SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

NOTE TO INTERLOCUTOR DATED 17 DECEMBER 2009

BY SHERIFF GEORGE ALEXANDER WAY

in

Application in terms of Section 33 of the Child Support Act 1991

in causa

PURSUER CHILD MAINTENANCE AND ENFORCEMENT COMMISSION, CHILD SUPPORT AGENCY, Parklands, Callendar Business Park, Callendar Road, Falkirk FK1 1XT

against

DEFENDER MICHAEL GORDON SMITH, residing at 96 Forres Drive, Glenrothes, Fife KY6 2JX

Statutory provisions :

Child Support Act 1991 Section 33 provides :

"Liability orders

(1) This section applies where

(a) a person who is liable to make payments of child support maintenance ('the liable person') fails to make one or more of those payments; and

(b) it appears to the Secretary of State that

(i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or

(ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the maintenance assessment in question.

(2) The Secretary of State may apply to a magistrates' court or, in Scotland, to the sheriff for an order ("a liability order") against the liable person.

(3) Where the Secretary of State applies for a liability order, the magistrates' court or (as the case may be) sheriff shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4) On an application under sub section (2), the court or (as the case may be) the sheriff shall not question the maintenance assessment, maintenance calculation under which the payments of child support maintenance fell to be made."

Cases referred to:-

CSA v Buddles Queens Bench 16^th July [ 2008] EWHC 2103 (Admin).

R ( for Dennison) v CSA [2002] EWHC 154 (Admin)

Secretary of State for Social Security v Nicol (No 2) 1997 Reports Page 572

Department of Social Security v Butler [1995] 1 WLR 1528; [1995] 4 All ER 193.

Kennedy v M, 1995 SLT 717.

Macleay v Macdonald, 1928 SC 776; 1928 SLT 463.

Stirling v D, 1995 SLT 1089.

This case called as an opposed Summary Application in terms of section 33 of the 1991 Act (and the relative Act of Sederunt - 1993 No. 920), Answers having been lodged for Mr Smith. Mr Gleeson for the respondent had one simple and short submission: his client was entitled to a reason why, in terms of section 33(1)(b)(i) the Secretary of State on behalf of the Child Support Agency (hereafter "the Agency") deemed it inappropriate to make an earnings deduction order. A liability order would open the door to full civil enforcement (including the ultimate remedy of bankruptcy) which was unreasonable when, so far as his client was aware, there was, in fact, no reason why a deductions order could not be made. He was willing to abide by such an instalment regime. Mr. Gleeson accepted that if the Agency obtained a deduction order and that was not effective then the statutory scheme moved to a liability order and the court had no option but to grant it if the sum were unpaid. Indeed he relied upon what he submitted was a clear distinction between subsections (b)(i) and (b)(ii). The latter required only that the Secretary of State be satisfied that the deductions order was ineffective. This was a factual state which, he accepted, the determination of lay solely within the province of the Secretary of State. Subsection (b)(i) with which we are concerned here, was quite different. It required the Secretary of State to form a conclusion that a deductions order was inappropriate which was a subjective decision and there must be a reason. He was fortified in his submission by reference to the terms of the subsection itself which (in contrast to (b)(ii)) provides at least one possible reason where it states,"because, for example, he is not employed". The Court, in his submission, should not, therefore, grant a liability order unless the Agency was able to set out reasons why a deductions order would not be appropriate.

It was the Agency's case that such reasoning is precluded by the terms of section 33(4), which I have set out above, because it necessarily involves "questioning" the original maintenance assessment and the internal processes of the Agency. The solicitor for the Agency referred to various cases listed above but principally rested upon the proposition that it is said to have been authoritatively established by the decision of the House of Lords in Farley v Secretary of State for Work and Pensions (No 2) [2006] UKHL 31; [2006] 1 WLR 1817. In that case the Secretary of State applied to English justices under section 33(2) of 1991 Act for a liability order against a non resident father in respect of unpaid sums of child support set out in three maintenance assessments. The father accepted that the amounts set out were unpaid and outstanding but submitted that the maintenance assessments were not lawfully made so that he was not a liable person and that the justices could not be satisfied that the payments alleged to be outstanding had become payable. The justices held that by virtue of section 33(4) of the Act they had no power to inquire into the question as to whether the Secretary of State had authority to make the maintenance assessments sought to be enforced, and accordingly made the liability order. The judge dismissed the father's appeal by way of case stated. The Court of Appeal granted the father leave to apply for judicial review of the justices' decision, granted his application for judicial review, and declared that the judge and the justices were wrong in law, and that the justices had an adjudicative function on whether the non resident parent was a liable person and, where appropriate, they were required to seek evidence to show that liability. On Appeal of that decision to the House of Lords, the only substantive speech was given by Lord Nicholls. I need only read paragraph 16, which is in the following terms:

"To my mind the language of section 33 (4), read in the context of the section as a whole, on its face admits of only one interpretation: on an application for a liability order the magistrates' court must proceed on the basis that the maintenance assessment in question was lawfully and properly made. The court is precluded from questioning that assessment. It is precluded from questioning any aspect of the assessment. The magistrates' court function is to check that the assessment relates to the defendant brought before the court and that the payments in question have become payable and have not been paid. The court is not required to receive evidence that the assessment was made pursuant to an application satisfying the pre requisites set out in sections 4 to 6."

With the greatest of respect to the able and principled submissions by Mr Gleeson I accept, without hesitation, Lord Nicholl's interpretation of the relevant legislation and on that basis must reject the contention that this court has the power to look behind the reasoning of the Agency in respect of either of the subsections. On a proper construction of s 33(3) of the Act of 1991 the court, in my view, is obliged to grant the order sought by the Secretary of State without investigating his deliberative procedures. The Court, unlike other statutory schemes (for example appeals against civil penalties under the regulations concerning employers' duties to check workers immigration status) is not acting in any appellate capacity. The Sheriff, as made clear by subsection 4, must not be concerned with the merits of any assessment and is required to grant the order, provided that he or she is satisfied on the two points identified in subsection 3. The court is a "gateway" to the wider aspects of civil debt enforcement and its function, in this process, is to certify to third parties that the debtor has been correctly identified and the balance due accurately stated. The power and duty to decide that a liability order is necessary as such has been expressly given by Parliament to the Secretary of State through the Agency in the exercise of a jurisdiction which is part of what was described by Evans LJ in the case of Department of Social Security v Butler at [1995] 1 WLR 1531 as "a detailed and apparently comprehensive code for the collection of payments due under maintenance assessments and the enforcement of liability orders made on the application of the Secretary of State"

I will, accordingly, grant the order with expenses in favour of the applicants excluding the costs of the appearance on 17 December 2009.

G A WAY

Sheriff of Tayside, Central and Fife at Kirkcaldy