QUEEN'S BENCH DIVISION
Strand. London. WC2A 2LL
B e f o r e :
| PETER JAMES BIRD
|- and -
|(1) SECRETARY OF STATE FOR WORK AND PENSIONS
(2) CHILD SUPPORT AGENCY
Kate Olley (instructed by the Department for Work and Pensions) for the Respondents
Hearing date: 5th November 2008
Crown Copyright ©
The Honourable Mrs Justice Slade:
"in a case where the parent with care is not in receipt of qualifying benefits, when being asked to make a Liability Order against the non-resident parent under Section 33 of the Child Support Act 1991 where the only issue in dispute is whether payments of child support maintenance in question have not been paid, are the Magistrates obliged to make such an Order if they are satisfied that payment was made but by a method other than that notified by the Child Support Agency?"
"In a case where the parent with care is not in receipt of qualifying benefits, when asked to make a liability order against the non-resident parent under Section 33 of the Child Support Act 1991 where the only issue in dispute is whether the payments of child support maintenance in question have not been paid
on the grounds of his non payme nt of.are the Magistrates obliged to make such an order if they are satisfied payment was made but by a me thod othe r than thatby the non-resident parent to a mortgage lender to discharge the liability of the parent with care in respect of a mortgage, rather than making payments of child support maintenance as notified by the Secretary of State under the Child Support (Collection and Enforcement) Regulations 1992 (SI 1992 No 1989) and the Child Support Act 1991?"
This was not accepted by the Magistrates. Thus the question of whether payment of Mrs Bird's mortgage liability by Mr Bird was payment of child maintenance was not referred to this court. The question posed by the Magistrates for the opinion of the High Court is predicated on a finding that payment of child support maintenance was paid by Mr Bird but not by the method notified by the Child Support Agency.
The Relevant Facts
"you are responsible for paying Child Maintenance to the following:
MRS CAROLINE ANNE BIRD"
The payments to Mrs Bird were for D. The notification from the CSA was somewhat confusing in that two different figures for child maintenance were given. However it was not in issue before me that the larger figure of £34.10 per week was the correct amount.
"We have decided that you should pay your child maintenance by Transcash, weekly."
The letter continues:
"Make sure you only make cash payments through a Post Office."
The other letter enclosed payslips for Mr Bird to use when making child maintenance payments.
The Contentions of the Parties
The Relevant Statutory Provisions
"(1) A person who is in relation to any qualifying child or any qualifying children, either the person with care or the [nonresident parent] may apply to the Secretary of State for a [maintenance calculation] to be made under this Act with respect to that child, or any of those children.
(2) Where a [maintenance calculation] has been made in response to an application under this section the Secretary of State may, if the person with care or [non-resident 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 [calculation];
(b) the enforcement of the obligation to pay child support maintenance in accordance with the [calculation].
(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."
"(1) The Secretary of State may arrange for the collection of any child support maintenance payable in accordance with a [maintenance calculation] where-
(b) an application has been made to the Secretary of State under section 4(2) or 7(3) for him to arrange for its collection.
(2) Where a [maintenance calculation] is made under this Act, payments of child support maintenance under the [calculation] shall be made in accordance with regulations made by the Secretary of State.
(3) The regulations may, in particular, make provision-
(a) for payments of child support maintenance to be made-
(i) to the person caring for the child or children in question;
(ii) to, or through, the Secretary of State; or
(iii) to, or through, such other person as the Secretary of State may, from time to time, specify;
(b) as to the method by which payments of child support maintenance are to be made"
"(l)Where a maintenance assessment [calculation] has been made under the Act and the case is one to which section 29 of the Act applies, the Secretary of State may specify that payments of child support maintenance shall be made by the liable person-
(a) to the person caring for the child or children in question or, where an application has been made under section 7 of the Act, to the child who made the application;
(b) to, or through, the Secretary of State; or
(c) to, or through, such other person as the Secretary of State may, from time to time, specify.
(2) In paragraph (1) and in the rest of this Part, 'liable person' means a person liable to make payments of child support maintenance."
"(l)Payments of child support maintenance [penalty payments, interest and fees] made by the liable person by whichever of the following methods the Secretary of State specifies as being appropriate in the circumstances-
(a) by standing order;
(b) by any other method which requires one person to give his authority for payments to be made from an account of his to an account of another's on specific dates during the period for which the authority is in force and without the need for any further authority from him;
(c) by an arrangement whereby one person gives his authority for payments to be made from an account of his, or on his behalf, to another person or to an account of that other person;
(d) by cheque or postal order;
(e) in cash;
(f) by debit card."
"(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 Secretary of State 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 Secretary of State 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 Secretary of State 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.
(6) Where regulations have been made under section 29(3)(a)-
(a) the liable person fails to make a payment (for the purposes of subsection (l)(a) of this section); and
(b) a payment is not paid (for the purposes of subsection (3)), unless the payment is made to, or through, the person specified in or by virtue of those regulations for the case of the liable person in question."
"taken together with subsection 33(4), which precludes the magistrates court from questioning the maintenance assessment, is that the 'sole question to be determined by the magistrates is whether or not payments have become payable by the liable person and have not been paid. If that is established the Magistrates are bound to make a Liability Order."
"Section 33(4) precludes the justices from investigating whether a maintenance assessment, or maintenance calculation in the current terminology, is a nullity. That has been the position ever since Section 33 was enacted in 1991. Such an investigation is a matter to be pursued today through the statutory appeal structure. "
Schedule I of the Act. By Section 11(3), Part II of Schedule I makes further provision with respect to maintenance assessment. Neither part of the Schedule contains provisions relating to the method of payment of child support maintenance. Thus the determination that child support maintenance be paid by a specified method is not included in the assessment of child support maintenance.