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Neutral Citation Number:	2009 UKUT 152 AAC
Reported Number:
File Number:	CCS 1050 2009
Appellant:	AC
Respondent:	CMEC
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	06/08/2009
Date Added:	02/09/2009
Main Category:	Child support
Main Subcategory:	maintenance assessments/calculations
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 25. Child support – calculation of income – deprivation of income – meaning of “with a view to” reducing amount of assessable income The mother, who was the parent with care, appealed against the decision assessing the father’s child support maintenance liability. Among other grounds of appeal, she argued that the father had deprived himself of income by giving up his second job. Paragraph 27 of Schedule 1 to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 provides that where a person has intentionally deprived himself of income with a view to reducing the amount of his assessable income, his net income shall include an amount representing the income which that person would have had if he had not deprived himself of it. A tribunal found in his favour on that point and the parent with care appealed to a Child Support Commissioner. The Commissioner set aside the tribunal’s decision and directed a rehearing, referring the tribunal to the decision in R(CS) 3/00,which drew attention to the line of authority applying a “dominant purpose” test to the phrase “with a view of” in the now-repealed section 44 of the Bankruptcy Act 1914. At the rehearing the tribunal applied that test and found that the father had not deprived himself of income, but gave the parent with care permission to appeal on the meaning of “with a view to” in paragraph 27. The parent with care relied on MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47; [2005] 4 All ER 107 and R v Dooley [2005] EWCA Crim 3093; [2006] 1 WLR 775 to show that the test under paragraph 27 was not the dominant purpose test. The Commission argued for the dominant purpose test suggested in R(CS) 3/00. Held, allowing the appeal, that: 1. while MacDonald and Dooley were decided on particular legislation and were not decisive on the interpretation of paragraph 27, they showed that “with a view to” was not limited to “dominant purpose” and was capable of a wider meaning in an appropriate context (paragraph 14); 2. the context of the bankruptcy decisions cited in R(CS) 3/00 (and referred to in R(CS) 9/08 and CCS/4056/2004) was the avoidance of fraudulent preferences by which someone who was insolvent sought to favour one creditor at the expense of the rest and in that context the protection for completed transactions was a significant factor that justified narrowing the scope of fraudulent preferences to those in which preference was the debtor’s dominant purpose, whereas the effect of paragraph 27 was to attribute income to a parent in the calculation of child support liability. The difference meant that the two are not directly comparable (paragraphs 15 to 17); 3. paragraph 27 imposed a subjective test, depending on the parent’s state of mind, which had to be identified as a fact, either by direct evidence or inference. The parent’s knowledge of, or attitude towards, a reduction in assessable income was relevant only in so far as it was evidence of his intention or purpose (paragraphs 21 to 23); 4. there was no reason to exclude from paragraph 27 any case in which the reduction of assessable income was an operative purpose or intention behind the deprivation, as that was a permissible meaning for “with a view to”, was an appropriate interpretation for the language of paragraph 27 as a whole and struck a fair balance between the interests of parents and their children, giving effect to the twin functions of deterrence and protection (paragraph 25); 5. that interpretation was supported by the contrasting language of paragraph 26(d) of the Regulations, where the term “principal purpose” was used suggesting that the meaning of “with a view to” in paragraph 27 was not the same as “principal purpose” (paragraph 26); 6. in drawing an inference about a parent’s state of mind, factors to be considered might include the timing of the deprivation, any pressures that the parent was under from third parties, and the probabilities (paragraph 30); 7. the formulation of the test as “significant operative purpose” as applied for the purposes of notional income and capital in social security benefits was not appropriate as “significant” did not add much to “operative” and would require inferences to be drawn with a degree of precision that would usually be unrealistic on the evidence available (paragraph 33). The judge set aside the decision and directed a rehearing.
Decision(s) to Download:	[2011] AACR 25ws.doc