R(CS) 2/96
Mr. J. Mesher CCS/4/1994
6.12.95
Maintenance assessment - parent serving in the Armed Forces - whether married quarters his "principle home" - whether "gross earnings" means earnings after deduction of expenses
The parent with care, who was in receipt of income support, applied for a maintenance assessment in respect of her three children on 5 April 1993. The absent parent was a sergeant in the Army. He lived in married quarters but also owned a house which he was buying on a mortgage. He spent leave periods and long weekends in this house. The child support officer's maintenance assessment made on 24 August 1993 allowed an amount for housing costs based on the rent for the married quarters. The absent parent contended that his eligible housing costs should be based on his mortgage payments on the ground that this was his "principal home" for the purposes of regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. He also argued that payments for regimental subscriptions and dress uniform, mess fees and the expenses of the married quarters were wholly, exclusively and necessarily incurred in the performance of the duties of his employment and so should be deducted from his earnings. The tribunal allowed the appeal to the extent that they accepted that the house was the absent parent's principal home and that payments for regimental subscriptions, mess fees and dress uniform should be deducted from his earnings. The absent parent appealed to the Commissioner.
Held that:
- the issue of what was a person's principal home was one of fact for the adjudicating authority. The test was an objective one, directed not just at the number of nights spent in the home, but also at ascertaining what was normal at the date at which the housing costs were calculated (para. 12). The tribunal had not erred in law on this question;
- paragraph 1(2) of Schedule 1 to the Maintenance Assessments and Special Cases Regulations 1992 (sums not counted as earnings) only applied to payments made to, not by, an employee (para. 15). The tribunal erred in law in relying on paragraph 1(2) of Schedule 1;
- "gross earnings" in paragraph 1(3) of Schedule 1 to the 1992 Regulations meant earnings after deduction of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment (see Parsons v. Hogg, R(FC) 1/90 and R(IS) 16/93) (paras. 20 to 25);
- the tribunal had been entitled to conclude on the evidence that the regimental subscriptions, mess fees and dress uniform were incurred in the performance of the absent parent's employment. However, the expenses of the married quarters were not so incurred (Smith v. Abbott [1944] 1All ER 673 applied).
The Commissioner allowed the appeal and substituted his own decision.
DECISION OF THE CHILD SUPPORT COMMISSIONER
- The appeal is allowed. The decision of the Oxford child support appeal tribunal dated 15 April 1994 is erroneous in point of law, for the reasons given below, and I set it aside. My decision, which I can give after making minor further findings of fact, is to remit the case to the Secretary of State with the same directions as given by the appeal tribunal in box 3 of its record of decision and the direction that the recalculation of the maintenance assessment is to be done on the basis that the relevant week for the purpose of paragraph 2(1) of Schedule 1 to the Child Support (Maintenance and Special Cases) Regulations 1992 is the week ending on 28 April 1993 (Child Support Act 1991, sections 24(3)(b) and 20(3) and (4)).
- The first issue raised in this appeal is the proper calculation of the appellant's, the absent parent's, net income in making a maintenance assessment. Under paragraph 5 of Schedule 1 to the Child Support Act 1991, the starting point in calculating the assessable income of an absent parent or of a parent with care is the amount of the parent's net income "calculated or estimated in accordance with regulations made by the Secretary of State". Regulations 7 and 8 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ("the MASC Regulations") provide that net income is to be the aggregate of the amounts determined under Parts I, II, III, IV and V of Schedule 1 to the regulations and that any amounts referred to in Schedule 2 are to be disregarded. The second issue is the amount of the absent parent's eligible housing costs (for the purposes of calculating his exempt income and the level of protected income) under Schedule 3 to the MASC Regulations and in particular the definition of "home" in regulation 1(2) of those regulations.
- The parent with care, the first respondent in the appeal to the Commissioner, applied for a maintenance assessment in respect of her three children on 5 April 1993. Her income consisted of income support and child benefit. A court order was in existence under which the absent parent was liable to make payments in respect of the children. A maintenance assessment form was issued to the absent parent on 27 April 1993. That date was omitted from the submission prepared for the appeal tribunal, but has been given in a letter dated 19 October 1995 from Central Adjudication Services to the Commissioners' office. When sending back the completed form on 7 June 1993, the absent parent supplied copies of his salary statements as a sergeant in the Army for the months of April 1993 and May 1993. Those statements were processed on the 15 of the month, but showed payment as being due on the last working day of the month. He lived in married quarters associated with his place of duty. He also owned a house and he provided details of the mortgage repayments in respect of that house.
