SECRETARY OF STATE FOR WORK AND PENSIONS, CHILD SUPPORT AGENCY v. STVEN O'DONNELL [2010] ScotSC 189 (11 November 2010)

SECRETARY OF STATE FOR WORK AND PENSIONS, CHILD SUPPORT AGENCY v. STVEN O'DONNELL [2010] ScotSC 189 (11 November 2010)

The sheriff erred in law by restricting the relevant period for assessing wilful refusal or culpable neglect to the date of first calling or shortly thereafter, and by finding that continuations of the summary application were incompetent. The correct approach is to consider the entire period from the date of liability to the date of inquiry. The sheriff also erred by relying on repealed legislation and by not alerting parties to his novel approach, thereby denying procedural fairness.

Citation
[2010] ScotSC 189
Parties
Pursuer and Appellant: Secretary of State for Work and Pensions, Child Support Agency (now the Child Maintenance & Enforcement Agency); Defender and Respondent: Mr Steven O'Donnell
Jurisdiction
Scotland
Judgment Date
11 November 2010
Procedural Posture
Summary Application (appeal) / Appeal Judgment
Outcome
Appeal allowed; interlocutors of the sheriff recalled.
Legal Topics
Child Support Enforcement, Imprisonment for Debt, Disqualification From Driving, Summary Applications, Interpretation of Statutory Provisions, Procedural Fairness
Family Law Civil Procedure Social Security Law Child Support Enforcement Imprisonment for Debt Disqualification From Driving Summary Applications Interpretation of Statutory Provisions +1 more

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Parties

Secretary of State for Work and Pensions, Child Support Agency (now the Child Maintenance & Enforcement Agency)

Pursuer and Appellant

Mr Steven O'Donnell

Defender and Respondent

Procedural Posture

Summary Application (appeal) / Appeal Judgment

Legal Issues

  1. 1 What is the relevant period for assessing wilful refusal or culpable neglect under section 39A of the Child Support Act 1991?
  2. 2 Is it competent for the sheriff to continue a summary application to monitor payment arrangements?
  3. 3 Did the sheriff err in law by relying on repealed legislation and by not alerting parties to a novel approach?

Ratio Decidendi

The sheriff erred in law by restricting the relevant period for assessing wilful refusal or culpable neglect to the date of first calling or shortly thereafter, and by finding that continuations of the summary application were incompetent. The correct approach is to consider the entire period from the date of liability to the date of inquiry. The sheriff also erred by relying on repealed legislation and by not alerting parties to his novel approach, thereby denying procedural fairness.

Court Disposition

Appeal allowed; interlocutors of the sheriff recalled.

Orders

  • Appellants entitled to expenses of the appeal; account to be taxed and reported by the Auditor of Court.
  • Remit to the sheriff to proceed as accords, with direction that a different sheriff be assigned for all further procedure.