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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Work & Pensions v Roach [2006] EWCA Civ 1746 (20 December 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1746.html Cite as: [2006] EWCA Civ 1746

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE SOCIAL SECURITY AND CHILD SUPPORT COMMISSIONER
MR COMMISSIONER LEVENSON
CIS/2482/2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2006

Lord Justice Leveson :

1. This appeal brings into focus the competing interests that exist between two entirely legitimate public concerns in relation to child support. The first is to bring home to separated fathers their continuing financial responsibility for the upkeep and support of their children otherwise dependent only on public funds. The second is to ensure that the system of child support is not operated in such a way as creates or perpetuates the vice of domestic violence or abuse to the detriment of mother or children. That tension is addressed and resolved in section 46 of the Child Support Act 1991 ("the 1991 Act"), vesting in the Secretary of State (subject to appeal) a discretion whether to reduce benefit if the parent claiming benefit asks that action be not taken to recover child maintenance from the other parent. At the heart of the discretion is a decision as to the risk of harm or undue distress to the custodial parent or any child if maintenance is pursued.
2. On 17 February 2004, Ms Carolyn Roach made a claim for income support indicating that she did not wish the Secretary of State to pursue her son's father for child maintenance. Following interview, the Secretary of State decided that her reasons did not justify a decision not to reduce her benefit and, after further representations, maintained that view. Ms Roach appealed to a Child Support Appeal Tribunal (Chairman: Richard Poynter) ("the Tribunal") which held a full hearing and, in a decision the full reasons for which were reserved, made findings of fact and dismissed her appeal. Mr Commissioner Levenson ("the Commissioner") granted Ms Roach leave to appeal and, on 11 November 2005, reversed the decision; he refused permission further to appeal. With the leave of Brooke LJ, the Secretary of State now appeals to this Court. In addition to supporting the decision of the Commissioner for the reasons he gave, Ms Roach has served a Respondent's Notice seeking to uphold it on other grounds.

The Statutory Scheme

3. Under sections 6(1) and (3) of the 1991 Act, a claimant for Income Support with care of a child may be treated by the Secretary of State as having applied for a maintenance calculation in respect of that child, with the consequence that he (that is, the Secretary of State) may take action to recover child support maintenance from a non-resident parent. On the other hand, he may not produce such a calculation or pursue the non-resident parent if the claimant, with full knowledge of the possible consequences, asks him not to (sections 6(4) and (5) of the 1991 Act).
4. The "possible consequences" are in section 46 of the 1991 Act which sets out the procedural requirements which must be satisfied by the Secretary of State before he can invoke them and decide whether or not to reduce the benefits payable to a claimant ("a reduced benefits decision"). The relevant provisions are as follows:

(2) The Secretary of State may serve written notice on the parent requiring her, before the end of a specified period – (a) ... to give him her reasons for making the request ...

(3) When the specified period has expired, the Secretary of State shall consider whether, having regard to any reasons given by [the custodial parent], there are reasonable grounds for believing that [if he were to take action to recover child support maintenance from the non resident parent] … there would be a risk of [the custodial parent] or of any children living with her, suffering harm or undue distress as a result of his taking such action…

(4) If the Secretary of State considers that there are such reasonable grounds, he shall – (a) take no further action under this section in relation to the request ...; and (b) notify the parent, in writing, accordingly.

(5) If the Secretary of State considers that there are no such reasonable grounds, he may, except in prescribed circumstances, make a reduced benefit decision with respect to the parent."

5. The decisions under section 46(3) as to reasonable grounds and under section 46(5) are both informed by the Secretary of State's general duty under section 2 of the 1991 Act to have regard to the welfare of any child likely to be affected by his decision.
6. The decision of the Secretary of State is subject to appeal, in the first instance to a Tribunal (see section 20 of the 1991 Act) which conducts a full hearing on the merits. Thereafter, with leave and solely on questions of law, further appeals lie initially to a Child Support Commissioner (whose powers include making further findings of fact if he decides that the decision of the Tribunal is wrong in law) and, thereafter, to the Court of Appeal: see sections 24(1)-(3) and 25(1), (4) of the 1991 Act.

