Treharne and Others v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 30 September 2008 |
| Neutral Citation | [2008] EWHC 3222 (QB) |
| Court | Queen's Bench Division |
| Date | 30 September 2008 |
| Docket Number | Case No: QB/2008/PTA/0539 |
[2008] EWHC 3222 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cranston
Case No: QB/2008/PTA/0539
MR R EMELLO and RASHID AHMED (Instructed by Freeth Cartwright LLP) appeared on behalf of the Claimant
MR ANDREW LOGAN (Instructed by DWP Solicitors) appeared on behalf of Defendant
Approved Judgment
1. The Child Support Agency (“the CSA”) was established in the early 1990s with wide backing. The rationale was to replace a fragmented, slow and ineffective system of child maintenance through the courts with a government agency. The White Paper, which was background to the agency, spoke of many instances in which maintenance had been awarded but not paid, and also set out the extent to which maintenance awards had fallen into arrears. The proposal was, in relation to enforcement, that the agency would substitute for the parents. Parents would commission the agency to take enforcement action on their behalf so that it had standing authority to enforce maintenance assessments. The Child Support Act 1991 gave effect to this plan. Subsequently, there have been a number of amendments to the legislation. As well, certain administrative steps have also been taken such as the establishment of the Child Support Agency Standards Committee. It is fair to say that the CSA has not always realised the hopes surrounding its establishment. It has fallen down in the accuracy of assessments and also in the enforcement of them. As a result the original statutory scheme had been amended and the process adapted.
2. This claim is concerned with an attempt to use the courts to achieve a remedy in relation to what is said to be a failure of the CSA properly to enforce a maintenance assessment. The Claimants have sought to adduce Article 8 of trhe Convention on Human Rights to seek damages in relation to what they say is the inefficiency of the agency in their case. The way the defendant has characterised the claim is as an attempt to ensure that it acts as a guarantor of last resort in respect of a defaulting parent's liability. It points to previous unsuccessful attempts in similar cases to establish a common law responsibility for damages in the case of failure of the CSA or to invoke Article 6 of the Convention.
Background
3. According to the pleaded case the three Claimants are siblings aged 22, 21 and 14 years respectively. In 1999 their mother applied to the Child Support Agency (“the CSA) for child maintenance payments due to them from their non-resident father. He was living at a property registered in his sole name in Nottingham. From the outset he indicated that he had no intention of making any maintenance payments and that he would make every effort to avoid meeting his legal obligations.
4. In July 1999 the CSA made an interim maintenance assessment of £155.55 per week effective from the end of the month. No maintenance was paid so the Claimant's mother requested the CSA to take enforcement action for the arrears. She also informed them that he was not abroad as he had told the agency. Further requests were made to the CSA to enforce the assessment, but by January 2000 the arrears amounted to over £3,000. At one point the CSA issued a notice of intention to apply for a liability order against the father, but that was not pursued. Despite the mother informing the CSA that the father was still at the same address, they did nothing. In October that year the mother informed the CSA that the father had placed his property on the market. If they were to enforce a liability order against him, the best method would be by obtaining a charging order against the property. Nothing was done and in May of 2001 the property was sold for about a quarter of a million pounds. By mid-2002 the arrears were some £42,000. The father purchased another property and the CSA initiated enforcement action, but because of delay he was able to sell that before a charging order could be obtained.
5. The present claim was lodged in May 2006. Apparently the mother compromised her claim with the defaulting father in August 2004 and she has never been a party to this action. Originally, the claim was brought in negligence as well as Article 8 in respect of the breach of duty arising from what was said to be an assumed responsibility for assessing, collecting and enforcing the maintenance payments. Following the decision in Rowley v. Secretary of State for the Department of Work and Pensions, [2007] EWCA Civ 598 the negligence part of the claim was abandoned and the claim has now been placed solely on Article 8. One aspect of the pleaded case is that had the CSA informed the Claimants and their mother unequivocally that it would not seek a charging order against the father's property, they would have considered applying for judicial review to compel it to do so in accordance with its published policy on enforcement and in accordance with a representation said to have been made personally to the mother.
