UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CSCS_15_2005 (14 November 2006)

THE CHILD SUPPORT COMMISSIONERS

Commissioner's Case No: CSCS/15/2005

CHILD SUPPORT ACTS 1991 AND 1995

APPEAL FROM THE CHILD SUPPORT APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

Oral Hearing

DECISION OF CHILD SUPPORT COMMISSIONER

1. My decision is that the decision of the tribunal given at Inverness on 15 March 2005 is not erroneous upon a point of law. The appeal fails. I dismiss it.
2. This appeal by the non-resident parent came before me for an oral hearing, along with another appeal by him, CSCS/05/2006, on 27 September 2006. The appellant represented himself. The Secretary of State was represented by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General. The second respondent, who was the parent with care, made no appearance. In terms of regulation 22(4) of the Child Support Commissioners (Procedure) Regulations 1999, I decided to proceed with both cases in the second respondent's absence, she having been given notice of the appeal. After initial argument on 27 September 2006, I adjourned the hearing to afford the Secretary of State to make further submissions on an issue which he was not in a position to do at the time. A further written submission was presented by the Secretary of State to the Commissioner. The resumed oral hearing took place on 9 November 2006.
3. Before dealing with the issues in this appeal and CSCS/05/2006, it is necessary, in order to provide a context to the issues raised by the appeals, to set out a history in respect of the provisions made for child support subsequent to the enactment of the Child Support Act 1991. Mr Brown explained that the scheme for Child Support was set out within the provisions of the Child Support Act 1991. That Act came into force in 1993. The Government issued a White Paper called "Children's Rights and Parents' Responsibility". That recommended reform of the existing law. The existing law was reformed by the Child Support, Pensions and Social Security Act 2000. It was accepted by Mr Brown that a maintenance assessment made under the latter Act would produce a different outcome in respect of a maintenance assessment made under the original provisions of the 1991 Act. It was said by him that the Act of 2000 was enacted to simplify the arrangements for maintenance. He told me that there were cases, such as the present, which had been assessed under the original scheme. At the time of the enactment of the Act of 2000, the Government had expressed the intention that, over a period of time, assessments made under the original scheme would be reassessed under the new scheme. As will become apparent, the Child Support (Transitional Provisions) Regulations 2000 made provision for supersession of the existing assessments by the Secretary of State at his own hand for the purposes of assessing maintenance under the new scheme. However, Mr Brown told me that, this has never happened. By way of background, he also indicated that, in a report to the Secretary of State for Work and Pensions by Sir Donald Henshaw called "Recovering Child Support: Routes to Responsibility", there was a recommendation that both the original scheme under the Child Support Act 1991 and the amended scheme under the Child Support, Pensions and Social Security Act 2000 should be "scrapped" and a new scheme introduced. However, the recommendation was that, if a new scheme was adopted, no cases should be transferred into the scheme recommended by the Report. He indicated that it was anticipated that the Government will issue a White Paper in the near future giving a response to the Henshaw Report. However, his position was that, for the time being, no transfers were being made from the first scheme into the second scheme.
4. The appellant's position all along has been that he wishes the maintenance assessment in his particular case to be assessed under the scheme of the Act of 2000.

The appellant's position was that he is prejudiced financially by being assessed under the old scheme as opposed to the new scheme, particularly having regard to the fact that he has remarried and has a child by that marriage. In his grounds of appeal to the tribunal, he set out what he perceived to be the differences as they would affect his position in respect of both the old scheme and the new scheme. That was recorded by the tribunal as follows:

"

Old System	New System
50% of pension costs allowed	100% of pension costs allowed
Non-resident parent forming relationship with earner. The new partner's income increases assessment	However the new formula does not take this into account
Overnight stays by children under 104 nights are irrelevant	Under the new system stays of 52 nights per year will reduce assessment by 1/7
Children of previous marriage take precedence over family of new marriage	All children of both marriages have equal rights

"

5. What in effect the appellant was asking for was a supersession of his maintenance assessment in accordance with regulation 3(1)(a) of the Child Support (Transitional Provisions) Regulations 2000 to convert his assessment to the new scheme. That provision is in the following terms:

"Subject to paragraph (2), a decision as to the amount of child support maintenance payable under a maintenance assessment or an interim maintenance assessment made under section 11, 12, 16, 17 or 20 of the former Act may be superseded by the Secretary of State on his own initiative under section 17 of the Act, in relation to –

(a) a maintenance assessment (whenever made) which […] is in force on the calculation dates;

(b) a maintenance assessment made following an application for child support maintenance which is made or treated as made as provided for in regulation 28(1);

(c) an interim maintenance assessment [(whenever made)] where there is sufficient information held by the Secretary of State to make a decision in accordance with this paragraph."

