Humphries & Ors v Secretary of State for Work and Pensions

An ex gratia maladministration scheme must be interpreted according to its purpose and scope. Its stated principles should be applied consistently, but it must not be treated as a rigid code. The decision-maker must consider whether applying a particular provision would reasonably achieve the intended redress on the facts of the individual case.

Where a notional assessment is required, it must be based on the best available evidence. A basic national average cannot simply be adopted without considering material evidence, such as likely earnings in the relevant occupation and appropriate housing-cost deductions. Judicial review will ordinarily be a remedy of last resort where an independent complaints process is available.

Four mothers sought judicial review of decisions concerning compensation for admitted maladministration by the Child Support Agency under the old child-support scheme. Three claims were effectively abandoned, leaving Mrs Humphries’s claim concerning a failure to assess liability promptly and the resulting loss of child maintenance.

The Secretary of State offered financial redress calculated by reference to the court-order rate and an average maintenance-assessment rate. Mrs Humphries challenged both the treatment of the court order and the notional assessment. The court also considered whether she should first have used the Independent Case Examiner.

1. Interpretation of the Guide. The Financial Redress for Maladministration Guide was an ex gratia policy, not a statutory code. The court had to determine its purpose and scope and ask whether the challenged result could reasonably have been intended under the policy. The Guide’s principles had to be applied consistently, but the Guide was not to be read as a rigid set of rules. The approach in R (Raissi) v Secretary of State for the Home Department was adopted, following the reasoning in [2008] EWCA Civ 72.
2. Court order. Paragraphs 184–187 of the Guide stated a principle that, where a court order existed, redress for delayed assessment should generally reflect the difference between the court-order rate and the assessed rate. That principle had to be reconciled with the general aim of restoring the claimant to the position she would have occupied without maladministration. The Secretary of State was entitled, on the facts, to apply the court-order provisions and take account of the claimant’s knowledge of the order and her failure to enforce it.
3. Notional assessment. Paragraph 203 required the best evidence available. The Secretary of State had erred by applying a basic national average without considering the likely earnings of the non-resident parent, a plasterer, before calculating appropriate housing-cost deductions. That decision had to be reconsidered.
4. Independent Case Examiner. Judicial review was discretionary and an alternative remedy need not automatically bar it. However, claimants should normally use the ICE first. Its expertise, independence, inquisitorial process and lower costs made judicial review a first resort appropriate only exceptionally. Judicial review remained available for legal error or failure to implement an ICE recommendation.
5. The court accordingly upheld the court-order decision, quashed or required reconsideration of the earnings decision, and directed that submissions be made on the appropriate order and costs.

This was a first-instance judicial review. Walker J granted permission following a day’s hearing, after which the grounds were amended. No lower-court judgment was under appeal.