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(Court of Appeal; Sedley, Arden and Longmore LJJ; 27 February 2009)
The father was the non-resident parent of two children. The maintenance calculation determined that the father's income was £104.20. The father then received a distribution (less tax) of £27,400, from his own company. A few days after the distribution, Child Support (Miscellaneous Amendments) Regulations 2005 (SI 2005/785) came into force, inserting a new reg 19(1A) into Child Support (Variations) Regulations 2000 (SI 2001/156) so that dividends from a company controlled by the non-resident parent could be taken into account in a maintenance calculation. Regulation 19(1A) was written in the continuous present tense and spoke of the non-resident parent 'having' the ability to control the amount of income received from the company, and of a requirement that the non-resident parent 'is receiving' income from the company. When the mother, the parent with care, became aware of the distribution, some 9 months after it was paid to the father, she applied for a variation of the maintenance calculation. The Secretary of State agreed to the variation, increasing the child support payable by the father for the period from the beginning of the week in which the variation application had been made, to the one year anniversary of the payment of the dividend; the child support payments were then for a prorated part of the dividend, treating the dividend as paid by equal weekly instalments over the year. The Child Support Commissioner allowed the father's appeal on the basis that the wording of reg 19 meant that the distribution could not be treated as having been made over a period of time. The Secretary of State appealed.
The Commissioner's interpretation of reg 19(1A) was not correct. The function of reg 19(1A) was merely to identify a 'case' or state of affairs, in which the Secretary of State could determine that there should be a variation; the present tense was used because what was being described was a state of affairs, but could obviously be applied to a past set of facts. On any application for a variation the question to be asked was whether the prescribed state of affairs existed at the relevant past date. It was a requirement that the non-resident parent 'is receiving income', but it could not have been intended that the legislation applied only if the application for a variation were made on the same day on which the income was received. Receipt was a continuing concept, not a time-related concept in the sense that it could be said to cease at any particular time: once the non-resident parent received income, he continued to receive it and therefore 'is receiving' it. The application of reg 19(1A) to dividend income received prior to the commencement date of the regulation did not offend the principle against the retrospective application of legislation.
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