6. The failure to obtain a charging order is one of the breaches of positive obligation which it is pleaded Article 8 imposes on the CSA. The failure to obtain a deduction order from the father's earnings is pleaded as another failure. In the pleadings it is said that prior to the maintenance arrears developing, the Claimants led a normal family life. That normal family life, and associated lifestyle, altered significantly in an adverse way as a result of the CSA's failure to collect the maintenance arrears. This alteration in lifestyle was caused, it is said, as a direct result of the failure to collect and enforce the maintenance arrears. The hardship suffered by the Claimants is pleaded, as including: (1) moving to a smaller house; (2) giving up sporting and recreational activities; (3) not being able to purchase computers and to do homework; (4) having to cut down on food expenses; (5) having to cut down on holidays; (6) having to purchase second-hand uniforms and receive some from friends; (7) having free school meals, which exposed the children to school bullying; (8) not being able to go on school trips; (9) not being able to purchase clothing, toys, cycles and furniture; and (10) not being able to entertain friends or to undertake certain leisure activities.
7. The matter came before District Judge Oliver ex-parte in April of this year, and he struck out the claim on the basis that it was bound to fail. This is an application by the Claimants to set aside that order. If I am to do that I remind myself that the test is demanding: I must be able to say with certainty that the Claimants will be unsuccessful. In other words, as the authorities put it, it is not appropriate to strike out a claim until the facts are known unless on all the facts the claim must fail.
Statutory Framework
8. In brief outline the features of the statutory scheme of the Child Support Act 1991 (“the Act”) can be summarised as follows. Under s.1 of the Act each parent is responsible for maintaining a qualifying child. There is a duty on the non-resident parent to make periodic payments where a maintenance assessment requiring them to do so is in force. The CSA must have regard to a child's welfare when considering the exercise of its discretionary power conferred by the Act: s.2. Section 4 of the Act permits parents to make an application to the CSA for the assessment of maintenance. If the person with care of the child is a parent claiming or receiving income support, or various other prescribed means tested benefits, he or she may be required to authorise the CSA to take action to recover child support maintenance from the absent parent: s.6. Section 8 of the Act excludes the role of the court in respect of the assessment of child support maintenance, save in exceptional circumstances. Child support maintenance is determined by applying a complex maintenance formula prescribed by the Act. Under s.11 and Schedule 2 those provisions have been supplemented by more detailed secondary legislation. Maintenance assessments can be revised. Collection and enforcement are provided for under the Act and the attendant regulations. The CSA can obtain deduction from earnings orders. As well, it can apply to a Magistrates’ Court for a liability order which may then be subject to enforcement. A liability order is the gateway to other enforcement action such as the imposition of a charging order on property.
9. The Act sets out limited rights of redress in relation to decisions made under it. The person with care and the absent parent both have a right of appeal to an appeal tribunal in respect, for example, of the amount of a maintenance assessment: s.20. There are further rights of appeal to the Child Support Commissioner and the Court of Appeal. Section 46A(1) of the Act provides:
“Subject to the provisions of this Act any decision of the Secretary of State or an appeal tribunal made in accordance with the foregoing provisions of the Act shall be final.”
However, challenges to the enforcement (or lack of enforcement) of child support maintenance assessments do not fall within the ambit of these statutory appeal provisions. A person who considers that the CSA is acting unlawfully in the exercise of a statutory discretion can apply for judicial review. The availability of judicial review in this context was recognised by the House of Lords in R (on the application of Kehoe) v. Secretary of State for Work and Pensions [2005] UKHL 48; [2006] 1AC 42, paragraphs 47 and 79. There...
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CMEC CCS 1375 2008
...of that authority has recently been surveyed and summarised by Cranston J in Treharne v Secretary of State for Work and Pensions [2008] EWHC 3222 (QB) [2009] 1 Family Law Reports 853, a case that was not cited to me and has so far not been mentioned in these proceedings. With all due respec......
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T v B
...Convention on Human Rights. In this context, the only decision referred to during the course of the hearing was Treharne v Secretary of State for Work and Pensions [2009] 1 FLR 853 in which Cranston J said [29]: "Perhaps it is not surprising that Art 8 cannot be used in this way to found a ......