Secretary Of State For Work And Pensions, Child Support Agency V. Stven O'donnell
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Colin McKay |
| Court | Sheriff Court |
| Date | 11 November 2010 |
| Docket Number | B185/08 |
| Published date | 02 February 2011 |
B185/08
| JUDGEMENT OF TEMPORARY SHERIFF PRINCIPAL C G McKAY | ||
| in the cause |
| |
| SECRETARY OF STATE FOR WORK AND PENSIONS, CHILD SUPPORT AGENCY (now the Child Maintenance & Enforcement Agency) |
| |
| Pursuers and Appellants |
| |
| against |
| |
| MR STEVEN O'DONNELL |
| |
| Defender and Respondent | ||
Act: Mr McKenzie of Messrs Harper Macleod LLP, Solicitos, Glasgow
Alt: Mr Parratt, Advocate instructed by Messrs Brazenall & Orr, Solicitors, Dumfries
| Judgement dated 11 November, 2010 |
SECRETARY OF STATE FOR WORK AND PENSIONS, CHILD SUPPORT AGENCY v MR STEVEN O'DONNELL
B185/08
DUMFRIES: 11 November, 2010
The Sheriff Principal, having resumed consideration of the appeal, allows same and recalls the interlocutor of the Sheriff complained of dated 12th and 26th November 2009; finds the Appellants entitled to the expenses of the appeal; allows an account thereof to be given in and remit the same when lodged to the Auditor of Court to tax and to report; otherwise remits to the Sheriff to proceed as accords; directs the Sheriff Clerk to assign the cause to a different sheriff for all further procedure.
Sheriff Principal
NOTE:
1. This is an appeal in a summary application by the Secretary of State for Work and Pensions (now, since November 2008, the Child Maintenance and Enforcement Agency). In the application the Appellants sought warrant committing the Defender to prison or, alternatively, an order of disqualification from the holding of a driving licence in terms of subsections (a) and (b) respectively of section 39A(2) of the Child Support Act 1991 as amended ("the 1991 Act"). The summary application was lodged on 5 June 2008 and after sundry procedure - including continuations for the purpose of monitoring payment arrangements between parties - on 9 April 2009 proof was allowed and assigned for 5 October 2009. After hearing proof the Sheriff made avizandum and by his judgement of 12 November 2009 repelled the first plea in law for the Pursuers that the Defender be imprisoned or disqualified and sustained the Defender's plea in law for dismissal of the action. At a hearing on expenses on 26 November 2009 the Sheriff found no expenses due to or by either party. Against those interlocutors the Pursuers appealed.
2. The basis of the application was that the Defender, being a "liable person" in terms of the 1991 Act had failed to make payments due under a liability order made against him on 7 December, 2007. Diligence had been attempted without success. The Pursuers averred that the Defender, having being called upon to make the payments due, had wilfully refused or culpably neglected to do so and, accordingly he should either be committed to prison or disqualified from holding a driving licence all in terms of section 39A.
3. In his Judgement of 12 November 2009 the Sheriff, after hearing evidence and submissions, made a number of findings in fact but, in particular, made the following findings,
"Finds in Fact and Law:-
1. In the period from 14 May 2002 (the beginning of the period in respect of which the liability order was made) to 5 June 2008 (the date the Secretary of State presented his summary application under section 39A (1) of the Act), the Defender did not wilfully refuse to pay the sums due under the liability order.
2. In the same period, he did culpably neglect to pay the sum due under the liability order.
3. In the period from 30 June 2008 (the date the Defender became eligible to receive Job Seekers Allowance) to 5 October 2009 (the hearing of the summary application under section 39A (1) of the Act) the Defender neither wilfully refused nor culpably neglected to pay the sums due under the liability order.
Finds in Law:-
1. The Defender is liable only to imprisonment or disqualification from driving in a summary application under section 39A (1) of the Act if, on the date the summary application first calls before the sheriff or at a hearing shortly thereafter, the Defender was wilfully refusing, or culpably neglecting to pay the sums due by him under the liability order.
2. The Defender was neither wilfully refusing nor culpably neglecting to pay those sums when the summary application under section 39A (1) first called before the sheriff on 3 July 2008.
3. The Defender is therefore not liable either to be imprisoned or disqualified from holding or obtaining a driving licence by order under section 39A(2) of the Act in the present application under section 39A (1) of the Act.
Further Finds in Law:-
1. It was not competent for the court to have continued the summary application on 31 July 2008 to "monitor the payments agreed".
2. It was not competent for the court to have continued the summary application on 11 September 2008 "for payments to be made".
3. It was not competent for the court to have continued the summary application on 12 February 2009 "to monitor payment agreement"."
4. In the course of appeal I was referred to various statutes, textbooks and authorities in accordance with an inventory lodged by the Appellants. I have attached a copy to this judgement. The Appellants, most helpfully, lodged an inventory with copies of all authorities and legislation to which they might refer and, in particular, various excerpts from the Child Support Act 1991 as amended and reflecting the amendments as at the relevant dates from which they were in force.
5. The case is concerned with sections 33, 38, 39A and 40, 40A and 40B of the 1991 Act which deal with Liability Orders, their enforcement in Scotland and the commitment to prison or disqualification from driving which may arise from a failure to make payments due under such orders. Section 33 defines liability orders:
"33.- Liability orders.(1) This section applies where-
(a) a person who is liable to make payments of child support maintenance ("the liable person") fails to make one or more of those payments; and
(b) it appears to the Commission that-
(i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or
(ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the maintenance calculation in question.
(2) The Commission may apply to a magistrates' court or, in Scotland, to the sheriff for an order ( "a liability order") against the liable person.
(3) Where the Commission applies for a liability order, the magistrates' court or (as the case may be) sheriff shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.
(4) On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the maintenance calculation under which the payments of child support maintenance fell to be made.
The other sections are set out where referred to in the course of the Appellants' submission.
Grounds of appeal
6. The Note of Appeal is as follows:
(1.) The Sheriff erred in law in finding that in the period from 30 June 2008 until 5 October 2009 that the defender neither wilfully refused nor culpably neglected to pay the sums due under the liability order.
(2.) The Sheriff erred in law in finding that the defender was only liable to imprisonment or disqualification from driving in a Summary Application made under Section 39A(1) of the Child Support Act 1991 ("the Act") if, on the date the Summary Application first called before the sheriff or at a hearing shortly thereafter, the defender was wilfully refusing or culpably neglecting to pay the sums due by him under the liability order.
(3.) (A). The Sheriff erred in law in not finding that when considering whether the defender should be imprisoned or disqualified from driving in a summary application made under Section 39A(1) of the Act that the relevant period to be considered for the purposes of determining whether there has been wilful refusal or culpable neglect on the part of the defender for the purposes of sections 39A(3)(c), 40(3) and 40A(1) of the Act to pay child support maintenance is (i) the period beginning with the date on which the defender first became liable to pay the child support maintenance in respect of which recovery was sought by virtue of section 38 of the Act down to the date of the proof; or alternatively (ii) the period beginning with the date from which the defender first became liable to pay the child support maintenance in respect of which recovery was sought by virtue of section 38 of the Act down to (a) the date of presentation of the summary application to the court or (b) the date of first calling of the summary application before the sheriff or at a hearing shortly thereafter; or
(B). the Sheriff erred in law in not finding that when considering whether the defender was liable to be imprisoned or disqualified from driving that whether the defender has wilfully refused or culpably neglected to pay child support maintenance for the purposes of sections 39A(3)(c), 40(3) and 40A(1) of the Act is to be determined by the position as at the date of presentation of the summary application to the court.
(5.) Separatim, the Sheriff erred in law in making a finding that the defender was neither wilfully refusing nor culpably neglecting to pay the sums due by him under the liability order on 3 July 2008 when the summary application made by the pursuer under Section 39A(1) of the Act first called before the sheriff.
(6.) The Sheriff erred in law in finding that the defender was not liable either to be imprisoned or disqualified from holding or obtaining a driving licence by order under Section 39A(2) of the Act.
(7.) The Sheriff erred in law in not either imprisoning the defender or disqualifying the defender from holding or obtaining a driving licence pursuant to the application made by the pursuer under Section...
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