R(CS) 3/96
Mr. J. G. Mitchell QC CSCS/1/1994
21.12.94
Child support scheme - whether compatible with Council Directive 79/7/EEC
Maintenance assessment - endowment mortgage - whether property and contents insurance premiums are "housing costs"
The absent parent applied for a review under s. 18(6) of the Child Support Act 1991 of the maintenance assessment against him but the child support officer refused to conduct a review. His appeal to a child support appeal tribunal was disallowed and he then appealed to a child support Commissioner.
Held that:
- in child support cases any appeal to a tribunal is against the decision made on a review application. It is thus for the tribunal to consider whether or not there are reasonable grounds for entertaining the review application and, if so, whether they show that the original decision should be revised (para. 12);
- the tribunal had erred in law in not concluding that there were at least grounds for review. This was because of the uncertainties created by the wording of paragraphs l(g) and 3(6) of Schedule 3 to the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (paras. 12 and 24);
- however, despite the apparently wide wording of paragraph l(g), it was to be interpreted respectively, so as to exclude all buildings insurance premiums (para. 23). Contents insurance premiums were also excluded (para. 22);
- there was no basis for holding that the operation of the Child Support Act 1991 was in breach of Article 8 of the European Convention on Human Rights (para. 17); it was also clear that Council Directive 79/7/EEC had no application to this legislation (para. 19);
The appeal was allowed and the Commissioner substituted his own decision to the effect that there were grounds for review of the child support officer's decision but that that decision did not fall to be revised.
DECISION OF THE CHILD SUPPORT COMMISSIONER
- The appellant in these proceedings is the parent of a young child born on 6 June 1985. He seeks to challenge a maintenance assessment made on 28 September 1993 by the child support officer, who is the first respondent, under which he is required to pay child support to his former wife, the second respondent, in respect of that child, who is in her care, at a weekly rate of £71.19. On 8 October 1993 another child support officer refused to review that assessment and on 3 February 1994 a child support appeal tribunal rejected the appellant's appeal against that decision. The appellant subsequently appealed to a child support Commissioner with leave on a question of law against the decision of the tribunal.
- My decision is that the decision of the child support appeal tribunal dated 3 February 1994 is erroneous in law and I set that decision aside. The decision which I give in its place in exercise of the powers contained in section 24(3) of the Child Support Act 1991 is that grounds for review of the decision of the child support officer of 28 September 1993 are shown but, on review, that decision does not fall to be revised.
- This appeal to a child support Commissioner was dealt with at an oral hearing held before me on 9 December 1994 at which the appellant, who attended in person, was represented by Mr. Russell Andrews, Welfare Rights Officer, Lothian Regional Council. The first respondent was represented by Miss Jane Paterson instructed by Mr. Neilson acting as the Solicitor in Scotland on behalf of the Chief Child Support Officer. The second respondent has taken no part in the appeal and did not appear at the hearing.
- In terms of section 24(1) of the Child Support Act 1991 "Any person who is aggrieved by a decision of a child support appeal tribunal ... may appeal to a child support Commissioner on a question of law." The appellant is undoubtedly an aggrieved person although almost certainly more aggrieved by matters which fall outside rather than within the jurisdiction of a child support appeal tribunal or a Commissioner. Thus, as a parent who was paying an agreed figure of aliment for his daughter the appellant was aggrieved over the imposition of a child support maintenance assessment, particularly one bringing out a higher figure. However the appellant's former wife is the parent with the care of their child and she is in receipt of income support as well as the maintenance paid by the appellant. Although she would, according to the appellant, not have wished to seek a child support assessment, section 6 of the Child Support Act provides:
"6.–(1) Where income support, family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if-
(a) she is a person with care of the child; and
(b) she is required to do so by the Secretary of State,
authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent."
The Secretary of State was therefore empowered to require, as he did in this case, the second respondent to authorise action to be taken under the Act, whether or not maintenance was already being paid for the parties' child.
