R(CS) 8/02

Mr. D. Williams	CCS/7559/1999
31.7.01
Application for maintenance - parent in receipt of benefit – scope of restriction on Secretary of State to require authorisation to act if risk of harm
The appellant was a mother in receipt of family credit and was told that she had to co-operate with the child support agency under section 6 of the Child Support Act 1991. In the absence of a reply, a reduced benefit direction was made under section 46 against her family credit. Reasons she later gave were not accepted. She appealed to a tribunal against the direction. The tribunal confirmed the direction on the basis that the appellant feared violence from the man she was living with but that he was not the father of her child. The mother appealed to the Commissioner.
Held, allowing the appeal, that:
1.	the safeguard in sections 6(2) and 46(3) of the Act requires only that there are reasonable grounds to believe that there is a risk of harm or undue distress to the parent or a child;
2.	that is a relatively easy test to meet if there is evidence suggesting that either the parent or a child is possibly put in some form of danger, the risk of which must be real rather than fanciful;
3.	there is no requirement that the risk arises directly from the behaviour of the person who is or may be the absent parent.
On the evidence then available the Commissioner substituted his own decision that the reduced benefit direction should not have been made.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1	I allow the appeal.

2	The appellant is appealing against the decision of the Liverpool appeal tribunal on 23 June 1999 that a reduced benefit direction applies to her family credit entitlement.

3	For the reasons below, the decision of the tribunal is erroneous in law. I therefore set it aside. It is expedient that I take the decision that the tribunal should have taken. This is:

	There are reasonable grounds for believing that there is a risk to the appellant and/or to any child living with her suffering harm or undue distress as a result of a requirement by the Secretary of State under section 6(1) of the Child Support Act 1991 that she authorise the Secretary of State to take action under the Act, and no authorisation shall be required by the Secretary of State of the appellant under section 6(1).   

Accordingly, the reduced benefit direction, and any subsequent related reduced benefit directions, shall be withdrawn with retrospective effect, and the relevant payers of benefit shall be notified accordingly. This will require the decisions to reduce entitlement of benefit to be rescinded for error of law. I refer the matter to the Secretary of State for this to be done. As this is a decision on the facts, either party is at liberty to refer any point of uncertainty or dispute arising in respect of the implementation of this decision back to me (or to another Commissioner if I am not available).

Background to the appeal 

4	As this is a decision involving, of its nature, a risk of harm to the appellant, all unnecessary identifying details have been withheld from the decision. The appellant is a parent with care of a child. She claimed family credit, and this was awarded to her. The appellant was then told that she was required to cooperate with the child support agency under section 6 of the Child Support Act 1991 and was issued with the standard forms. She did not return them. A standard notice was sent to her warning of the consequences of non-compliance. She did not reply to those notices either, and a reduced benefit direction was made against her family credit. This requested a reduction in the family credit, and the reduction was directed by an adjudication officer. She later returned the required forms (copies of which are in the papers) but her replies were not accepted and the direction was left in place. The appellant made a late appeal, and it was considered by the tribunal.

The tribunal decision 

5	Although the appellant appears to have been represented or advised at some stage by solicitors, she made her own reply to the tribunal indicating she wanted a paper hearing. The tribunal had before it a submission from the Secretary of State's representative, copies of the relevant forms, and a short letter from the appellant’s solicitors. The tribunal did not consider it necessary to have an oral hearing. Aside from formalities, the operative part of the statement of reasons for the tribunal decision is:

I find that, although the appellant states she does not know the father of the child, the child’s surname has been registered in a name that is different to her surname. I find that she fears violence from the man she is living with, but she states he is not the father of the child.

The decision then states the conclusion in the words of section 6(2) of the Child Support Act 1991. 

Grounds of appeal 

6	The main ground of appeal is that the tribunal gave no consideration to actual violence sustained by the appellant from the father of the child as reported to the child support agency. The solicitors argued that there were relevant documents missing from the papers considered by the tribunal that were in the possession of the child support agency. A letter from the appellant indicated that the child support agency was aware that she had obtained an injunction against her child’s father with a power of arrest, following a serious injury to her.

7	When granting leave to appeal, I drew attention to a number of aspects of the case, and also draw attention to the possible application of the Human Rights Act 1998 and European Convention on Human Rights. I invited further submissions from the appellant and her solicitors. The appellant was unable to obtain representation from a solicitor funded by legal aid, and she asked for the case to go ahead. The Secretary of State's representative then made a detailed submission in reply to my direction. This supported the appeal on general grounds while submitting that the Human Rights Act 1998 was not relevant to it.

The Human Rights Act 1998 

8	The Secretary of State's representative strongly resisted the application of the Human Rights Act 1998 and European Convention on Human Rights to this case for a series of reasons. First, the acts in question took place before 2 October 2000 and this was not a proceeding to which section 22(4) of the 1998 Act applied, because it was a proceeding started by the appellant and not the Secretary of State. I note that this is a case where the Secretary of State required the appellant to cooperate under section 6(1) of the Child Support Act 1991, and then asked for a reduced benefit direction when she did not do so. The challenge before me is specifically as to whether the Secretary of State should have required the appellant to authorise proceedings. I am not clear how she, rather than the Secretary of State, can be said to have started the proceedings leading to the reduced benefit direction in those circumstances. 

