England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/11/2007

Mr Justice Wyn Williams:

1. This is a renewed application for permission to apply for judicial review. Permission was refused by Goldring J by Order dated 18 May 2007.

Background

2. The Claimant is the father of two children, Candice Victoria Hardman and Katie Michele Hardman. They were born to the Claimant's former wife, Tina Naylor. In 1999 Mrs Naylor applied to the Child Support Agency for child maintenance in respect of both children. As I understand it, it was determined that the Claimant was liable to pay child maintenance as from 8 July 1999.
3. In February or March 2004 Mrs Naylor and the two children began to live in Cyprus. They did so because Mrs Naylor's husband at that time (and now) was a serving soldier and he was posted to Cyprus.
4. By an appeal form dated 29 March 2004 the Claimant appealed against a decision of the Child Support Agency. In the form he specified the decision against which he was appealing as "statement of arrears and amount particularly in view of expenses for car." In a box in which he was asked to explain why he thought that the decision was wrong he referred to "attached sheets". As I understand it the attached sheets were a letter dated 29 March 2004 and a document entitled FTF Officer's Report. The letter of 29 March 2004 was, in effect, a commentary on the FTF Officer's Report.
5. The FTF Officer's Report was a document compiled by an employee of the Child Support Agency in response to a "face to face interview" she conducted with the Claimant.
6. Adopting the numbered paragraphs specified by the Claimant at paragraph 9 of the FTF Officer's Report the following sentences appear:-

"He also questioned whether the assessment was even valid, as Tina Naylor is living in Cyprus with her current partner, who is a serving member of the armed forces. I understand that this has been confirmed as only a temporary posting."

7. In his letter of 29 March 2004, under the heading "re: paragraph 9", the Claimant wrote

"Tina Naylor's home address will always be where her husband has been posted (unless they split up) because she has sold the family home in England. If her home address is abroad surely, albeit temporarily, this is her base."

8. On 25 May 2005 the Claimant's appeal was heard by a duly constituted Appeals Tribunal. The decision of the Tribunal was to allow the Claimant's appeal. The Decision Notice and the Reasons for the Decision are to be found at page 55 in the bundle.
9. Notwithstanding the fact that the Claimant was successful in his appeal he was apparently unhappy that the Appeals Tribunal did not deal with the issue of whether or not his former wife was habitually resident in the UK. It is correct, as a matter of fact, that the Decision Notice to which I have referred makes no reference to that issue.
10. On or about 6 October 2005 solicitors acting for the Claimant apparently wrote to the Appeals Service. As a consequence a different Appeals Chairman made directions about the issue of Mrs Naylor's residence. Further, another hearing was convened for 23 January 2006.
11. On 23 January 2006 a hearing took place before an Appeals Tribunal which was chaired by the same Chairman (Mr Nicholson) who had chaired the Tribunal on the 25 May 2005. At page 59 of the bundle there is a record of the decision made by the Tribunal on that date. The formal decision was as follows:-

"The appeal is adjourned in accordance with the following directions:

1. By 4 pm on 2.2.06 the Appellant must tell the Appeals Service in Cardiff, in writing, whether he wishes to assert: a) that the tribunal still has jurisdiction to consider the question of Mrs Naylor's habitual residence; and b) that Mrs Naylor was not habitually resident in the UK at the date of the decision under appeal, namely, 30.01.04.

2. In default it will be taken that the Appellant accepts that the tribunal has no further jurisdiction over the appeal.

3. If the Appellant states, in compliance with paragraph 1, that he wishes to pursue the issue, he must, by 4 pm on 6.3.06 send to the Appeals Service details of his arguments.

4. If the appeal is to continue, the case must be referred to Mr R. Nicholson for further directions."

As page 59 of the bundle demonstrates there was then a detailed account of why the tribunal ordered the adjournment.