- The appellant is also aggrieved by the imposition upon him of fees for the assessment and for the collection of maintenance. The Secretary of State is however authorised by section 47 of the Child Support Act and regulation 3(1)(b) and (3) of the Child Support Fees Regulations 1992 to provide for and recover these fees.
- Further grievances complained of by the appellant relate to (a) delays by the Child Support Agency in transmitting to the second respondent monies remitted by the appellant to the Agency, leading to complaints by the second respondent to the appellant. In the absence of satisfaction from the Agency the appellant endeavoured to meet these complaints by resuming direct payments of maintenance to the second respondent, only to find his employment threatened by earnings deduction orders at the instance of the Agency; (b) a failure by the Agency to discuss the appellant's grievances by way of a "field visit". All these matters relate essentially to the administration of the Child Support Agency and are outwith the jurisdiction of the child support appeal tribunal or the Commissioner. I would merely draw attention to the provisions of section 29 of the Act and regulations 2 to 7 of the Child Support (Collection and Enforcement) Regulations 1992 and especially regulation 6 which deals with representations to the Secretary of State regarding payment arrangements. I would mention also that I was informed by Miss Paterson on behalf of the child support officer that there should be no difficulty in arranging a field visit to the appellant. If that be the case it would be reasonable to expect early arrangements for such a visit to be made.
- I turn now to matters within the jurisdiction of the appellate authorities in such proceedings. Section 1 of the Child Support Act 1991 provides as follows:
"1.–(1) For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.
(2) For the purposes of this Act, an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.
(3) Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments."
Under the definitions contained in section 3 of the Act the appellant is the "absent parent", the second respondent is "the person with care" (in this case the parent with care) and the child who lives with the second respondent is a "qualifying child". In broad terms the Act provides for the making of a child support assessment by a child support officer after obtaining relevant information on the means of the respective parents. The assessment is determined in accordance with formulae laid down in Schedule 1 to the Act and in the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (the MASC Regulations). In terms of section 18(2) of the Act an absent parent against whom an assessment has been made and which is in force, may apply to the Secretary of State to have it reviewed. Section 18(6) of the Act provides:
"(6) The Secretary of State shall refer to a child support officer any application under this section which is duly made; and the child support officer shall conduct the review applied for unless in his opinion there are no reasonable grounds for supposing that the refusal, assessment or cancellation in question-
(a) was made in ignorance of a material fact;
(b) was based on a mistake as to a material fact;
(c) was wrong in law."
Section 20 of the Act enables any person aggrieved by the decision resulting from the review application to appeal to a child support appeal tribunal against that decision. From the decision of the child support appeal tribunal there is a right of appeal to a child support Commissioner, with leave on a question of law under section 24 of the Act, as already mentioned.
- On 19 August 1993 the second respondent, at the behest of the Secretary of State, completed a maintenance application form which applied for a maintenance assessment. In due course the appellant completed a maintenance enquiry form giving details of his earnings and outgoings. The appellant was already paying the second respondent the sum of £200 per month, being £100 by way of maintenance for the second respondent and £100 as aliment for their child under a Minute of Agreement dated 28 February and 8 March 1991. When decree of divorce was pronounced between the parties on 14 July 1993 only the provisions for custody of the child and for payment of £100 by way of periodical allowance to the second respondent were incorporated in the divorce decree although the appellant continued to pay aliment of £100 a month for the child as provided in the Minute of Agreement. On 28 September 1993 a child support officer decided that the appellant was obliged to pay child support to the second respondent in respect of their child at the weekly rate of £71.19. On 5 October 1993 the appellant applied to the Secretary of State for review of that decision. The request was referred for consideration by a different child support officer under section 18 of the Act to which reference has already been made. On 8 October 1993 that child support officer refused to review the decision of the previous child support officer. His decision stated:
"I have considered [the appellant's] request for a review under section 18 of the Child Support Act 1991.
The information contained in the original maintenance application and enquiry forms and subsequent request for review has been examined. In my opinion there are no reasonable grounds for supposing, that the decision in question:
(a) was made in ignorance of a material fact;
(b) was based on a mistake as to a material fact;
(c) was wrong in law.
