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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rowley & Ors v Secretary of State for Department of Work and Pensions  EWCA Civ 598 (19 June 2007)
Cite as:  1 WLR 2861,  EWCA Civ 598,  WLR 2861
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
H.H. JUDGE GRENFELL QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE DYSON
| (1) Charlotte Rowley
(2) Laura Rowley
(3) Alexander Rowley (by his Litigation Friend and sister Laura Rowley)
(4) Denise Rowley
|- and -
|Secretary of State for Department of Work and Pensions
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ramby De Mello & Kamar Uddin (solicitor advocate) (instructed by Direct access under the Bar scheme ) for the 4th Appellant/Claimant
Nigel Giffin QC & Daniel Kolinsky (instructed by Office of the Solicitor to the Department of Work and Pensions) for the Respondent/Defendant
Richard Drabble QC for Resolution (Intervener)
Hearing dates: 8 & 9 May 2007
Crown Copyright ©
Lord Justice Dyson:
The background to the 1991 Act
The 1991 Act
"(1) For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.
(2) For the purposes of this Act, an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.
(3) Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments."
"(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child, or any of those children.
(2) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care or absent parent with respect to whom the assessment was made applies to him under this subsection, arrange for—
(a) the collection of the child support maintenance payable in accordance with the assessment;
(b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment.
(3) Where an application under subsection (2) for the enforcement of the obligation mentioned in subsection (2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly.
(10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if-
(a) there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent; or
(b) benefit is being paid to, or in respect of, a parent with care of that child or those children."
"(1) Subject to the provisions of this Act, any decision of the Secretary of State or an appeal tribunal made in accordance with the foregoing provisions of this Act shall be final.
(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of-
(a) further such decisions;
(b) decisions made in accordance with section 8 to 16 of the Social Security Act 1998, or with regulations under section 11 of that Act; and
(c) decisions made under the Vaccine Damage Payments Act 1979."
The pleaded facts
Is this an appropriate case for a strike out application?
The submissions of the claimants and the intervener
Two important authorities
R (Kehoe) v Secretary of State
"That a caring parent in the position of Mrs Kehoe was given no right of recovering or enforcing a claim to child maintenance against an absent or non-resident parent was not a lacuna or inadvertent omission in the 1991 Act: it was the essence of the new scheme, a deliberate legislative departure from the regime which had previously obtained. The merits of that scheme are not for the House in its judicial capacity to evaluate. But plainly the scheme did not lack a coherent rationale…."
"I would conclude that the 1991 Act has deliberately avoided conferring a right on the person with care to enforce a child maintenance assessment against the absent parent. Enforcement is exclusively a matter for the Secretary of State. It follows that the person with care has no right to apply to a court for the enforcement of the assessment. A child who has attained the age of 12 years and is habitually resident in Scotland is given the right to apply to the Secretary of State for a maintenance assessment by section 7(1). But here too the enforcement of any assessment is a matter for the Secretary of State, not for the child. The system has been designed on the assumption that a system of child support maintenance which is run by the state will operate more efficiently than one that relies on private enterprise. Experience has shown that its operation in practice has fallen far short of what was expected of it. But that is the system that Parliament has laid down, and we must take it as we find it. It does not permit a person with care to intervene in proceedings for its enforcement which are not being conducted as efficiently or as effectively as she would like. This is a consequence of the fact that she has no right against the absent parent which she can enforce in any court. It is a matter of substantive law, not of procedure."
"I would only add that I would not accept (and I do not understand my Lords to be expressing the view) that Mrs Kehoe has no enforceable rights whatever in respect of the enforcement process. If the Child Support Agency were to refuse to enforce a claim because it made some error of law (such as misunderstanding the extent of its statutory powers) Mrs Kehoe could take proceeding by way of judicial review, and in that way she could hope to influence the enforcement process. She would plainly have a sufficient interest to bring such proceedings."
"Having now had the advantage of reading in draft the opinions of all my noble and learned friends, I find myself in agreement with the majority. The 1991 Act introduced, for all those voluntarily or compulsorily seeking the CSA's help, an entire scheme, substituting for whatever rights the parent with care (or, indeed, qualifying children) might otherwise have had, the benefit of the scheme itself (with, necessarily, any incidental dis-benefits). The only right now enjoyed by those in Mrs Kehoe's position is to look to the CSA for the proper discharge of its public law obligations under the statute, a right which of course is itself sustainable under the courts' supervisory jurisdiction."