12. On 2 February 2006 the Claimant's solicitor wrote to the Appeals Service and, as a consequence, Mr Nicholson prepared what is called a Chairman's Note dated 27.02.06. In that note Mr Nicholson expressed the firm view that the Appeal Tribunal had no jurisdiction to consider the issue of Mrs Naylor's habitual residence (it having made its final decision on the appeal in March 2005) but nonetheless he concluded his note by saying this:-

"Having expressed the firm view that the tribunal no longer has any jurisdiction on this appeal, I must still leave the matter open for debate as provided in the said Adjournment Notice. I request a clear election from the Appellant on whether he wishes to argue that the Tribunal still has jurisdiction and direct that, if he does, he must provide his detailed arguments within 21 days of the date on which this note is issued. I further direct that the case be referred to myself on receipt of the detailed arguments."

13. I do not know whether detailed arguments were presented but on 12 May 2006 a further hearing took place before an Appeal Tribunal chaired by Mr Nicholson. The Tribunal reached the decision that it had no jurisdiction to deal with the Claimant's application to re-open one of the issues in the appeal (see page 63 of the bundle).
14. On 12 June 2006 the Claimant, by his solicitor, sought permission to appeal against the refusal of the Appeal Tribunal to re-open the issue relating to Mrs Naylor's residence. Such an application for permission to appeal goes before one of the Child Support Commissioners. On 1 September 2006 Mr J Mesher, one of the Commissioners, issued a Decision Notice which refused the application for permission to appeal.
15. Two other aspects of the background facts need to be mentioned at this stage. Between 25 October 2005 and 15 March 2006 correspondence took place between the Claimant's solicitor and the solicitors for the Second Defendant. In the Claimant's solicitor's letter of 25 October 2005 a claim for compensation was intimated on the basis of alleged maladministration on the part of the Child Support Agency.
16. There ensued a debate in correspondence. On 12 December 2005 the Claimant's solicitor wrote that if the dispute about compensation was not resolved "by or before 12 noon on 23 December 2005" he anticipated launching proceedings for judicial review. On 19 December 2005 the Second Defendant's solicitor stated, in effect, what was his final position in relation to the claim for compensation.
17. Proceedings for judicial review were not instituted at that stage. Indeed no proceedings of any kind were taken until the current proceedings for judicial review which were issued on 19 January 2007.
18. On 15 March 2006 the Claimant's solicitor wrote to the Second Defendant's solicitor in relation to the issue of Mrs Naylor's habitual residence. The last paragraph of that letter was in the following terms:-

"It remains to be resolved whether an Appeal Tribunal can deal with this question (on a careful reading of S11(2) or whether it must go by way of judicial review (unless the Secretary of State agrees with Mr Hardman on the jurisdiction point). We ask you please to request your client to reconsider his decision on habitual residence in this particular case."

19. On 22 March 2006 the solicitor for the Second Defendant replied:

"The Secretary of State for Work and Pensions considers that, having regard to all the circumstances, Mrs Naylor is "habitually resident" and therefore he does have jurisdiction to make a maintenance calculation."

