Preston Paris Ingold v Secretary of State for Work and Pensions

Hearing dates: 3 and 4 October 2023

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on Friday 15 th December 2023.

This is a claim for judicial review brought by three single parent families and the adult child of a single mother (together, the “Claimants”) who challenge the alleged failures by the Child Maintenance Service (“CMS”), acting on behalf of the Secretary of State for Work and Pensions (“the Defendant”) to collect and enforce child maintenance payments due to them under the Child Support Act 1991 (“the 1991 Act” or “the Act”). Permission to apply for judicial review was refused by Mrs. Justice Heather Williams DBE on the papers, but was granted (save in certain limited respects) at a renewed application heard by Mr. Justice Julian Knowles on 28 February 2023, with the Court reserving to the substantive hearing before me the issue of whether there has been undue delay insofar as it relates to the substantive application for judicial review. The Judge's reasons for granting permission are unknown, as the parties did not obtain a transcript of the hearing at which permission was granted.

The Claimants comprise Preston Ingold, the child of a single mother, who became an adult during these proceedings (C1) and who is not the subject of domestic abuse; three single mothers, AA, BB and CC, who are victims of domestic abuse from their former partners and fathers of their children; and their respective children (C2-C8). Each Claimant family is owed several thousands of pounds in child maintenance but the Claimants allege that the CMS has repeatedly and persistently failed to take proper and effective steps to recover that money from the fathers who are guilty, they say, of perpetrating economic abuse.

The Legislative Framework

The common law position prior to the passing of the 1991 Act is described by Ward LJ in R (Kehoe) v Secretary of State for Work and Pensions[2004] EWCA Civ 225 at [7]–[16]. He explains that a father was under a duty to maintain his legitimate children (by providing them with food, lodging, clothing and the like) but there was no common law right to child maintenance payments, in the sense of a right to periodical payments of a certain sum of money. Before the passing of the 1991 Act various maintenance statues were enacted; parents who disputed child maintenance had to apply for maintenance orders and enforce them through the courts.

By a 1990 White Paper, the Government recognised that the court-operated system of maintenance as then existed was unnecessarily fragmented, slow and ineffective. It proposed to create a Child Support Agency (“ CSA”) 1 which would have responsibilities for assessment, review, collection and enforcement of maintenance payments, with powers to collect information on incomes, make a legally binding assessment as to what was payable, determine methods of payment, monitor and where necessary collect and enforce maintenance payments. Once the CSA was established, all claims for maintenance and reviews of maintenance would be handled by the CSA and not by the courts.

The 1991 Act gave effect to this scheme and the courts could no longer make, vary or revive any maintenance order in relation to the child and Non Resident Parent (“NRP”) concerned 2.

The 1991 Act provided for a duty upon the parents to maintain the child and a duty upon the NRP to make periodical payments in line with the CSA's maintenance assessment:

“ 1 The duty to maintain.

(1) For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.

(2) For the purposes of this Act, a non-resident parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.

(3) Where a maintenance calculation made under this Act requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.”

The welfare of the parents' children is relevant to every exercise of the discretion:

2 Welfare of children: the general principle

Where, in any case which falls to be dealt with under this Act, the Secretary of State is considering the exercise of any discretionary power conferred by

this Act, the Secretary of State shall have regard to the welfare of any child likely to be affected by the decision.”

Under the 1991 Act, upon the application of the Parent With Care (“PWC”) or indeed the NRP, a maintenance calculation may be made by the Defendant, as well as the collection and enforcement of the maintenance (known as “Collect & Pay” rather than “Direct Pay” – see below). However, the CMS may only collect the maintenance payments if the NRP agrees or where it is satisfied that without the arrangements child support maintenance is unlikely to be paid in accordance with the calculation:

4 Child support maintenance

(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance calculation to be made under this Act with respect to that child, or any of those children.

(2) Where a maintenance calculation has been made in response to an application under this section the Secretary of State may, if the person with care applies to the Secretary of State under this subsection, arrange for—

(a) the collection of the child support maintenance payable in accordance with the calculation;

(b) the enforcement of the obligation to pay child support maintenance in accordance with the calculation.

(2A) The Secretary of State may only make arrangements under subsection (2)(a) if—

(a) the non-resident parent agrees to the arrangements, or

(b) the Secretary of State is satisfied that without the arrangements child support maintenance is unlikely to be paid in accordance with the calculation.

(3) Where an application under subsection (2) for the enforcement of the obligation mentioned in subsection (2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever the Secretary of State considers it necessary to do so, the Secretary of State may act accordingly.

(4) A person who applies to the Secretary of State under this section shall, so far as that person reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State being provided with the information which is required to enable—

(a) the non-resident parent to be identified or traced (where that is necessary);

(b) the amount of child support maintenance payable by the non-resident parent to be assessed; and

(c) that amount to be recovered from the non-resident parent.

(5) Any person who has applied to the Secretary of State under this section may at any time request the Secretary of State to cease acting under this section.

(6) It shall be the duty of the Secretary of State to comply with any request made under subsection (5) (but subject to any regulations made under subsection (8)).

(7) The obligation to provide information which is imposed by subsection (4)—

(a) shall not apply in such circumstances as may be prescribed; and

(b) may, in such circumstances as may be prescribed, be waived by the Secretary of State.

(8) The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.

…”

The decision maker (referred to from time to time as the “DM”) has a duty to deal with a maintenance calculation application in accordance with the 1991 Act:

11 Maintenance calculations

(1) An application for a maintenance calculation made to the Secretary of State shall be dealt with by the Secretary of State in accordance with the provision made by or under this Act.

(2) The Secretary of State shall (unless the Secretary of State decides not to make a maintenance calculation in response to the application, or makes a decision under section 12) determine the application by making a decision under this section about whether any child support maintenance is payable and, if so, how much.

…

(6) The amount of child support maintenance to be fixed by a maintenance calculation shall be determined in accordance with Part I of Schedule 1 unless an application for a variation has been made and agreed.

(7) If the Secretary of State has agreed to a variation, the amount of child support maintenance to be fixed shall be determined on the basis determined under section 28F(4).

(8) Part II of Schedule 1 makes further provision with respect to maintenance calculations.”

The Defendant has power to revise his decision under section 11 in...