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
		16 July 2008

Mr Justice Underhill

1. There are before me two appeals by way of case stated raising similar points about the powers of a  Magistrates' Court when asked to make a liability order under Section 33 of the Child Support Act 1991.  As it stood at the material times, Section 33 read as follows:

"Liability orders

(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 assessment 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 sub section (2), the court or (as the case may be) the sheriff shall not question the maintenance assessment, maintenance calculation under which the payments of child support maintenance fell to be made."

2. The material circumstances in each case can be summarised as follows:
3. Learad  The respondent, Mr Dennis Learad, was the father of a daughter called A.  A maintenance assessment made pursuant to section 4 of the Act was in force against the respondent in relation to A between 22 May 2000 and 7   January 2003.  The respondent was, as the district judge found, throughout the period in question habitually resident in South Africa.  No payments were made pursuant to that assessment.  In due course the Agency made an application to the North East Derbyshire and Dales Magistrates' Court for a  liability order in the sum of £15,250.01.  On 3 August 2006 that application was refused by the district judge on the basis that on his view of the law, which was common ground between the parties before him, a liability order could only be made in respect of a period during which the respondent was habitually resident in the United Kingdom.  That view was based on the terms of Section 44 (1) of the Act which provides as follows:

"(1) The Secretary of State shall have jurisdiction to make a maintenance assessment with respect to a  person who is 

(a) a person with care;

(b) an absent parent; or

(c) a qualifying child

only if that person is habitually resident in the United Kingdom, except in the case of a non resident parent who falls within sub section (2A)."

Sub section (2A) has no relevance in the present case.

4. Buddles  A maintenance assessment against the respondent, Mr Paul Buddles, again pursuant to Section 4 of the Act, was in force from 18 April 1995 in respect of a girl called K.  No payments were made pursuant to that assessment.  The Agency applied to the Alnwick Magistrates' Court for a liability order.  An order was refused by the justices because they were not satisfied by the evidence which they had heard that the respondent was indeed K's father.  A maintenance assessment can of course only validly be made against a parent of the child in question. 
5. In each case, therefore, a liability order was refused on a basis which, if correct, meant that the original maintenance assessment was wrongly made.  It is, and was, the Agency's case that such reasoning is precluded by the terms of section 33 (4), which I have set out above, because it necessarily involves "questioning" the original maintenance assessment.  That is said to have been authoritatively established by the decision of the House of Lords in Farley v Secretary of State for Work and Pensions (No 2) [2006] UKHL 31; [2006] 1 WLR 1817.  The facts and the decision in that case adequately appear from the headnote, which is in the following terms:

"The Secretary of State applied to the justices  under section 33 (2) of the Child Support Act 1991 for a liability order against a non resident father in respect of unpaid sums of child support set out in three maintenance assessments.  The father accepted that the amounts set out were unpaid and outstanding but submitted that the maintenance assessments were not lawfully made so that he was not a liable person and that the justices could not be satisfied that the payments alleged to be outstanding had become payable.  The justices held that by virtue of section 33 (4) of the Act they had no power to inquire into the question as to whether the Secretary of State had authority to make the maintenance assessments sought to be enforced, and accordingly made the liability order.  The judge dismissed the father's appeal by way of case stated.  The Court of Appeal granted the father leave to apply for judicial review of the justices' decision, granted his application for judicial review, and declared that the judge and the justices were wrong in law, and that the justices had an adjudicative function on whether the non resident parent was a liable person and, where appropriate, they were required to seek evidence to show that liability.

On appeal by the Secretary of State 

Held, allowing the appeal, that on the face of the language of section 33 (4), read in the context of the section as a whole, the magistrates' court had to proceed on the basis that the maintenance assessment in question was lawfully and properly made, and was precluded from questioning the assessment of any aspect of it; that the function of the magistrates' court was to check that the assessment related to the defendant brought before the court and that the payments in question had become payable and remained unpaid; that section 3 (4) was not an ouster provision, but was part of a statutory scheme which allocated jurisdiction to determine the validity of an assessment to a court other than a magistrates' court; that therefore section 33 (4) did not have to be interpreted with the strictness appropriate to a provision which purported to exclude the jurisdiction of the court to determine whether an order made by a government minister was a nullity; that the 1991 Act, in both its original and amended form, provided effective means whereby an absent parent could challenge the Secretary of State's jurisdiction to make a maintenance assessment; and that, accordingly, there was no justification for reading section 33 as requiring or permitting the magistrates' court to entertain such a challenge."

