R (Denson) v Child Support Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,MR JUSTICE MUNBY |
| Judgment Date | 14 February 2002 |
| Neutral Citation | [2002] EWHC 154 (Admin) |
| Docket Number | Case No: CO/1112/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2002 |
Child Support Agency – Maintenance and assessment – Liability order – Child Support Agency increasing amounts of child support maintenance payable by claimant – Claimant failing to make payments – Child Support Agency applying for liability order – Whether decision to apply for liability order contrary to claimant’s Convention rights to family life and peaceful enjoyment of possessions – Whether Child Support Agency exercising discretion to apply for liability order lawfully – Child Support Act 1991, s 33(2) – Human Rights Act 1998, Sch 1, Pt 1, art 8, First Protocol, art 1.
The claimant and his former wife married in 1983 and had two sons born in 1986 and 1988. They separated in 1995. Thereafter, a long running dispute arose between the claimant and the Child Support Agency (CSA) out of the CSA’s attempts to make the claimant pay maintenance in accordance with the Child Support Act 1991. In June 1998, there was a hearing before the Bournemouth Child Support Appeal Tribunal (CSAT) to consider the amount of maintenance for which the claimant was liable. In a written decision, the CSAT determined that with effect from 2 December 1996 the weekly amount payable by the claimant should be increased from £4.80 to £113.90. The CSAT also commented that the claimant had had the opportunity to account for his financial circumstances but had wilfully declined to do so in order to make the situation as difficult as possible for the CSA and his former wife in the hope that he could avoid liability to support his children. The claimant appealed. That appeal was dismissed by the Commissioner and the claimant unsuccessfully applied for permission to appeal. Despite his comprehensive defeat the claimant never accepted the CSAT’s decision. The consequence was that very substantial arrears accumulated. The CSA therefore decided to apply for a liability order under s 33(2) of the 1991 Act. The claimant applied for judicial review. He submitted, inter alia, that the decision to apply for a liability order (i) was incompatible with the European Convention on Human Rights and, in particular, breached his right to family life under art 8 and his right to peaceful enjoyment of his possessions under art 1 of the First Protocol, and (ii) was unlawful and involved an improper exercise of discretion under s 33(1)(b) of the 1991 Act in that the CSA had failed to have regard to the reasons for the ineffectiveness of the deduction from earnings order which had earlier been imposed on him and that a ‘payment’ in the subparagraph was not payable unless it was properly due.
Held – (1) Both the statutory scheme and the CSA’s administration of it were Convention compliant since, whether one had regard to art 8 or to art 1 of the First Protocol, it achieved a reasonable relationship of proportionality between the legitimate aims of the legislation and the means employed. A fair and reasonable balance had been struck between, on the one hand, the absent parent’s responsibilities for his or her children and, on the other hand, the need for a system that produced fair and consistent results, preserved the parents’ incentive to work, reduced the dependency of parents with care on income support, and provided consequent savings to taxpayers. In any event, the process of obtaining a liability order did not engage art 8, whether the focus of consideration was the decision to apply for a liability order, the communication of that decision to the absent parent, the making of the appropriate application to the magistrates’ court, the pursuit of proceedings in the magistrates’ court until the order was made, or the making of the order itself. None of those steps could in any sensible way be said to impinge upon the claimant’s private life as that expression was used in art 8. Specifically, there was no interference in the claimant’s family life. Nor was there any breach of art 1 of the First Protocol. A liability order was merely a gateway, it did not of itself have any specific legal effect. It was merely a pre-requisite to other modes of enforcement where a deduction from earnings order either had proved or was likely to prove ineffective; X v France (1982) 5 EHRR 298, Logan v UK (1996) 22 EHRR CD 178, Burrows v UK App No 27558/95 and Huxley v Child Support Officer[2000] 1 FCR 448 considered.
(2) The statute did not require the CSA to consider why the deduction from earnings order had proved ineffective. All that s 33(1)(b)(ii) required was that it should appear to the Secretary of State that the deduction from earnings order had proved ineffective as a means of securing that payments were made. The statute’s words directed attention solely to the what and not to the why. That there had in fact been non-payment could not possibly be gainsaid. There was, moreover, nothing to suggest that consideration was not in fact given to the reasons why the order had proved ineffective. Accordingly the CSA was fully entitled to reject those arguments as groundless.
Cases referred to in judgmentAllgemeine Gold-und Silberscheideanstalt v UK (1986) 9 EHRR 1, ECt HR.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, [1947] 2 All ER 680, CA.
Botta v Italy (1998) 4 BHRC 81, ECt HR.
Buckley v UK (1996) 23 EHRR 101, [1996] ECHR 20348/92, ECt HR.
