Secretary of State for Work & Pensions v Roach

Under section 46 of the Child Support Act 1991, “undue distress” is not assessed on a purely subjective basis. The decision-maker must objectively assess whether foreseeable distress is unjustified or unreasonable, in the context of the claimant’s or child’s personal and subjective characteristics. Irrationality or paranoia may provide relevant context but are not determinative.

The statutory threshold is relatively easy to meet. Prior violence or abuse is unnecessary, although a history of it may support a realistic possibility of recurrence. An appellate tribunal may intervene in credibility findings only for an error of law, not merely because it prefers a different analysis of the evidence.

The Secretary of State appealed against the decision of Mr Commissioner Levenson in CIS/2482/2005, which had allowed Caroline Roach’s appeal from a Child Support Appeal Tribunal. The Tribunal had upheld a reduced-benefit decision made after Ms Roach asked that child maintenance not be pursued against her son’s father because of feared harm or distress.

The Commissioner concluded that the Tribunal had reasoned incorrectly about the irrationality and progressive detail of Ms Roach’s fears. The appeal concerned service of the statutory notice, the permissible scope of appellate review of factual and credibility findings, and the proper construction of the section 46 test under the Child Support Act 1991.

1. Appeal allowed unanimously. The Respondent’s Notice challenging service was rejected. The Tribunal’s findings of fact and decision were restored.
2. Obiter legal guidance. Although the factual challenge determined the appeal, the court addressed the section 46(3) test because the Commissioner’s approach might otherwise gain currency. The claimant need show only reasonable grounds for believing that there is a realistic possibility of harm or undue distress. Substantial harm is unnecessary, and prior violence or abuse is not required, although it may support the possibility of recurrence.
3. “Undue distress” cannot be assessed purely subjectively, since that would deprive “undue” of real meaning. An objective judgment is required as to whether the foreseeable distress is unjustified or unreasonable, assessed in the context of the claimant’s or child’s personal and subjective characteristics. Irrationality or paranoia are relevant contextual factors but are not determinative. The court also considered the formulation of undue hardship in Tote Bookmakers Ltd v Development & Property Holding Co Ltd [1985] Ch 261.
4. An appellate court or tribunal may intervene in a primary fact-finder’s credibility and factual assessment only for an error of law. It must not substitute a different analysis merely because it prefers that analysis, particularly where the primary tribunal heard the witness.
5. The Tribunal was entitled to reject Ms Roach’s account as deliberately false and exaggerated. It was also entitled to treat her remaining unsupported assertions as unreliable and was not required to speculate about alternative reasons for her conduct.
6. Service was valid. The Tribunal could infer from the contemporaneous official log that the standard forms had been posted. Regulation 2 of the Child Support (Maintenance Calculation Procedure) Regulations 2000 treated a document sent by post to the last known or notified address as given or sent on the day of posting. The court left open whether the service provisions were directory or mandatory.
7. The court recognised the legislative balance between recovering child maintenance and protecting parents and children from harm or undue distress. It emphasised the importance of complete and immediate candour by claimants.

• Court of Appeal (Civil Division) — appeal from Mr Commissioner Levenson’s decision in CIS/2482/2005. The appeal was allowed and the Tribunal’s decision restored.
• Child Support Commissioner — allowed Ms Roach’s appeal from the Tribunal on 11 November 2005 and reversed its decision.
• Child Support Appeal Tribunal — dismissed Ms Roach’s appeal after a full hearing and upheld the reduced-benefit decision.