Rowley & Ors v Secretary of State for Department of Work and Pensions

A public authority does not owe a common law duty of care where that duty would be inconsistent with the statutory scheme governing its functions. The Child Support Act 1991, together with statutory appeals, judicial review and provision for interest on arrears, supplied a sufficiently comprehensive system of protection against administrative incompetence.

The Child Support Agency did not voluntarily assume responsibility merely by performing its statutory functions. Nor was its position analogous to that of a solicitor acting for an individual client. It was therefore not fair, just and reasonable to impose a duty to avoid pure economic loss. The same conclusion applied to alleged psychiatric injury.

A mother applied to the Child Support Agency for child maintenance for her three children. The claimants alleged negligent delay and error in assessing maintenance, pursuing an appeal, collecting payments and enforcing arrears. They sought damages for economic loss and, in one child's case, psychiatric injury.

HH Judge Grenfell QC struck out the claims under rules 3.4 and 24.2 of the Civil Procedure Rules 1998. He considered them bound to fail in light of R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48. The claimants appealed, contending that the existence of a duty of care should be decided after trial and that responsibility arose under the incremental approach, the Caparo test or voluntary assumption of responsibility.

The central question was whether the Secretary of State owed persons with care or qualifying children a common law duty of care when performing functions under the Child Support Act 1991.

1. Appeal dismissed. Dyson LJ, with whom Keene and Waller LJJ agreed, held that the pleaded negligence claims were properly struck out. No factual investigation at trial could assist because the alleged relationship arose solely from the statutory scheme. Even if every pleaded fact were assumed in the claimants' favour, the duty question was one of law.

2. The Secretary of State had not voluntarily assumed responsibility. When an application for maintenance was made, he was obliged to perform the relevant statutory functions. His mandatory and discretionary functions were not undertaken voluntarily or in circumstances akin to contract. The professional skill and judgment exercised by agency staff did not alter that conclusion.

3. Imposing liability would not be an incremental development by analogy with a solicitor's duty to a client. Unlike a solicitor, the agency did not select or charge its clients and had to balance the interests of persons with care, absent parents and children. It also possessed statutory decision-making and enforcement powers which a solicitor did not possess.

4. A common law duty must be consistent with the statutory framework and Parliament's presumed intention. The Child Support Act 1991 created a detailed scheme. It provided appeals concerning assessments, judicial review in relation to collection and enforcement, and provision for interest on arrears. Section 8 also carefully delimited the courts' remaining jurisdiction. Those protections were sufficiently comprehensive to make a concurrent negligence duty inconsistent with the scheme, even though they would not compensate every conceivable loss.

5. It was also not fair, just and reasonable to impose a duty to avoid pure economic loss. Parliament contemplated recourse to the Ombudsman for maladministration. Negligence claims would generally concern modest losses but require costly and factually difficult litigation. Enforcement decisions could also require sensitive judgments about competing interests and the welfare of affected children. Recognition of a duty risked numerous claims whose costs would be disproportionate to the sums at stake.

6. The same reasoning excluded a duty to prevent personal injury, including the alleged psychiatric injury. Inconsistency with the statutory scheme was as decisive for personal injury as for economic loss.

7. The court did not determine the appeal by construing section 46A of the 1991 Act or by applying the general principle stated in Jones v Department of Employment. Jones concerned a different statute, and its broader principle required caution in light of later authority concerning alternative remedies.

1. Court of Appeal (Civil Division): The claimants' appeal was dismissed. The court upheld the striking out of the negligence claims because no common law duty of care arose.
2. High Court: HH Judge Grenfell QC struck out the claims, holding that they were bound to fail in light of R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48. No neutral citation for the High Court decision is stated.