AC CCS 1050 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 06 August 2009 |
| Neutral Citation | 2009 UKUT 152 AAC |
| Subject Matter | Child support |
| Respondent | CMEC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 1050 2009 |
| Appellant | AC |
[2011] AACR 25
(AC v CMEC)
[2011] AACR 25
(AC v Child maintenance and Enforcement Commission (CSM)
[2009] UKUT 152 (AAC))
Judge Jacobs CCS/1050/2009
6 August 2009
Child support – calculation of income – deprivation of income – meaning of “with a view to” reducing amount of assessable income
The mother, who was the parent with care, appealed against the decision assessing the father’s child support maintenance liability. Among other grounds of appeal, she argued that the father had deprived himself of income by giving up his second job. Paragraph 27 of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 provides that where a person has intentionally deprived himself of income with a view to reducing the amount of his assessable income, his net income shall include an amount representing the income which that person would have had if he had not deprived himself of it. A tribunal found in his favour on that point and the parent with care appealed to a Child Support Commissioner. The Commissioner set aside the tribunal’s decision and directed a rehearing, referring the tribunal to the decision in R(CS) 3/00,which drew attention to the line of authority applying a “dominant purpose” test to the phrase “with a view of” in the now-repealed section 44 of the Bankruptcy Act 1914. At the rehearing the tribunal applied that test and found that the father had not deprived himself of income, but gave the parent with care permission to appeal on the meaning of “with a view to” in paragraph 27. The parent with care relied on MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47; [2005] 4 All ER 107 and R v Dooley [2005] EWCA Crim 3093; [2006] 1 WLR 775 to show that the test under paragraph 27 was not the dominant purpose test. The Commission argued for the dominant purpose test suggested in R(CS) 3/00.
Held, allowing the appeal, that:
-
while MacDonald and Dooley were decided on particular legislation and were not decisive on the interpretation of paragraph 27, they showed that “with a view to” was not limited to “dominant purpose” and was capable of a wider meaning in an appropriate context (paragraph 14);
-
the context of the bankruptcy decisions cited in R(CS) 3/00 (and referred to in R(CS) 9/08 and CCS/4056/2004) was the avoidance of fraudulent preferences by which someone who was insolvent sought to favour one creditor at the expense of the rest and in that context the protection for completed transactions was a significant factor that justified narrowing the scope of fraudulent preferences to those in which preference was the debtor’s dominant purpose, whereas the effect of paragraph 27 was to attribute income to a parent in the calculation of child support liability. The difference meant that the two are not directly comparable (paragraphs 15 to 17);
-
paragraph 27 imposed a subjective test, depending on the parent’s state of mind, which had to be identified as a fact, either by direct evidence or inference. The parent’s knowledge of, or attitude towards, a reduction in assessable income was relevant only in so far as it was evidence of his intention or purpose (paragraphs 21 to 23);
-
there was no reason to exclude from paragraph 27 any case in which the reduction of assessable income was an operative purpose or intention behind the deprivation, as that was a permissible meaning for “with a view to”, was an appropriate interpretation for the language of paragraph 27 as a whole and struck a fair balance between the interests of parents and their children, giving effect to the twin functions of deterrence and protection (paragraph 25);
-
that interpretation was supported by the contrasting language of paragraph 26(d) of the Regulations, where the term “principal purpose” was used suggesting that the meaning of “with a view to” in paragraph 27 was not the same as “principal purpose” (paragraph 26);
-
in drawing an inference about a parent’s state of mind, factors to be considered might include the timing of the deprivation, any pressures that the parent was under from third parties, and the probabilities (paragraph 30);
-
the formulation of the test as “significant operative purpose” as applied for the purposes of notional income and capital in social security benefits was not appropriate as “significant” did not add much to “operative” and would require inferences to be drawn with a degree of precision that would usually be unrealistic on the evidence available (paragraph 33).
The judge set aside the decision and directed a rehearing.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
As the decision of the First-tier Tribunal (held at Blackpool on 4 March 2009 under reference 064/07/01581) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).
DIRECTIONS:
The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 20(7)(a) of the Child Support Act 1991, any other issues that merit consideration.
REASONS FOR DECISION
-
The issue
-
The issue in this case is the meaning of “with a view to” in paragraph 27 of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (SI 1992/1815):
“27. Subject to paragraphs 28 to 30, where the Secretary of State is satisfied that, otherwise than in the circumstances set out in paragraph 26, a person has intentionally deprived himself of –
(a) any income or capital which would otherwise be a source of income;
(b) any income or capital which it would be reasonable to expect would be secured by him,
with a view to reducing the amount of his assessable income, his net income shall include the amount estimated by the Secretary of State as representing the income which that person would have had if he had not deprived himself of or failed to secure that income or, as the case may be, that capital.”
-
How the issue arises
-
This case concerns the child support maintenance payable in respect of Rebecca by her father who, in the terms of the child support legislation, is her absent parent. He is a respondent before the Upper Tribunal. The other respondent is the Child Maintenance and Enforcement Commission, which has replaced the Child Support Agency. Rebecca’s mother is her parent with care and the appellant before this tribunal.
-
The absent parent’s liability was assessed at £29.21 a week from the effective date of 31 July 2007. The parent with care exercised her right of appeal against that decision. One of her grounds of appeal was that the absent parent had deprived himself of income by leaving his second job at Tesco. At first, he had worked for Tesco full-time. He then took a different job, but continued to work at Tesco on Sundays. However, he left that work shortly after marrying. I have, as I always do in child support cases, limited myself to the bare, undisputed facts and refrained from any reference to the contentious issue, which in this case is the absent parent’s purpose or intention in giving up the work.
-
The tribunal decided that the absent parent’s housing costs required investigation, but that he had not deprived himself of income. It did not consider that a change of job amounted to deprivation. Otherwise, it argued, it would be necessary to investigate whenever a parent changed jobs, reduced overtime or gave up work. It distinguished between leaving a job and depriving oneself of the income from that job.
-
On appeal to the Child Support Commissioner, Mr Commissioner Gamble set aside the tribunal’s decision and directed a rehearing. As part of his directions for the rehearing, he referred the tribunal to the decision of Mr Commissioner Mesher in R(CS) 3/00. This contains the only reported discussion of “with a view to”:
“19. However, it should be stressed that the conditions for the application of paragraph 27 are strict, although it is not very helpfully drafted. Where capital is spent it is almost inevitable that the person has intentionally deprived himself of the capital. In the case of a lump sum contribution under a personal pension scheme or a retirement annuity contract (which will normally be made out of capital, in the form of savings from past income), the contribution goes to increase the value of the person’s rights under the scheme or arrangement, but there has been a deprivation of the capital in a form in which it could immediately yield income. The crucial factor is whether or not that deprivation was ‘with a view to reducing the amount of his assessable income’. That makes the test the person’s intention, which can be determined on direct evidence or by inference from all the circumstances of the transaction constituting the deprivation. I have not had any detailed submissions on this point, but, for the guidance of the new appeal tribunal I should say that my view is that the intention which has to be shown is to reduce income which might be relevant to a child support assessment which is being made or is reasonably expected to be made. That makes the...
To continue reading
Request your trial