CCS/2675/2010

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision and Hearing

 

1. This appeal by the appellant father does not succeed. I confirm the decision of the First-tier Tribunal sitting at Sutton on 16^th February 2010 and made under reference 154/09/02102. This is to the effect that the appellant father is the non-resident parent for the purposes of the child support scheme in relation to the relevant child (“the child”), his son born on 5^th August 1997.

 

2. Subject to what I say in the rest of this paragraph, the father is liable to pay to the mother of the child £5 weekly from 18^th April 2007 by way of child support in respect of the child. I do, however, give the mother and the Secretary of State permission to restore the matter to the Upper Tribunal for consideration (not necessarily by way of an oral hearing) in respect of the amount assessed by the First-tier Tribunal. To do this either of those parties must send notice to the Upper Tribunal within one month of the date that this decision is sent to them, indicating the grounds for seeking such consideration and the decision that the Upper Tribunal is being asked to make. No extension to that one month period is to be allowed except by direction of a Judge of the Upper Tribunal.

 

3. I held an oral hearing of this appeal on 13^th March 2013 at Field House (London). The appellant father (“the father”) attended and represented himself. The Secretary of State was represented by Mr Stephen Cooper, solicitor instructed by the Solicitor to the Department for Work and Pensions. The mother and second respondent (“the mother”) did not attend and was not represented but I was satisfied that she had been served with all of the necessary papers and that it was in the interests of justice to proceed in her absence.

 

4. At various times the child support scheme has been administered by the Secretary of State, the Child Support Agency (CSA), and the Child Maintenance Enforcement Commission (CMEC). For the sake of convenience, in this decision I refer to the administering authority and the decision maker as the “Secretary of State”, but this is to be understood as a reference to whichever body was administering the child support scheme at the relevant time.  

 

Background and Procedure

 

5. The father was born on 31^st October 1975 and the mother was born on 19^th September 1997). They married on 16^th April 1997 and separated in December 2002 or July 2003 or at some stage in between (depending on which account is taken as correct). Their son was born on 5^th August 1997. After the separation there was a series of child maintenance assessments made on the basis that the mother was the person and parent with care of the child and the father was the non-resident parent. At all times relevant to this decision prior to 4^th October 2010 the mother and father have had shared care of the child equally (in the sense of looking after him) and the mother has been in receipt of child benefit in respect of him, notwithstanding repeated (unsuccessful) claims by the father to be awarded child benefit himself. Aside from any other dispute, the father has always argued that he should not be treated as the non-resident parent.

 

6. On 3^rd December 2008 the Secretary of State decided that the father was liable to pay to the mother £5 weekly by way of child support in respect of the child from 18^th April 2007. The mother appealed to the First-tier Tribunal against this decision on the basis that the calculation based on the father’s income was incorrect. The father appealed on the basis that both parents cared equally for the child. and that he should not be treated as the non-resident parent. The First-tier Tribunal considered the matter on 16^th February 2010 and dismissed both appeals, upholding the decision of the Secretary of State. In relation to the father’s appeal the basis of the decision was that child benefit had been awarded to the mother and under the relevant regulations this meant that the father had to be treated as the non-resident parent for the purposes of child support.

 

7. Child benefit has been variously administered and decisions made by the Secretary of State and by Her Majesty’s Revenue and Customs (“HMRC”). For the sake of convenience, in this decision I refer to the administering authority and the decision maker as “HMRC”, but this is to be understood as a reference to whichever body was administering child benefit at the relevant time.

 

8. At some stage HMRC awarded child benefit to the father (and removed entitlement from the mother), with the effect that he has been treated as the parent and person with care for child support matters with effect from 4^th October 2010. Accordingly, in relation to actual liability for child support between the mother and father, my decision only affects a limited and finite period of time, although I appreciate that it could have a wider significance for other claims and decisions.

