Denson v Secretary of State for Work and Pensions & Anor [2004] EWCA Civ 462

Case No C3/2002/1680[2004] EWCA Civ 462
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND AN EXTENSION OF TIME WITH APPEAL TO FOLLOW IF GRANTED
(Child Support Tribunal)
Venue Royal Courts of JusticeDate Monday, 15 March 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE CHADWICK
LORD JUSTICE LAWS
Between
DENSONAppellant-v-
Between
SECRETARY OF STATE FOR WORK AND PENSIONS and AnotherRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person with the assistance of Mr Clive Sutton for in personMR CLIVE SHELDON (instructed by Office of Solicitor, Department of Work and Pensions) appeared for Respondent
J U D G M E N T

LORD JUSTICE WARD:

This

[1]is a renewed application by Mr Robin Denson for permission to appeal against the decision of a Child Support Commissioner, Mr Edward Jacobs, given on 21 February 2003 when he dismissed Mr Denson's appeal from the decision of the appeal tribunal on 18 December 2001 effectively refusing an application for a revision of a Child Support Maintenance Assessment.[2]On 30 September 2003

Lord Justice Longmore directed that the matter be heard on notice, saying:

"The main reason why I feel constrained to allow this application to proceed is that it is very difficult to follow the entitlements of the various parties to review or revision and the time limits in relation thereto."
There is therefore a somewhat tangled web to unravel before I can get to the points of this application. Those points relate to the appeals procedures under the Child Support Act 1991 and to an argument that they infringe the applicant's right to a fair trial guaranteed by Article 6 of the Human Rights Convention.[3]I start with the statutory background. As the preamble to the Child Support Act 1991 recites, this is an Act to make provision for the assessment, collection or enforcement of periodical maintenance payable by certain parents with respect to children of theirs who are not in their care. As is probably well known, the Act removes the right to apply to a court for a child maintenance order. Instead the parent with care, as the applicants are called, usually the mother of course, applies to the Secretary of State for a Child Support Maintenance Assessment against the absent parent. That is calculated in accordance with a formula prescribed by the Act. The Act then provides various ways in which that assessment can be altered on application by one or other of the parents.[4]We are concerned with two such procedures, one by way of review and the other through departure directions, as they are known. The review procedure involved a review by a child support officer following an application either by the parent with care or the absent parent under the original Section 17 of the Act on the ground that, by reason of a change of circumstances since the original assessment was made, the amount of child support maintenance payable by the absent parent would be significantly different if it were to be fixed by a maintenance assessment made by reference to circumstances of the case as at the date of the application. When an application for a review under Section 17 was refused the applicant could apply to the Secretary of State under Section 18 for that refusal to be reviewed, an exercise which was again conducted by a child support officer.[5]So far as is material for today's purposes, the unamended Section 20 is relevant in providing for an appeal in the following terms:
"(1) Any person who is aggrieved by the decision of a child support officer - (a) on a review under Section 18; (b) to refuse an application for such a review, may appeal to a child support appeal tribunal against that decision. (2) Except with the leave of a chairman of a child support appeal tribunal, no appeal under this section shall be brought after the end of a period of 28 days beginning with the date on which notification is given of the decision in question."
Section 24 provides for a person who is aggrieved by the decision of the Child Support Appeal Tribunal to have a further appeal to a Child Support Commissioner on a question of law. Section 25 provides for an appeal from the Commissioner to the Court of Appeal again on a question of law. There is a general rule-making power conferred by Section 51 (1) empowering the Secretary of State to make such incidental, supplementary or transitional regulations as he considers appropriate in connection with any provision made under the Act.[6]Part of the confusing picture is that changes have been made to those provisions by the Social Security Act of 1998, as was helpfully pointed out to us this morning by Mr Sheldon appearing on behalf of the Secretary of State and for whose help I am indebted. That 1998 Act substituted for Section 17 to Section 19 a more general superseding power. The new Section 17 allows decisions of the Secretary of State under Section 11 - and a maintenance assessment would have been made under Section 11 - and any decision of an appeal tribunal under Section 20 to be superseded by a decision of the Secretary of State either on an application made for the purpose or on his own initiative. The Social Security Act of 1998 also introduced new provisions for appeal, and the old Section 20 has been replaced by a new Section 20 giving a qualifying person a right of appeal against a decision of the Secretary of State under Section 11 and so forth. Relevantly also, the new Section 20 provides specifically in subsections (4) and (5) for regulations to be made as to the manner in which and the time within which appeals are to be brought.