Smith v Child Maintenance Enforcement Commission

On judicial review, the court must assess whether the public authority was entitled to reach its decision on the information available, rather than substitute its own view. Where correspondence creates genuine uncertainty about whether a parent has requested cessation of child-maintenance enforcement, the authority may treat the request as unmade until the position is clarified. Continuing enforcement will not be irrational where the authority operates a self-contained statutory scheme and is not required to investigate private arrangements in detail. The objectives in section 2 of the Child Maintenance and Other Payments Act 2008 do not prevent enforcement of statutory arrears, particularly where an alleged agreement concerns payment of arrears rather than voluntary future maintenance.

The claimant sought judicial review of a decision communicated on 9 February 2009 that a deduction from earnings order would continue to enforce child-maintenance arrears. He relied on correspondence said to show that his former wife had requested termination of the Child Support Agency’s involvement and had reached an agreement concerning payment. The defendant disputed that any effective request to cease enforcement had been made.

The issues were whether the defendant was entitled to find that no such request had been made, whether continued enforcement was irrational, and whether it breached the objectives imposed by section 2 of the Child Maintenance and Other Payments Act 2008.

1. The claim was dismissed. The court’s task on judicial review was not to decide whether the former wife had objectively requested cessation, but whether the defendant was entitled, on the information then available, to conclude that no such request had been made.

2. The correspondence, particularly the handwritten qualification to the letter of 12 November 2008 and the subsequent email, created uncertainty as to the former wife’s intention. That uncertainty continued until her clear email of 18 November stating that no action should be taken to close the case. The defendant was therefore entitled to conclude that the claimant had not established a request to cease enforcement.

3. The defendant had not acted irrationally in continuing enforcement. The statutory scheme was self-contained, and the authority was entitled to maintain some distance from private arrangements between parents. It was not required to conduct a detailed investigation of the parties’ private dispute. The power introduced by section 41D of the Child Support Act 1991 to accept part payment in full and final satisfaction was relevant to the defendant’s position, and the court accepted that there was force in the defendant’s submissions on this issue.

4. The objectives in section 2(2)(a) and (b) of the Child Maintenance and Other Payments Act 2008 did not require the defendant to stop enforcement. The alleged agreement was not a voluntary maintenance arrangement within section 2(2)(a), and section 2(2)(b) supported compliance with statutory obligations, including payment of arrears. The overriding objective of securing effective maintenance arrangements for children living apart from a parent was consistent with continuing the deduction from earnings order.

5. The claimant was ordered to pay 80% of the defendant’s costs, subject to detailed assessment. Permission to appeal and a stay of enforcement were refused.

First-instance judicial review proceedings in the High Court (Administrative Court). Permission to continue was granted by Wyn Williams J on 3 July 2009. The claim was dismissed by His Honour Judge Jarman QC; permission to appeal and a stay were refused.