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Neutral Citation Number:	2013 UKUT 614 AAC
Reported Number:
File Number:	CCS 308 2013
Appellant:	AT
Respondent:	Secretary of State for Work and Pensions and JN (CSM)
Judge/Commissioner:	Judge P Gray
Date Of Decision:	21/11/2013
Date Added:	19/12/2013
Main Category:	Child support
Main Subcategory:	maintenance assessments/calculations
Secondary Category:	Child support
Secondary Subcategory:	variation/departure directions: diversion of income
Notes:	Reported as [2014] AACR 21 Maintenance calculation – whether earnings from work abroad for company registered outside UK income under 2003 scheme The appellant mother, who was the parent with care, had applied for child support maintenance under the 2003 rules, the scheme introduced by the Child Support, Pensions and Social Security Act 2000. The father was employed by a company incorporated in Jersey, G4S International Employment Services Ltd, as a security guard working within the British Embassy in Kabul, Afghanistan and returning for leave in the UK at regular intervals. He was paid offshore without deduction of UK tax or national insurance and had no other income. The First-tier Tribunal (F-tT) decided that the father was habitually resident in the UK but that his income from employment with G4S could not be taken into account and his liability for maintenance was therefore nil. The mother appealed to the Upper Tribunal. The issue before Upper Tribunal was whether a non-resident parent, habitually resident in the UK but employed by a company registered outside Great Britain and who worked offshore, could have any financial liability under the child support legislation in force since 3 March 2003. Held, dismissing the appeal, that: 1. the father’s offshore earnings could not be brought into account within the formula under the 2003 rules; the decision on similar facts in GF v CMEC (CSM) [2011] UKUT 371 (AAC) was made under the original scheme, the 1993 or “old” rules, which differed in a material respect. The Child Support (Variations) Regulations 2000 were inapplicable as neither regulation 19, which concerned income not taken into account and diversion of income, nor regulation 20, which concerned life-style inconsistent with declared income, could be read to accommodate the earnings in the instant case. The habitual residence of the father left the mother unable to apply to the court for maintenance and unable to achieve other than a nil award through the Agency, despite the father’s substantial earnings (paragraphs 23 to 42); 2. the exclusion of the offshore earnings of someone in the father’s position was not a lacuna, but part of the overall child support scheme of maintenance calculation and enforcement, given certain amendments that ameliorated that position for those employed abroad by certain UK institutions, and the potential enforcement difficulties in relation to those employed abroad by private offshore companies (paragraphs 46 to 47); 3. the European Convention on Human Rights (ECHR) would not assist the mother; Article 6 was not engaged following Kehoe v UK no 2010/06, [2008] ECHR 528; (2009) 48 EHRR 2, upholding the decision of the House of Lords in Kehoe v R on the application of the Secretary of State for Work and Pensions) [2005] UKHL 48 which had considered the child maintenance scheme and its public purpose in a broad way which precluded a challenge based on individual circumstances. Neither Article 8, nor Article 14 taken in conjunction with Article 1 of Protocol 1 would benefit her given the wide margin allowed under human rights law to State-run schemes intended to impact on the overall public good: see Humphreys (FC) v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18; [2012] AACR 46 applied in MM v Secretary of State for Work and Pensions (CSM) [2013] UKUT 585 (AAC) (paragraphs 43 to 44).
Decision(s) to Download:	[2014] AACR 21bv.doc