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AH v Secretary of State for Work and Pensions (Child Support Agency) [2017] EWFC 9

Application by a litigant in person to appeal a lump sum deduction order out of time.

The appellant, a litigant in person, sought to appeal a lump sum deduction order (LSDO) by way of issuing an appeal three days outside the time limit of 21 days. The judge held that the appeal was out of time and there was no power to extend the time for compliance.  The general power under Rule 4.1 (3) (a) of the FPR 2010 did not apply to an appeal against an LSDO (9.19).  Even if the 'exceptional circumstances' discretion applied to LSDO appeals (Pomiechowksi v District Court of Legnica, Poland et al  [2012] UKSC 20) the case warranted no such interference.

Summary by Martina van der Leij, barrister, Field Court Chambers
__________________________

C01CR379

IN THE EAST LONDON FAMILY COURT
SITTING AT BROMLEY


20th of January 2017

Before:

H.H.Judge Redgrave

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B E T W E E N:-

A.H.
APPELLANT
V
SECRETARY OF STATE FOR WORK AND PENSIONS
(CHILD SUPPORT AGENCY)
RESPONDENT
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JUDGMENT
1. The appellant seeks to appeal against a final Lump Sum Deduction order (LSDO) made against him by the respondent in respect of arrears which had accrued under a child support assessment in respect of his children. The final order for was sent to him under cover of letter dated the 20th of April 2016 and in accordance with Para.9.18 of PD30A of the FPR 2010 was deemed served on the 22nd of April 2016.

2. The appellant appears in person and Mr.Restall of counsel appears on behalf of the respondent.  I have read a bundle of documents and heard submissions by each of them.  The appellant issued his appeal on the 16th of April 2016 which is three days outside the 21 day limit for appealing, pursuant to para.9.17 of PD30A of the Rules.

3. The court has a general power under Rule 4.1.(3)(a) of the Rules  to extend the time for compliance with a rule, practice direction or court order even if the application for an extension is made after the time for compliance has expired. However Para 9.19 of the Practice Direction provides that the power under Rule 4 does "not apply to an appeal against the making of a LSDO under S.32F of the Child Support Act 1991 insofar as that rule gives the court power to extend the time set out in Para.9.17 for filing and serving an appellant's notice after the time for filing and serving that notice …has expired".

4. In addition, Para 9.24 of the PD30A provides that "In so far as rule 30.7 (power to vary time to comply) may permit any application for the variation of the time limit for filing an appellant's notice after the time for filing the appellant's notice has expired, that rule shall not apply to an appeal made against an order under s.32F(1) of the Act of 1991".

5. The appellant has made no formal application to extend the time for issuing his appeal and in addition failed to serve a copy of the Notice of Appeal on the respondent within the 21 day period as required by the rules.  The Notice of Appeal was not received by the respondent until the appellant provided his documents for inclusion in the court bundle shortly before this hearing, several months after the time limit had expired.

6. The appellant did not explain the reason for delay in issuing his appeal in the witness statement he filed with the court.  When asked to do so in court at this hearing, he accepted he was late but was unable to remember why.

7. The respondent argues that as the appeal is out of time and there is no power  to extend time the appeal must be dismissed.    Mindful that the appellant is in person and the basis of the respondent's case is a legal technicality, Mr.Restall carefully took the court through the rules and brought to its attention two authorities:- Pomiechowksi v District Court of Legnica, Poland et al [2012]UKSC 20 a case concerning extradition  of defendants who were in custody and Adesina v Nursing and Midwifery Council et al [ 2013] EWCA Civ 818 , which concerned defendants who had been struck off the register of nurses and midwives.  Both cases involved appeals which had been made out of time.

8. In  Pomiechowski the Supreme Court  concluded that in appropriate circumstances statutory provisions concerning appeals were to be read as being subject to the qualification that the court should have a discretion in exceptional cases to extend the time for filing and serving a notice of appeal.  Applying the principles in that case the C.A. concluded in Adesina that the time limit governing the defendants' appeals was not absolute but in the light of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms was subject to the court's discretion which would only arise in exceptional circumstances and where the appellant personally had done all she could to bring the appeal within the prescribed time limit.

9. Mr.Restall argues that there is a good reason for the rigidity in the rules in question.  The LSDO acts as an instruction to the appellant's bank to deduct money from his account and pay it to the Secretary of State who then passes it on to the parent who has care of the children. The legislation is designed to provide maintenance for the support of children and finality is important.  He argues that the imposition of such a strict time limit is proportionate to the legitimate aim of providing financial support for the upbringing of children, particularly in circumstances when the liberty of the individual or his ability to pursue his profession is not involved.

10. The appellant has already been involved in A previous LSDO procedure, which was discontinued for an unrelated technicality.  He received a further notice on the 22nd of April 2016 which gave clear instructions about his right of appeal, specifying the appropriate court and the time limit for appealing the order.

11. In the circumstances, I accept the submissions made on behalf of the respondent.  The strict time limit is a proportionate response to a legitimate aim.  If however,  I am wrong about that and  Article 6 should be incorporated into the rule there are no exceptional circumstances which warrant court interference.  I would add, that as the appellant has been unable to give any explanation for the delay in issuing his appeal, I would not have extended the time to appeal in accordance with Rule 4. In any event.

H.H.Judge Redgrave
20th of January 2017.