Jones v Department of Employment
"Subject to the provisions of this Part of this Act and to section 14 of the Social Security Act 1980 (appeal from social security commissioners on a point of law), the decision of any claim or question in accordance with this Act shall be final."
"would necessarily involve a challenge to the correctness of the adjudication officer's decision. That would be a challenge to its finality, by a route other than that provided by the statutory provisions themselves. That in my view is prohibited by section 117 of the Act of 1975" (p19C).
"The question thus is whether, taking all these circumstances into account, it is just and reasonable that the adjudication officer should be under a duty of care at common law to the claimant to benefit. Having regard to the non-judicial nature of the adjudication officer's responsibilities, and in particular to the fact that the statutory framework provides a right of appeal which, if a point of law arises, can eventually bring the matter to this court, it is my view that the adjudication officer is not under any common law duty of care. In other words, I agree with Mr. Laws that his decision is not susceptible of challenge at common law unless it be shown that he is guilty of misfeasance.
Indeed, in my view, it is a general principle that, if a government department or officer, charged with the making of decisions whether certain payments should be made, is subject to a statutory right of appeal against his decisions, he owes no duty of care in private law. Misfeasance apart, he is only susceptible in public law to judicial review or to the right of appeal provided by the statute under which he makes his decision."
The general approach
"….the authorities disclose three tests which have been used in deciding whether a defendant sued as causing pure economic loss to a claimant owed him a duty of care in tort. The first is whether the defendant assumed responsibility for what he said and did vis-a`-vis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant (what Kirby J in Perre v Apand Pty Ltd (1999) 198 CLR 180, para 259, succinctly labelled "policy"). The third is the incremental test, based on the observation of Brennan J. in Sutherland Shire Council v Heyman (1985) 157 CLR 424, 481, approved by Lord Bridge of Harwich in Caparo Industries plc v Dickman  2 AC 605, 618, that:
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to be negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed"."
"First there are cases in which one party can accurately be said to have assumed responsibility for what is said or done to another, the paradigm situation being a relationship having all the indicia of contract save consideration ….. I think it is correct to regard an assumption of responsibility as a sufficient but not a necessary condition of liability, a first test which, if answered positively, may obviate the need for further inquiry. If answered negatively, further consideration is called for.
Secondly, however, it is clear that the assumption of responsibility test is to be applied objectively … and is not answered by consideration of what the defendant thought or intended …
The problem here is, as I see it, that the further this test is removed from the actions and responsibilities of the actual defendant, and the more notional the assumption of responsibility becomes, the less difference there is between this test and the threefold test.
Thirdly, the threefold test itself provides no straightforward answer to the vexed question of whether or not, in a novel situation, a party owes a duty of care…
Fourthly, I incline to agree with the view … that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, on the approach of Brennan J. adopted in Caparo Industries plc, to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied. The converse is also true.
Fifthly, it seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and need for a test of liability in tortious negligence, which any law of tort must propound if not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstance of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole."
Assumption of responsibility
"I do not think that the notion of assumption of responsibility, even on an objective approach, can aptly be applied to the situation which arose between the commissioners and the bank on notification to it of the orders. Of course it was bound by law to comply. But it had no choice. It did not assume any responsibility towards the commissioners…"
The incremental test
The threefold Caparo test
"A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed legislative intention."
"The Act of 1991 provides the most detailed and complete code for assessing and enforcing the financial responsibility of absent parents for their children; it amounts to a comprehensive legislative scheme. Had Parliament thought it necessary or desirable to embellish it by providing for Mareva relief, it could and would have done so; that, moreover, would plainly have been achieved by conferring such additional jurisdiction upon the county court."
"will be able to enquire into any claims of maladministration although, as is usual, not into the decisions made about the assessment of maintenance. Complaints about the assessment would be resolved through the provision for appeals."
Section 46A and Jones v Department of Employment
No common law duty of care because no right of action for breach of statutory duty or failure to exercise statutory power?
Lord Justice Keene:
Lord Justice Waller: