Secretary of State for Work & Pensions v Wincott

Judgment

Lady Justice Arden :

The Child Support Act 1991 (“the CSA”) enables a parent with care of a child to apply to the Secretary of State for assistance in obtaining maintenance for the child from a parent who is no longer living with the child (“the non-resident parent"). On receipt of the application, the Secretary of State makes a maintenance calculation. The amount of child support maintenance is fixed by reference to this calculation, but an application for a variation can be made. The question on this appeal is whether a variation could lawfully be made by reference to dividend income which the non-resident parent had received before the application for a variation was made, or which was paid before the statutory provision enabling a variation to be made to take account of dividend income had come into force.

An application for a variation may be made where there has been a change in the circumstances of the non-resident parent. The Secretary of State can agree to a variation if he is satisfied that the case is one which falls within one of the cases set out in Part 1 of schedule 4B or in regulations made under that Part. He must also be of the opinion that it is just and equitable to agree to the variation (s 28F). Para. 1-3 of schedule 4B to the CSA set out a number of cases where an application for a variation can be made. Para. 4 of that schedule then confers a power on the Secretary of State by regulation to prescribe other cases in which a variation may be agreed. Para. 4(2) provides that the regulations may, for example, make provision with respect to cases where a person has income which is not taken into account in a maintenance calculation. The maintenance calculation is made in accordance with regulations made by the Secretary of State (ss 28F(4) and 11, para.11 schedule 1 to the CSA).

The power in para. under para. 4(1) of schedule 4B of the CSA was exercised by reg 8 of the Child Support (Miscellaneous Amendments) Regulations 2005. Reg 8 came into force on 6 April 2005. It amended reg 19 of the Child Support (Variation) Regulations 2000 (“the Variation Regulations”) to enable dividends from a company controlled by the non-resident parent to be taken into account in a maintenance calculation by inserting a new (1A):

“(1A) Subject to paragraph (2), a case shall constitute a case for the purposes of paragraph 4(1) of Schedule 4B to the Act where—

(a) the non-resident parent has the ability to control the amount of income he receiv