Farley v Secretary of State for Work and Pensions & Anor

When a statute gives magistrates power to make a liability order, they must be able to determine whether the statutory conditions creating liability are satisfied. A provision preventing the court from questioning a maintenance assessment limits inquiry into calculation and quantum. It does not prevent inquiry into jurisdiction, validity or underlying liability. Where liability is challenged, relevant evidence must be received unless the issue is conceded. Unclear review or appeal routes do not justify depriving the magistrates of jurisdiction, particularly where enforcement may ultimately involve imprisonment.

The appellant challenged a liability order made by the North Somerset Justices for alleged child maintenance arrears. He relied on a maintenance agreement and argued that the Secretary of State had not established the statutory conditions for making the maintenance assessment, including the relevant benefit condition under the Child Support Act 1991. The justices considered that section 33 gave them no jurisdiction to examine liability or require evidence of benefit and made the order.

Keith J, on appeal by case stated, upheld that approach and answered both questions against the appellant. The appeal concerned the proper construction of section 33, particularly whether its restriction on questioning the maintenance assessment prevented the magistrates from examining the appellant’s liability and the Secretary of State’s jurisdiction to act.

The appeal was allowed unanimously. The liability order was set aside and the case was remitted to the magistrates’ court.

1. Scope of the case stated. The court declined to consider fresh evidence concerning the Secretary of State’s performance of his duties and Article 6 because it did not arise from the Case stated.
2. Construction of section 33. The Lord Chief Justice held that section 33(1) applies to a person legally liable to make child support payments, not merely to a person against whom the Secretary of State has made an assessment. Section 33(3) requires the magistrates to be satisfied that payments became payable by that liable person and remain unpaid. That necessarily gives them an adjudicative function concerning liability.
3. Effect of subsection (4). The prohibition on questioning the maintenance assessment, or maintenance calculation under later amendments, concerns the amount or calculation of maintenance. It does not exclude examination of the jurisdictional preconditions under sections 4 or 6 of the Child Support Act 1991, including whether the parent with care was receiving or claiming the relevant benefit.
4. Alternative remedies and evidence. The available review and appeal machinery was insufficiently clear to justify excluding the magistrates’ jurisdiction. Judicial review was not a satisfactory alternative in an enforcement regime which could lead to committal. Where liability is disputed, the magistrates must receive appropriate evidence of the relevant benefit condition unless there is a concession. The Master of the Rolls and Lord Slynn agreed with that reasoning. The court distinguished the broader observations in Shotton, which concerned the amount of arrears, from the underlying question of liability.

The questions were answered accordingly: the magistrates had an adjudicative function as to whether the non-resident parent was a liable person, and were required to receive relevant evidence unless the point was conceded.

• Court of Appeal (Civil Division) — in [2005] EWCA Civ 778, allowed the appeal, set aside the liability order and remitted the case to the magistrates’ court.
• High Court of Justice, Queen’s Bench Division — Keith J dismissed the appeal by case stated and answered both questions in the negative.
• North Somerset Family Proceedings Court — made the liability order on 4 December 2003 and held that it lacked jurisdiction to examine the appellant’s liability or require evidence of the benefit condition.