6. At the initial hearing date, I asked Mr Brown why it would not be possible for the Secretary of State to carry out such a supersession. The Secretary of State made a written submission in this regard, which was in the following terms:

"3. Under regulation 3(1)(a) a MA which is in force on the calculation date may be superseded under the (new) section 17. 'Calculation date' is defined in reg 2(1) as

means the date the Secretary of State makes a conversion decision.

A conversion decision is defined in reg 2(1) as

Means the decision under regulation 3(1) or (4)

7. This is circular and not very helpful, except in so far as it fits in with the fact that the Secretary of State has yet to designate a date on which the majority of old scheme cases will be converted.

5. However, I would point out that, if a decision-maker (DM) attempts to carry out the instructions in regulation 3 in a normal case such as [the appellant's], he is faced with some insuperable barriers.

6. Firstly (and I would suggest this is the key barrier) regulation 3(6) says that a decision referred to in paragraph (1) and (4) shall take effect from the 'case conversion date'. This is defined in reg. 2(1) as –

means the effective date for the conversion of the non-resident parent's liability to pay child support maintenance from the rate as determined under the former Act and Regulations made under that Act, as provided for in regulation 15.

7. Turning to regulation 15 we find the main rule in regulation 15(1) which says-

Subject to paragraph (2) to (3G) [none of which paragraphs apply to the appellant in this case] the case conversion date is the beginning of the first maintenance period on or after the conversion date [my emphasis].

8. 'Conversion date' is defined in reg 2(1) as

means the date on which section 1 of the 2000 Act, which amends section 11 of the Act, comes into force for all purposes.

9. But section 1 of the Child Support, Pensions and Social Security Act 2000 has only been commenced with regard to certain cases specified in article 3 of the Child Support, Pensions and Social Security Act 2000 (Commencement No. 12) Order 2003 (SI 2003 No 192), copy attached.

10. So section 1 has not yet come into force 'for all purposes'. Thus there is as yet no 'conversion date'. It follows that for cases subject to Transitional regulation 15(1) there is also no case conversion date. In cases like the appellant's the DM simply has no effective date and so he cannot complete the actions required by regulation 3. Regulation 15(2) to (3G) by contrast does allow the early conversion of certain prescribed types of cases. [The appellant's] circumstances do not fall within any of those paragraphs.

11. A further barrier is that, under reg3(3)(a) a decision maker has to make a 'conversion calculation'. This is defined as

means calculation made in accordance with regulation 16

But regulation 16 require the conversion calculation to be made

In accordance with Part I of Schedule I to the Act

12. That cannot mean the Part I of Schedule I in place in respect of old scheme cases. It must therefore mean the 'new' Part I of Schedule I. Yet if the DM looks at the No.12 Commencement Order he finds that these provisions are not yet commenced for the case he has before him. Therefore he cannot proceed to make the conversion calculation."

8. Mr Brown adopted the terms of that submission before me. The appellant, who does not have the advantage of legal representation, indicated to me that what was contained in that submission was "getting over my head a bit". He did not present any coherent submission to me why I should not accept what was said by the Secretary of State. I was persuaded by the Secretary of State's submission. Accordingly, whilst the Secretary of State has made provision to give himself the power by supersession to convert the non-resident's parent's liability to pay child support maintenance from the amount as determined under the former Act and regulations to that provided for under the new Act and regulations, it can be inferred from what Mr Brown told me, that he has made a conscious decision not to take the necessary steps by order which would enable him to do so. It is, accordingly, the Secretary of State's failure or refusal to act to give effect to the statutory powers conferred upon him that is the bar to the appellant's obtaining the supersession which he wishes.
9. The appellant indicated to me that he had raised his request to be assessed under the new scheme with his case officer on a number of occasions without success. It, accordingly, appears from his letter of appeal to the tribunal that he raised the issue in respect of three decisions of 10 February 2004 in respect of the maintenance assessment, as recorded in paragraph 20 of the Secretary of State's supplementary written submission at page 226. The manner in which he did so, and this has been repeated before me, was related to an asserted breach of the European Convention on Human Rights under Articles 8 and 14:

He submitted that the discrimination under article 14 was related to those who were assessed under the old scheme as opposed to those who were assessed under the new scheme. He submitted that they amounted to 923,000 people, including himself. He categorised this discrimination as being discrimination on the basis of social origin, namely people who have been divorced and who were assessed before 5 April 2003, and as discrimination against a national minority.

10. The Secretary of State met that argument in his supplementary written submission as follows:

"32. It would appear that the appellant, in making fresh arguments in respect of Article 14 of the Convention, is saying that he is being discriminated against in consequence of his social origin, because he is divorced and had a maintenance assessment made before 5 April 2003, and because of his association with a national minority, because he was a person assessed prior to that date.

33. The words of the article link together 'national or social origin', and the briefest acquaintance with the relevant case law demonstrates that this provision refers to what it says – the national, racial or social origin of a person which is an inalienable personal characteristic of that individual. Divorce is not an element of a person's national, racial or social origin. It can only occur during a person's adult life and is a fact, and not a characteristic.

34. Similarly, the case law makes clear that 'association with a national minority' cannot include within its scope persons who are within the minority of persons in their nation who are divorced. Again, this clearly relates to the nationality and race of a person, not to a fact that arises later in his or her life.

35. In addition, I submit that being subject to different legislation to another person or persons cannot amount to a personal characteristic or status for the purposes of the article.

36. I respectfully submit that, in respect of the scope of the article, the Commissioner may usefully refer to paragraphs 8 to 13 of the judgment of Lord Justice Carnwath in Esfandiari [2006] EWCA Civ 882. Insofar as these matters are sufficiently similar, I submit that this judgment is binding in the present case. A copy is attached."

11. However, before consideration can be given to the claimant's argument and response to it by Secretary of State, it is necessary to consider what it was that gave rise to the asserted breach. The legislative provisions of the old scheme and the new scheme, do not, when they each stand alone, give rise to any discrimination or a breach of any substantive right. The essence of the appellant's case is that it is the refusal of the Secretary of State to make operational the provisions which would have enabled him to convert, by supersession at his own hand, the assessment from the old scheme to the new scheme, which gives rise to the difference of result for those assessed under the new scheme or the old scheme. Whether that refusal could be a peg upon which to hang a case based on breaches of Articles 8 and 14, is of little moment for the purposes of the appeal before me in respect that, even if it could, neither the tribunal nor myself as Commissioner could do anything about it. There is no secondary legislation we could strike down on the basis of incompatibility with a convention right. There is no power for us to intervene in respect of a policy decision by the Secretary of State not to bring into force the provisions of regulation 3(1)(a). Neither the tribunal nor the Commissioner could carry out a supersession to convert under regulation 3(1)(a) which had not been made operational. Accordingly, in my view, the appellant's grounds based on the European Convention are misconceived. If I had required to consider the issue of discrimination, I would have been inclined to accept the submission of the Secretary of State, which I found persuasive.
12. In these circumstances, the refusal of the appeal by the tribunal was not erroneous upon a point of law. Mr Brown accepted that it might be open to the appellant to challenge by judicial review the Secretary of State's refusal to make operational his power to supersede in respect of conversion. That is something upon which I express no opinion. If he were disposed to take such a course, he would be advised to take advice upon before embarking on it. The starting point for him, however, is that neither the Commissioners nor the tribunal are able, under the statutory parameters of appeal to them, to give effect to his desire to have the assessment made under the new scheme. I say this notwithstanding my sympathy for the appellant's position whereby he feels aggrieved that he does not get the advantage of the reform of the new scheme which the Secretary of State deemed to be desirable and necessary. This is particularly so, as the Secretary of State originally intended to implement the new scheme in respect of those who were assessed under the old scheme but, in the event, has decided not to take the steps to enable him to do so.
13. The appeal fails.

(signed)

D J MAY QC

Commissioner

Date: 14 November 2006