Howes, R (on the application of) v Child Support Commissioners & Anor

When deciding whether there are special reasons for accepting a late application under child support appeal regulations, the decision-maker must consider the whole circumstances of the case. The concept is broad and flexible, and the relevant factors depend on the individual case. A checklist taken from the Civil Procedure Rules must not be imposed as an additional legal requirement. Delay and the importance of time limits are relevant, but they must be balanced against other material matters, including a litigant’s earlier attempts to appeal, lack of legal representation, procedural confusion, the merits of the proposed appeal and the consequences for those affected. Failure to consider such matters may render the decision irrational.

The claimant sought judicial review of a Child Support Commissioner’s refusal to accept his late application for leave to appeal from an appeal tribunal decision. The tribunal had substantially increased his child support liability. The Commissioner considered the application several months late and concluded that there were no special reasons for extending time, although he recognised that the proposed appeal might have merit.

The claimant argued that the Commissioner had failed to consider material factors and sought guidance based on CPR 3.9. The central issues were the meaning of special reasons under the child support appeal regulations and whether the Commissioner had lawfully exercised his discretion.

1. Judicial review allowed. The Commissioner’s decision was quashed because he had failed to carry out the required balancing exercise.
2. The concept of special reasons under regulation 11(3) of the Child Support Commissioners (Procedure) Regulations 1999 is broad and flexible. The relevant considerations depend on the circumstances of the individual case. It was inappropriate to impose an obligation on Commissioners to apply the checklist in CPR 3.9(1).
3. The factors listed in CPR 3.9(1) may nevertheless often be relevant. The court rejected the creation or importation of rigid checklists, having regard to the warning in Audergon v La Baguette [2002] EWCA Civ 10 about satellite authority and judicial rewriting of procedural rules.
4. The Commissioner had treated the relevant delay as approximately three and a half months and gave substantial weight to adherence to time limits. However, he failed to consider the claimant’s accountant’s timely, though defective, indication of an intention to appeal and the later notice of appeal, which the claimant might reasonably have believed was advancing his appeal. He also failed properly to weigh the claimant’s lack of legal representation and the merits and financial consequences of the proposed appeal.
5. The omission of those matters meant that the Commissioner did not take a proper view of the events as a whole and could not balance the delay against the other relevant considerations. His decision was therefore irrational. The matter was to be reconsidered by a Commissioner, subject to further submissions on the appropriate order.

The judgment describes the claimant’s earlier proceedings before an appeal tribunal and a Child Support Commissioner. It does not state a separate appellate citation for the decision under review.