Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746 CIS 2482 2005

JurisdictionUK Non-devolved
Judgment Date20 December 2006
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberCIS 2482 2005
Subject MatterChild support
AppellantSecretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746
Commissioners Decision

R(CS) 4/07

(Secretary of State for Work and Pensions v Roach  [2006] EWCA Civ 1746)

CA (Mummery, Smith, Leveson LJJ) 20 December 2006

*CIS/2482/2005

Reduced benefit direction – reasonable grounds for believing risk of harm or undue distress – whether objective or subjective test

The claimant was the parent with care. She made a claim for income support indicating that she did not wish the Secretary of State to pursue her son’s father for child maintenance. She stated that her former partner’s behaviour had become erratic and unpredictable and that she feared he might become violent. The Secretary of State decided that her reasons did not justify a decision not to reduce her benefit under section 46 of the Child Support Act 1991, as there were not reasonable grounds for believing that if he were to take action to recover child support maintenance there would be a risk of harm or undue distress to her and her son. She appealed to a child support appeal tribunal. In her appeal to the tribunal she added an account of a violent incident. She attended the tribunal hearing and gave evidence. The tribunal decided that her evidence was unreliable and dismissed her appeal. She appealed to the Commissioner, who allowed her appeal, accepting that there were credible explanations for the differences in the claimant’s evidence at different stages of the proceedings. The Commissioner held that, while the test of harm is objective, the test of undue distress is subjective, and suggested that the more irrational the fear, the greater the risk of undue distress. The Secretary of State appealed to the Court of Appeal

Held, allowing the appeal, that

1. the tribunal’s conclusion that some of what the claimant said was dishonest was permissible on the facts and inevitably then affected the approach to the rest of her evidence (paragraphs 32 to 35)

2. having rejecting the claimant’s evidence of a risk of violence, the tribunal rightly went on to consider whether there was evidence of a realistic prospect of harm or undue distress to herself or her son occurring in some other way and, since the only evidence was her unsupported assertion, it was entitled to reach the conclusions of fact that there was not (paragraphs 36 to 37);

3.  in order to judge whether a particular claimant has shown reasonable grounds for believing that there would be a risk of undue distress to her or a child, an objective judgment must be made as to whether the foreseeable distress is unjustified or unreasonable in the context of the personal, subjective characteristics of the claimant or child, and while irrationality or paranoia are factors to be taken into account as providing the context against which the extent of the distress is to be assessed, they are not determinative (paragraph 45).

*Note:  It has been decided to report this case in the CS series.

DECISION OF THE COURT OF APPEAL

Mr Martin Chamberlain (instructed by the Solicitor, Department for Work and Pensions) appeared for the appellant.

Mr Jason Coppel (instructed by Pierce Glynn, London) appeared for the respondent.

Judgment

LORD JUSTICE LEVESON:

1. This appeal brings into focus the competing interests that exist between two entirely legitimate public concerns in relation to child support. The first is to bring home to separated fathers their continuing financial responsibility for the upkeep and support of their children otherwise dependent only on public funds. The second is to ensure that the system of child support is not operated in such a way as creates or perpetuates the vice of domestic violence or abuse to the detriment of mother or children. That tension is addressed and resolved in section 46 of the Child Support Act 1991 (the 1991 Act), vesting in the Secretary of State (subject to appeal) a discretion whether to reduce benefit if the parent claiming benefit asks that action be not taken to recover child maintenance from the other parent. At the heart of the discretion is a decision as to the risk of harm or undue distress to the custodial parent or any child if maintenance is pursued.

2. On 17 February 2004, Ms Carolyn Roach made a claim for income support indicating that she did not wish the Secretary of State to pursue her son’s father for child maintenance. Following interview, the Secretary of State decided that her reasons did not justify a decision not to reduce her benefit and, after further representations, maintained that view. Ms Roach appealed to a child support appeal tribunal (chairman: Richard Poynter) (the tribunal) which held a full hearing and, in a decision the full reasons for which were reserved, made findings of fact and dismissed her appeal. Mr Commissioner Levenson (the Commissioner) granted Ms Roach leave to appeal and, on 11 November 2005, reversed the decision; he refused permission further to appeal. With the leave of Brooke LJ, the Secretary of State now appeals to this Court. In addition to supporting the decision of the Commissioner for the reasons he gave, Ms Roach has served a respondent’s notice seeking to uphold it on other grounds.

The statutory scheme

3. Under sections 6(1) and (3) of the 1991 Act, a claimant for income support with care of a child may be treated by the Secretary of State as having applied for a maintenance calculation in respect of that child, with the consequence that he (that is, the Secretary of State) may take action to recover child support maintenance from a non-resident parent. On the other hand, he may not produce such a calculation or pursue the non-resident parent if the claimant, with full knowledge of the possible consequences, asks him not to (sections 6(4) and (5) of the 1991 Act).

4. The “possible consequences” are in section 46 of the 1991 Act which sets out the procedural requirements which must be satisfied by the Secretary of State before he can invoke them and decide whether or not to reduce the benefits payable to a claimant (a reduced benefits decision). The relevant provisions are as follows:

“(2) The Secretary of State may serve written notice on the parent requiring her, before the end of a specified period –

(a) ... to give him her reasons for making the request;

 ...

(3) When the specified period has expired, the Secretary of State shall consider whether, having regard to any reasons given by the [custodial] parent, there are reasonable grounds for believing that … [if he were to take action to recover child support maintenance from the non-resident parent] … there would be a risk of [the custodial parent] or of any children living with her, suffering harm or undue distress as a result of his taking such action….

(4) If the Secretary of State considers that there are such reasonable grounds, he shall –

(a) take no further action under this section in relation to the request ...; and

(b) notify the parent, in writing, accordingly.

(5) If the Secretary of State considers that there are no such reasonable grounds, he may, except in prescribed circumstances, make a reduced benefit decision with respect to the parent.”

5. The decisions under section 46(3) as to reasonable grounds and under section 46(5) are both informed by the Secretary of State’s general duty under section 2 of the 1991 Act to have regard to the welfare of any child likely to be affected by his decision.

6. The decision of the Secretary of State is subject to appeal, in the first instance to a tribunal (see section 20 of the 1991 Act) which conducts a full hearing on the merits. Thereafter, with leave and solely on questions of law, further appeals lie initially to a Child Support Commissioner (whose powers include making further findings of fact if he decides that the decision of the tribunal is wrong in law) and, thereafter, to the Court of Appeal: see sections 24(1)–(3) and 25(1), (4) of the 1991 Act.

The facts

7. Shortly before her 32nd birthday in March 2004, Ms Roach gave up her part-time work and applied for income support for herself and her son, who was then under three years old, having been born on 12 July 2001. In answer to the question “Do you wish to opt out of your application for child maintenance?” she ticked the box marked “Yes” and wrote: “I don’t wish to pursue this. Frightened of retribution.” On 17 March, she was visited by an official who subsequently made a note of the conversation to the effect that the relationship with her son’s father had changed after his birth and was “tumultuous”. The note records “He would lose his temper but violence was not an issue”. The father had visited sporadically after the birth but made no payment for his son’s maintenance and there had been no contact since January 2002. It was then recorded:

“[Ms Roach] fears that if the CSA approached [the father] he could turn violent, after no contact for 2½ years bad feelings, she fears and is scared of possible reprisals. Others that have had bad experiences with the CSA...

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