Sutherland, R (on the application of) v Secretary of State for Work and Pensions

For the six-year limitation period governing an application for a child-support liability order, payment does not become legally due until the maintenance assessment has been made and notified. A general parental obligation to maintain a child does not create an enforceable liability under the Child Support Act 1991 before that assessment. The court may construe references to an amount as including the corresponding payments where that gives effect to the statutory scheme. A liability order is not necessarily an all-or-nothing remedy: the magistrates may make an order for the amount properly shown to remain unpaid.

This was a case stated appeal from a liability order made by the Dorset Family Proceedings Court against an absent parent for child-support arrears. The arrears were calculated under a maintenance assessment notified in October 1997, but included payments backdated to May 1995. The complaint seeking a liability order was laid in September 2002.

The appellant argued that the application was out of time under regulation 28(2) of the Child Support (Collection and Enforcement) Regulations 1992, because the earliest payments had become due more than six years earlier. The central issues were when the payments became legally due and whether the magistrates could make a liability order for a corrected amount.

1. The appeal was dismissed. The magistrates had correctly concluded that the application was not barred by limitation and that the appellant’s human rights had not been breached.

2. Section 1 of the Child Support Act 1991 imposes a general parental responsibility, but no enforceable liability to make periodical payments arises until a maintenance assessment has been made. Although an assessment may be backdated, the relevant statutory liability begins when the assessment is made and notified.

3. Regulation 28(2) of the Child Support (Collection and Enforcement) Regulations 1992 provides the applicable limitation period, excluding the general provisions of the Limitation Act 1980. The reference to the day on which payment became due concerns the date on which the actual legal obligation was triggered, rather than an earlier notional parental obligation. The six-year period therefore began in October 1997.

4. The distinction between the words payable and due in regulations 27(2) and 28(2) did not produce a different result. The reasoning in Regentford v Thanet District Council [2004] EWHC 246 (Admin), concerning the distinction between a potential duty and an actual duty triggered by a demand, provided a proper analogy.

5. A liability order is not confined to the precise figure stated in the application. If payments have been made, or particular sums are otherwise shown to be out of time, the magistrates may make an order limited to the amount properly outstanding.

6. The High Court’s decision on a civil case stated was final under section 28A of the Supreme Court Act 1981. The court also noted that Westminster City Council v O’Reilly and Others had addressed the absence of jurisdiction to hear an appeal in that context.

The answers to the magistrates’ questions were therefore yes. Costs were awarded to the Secretary of State, subject to detailed assessment if not agreed.

The judgment itself describes the matter as a case stated appeal from the Dorset Family Proceedings Court. No earlier reported appellate decision is stated.