I have been around long enough to remember how child maintenance was dealt with by the courts prior to the advent of the child support system. I recall, in particular, walking down to the local magistrates’ court most Thursday mornings to argue the issue on behalf of mothers and fathers.
That court-based system was certainly not perfect. There could, for example, be large discrepancies between how much different courts, or just different magistrates/judges, ordered respondents (‘non-resident parents’, to use the jargon of the child support system) to pay. There was, of course, no formula for the courts to use to decide the amount of the maintenance – the cases were dealt with on the basis of what the court felt was a reasonable sum for the respondent to pay, having regard to the facts of the case, in particular the means of the parties. Such a discretionary system inevitably meant that different judges would have different views as to what was reasonable, given the same facts.
However, imperfect though the old system was, it had nothing on the imperfections of the child support system (in its various guises) that succeeded it, administered by the Child Support Agency (CSA), and now by the Child Maintenance Service. Take, for example, the recent case PS v Secretary of State for Work and Pensions and LM (CSM) (Child support : other), decided by Judge of the Upper Tribunal Stewart Wright on 5 October last. The case, which involved an appeal by a parent with care father against a decision of the First-tier Tribunal, was a catalogue of errors that led Judge Wright to say that it was:
“…not, however, an appeal that provides a good advert for the workings or administration of the CSA, as the history below shows.”
Now, at this point I would like to set out a list of the errors that that history shows, but I am a little hesitant to go into details, not because the history is complex (it is), but because the case is continuing, and the full facts have not yet been established, by being determined by a court or tribunal. Accordingly, what follows is a little limited, and subject to the proviso that I have tried to give a fair and balanced view on the following points.
Subject to that, the case clearly throws up a number of points of concern, which include:
- The father originally applied for child support maintenance in January 2001. Once that application was received, the CSA should have sent a ‘maintenance enquiry form’ (MEF) to the mother. Now, one would expect that the CSA would have kept a clear record of this important step in the procedure, and that it would therefore be inarguable that the step had been properly taken. However, the records that have been kept are such that to this day it is still in dispute as to whether the MEF was sent to the mother, at her then correct address.
- Whatever, the CSA clearly believed that the mother had received the MEF. It was then the duty of the mother to complete the form with details of her means, and return it to the CSA, so that the CSA could carry out a maintenance assessment. The MEF was not returned, but the CSA took no action.
- In fact, no further action was taken by the CSA until August 2008, when “a decision was made to cancel the case from 01/06/07”. It was not properly recorded why the CSA decided to cancel the case and, indeed, it appears that they had no legal grounds for doing so. It was also not clear whether the father had been notified of the decision.
- In 2012 the father made enquiries about his application, only to be told that the case had been closed in 2007. Following an investigation the Secretary of State concluded that the case had been closed in error and should be reopened. In October 2013 the Secretary of State found the mother to be liable to pay child support maintenance at a variety of rates from 9 July 2001 until 3 September 2012, when the case was finally closed, as the child had by then reached the age of 16 and had ceased to be a “qualifying child”.
- The mother appealed against this decision, arguing that the case had been closed since 2007. Tellingly, in his response to the mother’s appeal the Secretary of State claimed (in fact wrongly, in the view of Judge Wright) that the case suffered from a “paucity of information”.
I’m not going to go any further, save to say that the mother’s appeal was allowed in part, partly because the tribunal found that no MEF had been issued in 2001. The father then appealed against that decision, and Judge Wright found that the tribunal had failed to have regard to evidence “which at the very least arguably shows that a maintenance enquiry form had been issued by the Secretary of State … to the mother in 2001.” Accordingly, the father’s appeal was allowed, and the matter will go back to be re-decided afresh, by a differently constituted First-tier Tribunal. Thus, it would appear that the case will not finally be decided at least until next year, sixteen years after the application was first made, and more than four years after the child no longer qualified for child support.
Now, I can’t recall any child maintenance case that the courts dealt with that involved such a catalogue of errors, delay and mismanagement. On the other hand, I have read many reports of such cases dealt with under the child support system. As I said earlier, the courts did not achieve perfection, but they got a lot closer to that goal than the child support system, which has, quite simply, never been fit for purpose.
If you really want to, you can read the report of PS v Secretary of State for Work and Pensions and LM here.