 

9. On 14^th October 2010 the judge of the First-tier Tribunal gave the father permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. Consideration by the Upper Tribunal was delayed pending developments in other cases before the higher courts but eventually, on 11^th September 2012, I directed that the matter be listed for oral hearing. The First-tier Tribunal judge had not limited the scope of the appeal but I directed that:

 

“The hearing is to be limited to the matter of the interaction between the legal issues relating to shared care, the definition of non-resident parent, entitlement to child benefit and the provisions of the Human Rights Act 1998”.

 

I do not understand the father to be arguing that any other matters should be dealt with in my decision. The hearing eventually took place on 13^th March 2013.

 

The Relevant Child Support Provisions

 

10. Relevant provisions of the Child Support Act 1991 as amended provided as follows:

 

1(3) Where a maintenance calculation made under this Act requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.

 

3(2) The parent of any child is a non-resident parent, in relation to [the child],

if –

(a)   that parent is not living in the same household with the child; and

(b)  the child has his home with a person who is, in relation to [the child] a person with care.

 

3(3) A person is a “person with care”, in relation to any child, if he is a person - (a) with whom the child has his home [and]

(c)   who usually provides day to day care for the child (whether exclusively or in conjunction with any other person);

 

3(5) For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.

 

42(1) The Secretary of State may by regulations provide that in prescribed circumstances a case is to be treated as a special case for the purposes of this Act.

 

42(2) Those regulations may, for example, provide for the following to be special cases

(a)   …

(b)  there is more than one person who is a person with care in relation to the same child;

 

11. The Secretary of State made regulations authorised by section 42(2) and the relevant parts of regulation 8 of the Child Support (Maintenance Calculation and Special Cases) Regulations 2000 provided as follows:

 

8(1) Where the circumstances of the case are that  -

(a)   two or more persons who do not live in the same household each provided day to day care for the same child … ; and

(b)  at least one of those persons is a parent of the child

that case shall be treated as a special case for the purposes of the Act

 

8(2) For the purposes of this special case a parent who provides day to day care for a child of his is to be treated as a non-resident parent for the purposes of the Act in the following circumstances –

(a)   …

(b)  where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that care is provided to the same extent by both but each provides care to an extent greater than or equal to any other person who provides such care for that child –

(i)              the parent who is not in receipt of child benefit for the child in question; or

(ii)            …..

 

12. The clear meaning of the provisions is, to put it crudely, that although both parents may be persons with care, if one of them gets the child benefit, the other is treated for the purposes of the Act as the non-resident parent. In the present case the mother received the child benefit at the relevant times, and that means that the father was treated as the non-resident parent during that period even if in reality he provided just as much care as the mother.

 

Entitlement to Child Benefit

 

13. The Social Security Contributions and Benefits Act 1992 provides as follows:

 

S.144(3) Where apart from this subsection two or more persons would be entitled to child benefit in respect of the same child … for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 to this Act.

 

14. Schedule 10 sets out the priority of entitlement. The only overtly gender based priorities are dealt with in paragraph 3, which gives priority to the wife when husband and wife are residing together, and paragraph 4(2) which gives priority to the mother when unmarried parents are residing together. Clearly, neither of these situations arises in the present case.

 

15. There is a default provision in paragraph 5 which applies when none of the other paragraphs applies, which is that those potentially entitled can elect which of them is in fact to be entitled and, in default of such election, such of them is entitled HMRC may in its discretion determine. There is no statutory right of appeal against this discretionary determination, although it is subject to judicial review. Generally speaking judicial review would or might be available if HMRC made some kind of error of law in the exercise of the discretion.

 

The Human Rights Act 1998

 

16. The Human Rights Act 1998 effectively incorporates into English law the main provisions of the European Convention on Human Rights (“the Convention”). The main relevant provisions of the Act are as follows (references are to section numbers):

 

3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

6(2) Subsection (1) does not apply to an act [of a public authority] if-

(a)   as a result of one or more provisions of primary legislation the authority could not have acted differently; or

(b)  in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions.

