Brookes v Secretary of State for Work and Pensions & Anor

Mr Brookes is the father of three boys. He separated from their mother, his first wife, in or about February 2001, and the boys continued to live with her. In April 2001 she made an application to the Child Support Agency for maintenance for the boys to be paid by Mr Brookes. There has been almost unceasing dispute between him and the Agency (and its successor the Child Maintenance and Support Commission) ever since. For convenience I will refer simply to ‘the Commission’ as comprising whichever was from time to time the relevant body. The Commission determined that he should make payments. It is common ground that not a penny has been paid via the Commission, as it should have been. Mr Brookes’ contention has been that instead of paying via the Commission he for some time made direct payments, in cash or in kind, to the boys’ mother; something which she appears, for the most part at least and so far as it was said they had been in cash, to have denied. The Commission eventually accepted that some £1800 odd had been paid in kind, by cheque, or by bank standing order. It gave credit for that sum. But it was not persuaded that any larger sum had ever been paid. That left something over £7000 owing for the period 26 April 2001 to 26 June 2003, on which latter date, following Mr Brookes having incurred additional mortgage liability, his assessment fell to be reduced, according to the Commission’s formula, to nil. Thereafter the dispute has been about the Commission’s efforts to enforce payment of the £7000 odd owing.

Meanwhile in 2003 Mr Brookes remarried. His second wife had two children, now his stepchildren. He and she have a child of their own. So his current household contains three children, whose present ages are 16, nearly 13 and 4.

In February 2008 Mr Brookes applied for permission to seek judicial review. The application was refused on paper, and again by the judge after oral hearing in May 2009. His application for leave to appeal against that refusal was listed before us for hearing, with the appeal to follow if successful. It cannot be said to be surprising that those earlier decisions were made because until three days before the hearing before us it did appear that the application was unarguable. However, at that late stage Mr Banner of counsel took the case over and has injected into it arguable grounds which, if present, were formerly somewhat latent. We were persuaded that, pursuant to CPR 52.15, we should grant permission to seek judicial review and deal with the application for judicial review ourselves.

An application for judicial review is an application to review one or more identifiable decisions on grounds of error of law. Both the decision and the alleged error must be identified with particularity in the claim. It is not acceptable for a claim for judicial review to consist of narrative, of unfocussed complaint and of general reflections (good or bad) upon the nature of the legislation in question. This claim unfortunately did not properly identify either the decision(s) or the alleged legal flaw. The claim form was internally inconsistent as to which decisions were attacked. Subsequently almost each time a document was penned on behalf of the applicant the ground shifted to a different argument and sometimes to a different target. However, with the final skeleton filed three days before the hearing in this court, it was possible to discern an arguable claim for judicial review.

Mr Brookes’ real complaint is and always has been that the Commission was wrong to refuse to give him credit for informal payments which he said he had made. The attempt to attack that decision by judicial review was doomed from the outset and should never have been made. The Commission had to determine the matter on the evidence it had. It made no arguable error of law in doing so, nor was any suggested such error ever identified. Mr Brookes can hardly complain if the Commission looked for real evidence of any informal payments asserted. He was demonstrably unco-operative with the Commission, which stance cannot have made it more likely that his assertions of payment would be accepted without evidence. The ‘Maintenance Enquiry Form’ sent to him on 24 April 2001 to enable him to declare his financial and domestic position was not completed until nearly three years later on 3 February 2004, although three copies were sent to him and two separate meetings with him were conducted, never mind a great many telephone calls. At different times he advanced the rather different explanations that he had difficulty in reading forms and that he had ‘issues’ with the content. In the meantime he had been under an interim assessment, which on several occasions he promised to pay, in part if not in full, but never did.

Quite apart from that, the application for judicial review was made several years after the challenged decision not to give credit for more than the £1800. That decision appears to have been made and notified in about May 2004, but at the absolute latest was confirmed to Mr Brookes’ solicitors in May 2006. A claim for judicial review made nearly two years later in February 2008 by those same solicitors was grossly out of time and it was on that simple ground that permission was refused by the judge.

We should record briefly that a number of arguments previously advanced at different stages on behalf of the applicant are now rightly abandoned. They include the following.

