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R (on the application of Cowling) v Child Support Commissioners Office [2008] EWHC 2306 (Admin)

Application for permission to judicial review a decision of Child Support Commissioner not to set aside refusal to allow leave to appeal previous applications to appeal decisions of the Child Support Appeal Tribunal. Application refused.

The claimant mother was looking to appeal the decisions of the CSA on the grounds that they the decisions were mot made with the full knowledge of ongoing benefit fraud investigations into the father. Leave to appeal was refused by the Chair of the Appeal Tribunal and, subsequently, by the Child Support Commissioner. When requested to provide detail concerning what documents she had not seen the claimant declined as she stated that she needed to see the file first. A further application was then made to set aside the refusal of leave.

Underhill J refused the application primarily because the decision to refuse the claimant's request to see the file was properly within his case management powers, nor was it unreasonable to ask the claimant for more detail about which documents she needed to see to help her case.


Neutral Citation Number: [2008] EWHC 2306 (Admin)
Royal Courts of Justice
London WC2A 2LL

Thursday, 17 July 2008
B e f o r e:





Computer Aided Transcript of the Stenograph Notes of 
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Mr D Burrows (instructed by Burrows Solicitors) appeared on behalf of the Claimant
Mr A Henshaw (instructed by the Department for Work and Pensions) appeared on behalf of the Defendant
(As approved)
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NB Transcribed without the aid of all documents

2. The claimant is the mother of a daughter, I, born on 27 December 1986.  She sought maintenance through the Child Support Agency from I's father.  Between July 2004 and March 2006 the Appeal Tribunal constituted under section 20 of the Child Support Act 1991 heard no fewer than six linked appeals relating to those claims.  Decisions in the various appeals were given on 4 April 2006.  The claimant was dissatisfied with those decisions, essentially on the basis that they had been made in ignorance of what she said were ongoing benefit fraud investigations against the father; and she applied for them to be set aside.  By a decision dated 2 December 2007 that application was refused.  Full reasons for all six decisions were then given.  These were sent to the parties on 15 March 2007.

3. By section 24 of the Act an appeal lies, on a point of law only, from decisions of the Appeal Tribunal to the Child Support Commissioner, subject to a leave requirement.  On 9 April 2007 the claimant applied to the Chairman of the Appeal Tribunal for leave to appeal against the six original appeal decisions, together with the subsequent refusal to set them aside.  On 8 May 2007, he refused leave.  On 11 June 2007 she renewed her application, again in relation to all six of the original appeal decisions, to the Commissioner.  On 17 July 2007 Mr Edward Jacobs refused permission.  He gave short but clear reasons dealing in turn with each of the claimant's numbered grounds of appeal.

4. By an undated letter, sent apparently a few days later, the claimant asked to be sent:

5. "…a copy of the file submitted to the Commissioner by the Appeals Service."

6. By email, dated 25 July 2007, a manager in the Commissioners' Office replied as follows:

"Thank you for your letter received in this office on 24 July 2007. You have requested a copy of the file submitted to the Commissioner by the Appeal Service, although you have not said why you require a copy.  You also referred to deadlines, but I do not know what deadlines you were referring to.  The papers before the commissioner were the same as the bundle of documents that was before the tribunal. The only additions were the decision, the statement of reasons and the record of proceedings. Do you already have copies of these pages?  If not please let me know."  

The claimant responded:

"Thank you for your email. …

The deadlines I referred to are set out in your letter accompanying the decision notice. In this case there is a deadline of 1 month from the date of the decision to request a set aside.  One of the grounds for set aside can be that a document that was in front of the Tribunal was not in front of the Commissioner.  I have no way of knowing that all the documents in front of the Tribunal were placed before the Commissioner without seeing the file."

7. That point then came before a different Commissioner, Mr Mark Rowland, who directed as follows:

8. "The Commissioners' Office always obtains the tribunal's file (and not just a copy of the file) before an application for leave to appeal is considered by a Commissioner.  As that is the file that will have been copied to the tribunal hearing the appeal, it is therefore extremely unlikely that any document before the tribunal will not be before the Commissioner (except that very occasionally a document handed in at a hearing is not linked to a file held at a central office).

