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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2007] UKSSCSC CCS_2678_2007 (21 December 2007) URL: http://www.bailii.org/uk/cases/UKSSCSC/2007/CCS_2678_2007.html Cite as: [2007] UKSSCSC CCS_2678_2007 |
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[2007] UKSSCSC CCS_2678_2007 (21 December 2007)
I SET ASIDE the decision of the Southampton appeal tribunal, held on 2 May 2007 under reference 203/06/00317, because it is wrong in law.
I REMIT the case to an appeal tribunal consisting of Mr R P F Colledge and Mr R D Weare. If those members cannot be conveniently assembled, I direct the regional chairman in Cardiff to determine how the tribunal should be constituted.
I DIRECT that tribunal, however it may be constituted, to determine as the only issue the amount of net income that should be included in the absent parent's assessable income under paragraph 27 of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.
I understand that there is a further appeal before the tribunal (page 371 and following). It may be convenient to list that case to be heard at the same time as the rehearing.
The appeal to the Commissioner
The issue
The legislation
'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, capital.'
The Commissioners' decisions
The tribunal's reasoning
'A self-employed builder in the circumstances of the respondent does not have an ongoing business. As each job ends he seeks another, and by not seeking another he certainly did not do anything to give up employment …'
• As to the first point, it seems appropriate to treat income under paragraph 27 as 'other income'. If it were treated as earnings, it would be subject to the various deductions appropriate to earnings. However, as wholly notional income, that would not be appropriate. Treating it as 'other income' was a convenient drafting device.
• As to the second point, there are many practical difficulties in implementing the child support scheme and paragraph 27 does not stand out as being particularly difficult. In some ways, it is easier. The decision-maker does not have to identify what has actually been happening, but to put a figure on the type of income that could have been produced. That is a more abstract exercise that is easier than unravelling incomplete evidence of what has actually occurred or drawing inferences in the teeth's of a parent's deliberate refusal to co-operate.
• As to the third point, I can see nothing in the statutory language that renders it inappropriate to cover a refusal to take up work.
• As to the fourth point, I agree with Mr deputy Commissioner Wikeley. The context of the penalty provision cited by Mr Sanders is very different from paragraphs 26 and 27 and not comparable. I do not consider that it is valid to reason by comparing the drafting of such different provisions.
• Finally, there is a valid point made by Mr deputy Commissioner Wikeley in paragraph 26 of his decision:
'I note the force of the argument made by Ms Harris at the oral hearing – if the legislation provides for a person to be treated as having an income where he works at below the market rate, it would be odd if there were not provision to cover the case where a person deliberately gives up work altogether to avoid paying child support.'
Disposal
Signed on original on 21 December 2007 |
Edward Jacobs Commissioner |