Therefore, the request for a review is refused."
The appellant thereafter appealed to a child support appeal tribunal.
- Mr. Andrews, who appeared on behalf of the appellant at the tribunal hearing, stated on his behalf that the facts were not in dispute but that he wished to address the tribunal on matters of law. It was argued that the appellant's house insurance costs, ancillary to his endowment mortgage, should have been deducted as eligible housing costs when determining the appellant's income and that it was contrary to natural justice not to do so. He also contended that the action taken against the appellant breached Article 8 of the European Convention on Human Rights and also invited the tribunal to investigate and if appropriate give overriding effect to European Community Law so far as the child support provisions conflicted therewith.
- In view of the concession by Mr. Andrews regarding the facts of the case the tribunal did not make its own findings of fact and merely adopted the facts contained in the papers before the tribunal. The text of their decision and the reasons for it were stated as follows:
"The tribunal had regard to Mr. Andrews' challenge both to the unfairness of not making allowance for the insurance costs and the impact of European Community Legislation on the Child Support Act 1991. They find that the method of assessment adopted by the child support officer in his decision of 8 October 1993 is in conformity with the regulations and is upheld. The tribunal accepted that [the appellant] had behaved reasonably and responsibly throughout. On legal advice, he had entered into a Minute of Agreement to pay £100 per month for his daughter and £100 per month to his wife. When the latter obligation expired in October 1993, he had voluntarily transferred that payment and had been paying £200 per month (at the rate of £46 per week through a standing order) and directly to his wife. As she is on prescribed benefits, she was obliged to apply for a maintenance assessment. The arithmetic has been done correctly, bringing out the present assessment.
The tribunal noted with concern that [the appellant] had been under pressure from the Child Support Agency to make the payments, brought out in the assessment, although the assessment was contested and under appeal to this tribunal."
The reasons for decision were as follows:
"This tribunal rejected the invitation either to hold that the Act was in contravention of European legislation or to adjourn to enable some other party to make a test case of this, because this tribunal feels itself bound by the Act and the regulations made by Parliament."
- At the hearing before me it was submitted on behalf of the child support officer in support of the appeal that the tribunal decision was erroneous in law by reason of inadequate findings and reasons to comply with the requirements of regulation 13(2)(b) of the Child Support Appeal Tribunals (Procedure) Regulations 1992 under which the chairman of the tribunal is required to:
"(b) include in the record of every decision a statement of the reasons for it, the findings of the tribunal on questions of fact material to the decision and the terms of any direction under section 20(4) of the Act."
The requirement regarding the giving of directions under section 20(4) of the Act arises from the limitations placed by the Act upon the powers of the child support appeal tribunal but no question of such directions arises in this case.
- Before dealing with the question of omissions from the tribunal's findings and reasons I must draw attention to a further matter affecting the form of the tribunal's decision. The adjudication structure applicable to child support cases as outlined above provides for the interposition of a compulsory review stage between the determination of the original child support officer on the assessment and any appeal to a child support appeal tribunal. Thus any appeal to a tribunal is an appeal against the decision made upon the review application, in this instance a decision that there are no reasonable grounds for supposing that the first decision had been made in error or ignorance of material fact or under error of law. Accordingly it was for the tribunal to reconsider that decision and decide in effect whether there were no reasonable grounds for entertaining the review application under any of the stipulated heads or whether there were grounds meriting consideration, and, if so, whether they showed that the original decision should be revised. Had the tribunal done so they ought, having regard to the submissions made, particularly on housing costs as dealt with below, have concluded that there were at least grounds for review of the original child support officer's decision and that the decision under appeal should be altered at least to that extent.