- The child support officer made an assessment on 24 August 1993. That assessment was made on the basis of the salary statements for April 1993 and May 1993. It took the amount shown for taxable pay, before any deductions were applied by the employer, and then made the appropriate deduction for income tax and employees' national insurance contributions. Eligible housing costs were based on the rent for the married quarters.
- In a letter dated 9 September 1993 the absent parent requested a review of that assessment, because it did not take account of the fact that he was paying both rent and a mortgage. The child support officer on 30 September 1993 decided that there were no reasonable grounds for supposing that any of the grounds of review specified in section 18(6) of the Child Support Act 1991 existed in relation to the decision made on 24 August 1993. There had been no mistake as to a material fact and the assessment had been correctly calculated according to the legislation. Therefore no review was conducted. The absent parent appealed against that decision.
- At the hearing before the appeal tribunal on 15 April 1994 the absent parent was represented by Mr. Peter Turville of Oxfordshire Welfare Rights. Mr. Turville argued that the absent parent normally lived in more than one home and that his "principal home" for the purposes of the definition in regulation 1(2) of the MASC Regulations was his house and not the married quarters. Therefore, his eligible housing costs should be based on the mortgage payments. He also argued that payments made by the absent parent, by way of compulsory deduction from his salary, for his regimental subscription, mess bills and regimental dress uniform should be deducted from his earnings as the expenses were wholly, exclusively and necessarily incurred in the performance of the duties of his employment. There was evidence from the Army that membership of the sergeants' mess and payment of the fixed fee was compulsory, as was payment of regimental subscriptions. Mr. Turville argued finally that the expenses of the married quarters were to be deducted as wholly, exclusively and necessarily incurred in the performance of the duties of employment. The absent parent gave evidence under oath.
- The appeal tribunal allowed the appeal to the extent of requiring the child support officer to recalculate the maintenance assessment on the basis that the house was the absent parent's principal home and that payments for regimental subscriptions, mess fees and dress uniform were to be deducted from earnings. I need only set out the appeal tribunal's reasons for decision, because they restate and reflect the findings of fact:
"1. Schedule 1, Part 1, regulation 1(2) of MASC Regulations sets out what shall not be included in earnings. Section 2(a) states that earnings shall not include expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment.
- In this case we are satisfied that the regimental subscriptions and Sergeant Mess subscriptions are payments falling within section 2(a) above as they are deducted at source under Queen's Regulations and are wholly, exclusively and necessarily incurred in the performance of [the absent parent's] duties of employment. We also noted paragraphs 10 and 11 of R(FC) 1/90 and took the view that it is not a pre-requisite for the deductions from the salary to be tax deductible to be allowable as an expense under regulation 2(a).
- We are also satisfied that the purchase of regimental dress is again a payment within regulation 2(a).
- Part 1, regulation 1, defines home to include the possibility of having more than one home, in which case, the housing costs are allowed on the principal home.
- We are satisfied that [the absent parent] does have two homes, the first is the property which he owns jointly with his present wife and the second is the married Army quarters.
- The Army quarters are tied to his job in the Army and he has no security of tenure. The property in Wales since he purchased it has been used as his home (apart from a period of three years when he was posted abroad). [The absent parent] lives at his own property during leave periods, long weekends and at least once per month and he considers it his principal home. Further, at the start of his present posting (some 21 months ago) his present wife lived at the owned property whilst he lived in Army accommodation."
- [The absent parent] could, if he wished with the consent of his Commanding Officer, which would not be withheld if he lived within reasonable commuting distance of the barracks, live outside the barracks and not in Army accommodation. It is not a condition of his service at the present time to live in Army accommodation. Therefore, the costs of rental, electricity, gas, water rates, etc. are not a payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment. They should not therefore be deducted from his earnings. If [the absent parent] so wished, he could sell his property, purchase a property near to his posting and live at that property and as a result, would not have Army accommodation costs."
- The absent parent applied for leave to appeal against that decision, on the ground that the appeal tribunal erred in not deducting his expenditure on his Army accommodation. Leave was granted by the Chief Commissioner on 21 July 1994. The exchange of written submissions was completed in March 1995. I shall not set out those submissions, because an oral hearing was held on 18 October 1995 at which full submissions were made.
