The Child Support Act 1991 (“the 1991 Act”) vested in the Secretary of State responsibilities for the assessment, review, collection and enforcement of maintenance payments in respect of children. These responsibilities are discharged on his behalf by the Child Support Agency (“CSA”). The fourth claimant is the mother of the first three claimants. At all material times, the first three claimants were “qualifying children” within the meaning of section 3(1) of the 1991 Act. The fourth claimant made an application to the CSA pursuant to section 4 of the 1991 Act for child maintenance for the children from their non-resident father. Complaints were made by the claimants about (i) the way in which the child support maintenance was assessed (i.e. the amount of the assessed liability); (ii) the time taken to assess maintenance (including the conduct of appeals); and (iii) the collection and enforcement of the obligation to pay maintenance.

The complaints form the basis of claims for damages for negligence which are the subject of these proceedings. The Secretary of State applied to strike out the claims under CPR 3.4, alternatively for summary judgment under CPR 24.2. His Honour Judge Grenfell QC struck the claims out. He considered that, in the light of the analysis by the House of Lords in R(Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42, the claims were bound to fail. This was because a common law duty of care owed by the Secretary of State to the claimants would be inconsistent with the statutory scheme created by the 1991 Act. The claimants appeal with the permission of Brooke LJ. On behalf of the claimants, Mr ter Haar QC and Mr de Mello submit that this court should not decide the question of whether a duty of care is owed on the basis of the pleaded case alone. They submit that the question should be decided after a trial when the relevant facts have been found. I shall deal with this preliminary submission when I have summarised the relevant statutory provisions and referred to the pleaded facts.

The background is described by Ward LJ in Kehoe [2004] EWCA Civ 225, [2004] QB 1378: see paras 17-20 of his judgment. Under the law as it stood before the enactment of the 1991 Act, a parent with responsibility for the care of a child had a right to recover financial support for the maintenance of the child from the other parent. That right was vindicated by obtaining maintenance orders from the court. This system was considered by the government to be unsatisfactory for the reasons stated in the White Paper, “Children Come First” Volume 1 (Cm 1264) which was presented to Parliament in October 1990. In short, it was said that the existing system was “unnecessarily fragmented, uncertain in its results, slow and ineffective….In a great many instances, the maintenance awarded is not paid or the payments fall into arrears and take weeks to re-establish” (para 2 of the summary). It was, therefore, proposed to create a CSA which would have the responsibilities for the assessment, review, collection and enforcement of maintenance payments, with powers to collect information on incomes and obligations, make a legally binding assessment of what was payable, determine methods of payment, monitor and, where necessary, collect maintenance and enforce payment where payments failed: see para 6 of the summary. The proposal was for what was aptly described by Hale LJ in Huxley v Child Support Officer [2000] 1 FLR 898, 908 as a “nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child”.

Sections 1 and 2 emphasise that the statute has been enacted for the benefit of children. Thus section 1 provides:

Section 2 provides that where the Secretary of State is considering the exercise of any discretionary power conferred by the Act, he shall have regard to the welfare of any child likely to be affected by his decision.

Section 4 provides:

Section 6 obliges a person with care who is in receipt of benefit (e.g. income support) to authorise the Secretary of State to take action under the Act unless the consequence would be a risk of that parent, or any child living with her, suffering harm or undue distress as a result.

Section 8 makes a number of detailed provisions prescribing the role of the courts with respect to maintenance for qualifying children. Section 8(3) provides that, in any case where the Secretary of State would have jurisdiction to make an assessment with respect to a qualifying child and an absent parent of his, “no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child or absent parent concerned”. But section 8(3) does not prevent a court from revoking a maintenance order (subsection (4)). Nor does it prevent a court exercising any power it has in the circumstances described in subsections (6),(7),(8) or (10). Subsection (6) preserves the power of the court to order the making of periodical payments by the absent parent in addition to the child support maintenance payable by him in accordance with the assessment made by the Secretary of State. Subsection (7) preserves the power of the court to make a maintenance order in relation to a child for the purpose of requiring the person making or securing periodical payments fixed by the order to meet expenses incurred in connection with the provision of instruction at an educational establishment or training. Subsection (8) preserves the power of the court to make a maintenance order in relation to a child if a disability living allowance is paid to or in respect of the child, or he is disabled and the periodical payments ordered to be paid are fixed to meet some or all of the expenses attributable to the child’s disability. Subsection (10) preserves the power of the court to make a maintenance order in relation to a child if the order is made against a person with care of the child.

Section 9(2) provides that nothing in the Act shall be taken to prevent any person from entering into a maintenance agreement.

Section 11 provides for the Secretary of State to make maintenance assessments in accordance with the formulae set out in Part 1 of Schedule 1 to the Act. Section 12(1) provides that where the Secretary of State is required to make a maintenance assessment and it appears to him that he does not have sufficient information to enable him to do so, he may make an interim maintenance assessment.

Section 20(1) provides that where an application for a maintenance assessment is refused, the person who made the application has a right of appeal to an appeal tribunal against the refusal. Section 20(2) provides that where a maintenance assessment is in force, the absent parent or the person with care with respect to whom it was made has a right of appeal to an appeal tribunal against the amount of the assessment or the date from which the assessment takes effect. Section 24 provides for an appeal to a Child Support Commissioner against a decision of an appeal tribunal on a question of law. Section 25 provides that an appeal on a question of law shall lie to the appropriate court from any decision of a Child Support Commissioner.