The Facts

7. Shortly before her 32^nd birthday in March 2004, Ms Roach gave up her part-time work and applied for income support for herself and her son, who was then under 3 years old, having been born on 12 July 2001. In answer to the question "Do you wish to opt out of your application for child maintenance?" she ticked the box marked "Yes" and wrote: "I don't wish to pursue this. Frightened of retribution." On 17^th March, she was visited by an official who subsequently made a note of the conversation to the effect that the relationship with her son's father had changed after his birth and was "tumultuous". The note records "He would lose his temper but violence was not an issue". The father had visited sporadically after the birth but made no payment for his son's maintenance and there had been no contact since January 2002. It was then recorded:

"[Ms Roach] fears that if the CSA approached [the father] he could turn violent, after no contact for 2½ years bad feelings, she fears and is scared of possible reprisals. Others that have had bad experiences with the CSA make her fearful… She is worried about the mental and emotional well-being of [her son]… [F]illing out [the relevant form] would leave her trapped if he came round as she has a mortgage on the flat and it would be difficult for her to move."

8. On 19 March, the papers were considered by another official, Mrs Whitter, who decided that she could not, without more, accept Ms Roach's reasons for requesting the Secretary of State not to take action to pursue child maintenance. She recorded her decision (involving a letter being sent) which was that the relevant forms CS1/CS83 be issued to Ms Roach. There is an issue about whether this formal notice under section 46(2) of the 1991 Act was served and Ms Roach denied ever receiving it.
9. What was not disputed was that, after this review, there was a conversation between an official and Ms Roach who, on 30 March 2004, elaborated in writing upon her reasons for opting out of an application being made for child maintenance. She stated that she had separated from her former partner because his behaviour became more and more erratic and unpredictable and following "a particular torrid incident" she decided it would be best he should not come back. She said that she "…felt that if we continued in this vain [sic] I would develop post-natal depression or him possibly becoming violent". She went on that some months later, she had spoken to her former partner's cousin who told her that he (her former partner) was showing signs of "having a nervous breakdown". She was not aware of his current mental state but said:

"…if he is still clinically depressed, a letter from the CSA may trigger suicidal thoughts or behaviour patterns or he may behave violently towards me."

10. The letter went on to explain that Ms Roach was worried that if her former partner did become a nuisance, she would be forced to sell her home, reimburse the discount provided under the right to buy scheme, be unable to purchase another home and then be deemed intentionally homeless. She concluded:

"It must be reminded that a great many women have been placed in danger as a result of CSA being pursued with or without their consent and in the same breath men who have committed suicide as a result of being made to pay. I can only state that I do not wish to be a party of this and can only hope that you consider this letter with the foresight that if the CSA is pursued for child maintenance will undoubtedly lead to a tragic ending on either account." [sic]

11. Following this letter, the Secretary of State made a Reduced Benefit Direction (thus determining that there were no reasonable grounds for believing that there would be a risk of Ms Roach or her son suffering harm or undue distress if he were to take action to recover child support maintenance from the father) and Ms Roach appealed. The Commissioner later described the letter of appeal as "intemperate in tone". She repeated her points but added:

"As I outlined in my last letter, once my son was born arguments became more and more frequent and the last incident was very frightening and traumatic for both my son and me. In a heated argument at my home, my child's father flung me against a wall and pushed his hand across my chest and neck so that I was unable to move. He hurled abusive words at me and once finished he stormed out of the house slamming the door behind him causing my hallway mirror to shatter. At this point my son who was a few [months] old was hysterical and I was left shaken. This was the torrid incident outlined in my letter, for reasons of dignity and intrusion of my civil liberty and privacy I did not delve into the nature of the incident. For obvious reasons this is an occurrence which I would rather forget and one that I find most humiliating and sensitive to share with others. .. [I]f I allow the DSS to contact the CSA it will have devastating effects and … my child will be at risk …"

12. Ms Roach went on to postulate that her son's father could visit and have a confrontation which could lead to her neighbours calling the police and, her son being present, to social services removing him from his home and placing him in care until she underwent psychiatric evaluation. She also referred to "various stories" she had heard and witnessed and, in particular, of a student whose mother had been murdered by her father (and subsequently committing suicide) because he could no longer take the pressure of CSA payments.
13. After an adjournment, it was on 10 November 2004 that Ms Roach's appeal came on for hearing before the Tribunal. The material set out above (and other correspondence) was available and Ms Roach gave oral evidence. One of her claims, made for the first time and specifically referred to by the Tribunal, was that the incident of violence mentioned in the letter in support of her appeal, resulted from an argument about maintenance for their son. She also said that she was not going to risk being murdered or losing her home.

