CCS_738_2007
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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CCS_738_2007 (26 June 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CCS_738_2007.html Cite as: [2008] UKSSCSC CCS_738_2007 |
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[2008] UKSSCSC CCS_738_2007 (26 June 2008)
Decision
Reasons
Introduction
(a) there was a maintenance calculation extant in respect of James when Rebecca's mother made her application and that, therefore, there were two qualifying children, namely Rebecca and James;
(b) there were two 'relevant other children', namely the children of the father's partner; and
(c) the father's net weekly income was £272.03.
(a) reducing the net weekly income by 20% to £217.62 per week because of the two relevant other children in the father's household;
(b) applying the appropriate percentage, which as there were two qualifying children, was 20%, to the reduced net weekly income, to give an unrounded assessment of £43.52 per week;
(c) rounding that assessment to £44.00 per week; and
(d) apportioning the rounded assessment equally between Rebecca and James to give a liability of £22.00 per week for each child.
The issue
'Net weekly income
1. Net weekly income means the aggregate of the net weekly income of the non-resident parent provided for in this Schedule.
2.-13. …
Child tax credit
13A. Payments made by way of child tax credit to a non-resident parent or his partner at the rate payable at the effective date.
…'
(a) Although the CTC may have been paid to the father's partner it was not, as the father submits, her income. Rather, it was the joint income of the father and his partner. The father and his partner were a couple for the purposes of the Tax Credits Act 2002 and section 3(3) of that Act required them to make a joint claim for tax credits. Papers available to the Commissioner (but not the tribunal) show that they did make a joint claim and that the resulting award of CTC was made jointly to both of them.
Therefore this is not a case in which the partner's income has been treated as that of the father: it actually is his income just as much as it is hers.
(b) It is not the correct approach to compare individual rules of the old scheme with the equivalent rules of the new scheme without considering them in the contexts of those schemes as a whole. A rule that is part of a technical scheme may perform a function that is performed by a different rule in another scheme. Therefore discrimination cannot be established merely by showing that CTC is disregarded when calculating the net income of an absent parent under the old scheme but included when calculating the net weekly income of a non-resident parent under the new scheme. It can only be established, if at all, on the basis that the new scheme taken as a whole treats the father in a way that is worse than he would have been treated by the old scheme taken as a whole and does so for reasons that are impermissible. The evidence in this appeal does not even establish categorically that the father is worse off under the new scheme, far less that he is worse off as a result of discrimination.
(c) In particular, as Rebecca's mother points out, the father is under a legal obligation to maintain Rebecca and he is under no obligation to maintain his partner's children. Despite that, under the new scheme, his net weekly income was reduced by 20% to reflect their presence in his household. In those circumstances, the Secretary of State has taken a policy decision that CTC, as income the father receives to help him maintain those children, should be included in the calculation before the 20% reduction is made. It appears that he took the view that to disregard the CTC and make the 20% reduction would be to make an allowance twice to reflect the same expenditure.
(d) In my judgment, he was entitled to take that view. The rule is only disadvantageous to the father and his new family because the level of CTC was relatively high and the father's earnings were relatively low, so that reducing the net weekly income by 20% was not enough to overcome the effect of including the CTC as income in the first place. It is not difficult to envisage other cases where the same rule would operate to the advantage of non-resident parents and their families: one only has to increase the level of net weekly income and/or reduce the rate of CTC.
(e) Moreover, even if it were permissible merely to compare the treatment of CTC under the old and new schemes, it would still be logically impossible to treat one of the two rules as the benchmark for judging whether the other was discriminatory. Both schemes involve taking money from one parent and giving it to the other for the benefit of the qualifying child. If the different treatment of CTC is treated as 'discriminating' against non-resident parents under the new scheme, then—as a matter of logic—it must also be treated as 'discriminating' against parents with care under the old scheme. As both schemes are in force at the same time, albeit in relation to different people, it is not possible that both those conclusions are correct: therefore neither is.
(f) The same applies when one looks at the effect of the schemes as a whole. The fact, if it be, that the father would be better off under the old scheme does not, without more, mean that the new scheme is discriminating against him. It is equally possible that the old scheme discriminates against those in the position of Rebecca's mother or that, as I judge, there is no discrimination at all.
(g) For those reasons, even if (as the Secretary of State accepts) Article 8 and 14 of the European Convention on Human Rights are engaged in this appeal; and even if (which I doubt) the father is in a position that is analogous to a person whose financial circumstances are the same but who falls to be assessed under the old scheme; and even if (which I greatly doubt) whether being assessed under the new scheme or the old scheme amounts to an 'other status' for the purposes of Article 14, I hold that the difference in treatment is justified as being within the margin of appreciation afforded to the Secretary of State. The Secretary of State is entitled to establish schemes by reference to general rules without seeking to reflect the individual circumstances of every person affected by the scheme. The new scheme taken as a whole does not necessarily disadvantage non-resident parents, or even non-resident parents whose households include relevant other children. The effect produced by the rules in this case is not discrimination but, at most, an anomaly such as may arise in any technical scheme.
The effective date of the calculation
Conclusion
(Signed on the original) | Richard Poynter Deputy Commissioner 26 June 2008 |