Challenge to the lawfulness of the functioning of the Child Maintenance Service fails

Introduction

Ingold v Secretary of State for Work and Pensions [2023] EWHC 3207 (Admin) is a claim for judicial review brought by three single parent families and the adult child of a single mother (together, the “Claimants”) who challenged the alleged failures by the Child Maintenance Service (“CMS”), acting on behalf of the Secretary of State for Work and Pensions (“Defendant”) to collect and enforce child maintenance payments due to them under the Child Support Act 1991 (“the 1991 Act” or “the Act”). The Claimants argued that the CMS has repeatedly and persistently failed to take proper and effective steps to recover that money from the fathers who are allegedly guilty of perpetrating economic abuse. These failures, the Claimants pleaded, breached their Article 8 rights; Article 1 Protocol 1 rights and Article 14 rights taken together with Article 8 and/or A1P1. They also claimed that these failures frustrate, rather than promote, the purpose of the 1991 Act (“the Padfield challenge”).

The legislative framework

The key provisions of the 1991 Act are as follows:

• The Act provides for a duty upon the parents to maintain the child. The Act draws a distinction between the parent with care (“PWC”) and the non-resident parent (“NRP”), upon whom the Act imposes a duty to make periodical payments in line with the Child Support Agency’s (“CSA”) maintenance assessment (section 1(3)).
• However, the Act does not confer any right on the parent with care (“PWC”) to receive such payments, whether from the NRP or the Defendant; nor may a PWC enforce directly against the NRP. In addition, and crucially, the Defendant is under no duty to secure payments from the NRP.
• In practice, this means that, for payment purposes, the NRP will be assumed to pay directly to the PWC without the involvement of the CMS. If, however, the NRP agrees to make the payment through the CMS or if the CMS is satisfied that the NRP is “unlikely to pay”, the CMS may make collection and enforcement orders under s.4(2A) of the Act (“move to Collect & Pay”). Child maintenance is not treated as a civil lability or debt.
• Enforcement and collection under the Act is discretionary (s.4(2)). When exercising these discretionary powers, the Act requires the Defendant to have regard to the welfare of any affected child (section 2). Children who may be affected include qualifying children under the Act but also other children who may be supported by the NRP. Other practical considerations also apply, for example, administrative orders (deduction from earnings orders or deductions from benefits) may only be made in specific circumstances (e.g. the NRP is employed) and these deductions are subject to limits to protect minimum earnings/benefit amounts.
• Where there is evidence of domestic abuse, including economic abuse, collection and enforcement is still discretionary but the Defendant does not need to be satisfied that without the collection arrangements child support maintenance is unlikely to be paid in accordance with the calculation (s4(3A) 1991 Act as amended by the 2023 Act).

Article 8 challenge

The claims

The Claimants pleaded that the ongoing failures to collect and enforce the maintenance payments, 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 in the form of withholding of income (child maintenance) by the NRP. The Claimants further pleaded that their claim raised a legal issue, namely, whether the fact that the Child Maintenance Decision Maker Guide (“DMG”, a non-statutory guidance published by the Defendant to decision-makers on the operation of the statutory scheme), which does not contain specific guidance as to how to deal with the cases of domestic abuse survivors, is unlawful.

Judgment

Calver J held that an affected person did not have an Article 8 remedy simply by virtue of an alleged failure of the CSA to collect and enforce a maintenance assessment in favour of the PWC and that such a claim does not even fall within the ambit of Article 8 [65] [77][155]. He applied the dicta of Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 (“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” §25), and Lord Hughes in R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 (“Article 8 … does not extend to requiring the state to provide benefits” §139). Calver J also quoted Cranston J in Treharne v Secretary of State for Work and Pensions [2008] EWHC 322, §§29-32, where the court had to consider the impact of 1991 Act on the PWC:

“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… 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…That, of course, is a standard of living which many people who live in modest circumstances in this country experience…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… 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.”

The Claimants also pleaded that a positive duty arises under Article 8 where the failure to pay child support maintenance is being used as a form of domestic economic abuse. Calver J held that, while the Defendant is under an obligation to take reasonable steps to ensure effective protection from economic abuse in a particular case, there was no general unlawful failure to collect and enforce maintenance, nor was that duty breached by the CMS’s guidance documents. The Defendant had put in place a comprehensive legal framework with civil remedies (including judicial review) affording protection from the withholding of income and, in doing so, the Defendant enjoys 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 [86].

As regards the lawfulness of the DMG, the question was whether the alleged defects in the policy, individually or cumulatively, rendered the system inadequate in that they will inevitably lead to a breach of the Article 8 duty in a legally significant number of cases.[1] He did not consider that they did [56][91][96]:

(1) The alleged failure to go straight to Collect & Pay is inconsistent with the

Statute as the CMS has no power under the current legislation to move a case to Collect & Pay solely on the ground that there is a history abuse. This, the Claimants do not challenge as being incompatible with the Convention.