[7]Turning to the procedure by way of departure directions, these were introduced as Sections 28A to 28I by the Child Support Act 1995, and, as I imperfectly understand were introduced to allow a departure from the strict application of the formula. The person with care or the absent parent could apply to the Secretary of State for a departure direction which, by virtue of Section 28F (6), required a child support officer to make a fresh maintenance assessment and specify the basis on which the amount of the child support was to be fixed by any such assessment. Any person aggrieved with that decision of the Secretary of State could appeal. The old Section 28H (3) echoes the old Section 20 (2) in providing that except with leave of the chairman of the appeal tribunal no appeal shall be brought after the end of 28 days. Those provisions have also been or are to be replaced by the Child Support, Pensions and Social Security Act 2000 inserting a new procedure for variation of the normal rules for calculating maintenance.[8]We must focus on the Regulations that have been made in respect of appeals. The Child Support Appeals Tribunals (Procedure) Regulations 1992 ("the 1992 Regulations") provided by Regulation 3 as follows:
"3 (1) This regulation applies to an appeal to a tribunal under section 20 (1), 28H (1) ..... ..... (3) An appeal under section 20 (1) of the Act shall be brought within a period of 28 days beginning with the date on which notification of the decision in question was given or sent to the appellant. ..... (5) In paragraphs (6) and (7) 'the specified time' means the time specified in paragraph (3) ..... or in section 20 (2) or 28H (3) of the Act as the case may be. (6) When an appeal or application is made after the specified time has expired, that time may for special reasons be extended by the chairman to the date of the making of the appeal or application."
[9]Then came the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"). They cancelled the 1992 Regulations with effect from 1 June 1999 (see Regulation 1 (2)). The time at which an appeal is to be brought is now provided for in Regulation 31 (1) as follows:
"Where an appeal lies from a decision of the Secretary of State ..... to an appeal tribunal ..... the time within which that appeal must be brought is, subject to the following provisions of this Part - (a) subject to regulation 9A (3), within one month of the date of notification of the decision against which the appeal is brought; ..... (5) The time limit specified in this regulation for bringing an appeal may be extended in accordance with regulation 32."
Regulation 32 (1), dealing with such late appeals, provides:
"(1) The time within which an appeal must be brought may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but no appeal shall in any event be brought more than one year after the expiration of the last day for appealing under regulation 31."
The application for an extension of time is not to be granted unless there are reasonable prospects of success or the interests of justice require it to be granted (see sub- paragraph (4)). It is not in the interests of justice unless special circumstances are demonstrated as they are defined in paragraph (6).[10]To confuse matters further, there are the transitional provisions made by the Social Security Act 1998 (Commencement No 7 and Consequential Transistional Provisions) Order 1999. Article 48 is relevant in providing as follows:
"(16) Regulations (3) (1A) to (11B) and 15 of the Child Support Appeals Tribunal (Procedure) Regulations 1992 (in this article referred to as 'the former Procedure Regulations') shall continue to apply (notwithstanding their revocation) for the purposes specified in paragraph (17) below subject to the modifications to - (a) regulation 3 specified in paragraph (18) below; ..... (17) Paragraph (16) above applies for the purposes of - (a) any appeal against a decision - (i) of the Secretary of State made before 1 June 1999 on an application for a departure direction; or (ii) of a child support officer; and. (b) any application to set aside a decision of a child support appeal tribunal. (18) The modifications to regulation 3 specified in this paragraph are - ..... (c) for paragraph (6) there shall be substituted the following paragraph - '(6) Where an appeal or application is made - (a) after the specified time has expired; and. (b) before 1 July 2000. that time may for special reasons be extended by a legally qualified member to the date of the making of the appeal or application.'"
[11]Doing my best to summarise that in moderately plain English, it seems to me that until 1 June 1999 there was a power to extend time for an appeal beyond the 28 days allowed for it if special reasons could be shown. After 1 June 1999, if the appeal was brought against a decision made before that date, the old rules continued to apply provided the application was being made before 1 July. Thereafter one was met with a cut-off point which was effectively 13 months from the date of the order sought to be appealed.[12]I turn to the factual background, stating that quite shortly because one is horrified to see from the voluminous papers the full extent of the proceedings that have taken place in one form or another in front of the Child Support Agency and elsewhere. The story involves Mr Denson separating from his wife in 1995. They had two sons, the elder now 18 years old, the younger some 15½ or thereabouts. The mother, as the parent with care, applied for a maintenance assessment in August 1995. Mr Denson's liability was eventually assessed on 1 March 1996 in the sum of about £91 a week, but payable from October 1995 so that there were immediately arrears owing under that assessment. In fact voluntary payments had been made and were to be taken into account. Nonetheless Mr Denson was not a happy man. He seemed to have given some indication that he would rather give up work than pay the child support maintenance assessed against him. He said that his earnings had been significantly reduced because he was now an employee of the company which effectively had been his alter ego. With regard to the wage he said he was being paid, he asked for a lower assessment to be made. That did not please the mother and she applied on 15 January 1997 for a departure direction, alleging that Mr Denson's general lifestyle was significantly inconsistent with the income he was declaring.