Burrows v UK App No 27558/95 (27 November 1996, unreported), ECt HR.
Dept of Social Security v Butler [1995] 4 All ER 193, [1995] 1 WLR 1528, CA.
Evers v Germany App No 32247/96 (12 January 1999, unreported), ECt HR.
Hentrich v France (1994) 18 EHRR 440, [1994] ECHR 13616/88, ECt HR.
Huxley v Child Support Officer[2000] 1 FCR 448, [2000] 1 FLR 898, CA.
Logan v UK (1996) 22 EHRR CD 178, E Com HR.
McMichael v UK (1995) 20 EHRR 205, [1995] ECHR 16424/90, ECt HR.
National & Provincial Building Society v UK (1997) 25 EHRR 127, [1997] ECHR 21319/93, ECt HR.
Niemietz v Germany (1992) 16 EHRR 97, [1992] ECHR 13710/88, ECt HR.
R (on the application of Nahar) v Social Security Commrs [2001] EWHC Admin 1049, [2001] All ER (D) 370 (Dec).
Secretary of State for Social Security v Shotton[1996] 3 FCR 346, [1996] 2 FLR 241.
Sporrong v Sweden (1982) 5 EHRR 35, [1982] ECHR 7151/75, ECt HR.
Stacey v UK App No 40432/98 (19 January 1999, unreported), E Com HR.
Stewart-Brady v UK (1997) 24 EHRR CD 38, E Com HR.
W v UK (1987) 10 EHRR 29, [1987] ECHR 9749/82, ECt HR.
X v France (1982) 5 EHRR 298, E Com HR.
Application for judicial reviewThe claimant applied for judicial review with permission granted by Elias J on 19 June 2001, of two decisions of the Child Support Agency: (i) a decision dated either 20 November 2000 or 16 January 2001 to apply for a liability order under s 33(2) of the Child Support Act 1991; and (ii) a decision dated 10 May 2001 refusing to review a decision of the Child Support Appeal Tribunal of 12 June 1998. The facts are set out in the judgment.
Nicholas Grief (instructed by Clive Sutton) for the claimant.
Clive Sheldon (instructed by the Solicitor for the Department of Work and Pensions) for the Child Support Agency.
MUNBY J.[1] These proceedings for judicial review, brought in accordance with permission granted on 19 June 2001 by Elias J, are the latest battle in a long-running dispute between the claimant, Mr Denson, and the Child Support Agency (CSA). The dispute arises out of the CSA’s attempts to make Mr Denson pay maintenance in accordance with the Child Support Act 1991 to his former wife (Mrs S) in respect of their sons. The parties married in 1983, their first son was born in 1986 and the second in 1988, they separated in 1995 and the first application for child support maintenance followed in August 1995.
[2] I do not propose to go through the history of the litigation. The details can be found in a chronology prepared by Mr Denson’s counsel, Mr Nicholas Grief, and, in narrative form, in the skeleton argument prepared by the CSA’s counsel, Mr Clive Sheldon.
[3] For present purposes I can start on 12 June 1998 when there was a hearing before the Bournemouth Child Support Appeal Tribunal (CSAT) to consider the amount of maintenance for which Mr Denson was liable. In a written decision dated 15 June 1998 and issued to the parties on 22 June 1998 the CSAT determined that with effect from 2 December 1996 the weekly amount payable by Mr Denson should be increased from £4·80 to £113·90.
[4] That decision was arrived at despite the fact that Mr Denson had not attended the hearing. In its written decision the CSAT explained why:
‘On 25/10/97 a Chair gave comprehensive Directions addressed to the Secretary of State and the parties. Mr Denson failed to comply with these Directions within the time specified or by the eventual hearing date. On 25th March 1998 the matter came before a CSAT for decision. The Directions Order stated that adverse inferences might be drawn from a failure to comply. Mrs S produced a great deal of documentation at that time, Mr Denson produced nothing saying he had not been well. To allow the parties an opportunity for consideration of the new papers produced and to give Mr Denson a longer period to comply with the Directions the hearing was adjourned to the 12th June 1998, same tribunal. A Direction was given to issue a witness summons to Ms T in her capacity as Company Secretary of Deka Gifts Ltd to produce the documents itemised. She applied to have the summons once issued Set Aside, this was refused as was her subsequent application for leave to appeal against that refusal. She did not file the documents referred to in connection with her application or subsequently. She did not attend the hearing nor did Mr Denson.
On the morning of the hearing a telephone call was received on Mr Denson’s behalf requesting a Postponement as he was unwell, a migraine attack, and the doctor awaited. The Chair refused the postponement.
In the presence of the Presenting Officer and Mrs S, the tribunal raised the issue of Mr Denson’s absence and considered whether or not the hearing should be...
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