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Bird v Sec of State for Work & Pensions [2008] EWHC 3159

A magistrates' court is entitled to take account of child maintenance paid by a method other than that specified by the Child Support Agency when making a liability order under section 33 of the Child Support Act 1991.

Slade J considered an appeal by way of case stated from a decision of North Hampshire Magistrates' Court.  The magistrates' court made a liability order in the sum of £4,016.20 for arrears of child maintenance.

The question referred for the opinion of the High Court was:

"In a case where the parent with care is not in receipt of qualifying benefits, when being asked to make a Liability Order against the non-resident parent under Section 33 of the Child Support Act 1991 where the only issue in dispute is whether payments of child support maintenance in question have not been paid, are the Magistrates obliged to make such an Order if they are satisfied that payment was made but by a method other than that notified by the Child Support Agency?"

The Child Support Agency ("CSA") required Mr Bird to pay the sum of £34.10 per week to Mrs Bird in respect of child maintenance and further required that sum be paid by Transcash.  Mr  Bird's  liability commenced on 12th February 2003 and continued until 1st July 2005 when his liability to pay child maintenance was assessed as nil.

Slade J held that the CSA were entitled to direct that the sums should be paid by Transcash by regulation 3(1)(e) of the Child Support (Collection and Enforcement) Regulations 1992 ("the 1992 Regulations"), made under section 29(3)(b) of the Child Support Act 1991 ("the 1991 Act").  This regulation allows the CSA to specify the method of payment.

The Secretary of State obtained a liability order in the sum of £4016.20 in respect of the maintenance payments.  This sum did not make any allowance for monies paid by Mr Bird under an agreement with Mrs Bird whereby he paid her share of the joint mortgage in lieu of child maintenance.  However the Secretary of State stated that those monies would be taken into account when enforcing the order. 

The case stated did not ask the High Court to decide whether payment of Mrs Bird's mortgage liability was payment of child maintenance.

Slade J considered section 33 of the 1991 Act. By section 33(3) where the Secretary of State applies for a liability order the magistrates' court "shall make an order if satisfied that child support maintenance has become payable and not been paid." 

Section 33(6) provides that where regulations have been made under section 29(3)(a) of the 1991 Act

"a payment is not paid (for the purpose of subsection (3) unless the payment is made to, or through, the person specified in or by virtue of those regulations .."

Unlike regulations under section 29(3)(b) of the 1991 Act regulations made under section 29(3)(a) of the 1991 Act cannot specify the method of payment.  

Slade J concluded that magistrates are not obliged to make a liability order if they are satisfied that payment was made by the liable person but by a method other than that notified by the CSA.  To conclude otherwise would compel them to make a liability order where a parent has paid by cash but where a cheque was the specified method of payment.

Summary by Rowena Champion, Barrister, Field Court Chambers



_____________________________________

Neutral Citation Number: [2008] EWHC 3159 (Admin)

Case No: CO/5574/06
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/12/2008

Before:

THE HONOURABLE MRS JUSTICE SLADE DBE
- - - - - - - - - - - - - - - - - - - - -
Between:

PETER JAMES BIRD Appellant

 - and - 

(1) SECRETARY OF STATE FOR WORK AND PENSIONS
(2) CHILD SUPPORT AGENCY 
Respondents

(Transcript of the Handed Down Judgment of
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Charles King (instructed by R.J. Hawksley & Co. Solicitors) for the Appellant
Kate Olley (instructed by the Department for Work and Pensions) for the Respondents

Hearing date: 5th November 2008
Judgment
As Approved by the Court

Crown copyright©

The Honourable Mrs Justice Slade:  
1. This is an appeal by way of case stated from the decision of the North Hampshire Magistrates' Court on the 3rd March 2006. The Magistrates made a liability order under Section 33 of the Child Support Act 1991 in the sum of £4,016.20 for arrears of child maintenance payable by Peter Bird to Mrs Caroline Anne Bird for their daughter, 'D'.

2. By the case stated dated 19th May 2006 for the purpose of this appeal, the question referred by the Magistrates for the opinion of the High Court is:

"in a case where the parent with care is not in receipt of qualifying benefits, when being asked to make a Liability Order against the non-resident parent under Section 33 of the Child Support Act 1991 where the only issue in dispute is whether payments of child support maintenance in question have not been paid, are the Magistrates obliged to make such an Order if they are satisfied that payment was made but by a method other than that notified by the Child Support Agency?"