[13]The Secretary of State referred that departure direction to the Child Support Appeal Tribunal for determination under Section 28D (1) (b). On 15 June 1998, which is the first relevant date to bear in mind henceforth, the appeal tribunal decided that Mr Denson's lifestyle was indeed inconsistent with his declared income and, as a result, the tribunal decided that he should pay more by way of child support than he had hitherto provided. That departure direction had the effect that the maintenance assessment had to be changed. That change took place on 12 October 1998 when the Child Support Agency calculated a new maintenance assessment in the sum of about £493 a month, payable from December 1996 which would have had the effect of huge arrears coming into being.[14]Mr Denson's response was two-fold. The first course of action taken by him was by way of appeal against that decision. We are told that he launched that appeal procedure on about 14 August 1998. The basis of his complaint was and remains his contention that the proceedings before the tribunal were grossly unfair to him since he had telephoned on the day of the hearing to say he had a migraine attack and was unable to attend. Given a history of non-co-operation and a failure to comply with directions for the discovery of the underlying documents, which would have proved his true income, it is perhaps not a surprise that the appeal tribunal refused to adjourn the hearing and so made their determination on 15 June 1998 in his absence. That appeal was dismissed by the Child Support Commissioner on 28 July 1999. Mr Denson sought permission to appeal to the Court of Appeal. This court - Lord Justice Simon Brown and Lord Justice Mummery - refused him permission to appeal on 28 June 2000, another date to be borne in mind henceforth.[15]The second line of attack taken by Mr Denson was to apply (in the papers it is suggested on 15 October 1998) for his case to be reviewed. We were today provided with his letter of 9 November 1998 in which he writes:
"I wish to apply for a second tier review of the CSA officer's decision notified to me on 22 October 1998 to proceed with the order of the CSA Tribunal. Also and in the alternative for a stay of enforcement of the order pending the hearing of my appeal to the Commissioner."
[16]In his grounds of appeal he made it plain that the officer had been served with a notice of appeal to the commissioner, that being a reference I assume to his appeal brought in August.[17]The response of the Child Support Agency to that was set out in a letter placed before us and bearing the date 26 November 1998, though it may in fact have later been transcribed on 1 December; it matters not. The CSA's response was:
"You ask for a second tier review of the child support officer's decision of 12 October 1998 because you believe the decision is wrong. The issues you have raised have been considered and there are no grounds for a second tier review. This is because the assessment that you dispute was made in relation to a departure decision. This means you need to apply for an appeals tribunal. Please find enclosed an appeals leaflet. If you think the decision is wrong you have a right of appeal to an independent tribunal known as a Child Support Appeal Tribunal."
It can be said that that response was a little ambiguous, but it is equally clear that Mr Denson was fully aware of the fact he had already appealed the departure direction's findings. He relied upon that as a ground for the error of the child support officer in implementing the departures direction decision. He was being told that he had a right of appeal to a Child Support Appeal Tribunal. His pending appeal was not to the appeal tribunal but to the Commissioners. He therefore had, in my judgment, adequate information before him to know that he had an independent right to appeal against the refusal of the child support officer to review the October maintenance assessment but he did not at the time exercise that right of appeal. The question before us is or may be whether it is now too late for him to do so.[18]Meanwhile arrears mounted. The Child Support Agency applied for a liability order. Mr Denson moved for judicial review of that decision. It was unsuccessful (see R (Denson) v Child Support Agency [2002] 1 FCR 460.[19]His next move of relevance for our purposes was his decision to apply informally on 19 April 2001, and more formally on 8 May 2001, for a further review. It is not terribly clear quite what he was wanting. He seems, as I read this letter from his solicitor, to have been making this point - "The real issue now is that if all the documentation now available in the shape of company accounts together with his own evidence had been available to the Tribunal, the Tribunal could not have come to the decision that it then made on the 12 June 1998 in his absence. Those circumstances would appear to fall within the revision powers of the Secretary of State under paragraph 32A (1). I appreciate that the matter will have to be the subject of a late application for a Revision under paragraph 32 (B) and that there are time limits within which such an extension can be made. An application can be made as of right within one month, following an application for extension of time after one month and up to thirteen months. I appreciate well over thirteen months has passed since the making of the original decision, but thirteen months has not passed since the appeals on the decision were concluded by the Court of Appeal hearing in June of last year. It is quite clear that an application for a revision would be inappropriate during the course of the appeals, even if Mr Denson had been able to obtain the necessary advice to know that it was possible for him to make such an application."