England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 June 2008

1. DEPUTY JUDGE: The claimant in this case is seeking to renew his application for permission to apply for judicial review which was refused by Mr Justice McCombe on 31 December 2007. He seeks to challenge various decisions by the Child Support Agency.
2. The dispute goes back to 1997 to 1999 when the claimant was, he says, in receipt of job seekers' allowance and which should have led to a very significant reduction in his liability for Child Support Maintenance. The claimant's receipt of job seekers' allowance came to an end in 1999. But - at least according to the Agency - he did not resume paying all of his child support. This has led to the Child Support Agency seeking a liability order from the Magistrates' Court in respect of the liability order period which runs from 13 July 2000 to 10 November 2006. As can be seen from the dates, that post-dates the period when the claimant says he was in receipt of job seekers' allowance.
3. The application for a liability order was granted by the Bristol Family Proceedings Court. In due course bailiffs were instructed. It was when the actions of the bailiffs came to the attention of the claimant that, in due course, he took action to bring these proceedings for judicial review. The claimant claims the assessment of his child support obligations ought to have been recalculated by the Secretary of State for Work & Pensions, who is the Secretary of State for the department that administers both child support and job seekers' allowance. Because his department administers both schemes, the knowledge acquired - notionally at least - in relation to one ought to be imputed to his tasks in relation to others. He accepts that the liability for non-payment of child support during that period - 1997 to 1999 - is not included in the liability order period, nonetheless, and this is accepted by Mr Buley on behalf of the defendant, that, at least in theory, it remains open to the Agency to pursue enforcement of that obligation by other means.
4. The acceptance by the claimant that the job seekers' allowance period is outside the liability order period, in my judgment, means that whatever merit there might otherwise be in the claim, it cannot affect the enforcement of the arrears during the liability order period. The proceedings that are therefore taking place in the Bristol Family Proceedings Court cannot be affected by that aspect of the argument.
5. There was another aspect on which Mr Burrows, on behalf of the claimant, relied, namely the fact that the notices required prior to the liability order proceedings in the Magistrates' Court only reached the claimant subsequently. The evidence as to this is somewhat obscure, and in particular as to exactly when the claimant did learn of those proceedings. However my attention has been drawn to his solicitor's (that is Mr Burrows) letter of 15 April 2007 where the address - 13 Pomfrit Gardens - to which letters and notices were sent is described as the claimant's co-habitant's address. On that basis I could not find any reasonably arguable ground for saying that there was an error of law in the service of the notices at that address.
6. So far as the merits of the complaints about the failure to take account of the drop in the claimant's income when he was in receipt of job seekers' allowance is concerned, I accept the argument of Mr Buley, for the defendant, that information obtained by the Secretary of State for Work & Pensions in his capacity as the administrator of the job seekers' allowance programme is not to be imputed to him in his capacity as the minister ultimately responsible for the Child Support Agency.
7. It seems that the decision of the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, [2005] 1 WLR 967, is in point directly. Mr Burrows relies on the previous case of Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, in which Baroness Hale said (at paragraph 62):

"What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, ..... "

I have in mind those words "rather than the claimant"

" ..... then the department must take the necessary steps to enable it to be traced."

8. The claimant's receipt of job seeker's allowance was plainly information available to him and, even if it was also available to the Department, I do not consider the case of Kerr assists the claimant in this regard.
9. The defendant acknowledges that it did at some point in 2005 become aware of the claimant's receipt of job seekers' allowance. However by that stage the powers available to the Agency under Section 16 and Section 17 of the Child Support Act 1991 did not enable it to take any remedial measures. Mr Burrows, I think, accepted that proposition subject only to his submissions in relation to the House of Lords' cases that I have previously mentioned. On that basis it appears to me that there is no arguable ground on that limb of the argument either.
10. In developing his arguments, Mr Burrows also suggested that the defendant had failed to take account of the welfare of the two children for whom the child support payments were due to be made. That is an obligation to have regard to the welfare of the children, an obligation imposed on the Agency by Section 2 of the Act. In my judgment, it cannot be said that enforcement of the obligation to pay maintenance for those very children would be contrary to their welfare. Mr Burrows submits that that would be the case if their father were to be imprisoned.
11. The whole scheme of the legislation is that the absent parent - the claimant in this case - is obliged to make those payments. Ultimately if payment is not made, then those obligations can be enforced through proceedings in the Magistrates' Court for liability orders, with the ultimate sanction of imprisonment. Parliament therefore must have envisaged that such measures may - if all other conditions are fulfilled - need to be taken in order to enforce these payments for the benefit of the children who reside with the parent with care. It is also notable that the claim was lodged on 28 May 2007 which is within three months of the decision to instruct the bailiffs but more than three months beyond any of the other matters of which complaint is made.
12. It is said that the explanation for that delay is in fact that the claimant did not become aware of these matters until the bailiffs were instructed. I am sceptical as to that explanation if the address of 13 Pomfrit Gardens is the address of his co-habitant. But it is unnecessary for me to reach a decision on that matter and whether delay ought to be excused since, in my judgment, this is a claim which is quite hopeless in any event.
13. Accordingly, I dismiss the application for permission.
14. MR BULEY: I am grateful. May I take instructions on two points? (Pause)
15. DEPUTY JUDGE: Mr Burrows, there is an outstanding application you issued a couple of days ago for the Family Proceedings Court to have its application for proceedings stayed. That falls. I think there was also an issue you wanted to raise

about whether the Department was entitled to have its costs assessed pending this hearing. That also falls with my decision.

16. MR BURROWS: It does.
17. DEPUTY JUDGE: It is an interesting point that might have to be argued in another case but not today.
18. MR BURROWS: It falls.
19. MR BULEY: It is something you have already done, but your closing remarks were that the case was hopeless. Can I ask for an indication that the claim was totally without merit?
20. DEPUTY JUDGE: Yes.
21. MR BULEY: The second point I just flag up; I do not know if it is something you need to say anything about. I mention it to see where we get to. As your Lordship knows, there are on-going proceedings for committal. It is just possible that this matter may sought to be taken further. The Agency's position at the moment would be that we would not be minded to agree to any further adjournment of those proceedings even if the claim were to be taken further, subject obviously to an order from the Court of Appeal saying that.
22. DEPUTY JUDGE: Unless Mr Burrows were to persuade me to grant permission to appeal the decision I have just made, I am functus as far as ordering a stay is concerned.
23. MR BULEY: Exactly. I think I flag up that we would not be minded to do so even if it were to be taken further.
24. Finally there is the matter of costs. Mr Justice McCombe made an order for costs to be assessed in respect of the order for service. I do not think therefore I need your Lordship to agree with that or to say anything further about it. We are content for them to be assessed. On the basis your Lordship has indicated it is hopeless, I would invite you to say - for reasons that you have already heard from me in relation to the previous case - that the costs of today also be ordered in principle. We ask for those to be assessed in this case.
25. DEPUTY JUDGE: I am not enthusiastic about putting matters off for a detailed assessment. Have you any schedule of your costs for today?
26. MR BULEY: I think we may do. I just have in mind that in this case an assessment has already been ordered by Mr Justice McCombe. It is going to happen anyway. We have a schedule. All I have is a front page summary.
27. DEPUTY JUDGE: What is your brief fee?
28. MR BULEY: My brief fee for today - it is not broken down. My total fee for two sets of pleadings and today is £1,500. That is for summary grounds, the response to summary grounds and today.
29. DEPUTY JUDGE: That is just for this case?
30. MR BULEY: On this case, yes.
31. DEPUTY JUDGE: That is £1,500?
32. MR BULEY: Yes.
33. DEPUTY JUDGE: How much of that is being claimed on the assessment that Mr Justice McCombe ordered?
34. MR BULEY: I can give you an approximate figure. It must be about a third of it, I think; so £500. I would just mention that notwithstanding you saying this case is hopeless, Mr Burrows has at different times raised a number of different points, including matters which have not been addressed today at all but were raised in the subsequent pleadings.
35. DEPUTY JUDGE: I am looking at your solicitor's bill and something in the order of £1,000 - 945 plus VAT - is claimed in counsel's fees.
36. MR BULEY: That sounds about right. I think, I hope, that is if I have understood your Lordship correctly.
37. DEPUTY JUDGE: Mr Burrows, what do you say about the costs of the hearing today?
38. MR BURROWS: The perception is - in one sense it is a trivial remark - if it was a hopeless case, perhaps the Secretary of State did not need to be represented. The bill as a whole - - - - -
39. DEPUTY JUDGE: I am not going to deal with the assessment of the acknowledgment of service matter. That is something you are going to answer in that detailed assessment. I am just asking you about two matters. The first is whether in principle you want to say anything about the costs of representation today. Secondly if you do want to say anything about that, what you would say about the amount.
40. MR BURROWS: The amount, I suppose, must be the £3,000 that is claimed for the solicitor's preparation, if you have the same document.
41. DEPUTY JUDGE: I have in mind, given that the information about the costs of today are rather thin, making an appropriately conservative estimate of costs today. I have £350 in mind.
42. MR BURROWS: I say no more, my Lord.
43. DEPUTY JUDGE: The costs of the acknowledgement of service have been ordered to be assessed by Mr Justice McCombe. That process will continue.
44. I consider that this was a hopeless application. The Department is entitled to have the costs of being present today. I have been assisted by the presence of counsel for the Department. I reject the submission from Mr Burrows that that was unnecessary. The information available as to the costs of today is on the thin side. Summary assessment is a rough and ready process. But I consider that the costs could not be less than £350, including any VAT element, and I order the claimant to pay those costs.