- The absent parent attended the oral hearing and was represented by Mr. Turville. The parent with care did not attend. The child support officer and the Secretary of State were represented by Mr. Pushpinder Saini of Counsel, accompanied by Miss Deidre Thomas of the Office of the Solicitor to the Department of Social Security. I am grateful to both representatives for submissions in which firm positions were put forward without any immoderate claims or assertions.
- I shall deal with the various issues in turn, starting with that of the principal home.
The principal home
- By virtue of paragraph 1 of Schedule 3 to the MASC Regulations specified payments "in respect of the provision of a home" may be eligible housing costs. The definition of "home" in regulation 1(2) is, unless the context otherwise requires:
"(a) the dwelling in which a person and any family of his normally live; or
(b) if he or they normally live in more than one home, the principal home of that person and any family of his,
and for the purpose of determining the principal home in which a person normally lives no regard shall be had to residence in residential care home or a nursing home during a period which does not exceed 52 weeks or, where it appears to the child support officer that the person will return to his principal home after that period has expired, such longer period as that officer considers reasonable to allow for the return of that person to that home;"
Mr. Saini first submitted that the appeal tribunal had not made an explicit finding that the house was the absent parent's principal home. However, in its decision in box 3 of the form CSAT3, the appeal tribunal explicitly directed the child support officer to recalculate the absent parent's housing costs on the basis that the house was his principal home. Although it might have been better for the appeal tribunal to have tied up its reasons for decision, in box 4 of the form CSAT3, by a conclusion that the house was the principal home, the failure to do so was not an error of law. The appeal tribunal adequately explained the factors which it took into account and its reasoning leading it to that conclusion.
- Mr. Saini's second submission was that, where it was accepted that a person and any family normally lived in more than one home, the test of what was the principal home was an objective one and that the appeal tribunal's conclusion was one which could not properly have been reached on the evidence before it. Mr. Turville submitted that the appeal tribunal's findings and conclusion were not perverse. Other appeal tribunals might have reached different conclusions on the same evidence, but that did not mean that the conclusion reached in the present case was not legally open to the appeal tribunal of 15 April 1994. I reject Mr. Saini's submission. I accept that the test must be objective, in the sense that the test is not simply a person's own view of what is his principal home. But in this case the appeal tribunal clearly did not look solely at the evidence that the absent parent considered the house to be his principal home. It considered that as one factor among others, as in my view it was entitled to do. This is not the case in which to attempt a general analysis of the phrase "principal home". I shall only say that it must be the case that the test is plainly not directed at a simple counting of the number of days or nights spent at the homes in question. Other factors are relevant. The test is also I think directed to ascertaining what is normal as at the date at which the calculation of housing costs is being made, which might exclude the consideration of some long-term considerations. However, at base, the issue is one of fact for the adjudicating authority and I do not think that the appeal tribunal's conclusion, in relation to the absent parent and his present wife, can be said to be one which it was not legally entitled to reach on the evidence.
Expenses
- Paragraph 1 of Schedule 1 to the MASC Regulations, which is headed "Earnings of an employed earner", is in Part 1 of the Schedule, together with paragraph 2 on earnings of a self-employed earner. It provides, so far as relevant:
"(1) Subject to sub-paragraphs (2) and (3), "earnings" means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes-
...
(d) any payment made by the parent's employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment;
...
(2) Earnings shall not include-
(a) any payment in respect of expenses wholly exclusively and necessarily incurred in the performance of the duties of the employment;
(b) any occupational pension;
(c) any payment where-
(i) the employment in respect of which it was made has ceased; and
(ii) a period of the same length as the period by reference to which it was calculated has expired since that cessation but prior to the effective date;
(d) any advance of earnings or any loan made by an employer to an employee;
(e) any amount received from an employer during a period when the employee has withdrawn his services by reason of a trade dispute;
(f) any payment in kind;
(g) where, in any week or other period which falls within the period by reference to which earnings are calculated, earnings are received both in respect of a previous employment and in respect of a subsequent employment, the earnings in respect of the previous employment.
(3) The earnings to be taken into account for the purposes of calculating N [the net income of an absent parent] and M [the net income of a parent with care] shall be gross earnings less-
(a) any amount deducted from those earnings by way of-
(i) income tax;
(ii) primary Class 1 contributions under the [Social Security Contributions and Benefits Act 1992]; and
(b) one half of any sums paid by the parent towards an occupational or personal pension scheme."
Part II of the Schedule covers benefit payments. Part III covers other income to be taken into account in calculating N or M. It includes, in paragraph 15:
"Any other payments or other amounts received on a periodical basis which are not otherwise taken into account under Part I, II, IV or V of this Schedule."
- Mr. Turville's argument on expenses falls into two parts. The first is that the appeal tribunal was right in law to take the view that payments made by an employee of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment fall within paragraph 1(2)(a). The second is that, if the appeal tribunal was wrong about paragraph 1(2)(a), the gross earnings to be taken into account under paragraph 1(3) are the amounts of payments made which fall within paragraph 1(1), less any expenditure incurred by the employee which was necessarily incurred in the earning of that remuneration or profit, in accordance with the principles laid down by the Court of Appeal in Parsons v. Hogg [1985] 2 All ER 897, appendix to R(FIS) 4/85.
Paragraph 1(2)(a)
- Mr. Turville submitted that, since paragraph 1(2)(a) was not expressly limited to payments made by an employer, in contrast to paragraph 1(1)(d), it could apply also to payments made by an employee, so that the amount of any payment was not part of earnings within paragraph 1(1). He put that view forward rather tentatively, because he recognised that that reasoning had been rejected in relation to very similar family credit legislation in Commissioner's decision R(FC) 1/90. His support for that view became more tentative when it was pointed out that if paragraph 1(2)(a) had the effect of taking the amount of payments by employees for necessary expenses out of the category of earnings, paragraph 15 of Schedule 1 would apparently operate to put that amount of wages or salary into the category of other income. I have no hesitation on this point in accepting Mr. Saini's submission that the reasoning in R(FC) 1/90, followed in CIS/77/1993, should be applied. In Schedule 1 to the MASC Regulations paragraph 1(1) defines what payments made to an employee are within the meaning of "earnings". Then paragraph 1(2) defines what falls outside the meaning of "earnings". It is entirely consistent with that structure for paragraph 1(2) only to apply to payments made to an employee and not to payments made by an employee. That conclusion is not undermined in the least by the absence of an express mention of the employer in paragraph 1(2)(a). It must be remembered that not all payments derived from employment are made by the employer.
- The result of that conclusion is that the appeal tribunal erred in law in putting its decision on the ground of paragraph 1(2)(a). However, its decision might still be supportable on different grounds, which I must consider in order to determine whether to substitute a decision of mine for the appeal tribunal's or to refer the case to a new appeal tribunal.
Parsons v. Hogg
- In Parsons v. Hogg the Court of Appeal was considering regulation 2(3) of the Family Income Supplements (General) Regulation 1980, which provided:
"In so far as a person's earnings from any gainful occupation comprise salary, wages or fees related to a fixed period, the gross amount thereof shall be taken into account; and in so far as a person's earnings from any gainful occupation do not comprise salary, wages or fees related to a fixed period, the net profit derived from that occupation shall be taken into account."
The Court of Appeal held that the words "gross amount thereof" referred to the person's "earnings". The primary purpose of the specification of the gross amount of earnings in the first part of the provision was to ensure that any income tax deducted by the employer under PAYE was added back. The word "earnings" was capable of meaning either the remuneration actually received or such receipts after payment of the expenses wholly and necessarily incurred in the course of winning them. Since the purpose of the legislation was to ascertain the available resources of a claimant for family income supplement and a contrary conclusion would lead to an illogical and unfair distinction between those whose earnings related to a fixed period and those earnings did not relate to a fixed period, the second meaning was correct. The gross amount of earnings referred to earnings before the deduction of tax, but after the deduction of the expenses allowable in arriving at the taxable sum.
- That reasoning was applied to the family credit legislation by the Commissioner in R(FC) 1/90. Regulation 20(1) of the Family Credit (General) Regulations 1987 provides that for employed earners the earnings to be taken into account are net earnings, subject to the limited disregards in Schedule 1. Regulation 20(3) provides that net earnings are to be calculated "by taking into account the gross earnings of the claimant from the employment over the assessment period less" deductions of income tax and primary Class 1 social security contributions and half of pension contributions paid by the employee. It was held that in ascertaining the amount of earnings there must be a deduction of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment. Another Commissioner in CIS/317/1992, to be reported as R(IS) 16/93, has applied that reasoning to the almost identical provisions in the income support legislation. I have followed that decision in CIS/507/1994.
