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(Court of Appeal; Mummery, Smith and Leveson LJJ; 20 December 2006)
The mother's application for income support had indicated that she did not want the father to be pursued for child maintenance; she stated that, although there was no history of domestic violence, she was concerned that he would become violent if required to make child support payments. Before the Tribunal she described an actual incidence of violence to support her position. The Tribunal made adverse credibility findings, and concluded that the mother had not established there were reasonable grounds for believing that there would be a risk of the mother or the son suffering harm or undue distress if the Secretary of State were to take action to recover child support maintenance from the father. The Tribunal's findings were set aside by the Commissioner. The Secretary of State appealed.
The Tribunal had been entitled to consider that the mother's expressed fear of the father was irrational and that, given the inconsistencies in her account, she had been lying. The Commissioner had attempted to reanalyse evidence that he had not heard, from a perspective he preferred. It did not follow that the more irrational a person's fear the greater the risk of undue distress. The question of undue distress should not be approached on a purely subjective basis; if it were the word undue would have no real meaning. In order to judge whether a particular claimant had shown reasonable grounds for believing that there would be a risk of undue distress (a realistic possibility of undue distress) to her or a child, an objective judgment must be made as to whether the foreseeable distress was unjustified or unreasonable in the context of the personal, subjective, characteristics of the claimant or child. Irrationality or paranoia were factors to be taken into account as providing the context against which the extent of the distress was to be assessed, but were not determinative. Those advising claimants in this position must encourage complete and immediate candour, thereby maximising the ability to meet the test where it was appropriate to do so and minimising the risk of an adverse credibility finding.