Huxley v Child Support Offices
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,Lord Justice Pill,Lord Justice Auld |
| Judgment Date | 14 December 1999 |
| Neutral Citation | [1999] EWCA Civ J1214-24 |
| Judgment citation (vLex) | [1999] EWCA Civ J1214-35 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 1999 |
| Docket Number | SSTRF 1998/1603/C |
[1999] EWCA Civ J1214-24
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHILD SUPPORT COMMISSIONER ANGUS
SITTING AT THE CHESTER CHILD SUPPORT APPEAL TRIBUNAL
Lord Justice Auld
Lord Justice Pill and
Lady Justice Hale
SSTRF 1998/1603/C
The Appellant Mr D Huxley appeared in person.
Miss N Lieven (Mr J Maurici 14.12.99) (instructed by the Office of the Solicitor, Department of Social Security) appeared on behalf of the Respondents.
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Friday, 14th December 1999
Mr Huxley appeals against the decision of Child Support Commissioner Angus dated 31 July 1998, dismissing his appeal from the Chester Child Support Appeal Tribunal on 18 October 1996, which had itself dismissed his appeal from the refusal dated 22 April 1996 of a child support officer (CSO) to review a decision not to cancel an interim maintenance assessment (IMA) under the Child Support Act 1991. The Commissioner himself gave leave to appeal to this court. Technically the question is whether there was unavoidable delay by Mr Huxley in completing and returning a maintenance enquiry form (MEF). In substance, however, the question is whether the child support officer was entitled to ask him for certain information. Mr Huxley objects to divulging the income of his second wife, and also his housing costs, if this information will be disclosed to his first wife.
Background
The first Mrs Huxley is the parent with care (PWC) of their son Sean, who was born on 10 August 1982. Mr and Mrs Huxley separated in 1989 and were divorced in August 1991. Mr Huxley tells us that there was a 'clean break' order between them in March 1994. He paid her a lump sum. Her claims to periodical payments were dismissed. He agreed to pay £60 per month for Sean. This he had paid from the separation until 1996 when it was increased to £80 per month.
Meanwhile, however, on 21 September 1993 Mrs Huxley had applied to the Child Support Agency ( CSA) for a maintenance assessment. Technically, as she was claiming income support at the time she will have authorised the CSA to make an assessment under section 6 of the Child Support Act 1991. Her application form reveals the existence of two other children living with her, twins born on 18 November 1990, of whom Mr Huxley is not the father. Mr Huxley tells us that a maintenance enquiry form was first issued to him on 22 April 1994, very shortly after the clean break order had been made. He would not be the first to find that situation upsetting, to say the least.
There were then exchanges between him and the CSA in which he sought an assurance that they would not pass on financial details about his income and outgoings and his second wife's income to his first wife. By a letter dated 31 May 1994 they refused to give that assurance. Eventually, on 17 January 1995 he was issued with another form and on 2 February 1995 the CSO notified both parties that he intended to make an interim maintenance assessment if the form was not returned within 14 days. Under section 12 of the 1991 Act a CSO has power to make an IMA if it appears to him that he does not have sufficient information to enable him to make an assessment. Mr Huxley did not return the form. On 24 March 1995, the CSO issued an IMA for £43.92 per week effective from 21 February 1995. This was reviewed on 24 January 1996. The CSO refused to cancel the IMA and the sum was raised to £56.28 per week with the same effective date. Mr Huxley responded on 3 February 1996:
'I would like to appeal your decision refusing to lift this assessment because in the calculation of the amount you have included an amount for the carer of the child, who is my ex-wife, whom I have no liability to maintain.'
On 22 April 1996 a different CSO refused to review the earlier decision and on 29 April Mr Huxley appealed. The second CSO found that there were no new facts to consider and thus no grounds for supposing that the decision (a) was made in ignorance of a material fact, (b) was based upon a mistake as to a material fact; or (c) was wrong in law. Under section 18(6) of the 1991 Act, these are the grounds for reviewing an earlier decision. Under regulation 8(6) of the Child Support (Maintenance Assessment Procedures) 1992, as they were in force at the relevant time:
'Where a child support officer is satisfied that there was unavoidable delay by the absent parent in completing and returning a maintenance enquiry form Ehe may cancel an interim maintenance assessment which is in force.'