Sections 29 to 41 make detailed provisions in respect of the collection of child support maintenance and the enforcement of obligations to pay maintenance in accordance with assessments. The Secretary of State may make a “deduction from earnings order” (section 31(2)). He may apply to a magistrates’ court for a “liability order” against a person who fails to make child support payments that he is liable to make. There is no right of appeal against a decision made by the Secretary of State as to the manner of collection of payments or enforcement of obligations to pay.

Section 41 makes provision for arrears of child support maintenance. As originally enacted, it included subsections (3) to (6) which dealt with payment of interest. Subsection (3) provided that “in such circumstances as may be prescribed, the absent parent shall be liable to make such payments of interest with respect to the arrears of child support maintenance as may be prescribed”. Subsection (4) provided that the Secretary of State may by regulations make provision inter alia as to the rate of interest payable by virtue of subsection (3), and the time at which, and person by whom, any such interest shall be payable.

Provision for the payment of interest was introduced by regulations 2 to 8 (Part II) of the Child Support (Arrears, Interest and Adjustment of Maintenance Assessment) Regulations 1992 (S.I. 1992/1816). But regulation 4 was amended by S.I. 1995/1045 so that interest ceased to be payable in respect of any day after 17 April 1995.

Section 41(3) to (5) were repealed prospectively by section 18 of the Child Support, Pensions and Social Security Act 2000 (“the 2000 Act”). Section 41A was introduced into the 1991 Act by the Child Support Act 1995 and a different version of section 41A was inserted by the 2000 Act. Both versions provided for dealing with arrears of maintenance payments by other means than interest payments. It is not necessary to describe the details.

Section 46A was inserted into the 1991 Act by Schedule 7, para 44 of the Social Security Act 1998. It provides:

The fourth claimant is the mother of the first, second and third claimants. The first claimant was born in 1987. She suffers from cerebral palsy and has special needs. From 1998, she became paralysed and is registered as disabled. She and her two siblings lived with their mother in the family home as her dependent children. In 1997, the father left the matrimonial home. He and the fourth claimant were divorced in February 2000.

On 19 December 1997, the fourth claimant made an application pursuant to section 4 of the 1991 Act for maintenance for the benefit of the children. In October 1997, the claimants went to live with the fourth claimant’s sister. This was because the fourth claimant was unable to afford to live in the matrimonial home without reasonable maintenance payments for the children and for herself. The amended particulars of claim set out the detailed history of what the claimants allege to have happened thereafter. It is not necessary to set this out. The most important allegations are that the Secretary of State acted negligently in that the CSA (i) delayed in carrying out the maintenance assessment; (ii) obtained inadequate information on which to base the assessment; (iii) made interim and final assessments that were wrong; (iv) delayed in enforcing the assessments; and (v) delayed in dealing with the claimants’ appeal against the assessment.

It is alleged that the first claimant suffered psychological harm because she was unable to reside at the matrimonial home after September 1987 and was deprived of regular maintenance payments. This injury was caused by the delay on the part of the CSA in securing for her the correct level of maintenance payments and arrears from the father.

The claimants also allege that they suffered special damage which arose in the following way. The fourth claimant was forced to sell the matrimonial home in July 1999 at an undervalue because it had been left vacant since September 1997. The claimants were deprived of their home during this period. They also claim loss of regular maintenance payments from December 1997 by reason of the CSA’s failure to assess and recover maintenance payments from the father and interest on these payments.

Mr ter Haar and Mr de Mello submit that this is not an appropriate case for a strike out application. They rely on statements of the highest authority to the effect that, in a difficult and developing area of the law (such as the question of whether a public authority owes a common law duty of care), it is unsatisfactory to decide issues of law on assumed facts. In Barrett v Enfield Borough Council [2001] 2 AC 550, 557, Lord Browne-Wilkinson said that it is of great importance that in a developing and uncertain area of the law “the development should be on the basis of actual facts found at trial, not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out”. To similar effect in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057, Lord Steyn said at para 2 that the subject of negligence and statutory duties and powers is one on which “an intense focus on the particular facts and on the particular statutory background, seen in the contours of our social welfare state, is necessary”.

I acknowledge the force of these statements. There are many cases where it is inappropriate to decide the question whether a public authority owes a common law duty of care without a full consideration of the facts which can only be undertaken at a trial. But there are some cases where it is possible to decide the question without a trial. Such a case is one where it is clear that, even if it is assumed in the claimant’s favour that all the facts that he or she alleges are true, the claim must fail: see the approach to this issue taken by Lord Rodger of Earlsferry in D v East Berkshire Community NHS Trust [2005] UKHL 23, [2005] 2 AC 373 at para 99. The Secretary of State submits that this is such a case.

An important feature of this case is that the claimants do not rely on any particular facts in support of their case that the Secretary of State owed them a common law duty of care in discharging his functions under the 1991 Act. Their case is that the duty of care arose from the performance of those functions alone. They do not say that a relationship was created between the Secretary of State and themselves other than one which arises in every case from the very performance of his statutory duties and exercise of his statutory powers. In these circumstances, I do not see how findings of fact made at a trial would assist in determining whether a duty of care was owed to the claimants. During the course of argument, Mr ter Haar suggested that a trial is necessary to enable the court to have a proper appreciation of the extent to which other remedies to compensate victims of the CSA’s incompetence are effective. He referred to the Parliamentary Commissioner for Administration (“the Ombudsman”) and the ex gratia compensation scheme which is described in the policy document known as “Financial Redress for Maladministration Guide” (“FRMG”) for persons who have suffered financial loss as a result of maladministration by the CSA. He submitted that this could be a relevant factor in deciding whether a duty of care was owed by the Secretary of State.

