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Neutral Citation Number:	2013 UKUT 282 AAC
Reported Number:
File Number:	CCS 2675 2010
Appellant:	TD
Respondent:	Secretary of State for Work and Pensions and HLD (CSM)
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	13/06/2013
Date Added:	05/07/2013
Main Category:	Child support
Main Subcategory:	other
Secondary Category:	Human rights law
Secondary Subcategory:	article 6 (fair hearing)
Notes:	Reported as [2014] AACR 7. Maintenance assessment – equally shared care – parent not in receipt of child benefit treated as non-resident parent – regulation 8(2)(b)(i) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 Human rights – whether treatment of parent not in receipt of child benefit as non-resident parent in breach of Article 14 of the Convention After they separated the parents shared the care of their child equally. Assessments of child maintenance were made on the basis that the mother was the parent with care of the child and the father was the non-resident parent. The father appealed to the First tier Tribunal (F-tT) against this decision on the grounds that he cared equally for the child. The F-tT dismissed his appeal on the basis that child benefit had been awarded to the mother and under the relevant regulations the appellant had to be treated as the non-resident parent. The father argued before the Upper Tribunal (UT) that this was unreasonable and that the child support scheme breached Articles 6, 8, 14 and Article 1 of Protocol 1 of the European Convention on Human Rights (the Convention) and was discriminatory, contrary Article 14. Held, dismissing the appeal, that: 1. for a breach of Article 14 to be established a complaint must come within one of the other rights protected by the Convention. There was a conflict between the European Court of Human Rights and the House of Lords as to whether or not the child support scheme came within the ambit of Article 1 of Protocol 1 (M v Secretary of State for Work and Pensions [2006] UKHL 11, reported as R(CS) 4/06). In these circumstances the ordinary rules of precedent applied and the UT was bound to follow the relevant decisions of the domestic courts (in accordance with Lambeth LBC and another v Kay and others, Leeds CC v Price and others [2006] UKHL 10; [2006] 2 AC 465) (paragraph 53); 2. accordingly, Article 1 of Protocol 1 was not engaged (neither was Article 8, on which the European Court of Human Rights did not pronounce) and there could be no discrimination contrary to Article 14. In any event the appellant had not shown that there was discrimination on grounds of status in the making of the discretionary decision (paragraphs 53 to 54); 3. assuming that the making of the discretionary child benefit decision brought the child support decision within Article 6, the absence of a right of appeal against the discretionary decision did not breach Article 6 because it was non-justiciable. An appeal would simply involve one judge sitting alone substituting one exercise of discretion for another and risk the loss of any consistency. Any error such as taking account of irrelevant factors, ignoring relevant factors, or breaching the provisions of Article 14, could be dealt with in judicial review proceedings, which would thus provide an adequate remedy (paragraphs 55 to 61).
Decision(s) to Download:	[2014] AACR 7bv.doc