10. In these circumstances and if Mrs Cowling wishes to apply for Mr Commissioner Jacobs' determination to be set aside, I direct Mrs Cowling to set out in writing within 14 days of the date this Direction is sent to her (a) a list of those documents she considers may not have been before the Commissioner and (b) an explanation for her belief that they may not have been before the Commissioner and that they would have been relevant to her application for leave to appeal.

11. In view of the email correspondence, if Mrs Cowling makes an application for the setting aside of Mr Commissioner Jacobs' determination which complies with the above Direction, the time for applying for Mr Commissioner Jacobs' determination to be set aside will be extended to validate her application. 

12. If Mrs Cowling does not wish to make an application for the setting aside of Mr Jacobs' determination she should notify the Commissioners' Office but she need take no further action."

13. On 20 August 2007 the claimant declined to comply with that direction on the basis that it called on her to speculate about what documents might be missing and repeated her request for sight of the file. On 24 August 2007 the claimant's solicitor, Mr David Burrows, applied to the Commissioner to set aside his refusal of leave, inter alia on the basis that the claimant had not received a copy of the file.  On 17 September 2007 Mr Jacobs issued a determination declining to set aside his decision to refuse leave.  He said at paragraphs 6 to 9:

14. "6. I have some sympathy with Ms Cowling's response to Mr Rowland's direction. However, the burden is on her to show a ground on which I can set aside my refusal of leave. She could, at the very least, have indicated some class of document that might not have been before me. She has not done that and has not, therefore, discharged her minimum responsibility in support of her application.

15. "7.  I have considered whether I should copy to Ms Cowling the papers that were before me. That would be a sensible course in some cases. However, the files exceed 16 inches in height. The cost and time involved in copying those files would be disproportionate, given that she has failed to give even the vaguest indication of the type of document that might be missing of why it might not be before me or of how it could have affected the outcome of her application for leave.

16. "8 After Ms Cowling's response to Mr Rowland's direction was received, a further letter arrived from Mr Burrows, a solicitor experienced in child support matters. That letter goes beyond my powers under regulation 28 and seeks to reargue the merits of the application for leave to appeal. The discretion that I have under the legislation is limited to cases in which there has been some form of procedural irregularity in the proceedings before the Commissioner. It does not allow for any form of appeal against, or challenge to, the Commissioner's reasoning or the merits of the refusal to grant leave to appeal.  The proper subject for Mr Burrows' letter is an application for judicial review in the Administrative Court.

17. "9 As none of the necessary conditions is satisfied, there is no basis for me to set aside my refusal of leave."
18. The present proceedings were issued on 12 December 2007.  They seek to challenge three decisions described and dated in section 3 of the claim form as follows:

(1) 19. the refusal to give leave to appeal, 17 July 2007;
(2) 20. refusal to set aside the decision, 17 September 2007;
(3) 21. refusal and failure to disclose documents, 17 September 2007.

22. On 25 February 2008 Wilkie J refused permission on the papers.  The matter now comes before me on the claimant's renewed application.  The claimant has had the advantage of being represented by Mr Burrows, who has made his submissions clearly and economically.  Mr Henshaw of counsel appears for the Secretary of State for Work and Pensions, who was named by the claimant on the claim form as an interested party. 

23. The claimant has applied for an order that the Secretary of State should not be permitted to appear because it is inconsistent with his duty to do, and do only, what is in the best interests of the child.  I rejected that application when pursued by Mr Burrows at the outset of the permission application.  It is arguably a sufficient answer for me to say that the claimant is in no position to object to the Secretary of State taking part in the proceedings when she herself has named him as an interested party.  But I should say in any event that I can see nothing wrong in substance in his making representations.  Mr Henshaw made it clear in his skeleton argument that the Secretary of State saw his role as essentially that of amicus.  Such a role is of assistance to the court and in the interests of justice.  Mr Burrows was able to suggest no actual prejudice to the claimant, other than the obvious prejudice that she would prefer to have no argument in opposition to her submissions.  Mr Burrows' objection was at the level of theory.  Even at that level I do not believe that his point is well-founded.  I do not accept that such responsibility as the Secretary of State may formally have for the operations of the Child Support Agency in pursuing proper claims for the benefit of children and resident parents is inconsistent with the role which he is undertaking in these proceedings.