- So far as the question of the tribunal's other findings and reasons is concerned I consider that the tribunal were entitled, given the concession before them regarding the facts of the case, to refrain from making additional findings of fact. However their reasons do not explain their rejection of the appellant's points recording property insurance as an eligible housing cost and the possible impact of European Law. As regards the first of these matters the appellant's argument so far as based upon an allowed breach of rules of natural justice was clearly misconceived but the tribunal ought nevertheless to have explained why under the relevant regulations the appellant's liability for property insurance was not an eligible housing cost to be deducted when ascertaining his exempt income for the purposes of his assessment. Similarly, although the tribunal rejected the arguments based on European Law they did not give any explanation of the difference between the possible impact of some (unspecified) provision of European Community Law on the one hand which might have direct effect on the operation of the Child Support Act, and a provision of the European Convention on Human Rights on the other hand which cannot have any direct overriding effect. It may be that the tribunal considered that these European law questions were questions "first arising" before them which had not been considered by the child support officer. Unlike social security appeal tribunals a child support appeal tribunal does not have power under the Child Support Act 1991 and the Child Support Appeal Tribunals (Procedure) Regulations 1992 to take up questions which first arise in the course of an appeal. It may be doubted whether the lack of such a power would preclude a tribunal from taking note of a European Community Directive which was considered to be applicable and of direct effect. Be that as it may, the tribunal's reasons are in my judgement inadequate on the above topics to satisfy the requirements of regulation 13(2)(b) above mentioned.
- The decision of the tribunal is erroneous in law and I set that decision aside. Having regard to the matters raised and argued before me, the first of which requires further findings of fact, I consider it appropriate to give a decision in accordance with the powers contained in section 24(3)(b) of the Act, which provides that where the decision is set aside the Commissioner may:
"(b) if he considers it expedient, make ... findings and give such decision as he considers appropriate in the light of those findings;"
- In a written submission on this appeal the child support officer now concerned with the case drew attention to the Minute of Agreement entered into between the appellant and the second respondent and submitted that the tribunal in noting the existence of that agreement had failed to consider whether its terms had been incorporated in the subsequent decree of divorce between the parties. The child support officer submitted:
"30. If it is the case that the Minute of Agreement was the only agreement in force at the time the maintenance assessment was made, then I submit that the tribunal should have considered the provisions of section 9 of the Act and regulation 4 of the Child Support (MAJ) Regulations [the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992] in reaching its decision.
- If the Minute of Agreement has in fact been incorporated into a Court Order under the provisions of the Family Law (Scotland) Act 1985 as part of the divorce proceedings between [the appellant and the second respondent] then there would be an impact on the effective date of the maintenance assessment.
- Orders made under the Family Law (Scotland) Act 1985 are prescribed orders for the purposes of regulation 3 of the Child Support (MAJ) Regulations and section 10 of the Act. Where a prescribed order is in force regulation 3(5) directs that the effective date for the maintenance assessment shall be two days after the assessment date. This differs from the situation with a Minute of Agreement where the effective date is the date on which the Maintenance Enquiry Form is given or sent to the absent parent as prescribed by regulation 30(2) of the Child Support (MAP) Regulations [the Child Support (Maintenance Assessment Procedure) Regulations 1992]."
- A copy of the decree of divorce pronounced between the second respondent and the appellant dated 14 July 1993 was produced at the hearing before me. Its terms do not incorporate any order for the payment by the appellant of aliment for the child of the marriage and I so find. Accordingly it is not an order affected by the provisions of section 10 of the Act and regulation 3 of the Maintenance Arrangements Jurisdiction Regulations above referred to. It follows that the special provisions of regulation 3(5) altering the effective date for the maintenance assessment in cases where there is a prescribed order in force do not apply and accordingly the effective date of the assessment in the present case is the date fixed by the first child support officer namely 25 August 1993, being the date on which the maintenance enquiry form was sent to the appellant, and I so hold. So far as paragraph 30 of the child support officer's submission above quoted is concerned, the effect of the provisions of section 9 of the Act and regulation 4 of the Maintenance Arrangements and Jurisdiction Regulations is that the provisions of the Minute of Agreement so far as relating to the payment of aliment for the parties' child are rendered unenforceable from the effective date of the assessment, thus preventing any overlapping liability.
- Article 8 of the European Convention on Human Rights was again referred to before me and it was suggested that the operation of the Child Support Act caused interference with arrangements for the parties' child and the imposition of the maintenance assessment entailed a limitation (presumably financial) of the appellant's rights of access. Article 8 of the Convention provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder to crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The standing of the Convention in British domestic law was considered in the case of Brind & Others v. The Secretary of State for the Home Department [1991] 1 All ER 720. In that case Lord Bridge said at page 722:
"The obligations of the United Kingdom, as a party to the Convention, are to secure to 'everyone within its jurisdiction the rights which the Convention defines, ... It is accepted, of course, by the appellants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the Courts accordingly have no power to enforce convention rights directly and that, if domestic legislation conflicts with the Convention, the Courts must nevertheless enforce it. But it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts which either Convention, the Courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it."
The question therefore is whether the Child Support Act or any relevant portion of it or the subordinate legislation is ambiguous in the sense described, that is, ambiguous as being capable of a meaning which conforms to or conflicts with the European Convention. It is fair to say that no such ambiguity was pointed to or suggested by Mr. Andrews on behalf of the appellant. Indeed Mr. Andrews said that the issue was raised only in order that it might not be said that the appellant had not exhausted his domestic remedies, but he accepted that there was no remedy in the domestic jurisdiction on this score. I see no basis for disagreeing with Mr. Andrews' conclusion having regard to what was said in Brind above and in the absence of any provision identified as being claimed to be ambiguous in the sense above defined.
- In the grounds of appeal reference was made to the possible application of EC Directive 79/7. Article 1 of that Directive states that the purpose of the Directive is the:
"... progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as "the principle of equal treatment."
Under Article 3(1) the Directive applies to:
"(a) statutory schemes which provide protection against the following risks:-
- sickness,
- invalidity,
- old age,
- accidents at work at occupational diseases,
- unemployment;
(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a)."
The preamble to the Child Support Act 1991 describes it as:
"An Act to make provision for the assessment, collection and enforcement of periodical maintenance payable by certain parents with respect to children of theirs who are not in their care, for the collection and enforcement of certain other kinds of maintenance; and for connected purposes."
- The appellant's representative stated before me that he was not "offering any evidence" that the Act breached the EC Directive. However a prior question is whether the Directive applies to the Act at all. In this connection it was somewhat faintly suggested on behalf of the appellant that there was a relevant if indirect effect produced by the Child Support Act in providing a measure of protection to the parent with care against unemployment. Miss Paterson for the child support officer referred to cases on the application of the EC Directive of which it is only necessary to mention Drake v. the Adjudication Officer in which it was emphasised that the aim of the Directive was the progressive implementation of the principle of equal treatment on matters of social security and it was held that in order to fall with the scope of the Directive a benefit must constitute the whole or part of a statutory scheme providing protection against one of the specified risks or a form of social assistance having the same objective. It is accordingly clear that an incidental connection arising from the operation of an Act with possible protection against an aspect of unemployment is not sufficient. In my judgment it is clear that the provisions of Direction 79/7 have no application to this legislation and it is unnecessary therefore to consider any suggestion that the operation of the Act infringes the equal treatment provisions of that Directive. Reference was also made by the appellant to the recent case of Equal Opportunities Commission v. The Secretary of State for Employment [1994] 1 All ER 910. That case was suggested as being relevant to a possible case of indirect discrimination arising from the Child Support Act upon the basis that many more men than women were made the subject of maintenance assessments. That case however related to the question of the impact of EEC law dealing with equal pay and conditions of employment as between men and women and it is of no assistance to the appellant in this case.
