Farley v Child Support Agency & Anor

The House of Lords held that section 33(4) of the Child Support Act 1991 precludes a magistrates' court, when considering an application for a liability order, from questioning the validity or jurisdictional basis of the maintenance assessment (now called a maintenance calculation). Challenges to the making of an assessment are to be pursued through the statutory review and appeal structure provided by the Act as originally enacted (notably the review under section 18 and appeal under section 20), rather than at the liability order hearing.

The court emphasised that section 33(4) requires the magistrates to proceed on the assumption that the assessment was lawfully made; the magistrates' function is limited to checking identity, that the payments have become payable and that they have not been paid. Where an appeal against the underlying assessment is pending, magistrates should consider whether making a liability order would be oppressive and, if so, adjourn under section 54 of the Magistrates' Courts Act 1980.

Background and parties. The respondent, Mr Alec Farley, faced an application for a liability order by the Secretary of State for unpaid child support said to arise under three maintenance assessments. Mr Farley accepted non-payment of the amounts recorded as due but argued before the magistrates that the assessments were unlawfully made (on the basis of a pre-existing written maintenance agreement barring an application under section 4(10) and lack of evidence the parent with care was receiving prescribed benefits under section 6). The magistrates made a liability order. Mr Farley appealed by way of case stated to the Administrative Court (Keith J) which dismissed his appeal. The Court of Appeal initially allowed Mr Farley but later re-opened and set aside that decision and granted judicial review relief; the Secretary of State appealed to the House of Lords.

Nature of the claim/application. The proceedings concerned an appeal against the Court of Appeal's decision quashing the magistrates' liability order and granting judicial review; the substantive legal question was whether magistrates may enquire into and determine the lawfulness or jurisdictional validity of a maintenance assessment when considering an application for a liability order under section 33 of the Child Support Act 1991.

Issues framed. (i) Whether the magistrates have any adjudicative function under section 33(1)(a) to determine if a non-resident parent is a 'liable person' by enquiring into the validity of the assessment; (ii) whether the magistrates, on an application for a liability order, are required to receive evidence that the parent with care was claiming a prescribed benefit which authorised the Secretary of State to recover maintenance.

Reasoning and outcome. The House of Lords interpreted section 33(4) as unambiguously precluding the magistrates' court from questioning any aspect of the maintenance assessment. The appropriate forum for challenging the Secretary of State's decision to make an assessment is the statutory review and appeal machinery provided by the Act as originally enacted (in particular section 18 review and section 20 appeal to a tribunal). Where later amendments narrowed appeal rights (for example the 1998 version), that did not alter the original meaning of the provisions in force when section 33 was enacted. The court acknowledged practical difficulties with judicial review as an alternative remedy in some periods but concluded that the existence of the statutory review/appeal regime when section 33 was enacted supports the interpretation that magistrates should not adjudicate on the validity of assessments. The House allowed the Secretary of State's appeal, set aside the Court of Appeal's order granting judicial review, and dismissed Mr Farley's judicial review application. The court added that magistrates should consider adjournment under section 54 of the Magistrates' Courts Act 1980 where an appeal against an underlying calculation is pending and making an order would be oppressive.

Appeal allowed. The House of Lords held that section 33(4) of the Child Support Act 1991 prevents magistrates from questioning the lawfulness or jurisdictional validity of a maintenance assessment when considering an application for a liability order; such challenges are to be pursued through the statutory review and appeal structure established by the Act. The Court of Appeal's grant of judicial review was set aside and the judicial review application dismissed. The magistrates' order and Keith J's decision were declared correct in law.

Magistrates' Court: liability order made (15 July 2003). Case stated to the Administrative Court: Keith J dismissed appeal [2004] EWHC 1655 (Admin). Court of Appeal initially allowed Mr Farley's appeal [2005] EWCA Civ 778 (25 January 2005). The Court of Appeal later re-opened its earlier judgment, set it aside and granted judicial review, quashing the magistrates' decision [2005] EWCA Civ 869 (22 June 2005). House of Lords: allowed Secretary of State's appeal [2006] UKHL 31 (28 June 2006).