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Ryan Kennedy

Volume 470: debated on Thursday 10 January 2008

Motion made, and Question proposed, That this House do now adjourn.—[Siobhain McDonagh.]

I thank the Speaker for selecting this topic for this evening’s debate, as it gives me a chance to air an appalling case involving the Child Support Agency, which raises important points of principle that require debate and resolution.

I need to start by outlining the basic details of the case, which started on 5 February 2007 when a constituent of mine, Ryan Kennedy, was contacted by the CSA to inform him that he had been named as the father of a six-year-old child. He did not think that he was the father of the child, but he wanted things to be sorted out as quickly as possible so he co-operated with the agency in having the DNA testing carried out immediately—within the two-week required period. He conformed entirely with CSA regulations; indeed, he did so partly because he was told that if he refused to co-operate he would automatically be declared the father of the child.

Mr. Kennedy spent the £200 on the test, and then heard nothing. Bearing in mind that that was in February 2007, he repeatedly contacted the CSA, was passed on from individual to individual and had telephone calls ignored, and in the end, in desperation, he came to my office to see if I could move things forward for him. Indeed, it took me some time to get some clarification from the CSA, but it emerged that the mother of the child had refused to have the DNA test done either on herself or on the child involved.

I would like to read a statement made by my constituent, which exhibits the burning sense of injustice felt by him at this point in the proceedings:

“I was given a two-week deadline otherwise action would be taken. How can this happen where there is one rule for one and one rule for another?”

He then went on to tell the man from the CSA how desperate he felt and that

“I would be seeking legal action upon which he said ok and put the phone down on me.”

My constituent felt that he was being required by law to have the test done, otherwise he would be declared the father of the child and be liable to payments, whereas the woman naming him as the father of the child was not forced to have the test done on herself.

My constituent described to me the impact the situation had on his health—he was so affected that he could not sleep properly. He was clearly distressed—so much so that he broke down in my surgery. On telling me that he was getting married this year—2008—he immediately impressed upon me the critical nature of the situation he was in. He was getting married and at the stage when the arrangements were being made—he was buying a house—suddenly there was a child on the horizon whom nobody knew about.

My constituent asked me to write to the CSA and, finally, after a number of telephone calls that I myself had to make to the agency on the hotline—I could not even get my staff to do that as they were not getting anywhere—on 18 September I received a written response. Frankly, it was appalling, as it spelled out a situation that is clearly discriminatory. It stated:

“If a parent with care does not comply with the Agency regarding a child support application we can take the following action”.

As the first step, if the

“parent with care is in receipt of a prescribed benefit—the parent with care would incur a financial penalty which would affect the amount of benefit either they or their household receive. This penalty would remain in place until such times as they complied with the Agency or ceased to be in receipt of”

a benefit. However, if the parent with care is a private client

“the Agency would close the parent with care’s application for child support”.

In other words, if the mother was on benefit, the case on my constituent would be kept open, but if she was not on benefit, it would be closed. That is clearly discriminatory and unsatisfactory.

What made the situation worse was a paragraph further down in the letter. It said that Mr. Kennedy had

“been advised that the application will remain open and effective from the first contact date with him if it is established at a later date that he is indeed the father of Warren.”

Given that the CSA can claim payments from parents without care until the age of maturity, which in most cases is 19, my constituent faced a situation where he could be told at any time over a 13-year period that he was the father of this child and he would have the claim for maintenance payments backdated. It does not take a mathematician to work out that someone on an average salary, which is approximately £20,000 a year in Sheffield, would face a substantial backdated claim over a period of years.

Something had to be done. I wrote to the Minister on 20 September asking for amendments to the law, especially given that we had the opportunity to do that easily because legislation was going through Parliament. That approach led to an ongoing correspondence with Ministers in the other place and the CSA, and in turn to two outcomes. First, on 21 December, my constituent’s case was resolved, but only because the parent with care ceased to claim benefits. The case was thus closed and we were informed of that fact.

Secondly, on 7 December, we received a letter from the Department’s Minister in the other place, which made it clear that there could be a way forward in terms of the general principle applying in this case. It stated:

“The Child Maintenance and Other Payments Bill…includes a clause which repeals section 6 of the Child Support Act 1991. If section 6 is repealed it will mean that parents with care claiming benefits will no longer be required to apply for child maintenance through the state system. Therefore, where the mother refuses to comply with Agency regulations the case will be closed.”

To that extent, the progress made has been satisfactory, but the case raises a number of points. First, I want to draw attention to the inadequacy of the responses that we have received, in the context of the lack of awareness demonstrated to an individual caught up in a situation clearly not of his own making. Secondly, I want to discuss the discrimination and the human rights implications of the case. I then wish to ask three questions of the Minister.

After the months of evasion by the CSA, which I have described, and frustration on the part of my constituent, we received the letter dated 18 September that I mentioned. It set out the position relating to Mr. Kennedy—the situation was clearly unsatisfactory at that point—and finished with a statement that I found astounding. It stated:

“Although Mr. Kennedy was unhappy with this response the Agency can confirm that it has followed all the appropriate guidelines and legislation in addressing the issue of establishing if he is the father”.

To say that he was unhappy with the response was an understatement.

No sense of understanding of my constituent’s position was given in that final paragraph. The CSA did not seem to be bothered about trying to understand the perspective of my constituent and how he might feel about the situation; it only seemed to be bothered about the fact that it was in the clear legally and that it had not done anything wrong. That seemed to be all the CSA was going to say about the matter. Its attitude was, “He can live with it. We are okay. We have not done anything wrong. We are just applying the law as it stands.”

In further discussions that I had with CSA staff, rather unusually, a different attitude was demonstrated. When I discussed the matter on the phone and when the position became clear, a degree of sympathy was shown, and that was more than welcome. That was the first time that I experienced that kind of personalised response to a case in my conversations with the CSA.

The initial ministerial response that I received from the other place was equally disappointing. I got my first response on 23 October, which advised me that if my constituent was unhappy with the situation, he should go to court to try to obtain a declaration of non-parentage under the Family Law Act 1986. The response made it clear that the Department for Work and Pensions did not think that the law needed to be changed, but what kind of response was that? After all, my constituent was not in a situation of his own making. He could not afford to go to court to resolve the issue and he had complied at every stage with the CSA regulations. Why should citizens of this country have to take drastic legal action to resolve a situation when they have done nothing wrong, have not broken any law and do not have to defend any action against them? It is down to Parliament to resolve such difficulties—such legal complications—to ensure that the situation does not arise again with the CSA or any body that replaces it.

The responses we received were clear evidence of discriminatory practices. First, a differentiation is made between parents who claim benefits and those who do not. That is clearly discriminatory, although it looks as though it will be resolved through changes to the legislation. My constituent suffered the knock-on effect of that discrimination. Because the woman who had named him as the father of the child was claiming benefit, he was liable to be held on the CSA’s books for 13 years. If she had not been on benefit and had made a private claim, that would not have happened. That is clearly discriminatory. The problem was compounded in this case because the individual had done nothing wrong, and certainly nothing to deserve such discrimination.

The case also has human rights implications. If someone is kept on the books of an organisation for up to 13 years—up to 19 years in some cases—they will face huge costs over the period, and not just financial. There are the psychological costs, as well as the possible impact on any marriage and the decision on whether to start a family. The threat posed by the CSA to keep the claim on the books for that period had a huge impact on the life of Mr. Kennedy. I repeat the point that I made in a letter to the Department:

“If this Government is about anything, it is about equality and individual rights. I think in these circumstances the Government is falling short of these exemplary aspirations.”

I look to the Minister today for answers, in the hope that we can resolve the discrimination and human rights issues raised by this case.

I would also like clarification of some points of principle from the Minister. If section 6 of the Child Support Act 1991 is to be repealed by Parliament, can the Minister confirm that that will release individuals such as my constituent from the threat that is held over them? In other words, can the Minister confirm that it will not happen again?

When the legislation has gone through Parliament, will it be applied retrospectively? Can the Minister confirm that individuals currently caught in similar situations with the CSA will be able to resolve their cases under the provisions of the new legislation?

