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

In a judicial review concerning child support arrears, a challenge must be brought promptly against the underlying decision fixing the liability. Later enforcement steps do not ordinarily create a fresh decision or extend time.

Where voluntary payments are disputed and the Secretary of State does not accept that they were made, refusal to credit them will not generally be irrational or unlawful. The welfare of children in another household must be considered under section 2 of the Child Support Act 1991, but an express reference is unnecessary where no information shows that their welfare is affected and it could not alter the outcome.

The claimant sought judicial review of the Secretary of State’s approach to alleged voluntary payments said to reduce his child support maintenance liability. He also sought declarations concerning arrears and enforcement, and orders quashing liability and charging orders.

The relevant decision was contained in a letter dated 5 May 2006. A further letter dated 6 July 2006 explained or commented on that decision. The claim was filed on 22 February 2008, and permission had previously been refused by His Honour Judge Hickinbottom. The issues were whether the claim was brought in time, whether later enforcement decisions generated a fresh cause of challenge, and whether the Secretary of State had unlawfully exercised his discretion concerning the alleged payments.

1. Permission refused. Time ran from the Secretary of State’s decision of 5 May 2006, not from the explanatory letter of 6 July 2006 and not from later enforcement action. Treating each enforcement step as a fresh decision would circumvent the requirement that judicial review claims be brought promptly.

2. There was no separate challenge to each decision to pursue arrears. The amount of the arrears had been determined by the Secretary of State in 2006.

3. The Secretary of State had a discretion whether, and to what extent, voluntary payments should be set against the child support liability. The claimant’s additional payments were disputed and were not accepted as having been made. In those circumstances, the decision was not shown to be unlawful, irrational, based on irrelevant considerations, or reached without regard to relevant considerations.

4. Section 2 of the Child Support Act 1991 required the Secretary of State to take account of children of another partnership. However, no information had been provided showing that those children’s welfare would be adversely affected. An express reference to section 2 could not have altered the decision because the disputed payments had not been accepted as made.

5. The defendant was entitled to its costs of the hearing. Applying the principles in Mount Cook, the claim was hopeless and the claimant had persisted after being alerted to its problems by the earlier refusal of permission. The court did not need to decide whether there had also been an abuse of process. The earlier costs were revisited and reduced to £1,000, and costs of £2,040 for the hearing were ordered, subject to section 11 of the Access to Justice Act.

The claim was filed on 22 February 2008. Permission to apply for judicial review was refused on 27 May 2008 by His Honour Judge Hickinbottom. This court refused permission and ordered costs.