Wakefield v Secretary of State for Social Security
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Mr Justice Wilson,MR JUSTICE WILSON,LORD JUSTICE SCHIEMANN |
| Judgment Date | 08 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0208-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | SSTRF 1999/0208/C |
| Date | 08 February 2000 |
[2000] EWCA Civ J0208-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A CHILD SUPPORT COMMISSIONER
Lord Justice Peter Gibson
Lord Justice Schiemann
Mr Justice Wilson
SSTRF 1999/0208/C
The Appellant appeared in person
MISS N LIEVEN (Instructed by DSS, New Court, 48 Carey Street, London WC2A 2LS) appeared on behalf of the First Respondent
The Second Respondent did not appear
Tuesday, 8th February 2000
I will ask Mr Justice Wilson to give the first judgment.
1. Should such part of an absent parent's occupational pension as relates to an injury sustained by him be taken into account in the assessment of maintenance to be paid by him with respect to a child under the Child Support Act 1991? Such is the question raised by this appeal.
2. The Appellant father has three daughters. They are now aged 22, almost 20 and 17. Their mother is the Second Respondent to the appeal but she takes no active part in it. When the parents' marriage broke down, the mother became the "parent with care" of the girls for the purposes of the Act of 1991 [the Act] and the father became the "absent parent".
3. The father is now 46 years old. In 1979, when he was 25 years old, he became employed as a firefighter by the Greater London Council. In 1983, while he was fighting a fire, the floor beneath him collapsed; he fell twelve feet and injured his left ankle. He developed osteoarthritis in the ankle and became incapable of continuing in the fire service. In 1985 he was adjudged to be partly —namely 20% —disabled and was forced to retire.
4. From the date of his retirement the father has been paid a pension referable to his service as a firefighter. The pension has been paid pursuant to the schemes successively set out in the Firemen's Pension Scheme Orders of 1973 ( S.I. 1973 No. 966) and of 1992 ( S.I. 1992 No. 129).
5. Under the schemes, which for present purposes can be taken to be identical, the father's pension has been in two parts, namely the "ill-health pension" and the "injury pension". The ill-health pension has been payable because he was required to retire on grounds of disablement. It was calculated by reference to his final pensionable pay and the number of years of his service. The injury pension has been payable because his disablement was caused by an injury received by him in the execution of his duty otherwise than by his own fault. That was calculated by reference to final pay, years of service and the proportion of disablement; and was reduced pound for pound by 75% of the ill-health pension. By extra-statutory concession the injury pension, being payable by reference to injury sustained on duty, has not been subject to income tax. Both parts of the pension have been increased each year in line with inflation: by March 1994 the ill-health pension had risen to £205 per month gross and the injury pension to £385 per month.
6. The father sued the Greater London Council for damages for breach of duty in relation to his injury. In 1987 he settled the claim for a payment of £100,000. The manner of his deployment of it is unclear; and no question is raised as to the proper treatment of it, or of any income still generated by it, under the Act.
7. In 1993 the mother applied under the Act for a maintenance assessment against the father with respect to the girls. In April 1996 a child support officer made the operative assessment. In calculating the father's income for the purposes of the assessment —which was in the sum of £51.33 per week for all three girls, backdated to 31st March 1994 —the officer took into account both parts of the father's fire service pension.
8. In May 1996 the father applied under s. 18(2) of the Act for a review by a second child support officer of the assessment which had been made. One of his grounds for the review was that his injury pension should not have been included in the calculation of his income.
9. In July 1996 the second child support officer refused to conduct the review on the basis that there were no reasonable grounds for the father's application.
10. In August 1996 the father appealed to a child support appeal tribunal under s. 20 of the Act against the refusal of the application for a review. At the hearing in April 1997 the tribunal rejected the father's submission that his injury pension should not have been included in the calculation of his income. The chairman gave leave to appeal to a Child Support Commissioner on that question of law.
11. On 15th September 1998 Mr Commissioner Angus conducted an oral hearing of the appeal. The child support officer had filed a written submission to the commissioner in which he sought to uphold the ruling of the tribunal. But at the hearing the solicitor from the office of the D.S.S. who appeared on behalf of the child support officer agreed with Mr Dukes, the father's solicitor, that the tribunal had been wrong to hold that the father's injury pension had been properly included in the calculation of his income.
12. By written decision dated 20th January 1999 the commissioner, contrary to the unanimous professional submission to him, dismissed the father's appeal. He gave the father leave to appeal to this court under s. 25 of the Act on that question of law.
13. For financial reasons the father has not been represented on the appeal to this court. But Mr Dukes has helped him to prepare an immaculate skeleton argument. The Secretary of State has been represented by Miss Lieven of Counsel; through her, he has reverted to the original stance of the child support officer and so opposes the appeal.
14. By paragraph 5(1) of schedule 1 to the Act the assessable income of an absent parent must be calculated by reference in part to his net income, expressed algebraically as N, which in turn must be calculated in accordance with regulations, in particular the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 ( S.I. 1992 No. 1815) ["the regulations"].
15. Regulation 7 of the regulations provides:
"(1) Subject to the following provisions of this regulation, for the purposes of the formula in paragraph 5(1) of Schedule 1 to the Act, the amount of N (net income of absent parent) shall be the aggregate of the following amounts—
…
(c) the amount, determined in accordance with Part III of Schedule 1, of the other income of the absent parent;
…
(2) Any amounts referred to in Schedule 2 shall be disregarded."
16. Part III of schedule 1 to the regulations lists "the other income" to be taken into account in the calculation of N. It includes the following:
"9. Any periodic payment of pension or other benefit under an occupational or personal pension scheme or a retirement annuity contract or other such scheme for the provision of income in retirement."
This paragraph was central to the commissioner's conclusion.
17. Schedule 2 to the regulations lists the amounts to be disregarded in the calculation of N. It includes the following:
"5. Any compensation for personal injury and any payments from a trust fund set up for that purpose."
This paragraph is central to the...
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