The Decision of the Tribunal

14. In addition to deciding that the Secretary of State had served the relevant forms and that Ms Roach had received them, the Tribunal rejected the appeal on the merits, making it clear that:

"Although I regret the need to say so, my principal reason for that conclusion was that I did not believe that [Ms] Roach was telling me the truth. I considered that she was deliberately exaggerating her fears in the hope, first of escaping a reduced benefit decision, and then of having that decision overturned on appeal."

15. Two reasons were given for that view. The first was that the expressed fears were "inflated out of all proportion" with the expressed certainty that any attempt to calculate child support maintenance due from the father would "undoubtedly lead to a tragic ending" being "quite simply, fanciful". Secondly, the Tribunal pointed to the evidence as self contradictory and becoming more inflated at each stage of the decision making process. Initially, there had been "loss of temper but violence not an issue"; then a "torrid incident" with the addition "if we continued in this [vein] … him possibly becoming violent"; then in the appeal letter, actual violence; and, finally in oral evidence, violence about maintenance. In his reasons, the Chairman of the Tribunal went on:

"I do not accept that the explanation for these discrepancies is that [Ms] Roach, as an abused woman, felt shamed and humiliated by the incident and was originally reticent about revealing the full details because of a concern for her dignity and privacy. I consider that she was lying to the tribunal both in [the letter in which she complained of actual violence] and in her oral evidence.

… I did not accept that [Ms Roach's] fears were genuinely entertained. I regard it as self evident that she could not suffer any distress, let alone 'undue distress' as a result of fears that she did not actually have."

16. The Tribunal accepted that if the child's father were to come round to Ms Roach's home and cause a scene, that would be sufficient to meet the relevant test (because of likely undue distress to the child) but concluded that it had not been established that there was a realistic prospect of such an incident or of a similar level of harm or undue distress to Ms Roach or the child occurring in some other way. The conclusion was expressed, in terms, that Ms Roach's unsupported assertion was "unreliable" and, furthermore, that there were no special factors in this case which would have justified the Secretary of State in exercising his discretion not to make a reduced benefit direction even though the statutory criteria were not met. An application for leave to appeal was refused.

The Decision of the Commissioner

17. On appeal, the Commissioner granted leave and then allowed the appeal after an oral hearing. Having set out the facts, he dealt with the two reasons which the Tribunal had articulated for rejecting Ms Roach's evidence. As to the first, that is to say the inflation of her fears, he concluded that there was a failure of logic. He said:

"In many ways the more irrational a claimant's fears, and the more disproportionate they are, the greater the risk of undue distress. To then use the irrationality and disproportionate nature of the fears as a basis for not believing that they are genuinely held undermines the whole nature of the provision. The tribunal does not appear to have given any thought to the claimant's tendency to, to put it bluntly, overreact to everything, as demonstrated in her lengthy and varied correspondence."

18. In relation to the inflation of the claims at each stage of the decision making process, he said that this had to be seen in the context of Ms Roach's view that the authorities were becoming more obdurate. He went on to express the view that what is a technical assault will not be seen by a non-lawyer as being violent in the absence of a wound or actual bodily harm and he saw no basis for the rejection of the explanation that Ms Roach felt shamed and humiliated by the incident and thus was "originally reticent about revealing the full details because of a concern for her dignity and privacy". He concluded:

"It surely cannot be doubted that what the claimant describes here is a widely occurring phenomenon. Such evidence should not be rejected without the most cogent of reasons.

In summary, this appeal succeeds because of a failure of the tribunal's reasoning process. … In the absence of persuasive evidence to the contrary and in view of the evidence and explanations given by the claimant and the above analysis, I find that there are reasonable grounds for believing that if the Secretary of State were to treat the claimant as having applied for a maintenance calculation and take action to recover such maintenance, there would be a risk of the claimant suffering undue distress as a result."

