AS TO THE ADMISSIBILITY OF
Application No. 27558/95
by Julian Robert BURROWS
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 February 1995
by Julian Robert BURROWS against the United Kingdom and registered on
9 June 1995 under file No. 27558/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British national born in 1958 and resident in
Kent, England. The facts as submitted by the applicant may be
summarised as follows.
A. Particular circumstances of the case
In 1992 following the applicant's separation from his wife ("A"),
an agreement was drawn up between the applicant and his wife under the
supervision of the Department of Social Security ("DSS") according to
which the applicant paid maintenance of £40.00 per month to his two
children. The agreement was reached after the applicant's income and
outgoings had been assessed. Further, the DSS took into account that
the applicant had agreed to sign the joint house over to A, including
all the furniture and contents. The property was worth £60,000 and had
£6,000 outstanding on the mortgage. The DSS also took into
consideration the applicant's commitments to his new family, a new
partner and child, for whom he had taken out a mortgage to buy a
bungalow. From January 1994, the applicant voluntarily increased
payments to the children of his first marriage to £150 per month.
Prior to transferring the property the applicant phoned the Child
Support Agency Helpline, a telephone enquiry line set up to help deal
with peoples' queries regarding the new Child Support Act 1991 ("the
1991 Act") and the new Child Support Agency ("CSA"). He was informed
that he could expect to pay £200 per month. He considered that he
could meet such a liability and therefore went ahead and transferred
the matrimonial property to A, as had been agreed.
On 3 September 1993 a Maintenance Application Form ("MAF") was
sent to A. In a letter of 9 February 1995 the CSA claims that A
returned the completed MAF to the CSA on 29 September 1993, although
the applicant later received documentation that showed it had been
entered on the computer as having been returned on 7 November 1993.
On 29 September 1993 a Maintenance Enquiry Form ("MEF") was sent to the
applicant, which he returned to the CSA on 7 October 1993.
On 10 November 1993 the applicant was informed by the CSA that
from 29 September 1993 he was liable to pay £78.85 per week under the
Child Support Act 1991, that is £341.68 per month, from
29 September 1993, thus overturning the DSS supervised agreement of
1992 referred to above. Included with this notice was a demand for a
lump sum payment of £788.50 for the arrears that had built up over a
ten week period, (during which the applicant claims he had no knowledge
of the CSA's involvement). The CSA also demanded immediate payment of
a £78.00 charge for their services, (a £44.00 assessment and review fee
and a £34.00 collection fee), to cover collection should the applicant
fail to pay the maintenance as requested. In reply to the applicant's
query as to the charging of this fee, the CSA informed the applicant
by letter of 15 December 1993 that both parents were required to pay
the fees for the agency's services irrespective of which parent made
the application for maintenance and that if one parent requested, or
was required to have the collection service, then both parents were
required to take this level of service. They stated that the payment
was mandatory and that, although he might not require the collection
service at present, the option offered the flexibility of providing
collection and enforcement in the future if necessary.
On 21 December 1993 the applicant was informed by letter that
a review of his assessment had been carried out and that his weekly
liability had been re-assessed at an increased rate of £89.96 per week,
to be back-dated to 29 September 1993. By letter of 6 January 1994 the
applicant appealed against the re-assessment. By letter of
18 January 1994 the applicant was informed that the Chairman of the
Tribunal had made a declaration under Regulation 4 of the Child Support
Appeal Tribunal (Procedure) Regulations 1992 that he did not have
jurisdiction to entertain a purported appeal, so disposing of the
purported appeal.
Following the introduction of new regulations a provision was
made for 'phasing in' increases in maintenance. The applicant
qualified for the phasing in and requested it on 15 February 1994. The
CSA commenced phasing in in the applicant's case on 25 May 1994.
By letter of 10 October 1994 the applicant was informed that his
maintenance assessment had been reviewed and that the weekly amount
payable from 29 September 1993 was £80.82 per week. Further, following
a change in child support legislation and a change in benefit rates,
the maintenance assessment was changed so that the applicant was liable
to pay £78.76 per week from 7 February 1994 and £80.11 per week from
13 April 1994. Further to these changes and the introduction of
phasing-in, a modified assessment of £29.63 per week was payable from
26 May 1994, to be increased to £49.23 from 24 November 1994 and then
to £69.23 per week from 25 May 1995. From 23 November 1995 the full
amount of maintenance assessment at that time was to become payable.
Appendix A to the letter of 10 October 1994 referred to above set
out the applicant's income as follows:
"Net income £296.06
This includes total gross income of £409.82
Less Income Tax of £68.76
Less National Insurance contribution £25.56
Less 50% occupational pension
contributions £11.82
Less 50% of PEP contributions £7.62"
On 12 January 1995 the applicant appealed against the assessment.
Because the applicant had not appealed within the requisite 28 days,
the applicant was requested to explain the reason for the delay. By
letter of 14 January 1995 the applicant explained that the basis for
his appeal was the fact that the original assessment, and therefore all
subsequent reviews etc., appeared to have been carried out without the
authority of his former wife since she had only signed the MAF on
7 November 1993 while he had filled in the MEF a month earlier. He
therefore claimed that the assessment had been carried out illegally.
He claimed that he had only become aware of this on receiving a
computer print out from the CSA. By letter of 23 February 1995 the
Chairman of the Child Support Appeal Tribunal informed the applicant
of his decision not to extend time for the making of an appeal. By
letter of 9 February 1995 the CSA explained to the applicant's Member
of Parliament that while the information entered on the computer system
stated that the applicant's former wife had returned the MAF on
7 November 1993, she had in fact returned it on 14 September 1993, the
date stamped on the returned MAF. This document could not be produced
as to do so would be contrary to the Data Protection Act and other
relevant provisions.
B. Relevant domestic law and practice
Assessment of child maintenance
The Child Support Act 1991 (the Act) provides for the assessment,
collection and enforcement of periodical maintenance payable by parents
in respect of children not in their care. The Act was designed to
improve the position of children whose parents live apart. Research
commissioned for the government white paper ("Children Come First",
1990 Cm. 1264) had indicated that 30 % of lone mothers and 3% of lone
fathers received regular child maintenance and that the average payment
was very low. It was considered that the burden of supporting lone
parents fell largely upon the State.
The amount of child support maintenance payable by an absent
parent is fixed in accordance with a formula set out in Schedule 1 to
the 1991 Act, which takes into account four separate elements: the
amount needed to support the child, the assessable income of the
parents, the deduction rate or proportion of the assessable income
which will go to the child and the protected income, which is intended
to ensure that the standard of living of the absent parent is
maintained at a minimum level (the amount needed for basic living
expenses).
A parent with care of a child may apply to the Secretary of State
for a maintenance assessment to be made. Where a parent caring for a
child claims state benefits (eg. income support, family credit) he or
she may be required to authorise the Secretary of State to recover
child support maintenance from the absent parent (section 6).
Once a maintenance assessment is made, any prior maintenance
agreement becomes unenforceable insofar as it relates to periodic
maintenance payments for the children concerned (section 10 (2)).
To implement the provisions of the 1991 Act, the Child Support
Agency (CSA) was established.
Review procedures
Pursuant to sections 17 and 18 of the 1991 Act, a person may
request the review of a maintenance assessment by a child support
officer if there has been a material change of circumstances since the
assessment was made or where the assessment was made in ignorance of,
or in mistake as to a material fact, or was wrong in law.
Pursuant to section 20, any person aggrieved by the decision of
a child support officer on such a review may appeal to the Child
Support Appeal Tribunal. The President of the Tribunals, a lawyer of
at least 10 years' standing, is also President of the Social Security
Appeals Tribunals and is appointed by the Lord Chancellor. Each
Tribunal consists of a Chairman and two other persons. The Chairman is
required to be a lawyer of 5 years's standing, while the other persons
are drawn from a panel constituted by the President who have knowledge
or experience of the area where they are to work and be representative
of the persons living or working in the area.
Appeals on points of law from the Tribunal lie to a Child Support
Commissioner who is a solicitor or barrister of more than 10 years
standing (section 24). Leave must be granted by either the Chairman of
the Tribunal which heard the case or by the Commissioner. If he finds
that a decision appealed against is wrong in law, he must set it aside
and either make the decision himself or send it back to the Tribunal
or to a different Child Support Officer with directions as to how it
is to be determined.
An appeal lies on a point of law from the Commissioner's decision
to the appropriate court, namely the Court of Appeal or the Court of
Session (section 25). Leave must be obtained either from the
Commissioner or from the Court of Appeal or Court of Session.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
by placing a sudden and extortionate demand on him to pay an inflated
maintenance bill, so overturning the agreement made through the DSS in
1992, and by then making an arbitrary increase in the assessment, the
Government failed to show respect for his family. The applicant claims
that the demand was unnecessary as he was already paying maintenance
at a realistic level, as had been agreed with the DSS. The applicant
claims that not only was there no economic need for the imposition of
the increased maintenance payments, but further, that the increased
level of payments actually affected the applicant's ability to support
his children and himself. He claims that the high payments led
directly to the break-up of his second family and that further, he can
no longer afford access to his third child, who lives two hundred miles
away. He complains that by refusing to recognise travel costs to see
his children and refusing to recognise his real housing costs, the UK
Government fails to respect the need for continued contact with his
children via access and overnight residence.
2. The applicant further complains that, by enforcing payment of a
wrongly made and in any case excessive assessment that if correct would
only leave him with 14 pence in the pound of gross earnings, the
Government have contravened Article 1 of Protocol No. 1 Further, he
claims that by threatening to use a deduction from earnings order,
bailiff action or a garnishee order against his bank account and to
leave him with an 'exempt' income of only £116.60 per week, the
Government has adopted a course of action that will prevent him from
continuing his profession as a nurse, and has deprived him of his right
to the peaceful enjoyment of his possessions. Further, he claims that
the money has not been taken as legitimate maintenance for the children
but rather to supplement the United Kingdom Treasury in a deceptive and
disproportionate way.
3. The applicant further complains under Article 1 of Protocol No. 4
that by threatening him with imprisonment should he fail to fulfil the
contractual agreement that he has been forced to enter into with the
CSA, the Government have threatened to deprive him of his liberty. The
applicant further invokes Article 2 of Protocol No. 4, complaining that
the maintenance assessment has been set at such a high level that he
will not be able to travel to work or move his place of residence to
find work.
4. The applicant further complains under Article 14 of the
Convention that in having selected him as part of a group, "separated
and second parents", for a hidden method of taxation using a formula
and code, the Government have discriminated against him on grounds of
his status.
5. The applicant further complains under Article 13 of the
Convention that he has no effective remedy before a national authority
since the role of setting maintenance has been removed from the courts.
He complains that the review Tribunal set up in place of the courts
lacks any real power and that furthermore he has been refused access
to a review tribunal. He claims that he has no effective access to
judicial review because it would be a very expensive and slow process
and that he does not have adequate time before he will be completely
destitute.
THE LAW
1. The applicant complains that the imposition of a requirement to
pay maintenance to his former wife for the support of his children at
a higher rate than he had previously agreed with his former wife
interfered with his family life contrary to Article 8 (Art. 8) of the
Convention. In particular, he claims that he can no longer afford to
visit his third child and that he has been left with insufficient
income to pay for his own housing costs. Article 8 (Art. 8) provides
as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls its recent decision in Application
No. 24875/94 (Dec. 6.9.96) where it held that the relevant Child
Support legislation does not by its very nature affect family life.
Further, it recalls that the applicant's complaints must be considered
in the context of the financial obligations that are acknowledged to
exist between the applicant and his children.
In the light of the factual information provided by the applicant
regarding his income and his expenses, the Commission does not consider
that the applicant has shown that the effect of the operation of the
legislation in his case is of such a nature and degree as to disclose
any lack of respect for his rights under Article 8 (Art. 8). In the
circumstances the Commission does not therefore find it necessary to
go on to consider whether, had there been an interference, it would
have been justified within the meaning of Article 8 para. 2 (Art. 8-2)
of the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that he has been deprived of his possessions and of the right
to the peaceful enjoyment thereof. Article 1 of Protocol No. 1 (P1-1)
provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission recalls that the deprivation of property referred
to in the second sentence of Article 1 of Protocol No. 1 (P1-1) is
primarily concerned with the formal expropriation of assets for a
public purpose, and not with the regulation of rights between persons
under private law unless the State lays hands - or authorises a third
party to lay hands - on a particular piece of property for a purpose
which is to serve the public interest (see. No. 13021/87, Dec. 8.9.88,
D.R. 57 p. 268, Nos. 8588/79 and 8589/79, Bramelid and Malmström v.
Sweden, Dec. 12.10.82, D.R. 29 p. 64). The Commission therefore doubts
that there has been a deprivation of property within the meaning of the
second sentence of Article 1 of Protocol No. 1 (P1-1), no property
having been taken from the applicant by the State to serve a public
purpose.
However, in view of the active role played by the State in
assessing and collecting child maintenance under the Child Support Act
1991 and taking into account the fact that A was effectively obliged
to request a maintenance assessment in respect of the applicant, since
had she refused or failed to do so her social welfare benefits would
have been removed, the Commission will assume for the purposes of this
application that there was an interference in the applicant's peaceful
enjoyment of his possessions as provided by the first sentence of
Article 1 of Protocol No. 1 (P1-1).
In that regard, the Commission recalls that the legislation about
which the applicant complains is a practical expression of a policy
relating to the economic responsibilities of parents who do not have
custody of their children. Essentially it relates to the payment by
an absent parent to the parent with care of the child[ren] for the
purposes of their maintenance. The relevant legislation compels an
absent parent to pay money to the parent with custody of the child.
The Commission observes that in all Contracting States to the
Convention, the legislation governing private law relations between
individuals includes rules which determine the effects of these legal
relations with respect to property, and in some cases, compel a person
to surrender a possession to another. Examples include the division
of inherited property, the division of matrimonial estates, and in
particular the seizure and sale of property in the course of execution.
This type of rule, which is essential in any liberal society,
cannot in principle be considered contrary to Article 1 of Protocol
No. 1 (P1-1). However, the Commission must nevertheless make sure,
that in determining the effect on property of legal relations between
individuals, the law does not create such inequality that one person
could be arbitrarily deprived of property in favour of another
(cf. Bramelid and Malmström v. Sweden, Dec. 12.10.82, D.R. 29 p. 82).
The Commission notes that while the applicant complains that the
CSA has not backdated any of the changes in assessment, and that the
initial payments were wrongly assessed and not in accordance with law,
the letter of 10 October 1994 from the CSA to the applicant states that
the re-assessed liability was payable from 29 September 1993. His
liability was therefore reduced from £89.96 per week, that the
applicant had been held liable to pay by notification on
21 December 1993, to £80.82 per week. That reduction in liability was
held to have effect from the first date on which child maintenance was
held to be payable. In the circumstances the Commission cannot accept
the applicant's claim that the CSA has not backdated the changes in his
assessment. The applicant does not claim that the assessment of
October 1994 was incorrect in law and the Commission must therefore
assume that it is in accordance with the law.
The Commission further notes that, while the applicant states
that if the assessment is correct he would only be left with 14 pence
for every pound of gross earnings (that is 14% once income tax and
national insurance contributions had also been deducted), the
calculations in the appendices attached to the letter from the CSA of
10 October 1994 show that the applicant is in fact left with about 50 %
of his income once he has paid income tax, national insurance, 50% of
his occupational pension, 50% of his PEP contributions and the weekly
maintenance payment. As regards the applicant's complaint that he is
left with only £116.60 exempt income, the Commission observes that the
protected income level is in fact set at £208.22 in respect of the
applicant.
As regards whether the relevant measures are in the public
interest, the Commission notes that while one specific aim of the
measures is to make absent parents, who are able to do so, pay for the
maintenance requirements of their children, the measures are not
intended solely for the benefit of the children but for the benefit of
the tax-payer in general who bears the burden of paying for single
parents who claim social welfare benefits. In many cases therefore,
while the children are no better off since social welfare benefits are
removed and replaced with payments by the absent parent, the burden on
the tax-payer in general is reduced. The Commission considers that the
aims of reducing taxation and increasing parental responsibility must
be considered as in the public interest for the purposes of Article 1
of Protocol No. 1 (P1-1).
The Commission further recalls that, while a Contracting State
enjoys a certain margin of appreciation as regards interference with
the peaceful enjoyment of possession in the public interest, it must
respect a reasonable relationship of proportionality between the means
employed and the legitimate aim (see. No. 14265/88, Dec. 19.1.89,
D.R. 59 p. 281). In view of the fact that the applicant is not required
to pay a disproportionate percentage of his gross income in maintenance
payments, approximately 20%, and taking into account the disposable
income that he is left with, the Commission considers that the United
Kingdom has not acted disproportionately in pursuing the legitimate
aims referred to above.
In the circumstances the Commission does not consider the
relevant measures to be disproportionate to the legitimate aim they
pursue and considers that a fair balance has been struck between the
interests of the community as a whole and those of the individual.
It follows that this part of the complaint must be dismissed as
inadmissible within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. The applicant further complains under Article 1 of Protocol No. 4
and Article 2 of Protocol No. 4 (P4-1, P4-2).
The Commission recalls that the United Kingdom has not ratified
Protocol No. 4 such that no reliance can be placed thereon by the
applicant.
It follows that this part of the complaint must be dismissed as
incompatible ratione personae within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant further complains under Article 14 (Art. 14) of the
Convention that in having selected him as part of a group, "separated
and second parents", for a hidden method of taxation using a formula
and code, the Government have discriminated against him on grounds of
his status. Article 14 (Art. 14) provides as follows.
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) of the
Convention safeguards individuals placed in similar positions from any
discrimination in the enjoyment of the rights and freedoms set out in
the Convention and Protocols (see e.g. Eur. Court HR, Marckx v. Belgium
judgment of 13 June 1979, Series A no. 31 and Van der Mussele
v. Belgium judgment of 23 November 1983, Series A no. 70, No. 11089/84
Dec. 11.11.86, D.R. 49 p. 181). It has no independent existence and
takes effect solely in relation to the "enjoyment of the rights and
freedoms" safeguarded by those provisions. However, it is autonomous
to the extent that its application does not necessarily presuppose a
breach of one of those provisions, but it cannot be applied unless the
facts at issue fall within the ambit of one or more of the provisions
of the Convention (see Eur. Court H.R., Abdulaziz, Cabales and
Balkandali v. United Kingdom judgment of 28 May 1985, Series A no. 94,
p. 35, para. 71).
The Commission will examine the applicant's complaints insofar
as they fall within the ambit of Article 1 of Protocol No. 1 (P1-1).
The applicant in the present case implicitly seeks to compare himself
with tax-payers in general who are neither separated parents nor second
parents. The Commission is of the opinion that these are not analogous
situations. There exist significant differences between parents who
are separated and other tax-payers. Parents in general have a
responsibility for their children, including a financial
responsibility, that tax-payers who are not parents do not have. Tax-
payers who are parents cannot therefore be compared with taxpayers who
are not parents. When parents separate, such that the care of the
children is entrusted to one parent, a particular situation arises
calling for different legal measures. While it can be assumed that a
couple who live together with their children will adopt joint
responsibility for their care and maintenance, the same cannot be said
of parents who have separated. The relevant child support legislation
was adopted to deal with that very difference.
The Commission accordingly concludes that the situation of the
applicant is not comparable to that of tax-payers who are either not
parents at all or parents who live together with their children.
Insofar as the applicant complains that he has been the victim of
discrimination in that the child support legislation treats first time
parents in the same way as second time parents, the Commission finds
that the complaint does not disclose discriminatory treatment for the
purposes of Article 14 (Art. 14) of the Convention.
It follows that this part of the application must be dismissed
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant further complains under Article 13 (Art. 13) of the
Convention that he has no effective remedy before a national authority
since the role of setting maintenance has been removed from the courts.
Article 13 (Art. 13) provides as follows.
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (Eur. Court H.R., Powell and Rayner v. United Kingdom
judgment of 21 February 1990, Series A no. 172, p. 14, para. 31). The
Commission finds that the applicant cannot be said, in the light of its
findings above, to have an "arguable" claim that his rights guaranteed
by the Convention have been violated.
It follows that this complaint must also be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. Insofar as the applicant's complaint could be considered to give
rise to an issue under Article 6 (Art. 6) of the Convention, which
provides inter alia that, in the determination of civil rights and
obligations everyone is entitled to a fair and public hearing by an
independent and impartial tribunal, the Commission recalls its recent
decision in Logan v. United Kingdom (No. 24875/94, Dec. 6.9.96). In
that case the Commission held that while Article 6 para. 1 (Art. 6-1)
guarantees to everyone who claims that an interference with his "civil
rights" is unlawful the right to submit that claim to a tribunal
satisfying the requirements of that provision (Eur. Court H.R., Le
Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981,
Series A no. 43, p. 20, para. 44), Article 6 (Art. 6) does not in
itself guarantee any particular content for "rights and obligations"
in the substantive law of Contracting States (cf. Eur. Court H.R.,
James and others v. United Kingdom judgment of 21 February 1986, Series
A no. 98, p. 46, para. 81, Lithgow and others v. United Kingdom
judgment of 8 July 1986, Series A no. 102, p. 70, para. 192) and the
claim or dispute to be submitted to a tribunal must be of a "genuine
and of a serious nature" (cf. Eur. Court H.R., Benthem v. Netherlands
judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).
The applicant does not dispute that his liability has now been
correctly calculated under the relevant provisions.
It follows that this part of the complaint must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy