Judicial Review: Decision Exceeded the Power of the CSA/CMS?

What judicial review means for CMS and historic CSA decisions

Judicial review is a court process for challenging whether a public body acted lawfully. It can cover decisions by the Child Maintenance Service (CMS), as well as its actions and failures to act, including unlawful delay.

The Child Support Agency (CSA) no longer administers maintenance cases. However, disputes about historic CSA decisions or arrears can still arise. Different rules may apply to those disputes, and an old decision cannot be challenged without dealing with the time limits.

The court asks whether something was lawful. It does not normally rehear the merits or substitute its own maintenance calculation.

Procedures differ across the UK. In England and Wales, claims go to the Administrative Court, which is part of the High Court. In Scotland they go to the Court of Session. Northern Ireland has its own procedure in the High Court in Belfast, and its CMS operates under the Department for Communities with separate legislation, appeal arrangements and complaints escalation. The detail below mainly reflects England and Wales, so take local advice if you live elsewhere.

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Grounds for a challenge

• Illegality: the decision maker acted beyond its powers, misinterpreted the legislation, ignored a legally relevant factor or relied on an irrelevant one.
• Irrationality: the decision was so unreasonable that no sensible decision maker could have reached it. How much weight to give relevant factors is generally left to the decision maker, so strong disagreement is not enough.
• Procedural unfairness: for example, you were not given a proper chance to put your side, or the correct procedure was not followed.

In Great Britain, proceedings generally concern the Secretary of State for Work and Pensions rather than the CMS as a separate legal entity. A specialist adviser should identify the correct defendant or respondent.

Your situation may be slightly different. ask a question below ↓ and our editorial team will reply with our advice.

Appeals, complaints and other remedies

The court will normally expect you to use an adequate alternative legal remedy, such as a statutory appeal, where one exists. For many calculation decisions in Great Britain, that means asking for mandatory reconsideration and then appealing to the First-tier Tribunal (Social Security and Child Support). Not every CMS decision carries these rights, and some enforcement matters follow different court routes. Check your decision notice for the correct route and deadline. Reconsideration and appeal deadlines are usually one month, subject to rules on late applications, and are separate from the judicial review deadline.

The CMS complaints procedure and the Independent Case Examiner deal with service failures and maladministration. In Great Britain, complaints can then go to the Parliamentary and Health Service Ombudsman through your MP. These routes are not substitutes for appeals, and they do not necessarily have to be completed before judicial review.

Time limits, costs and getting advice

In England and Wales, a claim must be brought promptly and in any event within three months after the grounds first arose. Extensions are possible but should never be assumed. Scotland has a statutory three month limit from when the grounds first arose, with a power to extend where that is equitable.

Complaints, reconsideration requests and pre-action letters do not automatically stop or extend the judicial review time limit, so get advice promptly about protecting your position.

In England and Wales, you normally write to the other side under the Pre-Action Protocol for Judicial Review before issuing a claim. Urgent cases may need a different approach, and waiting for a reply must not make your claim late. If the dispute remains unresolved, a specialist adviser can assess whether to issue proceedings.

A judge then decides whether to grant permission. An arguable case is needed, but permission can still be refused for delay, an available alternative remedy, lack of sufficient interest or other legal barriers. In Scotland, the test includes a real prospect of success.

Remedies are discretionary and their names vary by jurisdiction. A quashed decision is usually sent back to be made again, possibly with the same result. In England and Wales, relief will generally be refused where the outcome would very likely have been substantially the same, unless public interest requires otherwise. Starting a challenge does not suspend maintenance liability or enforcement, so interim relief may need separate consideration.

If you lose, you may have to pay some of the other side's costs. Legal aid depends on financial and merits tests, and it does not necessarily remove every costs risk. In England and Wales you can check legal aid eligibility on GOV.UK.

Keep decision notices, the dates you received them, correspondence, calculations and records of any remedies you have tried. Citizens Advice can explain your options. To find a public law solicitor, contact the Law Society of England and Wales, the Law Society of Scotland or the Law Society of Northern Ireland.

The Next Step

Now that you have read through the advice above, you might want to put it into practice. Our Child Support Rights Checker lets you answer a few questions about your situation and get a clear summary of your child maintenance rights and options. Try it now →