The only substantive speech was given by Lord Nicholls.  I need only read paragraph 16, which is in the following terms:

"The meaning and effect of section 33 (4)

16 To my mind the language of section 33 (4), read in the context of the section as a whole, on its face admits of only one interpretation: on an application for a liability order the magistrates' court must proceed on the basis that the maintenance assessment in question was lawfully and properly made.  The court is precluded from questioning that assessment.  It is precluded from questioning any aspect of the assessment.  The magistrates' court function is to check that the assessment relates to the defendant brought before the court and that the payments in question have become payable and have not been paid.  The court is not required to receive evidence that the assessment was made pursuant to an application satisfying the pre requisites set out in sections 4 to 6."

6. Farley had been recently decided at the time of the  hearing before the district judge in Learad, but it was not drawn to his attention:  as I have said, the parties were agreed as to what they understood the law to be.  It was cited in Buddles but the justices held that it did not apply in the circumstances  of that case. 
7. The questions raised by the two cases stated are as follows. 

Learad:

"(a) Did I err in law in refusing the liability order on the basis that the respondent was not habitually resident in the United Kingdom for the period in respect of which the liability order was sought when the appellant agency had already determined, in accordance with Section 44 of the Child Support Act 1991, that the respondent was habitually resident in the United Kingdom for that period?

(b) Was I precluded from questioning whether a maintenance assessment was lawfully and properly made and from questioning that assessment?"

Buddles

"(a) Whether the justices misdirected themselves in law in refusing to make a liability order against Mr Buddles, pursuant to section 33 of the Child Support Act 1991, on the grounds that he was not the liable person.

(b) Whether in view of section 33 (4) of the Child Support Act 1991, which precludes the court from questioning the maintenance calculation under which the payments of the child support maintenance fell to be made, the justices erred in law in deciding that Mr Buddles was not the liable person when the Child Support Agency had already determined that Mr Buddles was the liable person.

(c) Whether the facts in the case of Farley v Secretary of State for Work and Pensions No 2 in which it was decided the magistrates are precluded from questioning whether a maintenance assessment was lawfully and properly made, could be distinguished from the facts in Mr Buddles' case sufficient to justify the justices' inability to determine that he was the father and therefore the liable person, and therefore their decision not to make a liability order."

8. In both appeals before me the agency is represented by Mr Tim Buley of counsel.  Mr Buddles is represented by Miss Katherine Wood of counsel.  There is no appearance on behalf of Mr Learad.  I should say that he wrote a letter to the Agency's solicitor, undated but received by the solicitor on 14 May 2007, making various points about the appeal, of which he had been given notice, and expressing the hope that that letter would be put before the court, as it very properly has been.  I have paid full attention to its terms and will be referring to it again in due course. 
9. There is a preliminary question of some importance in Learad.  Both the Agency and Mr Learad were represented before the district judge.  As already noted, it was common ground between the representatives that it was for the district judge to determine whether Mr Learad was habitually resident in South Africa and that his decision on that point was capable of being determinative of the application for a liability order.  Presumably the representatives were relying on the decision of the Court of Appeal in Farley and had simply failed to note its reversal by the House of Lords, surprising as that might appear, at least in the case of the Agency's representative.  The Agency wishes now to go back on that concession.  Whether an appellant should be permitted to advance a new point of law not taken in the court below is a matter for the court's discretion (see Wilson v Liverpool Corporation [1971] 1 WLR 302).  The classic statement is that of Lord Justice Widgery at page 307 G H, where he said:

"It seems to me therefore that this case is within the well known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally without injustice to the other party, and without recourse to a further hearing below."