(2) 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. The DMG does not prevent the decision-maker from 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 were 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. Even in the case of Direct Pay, the decision makers (“DMs”) are told to consider taking other steps to protect a victim of domestic abuse: evidence, e.g. the option to make payment to an alternative bank account, such as one with a non geographic sort code or arrangements to make payment to another party’s bank account, such as a grandparent, if the PWC and the other party are in agreement.

(3) There was 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…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. The DMG 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).

(4) There exist enforcement mechanisms in cases where there is evidence of domestic abuse.

A1P1 challenge

The Claimants also argued that the CMS’s failure to move their cases to Collect & Pay and inadequate enforcement beached their A1P1 rights. The Claimants submitted that the accretion of individual decisions and patterns of failings constituted “a continuing state of affairs” but did not allege that there has been any breach of duty at a systemic level.

Calver J held that that child maintenance payments payable under the 1991 Act by the NRP, but not yet paid, do not amount to the Claimants’ possessions for the purposes of A1P1 so as to engage that article at all [154]. The 1991 Act conferred no right of recovery or enforcement on a caring parent against an absent or NRP (R (Kehoe) v SSWP [2006] 1 AC 42 at [4] per Lord Bingham and Sedley LJ in R (M) v SSWP [2006] 2 AC 1) that “child support is neither a tax nor a form of expropriation: it is an allocation of private financial responsibility, and an expansive approach to A1P1 is in my view to be resisted” [146-147].

Additionally, where the complaint is that a private individual has interfered with a property right by not paying sums due, the positive obligation of the state is “to ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his rights” [135]. However, the as Claimants did not allege that there has been any breach of duty at a systemic level, it must follow that the Claimants accept that the legislative scheme itself complies with the requirements of A1P1; and there are adequate remedies in place to address any failure to implement the scheme lawfully. The remedies consist of judicial review (for allegations that a discretionary act or omission is unlawful, such as a failure to place the Claimant onto Collect & Pay); a complaint to the Independent Case Examiner and from there to the Ombudsman (for maladministration); and a complaint to the First-tier Tribunal (to correct calculation decisions) [136]. Furthermore, Calver J rejected the allegation that there is a persistent pattern of unlawful actions and omissions as the Claimants neither challenged any one decision/omission as being unlawful in any of their cases nor advanced a systemic failure so it is impossible to see how a combination of those decisions or omissions can thereby become unlawful [140].

Article 14 challenge

The Claimants also argued that the Defendant’s failures to take effective or timely collection and enforcement action were discriminatory because they had a disparate impact on Claimants as victims of domestic violence and there is no objective justification for the difference in treatment [151].

Calver J held that the claim for unlawful indirect discrimination failed as there is no uniform failure to take collection or enforcement action which disproportionately affects domestic abuse victims. Any alleged failures are particular to the facts of an individual case and do not significantly disadvantage PWCs who are victims of domestic abuse as compared to other PWCs. The extent to which a PWC is affected by an administrative failure to collect or enforce maintenance and the nature of that disadvantage will vary depending on the facts of the individual case [161].

Similarly, the claim that the Claimants were subject to Thlimmenos discrimination also failed. Thlimmenos discrimination arises where “states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”: per Lord Reed in R (SC) at [48]. Calver J held that there is no difference between the Claimants and the general cohort of PWCs as the need of both of these cohorts are exactly the same, namely, to be paid the maintenance which is assessed as due to them [166]. Additionally, the fact of domestic abuse does not establish that a violent or abusive NRP will not pay as there are NRPs, who are not abusive, also fail to pay [167]. Treating cases differently as a matter of principle purely where the PWC has been a victim of domestic abuse in fact risks arbitrary and unfair treatment between cases [168].

Padfield challenge

The Claimants alleged that the collection and enforcement measures were “limited, sporadic and ineffective” [173] and so the Defendant is failing to fulfil the statutory purpose of the 1991 Act and is in breach of his Padfield obligation (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997) to promote, rather than frustrate, the legislative purpose of the 1991 Act.

Calver J held that the there is no basis for the allegation as the evidence before the court suggested, by and large, a conscientious pursuit of NRPs by way of collection and enforcement of maintenance on the part of the CMS; thus, the powers conferred by the Act, which are discretionary, were in fact being exercised by the Defendant [173-175].

Miranda Butler is a barrister at Landmark Chambers. She is also a Deputy Judge of the Upper Tribunal (Immigration and Asylum Chamber).

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[1] A formulation taken from Lord Mance’s judgment in Northern Ireland HRC Application for Judicial Review [2018] UKSC 27.