[20]It seems therefore that what he was there seeking was some kind of revision or review of the decision of the tribunal made on 12 June. I would have thought that that was an extremely difficult case to mount, having regard to the fact that he had sought such a revision or review by the appeals procedure which ended in failure in this court in June 2000. But, in any event, it was wildly out of time and the appeal tribunal who had to consider that application gave it fairly short shrift in finding that the time began to run from the date of the order which was sought to be appealed. The decision which was under appeal was that of 15 June and it could not, by any straining of the language, carry the time forward to 27 June 2000 when the Court of Appeal dismissed the application against that decision.[21]I do not believe that the argument is repeated today. As I understand Mr Denson's case, he has accepted that time begins to run - if he is seeking to review the 15 June 1998 decision - from June of 1998 when it was made, not from June 2000 when the Court of Appeal finally came to grips with this problem. If I am wrong that the concession has not been fully made, the argument is utterly hopeless for the reasons I have summarily described. When Mr Denson got before Mr Commissioner Edward Jacobs, with help from counsel it was, I think, accepted that he could not mount any further challenge against the appeal tribunal decision of June 1998 but that he could possibly seek to appeal the refusal to review. That, too, would run into the same time constraints that affected his first stated position. The time from the rejection of that case in December 1998 to the time he made his application for review now treated as an appeal in April or May 2001 was 16 months which is way outside the 13-month limit.[22]So the focus of attack has turned to the infringement of his right to a fair trial guaranteed by Article 6. The European jurisprudence is plain enough. There is abundant authority for the basic proposition - and I will take the jurisprudence from Stubbings v UK [1996] 23 EHRR 213, paragraph 48 onwards - "The Court records that Article 6 embodies the 'right to a court', of which the right of access, that is the right to institute proceedings before a court in certain matters, constitutes one aspect. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 (1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 49 ..... They [the limitation periods] serve several important purposes, namely to ensure legal certainty and finality ..... "[23]So the first question is whether the essence of Mr Denson's right of access to the court has been impaired. The answer is of course it has not been impaired. Here, the very essence of the right is fully protected because he can apply for permission to appeal. He has 28 days to do it under the 1992 Regulations. He could have applied for an extension of time if special reasons had been shown. He did not exercise that right under the new Regulations. There is a cut-off point 12 months after his time expired. That gives him 13 months in which to apply and, in my judgment, that length of time adequately protects the essence of his right to go to a court.[24]The second question is whether the period of limitation pursues a legitimate aim and, again, the European jurisprudence is absolutely solidly of the view that time limits are necessary because they enable the States to ensure that there is legal certainty and finality to all litigation.[25]This case before us cries out for a reinforcement of the need for certainty and finality. It would be astonishing if Mr Denson were able in April or May 2001 to proclaim some continuing right to appeal a decision made as long ago as June 1998 or even December 1998.[26]The next question is whether there is a reasonable relationship of proportionality between the means employed and that aim of certainty. In my judgment, the answer is that of course there is proportionality. A period of 13 months is ample enough time to assert the given right of appeal. The next argument advanced on Mr Denson's behalf is that because he was a litigant in person floundering through a deep dark wood of legislative provisions, and so ignorant of the remedies available to him, he should be granted an indulgence. I have a sneaking sympathy for his predicament because it has taken us some time to work out precisely what rights of appeal are available. But in this field he was a player of some experience. He had already appealed the June decision. He was warned in the letter of 1 December that he had a right of appeal. For my part, I do not accept that he laboured under such a severe handicap that exception should be allowed in his particular circumstances. A period of 13 months is, in my judgment, by no means disproportionate even for a llitigant in person. There has to be a reasonable time given; it has been. The fact that it may throw up a hard case - and I am not for a minute saying that this is a hard case - does not, in my judgment, enable this court to disapply the time limit imposed by the 1999 regulations.[27]I am satisfied that had Lord Justice Longmore understood the procedural steps he would never have permitted this application to proceed because, in my judgment, the human rights argument has absolutely no prospect whatever of success and neither does the technical argument on the time for appeal. I would therefore dismiss the application for permission to appeal.

LORD JUSTICE CHADWICK: I agree.

LORD JUSTICE LAWS: I also agree. I wish only to underline my emphatic view that on the facts here the arguments put forward on grounds relating to rights guaranteed by the European Convention on Human Rights are conspicuously lacking in merit.

Order

Application dismissed with the costs to be assessed if not agreed

Cited in 2 later judgments