Service

19. It is appropriate first to deal with the issue of service which was taken before the Tribunal and was a ground of appeal although not the subject of a decision by the Commissioner. The point arises in this way. The scheme described above provides (in section 46(2) of the 1991 Act) that the Secretary of State may serve written notice on a parent requiring her, before the end of a specified period, to provide her reasons for making the request (not to pursue a non-resident parent for maintenance): that written notice is Form CF83. It is when that period has expired that he can then consider whether the test in section 46(3) is satisfied. By regulation 9 of the Child Support (Maintenance Calculation Procedure) Regulations 2000 ("the Regulations"), the period which must elapse is four weeks.
20. I agree with Mr Jason Coppel, for Ms Roach, that such a notice must be served if the Secretary of State is considering making a decision adverse to a claimant; he obviously need not do so if (perhaps because he accepts that she has good cause for making the request) he does not. Assuming that he does, it is only at the expiry of the specified period, the Secretary of State can then proceed to make his decision having regard to any reasons given.
21. Ms Roach contends, quite simply, that although by letter dated 30 March 2004 she did develop her reasons (and there is no question of prejudice to her), she did not receive a CS83. This led to a challenge to the validity of the entire process on the basis, argues Mr Coppel, that it is only after the expiry of the period for a response to the notice that a decision can be made and that the period cannot expire if it has not lawfully commenced to run by proper service. Thus, the entire decision making process and all that follows by way of appeal is a nullity.
22. It is not in issue between the parties that the reasons that the Tribunal gave for deciding that Ms Roach received the forms (which would necessarily have meant that they had been sent) were flawed and are unsustainable. The Tribunal, however, went on, in the alternative to express itself "satisfied on the evidence [of a written log contemporaneously kept by the Secretary of State] that they were sent to her". In that log was an entry, recorded as a decision (in the form of a letter) in terms: "CS1/CS83 issued".
23. Mr Coppel argues that as the person or persons who made the entry and despatched the forms did not give evidence, there was no basis for concluding that they had, in fact, been sent. He went on to submit that other entries suggested that notification had been oral. A proper analysis of those other entries is, however, entirely consistent with the case that Ms Roach was told orally of the initial view that what she had said on 17 March was not considered good cause and that the forms CS1/CS83 (both of which are in standard form) were issued and sent. The letter of 30 March followed (whether or not the letter was in consequence of the notice).
24. As to the argument that there was insufficient evidence to establish that the forms were sent, Mr Martin Chamberlain, for the Secretary of State, noted that the log was a contemporaneous record by the decision maker of a type in common use by the Secretary of State with which the Tribunal would be very familiar and on which it was entitled to rely, both as to issue and despatch by post; the records also accurately recorded Ms Roach's address. As Mummery LJ observed in argument, it is difficult to see what purpose an official would have in noting the issue of a letter if it was not, at least inferentially, also identifying that it had been sent. In my view, in the context of the system with which it will have been familiar, it was open to the Tribunal to find, as it did, that the effect of the note in the log was that the forms had been posted. Whether it would be appropriate for the Secretary of State to insert a further column into the log specifically recording posting and so put the matter beyond argument is a matter for him.
25. Is that sufficient to satisfy the requirements of proper service? Regulation 2 of the Regulations provides:

"Except where otherwise stated, where ... (b) any document is given or sent to any other person [ie other than the Secretary of State], that document shall, if sent by post to that person's last known or notified address, be treated as having been given or sent on the day that it is posted."

26. It is agreed that this fixes the time from which the prescribed period for a response starts to run (thus avoiding the risk of nullity) and, in my view, this provision also operates to prescribe the circumstances in which the notice is to be treated as served whether or not it had actually been received (as to which, as I have said, the Tribunal's conclusions were flawed). It is important to underline that this is not a case in which a claimant has not responded and is prejudiced by her failure to provide material to establish that there is good reason to take no action to recover child maintenance: Ms Roach knew about the process, corresponded and provided such evidence as she wished.
27. In the circumstances, I would reject the Respondent's Notice as to service on the basis that it was open to the Tribunal to find that Ms Roach had been served in accordance with the Regulations and that the process which led to the Secretary of State's decision had been lawfully initiated. I therefore do not need to deal with Mr Chamberlain's alternative submission that, in any event, the provisions as to service are directory and not mandatory; I would prefer to leave that issue to be investigated and decided if and when it is necessary to do so.

The Factual Challenge

28. On the merits, Mr Chamberlain argues that the Commissioner had no basis for setting aside the Tribunal's properly reasoned and amply justified adverse credibility findings (particularly given that the Tribunal had heard Ms Roach give evidence and the Commissioner had not). The conclusion in relation to the 30 March letter was based on what Ms Roach had said (speaking of the possibility of her former partner "becoming" violent) and the earlier comment to the official that "violence was not an issue". This was so inconsistent with her subsequent assertions that the Tribunal was entitled to disbelieve her. Further, he submitted that the Commissioner gave no sufficient basis for concluding that it was not open to the Tribunal to take that view. On the contrary, the Tribunal was entitled to reason that her expressed fears were irrational, far fetched and, when taken with the inconsistencies of her accounts and her inadequate explanation for those inconsistencies, legitimately led to conclusion that she was lying.
29. Mr Coppel for Ms Roach submits that the Tribunal made adverse credibility findings of limited scope only. He argued that the exaggeration was itself a factor pointing to a risk of distress and that what might have been obvious to him as a lawyer was "clearly" (his word) not obvious to her. Nor did the Tribunal ask why, if there was no genuine fear, Ms Roach was prepared to run the risk of reduced benefit for three years. As for the inflation of the claim of violence, the words "violence not an issue" and "possibly becoming violent" could quite sensibly be said, in the first case, to be an ex post facto comment by the official and, in the second, to be appropriate even with a history of violence. He supported the Commissioner's analysis that the word "violence" might have been used in a non-technical sense and that Ms Roach's explanation of shame deserved a more sympathetic consideration than it was given.
30. Before dealing with these competing submissions, there is one other matter I must address. Mr Coppel relied on medical notes which it is not suggested were before the Tribunal and are not mentioned by the Commissioner: they appeared in the bundle on the basis that Mr Coppel intended to rely on them if the Commissioner determined to set aside the decision of the Tribunal and make further findings of fact (see section 24(3)(b) of the 1991 Act) although, in the event, the Commissioner did not consider it necessary to do so and did not embark on the exercise. Suffice to say, there is no basis upon which this material can now be adduced on this appeal. In any event, the notes identify that, on 30 April 1997, Ms Roach alleged to her doctor that she had been assaulted by her ex-boyfriend. This cannot be the "torrid incident" which was in the presence of the child who was only born in 2001 and it is not even clear that it is the child's father about whom complaint is made: she said in evidence that her relationship with him lasted until soon after the baby's birth and that she had known him "a couple of years in total". Even if it was (as Mr Coppel said were his instructions), there is no hint in her evidence that she relied on this experience when forming her views. The notes can carry the appeal no further.
31. As to the substantive issue, it is trite to say that the credibility of a witness depends upon an assessment by the fact finder of a number of features. Without being exhaustive these include what is said, the way it is said, its internal consistency and the extent to which it corresponds with known facts or human experience; all this must be considered in the context of the perceptions of the witness. Further, assuming that the fact finder's analysis was open to him or her, an appellate court or tribunal can only intervene in that process based upon an error of law which is not the same as pointing to a different analysis of the evidence.
32. In this case, I deal with the Commissioner's second reason first. He seeks to explain the inflation of the claim in the context of the decision maker's obduracy and then argues about the meaning of the word "violent". Bearing in mind that the Tribunal specifically rejected the complaint made by Ms Roach that she was told that "violence … was only ABH or GBH" (and this finding is not appealed), and that she had explained her evidence on this basis, it is clear that she well understood the concept of violence. It is thus difficult to contemplate that being flung against a wall with a hand across the chest and neck so that she was unable to move could possibly be construed as not violent. In any event, the possible explanations offered by the Commissioner or argued by Mr Coppel were simply not offered by Ms Roach.
33. Further, this was not a case of exaggeration. Ms Roach's explanation for the recorded view that "violence is not an issue" was rejected. In those circumstances and in the context of pursuing child support, the Tribunal was entitled to conclude that it was inconceivable that anyone, however reticent or ashamed, could disavow a concern about violence if she had been assaulted in the context of discussing maintenance (which is the way in which the matter was ultimately put). The conclusion that Ms Roach was deliberately lying was perfectly permissible and inevitably then affected the approach to the rest of her evidence.
34. Neither do I accept that, in the circumstances of this case, it follows that the more irrational a person's fear the greater the risk of undue distress. Fear clearly can generate distress and irrational fear may generate greater distress but it does not necessarily evidence (and certainly need not establish) undue distress. In this case, this exaggeration was found to be deliberate and in the context of a dishonest account: it was not a question of irrational fear. In my judgment, the approach of the Tribunal reveals no error of law or failure of logic.
35. In that regard, I also deal with the argument that the Tribunal did not consider why Ms Roach was prepared to run the risk of reduced benefit for three years. That prospect is a perfectly plausible forensic argument properly addressed to the fact finder in an attempt to persuade but, as Mr Chamberlain submits, there was no obligation on the Tribunal to investigate the question, let alone to find an answer. For my part, I consider that it is impossible to speculate. I accept that, in addition to the risk of harm or undue distress, there could be many unconnected reasons that might cause a mother not to want her child's father to be pressed for maintenance, particularly if it would not necessarily benefit her or the child: Mr Chamberlain certainly advanced a number.
36. By the Respondent's Notice, Mr Coppel also argued that the Tribunal did not consider the risk of distress other than by violence. He submitted that because the Tribunal based itself on Ms Roach's first account and then found as a fact that some of what she said was dishonest and some exaggeration, it was appropriate to infer that what was not specifically rejected had to have been accepted. From that premise, he argued that her first account itself satisfied the test of undue distress. As was put in argument, this simply does not follow. Having disbelieved Ms Roach's account, the Tribunal was careful to ask "whether [Ms] Roach had established that there was a realistic prospect of such an incident, or undue distress to herself or [her son] occurring in some other way" and decided that she had not. In his reasons, the Chairman made it clear that having discounted the allegation of violence, the only evidence was her "unsupported assertion" which he considered unreliable. In my view, the Tribunal was entitled to reach the conclusions of fact that it did and the Commissioner had no basis in law for preferring his alternative analysis.
37. In the circumstances, the Commissioner's reasons for disturbing the Tribunal's findings of fact are simply unsupportable and no more than an attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred. I would uphold Mr Chamberlain's submission and restore the Tribunal's findings of fact and, thus, its conclusion that Ms Roach had not established that there were reasonable grounds for believing that there would be a risk of Ms Roach or her son suffering harm or undue distress if the Secretary of State were to take action to recover child support maintenance from the father.

The Legal Challenge

38. On the basis that I would reject the cross appeal based on the Respondent's Notice relating to service and restore the Tribunal's decision on the facts, this appeal succeeds and it is unnecessary to analyse the respective contentions of the parties in relation to the test to be applied in cases of this nature. Having said that, however, the Secretary of State submits that the approach adopted by the Commissioner to the law is flawed and, unless corrected in this Court, could gain currency with Tribunals and other Commissioners seeking to apply a consistent approach in this difficult area. On the basis that the only authority cited in either decision is that of a Commissioner, there is clearly force in this concern and, therefore, I accede to it.
39. I return to Section 46(3) of the 1991 Act and repeat the statutory formulation. This requires the Secretary of State to have regard to the reasons of the parent with care and consider whether there are reasonable grounds for believing that if he were to take action to recover child maintenance from the non resident parent, there would be a risk of the parent with care or of any children living with her suffering harm or undue distress as a result of his taking action.
40. It was common ground that this test is relatively easy for claimants to meet in order to avoid a reduced benefit decision: it is only necessary to show that there are reasonable grounds for believing that there would be a risk of harm or undue distress and no requirement that the harm be substantial. Prior violence or abuse is not necessary (although obviously such a history adds weight to the argument that there is a realistic possibility of recurrence).
41. The Commissioner made the point that the risk of harm is to be judged objectively. He went on:

"However, distress can only be experienced subjectively. Then, the question is not whether there are grounds to justify the distress but whether there are reasonable grounds for the Secretary of State to believe that the claimant would suffer undue distress. The meaning of 'undue distress' has been discussed by the late Mr Commissioner Sanders in paragraph 10 of CCS/03711995. However, whether the distress is undue must be judged on the basis of the facts as the claimant actually believes them to be. The best evidence of this (and in most cases the only available evidence) is that of the claimant. Certainly a tribunal is entitled to disbelieve a claimant who states that she would suffer what would amount to undue distress. The question, however, is whether there are reasonable grounds (for example, credible evidence) for believing that there would be a risk of undue distress. It seems to me that a tribunal must explain very carefully why it does not believe the claimant's evidence, if that is the case."

42. In the context of the test to be applied, it is worth repeating what the Commissioner went on to say:

"In many ways the more irrational a claimant's fears, and the more disproportionate they are, the greater the risk of undue distress."

43. Mr Chamberlain challenged this approach and argued that if the test of undue distress is entirely subjective, it accorded little or no meaning to the word 'undue'. Furthermore, to suggest that the more irrational the fear, the greater the risk of undue distress utterly ignores the real possibility that what is said to be an irrational fear may not be truly or genuinely held (which is the situation that the Tribunal considered existed in this case). He argued that 'undue distress' in this provision must mean distress that it is not reasonable for the claimant to have to bear. He accepted that, in deciding what is reasonable, it is relevant to consider the facts as the claimant believed them to be but if the fears are irrational, disproportionate or paranoid, that was also a fact which the Tribunal should take into account in deciding whether the distress caused by those fears is distress which it is not reasonable for that claimant to have to bear. Mr Coppel did not disagree that the word 'undue' required distress beyond that which was appropriate or warranted but he submitted that the word did not require an objective judgment as to the 'reasonableness' of the claimant's approach.
44. It is worthwhile starting with the elaboration of Mr Commissioner Sanders to which the Commissioner referred. It was in these terms:

"The Oxford English Dictionary gives a number of meanings to 'undue' including (2) not appropriate or suitable, improper, unreasonable (3) unjustifiable (4) going beyond what is appropriate, warranted or natural. In this case the concern is whether any of the children would be at risk of suffering undue distress if the father's visits ceased or were curtailed. It seems to me that, in those circumstances, if in fact any of the children are likely to be distressed it would probably follow that such distress could be properly characterised as undue distress. I would find difficulty in accepting that if a child is likely to be distressed because he is never going to see his father again the distress is for some reason or other to be regarded as mere distress rather than undue distress. I think I can say no more about the meaning of 'undue distress'; whether there is such must be a matter of fact in the particular circumstances. "

To that definition, I add the observation of Peter Gibson J in Tote Bookmakers Ltd. V. Development & Property Holding Co. Ltd. [1985] Ch 261 at 269 when, in the context of section 27 of the Arbitration Act 1950, he defined undue hardship as "hardship … not warranted by the circumstances".

45. I do not accept that the question of undue distress should be approached on a purely subjective basis: if it was, the word 'undue' would have no real meaning. In my view, in order to judge whether a particular claimant has shown reasonable grounds for believing that there would be a risk of undue distress (that is to say, a realistic possibility of undue distress) to her or a child, an objective judgement must be made as to whether the foreseeable distress is unjustified or unreasonable in the context of the personal, subjective, characteristics of the claimant or child. Irrationality or paranoia are factors to be taken into account as providing the context against which the extent of the distress is to be assessed but are not determinative. To that extent, I would reject the Commissioner's approach.

Concluding Remarks

46. Mr Coppel was understandably anxious to emphasise the very real effect (which he described as penal and draconian) of depriving a mother of a substantial proportion (40%) of Income Support entitlement for a period of 3 years (see reg 11(2) of the Regulations) simply on the basis that she refused the Secretary of State permission to pursue the non resident father for child support maintenance. I am acutely aware of the hardship concerned but, equally, it is necessary to have regard to the clear legislative purpose that non-resident parents should reduce the impact upon public funds of the cost maintaining their children. The system prescribed by Parliament seeks to strike that balance and requires interpretation against that background. Of course, the test should be "relatively easy to meet" but where, as here, the Tribunal has concluded that the claimant lied and exaggerated such that it could not rely on her evidence, it is equally appropriate that the test should not be so construed as to provide no hurdle of any sort. The answer must be that all those advising claimants in the position of Ms Roach must encourage complete and immediate candour thereby maximising the ability to meet the test where it is appropriate to do so and minimising the risk of an adverse credibility finding.
47. In the circumstances of this case, I would allow the appeal and restore the decision of the Tribunal.

Lady Justice Smith:

48. I agree.

Lord Justice Mummery:

49. I also agree.