relevant or correct. That reply was not satisfactory. I directed the solicitor to provide within one month 'a statement of the article(s) of the European Convention under which their case is based together with a brief outline of their case.' The solicitor has replied saying only that Ross now lives permanently with his father.

The change of residence

9. The fact that Ross has moved to live with his father, if he has done so, is not something that I can take into account. I have to decide if the tribunal went wrong in law and the tribunal was not allowed to take account of any circumstance that was not obtaining at the time of the decisions under appeal: see section 20(7)(b) of the Child Support Act 1991. Any change in Ross's residence is irrelevant to these appeals.

Disposal

10. The first issue is whether I should hold an oral hearing of these appeals. I do not have to do so, if they can properly be determined without one. I am satisfied that they can.
11. The only issue before the tribunal and before me is the possible application of the Human Rights Act 1998. I am not prepared to direct an oral hearing so that the absent parent can for the first time and despite my direction of 3 July 2006 put forward a legal case in support of his allegation of discrimination. He has had the opportunity to do that on paper and has failed to do so. I would be more lenient if he were acting on his own behalf. I might then have directed an oral hearing and allowed him to put his case as best he could. But he is represented by solicitor. That solicitor has failed to state any case for the absent parent and failed to respond to my direction to do so. That failure leaves his case stated in only the most general terms. An oral hearing is not necessary in order to deal with an argument that is so general and, as such, destined to fail.
12. The absent parent has argued that the failure to bring the reformed child support scheme into force for his case is discriminatory. Discrimination is governed by article 14 of the European Convention. That article does not operate alone; it only operates in conjunction with other Convention rights. The absent parent does not have show that one of those rights has been violated, but he does have to come within the ambit of one of those rights. Neither he nor his solicitor has suggested any particular substantive right. I will assume, just for the sake of argument, that the relevant Convention right is the right to respect for family life.
13. Having identified a substantive right, the absent parent next has to show that there is discrimination in relation to that right. Discrimination is a difference in treatment without an objective and reasonable justification. The only point that he has made is that his liability would be lower if he would assessed under the reformed scheme. That is a difference in treatment between him and the non-resident parents for whom the reformed scheme is in force. But is it discrimination?
14. On examination, the absent parent's argument is self-interest dressed up as discrimination. The absent parent is looking at the matter from his own perspective and says the law in its present state discriminates against him. But look at it from the point of view of the parent with care. She will be entitled to less child support maintenance if the reformed scheme comes into force for her case. In other words, if the law is as the absent parent argues it should be, the parent with care could use his argument to show that bringing the reformed scheme into force was discriminatory against her. And then he could use his argument again to show that she was wrong. The only way that this circle of discrimination could be avoided would be to bring the reformed scheme into force for all cases at the same time. That is a recipe for administrative chaos. As Lord Justice Brooke said, there is nothing in the Human Rights Act 1998 that prevents sensible administrative arrangements being made for a phased introduction of legislation. I am not sure that his judgment is strictly citable, as it was given on refusing permission to appeal to the Court of Appeal: see Lord Woolf MR in Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752 at 762 and the Practice Direction at [2001] 2 All ER 510. However, even if it is not citable, it is evident good sense and I am grateful to adopt it and to expand on it. It is not just a matter of resources. There is also the testing of a new system and ironing out problems before it is introduced generally. It is a objective and reasonable justification that parents are treated differently as new legislation is tested as it is brought into force.
15. Even if the absent parent were being discriminated against, there is no remedy that I have power to give. My only power is to interpret the legislation, if possible, in order to remove a violation of a person's Convention rights: see section 3 of the Human Rights Act 1998. I have no power to make legislation. There is a line between interpretation and legislating. The courts have not defined it, but bringing legislation into force that has not yet been brought into force must be on the legislation side of the divide. On this ground alone, even if the absent parent could show discrimination, the appeals would be bound to fail.
16. I dismiss these appeals.

Signed on original on 11 August 2006

Edward Jacobs Commissioner