In my judgment, however, the efficacy of these alternative remedies (in so far as it is relevant at all) should be judged by what they purport to provide rather than how effectively they work in practice. The existence of a duty of care cannot depend on the vagaries of how effective an alternative remedy may be from time to time.

In my view, this is a case which is suitable for a strike-out application. There is no area of factual enquiry which needs to be undertaken before the question of law raised by this appeal can be decided. I turn, therefore, to consider that question of law.

What follows is a brief outline of the principal submissions made on behalf of the claimants and by Mr Richard Drabble QC on behalf of the intervener. They submit that an application of the incremental test and/or the three-fold Caparo test (Caparo Industries plc v Dickman [1990] 2 AC 605) should lead to the conclusion that a duty of care is owed by the Secretary of State in the performance of his statutory functions of the assessment of child support maintenance, collection of maintenance and the enforcement of obligations to pay. Alternatively, they submit that in the case of a paradigm application to the CSA (such as occurred in the present case), there is a sufficient assumption of responsibility by the Secretary of State to give rise to a duty of care.

As regards the incremental test, it is submitted that the CSA scheme is an alternative to claiming child support through the courts. There can be no doubt that a solicitor (or other adviser) employed prior to 1991 to recover maintenance on behalf of a child owed a duty of care to the child and to the parent seeking the maintenance. That duty would have extended to making enquiries necessary to obtain all reasonably obtainable information so as to assess what maintenance should be claimed, taking all reasonable steps to pursue the claim for maintenance as expeditiously as possible and to enforce any order obtained. The CSA’s role in obtaining maintenance for the benefit of qualifying children is directly analogous to that of such a solicitor. Accordingly, on the basis of an incremental approach the court should decide that a duty of care is owed by the Secretary of State in the discharge of his functions under the 1991 Act.

As regards the threefold Caparo test, it is submitted that foreseeability and proximity are readily established. More debatable is the third limb of the test. The starting point is the description of the rule of public policy by Sir Thomas Bingham MR in M v Newham London Borough Council [1995] 2 AC 633, 663D that “it would require very potent considerations of public policy….to override the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied”. This statement was approved by Lord Browne-Wilkinson in X v Bedfordshire County Council [1995] 2 AC 633, 749G. Mr ter Haar also prays in aid two statements made in Smith v Secretary of State for Work and Pensions [2006] UKHL 35, [2006] 1 WLR 2024. At para 65, Lord Walker of Gestingthorpe said (without deciding the point) that he saw “considerable force” in the submission that a state which prevents a person with care of a child from claiming maintenance from an absent parent through the ordinary court system must “be under a positive obligation to provide an effective alternative system of child support”. Baroness Hale of Richmond made the same point at para 77.

It is submitted that there are no good reasons for denying the existence of a duty of care. Unlike some cases, there is no basis for saying that the issues sought to be raised are non-justiciable because they involve questions of policy: see Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 WLR 2312 at para 21. The fact that there is a right of appeal against maintenance assessments which are wrong and a right to seek judicial review in respect of failures to collect maintenance and enforce obligations to pay is not a sufficient reason for holding that it is not fair, just and reasonable for a duty of care to exist. To the extent that Jones v Department of Employment [1989] 1 QB 1 decided otherwise, it is a decision on a different statute and, therefore, not strictly binding on this court: for Jones, see further paras 39-45 below. The position of the adjudication officer in Jones is fundamentally different from that of the CSA. In any event, it cannot stand with subsequent House of Lords authority to the effect that the existence of alternative remedies is not necessarily a factor which militates against the existence of a duty of care: see, for example, Barrett v Enfield London Borough Council [2001] a AC 550, 589F-G, and Phelps v Hillingdon London Borough Council [2001] 2 AC 619, 672D-E. The appeal process and judicial review will not necessarily produce a remedy for the victims of the CSA’s blunders. The FRMG ex gratia compensation scheme is not a good reason for holding that the Secretary of State owes no duty of care to those who suffer loss as a result of the incompetence of the CSA. It provides modest redress in limited circumstances; it is discretionary; it did not come into force until 2001 and it does not have statutory underpinning.

Finally, it is submitted that when the CSA responds to an application under the statutory scheme, there is an assumption of responsibility by the Secretary of State sufficient to give rise to a duty of care. Mr ter Haar relies on the fact that an applicant is not obliged to have recourse to the CSA. For example, she may make a maintenance agreement with the absent father. She may seek maintenance from the court for herself as a spouse to include maintenance for her dependent children if she undertakes that she will apply the relevant part of the maintenance ordered to be paid to the support of the children. It follows that in every case where a parent with care makes an application under section 4 of the 1991 Act, the Secretary of State voluntarily assumes responsibility and owes a common law duty of care. Mr de Mello puts the case on assumption of responsibility somewhat differently. He says that the officers of the CSA are trained and persons who exercise professional skill. They have special expertise in assessing, collecting and enforcing obligations to make maintenance payments on which persons affected by their decisions reasonably rely. That is why they assume responsibility for the performance of their statutory functions.

Mr ter Haar submitted in the further alternative that, even if (contrary to his primary case) there was no duty of care to safeguard children from economic loss, there was a duty to take care to safeguard them from personal injury. On the pleaded facts of the present case, the first claimant has suffered psychiatric injury as a result of the incompetence of the CSA.

