Strand, London, WC2A 2LL
B e f o r e :
| RITA HUMPHRIES
|- and -
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
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Clive Sheldon (instructed by Seema Barker, Solicitor ) for the Defendant
Hearing dates: 20 May 2008
Crown Copyright ©
The Hon Mr Justice Goldring :
The relevant legal provisions
"(1)…each parent of a qualifying child is responsible for maintaining him.
(2)…an absent parent…[now called a non resident parent ("NRP")] shall be taken to have met his responsibility to maintain…by making periodical payments of maintenance with respect to the child…"
"Where, in a case which falls to be dealt with…the Secretary of State is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision."
"(1) A person…with care…may apply to the Secretary of State for maintenance assessment [now maintenance calculation] to be made under this Act…
(2) Where a maintenance assessment…has been made in response to an application…the Secretary of State may…arrange for-
(a) the collection of the…maintenance payable in accordance with the assessment;
(b) the enforcement of the obligation to pay…
(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."
(b) [if] she is required to do so by the Secretary of State,
authorise the Secretary of State to take action under this Act to recover child support maintenance from the…[non resident parent]…
(5) That authorisation shall be given without unreasonable delay, by completing and returning to the Secretary of State an application-
(a) for the making of a maintenance assessment…and
(b) for the Secretary of State to take action under this Act to recover, on her behalf, the amount of child support maintenance so assessed.
(6) Such an application shall be on…a maintenance assessment form…provided by the Secretary of State."
"Where an order of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a maintenance assessment…is made, the order-
(a) shall, so far as it relates to the making or securing of periodical payments, cease to have effect to such an extent as may be determined in accordance with regulations made by the Secretary of State;
(b) where the regulations so provide, shall so far as it so relates, have effect subject to such modifications as may be so determined."
"…where a maintenance assessment is made with respect to
(a) all the children with respect to whom [an order of the court is in force];
that order shall, so far as it relates to the making or securing of periodical payments to or for the benefit of the children with respect to whom the maintenance assessment…has been made, cease to have effect…
(5)…where a maintenance assessment is made with respect to children with respect to whom [an order of the court] is in force, the effective date of that assessment shall be two days after the assessment is made."
"Any application for a maintenance assessment made to the Secretary of State shall be [dealt with by him] in accordance with the provision made by or under this Act."
The Financial Redress Maladministration Guide
"DWP Viewpoint provides advice on the most complex…contentious cases…[Its] responsibility [is] to endeavour to find a solution that provides appropriate redress when services go wrong…
…Any financial redress, if awarded, is intended to be fair, reasonable and proportionate but is not intended to allow the recipient to obtain a greater financial advantage than they would have received had there been no service failure."
"The guide contains a description of the circumstances under which special payments can be made and provides advice on the considerative (sic) process, including methods of calculating payments. The guide should not be read as a rigid set of rules. Whilst it indicates key principles, it cannot and does not seek to provide a blueprint for every situation. Each case must be considered on its merits, in the light of the particular circumstances of the case. However, as the Department aims to provide similar remedies for similar injustices, the principles must be applied to every case."
"A customer who is dissatisfied with handling of [the] complaint or with any redress given may make a complaint to the Parliamentary Commissioner for Administration or the Independent Case Examiner where the complaint is against the [Agency]. Details about this and contact details are contained in Annex B."
"Where maladministration has occurred, seven basic principles should be followed when considering redress. These are that…redress is fair and reasonable…as far as possible, redress restores the customer…to the position that he or she would have been in but for the official error…due account is taken both of the need to provide a suitable remedy for the customer and the need to protect the public purse…where it is possible to remedy by statutory means that option must be used rather than resorting to an extra-statutory or ex gratia payment."
"If an error is accepted, the customer should be afforded redress which, as far as possible, restores him or her to the position he or she would have been in but for the error."
"…to cases where maladministration has directly caused the customer to incur additional expenditure that would not otherwise have been incurred…"
"The emphasis should be on trying to restore the customer to the position that he or she would have been in had the error not occurred…Any special payment made must not exceed the amount of…child support maintenance that was expected…"
"184. When at the time a [parent with care] applies for child support maintenance a court order for child maintenance is already in place, the effective date for liability for child support maintenance is two days after the date that the assessment is completed. Thus, in court order cases, any unreasonable delay in the maintenance process will put back the effective date of the maintenance assessment…and may lead to loss of opportunity to receive maintenance…
185. In court cases the Agency is allowed 20 weeks to make an assessment beginning from the issue of a MAF to the [parent with care]. It anticipates that barring delays or non-co-operation of the [parent with care]…most cases will be assessed within that time. Where this is exceeded and the Agency accepts that the delay in assessing the case was due to its failings, a special payment will be considered.
