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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

19 JUN 2007

CHILD SUPPORT: Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598

(Court of Appeal; Waller, Keene and Dyson LJJ; 19 June 2007)

The mother made an application to the Child Support Agency (CSA) for child maintenance for her three children from their non-resident father under s 4 Child Support Act 1991 (the 1991 Act). The mother and the children claimed that the CSA (i) delayed in carrying out the maintenance assessment; (ii) obtained inadequate information on which to base the assessment; (iii) made interim and final assessments that were wrong; (iv) delayed in enforcing the assessments; and (v) delayed in dealing with the claimants' appeal against the assessment. They claimed damages in negligence in respect of these failings. The claim was originally struck out on the basis that a common law duty of care owed to the claimants by the Secretary of State would be inconsistent with the statutory scheme created by the 1991 Act. The claimants appealed.

The question of law was whether or not the Secretary of State owed a duty of care to the claimants. The claimants argued that when the CSA responds to an application under the statutory scheme there is an assumption of responsibility by the Secretary of State sufficient to give rise to a duty of care.

The appeals would be dismissed.

In exercising his statutory powers, the Secretary of State was not assuming a voluntary responsibility towards those who were foreseeably affected by it. The 1991 Act provided a sufficiently comprehensive remedy that a duty of care would be inconsistent with the statutory scheme. The existences of the right of appeal (s 20) and the right to receive interest on arrears in prescribed circumstances (s 41) when taken in conjunction with the right to seek judicial review of failures to collect or enforce arrears of maintenance, meant that the 1991 Act provided the person with care with substantial protection against incompetence on the part of the CSA. The fact that there may be cases where incompetence on the part of the CSA caused loss which could not be recovered under the statutory scheme was not a sufficient reason to impose a duty of care or for imputing to Parliament an intention that there should be a right of action to recover damages in negligence. The merits of the scheme were not for the courts to evaluate.

There were further reasons why it would not be fair, just and reasonable to impose a duty of care: the fact that Parliament contemplated that complaints about CSA maladministration would be referred to the Ombudsman; the fact that the sums at stake where there were complaints of incompetence were likely to be disproportionate to the costs of litigating to recover them as damages for negligence. If a duty of care were recognised to exist on the part of the Secretary of State, there would likely be a flood of (mainly small) claims whose costs would often be out of proportion to what would realistically be at stake in most cases.

For all the same reasons as applied to a duty of care to avoid economic loss the court held that there was no common law duty of care owed by the Secretary of State to avoid personal injury.

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