- Mr. Turville submitted, in brief, that that reasoning justified the deductions made by the appeal tribunal and would in addition justify a deduction for the expenses of living in married quarters on the base. Mr. Saini argued powerfully against that submission. He submitted first, that the reasoning of Parsons v. Hogg was related to a crude statutory scheme which provided no guidance on the meaning of gross earnings. The Court of Appeal had to plug a hole in the statutory scheme. That was not needed in the family credit scheme or, even more so, in the child support scheme. Mr. Saini submitted that the provisions which I have set out in paragraph 13 above made it absolutely clear what was meant by gross earnings and what could be deducted in reaching the figure of earnings to be taken into account as part of a parent's net income. When the draftsman intended amounts of expenses wholly, exclusively and necessarily incurred in the performance of the duties of employment to be dealt with in a particular way, express provision was made. There was no room for implying any further rule relating to such expenses. That was reinforced by the existence of Schedule 2 to the MASC Regulations, providing an extensive list of amounts to be disregarded in calculating net income. That showed that there was no room for implication into the scheme. Mr. Saini did not shrink from submitting that R(FC) 1/90 was wrongly decided in relation to family credit. If that point were not accepted, he submitted that there was a highly significant difference between the purpose of the child support legislation and the purpose of the family credit and income support legislation. The purpose was not to determine what resources it was fair to take into account in assessing entitlement to a means-tested benefit. The whole purpose of the child support legislation was to require a reallocation of priorities on the support of children and to ensure that the support of children should come ahead of many other expenses of parents. The express provisions of the MASC Regulations gave effect to those new priorities.
- I reject the submissions on behalf of the child support officer and the Secretary of State. Paragraph 1 of Schedule 1 to the MASC Regulations does not provide a complete and unambiguous code. I accept that the child support legislation is much more detailed than the family income supplement legislation considered in Parsons v. Hogg, but the statutory context does not remove the ambiguity which is inherent in the phrase "gross earnings". Paragraph 5 of Schedule 1 to the Child Support Act 1991 requires "net income" to be taken into account, but only as calculated in accordance with regulations. Then regulation 7 of the MASC Regulations requires net income to be the aggregate of the amounts determined in accordance with Parts I, II, III, IV and V of Schedule 1 to the MASC Regulations, subject to the disregards in Schedule 2. Part I of Schedule 1 relates to earnings. paragraph 1(1) and (2) defines what categories of payments made to employed earners do and do not count as earnings. The express references to payments in reimbursement of expenses are in my view necessary only to confirm the position in the light of the proposition, familiar from income tax law, that a payment purely in reimbursement of expenses is not an emolument of employment. Then paragraph 1(3) simply requires the earnings to be taken into account to be gross earnings less the specified deductions. One thing which it cannot be disputed that Parsons v. Hogg stands for is that the word "earnings", even when associated with the work "gross", is capable of referring either to the full amount of remuneration due or to receipts after payment of the expenses necessarily incurred in the course of winning those receipts. I find nothing in the more elaborateHH provisions surrounding paragraph 1(3) which throws light on which meaning is intended.
- In particular, there is nothing in the disregards in Schedule 2 to the MASC Regulations which is inconsistent with either meaning. There are several paragraphs which make specific provision for the disregard of expenses necessarily incurred in the course of winning income. I have in mind paragraphs 21 (training allowances), 22 (payments for accommodation), 23 (rent), 24 (payments for board and lodging) and 27 (payments made under mortgage protection policies). But all of those paragraphs relate to income falling into the category of "other income" in Part III of Schedule 1, rather than earnings from employment or self-employment. In Part III of Schedule 1 it is absolutely plain that the full amount of income paid is to be taken into account, subject to Schedule 2, so that the specific disregards are necessary. In relation to earnings from employment, there would be no inconsistency or double counting of expenditure on expenses if the reasoning of Parsons v. Hogg were applied to paragraph 1(3) of Schedule 1. Nor would there be any inconsistency with paragraph 26 of Schedule 1, under which a parent who performs an unpaid or underpaid service for another person can have the amount of remuneration forgone treated as part of his income. That is because paragraph 32 provides for the amount of any such income to be determined as if it were earnings from employment as an employed earner. Thus if Parsons v. Hogg applies to actual earnings it applies equally to deemed earnings under paragraph 26.