186. Any special payment is paid at a rate equivalent to the difference between the level of the court order and the maintenance assessment…made by the Agency:
- If the maintenance assessment…would have been higher that the court order, payment is made to the [parent with care] in recognition of her lost opportunity to receive higher support for her child(ren)…"
"…subject to adjustment to take into account any benefit that would not have been made had [the assessment been made] sooner."
"202. Normally an ex gratia payment is based on the rate of maintenance assessment that applies at the effective date. However, in some cases either
- the Agency is unable to determine a properly calculated maintenance assessment or
- in cases of delayed…MEF… the [non resident parent's circumstances prior to the effective date were significantly different from those in place at the effective date.
203. In these cases, in assessing any financial loss, use of the maintenance assessment rate may not be appropriate. In these circumstances, the Agency may use a notional assessment based on the best evidence available."
The independent case examiner (ICE)
"6…My role is to provide an impartial view of whether a complaint…is justified. Where a complain is upheld, I am free to make such recommendations as I feel are appropriate to resolve the complaint.
7…I am supported by an office staffed by approximately 110 civil servants…ICE has a budget of £3.383 million.
8. As the annual report indicates, my office's main business purpose is to act as an independent referee if a complainant feels that the Agency has not treated them fairly or has not dealt with their complaints in a satisfactory manner. The service is free, effective and impartial. Once my office has agreed to accept a case, the matter is examined thoroughly and proactively…Between 2006/2007 we received 3823 cases…
9…complaints are currently taking an average of 21.57 weeks…to be cleared."
"…a free, effective and impartial complaints review and resolution service for Agency customers…"
"15…I can make recommendations about what I consider needs to be done. This can include an apology, an explanation, an assurance (eg as to future steps to be taken), a recommendation that financial redress be offered or a combination of these.
16 Redress recommendations are made in accordance with the…guide and can include;
- advanced payments,
- consolatory payments…
- financial loss for either income or costs
- interest for monies paid…
17 In accordance with the…guide, financial loss recommendations are aimed at putting a complainant in the position they (sic) would have been had maladministration not occurred."
"…the Agency has agreed that it will comply with my recommendations in all but exceptional cases. In a straightforward case…this arrangement has not presented any difficulty."
"The service is free to complainants…relatively fast…informal…inquisitorial…Easy to use…allows complainants to be resolved amicably…Through casework, patterns of complaint can be identified…It is less stressful than court proceedings for many complainants."
Mrs. Humphries claim
The background to Mrs. Humphries' claim
A brief history of events leading to the claim
"Eventually…[on 20] September 1996, [Mrs. Humphries] came off income support. She endeavoured to secure maintenance from the Court, but having confirmed to the Court that the Agency was dealing with her case, the Court therefore refused jurisdiction…[She] endeavoured to verify the situation with the Agency. The Agency did not tell her that she had to pursue matters with the court at that stage but also did not pursue the information that [Mrs. Humphries] had provided so as to conclude their own involvement in the case with the assessment that would have brought the court's jurisdiction to a close."
"On 16 August 1993, Mrs. Humphries applied…to receive maintenance…At the time we were unable to confirm an address for Keith Humphries, and so we began specialist tracing action on 10 July 1994. On 14 July, Mrs. Humphries supplied an address…and on the same day we sent a maintenance enquiry form to him. [He] returned the form on 20 September 1994, but it is unclear from our computer records if he supplied enough information to allow us to complete an assessment.
Regrettably, I can find no evidence that we took any action until 6 August 1998, when we suspended the case, pending further tracing action. At the time we could not confirm that the address we held…was correct. From September 1994…to August 1998…our case records show that Mrs. Humphries contacted us by telephone on one occasion, 21 September 1994, with no further contact…until January 2000, when she telephoned for an update. In March 2002, we noted that Mrs. Humphries was no longer in receipt of Income Support, but this does not seem to have prompted any further action by us.
On 20 October 2003…Mrs. Humphries enquired about reopening her case…[and] provided a new address…on 27 November  we received a letter of complaint…
On 28 January 2004, we noted there was a court order…We explained to Mrs. Humphries that the order would mean any maintenance calculation made would have an effective date set in the future…
On 24 August 2005, we completed the maintenance calculation of £59 per week, effective from 26 August 2005…We cancelled the court order on 25 August 2005…
It is clear that Mrs. Humphries has not received the level of customer service to which she is entitled, and I apologise unreservedly. In recognition, I have referred Mrs. Humphries' case to the…Special Payments Team, who will consider making a consolatory payment…"
"yet consider any financial redress for possible loss of opportunity to receive child maintenance until a pattern of at least three payments has been established."
"…I cannot find any evidence that prior to November 2003, your client raised the issue of when the Agency resumed responsibility for collecting maintenance in (sic) court order. Therefore [the Agency] would not have been aware this was an issue."
"[That] infers (sic) that [Mrs. Humphries] was already aware that she still had to approach the courts for the maintenance.
