Sutherland, R (on the application of) v Secretary of State for Work and Pensions

MR JUSTICE COLLINS: This is an appeal, by way of case stated, by Phillip Sutherland in respect of a liability order made against him by the justices sitting in the Dorset Family Proceedings Court in respect of payments due from him as an absent parent under the Child Support Act.

The background, as set out in the case, is as follows. On 18th May 1995 a maintenance enquiry form was sent to the appellant, he having split up from his wife. Although they had lived together for a short period after the split the actual parting took place in June 1994. In any event, they were apart by the time the maintenance enquiry form was sent to him.

On 9th October 1997 a maintenance assessment was calculated for the amount of £20.79 a week, but that was backdated to the date of the issue of the maintenance enquiry form in accordance with the provisions of Regulation 30 of the Child Support (Maintenance Assessment Procedure) Regulations 1992. On 13th October 1997 the assessment was as the justices found issued.

There were a number of subsequent assessments because, no doubt, of changes in the value of money, and the amounts due each week were increased. By 31st May 2001, which was the latest amount, the sum payable had risen to £50.82 a week.

On 14th May 2002 the Child Support Agency sent a letter to the appellant giving details of the child maintenance account statement and an outstanding balance, which by then had reached £18,879.31, which covered the period from 18th May 1995 to 6th May 2002. On 19th June a formal letter was sent warning him that legal action would be taken if the amount was not paid.

The complaint was laid on 26th September 2002 and eventually the matter was dealt with by the court, because there had been adjournments due to non-attendance, on 20th March 2003.

There were a number of points taken which are set out in the Case, which are now not being pursued. The only one that I have to consider is an argument that the notice was bad; that is to say, the notice which was the foundation for the application for a liability order, because the amounts claimed dated back to May 1995. The complaint was laid on 26th September 2002, and there is a provision in the Regulations that an application may not be instituted more than 6 years after the day on which payment of the amount in question became due. It is said that the first of the sums which make up the amount allegedly due became due back in May 1995 which, of course, is more than 6 years before the laying of the complaint. The justices rejected that submission and made the order which they were asked to make.

I should now go to the legislation so far as material. Section 1 of the Child Support Act 1991 provided at the material time:

Thus the maintenance assessment is the starting point, because until that assessment is made there is no obligation under the statute, in the sense of an obligation which can be enforced, to make any payments. There is, of course, a general obligation simply because of subsection (2) of section 1 which says that maintenance payments should be made by an absent parent in respect of a child. But it is not until the maintenance assessment comes into being that any liability under the Act can be enforced.

We then go to section 33 of the Act, which deals with liability orders, and provides by subsection (1):

There are, of course, as one would expect, other means of appealing against a maintenance assessment, but if that appeal route is not taken then the assessment becomes unchallengeable. Certainly no matter can be raised against it in the Magistrates' Court if a liability order is sought. A liability order does nothing in itself, but it enables the Secretary of State to take other steps to enforce, such as, for example, as here, some sort of charging order.

There are, as one would expect, a significant number of different regulations which have been made in relation to these various provisions. The ones that are particularly relevant for my purposes are contained in Part IV of The Child Support (Collection and Enforcement) Regulations 1992, No. 1989.

Regulation 27 provides:

I do not need, for the purposes of this appeal, to go into any question of arrears.

Regulation 28 provides:

One notes immediately the distinction between 27(2), which says the notice, which is the prerequisite to the application for a liability order, must refer to the amount which it is claimed has become payable, and 28(2) which talks about 6 years after the day on which payment of the amount in question became due. One of the issues before me was what, if anything, was the effect of the distinction between the use of the word "payable" and the use of the word "due".

The first thing to note about 28(2), which, incidentally, as the magistrates correctly found, applied to the exclusion of any provisions under the Limitation Act of 1980, is that the amount in question, on a literal reading of the paragraph, must be the amount contained in the notice applying for the liability order, or to put it the other way and follow the wording of the regulation, the amount in respect of which the liability order is claimed. That amount did not and could not become due until the date of the notice. If one reads 28(2) literally one may be driven to the conclusion that the 6 years begins to run from that date.

Neither counsel, and in particular Mr Sheldon on behalf of the Secretary of State, has submitted that that is the correct way of looking at it, in Mr Egleton's case, not surprisingly, but in Mr Sheldon's case, because he recognises that that would be a strange approach. It would seem that the intention behind this regulation was to protect fathers who had an obligation to make payments from having to have payments due years ago taken into account. A cut off point of 6 years was regarded, it would seem, by Parliament, as a reasonable time over which any payments could be demanded, if no action had been taken at an earlier stage.

I am, incidentally, not told why action before the rather lengthy time that elapsed was not taken, but I must not and do not assume that there was not a good reason for that to have happened. Certainly no submission has been made that there was any bad reason and I have no information before me which would entitle me so to assume.

The rival contentions, assuming that one construes 28(2) as referring to amounts rather than amount, that is to say, if one is entitled to look back to the date on which the payments first became due, is, in the case of Mr Egleton, that one must look back to May 1995, which is the date on which the first of the payments was due, and in Mr Sheldon's case, one must look back to the date when the assessment was made in October 1997. Mr Sheldon submits, that albeit there was a general obligation to pay maintenance, the legal obligation under the Act did not crystallise until the assessment was made. The whole Act is constructed on the basis that that is the necessary first step to enable any action to be taken of any sort by the Child Support Agency. It is, effectively, the demand which means that payment must be made.

It seems to me that one can indeed construe 28(2), if one reads the singular including the plural, and one talks in terms of payments of the amounts in question, as looking back to an earlier date. That, in my judgment, accords with the clear intention, as I have indicated, behind the limitation that is there provided for.

I have to determine the true meaning of the regulation and decide whether it goes back, in this case, to May 1995 or October 1997. It seems to me that the whole matter turns on whether there is a liability. That liability does not come into existence until the assessment is made. The assessment, it is true, can be backdated, and so to that extent there is a possibility of going back somewhat earlier than the 6 years of actual liability, in a sense of actual amounts covering a specified period of time. Nevertheless, normally, as I understand it, there will not be a lengthy period between the application being made by the mother and the decision and the notice of assessment.

That being so, it does not seem to me that there is anything contrary to the intention of Parliament in viewing this as a provision which does indeed relate to the date when, to use the wording "payment became due", because it could not become due, in a sense that there could be no enforcement in relation to it, until that date.

It is said, by Mr Egleton, that "payable" can properly bear that construction because if something is payable it means that it is liable to be paid. It can only be liable to be paid after that date. But "due" is a wider word and is apt to cover a situation where the payment was notionally due, in the sense that the appellant knew he had the obligation but he did not actually have to pay it until the notice of assessment was made.

It seems to me that that is a wholly artificial distinction that is being drawn and that the use of the word "due" cannot bear that meaning.

It so happens that the same expression, albeit in a different context, is contained in provisions dealing with the payment of council tax. A case came before Lightman J on 18th February last: Regentford v Thanet District Council [2004] EWHC 246 (Admin). The provision in question there was that no application could be made for a liability order in respect of the sum after the period of 6 years, beginning with the day on which it became due under Part V of the Regulations. Lightman J concluded that there was a distinction between a possible duty to pay and an actual duty to pay. It was the actual duty to pay which triggered the 6 year period. He said, in paragraph 17:

It seems to me that the same analogy can properly be said to apply here. The distinction that Mr Egleton seeks to draw, in that the council tax regulation specifically refers to the relevant part, Part V, whereas 28(2) does not refer specifically to any particular part, is not a point which is a material distinction because the regulation is contained in Part IV and is obviously relevant to Part IV, but is also more generally relevant to the whole scheme which includes, as I have said, the need for an assessment before there is any liability, or as I would put it following Lightman J, any triggering of the obligation as a matter of law.

Incidentally, this point was also considered and ruled on by Mr Turnbull, the Commissioner, in an appeal which had come before him in relation to child support. He said this in paragraph 17:

He goes on:

I do not, of course, know what, if any, argument Mr Turnbull had heard on that point, but I am certainly assisted in my construction by the knowledge that the Child Support Commissioner, who has a considerable expertise in this field, has reached the same conclusion.

In those circumstances I take the view that the magistrates were correct in deciding as they did; namely, that there was no limitation problem in this case since time did not begin to run until October 1997 when the appellant was notified of the assessment.

Mr Egleton submitted that there was no power in the magistrates, if he was right, to amend the figure. It was an all or nothing situation, because the application was for a liability order in a particular sum, and if it transpired that that sum was incorrect, then the order could not be made. I find that an impossible construction. It seems to me that if, for example, a particular defendant establishes that he has made payments which have not been properly taken into account, albeit there are substantial arrears, it would be open to the magistrates to make a liability order in the correct amount. Otherwise the logic of the submission may be that if any sums are paid, perhaps at the last moment on the day before the application is made, or even on the day after the application is made, that might serve, absurdly, to mean that the CSA had to abandon the application and make a fresh application, or rather the court, if that was put before it, would be bound to require a fresh application.

So here, if it were to transpire that certain sums were out of time in any case, it would be open to the magistrates, in my view, to make an order limited to the amounts that were in time, if that situation should ever arise.

I am against Mr Egleton on his main point. I am satisfied that the magistrates reached a correct conclusion. They ask three questions which I should answer: (1) Were we correct in applying Regulation 28(2) of The Child Support (Collection and Enforcement) Regulations 1992 to determine the limitation period for instituting the proceedings for a liability order? The answer to that is "yes", the contrary has not been argued. (2) Were we correct in ruling that the payments only became due on 13th October 1997; namely, on the date that the maintenance assessment was notified to the appellant? The answer to that is "yes". (3) Were we correct in ruling that the human rights of the appellant had not been breached by making the liability order? The answer to that is "yes", and again the contrary has not been argued. It follows that this appeal must be dismissed.

MR SHELDON: My Lord, I have two matters, one is an application for costs on the basis that this --

MR JUSTICE COLLINS: Are you legally aided?

MR EGLETON: My Lord, no.

MR JUSTICE COLLINS: Yes.

MR SHELDON: My Lord, the Secretary of State has been put to considerable expense in defending --

MR JUSTICE COLLINS: I understand that, but we are going to have a real problem here, are we not? But I suppose the answer is you are entitled to costs, unless you can suggest any reason why they should not be, Mr Egleton?

MR EGLETON: My Lord, costs normally follow the event and I would have been asking for my costs if I had succeeded.

MR JUSTICE COLLINS: I do not think there is any way I can say they should not have costs, is there?

MR EGLETON: My Lord, not that I can think of.

MR JUSTICE COLLINS: It is a matter for them how they enforce or whether they enforce.

MR EGLETON: I think what my learned friend is seeking is subject to a detailed assessment if not agreed, in any event.

MR JUSTICE COLLINS: Of course, of course. Yes, you can have your order.

MR SHELDON: Thank you, my Lord. The second matter is a procedural matter or a technical matter on the question and answer. The actual date on which the notification of the calculation was sent, or was received by Mr Sutherland, in this case the magistrates refer to 13th October --

MR JUSTICE COLLINS: Well, they find, as a fact, that that was the date he received it.

MR SHELDON: If they meant by that, that that was the date on which the letter of 10th was received by him, then I am more --

MR JUSTICE COLLINS: That is what I assumed, because that is the finding of fact. That is perfectly conceivable. I do not know what day of the week the 10th was but if, for example, it had been a weekend it may well have been received three days later. Equally, knowing the way the post operates nowadays, three days is not unreasonable.

MR SHELDON: My Lord, if that is the way in which your judgment is intended to be read I am more than happy with that.

MR JUSTICE COLLINS: Yes, I will make that clear if you like in correcting the transcript, but that certainly was my understanding.

MR SHELDON: My Lord.

MR JUSTICE COLLINS: Mr Egleton, that is right, is it?

MR EGLETON: Yes, my Lord, that was my understanding. It may well be that they arrive at that date because, of course, as your Lordship will recollect, on page 65 there is a handwritten comment and it looks as though --

MR JUSTICE COLLINS: That may be. Anyway, that is what I assumed and that is what I intended, that it was the date of receipt of the letter of the 10th.

MR SHELDON: If that is right then we are happy with that, my Lord. Obviously if an absent parent says they never receive a notice then there may be issues as to --

MR JUSTICE COLLINS: That is a different point, that is back to the decision we mentioned earlier.

MR SHELDON: Yes, my Lord.

MR EGLETON: My Lord, yes, that would be subject to the interpretation, I think, of deemed service.

MR JUSTICE COLLINS: Yes, of course. But if you show that you did not receive service then the date might be later.

MR EGLETON: Indeed, my Lord.

MR JUSTICE COLLINS: No other applications?

MR EGLETON: My Lord, no.

MR JUSTICE COLLINS: In fact I think, I am right in saying, even if you did think of it, there is no appeal from me, is there? Section 28A of the Supreme Court Act 1981, does that not apply?

MR EGLETON: I have no instruction to apply.

MR JUSTICE COLLINS: No, no, but I think just for the avoidance of any argument, I do not think there is any right of appeal. I think I am correct, am I not?

MR SHELDON: My Lord, I think you are correct.

MR JUSTICE COLLINS: This being a civil case stated. I think, rather curiously, there is no appeal from -- yes, it is section 28A:

I am not sure people are altogether entirely aware of that. It has been in force for over 4 years now, but it ought to be borne in mind.

MR SHELDON: My Lord, if in your judgment, when you look at it after the transcribing, you wish to --

MR JUSTICE COLLINS: No, the reason I know is that there is a case called Westminster City Council v O'Reilly and Others in the Court of Appeal which deals with it.

MR SHELDON: My Lord.

MR JUSTICE COLLINS: It just happens that I had to consider that case in a judgment I gave this morning.

MR SHELDON: Did they say that they did not have jurisdiction --

MR JUSTICE COLLINS: The Court of Appeal said: no, he did not have jurisdiction to hear the appeal, but made some suggestions about judicial review which I have said I am not entirely happy with.

MR SHELDON: Thank you, my Lord.

MR JUSTICE COLLINS: All right, thank you both.

MR EGLETON: Much obliged.