Green v Secretary of State for the Department for Work & Pensions

Where the Child Support Agency has a non-statutory discretion to offset voluntary payments against child support liability, it must exercise that discretion on the circumstances of the individual case. The current position of the parent with care is relevant, but it is not necessarily decisive. The decision-maker must investigate whether there was an earlier agreement that the payment would be made in lieu of child maintenance, and must consider the welfare of the child and the evidence as a whole.

The agency must give both parents a fair opportunity to present relevant evidence, identify the issue to be determined, and make a rational decision on the balance of probabilities. A failure to document the decision and to investigate the relevant circumstances may establish both failure to exercise the discretion and procedural unfairness.

The claimant sought judicial review concerning the Child Support Agency’s refusal to offset school-fee payments against alleged child support arrears. The claim initially challenged a notice of intention to apply for a liability order. Permission was ultimately granted on grounds alleging failure to exercise the relevant discretion and procedural unfairness, together with a ground concerning failure to notify the claimant of the parent with care’s refusal to accept the payments.

The agency relied on its August 2002 internal guidance concerning voluntary payments. The central issues were whether that guidance conferred a discretion, whether the agency had exercised it lawfully, whether it had investigated the claimant’s alleged agreement with the parent with care, and whether the claim was too late.

1. Grounds 1 and 5 succeeded. The agency’s guidance made clear that decisions about voluntary payments were discretionary, had to be based on the circumstances of the individual case, and required consideration of the child’s welfare. The fact that the parent with care did not currently agree to an offset did not eliminate the residual discretion.
2. The agency had to investigate whether the parent with care had agreed, before or when the payments were made, that they would be accepted in lieu of child maintenance. It also had to consider whether the non-resident parent was required to continue making the payments, obtain sufficient evidence, and evaluate that evidence on the balance of probabilities.
3. The agency failed to exercise that wider discretion. It treated the parent with care’s current refusal as effectively determinative and did not investigate the circumstances of the payments or the alleged earlier agreement. Its records did not comply with the guidance’s requirement to document why and how the decision was reached.
4. The process was procedurally unfair. The claimant could not reasonably be expected to know what facts were relevant when the material guidance was available only to the agency. The agency therefore had to identify the issue and give both parents a proper opportunity to provide evidence and comment on the other’s case.
5. The failure to notify the claimant of the parent with care’s refusal, considered alone, would not have justified relief because he knew of that refusal by the end of January 2003. The wider defects in decision-making were material. The claim was brought promptly enough after the January 2007 enforcement notice, given the parties’ continuing attempts to resolve the matter.
6. The agency’s decision concerning the school-fee payments was quashed. The matter required a fresh decision after a fair investigation of the relevant evidence.