However, albeit somewhat obscured by those unarguable grounds, the claim did couple with the challenge to the credit for payments a complaint that the Commission had instructed bailiffs to enforce the debt without sufficiently considering, pursuant to section 2 of the Child Support Act 1991, the welfare of the children in Mr Brookes’ new household. The judge took the view that this attack on the enforcement of the debt was simply a collateral attack on the assessment and fell with the direct challenge to it. In fact, although we are acutely conscious that the judge did not have the focussed assistance which we have had, there is a proper basis for separating out the decision to enforce from the assessment itself.

As it eventually stood before us the applicant’s case became a challenge to two decisions:

The grounds on which the challenge to each was mounted are:

This section has the side-heading “Welfare of children: the general principle”. It provides:

“Where, in any case which falls to be dealt with under this Act, the Commission is considering the exercise of any discretionary power conferred by the Act, it shall have regard to the welfare of any child likely to be affected by its decision.”

Although we were invited to refer to extracts from the Parliamentary history, there is no occasion to do so. The section is clear enough in what it says. Its position at the outset of the Act, immediately after section 1 which contains the duty of both parents to maintain their children, demonstrates that, as the side-note also says, it is a principle of general application. It applies to all discretionary decisions made by the Commission. It follows that it does not apply to the application of formulae in the assessment process, but it does apply to decisions as to enforcement. The children who are relevant are any children if (but only if) their welfare is likely to be affected by the decision. Thus the children for whom the maintenance in question would be paid (“qualifying children”) are relevant children, but they are not the only ones. Children living in the paying parent’s new household are clearly also included if a decision is likely to affect their welfare.

It may be helpful to note three things which section 2 does not do.

The Commission did not contend that children’s welfare aspects will always be trumped by the consideration that properly assessed payments ought to be made and the child support scheme made to work. If that were the law, section 2 would have no content at all. I do not read the decision of Mr Commissioner Rice in R(CS) 4/96 as saying otherwise, but if it did, I respectfully disagree. Conversely, when Thorpe J (as he then was) observed, obiter, in R v Secretary of State for Social Security ex p Biggin [1995] 1 FLR 851 at 855F that he was not convinced that the Commission could make an enforcement decision without ‘giving considerable weight to the welfare principle’, he was saying no more than that section 2 must have some content and could not be reduced to ‘hollow’ words; he was not attributing to the welfare consideration a dominant or raised influence over other considerations. The correct position is clearly that all the circumstances of each case must be considered. What section 2 requires is that any impact on children’s welfare be taken into account as a factor in deciding whether or not to do something discretionary under the Act. Clearly, the greater the likely negative impact on welfare, the greater the case against making the decision. But the welfare considerations must still be balanced against all other relevant considerations. Those will include, but are not limited to: the welfare of other children with different interests, the duty of the paying parent to support his/her children, the general public interest in a parent meeting that duty and the particular interest of the public, qua taxpayer, in that duty being enforced rather than the support of the children being left to fall on the State.

There was some discussion before us of the question whether the section 2 duty involves any, and if so what, duty to make enquiries as to the existence or circumstances of any relevant children. The Commission had not had the opportunity to put in evidence the whole of its practice as to the gathering of information from those whose cases it is dealing with. The question does not arise in the present case, because the applicant relies on what the Commission did in fact know, not on a failure to ask more, so we have no occasion to decide the question. I would for my part record merely that because we do not decide it, it does not follow that we encourage the suggestion that there is some duty to ferret out information “just in case”. On the face of it, the duty to have regard to welfare can only arise in relation to those children of whose existence the Commission knows, or of whom it has been put on notice, and in relation to circumstances of theirs which it knows about or ought to be able to infer from information in its hands. If, however, the information known to the Commission is such as to suggest that there is or may be a child of particular sensitivity or vulnerability, or there is otherwise a particular reason to think that an unusual impact on welfare might be the result of a discretionary decision, then on ordinary principles one would expect a decision maker to make such enquiries as are reasonable. That is to say no more than that anyone charged with making a discretionary decision ought to behave reasonably.

