Rew, R (on the application of) v Secretary of State for Work & Pensions

Information held by the Secretary of State in administering one social-security scheme is not automatically imputed to him when acting in relation to another statutory scheme. The position is different where the relevant information is available to the claimant rather than only to the department. Where the information could not have been used to alter the liability period being enforced, it cannot provide an arguable basis for judicial review of enforcement. Enforcement of child maintenance through liability proceedings and, ultimately, imprisonment is not inherently contrary to the welfare of the children for whose benefit maintenance is payable. A permission application may be dismissed as totally without merit where the proposed grounds cannot affect the challenged enforcement measures.

The claimant sought permission to bring judicial review proceedings challenging Child Support Agency decisions and enforcement steps. He relied on his receipt of jobseeker’s allowance between 1997 and 1999, alleged defects in service of notices, and an alleged failure to consider the welfare of his children.

The liability order concerned arrears for the later period from 13 July 2000 to 10 November 2006. Permission had previously been refused by McCombe J on 31 December 2007. The issue was whether any proposed ground was reasonably arguable and capable of affecting the enforcement proceedings.

1. Permission and disposition. The application for permission was dismissed. The claim was regarded as hopeless and certified as totally without merit. The claimant was ordered to pay £350 costs for the hearing; costs relating to the acknowledgment of service remained subject to the earlier assessment order.
2. Jobseeker’s allowance information. The claimant accepted that the period during which he received jobseeker’s allowance fell outside the liability-order period. Any error concerning that earlier period therefore could not affect enforcement of the arrears covered by the liability order. Further, information obtained by the Secretary of State while administering jobseeker’s allowance was not to be imputed to him in his separate capacity in relation to the Child Support Agency.
3. The court treated Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, [2005] 1 WLR 967 as directly in point. Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23 did not assist because the relevant information was plainly available to the claimant, even if it was also available to the department.
4. The Agency’s later awareness, in 2005, of the claimant’s receipt of jobseeker’s allowance did not create an arguable ground. The powers under sections 16 and 17 of the Child Support Act 1991 did not then enable remedial measures affecting the liability period.
5. The welfare duty under section 2 of the Child Support Act 1991 did not make enforcement contrary to the children’s welfare. The statutory scheme contemplated liability orders and imprisonment, where necessary, to enforce maintenance for the benefit of children living with the parent having care.
6. The court found it unnecessary to determine whether delay should be excused, since the claim failed on its merits. Service at the address identified as the claimant’s cohabitant’s address disclosed no reasonably arguable error of law.

Permission had previously been refused by McCombe J on 31 December 2007. The present court dismissed the renewed application for permission.