Mr Huxley in his written submissions to the tribunal complained of the discrimination involved in asking him for information about his new family while his ex-wife was not being asked for information about hers. He also complained about the inclusion of an allowance for the parent with care in the maintenance requirement on the ground that he had no liability to maintain his ex wife. He further objected to the inclusion of an element to reflect the lone parent premium as he believed that she was not a lone parent. The tribunal did not refer to the last but found the argument that the first two made Mr Huxley's delay unavoidable 'unsupportable'. The Commissioner agreed that there had been no unavoidable delay.
The grounds of appeal
Mr Huxley has again provided the court, as he did the tribunal and the Commissioner, with very full, clear and closely reasoned submissions which would do credit to many lawyers. His principal argument is that a CSO is not entitled to ask for information about the absent parent's new family at the outset but only after there has been at least one completed maintenance assessment. The purpose of asking about the new family's income is not to calculate the initial liability. This is calculated according to paragraphs 1 to 5 of Schedule 1 to the 1991 Act and their associated regulations. These require, first, the calculation of the child's maintenance requirement, then the calculation of the assessable income of both parents, and then the application to both those calculations of a general rule which, in most cases, produces an 'amount of maintenance payable by the absent parent for that child' consisting of a basic element and, where appropriate, an additional element. Information about the income of any new family is relevant only because of paragraph 6 of Schedule 1. Its purpose is to check whether or not the sum produced by the initial calculation will reduce the absent parent's disposable income below his protected level and to make an adjustment if it does so.
This argument has echoes of what is known to family lawyers as the 'millionaire's defence'. If the respondent to an application for ancillary relief can say that he is able to meet any order that the court might properly make to provide for applicant's reasonable requirements, he may avoid giving full disclosure of his assets and income. Similarly, it might be said, if the assessment is made and it is clear that it will not take the absent parent's disposable income below the protected rate, there is no need to ask about any other income coming into the household. To do so is an unacceptable intrusion into his new wife's privacy.
Mr Huxley draws considerable support from the wording of paragraph 6(1) of Schedule 1 to the 1991 Act. The relevant parts of paragraph 6 read as follows (with emphasis supplied):
'(1) This paragraph applies where -
(a) one or more maintenance assessments have been made with respect to an absent parent; and
(b) payment by him of the amount, or the aggregate of the amounts, so assessed would otherwise reduce his disposable income below his protected income level.
(2) The amount of the assessment, or (as the case may be) of each assessment, shall be adjusted in accordance with such provisions as may be prescribed with a view to securing so far as is reasonably practicable that payment by the absent parent of the amount, or (as the case may be) aggregate of the amounts, so assessed will not reduce his disposable income below his protected income level.
(4) The amount which is to be taken for the purposes of this paragraph as an absent parent's disposable income shall be calculated, or estimated, in accordance with regulations made by the Secretary of State.
(5) Regulations made under sub-paragraph (4) may, in particular, provide that, in such circumstances and to such an extent as may be prescribed —…
(b) where the absent parent is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married) income of that other adult,
is to be treated as the absent parent's income for the purposes of calculating his disposable income.'
Regulation 12(1) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 provides that, for the purpose of paragraph 6(4) above, the disposable income of an absent parent is the aggregate of his income and any income of any member of his family.
Under regulation 2 of the Child Support (Information, Evidence and Disclosure) Regulations 1992, an absent parent may be required to provide the Secretary of State or a CSO with information or evidence with respect to the matters listed in regulation 3. Regulation 3(3) provides that the information or evidence to be furnished in accordance with regulation 2 may in particular include information and evidence as to (among many other things) '(l) the persons living in the same household as the absent parent or living in the same household as the parent with care E',...
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