Treharne & Ors v Secretary of State for Work & Pensions

A comprehensive and Convention-compliant statutory scheme is not rendered incompatible with Article 8 merely because it is poorly administered in an individual case. Where the Child Support Agency has discretion over enforcement and its decisions are amenable to judicial review, maladministration in collecting assessed maintenance does not itself create an Article 8 claim for damages.

Article 8 does not confer a general right to welfare payments or maintenance from the State. Although exceptional positive obligations may arise, particularly where children’s welfare is at stake, the support contemplated is at most a minimal level. Reduced household resources and resulting hardship do not, without more, affect the core values of family or private life protected by Article 8.

The claimants, three siblings, sought damages under Article 8 of the European Convention on Human Rights for the Child Support Agency’s alleged failure to enforce maintenance assessments against their father. They alleged that the resulting arrears caused substantial hardship and impaired their family and private life. A negligence claim had been abandoned following Rowley v Secretary of State for the Department of Work and Pensions [2007] EWCA Civ 598.

A District Judge struck out the claim as bound to fail. The claimants applied to set aside that order. The central issues were whether individual maladministration within a comprehensive statutory scheme could engage Article 8, and whether Article 8 conferred a right to regular maintenance or welfare support.

1. Application refused. The court refused to set aside the District Judge’s strike-out order. The demanding strike-out test was satisfied because the claim had no realistic prospect of success on the pleaded facts.
2. The Child Support Act 1991 established a comprehensive scheme for assessing, collecting and enforcing child maintenance. The Child Support Agency had a discretion, rather than a duty to enforce in a particular way or within a specified period. Its exercise of that discretion was subject to judicial review. The scheme was accepted to be Convention-compliant.
3. Following the approach in Marcic v Thames Water Utilities Ltd [2003] UKHL 66, malfunction of a fair and comprehensive statutory scheme in an individual case did not undermine the scheme’s overall compatibility with Article 8 or create a damages claim under the Human Rights Act 1998. The same principle applied despite the pleaded failure to enforce maintenance over a substantial period.
4. Article 8 did not confer a right to reasonable maintenance or welfare payments from the State. Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406 recognised that Article 8 might impose a positive obligation to provide support, particularly where children’s welfare was involved, but the support contemplated was at a minimal level, illustrated by the reference to Article 3.
5. The alleged consequences—reduced housing, food, activities, holidays and school-related expenditure—did not affect the core values of family or private life. Less money could make family life more difficult or stressful without amounting to an interference with the Convention concepts of family life or private life.
6. The claim therefore could not be reframed as an Article 8 damages claim for maladministration in pursuing maintenance assessments. Other difficulties, including the position concerning the recipient of arrears and the measurement of compensation, did not require determination.

The judgment records that District Judge Oliver struck out the claim ex parte in April 2008 as bound to fail. The High Court refused the claimants’ application to set aside that order.