10. Mr Buley submits that I should exercise my discretion in the Agency's favour, essentially because the point raised by this appeal is one of pure law which will not require any further evidence and which I am in as good a position to determine as the district judge.  He also submits that it would be wrong that the former Mrs Learad should be deprived of the chance of recovering a substantial award by what appears to have been the incompetence of the Agency's representative. 
11. I have not found this point straightforward.  Mr Learad's letter, to which I have referred, states in clear terms not only that he was habitually resident in South Africa throughout the period covered by the maintenance assessment but also that he had been making regular payments of maintenance to his wife throughout that period and, more pertinently, that he had also been making payments for the benefit of A until 2002 when she came to live with him in South Africa and attend college there.  He also says that there is no prospect in practice that any order would be enforced by the South African courts.  If the contents of that letter are correct it would seem, on the face of it,  neither just nor sensible that these proceedings should be in effect revived.  If the district judge made a mistake it was a happy accident that produced the right result by the wrong route.
12. Mr Buley tells me that the Agency has given express consideration to the terms of the letter and also that it has consulted with the former Mrs Learad.  Having done so, it has reached the conclusion that the contents of the letter ought not to prevent it from continuing with these proceedings.  He was unable to tell me any details of the Agency's thinking or to what extent the facts stated by Mr Learad are disputed, save that it appears that the former Mrs Learad does not accept what he says about the receipt of maintenance payments.  Nevertheless in the light of that I do not feel able to exclude the real possibility that the sums sought may indeed be both payable and practically recoverable.  If that is so,  the points which Mr Buley makes in support of the exercise of the discretion in favour of the Agency seem to me to be powerful.  On balance therefore I believe I should allow this point to be taken.  I will revert at the end of this judgment to Mr Learad's representations in his letter. 
13. I turn therefore to the point of substance.  In my view, the Agency's case is plainly correct.  In both cases the magistrates' decisions involve the "questioning" of the original assessment in a way which is impermissible by reason of Section 33 (4): in Learad by finding that the assessment should not have been made because Mr Learad was not habitually resident in the United Kingdom, and in Buddles by finding that it was not established that Mr Buddles was K's father.
14. Miss Wood argued that the basis of the justices' decision in Buddles was that it had not been proved that the respondent was "the party liable".  She invoked Lord Nicholls' reference in paragraph 16 of his speech in Farley to it being part of the magistrates' role "to check that the assessment relates to the defendant brought before the court".  She also referred to the wording of the first of the three questions referred by the justices which at least, if read in isolation, appears to suggest that they had a doubt about whether Mr Buddles was indeed the party liable.  However it is perfectly clear from the case stated read as a whole, and indeed from the language of questions (b) and (c), that there was never any issue before the justices as to  whether the Mr Buddles against whom the liability order was being sought was the same Mr Buddles who was the subject of the maintenance assessment.  It is only to that potential  question that Lord Nicholls was referring in the passage in question.  The basis of the justices' decision was not that they entertained any doubt about that question but was rather their finding that it had not been proved that Mr Buddles the subject both of the maintenance assessment and the application for a liability order was K's father. That issue was one on which it was not open to them to make any determination. 
15. I will accordingly quash the decisions in both cases and remit the applications to the justices formally to determine the limited questions which in the light of Farley it falls to them to decide. 