- As already mentioned the dispute over housing costs in this case relates to the cost of property insurance on the appellant's home effected in his name by the building society from whom he obtained a loan. The annual premium in respect of the property insurance is £151.20. The appellant's liability in interest payments on the loan and premium payments on the endowment policy has been appropriately taken into account in assessing his exempt income and no question arises in connection with those liabilities. Housing costs are dealt with in regulations 14 to 18 of, and Schedule 3 to, the MASC Regulations. Regulation 14, which alone is relevant in this appeal, provides that Schedule 3 to those Regulations shall have effect for the purpose of determining the costs which are eligible to be taken into account as housing costs. Paragraphs 1 and 3 of Schedule 3 contain the following material provisions:
"1. Subject to the following provisions of this Schedule, the following payments in respect of the provision of a home shall be eligible to be taken into account as housing costs for the purposes of these Regulations-
(a) payments of, or by way of, rent;
(b) mortgage interest payments;
(c) interest payments under a hire purchase agreement to buy a home;
(d) interest payments on loans for repairs and improvements to the home, including interest on a loan for any service charge imposed to meet the cost of such repairs and improvements;
(e) payments by way of ground rent or in Scotland, payments by way of feu duty
(f) payments under a co-ownership scheme;
(g) payments in respect of, or in consequence of, the use and occupation of the home
(h) where the home is a tent, payments in respect of the tent and the site on which it stands;
(i) payments in respect of a licence or permission to occupy the home (whether or not board is provided);
(j) payments by way of mesne profits or, in Scotland, violent profits;
(k) payments of, or by way of, service charges, the payment of which is a condition on which the right to occupy the home depends;
(l) payments under or relating to a tenancy or licence of a Crown tenant;
(m) mooring charges payable for a houseboat;
(n) where the home is a caravan or a mobile home, payments in respect of the site on which it stands;
- (1) The additional provisions made by this paragraph shall have effect only for the purpose of calculating or estimating exempt income.
(2) Subject to sub-paragraph (6), where the home of an absent parent or, as the case may be, a parent with care, is the subject to a mortgage or charge and that parent makes periodical payments to reduce the capital secured by that mortgage or charge of an amount provided for in accordance with the terms thereof, the amount of those payments shall be eligible to be taken into account as the housing costs of that parent.
(3) Subject to sub-paragraph (6), where the home of an absent parent, or, as the case may be, a parent with care, is held under an agreement and certain payments made under that agreement are included as housing costs by virtue of paragraph 1 of this Schedule, the weekly amount of any other payments which are made in accordance with that agreement by the parent in order either-
(a) to reduce his liability under that agreement; or
(b) to acquire the home to which it relates,
shall also be eligible to be taken into account as housing costs.
(4) Where a policy of insurance has been obtained and retained for the purpose of discharging a mortgage or charge on the home of the parent in question, the amount of the premiums paid under that policy shall be eligible to be taken into account as a housing cost.
(6) For the purposes of sub-paragraphs (2) and (3), housing costs shall not include-
(a) any payment of arrears or payments in excess of those which are required to be made under or in respect of a mortgage, charge or agreement to which either of those sub-paragraphs relate;
(b) payments under any second or subsequent mortgage on the home to the extent that they are attributable to arrears or would otherwise not be eligible to be taken into account as housing costs;
(c) premiums payable in respect of any policy of insurance against loss caused by the destruction of or damage to any building or land."
- The only provision of paragraph 1 which is potentially of any direct relevance in the list of allowable housing costs for the purposes of exempt income and protected income is paragraph 1(g). Commenting on the identical provision in paragraph 1(f) of Schedule 3 to the corresponding regulations applicable in Northern Ireland the Northern Ireland Child Support Commissioner in case CSC/2/1994 said:
"12. Coming back to the question of insurance it is quite clear that the provisions of paragraph 1(f) of Schedule 3 are intended to cover payments in respect of the provision of a home and should be given a restricted meaning. In the Housing Benefit Regulations which has the same wording this provision relates to the occupation of a home and only relates to rent. Because para. 3(6) of Schedule 3 sets out clearly that a building insurance premium even if it is included in a composite payment to a building society is specifically excluded. It would be farcical to think that if a person did not have a building society loan then he would be able to claim building insurance premium but if he did have a building society loan he would not be able to claim it. It is quite clear that at no point did the regulations allow a claim in respect of building insurance and the reason for paragraph 6(c) is to set out how a composite payment which includes insurance would be dealt with, because paragraph 3(2) allows for the amount of payments to a building society to be taken into account as housing costs, but paragraph 6(c) then clearly sets out that if that amount includes an insurance premium then the insurance premium is not allowable and must be deducted.