3. During the hearing I was shown by Miss Olley who appeared on behalf of the Respondents their proposed question which was in these terms:

"In a  case where the parent with care is not in receipt of qualifying benefits, when asked to make a liability order against the non-resident parent under Section 33 of the Child Support Act 1991 where the only issue in dispute is whether the payments of child support maintenance in question have not been paid on the grounds  are the Magistrates obliged to make such an order if they are satisfied payment was made but by the non-resident parent to a mortgage lender to discharge the liability of the parent with care in respect of a mortgage, rather than making payments of child support maintenance as notified by the Secretary of State under the Child Support (Collection and Enforcement) Regulations 1992 (SI 1992 No 1989) and the Child Support Act 1991?"

This was not accepted by the Magistrates. Thus the question of whether payment of Mrs Bird's mortgage liability by Mr Bird was payment of child maintenance was not referred to this court. The question posed by the Magistrates for the opinion of the High Court is predicated on a finding that payment of child support maintenance was paid by Mr Bird but not by the method notified by the Child Support Agency.

The Relevant Facts
4. Mrs Bird applied for a maintenance assessment to be made under the Child Support Act 1991 in respect of D. An assessment in the sum of £34.10 per week was made by the Child Support Agency ('CSA') and notified to Mr Bird by letter dated 26th August 2003. The notification stated:

"you are responsible for paying Child Maintenance to the following:

MRS CAROLINE ANNE BIRD"

The payments to Mrs Bird were for D. The notification from the CSA was somewhat confusing in that two different figures for child maintenance were given. However it was not in issue before me that the larger figure of £34.10 per week was the correct amount.

5. The CSA sent Mr Bird two further letters both dated 22nd October 2003. One letter  stated under the heading 'Payment of child maintenance':

"We have decided that you should pay your child maintenance by Transcash, weekly."

The letter continues:

"Make sure you only make cash payments through a Post Office."

The other letter enclosed payslips for Mr Bird to use when making child maintenance payments.

6. Mr Bird was to start making payments of child maintenance on 12th February 2003. There was an agreement between Mr and Mrs Bird that Mr Bird would pay Mrs Bird's share of joint mortgage payments on the former family home in lieu of child maintenance. This agreement applied from 1st January 2004 to 1st June 2005. Because of a change in his circumstances, on 1st July 2005 Mr Bird's liability to pay child maintenance was assessed as nil.

7. The Secretary of State applied to the Magistrates' Court for a liability order in respect of child maintenance arrears for the period between 12th February to 31st December 2003 and 2nd June to 14th June 2005. Although the Secretary of State sought and obtained a liability order in the sum of £4,160.20 he recognised that by agreement with Mrs Bird, Mr Bird had met Mrs Bird's share of mortgage payments. In those circumstances the Secretary of State has stated that enforcement will only be sought in the sum of £1,636.79 which represents £1,573.46 for the period 12th February 2003 to 31st December 2003 and £63.33 for the period 2nd June 2005 to 14th June 2005.

The Contentions of the Parties
8. It is submitted by Charles King on behalf of Mr Bird that Section 33 of the Child Support Act 1991 prohibits a liability order being made where the person who is liable to make the payments of child maintenance makes payment to the correct recipient, here Mrs Bird, but by a method of which was not that notified by the CSA. In the circumstances he contends the Secretary of State should not have been entitled to a liability order for arrears of child maintenance in the sum and for the period which, with the agreement of Mrs Bird, he had made mortgage payments on her behalf. Such payments were said to be more than the periodic maintenance payments.

9. For the respondents, Kate Olley contends that payments of child support maintenance should be made as directed by the CSA, and can only be paid to the person designated in the assessment by the method specified in the notification. She contends that if payments are made to or in respect of the person to whom payment should be made but not in accordance with the specified method, then the Magistrates' Court has no option but to make the liability order sought.

The Relevant Statutory Provisions
10. The Child Support Act 1991 provides by Section 4:

"(1) 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.

(2)  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 or [non-resident parent] with respect to whom the assessment was made applies to him under this subsection, arrange for-

(a) the collection of the child support maintenance payable in accordance with the [calculation];
(b) the enforcement of the obligation to pay child support maintenance in accordance with the [calculation].