24. I turn therefore to the question of substance.  I take the challenges to the three decisions in turn. 

25. So far as the original decision to refuse permission to appeal is concerned, this is of course seriously out of time.  The claimant, however, says that she was ready to make the application within time and indeed attended the Administrative Court Office with a view to lodging the papers in mid-October. However, she says that she was advised by the court staff that it was unnecessary for her to do so in view of the later decision by the Commissioner in September.  As I understand it, she was happy to accept that advice because her papers were not at that stage in perfect order.  But in any event whatever her reasons, she did, she says, rely on that advice in failing to issue the proceedings until December.

26. Mr Henshaw says that that sequence of events does not justify the extension of time that the claimant seeks. He points out that the Commissioner's decision refusing leave drew attention, in terms, to the present problem.  There is a note at the end of the covering letter saying:

27. "Important: You should note that the time for applying for judicial review will not be extended automatically if you first apply to the Commissioner to set aside a refusal of leave.  The Administrative Court does have a discretion to extend time, but you should not assume that the Court will extend time in those circumstances."

28. Mr Henshaw says that the claimant should have followed that authoritative guidance rather than anything she may have understood, or thought she understood, from her communications with the court staff.  There is force in that submission, particularly in a case of this kind where the underlying dispute is already some years in the past.

29. On the other hand, it is always unsatisfactory for a party to be excluded on time grounds alone in circumstances where they genuinely believe, rightly or wrongly, that they were misled by the court office.  In those circumstances I am not inclined to refuse permission on time grounds alone, and I will also say that I do not believe that permission should have been granted even if the application was made in time.  Parliament in establishing the appeal system in child support cases has restricted the rights of appeal by the imposition of a leave requirement.  That situation would be subverted if judicial review were to lie against a refusal of leave whenever it could be alleged that the decision maker had acted irrationally or otherwise erred in law.  As to that, Mr Burrows accepts that the approach of this court should be the same as that which has been laid down in the context of a number of other appellate bodies where a leave requirement is imposed.  The fons et origo is the decision of Sivasubramaniam v Wandsworth County Court [2003] 1 WLR 475, but I was referred also to Sinclair Gardens Investments (Kensington) Limited v the Lands Tribunal [2006] 3 All ER 650 and the more recent unreported decision of Collins J in  R (on the application of Starling) v Child Support Commissioners [2008] EWHC 1319.  But he submitted that the present case falls into the exceptional category recognised in those authorities. 

30. I am afraid I cannot accept that that is the case.  Mr Burrows accepts that he cannot attempt, on a permission application, to argue every point in the various appeals.  He chose, as a single example, the decision of the Commissioner on ground 1 of the Notice of Appeal, which concerned an application for supersession which the claimant said that she made in the year 2000.  He submits that the way in which the Commissioner dealt with that, simply by saying:

"If you did make such an application the tribunal would only have jurisdiction over it if two conditions were fulfilled:
(1) a decision was made on it and (2) you would exercise your right of appeal against that decision.  Those conditions were not satisfied…”

was plainly wrong in law.  I am far from sure that it was wrong in law. Having been referred by Mr Henshaw to the governing statutory provisions, and to the reasons of the Tribunal on which the Commissioner was commenting, I think it likely that the Commissioner was right. However, even if he were wrong, the error seems to me to be a simple error of law of the kind which Neuberger LJ in the Sinclair case said in terms would not be sufficient to justify an application for judicial review.  I can see no exceptional circumstances surrounding it, and no exceptional gravity associated with the error or its consequences, which could even arguably justify this court in intervening.

31. I have not been treated to argument on any of the Commissioner's other specific grounds, but it is perhaps fair to say that I was impressed by the clarity and focus of the way in which he dealt with both the original application and the subsequent application to set aside.

