Farley v Secretary of State for Work and Pensions

Mr Alec Farley and his wife married in June 1985. They had two children who are now aged 18 and 17 respectively. They separated in July 1990. At the time of the separation, they both signed a deed of separation. It provided that from the date of its execution, Mr Farley should pay to his wife “the sum of £15 per week for each of the children”. He claims that he paid his wife maintenance for both children in accordance with the agreement until the younger child came to live with him, after which he paid maintenance to his wife for the elder child only.

The assessment and collection of child support is the responsibility of the Secretary of State for Work and Pensions. He carries out his functions through the Child Support Agency (“the CSA”). The CSA has assessed Mr Farley’s liability to pay child support maintenance to his former wife over the years. Arrears accumulated, and eventually the CSA caused a summons to be issued against Mr Farley to enforce those arrears, which according to the CSA amounted to £32,639.94.

The summons was issued under section 33 of the Child Support Act 1991 (“the Act”), which provides (so far as is material):

“(1)

This section applies where –

(a)

a person who is liable to make payments of child support maintenance (‘the liable person’) fails to make one or more of those payments …..

(2)

The Secretary of State may apply to a magistrates’ court ….. for an order (‘a liability order’) against the liable person.

(3)

Where the Secretary of State applies for a liability order, the magistrates’ court ….. shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4)

On an application under subsection (2), the court ….. shall not question the maintenance assessment under which the payments of child support maintenance fell to be made.”

The summons was heard by the North Somerset Family Proceedings Court on 4 December 2003. It was argued on Mr Farley’s behalf that he had not been liable to pay child support maintenance at all. The magistrates’ court ruled that it had no power to determine whether Mr Farley had been liable to pay child support maintenance. Its function was to decide whether the arrears had indeed accumulated. Since Mr Farley did not dispute that he had not paid any child support maintenance to his former wife, the magistrates’ court made a liability order against him.

Mr Farley’s solicitors requested the magistrates’ court to state a case for the opinion of the High Court. The magistrates’ court did so, and the questions on which it asked the High Court to express an opinion were:

“1.

Do we have an adjudicative function under S.33(1)(a) Child Support Act 1991 as to whether or not a non-resident parent is a liable person?

2.

When dealing with an application for a liability order are we required to receive evidence that the parent with care was claiming a benefit which authorised the Secretary of State to recover child support maintenance?”

Mr Farley now appeals against the liability order by way of case stated.

The stated case was deemed to have been received by Mr Farley’s solicitors on 6 April 2004. His appellant’s notice therefore had to be filed by 16 April: see para. 18.4 of the Practice Direction relating to Part 52 of the Civil Procedure Rules. It was not received by the Administrative Court Office until 29 April. The appellant’s notice gave the reason for that as being that “[h]is solicitors received papers during the Easter break”. What Mr David Burrows, Mr Farley’s solicitor, says that he meant to say was that the stated case had arrived in his office a few days before Easter, but while he had been out of the office on holiday. He had not checked the time limit for filing the appellant’s notice, and he had assumed that the normal time limit applied. If he thought that the normal time limit under the Civil Procedure Rules is 28 days, he was wrong: it is 14 days (see rule 52.4(2)(b)). Be that as it may, it was for that reason that he had not left any instructions for his staff to file the appellant’s notice if the stated case arrived in the office while he was still on holiday. He returned to the office on 14 April. He saw that the stated case had arrived, but he did not realise until 26 April that the time limit was only 10 days. He then promptly filed the appellant’s notice. In these circumstances, Mr Burrows applied under rule 52.6(1) for an extension of time for filing the appellant’s notice.

It is now firmly established, following Sayers v Clarke Walker [2002] 1 WLR 3095, that when considering such an application in a case of any complexity, the court should take into account, not only the overriding objective in rule 1.1, but also the checklist in rule 3.9(1). I have concluded that I should extend Mr Farley’s time for filing the appellant’s notice. The CSA has not been disadvantaged by the appellant’s notice having been filed 13 days out of time, and it would not be right for Mr Farley to be denied a consideration of his appeal on its merits for only a short delay which was not his fault. It is true that his solicitors did not comply with rule 3.9(2), which requires an application of this kind to be supported by evidence, but what occurred is plain from what Mr Burrows told me. Although the delay cannot be excused, I extend Mr Farley’s time for filing the appellant’s notice for the 13 days needed to validate its filing.

Where a child is not living with both of his parents, each of his parents is responsible for maintaining him. That responsibility of the parent with whom the child is not living is met by that parent making periodical payments of maintenance in accordance with the provisions of the Act. Those payments are referred to as child support maintenance.

There are two routes by which child support maintenance becomes payable under the Act in England and Wales. First, the parent with the care of the child may apply to the Secretary of State under section 4(1) of the Act for the Secretary of State to calculate the amount of child support maintenance payable by the other parent. The Secretary of State then assesses the amount of child support maintenance payable by that parent. However, no application can be made under section 4 if there is in force a written maintenance agreement made before 5 April 1993 in respect of the child for whom the application was made: see section 4(10) of the Act.

Secondly, in case the parent with the care of the child chooses not to apply to the Secretary of State for child maintenance support, the Act includes a mechanism by which the Secretary of State can require the parent with the care of the child to authorise him to take action under the Act to recover child support maintenance from the other parent. That mechanism is included in section 6 of the Act, though it has been amended in such a way as to permit the Secretary of State to treat a parent with the care of the child as having applied to him to calculate the amount of child support maintenance payable by the other parent. There is no material difference between the new and old versions of section 6 for the purposes of this case, though it was agreed before me that the old version of section 6 would have applied to this case had the Secretary of State invoked it. However, the Secretary of State’s powers under section 6 only arise if benefits of a prescribed kind are claimed by, or paid to, the parent with the care of the child.

Mr Farley does not know whether the assessment of child support maintenance payable by him was made under section 4 or section 6 of the Act. The Secretary of State asserts that it was made under section 6. If it had been made under section 4, Mr Farley claims that he would not have been liable to pay it because of section 4(10) of the Act and the maintenance agreement contained in the deed of separation. But if it was indeed made under section 6 of the Act, Mr Farley asks the Secretary of State for some form of confirmation that benefits of a prescribed kind have been claimed by, or paid to, his former wife. Until he receives that confirmation, he does not accept that he is liable to pay any child support maintenance at all.

Against that background, I turn to the jurisdiction of the magistrates’ court in the light of the provisions of section 33. The argument advanced by Mr Burrows is that section 33(4) prevents the magistrates’ court from questioning the amount of the arrears, but it does not prevent the magistrates’ court from questioning whether child support maintenance was payable in the first place. In other words, it prevents an inquiry into quantum, but does not prevent an inquiry into liability. That is said to be borne out by a recent amendment to section 33(4) which substitutes the term “maintenance calculation” for the term “maintenance assessment”. That is said to reinforce the point that section 33(4) relates to the process by which the calculation of the maintenance has been carried out, rather than whether that process should have started in the first place. The contention is also borne out, so Mr Burrows argued, by the language of section 33(3), which requires the magistrates’ court to be satisfied “that the payments in question have become payable by the liable person”. Since “the liable person” means “a person who is liable to make payments of child support maintenance” (section 33(1)(a)), how could the magistrates’ court be satisfied that child support maintenance has become payable by such a person if it cannot enquire into whether the person against whom the liability order is sought was liable to make the payments in the first place?

I cannot go along with this argument. The term “maintenance assessment” has been changed to “maintenance calculation” throughout the Act, even in those sections, such as section 4(1), which relate to the liability to pay child support maintenance, not merely to its calculation. That suggests that the use of the term “maintenance assessment” in section 33(4) relates to the liability to pay child support maintenance as well as its calculation. And the words “a person who is liable to make payments of child support maintenance” more naturally mean “a person who the Secretary of State has decided should make payments of child support maintenance” rather than “a person who may be liable under the provisions of the Act to make payments of child support maintenance”.

Moreover, the argument advanced on behalf of Mr Farley is inconsistent with what one might expect to be the function of the magistrates’ court. It is more likely to have the function of deciding whether the arrears alleged by the Secretary of State had actually accumulated (which is an important issue since payments of child support maintenance are not always made through the CSA, and might be paid directly by the absent parent to the parent with care of the child), rather than deciding what may be difficult questions as to whether the parent in respect of who the liability order was sought was liable to make payments of child support maintenance in the first place. It is not as if that parent does not have an opportunity to challenge his liability to make payments of child support maintenance. I accept that it is questionable whether a parent’s liability to make payments of child support maintenance at all can be made the subject of an appeal to the Appeal Tribunal under section 20 of the Act. Such a parent undoubtedly can on the current wording of section 20, but I doubt whether he could on the wording of section 20 as it applied to Mr Farley’s case. However, such a parent can certainly do so by requesting the Secretary of State to revise his decision under section 16. The decisions to which section 16 relates (as does section 20 on its current wording) include a decision under section 11. Mr Burrows argued that a decision under section 11 related only to the calculation of the amount of child support maintenance which is payable, not to whether child support maintenance is payable at all. But section 11(2) expressly provides otherwise.

The view which I have taken of section 33 is in line with the view expressed by Latham J (as he then was) in Secretary of State for Social Security v Shotton [1996] 2 FLR 241. In that case, the issue was whether section 33 prevented the magistrates’ court from questioning the amount of the arrears. Latham J held that it did, and Mr Burrows, as I have said, does not contend otherwise. But Latham J said at p. 244B-C:

“The statutory scheme seems to me to be straightforward. All matters relating to the quantification or validity of a maintenance assessment are to be dealt with through the review and appeals structure created by the Act.” (Emphasis supplied.)

Having referred to section 33(3), he went on to say at pp. 244H-245A:

“In my view, the consequences of this subsection, taken together with section 33(4) which precludes the magistrates’ court from questioning the maintenance assessment, is that thesole question to be determined by the magistrates is whether or not payments have become payable by the liable person and have not been paid. If that is established the magistrates are bound to make a liability order.” (Emphasis supplied).

It is true that Latham J was not concerned with whether the parent had been liable to make payments of child support maintenance, but he nevertheless took the view that questioning the “validity” of a maintenance assessment was outside the role of the magistrates’ court. Its sole function was to decide whether or not the arrears alleged by the Secretary of State had accumulated.

For these reasons, I agree with the magistrates’ court’s conclusion that it did not have the jurisdiction to consider whether Mr Farley had been liable to make payments of child support maintenance to his former wife. The answer to each of the questions on which the opinion of the High Court was sought is therefore No. It follows that this appeal must be dismissed.

In order to spare the parties the expense of attending court when this judgment is handed down, I leave it to the parties to see whether an order for the costs of the appeal can be agreed. In case such an order cannot be agreed, I give the parties liberty to apply for the issue of costs to be determined by me. Any application for costs should be filed within 14 days of the handing down of this judgment, and I will consider that application without a hearing on the basis of any written representations which the parties wish to make. Permission to appeal has to be sought from the Court of Appeal in view of para. 4.9 of the Practice Direction relating to Part 52.