(3) 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 he considers it necessary to do so, the Secretary of State may act accordingly."

11. Child support maintenance is defined by Section 3(6) as periodical payments which are required to be paid in accordance with a maintenance assessment. Section 11(2) provides that the amount of child support maintenance to be fixed by any assessment shall be determined in accordance with Part I of Schedule I of the Act. Section 11(3) states that Part II of Schedule I makes further provision with respect to maintenance assessment.

12. The Child Support Act 1991 Section 29 provides:

"(1) The Secretary of State may arrange for the collection of any child support maintenance payable in accordance with a [maintenance calculation] where-
  ……….

(b) an application has been made to the Secretary of State under section 4(2) or 7(3) for him to arrange for its collection.

(2) Where a [maintenance calculation] is made under this Act, payments of child support maintenance under the [calculation] shall be made in accordance with regulations made by the Secretary of State.

(3) The regulations may, in particular, make provision-

(a) for payments of child support maintenance to be made-

(i) to the person caring for the child or children in question;
(ii) to, or through, the Secretary of State; or
(iii) to, or through, such other person as the Secretary of State may, from time to time, specify;
(b) as to the method by which payments of child support maintenance are to be made"

13. The Child Support (Collection and Enforcement) Regulations 1992 ('the Regulations') were made pursuant powers conferred by Section 29(2) and (3) of the Child Support Act 1991.

14. Regulation 2 entitled 'Payment of Child Support Maintenance' provides:

"(1)Where a maintenance assessment [calculation] has been made under the Act and the case is one to which section 29 of the Act applies, the Secretary of State may specify that payments of child support maintenance shall be made by the liable person-

(a) to the person caring for the child or children in question or, where an application has been made under section 7 of the Act, to the child who made the application;
(b) to, or through, the Secretary of State; or
(c) to, or through, such other person as the Secretary of State may, from time to time, specify.

(2) In paragraph (1) and in the rest of this Part, 'liable person' means a person liable to make payments of child support maintenance."

15. Regulation 3 entitled 'Method of Payment' provides:

"(1)Payments of child support maintenance [penalty payments, interest and fees] made by the liable person by whichever of the following methods the Secretary of State specifies as being appropriate in the circumstances-

(a) by standing order;
(b) by any other method which requires one person to give his authority for payments to be made from an account of his to an account of another's on specific dates during the period for which the authority is in force and without the need for any further authority from him;
(c) by an arrangement whereby one person gives his authority for payments to be made from an account of his, or on his behalf, to another person or to an account of that other person;
(d) by cheque or postal order;
(e) in cash;
(f) by debit card."

16. The power to make liability orders is in Section 33 of the Child Support Act 1991 which provides:

"(1) This section applies where-

(a) a person who is liable to make payments of child support maintenance ('the liable person') fails to make one or more of those payments; and
(b) it appears to the Secretary of State that-

(i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or
(ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the [maintenance calculation] in question.

(2) The Secretary of State may apply to a magistrates' court or, in Scotland, to the sheriff for an order ('a liability order') against the liable person.
(3) Where the Secretary of State applies for a liability order, the magistrates' court or (as the case may be) sheriff shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.
(4) On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the [maintenance calculation] under which the payments of child support maintenance fell to be made.

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

(a) the liable person fails to make a payment (for the purposes of subsection (1)(a) of this section); and
(b) a payment is not paid (for the purposes of subsection (3)),
unless the payment is made to, or through, the person specified in or by virtue of those regulations for the case of the liable person in question."

The Authorities
17. In Secretary of State for Social Security v Shotton and others 23.1.96 CO-2132-95, Mr Justice Latham (as he then was) considered whether Magistrates had exceeded their jurisdiction by interfering with the underlying assessment of maintenance for the relevant child in respect of whom a child maintenance assessment had been made. Mr Justice Latham concluded that the consequence of subsection (3) of Section 33 of the Child Support Act 1991

"taken together with subsection 33(4), which precludes the magistrates court from questioning the maintenance assessment, is that the 'sole question to be determined by the magistrates is whether or not payments have become payable by the liable person and have not been paid. If that is established the Magistrates are bound to make a Liability Order."