I do not propose to summarise the submissions of Mr Giffin QC in this part of my judgment. As will become clear, I reject the submissions made on behalf of the claimants and the intervener to a large extent (although not entirely) for the reasons advanced by Mr Giffin.

Two decisions have been the subject of close analysis during the argument before us. These are Kehoe and Jones. It is necessary to refer to these decisions in a little detail. Mr Nigel Giffin QC contends that they both support his submission that the Secretary of State does not owe a common law duty of care. As I have said, Judge Grenfell regarded Kehoe as determinative: “the claims brought by Mrs Rowley…cannot succeed in the face of clear House of Lords authority” (para 20).

In Kehoe, the applicant applied to the CSA under section 4 of the 1991 Act for a maintenance assessment in respect of her four children to be made against her former husband. She was dissatisfied with the CSA’s performance both in relation to the assessment and its attempts at enforcement. She brought judicial review proceedings against the Secretary of State seeking a declaration under section 4(2) of the Human Rights Act 1998 that section 8 of the 1991 Act excluding the jurisdiction of the court was incompatible with article 6(1) of the European Convention on Human Rights. Her application was dismissed (Baroness Hale dissenting).

The claimants’ complaints about the performance of the CSA were similar to those made in the present case. Lord Bingham of Cornhill summarised them at para 1 of his opinion as being that “the process of obtaining payment was protracted and difficult and substantial arrears built up from time to time”: see also per Lord Hope of Craighead at para 19.

At para 6, Lord Bingham said:

At para 30, Lord Hope said that the effect of the 1991 Act was “to replace the existing statutory framework with an entirely new scheme”. At para 35, he said:

Lord Walker said at para 45:

Lord Brown of Eaton-under Heywood said at para 79:

The plaintiff’s claim for unemployment benefit was disallowed by an adjudication officer, but allowed on appeal. The plaintiff thereupon began an action in negligence against the Department of Employment alleging that the adjudication officer, as its employee, had reached his decision negligently. The defendant applied unsuccessfully to strike out the proceedings. On appeal, he argued that section 117(1) of the Social Security Act 1975 (as amended) excluded any common law right of action in negligence relating to the making of a decision by an adjudication officer and that an adjudication officer owed no duty of care at common law to a person whose claim he was considering. The appeal was allowed.

Section 117(1) as amended provided:

Glidewell LJ allowed the appeal on both the narrower and the broader ground relied on by the Department. The narrower ground was that the action:

The broader ground was it was not just and reasonable that the adjudication officer should owe a common law duty of care. Glidewell LJ said at p 22B:

Slade LJ said that he agreed that the appeal should be allowed for “much the same reasons as those given by Glidewell LJ” (p 22F). At p 25B, he said that “it would be contrary to the wording of section 117(1) and the intention of the Act of 1975 as a whole to hold that an adjudication officer owed any duty of care to a claimant…and that it is open to a claimant to challenge the correctness of his decision by bringing an action in negligence”. That was the basis on Slade LJ allowed the appeal.

But Slade LJ did express his view on the broader ground as well. He said (p 25C-G) that it would not be fair, just and reasonable to impose a duty of care because the statutory appeal procedure for practical purposes provided a disappointed claimant with a perfectly adequate remedy for recovery of unemployment benefit properly due to him. Further, in the context of the legislation, under which there were likely to be many thousands of citizens who rightly or wrongly consider themselves aggrieved, it would make no sense to hold that it was open to a disappointed citizen to challenge the decision by bringing a claim for damages for negligence. In more general terms, Slade LJ agreed with Glidewell LJ that ordinarily, and subject of course to the particular provisions of the relevant statute, a government officer or department who or which is charged by statute with deciding whether certain payments should be made out of public funds and is subject to a statutory right of appeal against such decisions, will owe no duty of care to potential recipients in private law.

Caulfield J agreed with both judgments.

The first claimant seeks damages for psychological injury. But in the overwhelming majority of cases, the loss suffered by a person as a result of incompetence on the part of the CSA will be pure economic loss. It is convenient, therefore, to start by considering whether a common law duty of care is owed not to cause pure economic loss. The general approach to the question whether a duty of care not to cause such loss exists has been considered by the courts on a number of occasions in recent years. Perhaps the most helpful general statement is that of Lord Bingham in Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28, [2007] 1 AC 181 at para 4:

He went on to make five general observations:

Where the question is whether a public authority owes a common law duty of care, it is also necessary to consider (i) whether to impose a duty of care would be inconsistent with the statutory scheme under which it is acting, and (ii) the relevance of the fact (if it be the case) that the statute confers no private law right of action for breach of statutory duty.

Two points need to be emphasised about the present case. First, it is accepted on behalf of the claimants and the intervener that the statutory duty created by the 1991 Act does not give rise to a private law right to sue for breach of statutory duty. Secondly, as I have already said, no facts are relied on in support of the duty of care beyond the statutory scheme itself and the Secretary of State’s performance of his functions under the scheme. With these two points in mind, I shall consider whether the Secretary of State owes a common law duty of care to persons with care of qualifying children and/or to qualifying children on the basis of (a) a voluntary assumption of responsibility, (b) an application of the “incremental test” or (c) an application of the threefold Caparo test.

The principal reason advanced by Mr ter Haar to support the argument that the Secretary of State owes a duty of care on the grounds of an assumption of responsibility is that the person with care is not obliged to have recourse to the 1991 Act. A person with care may obtain maintenance from the absent parent by other means, e.g. by agreement. But that, in my view, is not a sufficient reason for holding that there is an assumption of responsibility by the Secretary of State whenever he performs his functions under the statutory scheme. The critical question is whether the Secretary of State voluntarily assumes responsibility and that does not depend on whether the parent chooses or is obliged to make an application for a maintenance assessment.

The assumption of responsibility test was considered by the House of Lords in the Barclays Bank case. The Customs and Excise Commissioners obtained freezing injunctions in respect of assets of two companies including funds held to specified accounts in a bank. The injunctions were notified to the bank which subsequently failed to prevent payments out of the accounts in breach of the injunctions. The commissioners claimed damages for negligence against the bank. The House of Lords held that the bank owed no duty of care to the commissioners. It could not be understood as having voluntarily assumed responsibility for its actions so as to give rise to a duty of care to the commissioners. Lord Bingham said (para 14):

The same point was made by Lord Walker at paras 73 and 74. The bank had not in any meaningful sense made a voluntary assumption of responsibility. By the freezing order it had responsibility thrust upon it. Lord Mance made observations to similar effect at paras 93 and 94. He said that the concept of assumption of responsibility is particularly useful in the two categories of case identified by Lord Browne-Wilkinson in White v Jones [1995] 2 AC 207, 274F-G. These are (i) where there is a fiduciary relationship and (ii) where the defendant has voluntarily answered a question or tenders advice or services in circumstances where he knows or ought to know that an identified person will rely on his answers or advice. The involuntary nature of the bank’s involvement with the commissioners made it impossible to regard the situation as one “akin to contract”.

When a person with care applies to the Secretary of State for a maintenance assessment to be made, he is obliged to make it. In making the assessment, he is not a volunteer in any sense. It is true that the 1991 Act also gives the Secretary of State certain discretionary powers, for example, the power to make an interim maintenance assessment, to collect maintenance and to seek liability orders for the purpose of enforcement. But in my judgment, if he decides not to exercise one of these statutory powers, he is not, in making that decision, assuming a voluntary responsibility towards those who are foreseeably affected by it. Likewise if he decides that he will exercise one of the powers, it is not apt to describe what he does when he exercises the power as a voluntary assumption of responsibility. He is not doing anything that is “akin to contract”. In determining whether or not (and if so how) to exercise his statutory powers, the Secretary of State often has difficult and sensitive decisions to make: see further para 82 below. These decisions are amenable to judicial review. They are far removed from a voluntary assumption of responsibility.

Nor do I accept the submission of Mr de Mello that, in order to establish a voluntary assumption of responsibility, it is sufficient to show that the caseworkers of the CSA act as professional persons or in a way that is analogous to that of professional persons. Even if the tasks performed by caseworkers involve the exercise of skill and judgment, that does not of itself mean that, in performing those tasks, they are voluntarily assuming responsibility to those who are foreseeably affected by what they do. To focus on the elements of skill and judgment is to ignore the requirement that the assumption of responsibility be voluntary if it is to found a common law duty of care.

I cannot accept the submission by the claimants and the intervener that the role of the CSA is sufficiently close to that of a solicitor acting before the 1991 Act to justify imposing a duty of care on an application of the incremental approach. As Mr Giffin points out, there are substantial differences. First, the solicitor is paid by the client and is entitled to charge a reasonable fee for providing a service to a proper standard. Issues of sufficiency of resources do not arise. Secondly, the solicitor has control over the number and identity of the clients from whom he takes instructions. Thirdly, subject only to standards of professional conduct, the solicitor has an unconditional commitment to his client’s interests. In a dispute about child maintenance, he owes no duty to the other parent and no issues of balancing conflicting interests can arise. It is conceded that, if the Secretary of State owes a duty of care at all, it must be owed to both the person with care and the absent parent. The absent parent may also be adversely affected by an incorrect decision. Thus, for example, if the CSA makes an assessment which is too high and the absent parent pays the assessed amount pending an appeal, he will suffer loss even if his appeal is ultimately successful: even if the person with care repays the amount overpaid, the absent parent will have suffered loss of the use of his money in the meantime. Fourthly, in the pre-1991 Act era, the solicitor had no power to determine the amount of maintenance payments. Nor generally speaking, was it for the solicitor (as opposed to the magistrates’ court) to take enforcement action: see paras 13 to 16 of the judgment of Ward LJ in Kehoe. Furthermore, the person with care could not have sued the court or the justices’ clerk for negligence under the old regime.

For these reasons, to impose a duty of care on the Secretary of State because a solicitor acting for the parent with care under the pre-1991 Act law owed a duty of care would not be an incremental development of the law. To use the language of Brennan J, it would be a “massive extension” of it. The incremental approach is not a sound basis for deciding that the Secretary of State owes such a duty. A solicitor owes a duty of care in tort because, like any professional person, he or she voluntarily assumes responsibility towards an individual client.

I would accept the submission of Mr Giffin that the position of the adjudication officer which was considered in Jones provides a closer analogy to that of the CSA than that of a solicitor acting before the 1991 Act came into force. As he points out, the CSA system is “closely tied in with social security”: see per Lord Walker at para 39 of Secretary of State v M [2006] UKHL 11.

Nevertheless, although the position of the adjudication officer in Jones is closer to that of the CSA than that of a solicitor acting in the pre-1991 Act era, I would not decide the question that is before us on an application of the incremental test. Jones was concerned with an allegation of negligence in the making of a decision by an adjudication officer. It was not concerned with other defects in the administration of a social security benefit. The present case is not only concerned with an allegation of negligence in the making of the maintenance assessments. That is an important point of distinction, because in Jones the court regarded the existence of a right of appeal as determinative. The 1991 Act gives no right of appeal against a refusal or failure to collect maintenance or enforce obligations to pay. In any event, I would respectfully adopt the fourth of the observations made by Lord Bingham in Barclays Bank (see para 48 above): the incremental test is of little value as a test in itself.

Although it has often been said that the three limbs of the Caparo test overlap, the argument before us focused on the third limb of the test viz whether it is fair, just and reasonable to impose a common law duty of care on the Secretary of State.

In deciding whether it is fair, just and reasonable to impose a duty of care on a public authority in the carrying out of its statutory functions, it is necessary to consider whether such a duty would be inconsistent with the statutory framework in which it is acting. It may be said that this is better considered as a free-standing question, rather than as an aspect of the third limb of the Caparo test. In A v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881 at para 33, Hale LJ considered the question whether to impose a common law duty of care would be inconsistent with the statutory framework as an aspect of justiciability, rather than as an aspect of the third limb of the Caparo test. But she acknowledged that “the considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them.” Perhaps the classification does not matter. The important point is that a duty of care must not be inconsistent with the presumed intention of Parliament.

Thus Lord Browne-Wilkinson said in X v Bedfordshire County Council at p 729: “the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done”. In Stovin v Wise [1996] AC 923, 935C, Lord Nicholls of Birkenhead said that the common law should not impose a concurrent duty which is inconsistent with the statutory framework:

I turn, therefore, to consider whether a duty of care would be inconsistent with the statutory scheme. I propose to leave section 46A out of account at this stage of the analysis, since this provision was only inserted into the 1991 Act by the Social Security Act 1998.

In Kehoe it was held that the statutory scheme conferred no rights of recovery or enforcement on persons with care against an absent parent. To that extent it was self-contained and comprehensive. In Department of Social Security v Butler [1995] 1 WLR 1528, this court held that the effect of the 1991 Act is that the court has no jurisdiction to grant an injunction to prevent an absent parent from disposing of his assets. The reasoning on which this conclusion was based was that detailed consideration of the 1991 Act shows that it provides a detailed and comprehensive scheme and that the jurisdiction to grant an injunction has been excluded by necessary implication: see per Evans LJ at p 1531H-1532B, Morritt LJ at p1540G-1541B and Simon Brown LJ at 1542C-E. I refer in particular to the observations by Simon Brown LJ:

These passages were referred to with apparent approval by Lord Bingham in Kehoe at para 5 of his opinion. Thus the court has declined to supplement the scheme to confer on the parent with care any rights of action against the absent parent.

I accept that the decisions in Butler and Kehoe are not necessarily fatal to the claimants’ case. The fact that a scheme is detailed and comprehensive so as to preclude any claim by the parent with care against the absent parent does not necessarily mean that a claim against the Secretary of State is also precluded. The question of the liability of the Secretary of State to a parent with care was not in issue in Kehoe. But having regard to the nature of the complaints made by Mrs Kehoe, it would be surprising if the House of Lords had not considered whether the Secretary of State owed a common law duty of care to her. Mrs Kehoe’s case was that the CSA’s delay in taking steps to enforce the maintenance assessment constituted a breach of her rights under article 6 of the European Convention on Human Rights. The House of Lords held that article 6 did not require that particular substantive rights be accorded by the national law. If Mrs Kehoe had a right of action in negligence against the Secretary of State, that would have been an answer to her claim, admittedly a different kind of answer to that given by the House of Lords. In these circumstances, the fact that no reference was made to the possibility of a claim for damages for negligence is of significance. Moreover, the statements by Lord Walker and Lord Brown (see paras 38 and 39 above) provide strong persuasive support for the argument that no common law duty of care is owed by the Secretary of State. The emphatic observation of Lord Brown is particularly important: “the only right now enjoyed by those in Mrs Kehoe’s position is to look to the CSA for the proper discharge of its public law obligations under the statute, a right which of course is itself sustainable under the courts’ supervisory jurisdiction.”

But Kehoe apart, it is in any event clear in my view that a common law duty of care would be inconsistent with the statutory scheme created by the 1991 Act.

Substantial remedies are provided by the scheme which militate against the existence of a common law duty of care. Section 20 gives a right of appeal against the refusal to make an assessment (whether interim or final) and against the amount of an assessment or the date from which it takes effect. It is said by the claimants and the intervener that this is not an effective remedy for the person with care who complains that the CSA has taken too long to make its decision or has failed to collect maintenance and/or enforce payment of arrears within a reasonable time or at all. But where the CSA fails to collect or enforce arrears of maintenance, as Lords Walker and Brown said, the person with care can issue judicial review proceedings to compel the CSA to act.

It is also said that there are serious deficiencies in the appeal process. For example, the response by the absent parent to an application for maintenance is often not notified to the person with care. The result is that the person with care may well not know what information has been provided to the CSA by the absent parent and she may not therefore be in a position to know whether she has good grounds for an appeal or not.

In my view, what is significant is that Parliament has provided a means of challenging a refusal to make a maintenance assessment and the amount of the assessment and the date from which it takes effect. The question is whether Parliament is to be taken to have intended that there should co-exist with the right to appeal in respect of maintenance assessments a right of action at common law to recover damages for the negligent refusal to make an assessment or to make an assessment in a certain amount or to take effect from a certain date. It is not to the point that a more effective appeal process could have been devised. As Lord Bingham said in Kehoe, the merits of the scheme are not for the courts to evaluate.

Moreover, in section 41 of the 1991 Act as originally enacted, Parliament specifically addressed the question of arrears of maintenance. It provided that in such circumstances as may be prescribed, an absent parent would be liable to make such payments of interest with respect to arrears of maintenance as may be prescribed. The Secretary of State was given the power by regulations to make such provision inter alia as to the rate of interest to be paid and the time at which it should be payable. It is immaterial that these provisions were subsequently replaced by a different means of dealing with arrears. It is clear, therefore, that Parliament made detailed provisions for dealing with arrears of maintenance which included giving the parent with care the right to receive interest on late payments. Here too, it is not to the point that Parliament could have devised a more effective and all-embracing scheme to compensate persons who suffer loss as a result of delayed receipt of maintenance.

In my view, the existence of the right of appeal given by section 20 and the right to receive interest on arrears in prescribed circumstances given by section 41, when taken in conjunction with the right to seek judicial review of failures to collect or enforce arrears of maintenance, means that the 1991 Act provides the person with care with substantial protection against incompetence on the part of the CSA. As I have said, the claimants and the intervener rely on statements of high authority to the effect that the existence of alternative remedies may not be a reason for holding that a public authority does not owe a common law duty of care (see para 29 above). In X v Bedfordshire County Council (p 751A), Lord Browne-Wilkinson mentioned the existence of alternative remedies as one of the factors which militated against the existence of a duty of care. In later cases, the existence of an alternative remedy has not precluded a right of action at common law.

I accept, of course, that the mere fact that there is an alternative remedy is not necessarily a reason for denying the existence of a common law duty of care. It is important to see how comprehensive a remedy is provided and to consider it in the context of the statutory scheme as a whole. Ultimately, what has to be decided is whether, having regard to the purpose of the legislation, Parliament is to be taken as having intended that there should be a right to damages for negligence. The more comprehensive the remedy provided by Parliament, the less likely it is that Parliament is to be taken as having had that intention.

In my view, the 1991 Act (taken in conjunction with the right to seek judicial review where the CSA fails to collect or enforce arrears of maintenance) provides a sufficiently comprehensive remedy to lead me to conclude that a duty of care would be inconsistent with the statutory scheme. That is not to say that there will not be cases where the CSA has acted incompetently and loss will be suffered as a result of its incompetence which might be recoverable as damages for negligence (if a duty of care were owed) and cannot be compensated under the statutory scheme. Examples of such cases were given during the course of argument. The claim by the first claimant is said to be a good example of such a case. In some cases, the losses sought to be claimed would be too remote to be recoverable in law. But in other cases, the claimant would undoubtedly suffer loss which would be recoverable in law if he or she had a right of action.

In most cases where there has been allegedly negligent delay in making a maintenance assessment or failure to collect or enforce arrears, the loss caused by the negligence will be loss of the use of the maintenance pending receipt of the money. That loss will usually be sufficiently compensated by payment of interest. That is provided for by the 1991 Act. There will be some cases where payment of interest will not make good all the losses claimed to have been caused by the alleged negligence. One example is where, during the period of delay, the absent parent has dissipated his assets and the maintenance assessed, collected or enforced is less than it would have been if the CSA had acted with expedition. The present case provides a different kind of example: see para 20 above. But the fact that there may be cases where incompetence on the part of the CSA causes loss which cannot be recovered under the statutory scheme is not a sufficient reason to impose a duty of care. Parliament has provided a rational scheme whose effect is that the victims of the CSA’s incompetence will in fact recover their losses in most cases, although the losses are not expressed as compensation for its incompetence. The fact that there will be some cases where those losses are not recovered, or not recovered in full, is not a sufficient reason for imputing to Parliament an intention that there should be a right of action to recover damages in negligence. Even in these cases, a complainant may be able to obtain redress by means of the Ombudsman: see paras 76 and 77 below.

I would add that the scheme makes a number of detailed provisions setting out the respective spheres of responsibility of the courts and the Secretary of State. Section 8 identifies the areas in which the court retains its power in relation to the making, varying and revoking of maintenance orders. This is a further indication of the narrowly circumscribed role of the court, subject always to its supervisory public law jurisdiction.

I conclude, therefore, that a common law duty of care would be inconsistent with the statutory scheme. That is a sufficient reason for dismissing this appeal. There are, however, further reasons why it would not be fair, just and reasonable to impose a duty of care. First, there was considerable discussion before us as to the relevance and the adequacy of the extra-statutory remedies that are available to those who wish to complain about the way in which the Secretary of State discharges his statutory functions. I have referred to the Ombudsman and the FRMG at para 23 above. It seems to me that the FRMG has no relevance, since the first version of it did not come into force until 1997. It can have no bearing on whether it is fair, just and reasonable to impose a duty of care. In the end, I did not understand Mr Giffin to contend otherwise.

The Ombudsman is rather different. Para 5.38 of the White Paper “Children Come First” (which was presented to Parliament in October 1990) stated that the Ombudsman:

It must, therefore, have been in the contemplation of Parliament when the 1991 Act was enacted that complaints about maladministration by the CSA could be referred to the Ombudsman. This is relevant to the adequacy of the remedies provided by the statute, to the presumed legislative intention and to whether it is fair, just and reasonable to impose a duty of care.

Secondly, the sums usually at stake where there are complaints of incompetence on the part of the CSA would be small relative to the cost of litigating to recover them as damages for negligence. The loss suffered is likely to be limited to compensation for delay in receiving payments of maintenance which may themselves be relatively modest. A case such as the present where there are claims for damages for psychiatric injury and special damages flowing from the sale of the former matrimonial home at an undervalue are likely to be rare.

The litigation costs might well be out of proportion to the sums likely to be realistically at stake. The factual issues in such a claim might well not be straightforward. The question of whether there is a good claim in negligence on particular facts might involve a detailed examination of the history and an attempt to determine what result an earlier or different attempt to collect or take enforcement action might have had. The present case is a good example of such a factually complicated claim.

As Mr Giffin points out, it will not always be the right course to take the most aggressive approach to enforcement. For example, there may be a risk that enforcement action will cause the breakdown of the relationship between the absent parent who owes the arrears and the CSA. A more consensual approach may be more effective in the longer term. The interests of the children need to be carefully considered. For example, there may be cases where taking enforcement action may harm the relationship between the absent parent and the qualifying children. The duty on the Secretary of State under section 2 of the 1991 Act when exercising any discretion is to have regard to the welfare of any child likely to be affected by his decision. It is a matter for judgment whether, for example, the remedy of commitment to prison should be sought in circumstances where that will deprive the absent parent of his livelihood and may make the payment of arrears of maintenance less likely. These and similar problems would be likely to make a determination of negligence particularly difficult. In some contexts, that has not been held to be sufficient to deny the existence of a duty of care: see, for example, Phelps’s case where it was held that local authorities were vicariously liable for the negligence of educational psychologists and other professional persons employed by them despite the difficult nature of some of the decisions that they have to take.

But questions of proportionality were not in play in cases such as Phelps. Lord Clyde said (p 672C) that he was not persuaded that the recognition of a liability on employees of an education authority for negligence in education would lead to a flood of claims. I would add that, although the assessment of damages in, for example, education cases would be likely to be difficult, in at least some of them the damages might well be substantial. If a duty of care were recognised to exist on the part of the Secretary of State, there would be likely to be a flood of (mainly small) claims whose costs would often be out of proportion to what would realistically be stake in most cases.

For all these reasons, I would hold that it was not fair, just and reasonable to impose a duty of care on the Secretary of State to avoid pure economic loss.

Should there be a duty of care to avoid personal injury? Mr ter Haar submits that different considerations apply in relation to personal injury claims. In many contexts, that is undoubtedly true. But in my view all the reasons that I have given for concluding that it is not fair, just and reasonable to impose a duty of care apply with equal force regardless of the damage that is alleged to have been caused by the CSA’s incompetence. In particular, the fact that a common law duty of care would be inconsistent with the statutory scheme is as fatal to a claim in negligence for damages for personal injury as it is to such a claim for pure economic loss.

In view of the conclusion that I have already reached, it is not necessary for me to deal with the additional submissions made by Mr Giffin based on section 46A of the 1991 Act and Jones. But we heard detailed argument from counsel and it is right that I should make some brief observations about it.

It will be recalled that both Glidewell and Slade LJJ decided the appeal in Jones on two grounds. The first was the true construction of section 117(1) of the Social Security Act 1975. The second was that it is a general principle that, if a government department or officer charged with the responsibility of deciding whether payments should be made, is subject to a statutory right of appeal against his decisions, he owes no private law duty of care to potential recipients.

As a matter of language, it is difficult to see any material difference between section 117(1) of the Social Security Act 1975 and section 46A(1) of the 1991 Act. But Jones is a decision on a different statute. The decision as to the meaning and effect of section 117(1) of the 1975 Act is, therefore, not strictly binding on this court as to the meaning and effect of section 46A(1) of the 1991 Act.

I should point out that section 46A was not included in the 1991 Act as originally enacted. It has not been submitted by Mr Giffin that a duty of care was owed by the Secretary of State until section 46A was introduced into the statute in 1999. In these circumstances, I would not decide this appeal on the basis of section 46A or the first ground on which Jones was decided.

Nor would I decide this appeal on the basis of the second ground on which Jones was decided. As Slade LJ pointed out, the general principle enunciated by the court was “subject to the particular provisions of the relevant statute”. Further, this principle must be viewed with some caution in the light of subsequent statements of high authority to the effect that the existence of alternative remedies may not be a reason for holding that a public authority does not owe a duty of care.

Finally, I should mention Mr Giffin’s wider submission that no duty of care should be imposed on the Secretary of State because the 1991 Act gives no right of action for breach of statutory duty or failure to exercise a statutory power. Mr Giffin made extensive reference to Stovin v Wise [1996] AC 923 and Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 WLR 1057.

Mr Giffin relies in particular on passages in the opinions of Lord Hoffmann to submit that there is no duty of care either in respect of the duty to make maintenance assessments or the statutory power to collect and enforce maintenance payments. As regards allegations that the Secretary of State failed to perform his statutory duty properly, Mr Giffin submits that what the claimants are seeking to do is to impose on him a common law duty of care in circumstances where there is no private law right to sue for breach of statutory duty: there are no grounds for recognising an exception to the general rule that a common law duty of care does not exist in such circumstances. As for the allegations that the Secretary of State failed to exercise his statutory powers properly, Mr Giffin submits that there are no exceptional grounds for holding that the policy of the 1991 Act requires compensation to be paid to persons who suffer loss because the power was not exercised or was not exercised properly.

I do not find it necessary to decide whether the appeal should be dismissed for these wider reasons.

For the reasons given in paras 49-85 above, I would dismiss this appeal.

I agree.

I also agree.