32. I turn to the second of the decisions challenged.  In my view it would be an abuse if a claimant who is out of time to challenge a primary decision were able to bring the claim within time by asking for that decision to be reviewed and then challenging its upholding on such a review.  Therefore, if the challenge to the first decision is out of time, it seems to me that the challenge to the second decision is abusive.  Even if it is not, the challenge to the second decision involves no point of substance that does not apply equally in relation to the first.

33. I turn finally to the Commissioner's decision not to provide a copy of the file, or indeed - as it appears, though this is not strictly speaking how it is formulated - to allow the claimant to attend the Commissioners' office to inspect the original file.

34. I can see nothing even arguably wrong in that decision.  As appears from the correspondence from which I have quoted, the claimant was told in terms that in principle the Commissioner had the totality of the documents that were before the Tribunal.  In principle that told her exactly what the Commissioner had available to him, namely the same documents as she would have had as the party who conducted the hearing before the Tribunal.  The only possible question was whether, as sometimes happens, individual or loose documents might have been handed in in circumstances which suggested that there was a possibility that they might not have found their way from the Tribunal to the Commissioner.  There is no particular reason to believe that was so in this case, but if there had been an exceptional document of that kind it was in my view not even arguably unreasonable for the Commissioner, for the reason he gave, to ask the claimant to give some indication of the kinds of documents that she thought might conceivably have been overlooked.  A decision of that kind was properly one for the Commissioner's own judgment, in the interests of what he thought to be fair management of the application for leave.  I do not believe that the judgment that he made can be said to be either irrational or unjust.  I was told today, in the course of oral submissions, that the problem may have been that the claimant's papers were, as it was put to me, in a terrible mess.  Even if that was so, I doubt whether that would require the Commissioner to assist her by providing a copy of his own file; but in any event that was not the basis on which the application was made to him. 

35. I can therefore see no arguable error of law in any of the decisions which it is sought to challenge in these proceedings, and I uphold Wilkie J's refusal of permission.  Thank you both very much.

36. MR HENSHAW:  My Lord, sorry to have more to say at this late hour. As I mentioned earlier, I am asked to apply for an order that Mr Burrows should show cause why he should not pay the costs of not the permission application, but the discrete application orders, that the Secretary of State should not be allowed to participate, and, so far as it was included, an application to amend the claimant's claim.  My Lord, at the back of the attachment in my skeleton there is a letter which was sent on 2 July to Mr Burrows which, just picking up a few points, began by putting him on notice of a possible wasted costs application. Lower down the first page it made the point that normally we would not attend the hearing in order to save public funds. It then refers to the application.

37. At the bottom of the second page, after reciting the authorities on wasted costs jurisdiction, it says:

38. "We consider… the Secretary of State is plainly permitted by the Civil Procedure Rules to take an active part in the proceedings if he so wishes. Further the application to amend is misconceived."

39. At the top of the last page the letter referred to the paragraph 5.1 of the Part 54 Practice Direction, which provides for the Secretary of State to be named as an interested party.  The point is made in the letter that the Secretary of State is responsible for administering the Child Support Scheme.

40. MR JUSTICE UNDERHILL:  I can read this to myself.  I have now read it to the end. This was on the basis that there was going to be a separate application.  There has not been. It has been part of this application where you are going to attend any way.

41. MR HENSHAW:  We were not going to attend.  That is the point the letter makes on the first page.  Occasionally we attend, but in the generality of cases we do not.

42. MR JUSTICE UNDERHILL:  You were going to content yourself with the--

43. MR HENSHAW:  The summary grounds.

44. MR JUSTICE UNDERHILL:  Why should it be a wasted costs application?  Maybe it was a mistake. It was clearly wrong.  It has to be something pretty outrageous on his part to be a wasted costs application.

45.  MR HENSHAW: I accept it is a high test. The test where it is a hopeless claim is that it has to be a claim that no reasonable practitioner could have thought to have any realistic chance of success.

46. MR JUSTICE UNDERHILL:  I did not think much of the application, but I am not prepared to go that far.  In those circumstances I do not believe a wasted costs order is appropriate.

47. MR HENSHAW:  So be it.