Court of Appeal

Published July 6, 2007

Regina (Rowley and others) v Secretary of State for Work and Pensions

Before Lord Justice Waller, Lord Justice Keene and Lord Justice Dyson

Judgment June 19, 2007

The Secretary of State for Work and Pensions did not owe a common law duty of care in discharging his functions under the Child Support Act 1991.

The Court of Appeal so stated when dismissing the appeal of Charlotte Rowley, Laura Rowley, Alexander Rowley, by his litigation friend and sister Laura Rowley, and their mother, Denise Rowley, against the decision of Judge Grenfell, QC, in the Queen’s Bench Division (unreported, May 22, 2006) to strike out their claims for damages in negligence against the Secretary of State for Work and Pensions.

The mother had applied under section 4 of the Child Support Act 1991 for maintenance. The claimants alleged that the Child Support Agency delayed in carrying out the maintenance assessment; obtained inadequate information on which to base the assessment; made incorrect interim and final assessments; delayed enforcing the assessment and delayed in dealing with an appeal against the assessment resulting in financial loss and psychological harm to Charlotte. Mr Roger ter Haar, QC and Mr Adrian Berry for the first three claimants; Mr Ramby De Mello and Mr Kamar Uddin, solicitor, both instructed by direct access, for Mrs Rowley; Mr Nigel Giffin, QC and Mr Daniel Kolinsky for the secretary of state; Mr Richard Drabble, QC, for Resolution, intervening.

LORD JUSTICE DYSON said that the claimants’ case was that the secretary of state’s duty of care arose from the performance of his functions under the 1991 Act alone.

Substantial remedies were provided by the statutory scheme: section 20 gave a right of appeal against a refusal to make an assessment, interim or final, and against the amount of an assessment or the date from which it took effect.

Where the CSA failed to collect or enforce arrears of maintenance, the person with care could issue judicial review proceedings to compel the agency to act.

It was clear that Parliament made detailed provisions for dealing with arrears of maintenance which included giving the parent with care the right to receive interest on late payments.

The existence of the right of appeal in section 20 and the right to receive interest arrears in prescribed circumstances given by section 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.

That was a sufficiently comprehensive remedy to lead his Lordship to conclude that a common-law duty of care would be inconsistent with the statutory scheme.

Lord Justice Keene and Lord Justice Waller agreed Solicitors: Forshaws LLP, Frodsham; Solicitor, Department for Work and Pensions; Dickinson Dees LLP, Newcastle upon Tyne.

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