Preston Paris Ingold & Ors, R (on the application of) v Secretary of State for Work and Pensions

The Legislative Framework

“ 1 The duty to maintain .

For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.

For the purposes of this Act, a non-resident parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.

Where a maintenance calculation made under this Act requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.”

2 Welfare of children: the general principle

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

4 Child support maintenance

A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance calculation to be made under this Act with respect to that child, or any of those children.

Where a maintenance calculation has been made in response to an application under this section the Secretary of State may, if the person with care applies to the Secretary of State under this subsection, arrange for—

the collection of the child support maintenance payable in accordance with the calculation;

the enforcement of the obligation to pay child support maintenance in accordance with the calculation.

(2A) The Secretary of State may only make arrangements under subsection (2)(a) if—

the non-resident parent agrees to the arrangements, or

the Secretary of State is satisfied that without the arrangements child support maintenance is unlikely to be paid in accordance with the calculation.

Where an application under subsection (2) for the enforcement of the obligation mentioned in subsection (2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever the Secretary of State considers it necessary to do so, the Secretary of State may act accordingly.

A person who applies to the Secretary of State under this section shall, so far as that person reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State being provided with the information which is required to enable—

the non-resident parent to be identified or traced (where that is necessary);

the amount of child support maintenance payable by the non-resident parent to be assessed; and

that amount to be recovered from the non-resident parent.

Any person who has applied to the Secretary of State under this section may at any time request the Secretary of State to cease acting under this section.

It shall be the duty of the Secretary of State to comply with any request made under subsection (5) (but subject to any regulations made under subsection (8)).

The obligation to provide information which is imposed by subsection (4)—

shall not apply in such circumstances as may be prescribed; and

may, in such circumstances as may be prescribed, be waived by the Secretary of State.

The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.

…”

11 Maintenance calculations

An application for a maintenance calculation made to the Secretary of State shall be dealt with by the Secretary of State in accordance with the provision

made by or under this Act.

The Secretary of State shall (unless the Secretary of State decides not to

The amount of child support maintenance to be fixed by a maintenance

If the Secretary of State has agreed to a variation, the amount of child support

Part II of Schedule 1 makes further provision with respect to maintenance

16 Revision of Decisions

Any decision to which subsection (1A) applies may be revised by the

either within the prescribed period or in prescribed cases or

either on an application made for the purpose or on the Secretary of

a decision of the Secretary of State under section 11 (Footnote: ³ ) , 12 or 17;

a decision of the First-tier Tribunal on a referral under section

the Secretary of State may (if appropriate) do so as if ... revising a decision

if the Secretary of State does that, the decision as revised is to be

In making a decision under subsection (1), the Secretary of State need not

Subject to subsections (4) and (5) and section 28ZC, a revision under this

Regulations may provide that, in prescribed cases or circumstances, a

Where a decision is revised under this section, for the purpose of any rule as

Except in prescribed circumstances, an appeal against a decision of the

“17 Decisions superseding earlier decisions

Subject to subsection (2), the following, namely—

any decision of the Secretary of State under section 11 (Footnote: ⁴ ) or 12 or this

section, whether as originally made or as revised under section 16;

any decision of an appeal tribunal or the First-tier Tribunal under

section 20;

…

any decision of an appeal tribunal or the First-tier Tribunal on a

referral under section 28D(1)(b);

any decision of a Child Support Commissioner or the Upper Tribunal

on an appeal from such a decision as is mentioned in paragraph (b) or

(d),

may be superseded by a decision made by the Secretary of State, either on an

application made for the purpose or on the Secretary of State’s own initiative.

The Secretary of State may by regulations make provision with respect to

the exercise of the power under subsection (1).

Regulations under subsection (2) may, in particular—

make provision about the cases and circumstances in which the

power under subsection (1) is exercisable, including provision

restricting the exercise of that power by virtue of change of

circumstance;

make provision with respect to the consideration by the Secretary of

State, when acting under subsection (1), of any issue which has not led

to the Secretary of State's so acting;

make provision with respect to procedure in relation to the exercise

of the power under subsection (1).

Subject to subsection (5) and section 28ZC, a decision under this section

shall take effect as from the beginning of the maintenance period in which it is

made or, where applicable, the beginning of the maintenance period in which

the application was made.

(4A) In subsection (4), a “maintenance period” is (except where a different

meaning is prescribed for prescribed cases) a period of seven days, the first one beginning on the effective date of the first decision made by the Secretary of State under section 11 or (if earlier) the Secretary of State’s first default or

interim maintenance decision (under section 12) in relation to the non-resident

parent in question, and each subsequent one beginning on the day after the last

day of the previous one.

Regulations may provide that, in prescribed cases or circumstances, a

decision under this section shall take effect as from such other date as may be

prescribed.”

“20 Appeals to First-tier Tribunal

A qualifying person has a right of appeal to the First-tier Tribunal against—

a decision of the Secretary of State under section 11, 12 or 17

(whether as originally made or as revised under section 16);

a decision of the Secretary of State not to make a maintenance

calculation under section 11 or not to supersede a decision under section

17;

. . .

the imposition (by virtue of section 41A) of a requirement to make

penalty payments, or their amount;

In subsection (1), “qualifying person” means—

in relation to paragraphs (a) and (b)—

the person with care, or non-resident parent, with respect to

whom the Secretary of State made the decision, or

in a case relating to a maintenance calculation which was

applied for under section 7, either of those persons or the child

concerned;

…

in relation to paragraph (d), the parent who has been required to make

penalty payments; and

in relation to paragraph (e), the person required to pay fees.

(2A) Regulations may provide that, in such cases or circumstances as may be

prescribed, there is a right of appeal against a decision mentioned in subsection (1)(a) or (b) only if the Secretary of State has considered whether to revise the decision under section 16.

(2B) The regulations may in particular provide that that condition is met only

where—

the consideration by the Secretary of State was on an application,

the Secretary of State considered issues of a specified description, or

the consideration by the Secretary of State satisfied any other

condition specified in the regulations.

A person with a right of appeal under this section shall be given such notice as may be prescribed of—

that right; and

the relevant decision, or the imposition of the requirement.

Regulations may make—

provision as to the manner in which, and the time within which,

appeals are to be brought; ...

…

provision that, where in accordance with regulations under

subsection (2A) there is no right of appeal against a decision, any

purported appeal may be treated as an application for revision under

section 16.

The regulations may in particular make any provision of a kind mentioned

in Schedule 5 to the Social Security Act 1998.

. . .

In deciding an appeal under this section, the First-tier Tribunal—

need not consider any issue that is not raised by the appeal; and

shall not take into account any circumstances not obtaining at the

time when the Secretary of State made the decision or imposed the

requirement.

If an appeal under this section is allowed, the First-tier Tribunal may—

itself make such decision as it considers appropriate; or

remit the case to the Secretary of State, together with such directions

(if any) as it considers appropriate.”

“33 Liability orders.

This section applies where—

Where regulations have been made under section 29(3)(a)—

“[The 1991 Act] imposed a responsibility for maintaining a qualifying child on each parent (section 1(1)). It imposed a duty on the absent or non-resident parent to make payment of child maintenance in any periodical sums assessed (section 1(3)). It obliged the Secretary of State, on the application of either parent, to assess the child maintenance payable according to a statutory formula (sections 4, 11). It empowered the Secretary of State to take enforcement action if authorised to do so (sections 4, 6). It gave the Secretary of State significant powers (sections 14, 15, 30, 31, 33, 35, 36, 39A). While the role of the courts was preserved in relation to consensual settlements reached by parents not in receipt of state benefit (section 8), and there can be no doubt of the Secretary of State’s duty to account to the caring parent for sums which he has received from the paying parent, subject to any appropriate deduction of benefit, the Act conferred no right of recovery or enforcement on a caring parent … against an absent or non-resident parent ...” (emphasis added)

“The following observations may be made on these statutory provisions.

The Act of 1991 together with regulations made under it provide a detailed and apparently comprehensive code for the collection of payments due under maintenance assessments and the enforcement of liability orders made on the application of the Secretary of State…

Although section 1(3) provides for a duty which arises when the maintenance assessment is made, this duty is not expressed as a civil debt. Mr Crampin accepts that the duty could not be directly enforced by action in any civil court, or by any means other than as provided in the Act.”

In agreeing with this, Morritt LJ added at 1540-1541:

The Act creates a legal obligation on the NRP to pay maintenance sums calculated to be due (section 1(3)).

The Act does not confer any right on the PWC to receive such payments, whether from the NRP or the Defendant; nor may a PWC enforce directly against the NRP.

The Defendant cannot sue for any arrears of maintenance sums.

The Act confers a discretion (subject to various pre-conditions) on the Defendant whether to collect or enforce, and confers a range of discretionary powers for that purpose (section 4(2)). The Defendant does not guarantee payment, and is under no duty to secure that payment is made from the paying parent.

Direct pay, where the NRP pays the PWC directly, following a maintenance calculation. This involves no collection and enforcement action on the part of the CMS.

Collect & Pay, where the CMS collects and enforces the payment of money from the NRP on the PWC’s behalf (section 4(2)). This power only arises if the NRP agrees or if the Defendant is satisfied that the NRP is “unlikely to pay”: section 4(2A).

First, the Act requires the Defendant to have regard, when exercising his discretionary powers, to the welfare of any affected child (section 2). Children who may be affected include qualifying children but also other children who may be supported by the NRP (Footnote: ⁶ ) . The Defendant may need to take into account the fact that securing payment for qualifying children may be to the detriment of other children of the NRP.

Secondly, and importantly, whilst by section 11(1) the Defendant is under a general duty to deal with any application for a maintenance calculation in accordance with the Act, there are legal constraints on the exercise of collection and enforcement powers:

“ 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…”

“The Act confers a discretionary power, not a duty, on the CSA to institute enforcement action. There is no timetable set out within which any such enforcement action must be taken. It goes without saying that the speed and effectiveness of enforcement action depends, in part, on the extent to which resources are available to the agency and to whether those resources are allocated within the agency for the enforcement function. Moreover, enforcement activity in respect of one case may mean less activity in respect of another. No doubt the task of the CSA in dealing with parents who evade payment or who are determined to avoid paying is a difficult one. Aggressive enforcement may not always be the right course of action, given the variety of different family circumstances in which arrears may arise. In many cases there will not necessarily be a simple answer to an enforcement problem. The duty under s.2 of the Act, to take into account the welfare of any child, may also act as a brake on enforcement action.”

The Guidance published by the Defendant

Be considered a victim of domestic violence or abuse and

Have reported the domestic violence or abuse to an appropriate person and

Have informed the CMS of it at the time of making their application and

State the appropriate person to whom this has been reported at the time of making the application.” (Footnote: ¹⁰ )

“The definition of domestic violence and abuse and the list of bodies to which this must have been reported is not laid down in regulations, but is set out in two sets of guidance to which the regulations refer:

That link takes the reader to Guidance on Domestic Abuse which states in particular that: “ Domestic abuse is not always physical violence. It can also include … economic abuse .” Moreover, the Guidance issued on Regulation 4(3) of the Child Support Fees Regulations 2014 also provides that domestic abuse can encompass financial abuse. Indeed, Sir James Eadie KC made clear that the Defendant does not take issue with the fact that domestic abuse may consist of economic abuse.

“ Chapter 49 - Unlikely to pay

Introduction

49001 Where a maintenance calculation has been made, the PWC or CiS may apply to the CMS for

the collection of child maintenance payable under the calculation, and

the enforcement of the obligation to pay in accordance with the calculation.

49002 A DM [Decision Maker] may only make arrangements for the collection of payments if

the NRP agrees to the arrangements, or

the DM is satisfied that without the arrangement child support maintenance is unlikely to be paid in accordance with the calculation (referring to s. 4(2A) of the 1991 Act).

49003 Where the PWC or CiS has requested that their case be administered as collect and pay and the NRP does not agree to the arrangements, the DM should carry out an ‘unlikely to pay’ check.

Format of the check

49004 The unlikely to pay check decision is made by the DM using their judgement and based on the merits of the individual case. When considering the case DMs need to decide if the NRP is unlikely to make regular payments voluntarily.

Basic criteria for carrying out the check

49005 When making a decision as to whether a NRP is deemed unlikely to pay, DMs should consider the following factors

The NRP pays via an enforced method – for the majority of cases where a NRP pays via an enforced deduction from earnings order or deduction from earnings request they will be determined as unlikely to pay.

The NRP is undergoing legal enforcement action – where a case is undergoing legal action to establish compliance it will usually be appropriate to determine them as unlikely to pay.

The NRP has undergone legal enforcement action or paid via an enforced method in the six months prior to requesting direct pay – the NRP will be determined as unlikely to pay unless the DM considers there is a good reason to believe the NRP is not to be deemed as unlikely to pay, e.g. the full clearance of arrears via a voluntary lump sum.

The NRP has missed one or more payments in the past six months –DMs must use their discretion to determine whether this constitutes an unlikelihood to pay. Where a payment has been missed DMs must evaluate any available evidence to determine whether or not there was a reasonable explanation for the missed payment.

The NRP has demonstrated a pattern of behaviour over the past six months which indicates a potential to be considered unlikely to pay (Footnote: ¹¹ ) . Where a NRP has made all the required payments over the past six months they will generally be considered not unlikely to pay. However if from a behaviour pattern there is an indication that they may be unlikely to pay privately, DMs may decide that the NRP is nonetheless unlikely to pay, e.g. when payments are only being made following CMS action being taken.”

Note: this list is not definitive, nor does it mean that the NRP will automatically be deemed to be unlikely to pay in these circumstances, as consideration must be given to all other relevant factors (Footnote: ¹² ) .

…

49008 All NRPs must be presumed to be not unlikely to pay unless there is evidence to the contrary.

Informing clients

49009 DMs must contact both parties and explain the decision that has been made, why they have come to this decision and any other relevant information.

49010 This should be supplied to both parties via telephone. Only where the parties cannot be reached by telephone should a notification by post confirming the decision and inviting representations be considered.

NRP not found unlikely to pay

49011 Where the NRP is not found unlikely to pay, both parties must be informed that

the available evidence has been considered and it does not suggest that the NRP would be unlikely to pay maintenance privately. As such a direct pay arrangement will now be set up. The PWC should supply a reasonable method by which the NRP can make direct payments. The CMS may (with permission) transfer details such as bank account information from one party to another if the two parties do not have contact, and 

they will continue to receive annual schedules informing them of the dates and amounts of maintenance that must be paid and that these must be met.

NRP found unlikely to pay

49012 Both parties must be informed of the decision.

The NRP must be informed on what basis CMS have determined them to be unlikely to pay and the approximate date they will become eligible for direct pay or a compliance opportunity.

The PWC must be informed that the case will continue to be managed under collect and pay provisions however this will not necessarily be permanent. The NRP will have the opportunity to demonstrate their compliance within the collection service and will, if they remain compliant, become eligible for direct pay in the future. The PWC must be informed that if this does happen they will be fully informed of this prior to any change to direct pay.

Appealing the decision

49013 The unlikely to pay check is not a decision that can be appealed and both parties will be informed of this fact when they are told of the decision.

49014 If either client is unhappy with the decision they may ask for it to be looked at again.

49015 If, following this, the client remains unhappy they have the option to raise a formal complaint. They may also take their case to the Independent Case Examiner or, if they allege maladministration, the Ombudsman.

Clients also have the right to seek an independent Judicial Review.

The compliance opportunity

49016 It is possible that a NRP who was once deemed unlikely to pay may now be willing to comply with a voluntary arrangement and the CMS will offer a compliance opportunity.

49017 The compliance opportunity is a reactive process and therefore is only offered at the request of a NRP. The format of the compliance opportunity will depend on the circumstances of the case.

NRP paying by a non-enforced method of payment

49018 The NRP must make 6 months of payments in full and on time (unless there is good reason for a delay in payments being made). If the case is less than 6 months old, then the NRP must have made all payments due to date.

49019 The compliance opportunity is about demonstrating a consistent pattern of behaviour.  Therefore, if the NRP offers to pay off any arrears in a lump sum payment the CMS should encourage this, but it will not shorten the compliance period. When the time comes to review the unlikely to pay decision, any positive behaviour by the NRP can be considered as supporting evidence.

49020 If the NRP has made 6 months of payments as required, they will be eligible to switch to direct pay unless there is any evidence that suggests this would not be appropriate. The PWC must be contacted and informed that the case is moving to direct pay due to the NRP displaying acceptable compliant behaviours (Footnote: ¹³ ) .

49021 If the NRP has not made 6 months of payments as required, the missed payments must be investigated. If there is no good reason for the missed payments, or the DM believes that there is another reason why the NRP is unlikely to pay, the DM must notify them that they will not qualify for direct pay until they have made 6 months of payments on time and in full inclusive of payments already made.”

The Callan Report

The 2023 Act

“ 4 Child support maintenance

A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance calculation to be made under this Act with respect to that child, or any of those children.

Where a maintenance calculation has been made in response to an application under this section the Secretary of State may, if the person with care applies to the Secretary of State under this subsection, arrange for—

the collection of the child support maintenance payable in accordance with the calculation;

the enforcement of the obligation to pay child support maintenance in accordance with the calculation.

(2A) The Secretary of State may only make arrangements under subsection

(2)(a) if—

The Claimants’ case

Ground 1: the ongoing failures of collection and enforcement in the Claimants’ cases and the policies and practices giving rise to the same constitute a disproportionate interference with the rights of both the children and their mothers to the payment of the monies due to them as protected by Article 1 of the First Protocol (“A1P1”) of the European Convention on Human Rights (“ECHR”).

Ground 2: the ongoing failures to collect and enforce the maintenance payments in the Second to Eighth Claimants’ cases (including investigatory steps preparatory thereto) and the policies and practices giving rise to the same breach of the Defendant’s positive obligation under Article 8 ECHR (“Article 8”) to protect the Claimants, as known victims of domestic violence, from ongoing economic abuse.

Ground 3: the failures to collect and enforce the maintenance payments in the Claimants’ cases (including investigatory steps preparatory thereto) and the policies and practices giving rise to the same, constitute discriminatory treatment on the part of the Claimant mothers under Article 14 ECHR (“Art 14”) read with A1P1 and/or Article 8 on grounds of sex. The scheme has a particular disparate impact on the Second to Eighth Claimants, as victims of domestic violence, both because the data shows that they are more likely to be affected by the enforcement failures; and because these failings enable and perpetuate economic (and psychological) abuse, a form of gender based violence against women (and their children).

Ground 4: the failures to collect and enforce the maintenance payments in the Claimants’ cases, and the policies and practices giving rise to the same, breach the Defendant’s Padfield obligation to promote the legislative purpose of the 1991 Act.

“The key CMS failures evident from the Claimants’ cases, and the wider evidence including from Gingerbread (the leading single parent charity) & the Child Poverty Action Group (“CPAG”), can be summarised as follows:

Systemic failings in the Collect & Pay scheme , including significant delays in setting up cases and unlawful refusals to put cases on the scheme despite obvious and lengthy failures to pay (e.g. unlawfully deferring to NRP’s choice and/or failure to exercise discretion altogether), obvious omissions in the ‘Unlikely to Pay’ policy including a lack of effective criteria, and procedural unfairness for the PWC in determining whether the NRP is ‘unlikely to pay’;

Absence of appropriate policy regarding the treatment of victims of domestic violence in order to avoid or mitigate furtherance of abuse in collection and enforcement, thereby perpetuating further economic, psychological abuse and controlling & coercive behaviour for the women and their children;

Failures to take, or significant and lengthy delays in taking, action to enforce payment of arrears (including investigatory steps preparatory thereto), with consequences for recoverability (earlier arrears written off, NRP no longer earning by time of enforcement); systemic breach of CMS’s own policies and statements on enforcement action;

Underuse of Deduction From Earnings Orders (“DEOs”) (omissions and failures to deploy sooner or more frequently and failures to investigate non-compliance);

Underuse of other Enforcement Measures (including suspending or disqualifying from driving or holding a passport);

Inadequate monitoring and/or complaints system.”

For the avoidance of doubt, I do not interpret these proceedings as entailing challenges to individual decisions made in individual cases (contrary to the suggestion in the Acknowledgment of Service (“AOS”)); these are relied upon as illustrative of the alleged failings in policies and practice .” (emphasis added)

As explained at the outset, contrary to the Defendant’s suggestion, the Claimants do not bring a systems challenge in respect of A1P1 . The Defendant’s arguments at [DGD/45-7, 49-50] therefore fall away. As explained above, the individual Claimants are challenging the breaches of their own rights under A1P1 in their individual cases. The Defendant has not taken reasonable steps to protect their A1P1 rights.” (emphasis added)

The Claimants and their children have been subject to a catalogue of errors, delays and failures on the part of the Defendant. While they are not challenging any one decision or omission specifically , they are challenging the accretion of those individual decisions and the key patterns of failings which have perpetuated their individual cases and which are broadly consistent across all the Claimants. They are challenging a continuing state of affairs, based on a persistent pattern of unlawful actions and omissions.” (emphasis added)

The nature of the challenge

They do not advance a systemic challenge;

They do not challenge any one decision or omission in their individual cases;

They only challenge in their individual cases what they term “the accretion of those individual decisions and the key patterns of failings which have perpetuated their individual cases”, being what they term a “continuing state of affairs” based on a persistent pattern of unlawful actions and omissions in 5 particular respects (paragraphs 49 and 52 of their skeleton). They rely in this regard upon R(G) v Secretary of State for Justice [2010] EWHC 3407 (Admin).

The lawfulness of the DMG guidance (i.e. a systemic challenge) and

Individual breaches of the protective duty under Article 8, again relying on the five continuing, specific aspects of alleged unlawfulness relied upon under A1P1 (paragraph 110 of their skeleton). It is said that the court must ask itself whether in the Claimants’ individual cases reasonable steps are taken to protect them from economic abuse (ibid, paragraph 86).

The Evidence

The Claimants

A witness statement of Preston Paris Ingold and three witness statements of Angela Ingold;

Three witness statements of AA (C2);

Three witness statements of BB (C5);

Three witness statements of CC (C7).

The witness statement of Duncan Gilchrist, Deputy Director for Child Maintenance Policy at the Department of Work and Pensions (“DWP”).

Four witness statements of Johanne Wilkie (each one addressing the specific circumstances of each of AA, BB, CC and Ms Ingold), who is the Judicial Review and Litigation Manager for the CMS within the DWP.

“11… the relationship between separated parents can be emotionally fraught and characterised by anger and mistrust. The CMS frequently has to deal with allegations and counter-allegations about circumstances relevant to child maintenance obligations, as well as parents who deliberately seek to avoid collection and enforcement.

… decisions on collection and enforcement are discretionary. This reflects the fact that the CMS often has to balance the competing interests of the NRP and the PWC, and it must always consider the welfare of any affected child. The CMS often deals with child maintenance arrangements in the context of family arrangements where one or both parents have children from relationships with different partners. Collection and enforcement of child maintenance may therefore affect more than one family. The welfare of the child for whose benefit maintenance is being paid must always be taken into account, but so must that of other affected children.

… in practice, many of the cases the CMS deals with involve situations where both parents and their families are facing financial hardship. This means that decisions on collection and enforcement may have significant effects on the well-being of families of both PWCs and NRPs. Very low incomes can also result in missed payments, and when arrears build up it can be particularly challenging to recover them, or to do so in a short timescale. Of course, there are some cases where an NRP may have significant financial means and employ complex accounting and financial techniques to attempt to hide the true scale of their wealth from the CMS. But these are a very, very small minority of cases. The parents that make up the CMS’s overall caseload overwhelmingly fall towards the bottom end of the income scale. As I explain further below, 43 percent of NRPs on Collect & Pay arrangements are on universal credit. 46 percent do not pay tax because they earn less than the personal allowance, currently £12,570 per annum, and these parents represent 62 percent of those in arrears. A fundamental problem facing the CMS when it comes to collecting or enforcing against such NRPs is that there is often very little, if any, money to be had.

… the CMS has to respond to changing family and financial circumstances. Relationships, childcare arrangements and family make-up can change over time. Many of the parents with whom the CMS deals move regularly in and out of work and between different forms of employment and between work and benefits. Income is often erratic. Compliance with obligations can also be highly variable, depending on the NRP’s own circumstances.

… the CMS has to deal fairly with both parents. This may involve, for example, giving parents the opportunity to make representations, to provide evidence, or to comply with arrangements before being subject to enforcement action. Together with the complexity of underlying circumstances, this can mean that decisions take time. It can take time to verify information, parents can refuse to cooperate, or they can delay providing necessary information. Collection and enforcement can also take time because the CMS has to deal with third parties such as employers, banks and the courts, which can all be sources of delay.

… the CMS deals with these problems on a large scale. As I explain below, (see §§55-57) in September 2022 around 886,000 children were covered by CMS arrangements. In the financial year 2021/2022 the service cost £365 million to operate. The CMS must ensure not only that the welfare of children, and relevant interests of PWCs and NRPs are properly taken into account, but that taxpayers’ money is spent efficiently and fairly allocated between cases.”

First, the allegation that the PWC is not given an opportunity to make representations before a case is moved to Collect & Pay ignores the fact that in the large majority of cases, the only reason why the decision maker is considering the “unlikely to pay” test in the first place is because the PWC will have specifically requested that the case be moved from Direct Pay to Collect & Pay. In practice, PWCs can and do provide information about the NRP’s behaviour at the time of making that request. (Footnote: ¹⁶ )

Indeed, the CMS decision maker usually has repeated contact with both the PWC and the NRP throughout the process. The application of the “unlikely to pay” test is not a check-box exercise. What typically occurs is that the PWC contacts the CMS to say that payments have been missed and provides some material to evidence this, such as bank statements from one of their bank accounts; the CMS decision-maker then contacts the NRP to seek their views; the NRP then tells the CMS that payments are being made and provides their own evidence, such as bank statements showing payments to a bank account that is said to belong to the PWC. The CMS decision-maker will then contact the PWC again, to check e.g. whether the bank account in question is theirs, or whether the payments were for something other than child maintenance. Throughout this process of engagement, PWCs provide information about the NRP’s behaviour. (Footnote: ¹⁷ ) The CMS decision maker then weighs all the information and evidence presented to reach a determination.

Second, I am aware that the Claimants allege that withholding of payments can be a form of economic abuse by NRPs. The fact that payments have been withheld is picked up by the CMS and forms a key factor in the determination of whether the NRP should be moved to Collect & Pay. Decision makers can also factor in any domestic abuse background when taking decisions, if it is relevant to the question whether the NRP is unlikely to pay in the future. As set out above, DMG 49005 expressly notes that the list of factors in that paragraph “is not definitive” and that “consideration must be given to all other relevant factors” and the decision as to whether an NRP is unlikely to pay must be “made by the DM using their judgement and based on the merits of the individual case” [DG12/A841]. The CMS has no power under the current legislation, however, to move a case to Collect & Pay solely on the ground that there is a history of domestic abuse (Footnote: ¹⁸ ) .

…

Fourth, DMG 49008 provides that an NRP must be presumed to be not unlikely to pay unless there is evidence to the contrary. This reflects the fact that moving an NRP onto Collect & Pay can have a detrimental impact on the NRP, because it results in a 20 percent fee in addition the maintenance calculation and it can result in more intrusive collection methods (such as deductions from earnings orders). In these circumstances, it is important that decisions taken to move an NRP onto Collect & Pay without their consent are properly supported by evidence.

Fifth, decision-makers are required to inform both parents when a decision has been taken and the reasons for that decision together with any other relevant information: see DMG 49009-49012 [DG12/A841]. There is no formal right of appeal for either party against a decision that a NRP is or is not unlikely to pay but a dissatisfied parent may ask for the decision to be reconsidered and the DMG makes express provision for this: see DMG 49014. If a parent remains dissatisfied, they may raise a complaint, ask for the case to be referred to the independent case examiner or, if the complaint is of maladministration, the Parliamentary and Health Service Ombudsman, or seek judicial review: see DMG 49015.” (Footnote: ¹⁹ )

It is important to emphasise that, where a case is on Direct Pay, the CMS takes precautions to ensure that PWCs who are victims of domestic abuse are protected. For instance, CMS caseworkers act as intermediaries for the PWC and NRP to facilitate the exchange of bank details and ensure personal information is not shared. There is no need for any direct contact between them : (Footnote: ²⁰ ) see DMG 15057 to 15060 …

CMS caseworkers will also help PWCs set up bank accounts with non-geographic sort codes. These are sort codes that cannot be traced, so that the PWC can still receive payments directly from the NRP while keeping their location hidden. (Footnote: ²¹ )

I have described above how the DMG directs CMS decision makers to take account of all the circumstances of the case and use their judgment when determining whether the NRP is unlikely to pay. This means that they can and do take any domestic violence context into account when applying the statutory test (Footnote: ²² ) .

I am asked to comment on the suggestion at paragraph 105 of the SFGs that the CMS should prioritise the investigation of NRP’s finances, and any ensuing enforcement measures, in domestic violence cases. This suggestion, with respect, fails to appreciate the scale of the task facing the CMS. As outlined in the background section above, the current scheme is the product of many years of experience and reforms that have sought to strike a balance between the competing interests of fairness and accuracy in every case on the one hand and the effective and efficient administration of the scheme as a whole on the other. With that balance in mind, all cases in the 2012 scheme are treated equally. Not only is this fair to all cases, it also simplifies the administration required. It would be particularly challenging to seek to identify within the scheme all victims of domestic abuse. That is so in particular given the existence of allegations and counter allegations between parents that is unfortunately quite common in the scheme.

Further, the Claimants’ suggestion, even if it was administratively workable, would necessarily involve deprioritising other cases that could reasonably be seen as more deserving when assessed by another metric. Other PWCs are often vulnerable. In the caseload of the CMS there are many parents who are in particular need of assistance, for example because of homelessness, mental or physical disability or poverty. Other metrics could also be devised for prioritisation: e.g. the amount of arrears being incurred every month, or the duration over which arrears have been incurred. The only fair and efficient way to administer the scheme is to treat all cases equally and by reference to the facts of the individual case. Prioritisation for PWCs who were victims of domestic abuse could also risk exacerbating the existing problem of parents ‘fighting each other’ through the scheme. It could, unfortunately, increase the likelihood of false allegations of domestic abuse.

I am also asked to comment on the allegation at paragraph 121(b) of the SFGs that victims of domestic abuse are less likely to receive maintenance payments. The CMS and the DWP do not keep figures on the relative proportion of maintenance payments received by victims of domestic abuse as compared to other PWCs, but I understand that the statistics cited in this paragraph of the SFGs have been obtained from a survey by Gingerbread…

The first point I would make is that such surveys are necessarily less reliable than the DWP’s internal data on its case load. In particular, it is not clear how this survey was conducted. For instance, it is not clear whether the people conducting the survey were able to correct for self-selection bias: single parents who have experienced problems with collection of child maintenance may have been more likely to respond to the survey than those who have not experienced such problems. It is also not clear what category of single parents was being sampled, but it seems to be a survey of single parents generally rather than an analysis of parents with cases on Collect & Pay. The figures can say very little, if anything, about the functioning of the Collect & Pay system. I would be cautious about drawing any definitive conclusion from these figures that victims of domestic abuse are less likely to receive child maintenance payments through the scheme.”

Ground 2: Article 8

“the ongoing failures to collect and enforce the maintenance payments in the Second to Eighth Claimants’ cases (including investigatory steps preparatory thereto) and the policies and practices giving rise to the same breach the Defendant’s positive obligation under Article 8 ECHR (“Art 8”) to protect the Claimants, as known victims of domestic violence, from ongoing economic abuse”.

Article 8 Engagement?

“There is no doubt that article 8 entails both negative obligations - not to interfere - and positive obligations - to secure the right to respect for a person's private and family life, his home and his correspondence. But it does not confer any right to health or welfare benefits or to housing. The extent to which any member state assumes responsibility for supplying these is very much a matter for that member state. In this country, housing law defines the extent of the obligation and the power to provide housing at public expense. Social services law defines the extent of the obligation to provide services (which sometimes includes assistance with housing) for vulnerable people, such as children, the elderly, the sick and the disabled. If social services law does not provide assistance to an occupier whose personal circumstances are said to make eviction from this particular accommodation disproportionate, then I question whether housing law should be made to do so. In an appropriate case, it is incumbent upon the housing authority to liaise with the social services and education authorities before deciding to take action. There is nothing in the jurisprudence to indicate that article 8 requires more of them than is already required.”

See also R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 at [25] per Lord Reed (“Article 8 has never been held to impose an obligation on the state to have in place a programme of financial support for private or family life”); and R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 at [139] per Lord Hughes (“Article 8 … does not extend to requiring the state to provide benefits”).

“Like Kennedy LJ in the Court of Appeal, I do not think the enhanced contribution required of Ms M. impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M. has less money to spend than if she were required to contribute less… But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent's liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which IFP is directed.” (emphasis added)

“I am content to assume that the unit consisting of Ms M, her new partner and (especially when living with them) their children by their former marriages should be regarded as a family for article 8 purposes. I would also accept that the complicated formulae employed by the 1991 Act and the Regulations are intended to strike a fair balance between the competing demands (on often limited financial resources) of the children (when living away from the new home) and the new household. To that extent the legislation is intended, in a general sort of way, to be a positive measure promoting family life (or, it might be more accurate to say, limiting the damage inevitably caused by the breakdown of relationships between couples who have had children). But I do not regard this as having more than a tenuous link with respect for family life. I do not consider that this way of putting Ms M's case brings it within the ambit of respect for family life under article 8.” (emphasis added)

Mrs M’s case under article 8 read with article 14 of the Convention is that the regime fell “within the ambit” or “scope”, or was “one of the modalities of the exercise”, of her right to respect for (a) her family life with her children and former partner, (b) her family life with her new same sex partner and (c) her private life. She does not have to show an actual breach of the United Kingdom’s obligation to afford such respect under article 8, taken by itself… But the circumstances must fall within the ambit of article 8, in order for article 14 to be relevant. In this connection, I have had the benefit of reading in draft the opinion of my noble and learned friend, Lord Walker of Gestingthorpe, and I am in agreement with his analysis of the authorities and the reasoning leading him to the conclusion that a tenuous link between the child support regime and her family or private life is insufficient .

125. In the present case, Mrs M was entitled to respect for such continuing family life as she had with her children as well as, possibly, with her former partner. But the regime as a whole was directed at supporting her children in the new family in which her children lived; while the particular aspects of the regime about which she complains were directed at any new relationship she formed. If these aspects (or indeed the whole regime) had any bearing at all on her continuing family life with her children or former partner, the link could only be of the most indirect and tenuous nature. I agree with the Court of Appeal’s unanimous rejection of the case based on her family life with her children and former partner.” (emphasis added)

“I see considerable force in the argument that a state which prevents a parent with care from claiming child support through the ordinary court system has a positive obligation to provide an effective alternative system. The state has a positive obligation under article 8 of the European Convention to take steps which permit the child's integration in his own family: see Marckx v Belgium (1979) 2 EHRR 330. The child can scarcely benefit from family life if there is not enough to live on. But I accept that it is a considerable feat of interpretation to spell the "right to receive regular, reasonable maintenance" (for which Mr Mostyn QC so persuasively contends) out of the right to respect for family life in article 8 .”  (emphasis added)

“Is Article 8 engaged?

Although one has considerable sympathy for the Claimants on their pleaded case, the issue is whether the failure of the Child Support Agency to function effectively and to enforce the maintenance assessments in their favour against their father gives rise to an Article 8 claim. I see no chance at all that Article 8 can assist these Claimants. First, there is the statutory framework itself, which is a discreet and comprehensive scheme attempting to reconcile the various competing interests. It grants the CSA a discretion and does not impose a duty to proceed in any particular way. The actions of the CSA are subject to judicial review. It is a scheme which, Mr Emello conceded, was Article 8 compliant. That, of course, is a concession which had to be made given the decisions of not only the European Court of Human Rights but also the highest court in this country. The result is, as Lord Hope put it in Marcic , that the malfunctioning of the statutory scheme in particular cases does not cast doubt on its overall fairness so as to ground a claim under Article 8. Just as in that case the statutory scheme fell short over a number of years, so on the pleaded case there was a significant failure over a substantial period to ensure that the father paid the Claimants the maintenance assessments which had been made. Of itself, however, that on the authorities cannot ground an Article 8 claim.

The second basis on which the Claimants have advanced their case takes the matter no further in as much as it is an argument that as a result of Article 8 there is a right of the Claimants to reasonably regular maintenance from the State. That must fail, because it is quite clear from the cases to which I have referred that Article 8 confers no such right to welfare payments on individuals. The jurisprudence has not built on the right to respect for family and private life economic rights, which might include a right to reasonable maintenance for which the Claimants seem to be contending. …

The pleaded case sets out the hardship which the Claimants suffered -- moving to a smaller house, giving up certain activities, having to cut down on expenditure and having to take free school meals. That, of course, is a standard of living which many people who live in modest circumstances in this country experience. Yet children who have to live modestly as a result of the fact that, for example, their parents are dependent on Social Security benefits, or are unemployed, do not have an Article 8 claim. That being the case I fail to see how the Claimants in this case can boost their standard of living by latching on to Article 8 and claiming that somehow it is engaged as a result of what the CSA has or has not done. Were they to succeed, children like them would be in a better position than other children living in modest circumstances. That to me would produce a result which the Convention could not contemplate.

Finally, I see no hope of the Claimants succeeding as a result of the third strand of jurisprudence, in other words, those cases involving an Article 8 claim involving the Child Support Agency. Indeed, on my reading those cases are supportive of the Defendant’s not the Claimant’s case. I accept that the facts of those cases are different in that they are concerned with the impact of the legislation on the non-resident parent. In this case we are concerned with what is said to be the failure of the State to collect maintenance for the beneficiaries of the scheme. The Claimants contend that they were denied basic living costs to which they were entitled through the assessed maintenance payments. But the answer is provided in M, albeit that it was concerned with a non-resident parent. In that case M had less money to spend as a result of the CSA calculation, but for the House of Lords that did not impact on her family life with her non-resident children or her private life with her partner. As a matter of principle family life in Article 8 [is] constituted by the love, trust confidence, mutual dependence and unconstrained social intercourse which exists within the family and private life by the sphere of personal and sexual autonomy. The same conclusion must surely apply in the converse situation where persons have less money as a result of the CSA failing to collect arrears of maintenance. That may make family life and private life tougher and perhaps more stressful than it would be, but it cannot be said to affect the core values attached to these concepts.”

Application of Article 8

The Policy challenge

“61… In particular, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective respect for private life, which may involve the adoption of measures in the sphere of the relations of individuals between themselves.

The Court has previously held that the concept of private life includes a person’s physical and psychological integrity. Under Article 8, States have a duty to protect the physical and psychological integrity of an individual from other persons. To that end, they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals, including in the context of harassment at work.

In the context of attacks on the physical integrity of a person, such protection should be ensured through efficient criminal-law mechanisms… Where attacks on physical integrity come from a private individual, the Convention does not necessarily require State-assisted prosecution of the attacker in order to secure the applicant’s Convention rights.

As regards less serious acts between individuals which may violate psychological integrity, an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection…

Moreover, as far as positive obligations under Article 8 are concerned, this is an area in which Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. The Court’s task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation…”

The obligation is an obligation not to give policy direction to recipients to do something which conflicts with the legal duty of the addressee. The test is: does the policy in question authorise or approve unlawful conduct by those to whom it is directed?

The court must look at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way.

In particular, a procedure will be unlawful if the effect of the procedural rules set out in the guidance is that a significant number of cases introduced into the system would be decided unfairly and hence unlawfully. However, the test is not a statistical test.

…

Category (iii) is where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. A case is more likely to fall into category (iii) if a Secretary of State has issued guidance to his or her own staff explaining the legal framework in which they perform their functions.

However, in a category (iii) case, it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done.

The authorities set out above show that the circumstances in which a written policy or guidance may render unlawful decisions that are taken pursuant to a statutory discretion are narrower than was sometimes believed. The test is not simply whether the guidance is inherently unfair, or [whether] the guidance, if followed, would (i) lead to unlawful acts, (ii) permit unlawful acts or (iii) encourage such unlawful acts, or would lead to a real or unjustified risk of unfairness or unfairness.

Also, it was not the role of policy guidance to eliminate all uncertainty regarding its application and all risk of legal errors by decision-makers, and the drafter of a policy statement is not required to imagine whether anyone might misread the policy and then to draft it to eliminate that risk; and

it is not necessary, in order to be lawful, that the guidance must invariably produce conduct on the part of decision-makers that would be lawful.”

First, the very purpose of the CMS (and the DMG) is to facilitate and secure payment of child support maintenance to the PWC. It is, as Lord Walker put it in R (M) , intended to be a positive measure promoting family life. This case is therefore different to statutory schemes whose purpose is to enable decisions which restrict a claimant’s convention rights, such as for example, the imposition of administrative burdens such as a pre-entry language requirement for spouses of British nationals as in R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68, where it is important for exceptions and safeguards properly to be applied. Here, the CMS and the DMG are not in tension with the Claimants’ Article 8 rights; rather, they are pulling in the same direction as Article 8, namely the securing payment of child support maintenance. Thus, as the Defendant rightly observes in paragraph 62 of his skeleton argument, “if collection and enforcement powers are properly exercised in accordance with the legislation and the DMG as a whole, there is no reason why that will inevitably lead decision makers to infringe a PWC’s Article 8 rights.” On the contrary, it is more likely to protect a PWC’s Article 8 rights by preventing a NRP from inflicting economic abuse on a PWC (by intervening in a case where the NRP is unlikely to pay). It is accordingly inherently unlikely that the DMG will lead to infringements of Article 8 in a legally significant number of cases.

Second, the DMG does not in any event prevent the decision-maker taking account of the fact that the PWC is a victim of domestic economic abuse, including in determining whether or not to move onto Collect & Pay. Indeed, if the PWC is subject to domestic economic abuse, it is more likely that the NRP will be assessed as unlikely to pay (although that is not necessarily so) and moved onto Collect & Pay. As Mr. Gilchrist states in paragraph 98 of his witness statement to which I refer above:

Third, even in the case of Direct Pay, the DMs are told to consider taking other steps to protect a victim of domestic abuse. As the Defendant states in paragraph 63 of his skeleton argument:

There will be cases where the application of the Gillick test for lawfulness of a policy may be less clear than it is here. The first claim brought by the appellant to challenge the Guidance is an example. In its original form, the Guidance did not tell decision-makers to consider seeking representations from a subject before a disclosure to the public, but nor did it tell them not to. However, reading the Guidance as a whole, it was clearly intended to set out for decision-makers a reasonably complete decision-making procedure to be followed, so in our view the Divisional Court was right to hold that, read objectively, it misdirected decision-makers as to how they should proceed, by implicitly indicating that they did not have to invite representations whereas in many cases they had a legal obligation to do so.”

“the absence of… provisions… regarding the treatment of victims of domestic violence… including a failure to go straight to Collect and Pay and initiate investigation and enforcement action in a timely and targeted manner” (skeleton, [93]);

“omissions in the ‘unlikely to pay’ policy, including lack of effective criteria” (skeleton, [94]); and

“procedural unfairness for the PWC in determining whether the NRP is unlikely to pay” (skeleton, [96]).

The alleged failure to go straight to Collect & Pay is inconsistent with the statute, which the Claimants do not challenge as being incompatible with the Convention. The Defendant only has power to make collection arrangements under section 4(2A)(b) of the 1991 Act where he is satisfied that without such arrangements maintenance is “unlikely to be paid in accordance with the calculation”. In particular, there is no proper basis under the Act whereby, simply because a PWC informs the CMS that she is a victim of domestic abuse, the CMS could properly find without more that maintenance is unlikely to be paid (indeed, if the NRP is keeping up with his payments, it is unlikely that he will be guilty of economic abuse). For example, the NRP may dispute that there has been any abuse, may provide evidence to show that he has consistently paid when on Direct Pay, or give good reasons for past non-payment. Each case requires to be treated on its own facts. Moreover, as Mr. Gilchrist explains by reference to the DMG, where there are specific concerns about domestic violence which require action other than timely and efficient use of collection and enforcement powers, specific guidance is given. Guidance is given on how to facilitate Direct Pay so that there is no direct contact between the PWC and NRP (DMG 15057 to 15060), and the Defendant gives separate training and has specific guidance to decision makers on how to spot signs of domestic abuse and how to respond: see DMG 175-178.

The guidance on the “unlikely to pay” statutory test does not specifically direct decision makers to consider domestic abuse, but I do not consider that it is necessary for it to do so. There is nothing in the DMG which suggests, by implication or omission, that the personal circumstances of a claimant (including whether they are a victim of domestic violence) are irrelevant. On the contrary, as the Defendant points out, the DMG expressly provides that decision-makers must take decisions “using their judgement and based on the merits of the individual case. When considering the case DMs need to decide if the NRP is unlikely to make regular payments voluntarily” (49004), that they should have regard to any “pattern of behaviour”, and that the list of examples is not definitive and “consideration must be given to all other relevant factors” (49005). This point is analogous to Timson , ground 3 (see [231]-[232]).

There is no basis for finding that there is any procedural unfairness in determining whether the NRP is unlikely to pay. As the DMG makes clear, DMs should have regard to any pattern of behaviour and consideration must be given to all relevant factors. As Mr. Gilchrist states in paragraph 53 of his witness statement, the list of factors set out as relevant to the issue of “unlikely to pay” is not definitive, nor does it mean that the NRP will automatically be deemed to be unlikely to pay in these circumstances, as consideration must be given to all other relevant factors. When considering whether an NRP is unlikely to pay and should be moved to Collect & Pay, or should remain on Direct Pay, the decision-maker takes into account not only the interests of the PWC, but also the NRP and any children who are affected by the decision.

I do not accept the Claimants’ submission that there is no evidence to support the Defendant’s suggestion that representations may be made by the PWC in the “unlikely to pay” process. In those paragraphs of his witness statement set out in paragraph 56 above, Mr. Gilchrist explains the way in which the PWC is able to make representations throughout the assessment process; to ask for the decision to be reconsidered (when they can again make representations); and if they remain dissatisfied, they may raise a complaint, ask for the case to be referred to the independent case examiner or, if the complaint is of maladministration, the Parliamentary and Health Service Ombudsman, or seek judicial review. This certainly does not reveal an unfair procedure which would inevitably result in an infringement of Article 8 rights in a significant number of cases.

Individual operational challenges

Failure to move to Collect & Pay;

Inadequate enforcement;

Miscalculation of arrears;

Lack of investigation/verification from the NRP;

The DMG on “unlikely to pay” gives rise to unfairness in the Claimants’ cases and is itself unlawful.

“…there is a continuing breach and therefore the claims are not out of time. The Claimants are all due outstanding sums which the CMS continues to fail to collect and enforce (Footnote: ³⁰ ) . Thus, as per Burton J in R (G) v SSJ [2010] EWHC 3407 (Admin), this is “a continuing state of affairs, which continues not to be put right by the Defendant” such that “time does not run against a claimant at least until that state of affairs has come to an end” (§11).

It is therefore wrong to treat these claims as arising ‘once and for all’ the first time the Claimants were negatively affected by certain policies (on a Badmus basis): firstly, the claim is primarily based on operational failings as well as certain policies per se. The correct analysis is that, in fact, they would be entitled to bring a claim each time there is a failure to enforce (R (Kehoe) v SSWP [2006] 1 AC 42). Here, the Claimants’ claims of a persistent failure to enforce and/or systemic failings are ones which, by definition, have arisen over time once the state of affairs has become apparent. As above, a claim based on one breach or individual failure to enforce was likely to have been defended on the basis that it related to an isolated error and/or that it was premature. The Claimants have raised complaints and escalated these issues over time. This claim permits the Court to consider the lawfulness of the overall pattern of failures, which continue to arise based on current policies and practices; otherwise, it is very difficult to see how these failings can be brought before the Court.” (Footnote: ³¹ )

Claim is brought out of time

“Here it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest.”

Conclusion on Article 8 challenge

Ground 1: Article 1 Protocol 1

“the ongoing failures of collection and enforcement in the Claimants’ cases and the policies and practices giving rise to the same constitute a disproportionate interference with the rights of both the children and their mothers to the payment of the monies due to them as protected by Article 1 of the First Protocol (“A1P1”) of the European Convention on Human Rights (“ECHR”)”.

“The Defendant’s failures to collect and enforce the payments owed to the Claimants and carry out ancillary investigative steps amount to a clear interference with their A1P1 rights.” (emphasis added)

They do not advance a systemic challenge;

They do not challenge any one decision or omission in their individual cases;

They only challenge what they term “the accretion of those individual decisions and the key patterns of failings which have perpetuated their individual cases”, being what they term a “continuing state of affairs”. They rely in this regard upon R (G) v Secretary of State for Justice [2010] EWHC 3407 (Admin).

Kehoe v UK , 2010/06, 17 June 2008 at [48], where the ECtHR expressly found that judicial review was an effective remedy under Article 13 for a receiving parent seeking to enforce maintenance;

Rowley (supra), at [68], [72], [74] per Dyson LJ:

Treharne (supra) at [15]:

“The first issue: article 1FP

89.  I can deal with this issue briefly as I am in full agreement with the majority of the Court of Appeal (Sedley LJ at paras 52-53 and Kennedy LJ at paras 169-172). Sedley LJ quoted from the Commission in Burrows v United Kingdom App No 27558/95 that article 1FP was

“primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of rights between persons under private law unless the State lays hands—or authorises a third party to lay hands—on a particular piece of property for a purpose which is to serve the public interest.”

Sedley LJ added,

“Child support is neither a tax nor a form of expropriation: it is an allocation of private financial responsibility, and an expansive approach to [article 1FP] is in my view to be resisted.”

90.  Neuberger LJ fastened on the words “or authorises a third party to lay hands” as indicating that article 1FP has a wide scope. But those words are needed to cover cases such as James v United Kingdom (1986) 8 EHRR 123 (leasehold enfranchisement). In this case the CSA is concerned as an official intermediary, but it is enforcing a personal obligation of the absent parent. It is no more expropriating property than (in an analogy suggested in argument) when the civil justice system enforces a private contract by converting a contract debt into a judgment debt which can be recovered by the process of execution .” (emphasis added)

(1)  Ambit : The alleged discrimination must relate to a matter which falls within the “ambit” of one of the other, substantive articles of the Convention.

(2)  Status : Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14.

(3)  Relevant difference in treatment : In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.

(4)  Justification:  Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

(5)  Margin of appreciation : States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.

Lord Nicholls held at [33]: “ A non-resident parent is responsible for contributing to the maintenance of his children. The Child Support Act 1991 and its attendant regulations quantified the amount of that contribution and provided machinery for its collection. That is far outside the scope of article 1 of the first protocol. That is very distant from the type of interference at which article 1 is aimed. ”.

“Child support is neither a tax nor a form of expropriation: it is an allocation of private financial responsibility, and an expansive approach to [article 1FP] is in my view to be resisted”

Indirect discrimination

“it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of indirect discrimination.”

Margin of appreciation

Ground 4: Padfield

Conclusion