Judgments - Farley (FC) (Respondent) v. Child Support Agency and another (Appellants)

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    25.  In my view these provisions, when in force, provided an effective means by which an absent parent could challenge the Secretary of State's jurisdiction to make a maintenance assessment. There is thus no justification for reading section 33 as requiring or permitting the magistrates' court to entertain such a challenge. Quite the contrary. Given the existence of this statutory right of review and appeal, it would be surprising and undesirable if the magistrates' court were to have a parallel jurisdiction to adjudicate upon the same question.

Further twists

    26.  There are further twists in the history of this matter. The first relates to a submission made on behalf of the Secretary of State in Secretary of State for Social Security v Harmon [1999] 1 WLR 163. There, in three appeals heard together, mothers having care of children were in receipt of income support to which the absent fathers claimed the mothers were not entitled. The issue was whether for the purposes of section 4(10)(b) and section 6(1) receipt of income support, as distinct from entitlement to income support, sufficed. In his judgment Millett LJ noted, at pages 169-170, that leading counsel for the Secretary of State accepted that the decision-making process under section 6(1) is vested solely in the Secretary of State and that neither the child support officer nor the Child Support Appeal Tribunal nor the Child Support Commissioner had any jurisdiction to question such a decision.

    27.  The submission made by the Secretary of State in that case is of course flat contrary to the case advanced by the Secretary of State on this appeal. Before your Lordships' House the position adopted by Mr Giffin QC on behalf of the Secretary of State was that the submission made in the Harmon case was simply wrong.

    28.  The next twist in the story is to be found in the second of the three versions of the rights of appeal under the 1991 Act. The second version was introduced by the Social Security Act 1998. This was the version in force when Mr Farley's three maintenance assessments were made. As amended by the 1998 Act, section 11(1) of the 1991 Act provided that an application for a maintenance assessment made to the Secretary of State should be dealt with by him in accordance with the provision made by or under that Act. The child support officer thus dropped out of the picture. Section 20(2), as substituted by the 1998 Act, provided that where a maintenance assessment was in force, the absent parent should have a right of appeal to an appeal tribunal 'against the amount of the assessment or the date from which the assessment takes effect'.

    29.  This language undoubtedly provides some support for Mr Farley's case. It seems unlikely that the 1998 version of section 20 was intended to cut down an absent parent's appeal rights. But if the original version of the appeal rights is interpreted as I have set out above, the 1998 version did have that effect. The 1998 version had that effect because it prescribed a right of appeal against the 'amount' of an assessment or its starting date, and in its context this language cannot be read as encompassing a challenge to the Secretary of State's jurisdiction to make an assessment at all. Hence the submission of Mr Drabble QC, that the 1998 version supports the view that from the outset the 1991 Act drew a distinction between decisions made by the Secretary of State and decisions made by a child support officer. This distinction, submitted counsel, mirrors a feature of the social security adjudication scheme on which the adjudication provisions of the 1991 Act were plainly based. Decisions of child support officers were subject to review, decisions of the Secretary of State were not. If the original version of the rights of appeal is so interpreted there would be no discord between it and the 1998 version. There would then be no question of the 1998 version having cut down an absent parent's appeal rights.

    30.  This is an attractive argument, but I am unable to accept it. I agree that while the 1998 version of the rights of appeal was in force an absent parent had no statutory right of appeal in respect of the Secretary of State's assertion of jurisdiction to make a maintenance assessment. The language of section 20(2) ('the amount of the assessment or the date from which the assessment takes effect') does not permit a wider interpretation. During this period an absent parent's remedy was confined to an application for judicial review. Even so, this unsatisfactory position for this period does not suffice to displace my preferred interpretation, set out above, of sections 18 and 20 as originally enacted. Here again, in its context the language of these two sections as originally enacted is unambiguous. It is too clear to admit the narrower interpretation required to bring them into line with the more limited rights of appeal set out in the later, 1998 version.

    31.  Nor does the concession made on behalf of the Secretary of State in the Harmon case lead anywhere. The reality seems to be that, at the time, a degree of confusion prevailed. In October 1995 Commissioner Rice decided that a child support tribunal had jurisdiction to determine a challenge to the jurisdiction of the Secretary of State to make a maintenance order under section 4: Case R(CS) 1/96. Commissioner Goodman reached the same conclusion in February 1996, in Case R(CS) 3/97. In May 1998 the appeal tribunal's jurisdiction to decide such an issue was assumed, in Case R(CS) 6/98. These rulings still prevailed when the Secretary of State made the (contrary) concession less than a month later in the Harmon case.

Conclusion

    32.  My conclusion, therefore, is that section 33(4) precludes the justices from investigating whether a maintenance assessment, or maintenance calculation in the current terminology, is a nullity. That has been the position ever since section 33 was enacted in 1991. Such an investigation is a matter to be pursued today through the statutory appeal structure. I would allow this appeal. I would set aside the order of the Court of Appeal of 22 June 2005 insofar as it granted relief on Mr Farley's application for judicial review. I would dismiss this judicial review application and declare that the decisions of the magistrates and Keith J were correct in law.

    33.  I add a brief postscript. The House was told that sometimes applications for liability orders are made and granted, and liability orders are enforced, even though at the time appeals against the validity of the relevant maintenance calculations are pending. Clearly there are circumstances where this may be justified; for instance, where it is necessary to take steps to prevent assets from being put beyond reach. Equally clearly there may be circumstances where it would be oppressive to follow this course. I wish to note only that when faced with an application for a liability order where an appeal is pending against the validity of the underlying maintenance calculation the magistrates should consider whether it would be oppressive to make a liability order. If they consider it would be oppressive they should adjourn the hearing, pending the outcome of the appeal or for such shorter period and on such terms as may be just. The magistrates have this power under section 54 of the Magistrates' Courts Act 1980.

LORD HOPE OF CRAIGHEAD

My Lords,

    34.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead. I agree with it, and for the reasons he gives I would allow the appeal and make the order that he proposes.

LORD HUTTON

My Lords,

    35.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead. I agree with it, and for the reasons which he gives I would allow the appeal and make the order that he proposes.

LORD WALKER OF GESTINGTHORPE

My Lords,

    36.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead. I agree with it, and for the reasons he gives I would allow the appeal and make the order that he proposes.

LORD MANCE

My Lords,

    

 
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