 

6(3) In this section "public authority" includes –

(a)   a court or tribunal

 

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) …

(b)  rely on the Convention right or rights concerned in any legal proceedings

 

The Relevant Convention Provisions

 

17. For the purposes of the present appeal, the main relevant provisions of the Convention are as follows:

 

Article 6:

 

6.1 In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

 

Article 8

 

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

 

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others. 

 

Article 14 (Prohibition of discrimination)

 

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.

 

Article 1 of Protocol 1:

 

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 for by law and by the general principles of international law.

 

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

More on Article 14

18. It is not every difference in treatment that constitutes discrimination within the meaning of Article 14. If a person is treated differently from another because of status, there is only discrimination for the purposes of Article 14 if the difference in treatment does not pursue a legitimate aim or is disproportionate to the aim pursued. There are many decisions of the European Court of Human Rights to this effect. In Belgian Linguistics (No 2) (1979-80) 1 EHRR 252 at 284 the European Court of Human Rights said:

“ … Article 14 does not forbid every difference of treatment in the exercise of the rights and freedoms recognised …

… [T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification.  The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles that normally prevail in democratic societies.  A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aims sought to be realised”.

19. Article 14 is not a free-standing anti-discrimination provision. It only comes into play to secure “enjoyment of the rights and freedoms set forth in this Convention”. However, a breach of Article 14 does not only arise where there has been a breach of another article. Article 14 also applies to secure, without discrimination, the way in which the various rights are secured, and all that has to be shown is that there has been unlawful discrimination in connection with a right which comes within the ambit of one of the relevant articles (see eg Petrovic –v- Austria Case No 56/1996/775/976).

 

The Case Law

 

20. A number of cases were referred to during the proceedings and I deal here with the most relevant of them.

 

21. Barber v Secretary of State [2002] EWHC 1915 (Admin) was a decision by Sir Richard Tucker, sitting in the Administrative Court of the High Court, on a father’s application for judicial review of a decision by the Secretary of State to award child benefit to a the mother and refuse to award it to the father where the child spent an equal amount of time with both parents. The father wanted the child benefit to be shared and relied on regulation 34 of the Social Security (Claims and Payments) Regulations 1987 which, so far as is relevant, provides that:

 

“[HMRC] may direct that benefit shall be paid, wholly or in part, to another natural person on the beneficiary’s behalf if such a direction as to payment appears … to be necessary for protecting the interests of the beneficiary, or any child or dependent in respect of whom the benefit is payable.”

 

22. Sir Richard noted that the regulation provides a discretionary power, that the “beneficiary” in that case was the mother and that the power can only be exercised if it appears necessary for protecting the interests of the beneficiary or any child. He added (paragraphs 14 and 15) that the power “is designed to cover situations where the parent is unwilling or unable to apply the benefit in the interests of the child or squanders it for some other purpose … providing an exceptional measure to meet certain exigencies and which does not affect entitlement to child benefit”.

 

23. There was no suggestion in that case that the mother was not applying the benefit for the proper purpose, so there would be no power for the Secretary of State to exercise the discretion as suggested. The Secretary of State conceded that the decision not to split or transfer child benefit fell within article 8 of the Convention but it was held that there was no direct or indirect discrimination contrary to article 14.

 

24. Thus, there is nothing in Barber that can help the father’s appeal in the case before me. I note, in particular, that the Secretary of State’s concession as to article 8 related to child benefit and that child support was not an issue in the case.