9	Separately, the Secretary of State drew my attention to the decision of the European Court of Human Rights, Third Section, in Application No 0040432/98, Stacey v United Kingdom, made on 19 January 1999. This is quoted at length in the Secretary of State’s submission. I am not sure how far this helps the Secretary of State in this case. The Stacey case was about an objection of a father of a child to giving the name of the mother of the child without the mother’s consent. In indicating that in those circumstances this was not a breach of the rights of the father (emphasis mine), the Court noted first that it was the mother’s rights, rather than the father’s, that appeared to be interfered with. It also noted that there was power for the father to object to a reduced benefit direction (on the ground considered in this case) but that the father in that case had not done so. In other words, the father in Stacey had not shown that any of his rights were interfered with. 

10	The Secretary of State's representative gave other reasons for the non-application of the Convention which without further argument I find unpersuasive. I note these important issues, because they may arise again in this case. But I do not need to decide them, as the Secretary of State's representative has in my view rightly supported the appeal on other grounds, and a decision on the human rights questions is not therefore necessary. 

A risk of harm?

11	The key provision is section 6(2) of the Child Support Act 1991:

(2)		The Secretary of State shall not require a person (“the parent”) to give him the authorisation mentioned in subsection (1) [to recover child maintenance from the absent parent] if he considers that there are reasonable grounds for believing that ––

	(a) if the parent were to be required to give that authorisation; or

	(b) if she were to give it,

there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result.

This wording is mirrored in section 46(3), which provides that where the Secretary of State has served a notice on an individual requiring her either to comply with section 6(1) or (9) or to give her reasons for failing to do so:

(3)		.... the Secretary of State shall consider whether, having regard to any reasons given by the parent, there are reasonable grounds for believing that, if she were to be required to comply, there would be a risk of her or of any children living with her suffering harm or undue distress as a result of complying.

12		As the European Court noted, section 6(2) provides an important safeguard to protect the rights of the parent with care and any children involved. The safeguard requires only that it is considered that there are reasonable grounds to believe that there is a risk of harm or undue distress to the parent or child. That is a relatively easy test to meet if there is evidence suggesting either the parent or  child is possibly put in some form of danger. I agree with the Commissioner in CCS/1037/1995 (at paragraph 9) that:

“Risk” is not qualified by any words such as “substantial”. There must, however, in common sense be a real rather than fanciful risk.” 

13		Section 6(2) sets a broad test, in that it does not specify the source of danger. In the summary of grounds the chairman of the tribunal noted: “She states that she fears violence from a man she lives with, who is not the natural father; so this cannot apply to section 6 and section 46.” That is too narrow a construction of sections 6 and 46. There is no requirement that the risk arises directly from the behaviour of the person who is or may be the absent parent. Nor could it in many cases, because at the time section 6(2) or section 46(3) is to be applied the identity of the absent parent may not be known or even suspected. Perhaps the mother herself does not know and is scared to find out. Alternatively, as in this case, there may be a danger of the Secretary of State or the tribunal making assumptions about the identity of the father before, rather than after, the proper procedure for doing so has started. 

14		The connecting factor in the sections is wider, namely that the anticipation of risk arises because of the Secretary of State’s requirement. Of course, it may come from a person said by a mother to be the absent father. But it may come from others. For example, a mother of a child is living with a man who is content that she look after her child, and that he be regarded as its father while knowing that he is not. It might be that the man finds out that the mother proposes to name someone else as the father, and the man threatens the mother or the child to stop her doing so. That risk is entirely within the wording and “safeguard” policy of sections 6(2) and 46(3). The tribunal misinterpreted the section. It therefore erred in law and its decision must be set aside.

15		I also agree with the submission of the Secretary of State that the tribunal erred - though through no fault of its own - because the papers before it were incomplete. It is now accepted by the Secretary of State that the tribunal did not see a copy of the letter of December 1997 from the Housing Directorate (document 70) showing that the appellant was at risk of domestic violence, and that this should have been in the papers, as perhaps should other letters.

My decision

16		It is clearly expedient, given the importance of the issues and the delays involved in the appeal to date, that I take the decision that the tribunal should have taken if I am able to do so. The evidence in the papers, which now includes letters from the appellant, the Housing Directorate, and two firms of solicitors, gives details of serious injury to the appellant, of an injunction, of involvement of the police and the welfare authorities, and of the need for the mother to move to avoid harm. It also gives evidence that this is at least in part connected with the requirement on the appellant to give the name of the father of her child to the Secretary of State. For the reasons given above, I do not set that information out in detail, but I have taken it fully into account and am satisfied that this evidence is more than sufficient to establish reasonable grounds for anticipating a risk of the appellant suffering harm if she is required to or does name the father of the child.  

17		The requirements of section 6(2) and section 46(3) are met. As a consequence, the reduced benefit direction should not have been made, and the adjudication officer should not have made a decision reducing the appellant’s family credit. The full amount of that reduction (and of any subsequent reduction of benefit made because of that reduced benefit direction or any subsequent direction based on the same facts) should therefore be refunded. I refer the matter to the Secretary of State to carry out this decision, with permission for either party to refer the matter back to me to deal with any problems that arise as a result of this decision.  

Date: 31 July 2001						  (signed) David Williams
Commissioner