- One is left with the construction of paragraph 1(3) itself. In Parsons v. Hogg, Slade LJ (at page 136 of the appendix to R(FIS) 4/85 in the bound volume) said that in the face of an equivocal provision the court was entitled to pay regard to the statutory purpose of the formula for ascertaining the amount of earnings, to ascertain what resources were to be taken into account in determining entitlement to family income supplement. If a person receiving remuneration for a fixed period, a "category A earner", necessarily had to incur expenditure of £103.59 per month in order to receive a pay packet of £425.59 per month:
"it seems to be inherently unlikely that the legislature would have intended that his "earnings" should be treated as the full sum of £425.59 for these purposes; the £103.59 simply does not form part of the resources of the family which are available to him or his family. This improbability becomes even more apparent when it is seen that for the purposes of ascertaining the resources of the family of a category B earner [a person receiving remuneration not related to a fixed period] his receipts would be taken into account (undoubtedly) only after deduction of the expenses necessarily incurred in winning those receipts. There appears to be no reason in logic or justice why category A earners should have been subjected by the Regulation to such harsh discrimination as is suggested."
Griffiths LJ (at p. 137) said that it:
"surely must have been the intention to deal even-handedly with the employed and the self-employed. I can see no justification for discriminating against the employed."
- Taking the employed/self-employed point first, paragraph 3 of Schedule 1 to the MASC Regulations on earnings from self-employment provides for the deduction from gross receipts of expenses which are reasonably incurred and which are wholly and exclusively defrayed for the purposes of the business (sub-paragraph (3)(a)). Thus, if the child support officer's submission were accepted, there would be just the discrimination between the employed and the self-employed which the Court of Appeal in Parsons v. Hogg considered it inherently unlikely that the legislature would have intended to produce.
- On the statutory purpose of the calculation of the amount of earnings, I accept entirely the unique purpose of the child support scheme and recognise that the scheme may require painful reallocations of financial priorities for parents. However, I do not see how that undermines the fundamentals of Slade LJ's approach. The purpose of ascertaining a parent's earnings under Schedule 1 to the MASC Regulations is to determine what income is available, from both the parent with care and the absent parent, to provide for the care of the children concerned. If a parent necessarily has to incur expenditure in the performance of the duties of employment from which earnings are derived, I cannot see how, on any footing and on any view of the appropriate priorities between personal expenditure and support for children, the earnings spent on that expenditure can be said be available for the support of children. Schedule 2 to the MASC Regulations provides nearly 50 categories of income which are disregarded, either wholly or up to some specified amount. I shall not attempt to identify the variety of policy reasons which might lie behind those disregards. But the nature and variety of the disregards clearly shows that the reallocation of financial priorities required by the child support scheme is far from absolute. Many types and amounts of income actually received by parents are regarded for the purposes of the child support scheme as not available for the support of children. The logic and justice in allowing the Parsons v. Hogg deduction under paragraph 1(3) of Schedule 1 is at least as compelling as that behind the disregards in Schedule 2. I stress that the deduction applies only to expenses wholly, exclusively and necessarily incurred in the performance of the duties of employment and not to other kinds of work expenses (see para. 27 below).
- I conclude that paragraph 1(3) of Schedule 1 to the MASC Regulations is equivocal. For the reasons given in the previous two paragraphs it is inherently unlikely that amounts expended by parents wholly, exclusively and necessarily in the performance of the duties of employment as an employed earner should form part of "earnings". There is nothing in the statutory context or in the purpose of the legislation to require that result. The contrary result, in other words the application of the Parsons v. Hogg deduction, is in accordance with fairness and common sense. It is that second construction which is to be applied to paragraph 1(3). Much clearer words would have been required in order to produce the construction put forward on behalf of the child support officer and the Secretary of State. The use of the word "gross" does not alter that conclusion. That indicates only that the earnings from employment, after the Parsons v. Hogg deduction, are to be taken into account subject only to the further deductions specified in paragraph 1(3). My conclusion is consistent with R(FC) 1/90 and R(IS) 16/93, which I consider to have been correctly decided.