The Challenges

20. These are set out clearly in the Claim Form and its enclosures. The first ground of challenge is against the decision of the Child Support Commissioner to refuse permission to appeal. As I have said that decision was made in a decision dated 1 September 2006. It is to be noted that the challenge to this decision was made more than 3 months after it was made but, nonetheless, I deal with whether there is any merit in the challenge.
21. By virtue of Section 24(1) of the Child Support Act 1991 an appeal lies to a Child Support Commissioner on a question of law. The decision of the Child Support Commissioner in this case is susceptible to judicial review only if he has made an error of law in refusing permission to appeal.
22. His reasons for refusing permission are clear and, in my judgment, they disclose no error of law in his approach. The plain fact is that I pressed the Claimant's solicitor to explain to me why he was alleging that the Commissioner had made an error of law and he was unable to identify any error to my satisfaction. Stripped to its essentials the Commissioner reached the conclusion that following the decision of the Appeal Tribunal on 25 May 2005 the Claimant had the option either to seek permission to appeal at that stage or to make an application to the Secretary of State for that decision to be superseded. Neither of those courses was adopted at that time. The Commissioner also noted that it was open to the Claimant at any time to seek to have the maintenance assessment cancelled under Regulation 7 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. For reasons which are explained in Ms Olley's note put in after the oral hearing there was no error in making that reference. In all those circumstances he concluded that there was no basis for an appeal against the decision of the Tribunal made on 12 May 2005.
23. To repeat, I can detect no error of law in this approach and, accordingly, there is no basis upon which it would be permissible to grant permission to apply for judicial review.
24. The second and third grounds upon which the Claimant seeks permission are alternatives. He seeks permission to challenge what he says is a failure on the part of the Second Defendant to make a decision as to whether or not Mrs Naylor was habitually resident in the United Kingdom for the purposes of the Child Support Act 1991 Section 44(1). In the alternative his third ground is that if the Secretary of State has or does decide she is so habitually resident that decision is unlawful.
25. Before the oral hearing commenced and, indeed, for most of that hearing it was unclear to me how the Claimant was suggesting there was any obligation on the part of the Secretary of State to make a decision about that issue. After all, it was the Claimant's case that this was an issue which should have been made by the Appeals Tribunal.
26. As a matter of fact it seemed to me that the Second Defendant had unequivocally stated his view upon whether or not Mrs Naylor was habitually resident – see the letter of 22 March 2006.
27. Given the uncertainty surrounding the oral submissions made on behalf of the Claimant I gave to Mr. Burrows, his solicitor advocate the opportunity to put in written submissions. I have considered the written submissions with care. It seems to me that the kernel of those submissions is that the Claimant has made an application for supersession to the Second Defendant based upon the proposition that Mrs Naylor is longer habitually resident in the UK and, accordingly, the Second Defendant is bound to make a decision upon the application which will involve a decision upon the issue of Mrs. Naylor's residence.
28. I cannot accept that any such application has been made by the Claimant. I do not consider that any of the letters written by Mr. Burrows on behalf of the Claimant can possibly be read as requests for supersession by the Second Defendant of the decision of the Appeal Tribunal. I am prepared to accept for the purposes of this case that an application for supersession need not be made in any particular form but it must be made, at the very least, in such a way that the Second Defendant knows that supersession is being requested.
29. I turn to the final ground of challenge. It is expressed in the Claim Form as a failure on the part of the Second Defendant to provide compensation to the Claimant for overpaid child support maintenance and otherwise in respect of maladministration by the Secretary of State's department.
30. The Second Defendant's solicitor made his position on this issue quite clear by letter dated 19 December 2005. That letter provoked the threat of judicial review proceedings but the same were not launched until more than a year later. It can, I suppose, be said that the Second Defendant's failure to pay the compensation claimed by the Claimant was a continuing failure but, in my judgment, the reality of the position is that in December 2005 the Second Defendant took a stance about how he proposed to reimburse the Claimant his overpayments and the Claimant was advised to make request for any other form of compensation to the Child Support Agency's special payments team. There is no evidence that any such application has been made.
31. I agree with the Second Defendant that a claim for judicial review in respect of the compensation issue is now well out of time. No good reason exists for extending time by very many months so as to permit a claim to be brought.
32. In any event, if it is the case that no application for compensation has been made to the Child Support Agency's special payments team there is, presumably, no reason why such a request cannot now be made and, if refused, challenged if the Claimant believes that good grounds exist to support such a challenge. For my part, however, I am very dubious about whether a refusal to pay compensation in accordance with the claim made by the Claimant is susceptible of judicial review. In my judgment it is extremely likely that such compensation is payable only if some legal right to the same is infringed. No such right was identified to me during the course of the hearing. In so far as the compensation is said to arise by virtue of maladministration then, it seems to me, it is far more appropriate that the issue be taken up with the Ombudsman. Accordingly I would refuse permission on this ground of challenge as with all the others.
33. I should say for completeness that it may be that the Claimant also complains about the refusal of the First Defendant to reconsider its decision refusing permission to appeal. For the reasons which the First Defendant gives for that refusal there was no basis on which the First Defendant could lawfully reconsider and, accordingly, no error of law was made in the refusal to reconsider. My conclusion is that there is no merit in this renewed application for permission and I dismiss the same.