- I am satisfied therefore that there is no provision in the regulations for allowance to be made in respect of premium for building insurance. That being so one must naturally assume that contents insurance is also excluded. This would be in line with the Income Support Regulation in respect of which the Court of Appeal held that insurance premiums were excluded because they were intentionally left out."
- I entirely agree with the Northern Ireland Commissioner regarding the exclusion of contents insurance. As regards property insurance I note however that the Northern Ireland case did not involve an endowment mortgage. Such mortgages come under the provisions of paragraph 3(4) of the Schedule and it is to be noted that the specific exclusion of building insurance premiums under paragraph 3(6)(c) is only applicable to cases coming under sub-paragraphs (2) and (3). No satisfactory explanation was able to be given to me on behalf of the child support officer for the limited exclusions expressed in paragraph 3(6)(c). However I do not consider that in the context of the Schedule the presence of a specific exclusion under para. 3(6)(c) of certain costs in cases coming under sub-paragraphs (2) and (3) necessarily implies an inclusion of those costs in cases coming under sub-paragraph (4). It would obviously be anomalous if building insurance costs were allowed for exempt income purposes solely in endowment mortgage cases. So far as the provisions of paragraph 1(g) are concerned I was referred to the corresponding provisions of the Housing Benefit (General) Regulation but not to any authorities on the interpretation of the latter provision. I note that the Northern Ireland Commissioner indicates that the provision in the Northern Ireland Housing Benefits Regulations "relates to the occupation of a home and only relates to rent." I do not find that observation particularly helpful. Under Schedule 3 of the MASC Regulations payments of or by way of rent are specifically covered under paragraph l(a) and indeed payments in respect of a licence or permission to occupy the home are covered under paragraph 1(i). Similar provisions appear in the Housing Benefit (General) Regulations applicable in Great Britain. It was suggested to me on behalf of the child support officer that the provision in paragraph l(g), both in the child support and the housing benefit context, was intended to cover payments by persons who occupied premises without title or licence to do so i.e. squatters.
- The wording of paragraph 1(g) is expressed in terms which, if read alone, are potentially very wide in their application. However paragraph 1, as well as dealing specifically with rental and licence payments, contains a number of other very specific examples of payments which are eligible as housing costs, a specification which would be unnecessary if a broad, unrestricted, meaning were to be given to paragraph l (g). It would appear accordingly that that sub-para. was intended to have some narrower, more restricted meaning, although what that is may be far from clear. For the purposes of this case it is unnecessary for me to do more than to decide whether sub-paragraph 1(g) is apt to cover property insurance costs. It appears to me that it could only do so if, on a very broad interpretation of the words "in respect of, or in consequence of", it could be argued that the obligation to effect building insurance which is normally imposed by mortgage lenders rendered the sums payable as premium payments coming within the terms of paragraph l(g). The words of paragraph 1(g) do not in my judgement fall to be given such a broad interpretation both for the reasons of context in paragraph 1 already mentioned and because further obvious anomalies would be created if paragraph l(g) was read so as to permit certain mortgage holders to claim house insurance costs while others coming under paragraph 3(6)(c) and householders without any mortgage could not do so. In the result therefore I accept the submission on behalf of the child support officer that property insurance costs were correctly excluded in the calculation of the appellant's exempt and protected income.
- Having regard to the uncertainties created by the wording of paragraph l(g) and 3(6) above mentioned there were in my judgement at least "reasonable grounds for supposing" that the original decision of the child support officer might be wrong in law in respect of housing costs. The original decision accordingly fell to be reviewed upon that ground, if no other, although having regard to my conclusion on housing costs it did not ultimately fall to be altered by revisal. The decision which I give in place of the decision of the child support appeal tribunal is therefore as set out in paragraph 2 above.
- In the result although the decision of the child support appeal tribunal has been set aside and the decision on the review application has been altered in form, for practical purposes the appeal before me fails.
Date: 21 December 1994 (signed) Mr. J. G. Mitchell QC
Commissioner