There are numerous discretionary decisions which are available to the Commission in different circumstances. We are in this case concerned with two particular decisions about enforcement. Some discretionary decisions related to potential enforcement may not of themselves have any potential for impact on children, whether supported children or those in the payer’s present household. An example will ordinarily be a decision to seek a liability order under s 33, which of itself accomplishes no enforcement but only establishes the sum owing and opens a gateway to particular kinds of possible subsequent enforcement. It might be possible to postulate an unusual situation in which a child was so vulnerable that even the possible knowledge that a parent would have to attend court could have a dramatic adverse effect, but absent such a circumstance, the seeking of a liability order must be followed by other discretionary enforcement decisions before there can be any question of impact on welfare. However, the decision under s 35 to seek distraint via bailiffs is capable of having some impact on the welfare of both supported children, if any recovered sum may benefit them, and children in the payer’s present household since chattels may be removed from that household. Similarly, a decision to seek committal of the non-payer by the magistrates could have an impact on both groups of children. That section 2 is applicable to both kinds of decision has not been in question before us.

On 21 December 2007 an executive officer working for the Commission considered whether or not to instruct bailiffs to attempt to recover the arrears, and decided that this should be done. She completed a form provided for the purpose and signed it so that it was known who made the decision. The form contained the printed words:

“I consider bailiff action to be appropriate because:- ”.

After those words, she typed:

“nrp [sic: non-resident parent] remains non compliant. C/order [ie charging order] granted and reg[istered] with the Land Registry and Order for Sale considered but decision made to pursue bailiff before next step. Under section 2 of the Child Support Act 1991 I have given regard to the welfare of any child likely to be affected by my decision.”

By that time the arrears had been outstanding for not less than three and a half years since June 2003, when they had ceased to accrue (see paragraph 1 above). The primary method of enforcing payment, by deduction from earnings under s 31, was not available because Mr Brookes, when working, was self employed, either as a bricklayer or, if his first wife’s assertions were to be correct, in some kind of business. Liability orders had been granted by the magistrates confirming the amount outstanding, in August 2003 and again (relating it seems to a different period) in March 2006. Bailiffs had been instructed previously in August 2003. They had contacted Mr Brookes in November and visited in December 2003. They had been met by Mr Brookes who had told them that he owned nothing in the house, that he would not let them in and that he had no intention of making any payment. Subsequently a charging order had been granted by the County Court over the house. That would in principle permit the possibility of forcing sale to realise the money owing. The decision taken, and recorded in the terms set out above was to make a further attempt at distraint through the bailiffs rather than to consider forcing sale of the house.

Mr Banner invited us to hold either:

There is simply no basis for holding that the officer did not consider the welfare of the children in the Brookes household. I agree that merely to tick a box referring to welfare might not suffice to show that any real consideration had been given to the individual case. The use in the closing sentence of the decision of what is no doubt a common form of words might in different circumstances be consistent with an absence of real consideration, but there is nothing wrong with using familiar forms of words: most judges do it frequently, but it does not mean that they have failed to address the case before them. In this case, all the indications are that the officer concerned did indeed address the case. She gave brief reasons deriving from its individual facts. There is no reason whatever to doubt her assertion that she included consideration of the children in the Brookes household. Indeed, on the face of it, this is likely to have been a reason for pursuing distraint rather than an order for sale.

The important question is the second. Could a responsible officer, properly applying section 2, arrive at the conclusion that bailiffs should be instructed ?

Mr Banner contends that she could not. The Commission knew, he points out, the following things:

It is correct that by this time the Commission knew that there were children in the Brookes household. At least by March 2003, Mr Brookes had referred to his (then) new partner and to the fact that she had two children. He had told them in February 2004 that his second wife had been a widow and had a pension from the estate of her late husband. By April 2006, it is clear that the Commission had been told of the birth of Mr and Mrs Brookes’ own child.

The charging order certainly provided the Commission with some security. It does not follow that no reasonable officer could decide that there should be no attempt at distraint and that the Commission should stand upon the charging order alone, with no attempt at any other means of enforcement. That would entail deferring any question of payment for an indefinite period and taking the risk that the equity remained sufficient to discharge the arrears. A reasonable creditor could perfectly well decide that there ought to be payment now, at least if Mr Brookes owned suitable chattels on which distraint might be made.

Whilst it was true that Mr Brookes’ disposable income had been assessed as sufficiently low to lead to a nil assessment after one or perhaps two re-mortgages of the house, it did not follow that he had no assets from which to pay the arrears. That is what would be discovered if the bailiffs were instructed.

A month or two after the earlier bailiffs’ activity at the end of 2003, Mr Brookes had submitted a single page letter from his GP, dated 12 January 2004. The letter said that he had attended surgery that week and had been diagnosed as suffering from clinical depression which appeared to be triggered by financial worries and demands from the Commission. The doctor said that she was very concerned and was worried that if the situation continued, he might become increasingly depressed and then would “obviously” be at risk of “suicidal thoughts and possible self-harm”. It is clear from the chronology provided to us that this letter had, at the time, an effect on what the officers of the Commission did. They had made the provisional decision to proceed to seek a charging order with a view to possible sale of the house, but they deferred that process and arranged a (second) personal interview with Mr Brookes. The charging order procedure was not reinstated until about eighteen months later in September 2005. By the time of the operative decision to instruct bailiffs with which we are concerned, in December 2007, this GP’s report was nearly four years old. Whilst it was evidence of depression in January 2004, reported to the doctor as related to the dispute with the Commission, it appeared to be based upon a single visit to the doctor and there was no more up to date information. It was not that nothing had been happening since then. The chronology reveals regular, if unproductive, contact between the Commission and Mr Brookes throughout the four years between January 2004 and December 2007. The Commission had been pressing for payment throughout. Enforcement action taken included the charging order process in the County Court and the liability order process in the Magistrates’ Court. Mr Brookes had sometimes made offers to pay something, although no actual payment had ensued. In January 2007 the Commission had notified Mr Brookes that it was considering an application to commit him to prison or to disqualify him from driving on the grounds of wilful refusal or culpable neglect to pay. None of these events had provoked any further suggestion that medical evidence was relevant. In those circumstances, it is impossible to say that in December 2007 the GP’s letter of January 2004 should have led the Commission to conclude that further pressure for payment would be wrong because it would make Mr Brookes so ill as to cause a sufficiently adverse indirect effect on the welfare of the children.

The officer of the Commission addressing the decision in December 2007 did not, of course, have to consider these four factors in isolation one from another. She had to apply her mind to the welfare consideration in section 2 on the whole of the facts available to her. But neither separately nor together did the four factors relied upon by Mr Banner require of her a decision that it would be wrong to instruct the bailiffs. The Commission was perfectly entitled to conclude that if the debt could be paid via distraint there was no reason why it should not be; indeed every reason why it should.

With the aid of cases dating back to the early seventeenth century, Mr Banner pressed upon us the wide powers of bailiffs. The common law position is no doubt that they may not break in from outside but if either permitted entry or able to enter without force they may break down internal doors or force cupboards in their search for distrainable goods. Household essentials are exempt from seizure in any event. But what falls to be considered by a Commission officer contemplating instruction to the bailiffs is what may reasonably be expected to occur. Modern bailiffs are most unlikely to act in the manner of their nineteenth century predecessors in forcing open internal doors or cupboards, and Mr Banner’s imaginative picture of children cowering in corners whilst aggressive men who have arrived unannounced ransack the house of their toys or the family’s necessary possessions is simply unrealistic. That would be so even without the terms of the Commission’s contract with the bailiffs it instructs, which, we were told and accept, expressly provides that they must write or telephone to arrange an appointment, that they should negotiate for payment rather than seize goods if possible and that they must not continue if there is evidence of particular illness or disability in the family. Mr Brookes’ own experience of the bailiffs sent to his home in 2003 confirmed this. They telephoned and visited, but he rebuffed them. There was no suggestion of lack of courtesy or of force or intimidation. Of course, a visit from bailiffs and the possibility of removal of high-value possessions is not desirable or pleasant, but it is not something which is inevitably damaging to children in the household.

To the extent that there might be some impact on the children in Mr Brookes’ household if further attempt at distraint were made, the Commission was perfectly entitled to balance that against the consideration that what was in question was a debt properly assessed according to law, never challenged by appeal or review, except for the failed attempt to set off alleged payments in cash, and of which not a penny had been paid. On the facts of this case it is not only impossible to say that the decision to instruct the bailiffs was beyond those properly available to the Commission, but the decision would appear to have been right.

That conclusion follows without adding the consideration that the Commission also had to weigh up the assertions being pressed upon it by the mother of Mr Brookes’ children. Those were not only that Mr Brookes was playing the system to avoid paying, as to which she may have been right or wrong, but also that he had substantial assets and was running a successful business. Of course, allegations and counter-allegations are not unusual as between ex-spouses in dispute about financial matters, and the Commission is no doubt used to not always accepting either at face value. But it needs to be remembered that the Commission is not charged with considering the position of the paying parent only; it has to cope with that of both parents, not to mention that of the taxpayer. To send the bailiffs in to investigate and to enforce payment if it could properly be made was a perfectly reasonable step to take, and it did not become otherwise because of the presence in the household of three children.

Section 40 of the Act empowers the magistrates to commit a liable but non-paying parent to prison for a maximum of six weeks, but only where it is satisfied that there has been “wilful refusal or culpable neglect”. Section 40B gives a similar power to disqualify from driving, but subject to the same condition. An application for such orders may be made by the Commission only when either distraint or county court enforcement has been attempted and has failed: s 39A(1). The magistrates must enquire in the presence of the parent into his means and whether his failure to pay amounts to wilful refusal or culpable neglect: s 39A(3).

It is not disputed in the present case that the s 39A(1) conditions for applying for such orders were met because distraint had failed in 2003.

Mr Brookes’ application to us was based upon a letter sent to him by the Commission on 12 January 2009. That letter told him that:

“We are applying to send you to prison or to disqualify you from holding or obtaining a driving licence.”

It gave as the grounds the assertion that it appeared to the Commission that the failure to pay involved wilful refusal or culpable neglect. A little further on the letter said that the Commission was:

“now considering an application to the Magistrates’ Court…”

(emphasis supplied).

There was some debate before us as to whether this amounted to a decision by the Commission to apply to the magistrates or was simply advance warning that the possibility was under consideration. Mrs Vasey, the Commission’s Litigation and Judicial Review Manager, describes it as a final warning but not a decision. In fact, the documents submitted by the Commission demonstrate that a decision in principle to pursue a committal application had been made on 9 November and 11 December 2006. The relevant officer, again identified by signature, indicated an intention to proceed by way of liability order followed by application for committal and stated that the welfare of any child affected had been considered. The chronology shows that, consistently with this, a letter was sent to Mr Brookes on 17 January 2007 warning of possible committal and/or disqualification proceedings. The terms of that letter have not survived, but it may well have been similar to that of 12 January 2009 set out above. The result, according to the chronology presented to us, was that Mr Brookes’ solicitors (who had acted for him since at least May 2006 and still do so now) threatened in March 2007 an application for judicial review. The effect of that seems to have been to put on hold (understandably) any application to the magistrates. When however the threatened application for judicial review was made, a year later in February 2008, it was silent of any complaint about threatened committal proceedings. Why that was, it is impossible to know. However, the further warning letter was sent in January 2009 and that provoked the introduction into these proceedings of a complaint about threatened committal, although not until the case had reached the stage of oral renewal of the application for permission.

Putting to one side these significant inadequacies in Mr Brookes’ application, it seems to me to follow that, contrary to the submission of the Commission, a decision was made in November/December 2006. Whatever the terms of the letter(s) sent in consequence to Mr Brookes, it is plain that a decision in principle has been made. Of course the application to the magistrates may not in fact follow, either because it is reconsidered in the Commission or even, theoretically at least, because a change of stance is detected in Mr Brookes, but that does not mean that the operative decision has not been made, involving regard to section 2. That decision is accordingly reviewable, subject to the exceptional and unexplained delay in seeking relief.

It is accepted on all sides that section 2 applies to a decision to invoke section 39A and to proceed to ask the magistrates to consider committal or disqualification. Plainly either committal for some weeks or disqualification may impact on the welfare of children in the household of the non-paying parent. Moreover, although the magistrates enjoy a general and unfettered discretion whether to make a committal/disqualification order, they are not, unlike the Commission, bound by statute to consider section 2. The questions for us are, accordingly, the same as arise upon the decision to instruct the bailiffs.

For all the reasons given in relation to the instruction of the bailiffs, my clear conclusions are that:

This however was in November/December 2006. If the Commission had sought to found upon this 2006 decision the sending, in January 2009, of a second warning letter to Mr Brookes, it would clearly have been too late. A decision in principle to take a particular form of (discretionary) enforcement action may of course endure for a reasonable time whilst its execution is worked out or further consideration is given to it, but after two years if nothing has happened the decision has clearly lapsed, as indeed the Commission asserted it had. If it is to be revived a fresh decision must be made, with fresh consideration of section 2. Since the Commission disclaims any decision at all it is unnecessary to grant any relief in relation to the January 2009 letter beyond making clear the need for a fresh consideration, and the unsatisfactory state of Mr Brookes’ application reinforces that approach.

The Commission was content that we proceed in this application on the footing that Article 8 is engaged by both the decision to instruct bailiffs and the decision to seek committal/disqualification. We have accordingly heard no argument on this topic and reach no decision about it. I should for my part record that it seems to me, at least short of committal to prison, not free from doubt. The European Commission of Human Rights has more than once decided that the child support scheme does not by its very nature impact on family life and thus does not engage Article 8: Logan v UK Application 24875/94 and Burrows v UK Application 27558/95. It was considering the assessment process, but what applies to assessment ought to apply equally to enforcement. A search warrant (Niemitz v Germany (1992) 16 EHRR 97) is not analogous; it involves the power to intrude against resistance into the home, which power the bailiffs do not have. As Munby J (as he then was) observed in R (Denson) v CSA at paragraph 43, many occasions arise on which State organisms or other public bodies have to decide to take enforcement action in respect of debts owed by individuals, and to communicate such decisions to them. It is not obvious that each time, for example, that a local authority does so in relation to council tax or planning dues, or HMRC in relation to any form of tax liability, Article 8 is engaged.

However, on the assumption that Article 8 is here engaged, the question becomes: were the actions of the Commission justified under Article 8(2) ? They were clearly (once it is established that section 2 was properly applied) taken in accordance with the law. They were taken in the course of the application of a public scheme for child support which, it is not seriously disputed, is necessary for the economic well being of the country and/or for the protection of the rights of others, namely the children for whom financial support is needed and their caring parent. The question is whether the action was proportionate.

The test of proportionality is not identical to the question whether an action in Wednesbury unreasonable, albeit that in many cases both tests may on the facts yield the same answer. Whereas the Wednesbury test involves asking whether the decision was within the range of those reasonably or rationally available to the decision maker, where proportionality is in question, the court must apply anxious scrutiny to ensure that the decision maker has struck the balance fairly between the conflicting interests of the claimant’s right to respect for family life on the one hand and the public or competing interests within Article 8(2) on the other. In doing so, however, the court does not simply substitute its own decision. Its function is supervisory. It recognises and allows to the public body’s decision maker a discretionary area of judgment. It will often be appropriate to adopt the two-stage process of asking first whether the intended objective can be achieved by means less interfering with the Article 8 right and second whether, if not, yet still the effect is excessive or disproportionate. For those various propositions see amongst other cases R (Daly) v SSHD [2001] UKHL 26; [2001] 2 AC 532 and Samaroo v SSHD [2001] EWCA Civ 1139.

In the present case, the objective to be achieved by the instruction of the bailiffs could not be achieved otherwise. Reliance on the charging order would not achieve prompt payment and might not achieve any. The potential removal for sale of non-essential chattels if payment is not otherwise tendered was in accordance with standard UK systems for the enforcement of debt and is not excessive or disproportionate. So far as the possibility of committal to prison for a short time or disqualification from driving is concerned, that is reserved for those demonstrating contumelious disobedience to the duty to pay the assessed sums needed by their children, or advanced to those children from the public purse, as the case may be. By definition all less intrusive measures have failed. The remedy is a comparatively strong one, but history has shown that it is necessary in such cases, legislation provides for it, and whilst the Commission has the power to ask for it, its grant is in the discretion of independent magistrates. In those circumstances, to ask the magistrates to use the power if they are satisfied that it is justified by the conduct of the non-paying parent is neither excessive nor disproportionate.

For these reasons I would refuse relief by way of judicial review in respect of both the decision to instruct bailiffs and the decision to apply for committal or disqualification. As the Commission accepts, however, if either course is now to be taken a fresh decision must be made, according to law, in the light of the facts as they now are.