The Child Support Agency (CSA) does not owe a duty of care to the children and parents on whose behalf it collects maintenance, the Court of Appeal ruled this week.
Kim Fellowes, chair of the CSA committee of Resolution, which intervened in the case of Rowley v Secretary of State for Department for Work and Pensions in a bid to clarify how families adversely affected by the CSA can obtain compensation, says the judgment has far reaching implications for thousands of families let down by the CSA.
In its judgment the court said the existence of the right of appeal given by the Child Support Act 1991 (CSA 1991), s 20 and the right to receive interest on arrears in prescribed circumstances given by s 41, when taken in conjunction with the right to seek judicial review of failures to collect or enforce arrears of maintenance, means CSA 1991 provides the parent with care with substantial protection against incompetence on the part of the CSA.
Lord Justice Dyson ruled that the fact that there may be cases where incompetence on the part of the CSA causes loss which cannot be recovered under the statutory scheme is not a “sufficient reason” to impose a duty of care.
“Clearly this judgment is a major blow to those families who have fallen foul of the inadequacies of the CSA,” says Fellowes. “The failings of the CSA are legendary and it is astonishing therefore that the government has thus far been silent on its plans to recompense those failed by it.”
The test case was brought against the Department for Work and Pensions by single mother of three, Denise Rowley. After Rowley divorced in 2000, she was forced to live with her sister because she could no longer afford to live in the former matrimonial home without regular maintenance payments. The vacant property deteriorated and was later sold for little more than half its real value.
Fellowes says: “For the last 14 years, thousands of children have been badly let down by the CSA. The government has insisted that enforcement of claims for maintenance be processed through the CSA and has utterly failed to address the real hardship and distress caused by its manifest
failures.”
She adds that as the recently published Child Maintenance and Other Payments Bill passes through Parliament over the next few weeks, Resolution is calling on MPs to ensure that it sets out clearly the rights to redress for those failed to date and for any errors in the future.
The Bill, published earlier this month, will create a new child maintenance agency divorced from the mistakes of the past. However, Fellowes says: “For this to work, the legacy of the past two schemes must be dealt with. Otherwise the new system will be crippled even before it has begun.”