 

25. Sitting as a Child Support Commissioner I decided the case of CCS/1980/2007, which was reported as R(CS) 1/09. That was also a case where there was equally shared care but the mother was in receipt of child benefit and the father was therefore liable to pay child support. I held that the making of regulation 8(2)(b)(i) was within the powers of the Secretary of State, that neither the child benefit nor the child support scheme was within the scope of Council Directive 79/7 EEC on equal treatment in matters of social security, nor breached any other provision of European Union law, and that even if the rights of the parents in connection with the child support scheme came within the scope of article 8 there was no breach of article 14 since the child benefit arrangements had been agreed between the parents and the father had not applied for child benefit and therefore could not claim to be a victim of any theoretical possibility of discrimination. The father in the present case points out, quite rightly, that he had not agreed to the mother being the child benefit recipient during the relevant period, and that he had in fat made repeated claims for the benefit himself. However, it is important to note that I assumed for the sake of argument that the matter was within the scope of article 8 – I did not decide that it was. European Union law is not relevant in the present case and I make no further comment on it.

 

26. The House of Lords decision in M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91 concerned the case of a divorced mother of two children who lived with another woman as partners and with a joint mortgage. There were two children of her marriage who spent most of the time with their father, her former husband. The woman was the non-resident parent and was liable to pay child support in respect of the children. In calculating the child support assessment the partner’s share of the housing costs was treated as reducing the mother’s housing costs, which had the effect of increasing the child support assessment. Had the partner been a man, his share of the housing costs would have been treated as being paid by the mother and the amount of her liability for child support would have been less. She argued that there had been discrimination contrary to article 14 of the Convention. The House of Lords held that the statutory child support scheme did not come within the ambit of article 8. Having to pay more child support was not an intrusion on her right to respect for family and private life. Her personal and sexual autonomy, which were the essence of private life, had not been invaded, nor had she been criminalised, threatened or humiliated. The right to respect for her continuing family life with her children had not been interfered with; the increased child support liability did not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which were the essence of family life.

 

27. The House of Lords also decided that the child support scheme did not come within the ambit of article 1 of protocol 1. It did no more than enforce the pre-existing obligation of absent parents to contribute to the maintenance of their children, so there was no interference with the mother’s right to protection of her property.

 

28. The mother took her case to the European Court of Human Rights (“the Strasbourg court”), which decided the case on 7^th September 2010 as JM v The United Kingdom (application no 37060/06) (published 28^th September 2010). That court decided that the case did fall within the ambit of article 1 of protocol 1 by virtue of the sums paid by the mother out of her own financial resources towards the upkeep of her children. There was a narrow margin of appreciation for states where the complaint was on the basis of discrimination on grounds of sexual orientation, which would have to be justified by particularly convincing and weighty reasons, which did not exist in the case. Having reached these conclusions, the Strasbourg court did not find it necessary to express a view as to whether the case also came within the ambit of article 8 but found that there had been a violation of article 14 and ordered the United Kingdom government to pay damages and costs to the mother.

 

29. In Lambeth LBC and another v Kay and others, Leeds CC v Price and Others (“the Lambeth case”) [2006] UKHL 10, [2006] 4 All ER 128 a seven member House of Lords considered the position where a decision of the higher domestic courts conflicted with a decision of the European Court of Human Rights at Strasbourg. The case concerned local authorities seeking possession of residential property. The occupiers argued that their rights under the provisions of article 8 of the Convention gave them a defence to the possession claims. In Harrow LBC v Qazi [2003] UKHL 43 the majority of the House of Lords had held that an unqualified right to possession would satisfy article 8(2) of the Convention such that there would be no breach of article 8. The European Court of Human Rights reached what many domestic judges at all levels regarded as a contrary conclusion in Connors v UK (2004) 16 BHRC 639 and in Blecic v Croatia (2005) 41 EHRR 185.

 

30. In the Lambeth case Lord Bingham (with whom all those sitting agreed on the issue of precedent) raised the prospect of different judges and even different divisions of the Court of Appeal taking differing views of the same issue (paragraph 43). He referred (paragraph 40) to the duty imposed on the domestic courts to take Strasbourg judgments and opinions into account and to the unlawfulness of courts acting incompatibly with Convention rights. He continued:

 

“The questions accordingly arise whether our domestic rules of precedent are, or should be modified; whether a court which would ordinarily be bound o follow the decision of another court higher in the domestic curia hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the Court in Strasbourg”.

 

41. He answered by referring to the value of certainty and saying that (paragraphs 43 and 44):

 

“That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal … There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the convention depends on constructive collaboration between the Strasbourg Court and the national courts of member states. The Strasbourg Court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg Court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the particular facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent apply.”

 

42. Lord Bingham would allow a partial exception to this but this appears to be limited to cases where the relevant decision of the domestic court predated the Human Right Act 1998, the conflicting domestic and Strasbourg decisions involved the same parties, and the facts were of an extreme character (paragraph 45).

 

43. The father referred to the decision of the Supreme Court in R (on the applications of GC and C) v Metropolitan Police Commissioner [2011] UKSC 21, [2011] 3 All ER 859, in which the Lambeth case was cited in argument but not referred to in the judgments, but I can see nothing in that decision that supports his arguments.

 

44. Humphreys v The Commissioners for Her Majsty’s Revenue and Customs [2012] UKSC 18, [2012] 4 All ER 27 concerned the child tax credit scheme. Child tax credit in respect of each child is payable to only one person, even where there is shared care of the child. Entitlement depends of who is deemed responsible for the child. Where the child lives with two or more people the person having the main responsibility is deemed responsible. The children in that case lived with the father for a substantial but minority share of the time. The mother was deemed to be the person responsible and child tax credit was paid to her only. The father in effect challenged the rule that prohibited splitting the child tax credit as being indirectly discriminatory against men contrary to the Convention. It was agreed that child tax credit came within the scope of article 1 of protocol 1 and that the scheme was indirectly discriminatory because on the whole fathers are more likely than mothers to have secondary but significant responsibility for the care of their children. The Supreme Court held that in this case discrimination was justified. The scheme was aimed at reducing child poverty, and the state was entitled to conclude that children would be better off if support were given to single households rather than split. Such a scheme was also simpler and less expensive to administer than would be a scheme which split the credit, thus making more funds available for distribution.

 

45. Although I had delayed hearing this appeal to await the outcome of the Supreme Court decision in Humphreys, in the event there is nothing in that case that helps the father in the present case or is really relevant to the decision that I have to make, the child support scheme having always made allowances for adjustment in cases of shared care.

 

The Father’s Argument

 

46. The father’s arguments are spread over several documents, and he also submitted oral arguments at the hearing before me. I have tried to give a fair summary and reflection of his position. He argued that provisions which arbitrarily lead to one parent being treated as the non-resident parent because the other parent is in receipt of child benefit cannot be reasonably justified, neither can a formula which in a shared care scenario effectively taxes one parent and not the other without regard to their relative financial positions or the proportionate hardship (and he supplied a great deal of detailed financial and statistical analysis). The child support scheme is thus inherently discriminatory because the child benefit will always be awarded to the mother when the default discretion is exercised. Further, if the child benefit has been awarded to the mother in this situation, in practice the father would have to prove that he had care for over half of the time in order to become the child benefit recipient (and therefore the parent and person with care). This was shown, for example, by the letter of 14th May 2007 to the father from HMRC (page 303 of the file). There would be no significant administrative cost in having a different rule, and in fact the number of cases in which there is absolutely equally shared care is very small. As he puts it:

 

“Although both parents cover their child’s living expenses for 26 weeks per year, one parent does so with the benefit of … state aid in the form of Child Benefit, is in receipt of Child Tax Credit for the child, and receives payments from the CSA. The other parent  covers their 26 weeks of living expenses without Child Benefit, Child Tax Credit for the child in question, and paying the CSA. It is not in the public interest to arbitrarily take funds from one parent, who is looking after a child to give to the other parent, without a strong objective justification”.

 

47. The effect of this, he argued, is to raise a claim under articles 8 and 14 and article 1 of protocol 1. The child does not benefit regardless of the carer, since assets are transferred from his father, who is therefore less wealthy even when the child is with him. There is a very high burden of justification for these disproportionate arrangements. The lack of any right of appeal against the discretionary child benefit decision makes matters worse and breaches article 6. He also referred to the provisions of the Equalities Act 2010, although he accepted that the Act cannot govern the position before its implementation on 1^st October 2010.

 

 

 

The Secretary of State’s Argument

 

48. Initially the Secretary of State stated that this appeal was supported because it was arguable that the First-tier Tribunal should have used a different basis to calculate the father’s income. However, that seemed to be on the assumption that the mother was appealing to the Upper Tribunal in respect of this First-tier Tribunal decision. She has not done so, neither has the Secretary of State, and in those circumstances, subject to my directions in paragraph 2 above, I am confining this decision to the relevant issues raised by the father.

 

49. In relation to the points raised by the father, the Secretary of State opposes his appeal. The Secretary of State argued that the wording of regulation 8(2)(b)(i) is clear and unambiguous and cannot be given an interpretation other than that given it by the First-tier Tribunal. I agree with this and I do not understand the father to be seriously contesting this proposition.

 

50. The issue then is whether regulation 8(2)(b)(i) can be disapplied with reference to sections 3 and 6 of the Human Rights Act 1998. However, the domestic courts have found that child support does not fall within the ambit of article 8 or of article 1 of protocol 1 for the purposes of article 14. Even if the contrary view is taken, as has been done by the European Court of Human Rights in Strasbourg, which the Upper Tribunal might wish to follow, there has been no breach of article 14. There can be no argument that there is direct discrimination on the facts of the present cases, but it is accepted that indirect discrimination can contravene article 14. The available statistics relate to situations where there is shared care (and it is accepted that men form a large majority of non-resident parents in all categories of shared care) but separate statistics are not kept where there is absolutely equally shared care because it is not necessary to define such a category for the purposes of carrying out the child support calculation. Such cases are included in the category of parents who look after the relevant child for 175 nights or more.

 

51. The Secretary of State argued that it is more than just a matter of administrative convenience. The regulation is objectively justifiable and there is no unfairness. The regulation must be seen within the context of the child support scheme as a whole. There is an obligation on a parent to maintain their children and this is discharged in relevant cases by the non-resident parent making a payment to the parent or person with care. There must always be a non-resident parent and even in a shared care case there must be a mechanism for deciding who is the non-resident parent. It is for the benefit of children that there be such a scheme where parents are separated and in dispute over child maintenance. There is a relatively simple formula which does not involve a detailed calculation of what each parent spends on the qualifying children. The large majority of non-resident parents is male but that reflects the real facts of family life. The link to child benefit is convenient, relevant and appropriate. The deeming mechanism avoids having to investigate actual expenditure week by week, which would be very cumbersome and probably contentious every single week. The scheme is fair and proportionate and does take account of cases where the non-resident parent has care for over 175 nights a year, making appropriate adjustments. The payment is for the support of the child, not of the other parent, and in the present case the father has been ordered to pay the minimum amount. The father’s argument missed the point that the child benefit scheme is about primary responsibility but the child support scheme is about contributing to living costs

 

52. The Secretary of State also developed arguments concerning a potential remedy if the father succeeded in his appeal, but it is not necessary to rehearse these in this decision.

 

Conclusions in relation to article 14

 

53. As explained above, for there to be a breach of article 14 it must be established that a complaint or situation comes within the ambit of one of the other rights protected by the Convention, although it is not necessary for there to have been an actual violation of one of those rights. In the present case there is a conflict in relation to article 1 of protocol 1 between the view of the Strasbourg court, which domestic courts are obliged to “take into account” (section 2(1)(a) of the Human Rights Act 1998) and the decision of the House of Lords in M v Secretary of State for Work and Pensions. The House of Lords made it clear in the Lambeth case that where there is such a conflict the ordinary rules of precedent apply, The Upper Tribunal is bound to follow relevant decisions of the Court of Appeal and of the House of Lords/Supreme Court. The circumstances of the present case do not come within the limits of the partial exception identified by Lord Bingham in the Lambeth case and therefore I am bound to find that the child support scheme and the facts of the present case do not come within the ambit of article 1 of protocol 1 to the Convention. In relation to article 8 there is no specific conflicting decision of the Strasbourg court and, again, I am bound by the House of Lords decision in M v Secretary of State for Work and Pensions.

 

54. Although it is not necessary to go any further than that, I also accept Mr Cooper’s argument that the father has not actually established that he is a victim of discrimination (ie on grounds of gender or other status) within the meaning of article 14 of the Convention. It seems to me that the most that the father can establish is what, during the course of the hearing we referred to as the “inertia” factor – that if one parent is in receipt of child benefit and the other parent claims it, the parent newly claiming must establish that they have a greater degree of care and responsibility than the parent currently in receipt of the benefit. This rule or practice makes a great deal of administrative sense and in its absence (and in the absence of agreement between the parents) there could be an endless ping pong of applications and awards.

 

Article 6

 

55. Article 6(1) of the Convention provides as follows:

 

6.1 In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

 

56. On the face of it, the existence of the right of appeal to the First-tier Tribunal (and, where appropriate, beyond) in child support cases complies with article 6, but the issue is whether the absence of right of appeal against the child benefit decision in cases such as the present, where the child benefit decision helps determine the child support decision, means that there is a breach of article 6 in relation to the latter decision.

 

57. The Supreme Court decision in Ali v Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39 concerned the offer by the local authority of particular accommodation to particular unintentionally homeless single mothers. The latter complained that the court was not prepared to consider itself whether certain procedures had been complied with because these were questions of fact for the local authority reviewing officers, thus breaching the requirements of article 6. Lord Collins said (at paragraph 62):

 

“It is plain from the jurisprudence of the [European Court of Human Rights] that an important factor in the application of article 6(1) in disputes with public authorities in areas which in national law would normally be regarded as public law is the assertion by the applicant of what has been variously described as “an economic right” or an “individual, economic right” or a “purely economic right”.”

 

58. In paragraph 43 Lord Hope said:

 

“There are … a number of straws in the wind … that suggest that a distinction can indeed be made between the class of social security and welfare benefits … whose substance the domestic law defines precisely and those benefits which are in their essence dependent on the exercise of judgment by the relevant authority.” 

 

59. I assume for the purposes of my decision that entitlement to child benefit is a civil right within the meaning of article 6, including a case of the exercised of discretion by a public authority under paragraph 5 of Schedule 10 to the Social Security Contributions and Benefits Act 1992. However, I conclude that there has been no breach of article 6. This is for two reasons.

 

60. The first reason is that there is nothing to be gained from a judge (whether sitting alone or with members) simply substituting one exercise of discretion for another, and indeed there would be a risk of a loss of a consistent approach. As far as the merits of the way in which the exercise of discretion are concerned, there is no guidance in the legislation or regulations as to how the discretion is to be exercised. That seems to make it a non-justiciable determination in the sense of R(H) 3/04 and C(H) 4234/2004 (decisions by the Social Security Commissioners) . On that basis the tribunal would in any event be limited to considering the equivalent of the grounds that are available for obtaining judicial review.

 

61. The second reason is the availability of judicial review of the exercise of the discretion. Any error of law in the exercise of the discretion could be considered, such as taking account of irrelevant factors, ignoring relevant factors, or breaching article 14 of the Convention and in an appropriate case the decision could be quashed. The Administrative Court could transfer the application to the Administrative Appeals Chamber of the Upper Tribunal, where there is considerable experience of dealing with both child benefit and child support cases. Thus, the availability of judicial review is an adequate remedy in such a situation.

For the above reasons, this appeal by the father does not succeed.

 

 

 H. Levenson

Judge of the Upper Tribunal

13^th June 2013