LAW REPORT: Magistrates cannot question child support assessment

On a complaint that a deduction from earnings order made in relation to child support was defective, magistrates had no power to question the assessment of child support or to order repayment of sums paid under a defective deduction from earnings order.

Mr Justice Latham allowed five appeals by the Secretary of State against magistrates' decisions under the Child Support Act 1991.

The Act imposed responsibility for maintaining a child on each parent. A child support officer made a maintenance assessment or an interim maintenance assessment. Assessments could be reviewed and appealed to a child support appeal tribunal, a child support commissioner and the Court of Appeal.

Collection of child support could be made by a deduction from earnings order or a liability order. Sections 32(6) and 33(4) provided that, on appeal against a deduction of earnings order or on application for a liability order, the court should not question the maintenance assessment. Regulation 22 of the Child Support (Collection and Enforcement) Regulations 1992 provided that an appeal against a deduction from earnings order could be made only on the grounds that the order was defective or the payments did not constitute earnings. Regulation 9 set out the matters to be included in an order.

In the first appeal, the respondent claimed that he was no longer liable to make payments under a deduction from earnings order made in March 1994 after the child went to live with him in August 1994. The magistrates decided the order was defective after August 1994. In the second appeal, the magistrates decided that an assessment of maintenance was defective and quashed a deduction from earnings order.

In the third appeal, magistrates quashed a deduction from earnings order on the basis of a procedural defect in the making of an interim assessment order. In the fourth appeal, the magistrates refused to make a liability order for payment of pounds 6,839 for arrears under an interim maintenance order made without reference to the respondent's means on the basis that the respondent had supplied all documentary details to the Child Support Agency for making a maintenance assessment.

In the fifth appeal, the magistrates ordered repayment of monies deducted under a deduction from earnings order which was defective.

Mark Shaw (Department of Social Security Solicitor) for the Secretary of State; Nick Lockett (Pictons) for the respondent in the fifth case.

Mr Justice Latham said that all matters relating to the quantification or validity of a maintenance assessment were to be dealt with through the review and appeal structure created by the Act.

The right of appeal against enforcement given by regulation 22 was restricted to two technical grounds. As any challenge to the quantification or validity of the maintenance assessment was precluded, the word "defective" in regulation 22 could only mean a defect in form, namely a failure to comply with the requirements of regulation 9.

As far as liability orders were concerned, the consequence of section 33(3), taken with 33(4), was that the sole question to be determined by the magistrates was whether or not payments had become payable by the liable person and had not been paid. If that was established the magistrates were bound to make a liability order.

In the first appeal the magistrates could entertain a complaint only within 28 days of the actual making of the deduction from earnings order and had no jurisdiction to find the order was defective on the basis that the child was not a qualifying child. In the second, third and fourth appeals the justices were not entitled to question the validity of the maintenance assessments.

In the last appeal it would be surprising if the power to quash a deductions from earnings order under regulation 22 was intended to include a power to order repayment. The Child Support Agency was merely collecting money. The consequence of an order for repayment would be to require the agency, which had not been unjustly enriched because the money had gone to the parent with care of the child, to pay a sum of money to the liable parent. The magistrates court had no power to order repayment of sums paid under a defective deduction from earnings order.

Ying Hui Tan, Barrister