FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Reed Lord Philip	[2009] CSIH 21 XA141/07 OPINION OF THE COURT delivered by LORD REED in the Appeal HW Appellant; against SECRETARY OF STATE FOR WORK AND PENSIONS Respondent: _______

For the Appellant: Party

For the Respondent: Bartos; Solicitor to the Advocate General

17 March 2009

The background circumstances
[1] The background circumstances to this case, as explained to us by the appellant, can be summarised as follows. The appellant has two daughters, J and H, who were born in 1990 and 1996 respectively. The children have different mothers. Each child lives with her mother. The appellant does not live with either child. Following the birth of each child, the appellant made monthly payments to the child's mother under an informal agreement. He paid £280 per month to the mother of J, and £180 per month to the mother of H. On 22 August 2005 the mother of H applied to the respondent for the payment of income support or an income-based jobseeker's allowance. As a consequence of making that application, she was treated as having applied for a maintenance calculation with respect to H, in accordance with section 6 of the Child Support Act 1991 as amended ("the 1991 Act"). On 9 May 2006 the respondent determined that the amount which the appellant was liable to pay as child support maintenance in respect of H was £78 per week, with effect from 22 August 2005. That amount was calculated on the basis that the appellant had one qualifying child, and was therefore liable to pay 15 per cent of his net weekly income, in accordance with paragraph 2(1) of Schedule 1 to the 1991 Act.

[2] On 8 August 2006 J's mother applied for a maintenance calculation with respect to J. As a consequence of that application, the amount of child maintenance payable by the appellant in respect of both H and J, with effect from 8 August 2006, was eventually re-calculated. Although the calculation was not before us, we were informed that the amount will have been calculated on the basis that the appellant has two qualifying children, and is therefore liable to pay in total 20 per cent of his net weekly income, in accordance with paragraph 2(1) of Schedule 1 to the 1991 Act.

[3] The appellant has appealed against the respondent's decision of 9 May 2006. The appeal relates solely to his liability to pay child maintenance in respect of H during the period between 22 August 2005 and 7 August 2006. The issue raised in the appeal concerns regulation 11 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (S.I. 2001 No.155) ("the 2000 Regulations"), which we discuss below. Put shortly, the issue which the appellant wishes to raise is that regulation 11 requires account to be taken, in carrying out a maintenance calculation in respect of a qualifying child, of a liability to pay maintenance for a different child under a maintenance order (provided an application for child support maintenance cannot be made in respect of that child), whereas no provision is made by regulation 11 for account to be taken of a liability arising under an agreement such as that between the appellant and J's mother. The appellant's contention is that this is incompatible with his Convention right under Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol No.1 to the Convention, and that the respondent's decision of 9 May 2006 is therefore unlawful by virtue of section 6 of the Human Rights Act 1998. For the purposes of the appeal, the respondent has conceded that his decision falls within the ambit of Article 1 of Protocol No.1.

[4] The appeal was refused by the Child Support Appeal Tribunal on 31 October 2006. A further appeal to the Child Support Commissioner was refused on 17 August 2007. The appellant now seeks leave to appeal to this court. By agreement of parties, we have heard full argument on the merits of the appeal, so that, in the event that we were to consider it appropriate that leave to appeal should be granted, we could proceed forthwith to determine the appeal.

The relevant legislation
[5] Section 1 of the 1991 Act sets out the basic principles on which child support maintenance is based. Each parent of a qualifying child (defined by section 3 as a child, one or both of whose parents are non-resident, i.e. are not living in the same household as the child) is responsible for maintaining that child. A non-resident parent discharges that responsibility by making maintenance payments determined in accordance with the Act. If a maintenance calculation is made under the Act, it is the duty of the non-resident parent to pay the amounts fixed by that calculation.

[6] Section 4 of the Act enables an application to be made to the respondent for a maintenance calculation with respect to a qualifying child. Such an application can be made by a non-resident parent or by the person with care of the child. By virtue of section 4(10), however, there are certain circumstances in which such an application cannot be made. One such circumstance is where there is in force a written maintenance agreement made before 5 April 1993, when the child support scheme came into force. In the present case, no such agreement existed in respect of J: even if the appellant's arrangement with J's mother was a legally enforceable agreement, it was not in writing. Another such circumstance is where there is in force a maintenance order made before 3 March 2003 (when provisions of the Child Support, Pensions and Social Security Act 2000, altering the powers of the court in relation to maintenance orders, came into force), or a maintenance order made on or after that date which has been in force for less than one year (other than an order made under section 8(7) or (8) of the 1991 Act: Child Support Act 1995, section 18(6)). As we shall explain, such orders can only be made where the order (a) is the same as a written maintenance agreement (section 8(5) of the 1991 Act), (b) tops up a maintenance calculation (section 8(6)), deals with educational needs (section 8(7)), deals with needs arising from disability (section 8(8)), or is against a person with care of the child (section 8(10)). In the present case, as we have explained, no maintenance order existed in respect of J. In summary, therefore (and putting the matter broadly: the legislation is complex and cannot readily be summarised with precision), an application can be made under section 4 unless the child's maintenance is regulated by a written agreement pre-dating the entry into force of the child support scheme, or by a maintenance order falling within specified categories.

[7] Section 6 of the Act, as we have explained, treats a person with care of a qualifying child who applies for income support or an income-based jobseeker's allowance as having applied for a maintenance calculation with respect to the qualifying child. That section can be read together with section 46, under which the benefits payable to the person with care can be reduced if she declines to co-operate with action under section 6 to recover child support maintenance from the non-resident parent. The evident intention is to limit the extent to which a parent with care who is being supported by social security benefits can impose responsibility for the support of a qualifying child on the benefit system, rather than the non-resident parent fulfilling his responsibility in accordance with section 1.

[8] Section 8 of the Act generally prevents the courts from making, varying or reviewing a maintenance order in any case where the respondent would have jurisdiction to make a maintenance calculation were an application to be made, regardless of whether or not an application has actually been made. The courts however retain jurisdiction in certain specified circumstances: where the order is the same as a written maintenance agreement; where the maintenance awarded by the court is additional to the child support maintenance payable in accordance with a maintenance calculation which is in force; where the sole purpose of the order is to meet expenses attributable to educational needs or disability; or where the order is made against a person with care of the child.

[9] Section 9 of the Act makes it clear that the existence of a maintenance agreement does not prevent any party to the agreement, or any other person, from applying for a maintenance calculation.

[10] Under section 10 of the Act, maintenance orders and agreements in respect of a qualifying child cease to have effect when a maintenance calculation is made. This does not affect orders and agreements falling within section 4(10) of the Act since, in those cases, no application can be made for a maintenance calculation.

[11] Section 11 of the Act is concerned with maintenance calculations, and gives effect to Schedule 1. As we have explained, paragraph 2(1) of that schedule provides for the weekly rate of child support maintenance to be a percentage of the non-resident parent's net weekly income, the applicable percentage depending on the number of qualifying children. For the purposes of paragraph 2, the expression "qualifying children" is defined by paragraph 10C as meaning those qualifying children with respect to whom the maintenance calculation falls to be made. If, therefore, a non-resident parent wishes to have account taken of a qualifying child (within the meaning of section 3) in respect of whom no maintenance calculation has yet been made, he must make an application under section 4 for a calculation to be made in respect of that child. His responsibility for the maintenance of each of his qualifying children can thus be established and enforced on a consistent basis. Where the calculation is made in respect of more than one qualifying child, and the children are in the care of more than one person, paragraph 6 provides for the maintenance to be apportioned according to the number of qualifying children in the care of each person. In the present case, for example, once a calculation was made in respect of both J and H, the total maintenance, calculated as 20 per cent of the appellant's net weekly income, would be apportioned equally between J's mother and H's mother.

[12] Section 42(1) of the Act enables the respondent to make provision for "special cases". Such provision is made by the 2000 Regulations. In particular, regulation 11(1) addresses the situation where

"(a) an application for child support maintenance is made or treated as made, as the case may be, with respect to a qualifying child and a non-resident parent; and

(b) an application for child support maintenance for a different child cannot be made under the Act but that non-resident parent is liable to pay maintenance for that child -

(i) under a maintenance order;

(ii) in accordance with the terms of an order made by a court outside Great Britain; or

(iii) under the legislation of a jurisdiction outside the United Kingdom".

In such a situation, regulation 11(3) requires the amount of child support maintenance payable by the non-resident parent to be calculated as if the number of qualifying children included the "different child" in question. That amount is then apportioned between all the children pro rata, and the amount payable in respect of the qualifying children is the amount so apportioned. In the present case, for example, if J had been a child falling within the scope of regulation 11, the amount of the appellant's liability in respect of H would have been ascertained by calculating the amount of maintenance payable if he had two qualifying children (i.e. as 20 per cent of his net weekly income), and he would then have been liable to pay one half of that amount in respect of H. His liability in respect of J would have been governed by the order or legislation in question. In the event, as J did not fall within the scope of regulation 11, the appellant was entitled at any time to apply under section 4 of the 1991 Act to have a maintenance calculation made in respect of both children. Such a calculation would again have established liability in respect of both children as 20 per cent of his net weekly income, one half of which would be apportioned to the mother of each child. The only difference in the amount which the appellant was liable to pay, by reason of the fact that J did not fall within the scope of regulation 11, was therefore the amount by which the sums which would have been payable to J under a (hypothetical) maintenance order differed from the 10 per cent of the appellant's income which was payable in respect of J in the absence of such an order. On the facts of the present case, where the amount paid by agreement in respect of J was relatively high, the effect of bringing both J and H within the scope of the child support scheme appears, in fact, to have been to reduce the amount otherwise payable by the appellant.

[13] Finally, in relation to regulation 11, we note that it only applies where an application for child support maintenance for the child in question cannot be made. Where it is possible for an application to be made under section 4 of the 1991 Act in respect of all the children for whose maintenance the non-resident parent is responsible, it is likely to be in his interests to make such an application rather than making payments under an agreement, in order to ensure that all his maintenance responsibilities are taken into account when a maintenance calculation is made. That is particularly the case because he may be unaware of an application or deemed application made by the person with care of a qualifying child until after the event, with the consequence that, unless he makes an application himself, he may find himself liable for arrears of maintenance calculated without account being taken of all the children for whom he is responsible: as happened to the appellant in the present case. If, on the other hand, an application is made by the non-resident parent in respect of all qualifying children, his responsibility for the maintenance of all the children in question can be calculated and enforced on a consistent basis.

Discussion
[14] The appellant's contention, put shortly, was that the fact that regulation 11(3) applied to a non-resident parent who was liable to pay maintenance under a maintenance order, but not to a non-resident parent who was liable to pay maintenance under a maintenance agreement, constituted discrimination which was incompatible with his Convention right under Article 14:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

As we have already noted, the appellant invoked Article 14 in conjunction with Article 1 of Protocol No.1; and it was conceded by the respondent, for the purposes of the appeal, that Article 1 of Protocol No.1 was engaged.

[15] In his grounds of appeal, and in his submissions, the appellant explained the nature of the alleged discrimination as follows. Non-negligent parents paid maintenance for their children; negligent parents did not. Not all non-negligent parents were however treated in the same way when regulation 11 was applied: since the regulation ignored voluntary payments, it treated some non-negligent parents as if they were negligent parents.

[16] The appellant's contention appears to us to be based on a misconception. The 1991 Act makes provision, in section 4, for all qualifying children to be taken into account when a maintenance calculation is made, by means of an application to the respondent. The appellant was at all times entitled to make such an application. By means of such an application, the amount which he was liable to pay for the maintenance of all his children could be calculated and apportioned fairly between them, and his liability to make the payments due could readily be enforced. Regulation 11 is concerned with circumstances in which it is impossible for such an application to be made. In such circumstances, regulation 11(3) provides for a calculation of the maintenance liability of the non-resident parent which approximates, as closely as possible, to the calculation which would have been made under Schedule 1 of the 1991 Act if an application had been made under section 4. Regulation 11 does not discriminate against non-resident parents, such as the appellant, who can make an application under section 4, but provides relief to non-resident parents who are unable to make such an application: it might, indeed, be described as being designed to avoid discrimination against such non-resident parents. The fact that regulation 11 has no application to maintenance payments made under informal agreements is therefore not the result of any intention to treat persons who enter into such agreements less favourably than those whose liabilities are fixed by court orders, but simply reflects the fact that persons in the former category, unlike those in the latter category, are able to make an application under section 4 in respect of all their qualifying children. The fact that section 4(10) prevents an application from being made under that section where certain categories of maintenance order are in force was not itself challenged before us as discriminatory.

[17] We were referred to several authorities on the application of Article 14: Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 and R (RJM) v Secretary of State for Work and Pensions [2008] 3 WLR 1023. We do not however find it necessary to discuss them. For the reasons we have explained, the appeal appears to us to be based on a fundamental misunderstanding. In the circumstances we are satisfied that the grounds of appeal are not arguable, and shall therefore refuse leave to appeal.