Roach v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
JudgeLord Justice Leveson,Lady Justice Smith,Lord Justice Mummery
Judgment Date20 December 2006
Neutral Citation[2006] EWCA Civ 1746
Date20 December 2006
CourtCourt of Appeal (Civil Division)
Docket NumberCase No:C3/2006/0551

[2006] EWCA Civ 1746






Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Mummery

Lady Justice Smith and

Lord Justice Leveson

Case No:C3/2006/0551


The Secretary of State for Work and Pensions
Caroline Roach

Martin Chamberlain

(instructed by the Solicitor to the Department of Work and Pensions) for the AppellantJason Coppel

(instructed by Pierce Glynn, London) for the Respondent

Lord Justice Leveson

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.


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


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) .


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."


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.


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


Shortly before her 32 nd 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 3 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 th 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 2-12; years bad feelings, she fears and is scared of possible reprisals. Others that have had bad experiences with the CSA make her fearful… She is worried about the mental and emotional well-being of [her son]… [F]illing out [the relevant form] would leave her trapped if he came round as she has a mortgage on the flat and it would be difficult for her to move."


On 19 March, the papers were considered by another official, Mrs Whitter, who decided that she could not, without more, accept Ms Roach's reasons for requesting the Secretary of State not to take action to pursue child maintenance. She recorded her decision (involving a letter being sent) which was that the relevant forms CS1/CS83 be issued to Ms Roach. There is an issue about whether this formal notice under section 46(2) of the 1991 Act was served and Ms Roach denied ever receiving it.


What was not disputed was that, after this review, there was a conversation between an official and Ms Roach who, on 30 March 2004, elaborated in writing upon her reasons for opting out of an application being made for child maintenance. She stated that she had separated from her former partner because his behaviour became more and more erratic and unpredictable and following "a particular torrid incident" she decided it would be best he should not come back. She said that she "…felt that if we continued in this vain [sic] I would develop post-natal depression or him possibly becoming violent". She went on that some months later, she had spoken to her former partner's cousin who told her that he (her former partner) was showing signs of "having a nervous breakdown". She was not aware of his current mental state but said:

"…if he is still clinically depressed, a letter from the CSA may trigger suicidal thoughts or behaviour patterns or he may behave violently towards me."


The letter went on to explain that Ms Roach was worried that if her former partner did become a nuisance, she would be forced to sell her home, reimburse the discount provided under the right to buy scheme, be unable to purchase another home and then be deemed intentionally homeless. She concluded:

"It must be reminded that a great many women have been placed in danger as a result of CSA being pursued with or without their consent and in the same breath men who have committed suicide as a result of being made to pay. I can only state that I do not wish to be a party of this and can only hope that you consider this letter with the foresight that if the CSA is pursued for child maintenance will undoubtedly lead to a tragic ending on either account." [sic]


Following this letter, the Secretary of State made a Reduced Benefit Direction (thus determining that there were no reasonable grounds for believing that there would be a risk of Ms Roach or her son suffering harm or undue distress if he were to take action to recover child support maintenance from the father) and Ms Roach appealed. The Commissioner later described the letter of appeal as "intemperate in tone". She repeated her points but added:

"As I outlined in my last letter, once my son was born arguments became more and more frequent and the last incident was very frightening and traumatic for both my son and me. In a heated argument at my home, my child's father flung me against a wall and pushed his hand across my chest and neck so that I was...

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