Finally, there is the important issue of the DNA. I do not believe that individuals who are arrested and never charged should have their DNA samples held by the state. In this case, Mr. Kennedy was not arrested, he did nothing wrong and he was not charged with any crime. In the end, he was not even charged money for giving the sample. Surely it is only right that the DNA sample should be destroyed. Will the Minister confirm that DNA samples that are proved to be redundant to CSA claims and processes are destroyed?

This is the by far the worst case involving the CSA with which I have ever had to deal, and that is saying something. I think that most hon. Members will agree that the CSA is a difficult agency to deal with. My constituent wanted the matter raised even though his case has now been resolved because he does not want the same to happen to anyone else. He has compromised his confidentiality to allow me to put the case on the record. That shows how strongly he feels about the year of hell that he has been through. How many others are in the same situation? It would be interesting to know. I look forward to the Minister’s response.

I congratulate my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) on bringing up the case, as she has the right to do, and on the way in which she has done so. I have looked at the file and the case history and can only agree that it is an appalling case. I shall explain in a moment what the Child Support Agency has done about it and about some of the wider implications that arose.

I am grateful to Mr. Kennedy for having forgone his right to privacy and allowed my hon. Friend to discuss his case. I can understand how, having gone through what he has, he might have wished to preserve his anonymity. However, despite having endured what he has as a result of the mistakes made, he is acting on behalf of others by allowing my hon. Friend to mention his case to ensure that such things do not happen to other people. That is a noble action, in the circumstances, given what he has had to endure as a result of the agency’s mistakes.

I heard what my hon. Friend said about the inadequacy of the responses that she received from the agency in the early stages of her inquiry—both from the hotline and in written correspondence. From what she has said, it sounds as though some information provided by the agency in written correspondence was not correct. That should not happen, either. I reassure her that we have been aware for some time of issues about the hotline and the speediness and accuracy of written responses. Action has been taken to improve both and I am sure that both have been considerably improved since she took up the case.

Mr. Kennedy will, I am sure, be grateful to have an MP who has pursued his case with such assiduousness when bringing the issues to the attention of the Government in order, we hope, to resolve matters. As my hon. Friend has said, many matters have been resolved in the case but the bigger issues that have emerged still need to be dealt with. I shall direct most of my comments at them.

I want first to apologise to Mr. Kennedy for the distress and frustration that he has experienced since February 2007. As my hon. Friend outlined, the issues are difficult and sensitive, and the agency should clearly have handled the case far better than it did. As she said, the case was closed on 20 December, at the request of the parent with care when she moved off benefit and became a private client. However, despite that positive outcome for Mr Kennedy, we must not lose sight of the difficult issues at the heart of the case. I should like to run through the facts of the case to aid our understanding of the issues highlighted.

In response to my hon. Friend’s concerns, the Child Support Agency carried out an investigation into the circumstances that led it to contact her constituent. That investigation has concluded that the information that the agency had received from the mother of the child in question was insufficient to justify contacting Mr. Kennedy in the first place. The agency should not have approached Mr. Kennedy at all, and I very much regret that it did so. Given the impact that the agency’s involvement has had on Mr. Kennedy, I am pleased to advise my hon. Friend that it intends to award him a significant consolatory payment, to reflect the gross inconvenience that has been caused to him.

That leaves us with the three issues that my hon. Friend raised: how it came about that the agency contacted Mr. Kennedy in the first place, what it could have done to resolve his paternity dispute, and what action it will take in the future to prevent similar problems arising.

On the first point, the facts are that the mother of the child in question applied to the CSA for maintenance for her child in September 2005. She was obliged to do so, because she had claimed a prescribed benefit. The information that she gave about the father of the child consisted solely of a name and a past but not very specific address. The agency’s internal procedures in such cases require staff to gather sufficient information to make a positive match—for example full name, date of birth, address, and/or place of employment. I am sorry to say that the agency did not do that in the case of Mr. Kennedy. Instead of returning to the child’s mother for any further information that she might have had, it made the incorrect assumption that my hon. Friend’s constituent was the same Mr. Kennedy named by the child’s mother. Of course, he was not—as the agency would have realised if it had followed procedure.

In response to the agency’s contact in February 2007, Mr. Kennedy denied that he was the father of the child. He agreed to take a DNA test to resolve the matter, and by early March 2007 had done so. The child’s mother, however, did not. In such instances, the usual action for the agency is to ask the benefit-paying authority—in this case, Jobcentre Plus—to reduce the benefit of the parent with care to encourage her to consent to a DNA test. The agency eventually did that in June 2007.

I turn now to the second point. In cases such as this, where paternity cannot be resolved, the CSA is unable to force a parent with care to comply with DNA testing. The mother remained non-compliant, and the agency did not make any further progress with the case. On the assumption that it had contacted the right Mr. Kennedy in the first place, it could have resolved the matter by obtaining a declaration of non-parentage from the courts. Dealing with the matter in that way almost certainly would have resulted in the courts directing that a DNA test be carried out. Had the mother refused to comply with the court’s direction, the court would have been able to draw inferences from that in deciding whether or not the alleged non-resident parent was indeed the father.

Taking that action would have prevented Mr. Kennedy from facing months of uncertainty as to whether he was the father of the child and therefore liable to pay maintenance for that child. The agency did not take that action, but it should have done. Once more, I apologise for that on its behalf. I thank my hon. Friend for her involvement, as it was helpful in bringing this matter to the agency's attention and thus helping us to resolve it.

My hon. Friend has rightly pointed out that had the case been a private one, the agency would have been able to close the case as soon as the DNA test was refused, thus preventing the situation from occurring in the first place. However, as the mother was included in a claim for income support, the agency was obliged to keep the case open. Child support legislation does not currently allow the Secretary of State the discretion to close cases of that type—commonly called section 6 cases—and it does not allow the agency to close down the potential liability created by its initial contact with Mr. Kennedy. In other words, had the parent with care later co-operated and had Mr. Kennedy been found to be the child's father, he would have been liable for maintenance back to the date on which we first contacted him. In any case, closing the case would not have resolved the paternity dispute.

On 20 December 2007, the agency learned that the parent with care was no longer in receipt of benefit and contacted her to see whether she wished to continue using the agency. She advised that she did not and the case was closed, effective from the date on which she first applied. However, as I have already said, that positive outcome does not excuse the frustration and difficulties experienced by Mr. Kennedy, and I shall now outline what we are doing to ensure that such cases are handled better in future.

The principal failure in Mr. Kennedy's case was the agency's decision to contact him without taking reasonable steps to assure itself that he was the Mr. Kennedy named by the mother. That was due to staff not following internal procedures as they should have done. That is quite unacceptable. In the light of this, the agency has plans in place to write to all its staff reminding them of the need to gather sufficient information to make a positive match before contacting an alleged non-resident parent.

The repeal of section 6 of the Child Support Act 1991 by the Child Maintenance and Other Payments Bill, which is now going through Parliament, will also mean that parents with care claiming benefit are no longer automatically treated as making a claim for child support, allowing for cases such as this to be closed in the same way as they are for private clients. That will deal with my hon. Friend’s point about inconsistency of treatment.

My hon. Friend asked whether our contractor has destroyed Mr. Kennedy's DNA sample. I can confirm that it has been destroyed. DNA samples are held by the agency's contracted supplier of DNA testing and access is restricted to laboratory staff. The contactor destroys samples after three months and all case records are destroyed one year after the case has been resolved. If it is not resolved, the sample will be destroyed on the agency's request.

My hon. Friend also asked whether the section 6 repeal will allow this issue to be raised in relation to existing cases. I confirm that it will, so not only future cases but current ones will be with the maintenance commission.

I hope that my response has provided my hon. Friend with some reassurance that the flaws in the child support system uncovered by that very bad case are being dealt with, both through the measures in the Child Maintenance and Other Payments Bill and through operational policy changes within the agency.

Once again, I apologise for the distress caused to Mr. Kennedy by the way in which the agency handled the case, which was inexcusable. In addition to the measures that I have outlined this evening, I shall write to him myself, on behalf of my Department, to express my regret about the way in which the agency mishandled the case and the consequent distress caused to him. I think that I owe him that, on the agency’s behalf. I again thank my hon. Friend for bringing the case to the attention of the House and for giving me the opportunity to respond in full to the points that she has raised.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes past Six o’clock.