Scottish Sheriff Court Decisions

(B152/06)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

SECRETARY OF STATE FOR WORKS AND PENSIONS, CHILD SUPPORT AGENCY

Pursuer and Respondent

against

WALTER DYKES RUNCIMAN

Act: Hunter, Solicitor, Harper Macleod

Alt: Party

SELKIRK, 30 AUGUST 2007

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 12 June 2007.

(signed) EFB

NOTE:

1. On 12 June 2007 Mr Runciman, the appellant, was disqualified from holding or obtaining a licence to drive for a period of nine months by order of Sheriff Thornton sitting at Selkirk. The order was made on the application of the Secretary of State for Work and Pensions who is the Minister responsible for administering the Child Support Agency.

2. Section 39A of the Child Support Act 1991 contains a new provision which was introduced by the Child Support Pensions and Social Security Act 2000. In plain terms it enables the Secretary of State to apply to a Court for either a warrant committing a person to prison, or for an order for disqualification from holding a driving licence, in circumstances where a person has failed to make payments for child support maintenance.

3. These are draconian measures, and it is unsurprising that the circumstances in which either of these Orders can be made are clearly and rigidly defined. In summary these are (a) that the Secretary of State has obtained a liability order from the Sheriff Court (section 33); (b) that he has sought to enforce that order by service of a charge or arrestment (section 38); and (c) that there has been enquiry, in the presence of the liable person, as to whether he needs a driving licence to earn his living; his means; and whether there has been wilful refusal or culpable neglect on his part (section 39A). Section 40B provides that: "If, but only if, the Court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person it may order him to be disqualified, or make a disqualification order but suspend its operation until such time and on such conditions as it thinks fit".

4 The appellant is a farm worker, a partner in a family business. His work involves looking after stock, and also involves travel between two farms which the business operates. In his written grounds of appeal, and in his statement to the Court in support of the appeal, he founded on certain difficulties in carrying out this work without a driving licence, and drew attention to problems caused to stock through his inability to carry out herding and generally supervise the stock properly. He produced a letter from a Veterinary Surgeon in support of that. He also referred to the effect that a driving ban had on income to the family business, its effect on his elderly parents, and to the fact that he was waiting for a hernia operation and had been signed off work the night before the appeal hearing. Principally, however, he founded on the perceived absurdity of being banned from driving for failing to pay child maintenance when he had a clean driving licence, especially when all that lay between him and the Child Support Agency was a difference of £12.50 a week. He was repaying £50 while they wanted £62.50.

5. It is important to note what has brought Mr Runciman to this point. His liability to make payment of child maintenance support arose in 1999 at the latest. On 19 August 2005 the Secretary of State obtained a decree from Selkirk Sheriff Court in respect his liability to make payment of maintenance for the period from 24 March 1999 to 26 June 2001. That decree was in the sum of £5,056.25. It was to be paid by instalments of £70 per week made up of £62.56 as the regular child support maintenance and the balance to be credited to the accrued arrears. Mr Runciman did not maintain payments at the required rate. In consequence he was disqualified from driving for a period of three months on 7 March 2006. Between 6 October 2005 and 21 November 2006 he made payments totalling £2,825. However further arrears had accrued and a second decree was obtained for the sum of £4,921.24 on 29 March 2005 together with expenses of £1,116.70. The total sum outstanding as at 24 November 2006 was £8,426. Aside from the fact that the matter has been the subject of two Court decrees the Sheriff found, in finding in fact 18, that the appellant had failed despite requests on behalf of the Secretary of State, to furnish the Child Support Agency with information which might allow them to re-assess his liability to pay child support maintenance. That finding is amply supported by the narrative of evidence in the Sheriff's Note which records certain conversations between the appellant and representatives of the agency on 12 December 2005 and 9 September 2006 and correspondence from the Agency from that period seeking further information.

6. In the foregoing circumstances it is not surprising that Sheriff Thornton arrived at the conclusion that the appellant was wilfully refusing to make payment in terms of the liability order. Whilst it is plain that disqualification from driving will in the circumstances amount to considerable inconvenience to the appellant it is also clear that he does not "need" a driving licence to earn his living. That is the statutory test which has been properly applied by the Sheriff.

7. No attempt was made by the appellant to attack any of the Sheriff's findings in fact; his position might be summarised as questioning the reasonableness of the Sheriff's decision. All that the Sheriff has done however, is to apply the law as laid down by Parliament and it is quite clear that he has followed the statutory requirements with meticulous care. In that situation the appeal must be refused.

8. Only one matter falls to be added. In his Note the Sheriff makes reference to an unreported decision of Sheriff Ireland in Kilmarnock in Secretary of State for Works and Pensions v Thomas McNamara 12 October 2005. He expresses agreement with Sheriff Ireland that the Court requires to be satisfied "beyond a reasonable doubt" as to the liable person's wilful refusal or culpable neglect in terms of section 40A(1) or section 40B(1) of the 1991 Act before it can issue a warrant for committal to prison or a disqualification order. That view was expressed on the basis that neither imprisonment nor disqualification from driving are "civil penalties". This was not the subject of any debate before me and I express no concluded view upon it, but I do entertain some reservations as to whether the concept of proof beyond reasonable doubt is appropriate at all in civil proceedings of this nature. It is however plain on any view that there is a difference in the tests desiderated in sections 40A and 40B. Section 40A authorises issue of a warrant for committal to prison "if, but only if, the court is satisfied that there has been wilful refusal or culpable neglect." (my emphasis). Section 40B by contrast authorises an order for disqualification "if, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect". It may be that "satisfaction" can be equiperated to satisfaction beyond reasonable doubt whilst an "opinion" can be formed on the balance of probabilities. Whether that be the correct view or not there is certainly a difference, the test for an Order for disqualification being less exacting.

(signed) EFB