Also, it appears she may have been given misleading advice about when the Agency took over full control of the case in terms of securing maintenance…by the courts or her legal representatives…it does not mean that the Agency should now take responsibility for any financial loss due to non payment of the court order…
In accordance with paragraph (sic) 184-7 [paragraph 30 above], the potential redress for the period 24/09/96-25/08/05 will therefore be based on the difference between the maintenance assessment rate and, the court order rate that was in place at the time (£25 per week)."
"Consideration also needs to be given to the court order that was in place…Whilst I accept that [Mrs. Humphries] may have been given misleading advice either by the courts or her legal representatives at that time, and that she did not challenge the decision, it does not mean that the Agency should now take responsibility for any financial loss due to non payment of the court order, she may have incurred as a result (paragraph 4 of the [Guide]."
"…We understand that you are considering making a "notional assessment" utilising the principles set out in paragraph (sic) 202/203 of the…Guide [paragraph 33 above].
We write to ask that our client be given a formal opportunity to participate in that decision making process. We make these comments particularly against the position set out in the Guide…that the agency may use a notional assessment based on the "best"…evidence available…[a reference to paragraph 203 set out at paragraph 33 above]. We understand that the [Agency] has little evidence about [Mr. Humphries] and it may therefore be difficult to come up with an accurate assessment. It should however be possible to make an assessment on the limited information available- in particular…The [Agency] will no doubt want to take account of the fact that [Mr. Humphries] is now assessed as paying over twice the national average assessment rate…[It] will reflect on the fact that [Mr. Humphries] had sufficient means to be assessed by the Court to make a maintenance payment that was above a nominal assessment. [He] was apparently rich enough to sell his previous property and move to his current property in 1997. His previous property was a terraced property whereas his current property is a semi-detached property with a garage…[He] was driving a new BMW in 1996/1997. [He] was able to afford family holidays in Australia and America at that time.
We realise that our client's evidence is not full evidence- but we submit that (unless there is other evidence available) it is the "best" evidence- upon which to allow the [Agency] to formulate an assessment."
"…I [previously informed] you that as a payment pattern had now been established on (sic) your client's case and, as the initial liability of £59.00 per week could not be considered reflective of his circumstances in September 1996, the Agency issued letters to [Mr.] Humphries…asking him whether he was willing to provide his details for the period 1996-2005 to allow notional assessments to be calculated…
As he has failed to respond to these letters…and, in the interest of progressing your client's case, it has been decided to base financial redress on the average Maintenance Assessment…rates for the old rules scheme. This approach is in accordance with paragraph 203 of the…guide [see paragraph 33 above].
…you state that redress should be based on the average salary rate. If [the non resident parent] failed to give information about his housing costs [you say that]…"these should not be deducted from the assessment…
However…you acknowledge that since 1997, [Mr. Humphries] owned a property. As such he would have had housing costs…by awarding redress at a rate which assumes that [his] housing costs were £nil, one would be breaching paragraph 15 [paragraph 20 above] of the…Guide…we would be restoring your client to a better position than she would have been in, but for maladministration.
I have taken note of the comments you raised about [Mr. Humphries] in your letter dated 26 November 2007. However, no information is provided upon which to calculate an assessment."
"…redress will be based on the difference between the average maintenance assessment rate for the old scheme (if the delays had not occurred the case would always have been assessed under the old rules scheme) and the court order rate that was in place at the time…This approach is in accordance with paragraphs 15 [paragraph 20 above], 202-203 [paragraph 33 above] and 184-7 [paragraph 30 above] of the [Guide]."
"…challenges the Defendant's…decision refusing to pay her compensation under the [Guide]:-
…revised decision (sic) 25 (sic) September…; 19 December 2007 (sic) offering the Claimant £748.17."
How the Guide should be approached
"…whilst decisions of the Home Secretary under the scheme are susceptible to judicial review, both as to matters of general interpretation and individual application, intervention by the courts in either respect should…be highly guarded."
"107 We start with the issue of how policy statements such as this ex gratia scheme should be interpreted.
108 In The Queen (on the application of Daghir and Ors v SSHD  EWHC Admin 243…[it] was said:
"…It is agreed that the appropriate test…is to be found in a passage in the judgment of Lawton LJ in R v Criminal Injuries Compensation Board, ex parte Webb  QB, 74, 78…
"The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows…that the court should not construe this scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man's understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence…"
…123 We have reached the conclusion that…this court [should decide what the policy means]. To that extent we disagree with the Divisional Court. We shall use the Webb text, whilst accepting that it could be worded in a more modern way.
124 What does the scheme mean? What was its purpose and scope? Who was the Minister intending to compensate?..."
The court order
The notional assessment
Was it appropriate to apply for judicial review?
Mrs. Humphries: conclusion
The other cases