16. In the case of Buddles it does not seem in practice, once the right question is addressed, that there is any room for dispute.  Miss Wood reminded me of Lord  Nicholls' observations in paragraph 33 of his speech in Farley that in a case where the question of whether the maintenance assessment was rightly made is the subject of an  appeal it may well be appropriate for the court to adjourn the application for a liability order pending the  determination of that appeal.  Although in the respondent's  case the assessment was made many years ago, it is apparently his case that he was never served with that assessment, in which case, so I am told, the time for appealing has not expired   or it may be (and this is the way it has been put by his solicitors) that he is entitled to apply for a "remission of arrears".  I of course make no order about any of these matters.  I merely note that the justices may be asked to consider whether this is an appropriate case for taking the course discussed by Lord Nicholls in the paragraph to which I have referred.
17. In the case of Learad it is possible, I emphasise "possible", that there may be a question which is properly for the magistrates as to whether Mr Learad has made any payments which can count towards his obligations under the assessment, although my understanding is that even if he has, as he claims, made some maintenance payments during the period in question they will not necessarily count for the purpose of the statute.  Even if, however, the Agency is formerly entitled to a maintenance order, I would encourage it to consider again with some care the contents of Mr Learad's letter and the observations from the former Mrs Learad.  If the letter is correct in saying that she has had all the contribution to A's maintenance that she expected or agreed, they would not be obliged to pursue the application for a liability order.  But if they are satisfied by what they learn from Mrs Learad that that is not so, they are of course fully justified in pursuing the application.
18. MR BULEY:  In terms of any order, I do not know if you want me or my friend to draft something up.  It may be you have adequately dealt with that in the judgment.
19. MR JUSTICE UNDERHILL:  I think it is a fairly straightforward order.  It is the associate who you should be asking.  If it is a sort with which he is familiar he would be happy to do it.  I am sure he would be grateful to have your help.  (Judge confers)
20. MR BULEY:  The only other matter that arises is that I have an application for costs in both matters.  I appreciate that your Lordship may look at the two cases slightly differently.   First, in the Buddles case do you have a copy of a schedule?
21. MR JUSTICE UNDERHILL:  I do.  Foolishly I left it in my room.
22. MR BULEY:  I will hand up a copy.  I think I am entitled to add my fee for today divided between the two cases; that is an extra £220 to each.  So that is 440 all together.
23. MR JUSTICE UNDERHILL:  Let us deal with the principle.  Miss Wood, unless there is something of which I am unaware in this particular line of business, the agency must be entitled to its costs.
24. MISS WOOD:  I accept costs follow the event.  The only comment I would make is that clearly Mr Buddles is facing a significant  bill in relation to the liability order.  I question whether it is just to add to that.  Whilst I accept that the case that has been brought today by the Child Support Agency has succeeded, it is a question as to whether in all the circumstances it would be right to add to what is going to be a large debt bearing in mind it goes back to 1995.
25. MR JUSTICE UNDERHILL:  It is not really a material consideration.  It may be relevant to the figure, the terms on which it is enforced but I cannot say that is a reason why I should not award costs.  He took this point and it was a bad point.  As to quantum, you have had a chance to look at this.  On the whole   it is not Treasury Solicitor   Government departments' bills, compared with commercial solicitors, are modest.  This does not seem to me to be outrageous even when one adds Mr Buley.
26. MISS WOOD:  I had intended to say that the overall sum was disproportionate may be, perhaps with a degree of resistance by the court.
27. MR JUSTICE UNDERHILL:  That is right.  I will order that the respondent pay the appellant's costs summarily assessed in the sum   assuming my arithmetic is correct   of £2,627 within, I will say, 28 days to give you a chance to make some meaningful proposals.
28. In the case of Mr Learad, it strikes me as though the agency brought this problem on themselves by not taking a point which, if they had taken it, I am sure would have resulted in them         
29. MR BULEY:  We might not have needed these proceedings.
30. MR JUSTICE UNDERHILL:  Yes.
31. MR BULEY:  I take your point, my Lord.
32. MR JUSTICE UNDERHILL:  Unless you are to be very persuasive, you will not have much chance in persuading me to make an application for costs.
33. MR BULEY:  I am content to leave it.  I make the application.  I leave it at that   matter of costs.
34. MR JUSTICE UNDERHILL:  No order for costs in the case of Learad.
35. MR BULEY:  Just for the associate, I think the associate has which way around it is; it is going to be quite important.
36. MR JUSTICE UNDERHILL:  Did I say         
37. MR BULEY:  You said the respondent.  So it is Mr Buddles who should pay the sum of £2,627.  No order in other.