Monday, January 12, 2009

Bird v Secretary of State for Work and Pensions: Common sense

It's a rarity for an an appeal against the making of a liability order to be successful, but that's what happened in Bird v Secretary of State for Work and Pensions & Anor [2008] EWHC 3159 (Admin).

The Facts: The Child Support Agency made an assessment and informed the father that he was to pay it using Transcash. However, the mother and the father had agreed that the father would pay the mother's share of the joint mortgage on the former family home, in lieu of maintenance. The father therefore made no payments by Transcash, and the Agency sought a liability order. The order was made by the Magistrates and the father appealed, on the basis that he had paid the child support, but just by a different method.

Decision: Mrs Justice Slade in the High Court agreed with the father. The Magistrates are, of course, obliged to make a liability order if they are satisfied that child support has become payable and has not been paid. Mrs Justice Slade: "Section 33(6) of the Child Support Act 1991 requires a Magistrates' Court to find that child support maintenance has not been paid where it is not paid to or through the person specified by virtue of the Regulations made under Section 29(3)(a). However there is no similar provision requiring the Magistrates to find that payment has not been made where it is not made by the method specified by virtue of the Regulations made under Section 29(3)(b). The absence of such a provision leads me to the conclusion that Magistrates are not obliged to make a liability order if they are satisfied that payment was made by the liable person but by a method other than that notified by the CSA [my emphasis]. Accordingly the answer to the question referred by the Magistrates for the opinion of the High Court is: No." With impeccable logic, she went on: "An affirmative answer to the question posed for the opinion of the High Court would oblige Magistrates to make a liability order if they are satisfied that payments have been made by the liable person but by a method other than that notified by the CSA. Such an answer would, for example, compel a Magistrates' Court to make a liability order in respect of a parent who pays child support maintenance to the specified person by cash where cheque was the specified method of payment. In my judgment Section 33 of the Child Support Act 1991 does not have that effect."

Comment: A common sense decision, and one that will, hopefully, be helpful in the common scenario where the non-resident parent is providing financial assistance by discharging bills for the parent with care, rather than paying maintenance direct. Note, however, that the question of whether payment of the mother's mortgage liability by the father was payment of child maintenance was not referred to the High Court: "The question posed by the Magistrates for the opinion of the High Court is predicated on a finding that payment of child support maintenance was paid by Mr Bird but not by the method notified by the Child Support Agency."

2 comments:

  1. Is it not the case that under the new rules CMEC will not need to apply for a liability order?

    ReplyDelete
  2. Yes, the Commission will be able to make an 'administrative liability order' if it considers that a person has failed to pay child support maintenance. That person may appeal against the "order" (I thought only courts could make orders?) and I believe that the principles in this case would still apply.

    ReplyDelete

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