18. The House of Lords in Farley v Child Support Agency and others [2006] UKHL 31 considered the question of whether the Magistrates' Court has jurisdiction to question any part of a child maintenance assessment. Lord Nicholls, with whose speech the other members of the court agreed, held at paragraph 16 that the Magistrates' Court is precluded from questioning any aspect of the assessment. The Magistrates' Court's function is to check that the assessment relates to the defendant brought before the court, and that the payments in question have become payable and have not been paid.
19. At paragraph 32 Lord Nicholls concluded 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. "

Discussion
20. Mr Bird was informed by a letter of 26th August 2003 that he was responsible for paying child maintenance to Caroline Anne Bird for D. By letter dated 22nd October 2003 Mr Bird was informed that he should pay his child maintenance by Transcash weekly. Thus, in accordance with the Regulations, the CSA specified both the individual to whom and the method by which child maintenance payments should be made by Mr Bird. Payments were to be transmitted via the CSA to Mrs Bird, by a method, Transcash, which I hold to be within Regulation 3(1)(e). Regulations 2 and 3 were introduced pursuant to powers conferred on the Secretary of State under Section 29(3)(a) of the Child Support Act 1991. In my judgment the directions as to the method of payment of child maintenance given to Mr Bird fall within the Regulations pursuant to powers of the Secretary of State under Section 29(3)(b).

21. On an application for a liability order, the Magistrates' powers are circumscribed by Section 33. It is clear since the case of Farley that Section 33(4) precludes them from investigating whether a maintenance calculation is a nullity. The Magistrates are obliged to make a liability order if they are satisfied that the payments 'in question' have become payable by a liable person and have not been paid (Sec 33(3)).

22. The payments 'in question' referred to in Section 33(3) are payments of child support maintenance. Child support maintenance is defined in Section 3(6) as periodical payments which are required to be paid in accordance with a maintenance assessment. Section 11(2) of the Act provides that the amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with Part I of Schedule I of the Act. By Section 11(3), Part II of Schedule I makes further provision with respect to maintenance assessment. Neither part of the Schedule contains provisions relating to the method of payment of child support maintenance. Thus the determination that child support maintenance be paid by a specified method is not included in the assessment of child support maintenance.

23. Section 33(3) requires a Magistrates' Court to make a liability order where it is satisfied that child support maintenance has become payable and has not been paid. In determining whether a child maintenance payment has been paid, Section 33(6) provides that a payment is not paid for the purposes of making a liability order under Section 33(3) unless the payment is made to or through the person specified in or by virtue of Regulations made under Section 29(3)(a). There is no power to make regulations under that provision to specify the method by which payments of child support maintenance are to be made. Such a power is derived from Section 29(3)(b).

24. Section 33(6) of the Child Support Act 1991 requires a Magistrates' Court to find that child support maintenance has not been paid where it is not paid to or through the person specified by virtue of the Regulations made under Section 29(3)(a). However there is no similar provision requiring the Magistrates to find that payment has not been made where it is not made by the method specified by virtue of the Regulations made under Section 29(3)(b). The absence of such a provision leads me to the conclusion that Magistrates are not obliged to make a liability order if they are satisfied that payment was made by the liable person but by a method other than that notified by the CSA. Accordingly the answer to the question referred by the Magistrates for the opinion of the High Court is: No.

25.  An affirmative answer to the question posed for the opinion of the High Court would oblige Magistrates to make a liability order if they are satisfied that payments have been made by the liable person but by a method other than that notified by the CSA. Such an answer would, for example, compel a Magistrates' Court to make a liability order in respect of a parent who pays child support maintenance to the specified person by cash where cheque was the specified method of payment. In my judgment Section 33 of the Child Support Act 1991 does not have that effect.

26. In deciding whether a liability order is to be made under Section 33 of the Child Support Act 1991 it will be a question of fact in each case for the Magistrates to decide whether the liable parent has failed to made child support maintenance to or through the person specified by virtue of the Regulations.  In the case of Mr Bird the question posed by the Magistrates for the opinion of the High Court is predicated on a finding that payment of child support maintenance was paid by Mr Bird but not by the method notified by the Child Support Agency.

27. Accordingly the appeal by Mr Bird against the liability order in the sum of £4160.20 is allowed.