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Neutral Citation Number:
Reported Number:	R(CS)2 /09
File Number:	CCS 3452 2007
Appellant:
Respondent:
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	10/09/2008
Date Added:	23/09/2008
Main Category:	Child support
Main Subcategory:	variation/departure directions: lifestyle inconsistent
Secondary Category:	Child support
Secondary Subcategory:	other
Notes:	Variation – lifestyle inconsistent – exception where non-resident parent in receipt of working tax credit – whether credit must be lawfully payable The Secretary of State refused to supersede (by way of variation on the grounds of inconsistent lifestyle) the maintenance order in effect against the father. The mother appealed and a tribunal allowed her appeal. The father appealed to the Commissioner. Section 28F(3) of the Child Support Act 1991 provides that the Secretary of State shall not agree to a variation if he is satisfied that prescribed circumstances apply, including, by regulation 7(5)(b) of the Child Support (Variations) Regulations 2000, where the non-resident parent is in receipt of working tax credit. The question for the Commissioner was whether he had to be “properly” or “lawfully” in receipt of the tax credit. In Department for Social Development v MacGeagh [2005] NICA 28 (reported as R 2/05 (CS)) the Court of Appeal in Northern Ireland had considered a very similar issue and decided that “in payment” did not mean “lawfully in payment”. Held, allowing the appeal, that: 1. while the Commissioner was not strictly bound to follow the Northern Ireland Court of Appeal, that court had referred to the decision of the Court of Appeal in England and Wales in Secretary of State for Social Security and another v Harmon, Carter and Cocks [1999] 1WLR 163 (R/CS 4/99) which reached a similar conclusion in relation to the meaning of words in section 6 of the 1991 Act (paragraph 10); 2. the case of R v South Ribble Borough Council ex parte Hamilton (2001) 33 HLR 9, where it was held that legislation should not be construed so as to enable a person to profit from his or her own fraud, was to be distinguished on the basis that it dealt with known fraud (R(CS) 3/08 followed) (paragraphs 11 and 12); 3. it followed that, unless there has actually been a criminal conviction (or, possibly, an admission of fraud during the course of tribunal or court proceedings), the position in Harmon (and MacGeagh) continued to apply (paragraph 13).
Decision(s) to Download:	R(CS) 2-09 bv.doc