Rowley v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Keene,Lord Justice Waller |
| Judgment Date | 19 June 2007 |
| Neutral Citation | [2007] EWCA Civ 598 |
| Docket Number | Case No: A2/2006/1332 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2007 |
[2007] EWCA Civ 598
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
H.H. JUDGE GRENFELL QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Keene and
Lord Justice Dyson
Case No: A2/2006/1332
Roger ter Haar QC & Adrian Berry (instructed by Messrs Forshaws) for the 1st, 2nd & 3rd Appellants/Claimants
Mr Ramby De Mello & Kamar Uddin (solicitor advocate) (instructed by Direct access under the Bar scheme) for the 4th Appellant/Claimant
Nigel Giffin QC & Daniel Kolinsky (instructed by Office of the Solicitor to the Department of Work and Pensions) for the Respondent/Defendant
Richard Drabble QC for Resolution (Intervener)
Hearing dates: 8 & 9 May 2007
Introduction
The Child Support Act 1991 (“the 1991 Act”) vested in the Secretary of State responsibilities for the assessment, review, collection and enforcement of maintenance payments in respect of children. These responsibilities are discharged on his behalf by the Child Support Agency (“ CSA”). The fourth claimant is the mother of the first three claimants. At all material times, the first three claimants were “qualifying children” within the meaning of section 3(1) of the 1991 Act. The fourth claimant made an application to the CSA pursuant to section 4 of the 1991 Act for child maintenance for the children from their non-resident father. Complaints were made by the claimants about (i) the way in which the child support maintenance was assessed (i.e. the amount of the assessed liability); (ii) the time taken to assess maintenance (including the conduct of appeals); and (iii) the collection and enforcement of the obligation to pay maintenance.
The complaints form the basis of claims for damages for negligence which are the subject of these proceedings. The Secretary of State applied to strike out the claims under CPR 3.4, alternatively for summary judgment under CPR 24.2. His Honour Judge Grenfell QC struck the claims out. He considered that, in the light of the analysis by the House of Lords in R(Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42, the claims were bound to fail. This was because a common law duty of care owed by the Secretary of State to the claimants would be inconsistent with the statutory scheme created by the 1991 Act. The claimants appeal with the permission of Brooke LJ. On behalf of the claimants, Mr ter Haar QC and Mr de Mello submit that this court should not decide the question of whether a duty of care is owed on the basis of the pleaded case alone. They submit that the question should be decided after a trial when the relevant facts have been found. I shall deal with this preliminary submission when I have summarised the relevant statutory provisions and referred to the pleaded facts.
The background to the 1991 Act
The background is described by Ward LJ in Kehoe [2004] EWCA Civ 225, [2004] QB 1378: see paras 17–20 of his judgment. Under the law as it stood before the enactment of the 1991 Act, a parent with responsibility for the care of a child had a right to recover financial support for the maintenance of the child from the other parent. That right was vindicated by obtaining maintenance orders from the court. This system was considered by the government to be unsatisfactory for the reasons stated in the White Paper, “Children Come First” Volume 1 (Cm 1264) which was presented to Parliament in October 1990. In short, it was said that the existing system was “unnecessarily fragmented, uncertain in its results, slow and ineffective….In a great many instances, the maintenance awarded is not paid or the payments fall into arrears and take weeks to re-establish” (para 2 of the summary). It was, therefore, proposed to create a CSA which would have the responsibilities for the assessment, review, collection and enforcement of maintenance payments, with powers to collect information on incomes and obligations, make a legally binding assessment of what was payable, determine methods of payment, monitor and, where necessary, collect maintenance and enforce payment where payments failed: see para 6 of the summary. The proposal was for what was aptly described by Hale LJ in Huxley v Child Support Officer [2000] 1 FLR 898, 908 as a “nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child”.
Sections 1 and 2 emphasise that the statute has been enacted for the benefit of children. Thus section 1 provides:
“(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, an absent 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 assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments.”
Section 2 provides that where the Secretary of State is considering the exercise of any discretionary power conferred by the Act, he shall have regard to the welfare of any child likely to be affected by his decision.
Section 4 provides:
“(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child, or any of those children.
(2) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care or absent parent with respect to whom the assessment was made applies to him under this subsection, arrange for—
(a) the collection of the child support maintenance payable in accordance with the assessment;
(b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment.
(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 he considers it necessary to do so, the Secretary of State may act accordingly.
(10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if—
(a) there is in force a written maintenance agreement made before 5 th April 1993, or a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent; or
(b) benefit is being paid to, or in respect of, a parent with care of that child or those children.”
Section 6 obliges a person with care who is in receipt of benefit (e.g. income support) to authorise the Secretary of State to take action under the Act unless the consequence would be a risk of that parent, or any child living with her, suffering harm or undue distress as a result.
Section 8 makes a number of detailed provisions prescribing the role of the courts with respect to maintenance for qualifying children. Section 8(3) provides that, in any case where the Secretary of State would have jurisdiction to make an assessment with respect to a qualifying child and an absent parent of his, “no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child or absent parent concerned”. But section 8(3) does not prevent a court from revoking a maintenance order (subsection (4)). Nor does it prevent a court exercising any power it has in the circumstances described in subsections (6),(7),( 8) or (10). Subsection (6) preserves the power of the court to order the making of periodical payments by the absent parent in addition to the child support maintenance payable by him in accordance with the assessment made by the Secretary of State. Subsection (7) preserves the power of the court to make a maintenance order in relation to a child for the purpose of requiring the person making or securing periodical payments fixed by the order to meet expenses incurred in connection with the provision of instruction at an educational establishment or training. Subsection (8) preserves the power of the court to make a maintenance order in relation to a child if a disability living allowance is paid to or in respect of the child, or he is disabled and the periodical payments ordered to be paid are fixed to meet some or all of the expenses attributable to the child's disability. Subsection (10) preserves the power of the court to make a maintenance order in relation to a child if the order is made against a person with care of the child.
Section 9(2) provides that nothing in the Act shall be taken to prevent any person from entering into a maintenance agreement.
Section 11 provides for the Secretary of State to make maintenance assessments in accordance with the formulae set out in Part 1 of Schedule 1 to the Act. Section 12(1) provides that where the Secretary of State is required to make a maintenance assessment and it appears to him that he does not have sufficient information to enable him to do so, he may make an interim...
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