The expenses in issue in the present case
- The consequence of my conclusion of law is that the appeal tribunal did not err in law in considering whether the absent parent had made payments in respect of expenses wholly, exclusively and necessarily incurred in the performance of his duties as a sergeant in the Army. Did it err in law in the way in which it applied the legal test? The appeal tribunal did allow the deduction for Regimental subscriptions, mess subscriptions and purchase of dress uniform. I am satisfied (although only just) that, on the evidence, the appeal tribunal was entitled to conclude that those expenses were wholly, exclusively and necessarily incurred in the performance of his duties. I think that the appeal tribunal asked itself whether the incurring of the expenses was made necessary by the nature of the absent parent's duties, rather than whether the incurring of the expenses was simply required by his employer, which would have been the wrong test. The appeal tribunal noted that the payments in question were not allowed as tax-deductible. In my view, it was not bound by any determinations made by the income tax authorities in the application of a test in the same terms, although it was required to have regard to the result of those determinations, which it did. Other appeal tribunals might have reached a different result, but that reached by the appeal tribunal of 15 April 1994 was legally open to it on the facts found, and there was evidence to support those findings of fact.
- The appeal tribunal did not allow a deduction for the expenses of living in Army married quarters. That was the issue on which the absent parent launched his appeal to the Commissioner. Mr. Turville submitted that the appeal tribunal had made insufficient findings of fact on the availability of suitable private accommodation for purchase or rent within reasonable travelling distance of the absent parent's base. In written submissions the child support officer had given some support to that submission. Before me, Mr. Turville submitted that, because permission would not automatically be given to live outside married quarters, a proportion of the expenses, at the very least, should be accepted as necessarily incurred in the performance of duties. I do not accept that the appeal tribunal erred in law on this issue. Any failure to make the findings of fact mentioned by Mr. Turville is irrelevant, because in the circumstances of the present case the expenses (rent etc.) of living in the Army married quarters cannot be said to have been incurred in the performance of duties. They were incurred in order to enable the absent parent's duties to be performed, but that, according to the House of Lords dealing with the income tax test in Smith v. Abbott [1994] 1 All ER 673, is not good enough.
- Accordingly, the ground on which the absent parent brought his appeal fails. Although the appeal tribunal erred in law as identified in paragraph 15 above, it follows that, on the findings of fact properly made by the appeal tribunal, the right practical result was reached. I adopt the same basis as the appeal tribunal in substituting by decision, as it is expedient to do. That is subject to the following additional point, which requires me to make further findings of fact.
The relevant earnings period
- This point has not been raised in written or oral submissions. As noted in paragraph 3 above, the monthly earnings on which the calculation of the maintenance assessment was based were those received in April 1993 and May 1993. Paragraph 2(1)(b) of Schedule 1 to the MASC Regulations, as in force at the relevant time, required that, for a person paid monthly, earnings were to be calculated on the basis of the payments received in the two months ending with the relevant week. By virtue of regulation 1(1), the "relevant week", in relation to a person to whom a maintenance assessment enquiry form is sent, is the period of seven days immediately preceding the day on which the form is given to or treated as sent to the person. In the present case, the maintenance assessment enquiry form is, under regulation 1(6)(b) of the Child Support (Maintenance Assessment Procedure) Regulations 1992, treated as having been sent to the absent parent on 29 April 1993, two days after it was issued on 27 April 1993. The relevant week is therefore the seven days ending on 28 April 1993. Since the evidence indicates that the absent parent did not receive payment until the last day of each month (and I so find as a fact), the payments received in April 1993 and May 1993 were received after the relevant week. The payments made in the two months ending with the relevant week would seem to be those received in February 1993 and March 1993. The effective date of the maintenance assessment appears, since there was an existing court order, to have been 28 August 1993, two days after the date on which the assessment was made (Child Support Maintenance Arrangements and Jurisdiction) Regulations 1992, although the relationship with regulation 30(2)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 is not entirely clear). But that does not have any bearing on the definition of the relevant week for the purpose of paragraph 2(1)(b) of Schedule 1 to the MASC Regulations. The appeal tribunal should, in remitting the case to the Secretary of State, have directed that the recalculation of the maintenance assessment should take account of the earnings received in the correct period.
- The omission to investigate the point and to give that direction was a further error of law on the part of the appeal tribunal. I have given the proper direction in my substituted decision set out in paragraph 1 above. In dealing with the remitted case, the child support officer will have to seek and examine the evidence about the payments of earnings received in the two months ending with the week ending on 20 April 1993.
Date: 6 December 1995 (signed) Mr. J. Mesher
Commissioner
