When is a maintenance order not a maintenance order? That little conundrum fell to be considered in a recent child support decision of the Upper Tribunal. This dealt with what must be a common issue: the relationship between the payment of school fees and child support maintenance.
The case was MR v (1) Secretary of State, (2) CR (CSM) (Child support : other). It involved the parents of two children, now aged 15 and 17. In July 2010 a residence order was made, providing for the children to live with their mother for (I presume) five nights a week and with their father for the other two nights. On the 22nd of July 2010 the court made an order providing for the father to pay 75 per cent of the children’s school fees.
On the 8th of September 2010 the mother applied for child support maintenance. An assessment was made requiring the father to pay £92.86 per week. The father appealed against this, claiming that there had been no jurisdiction to make a maintenance calculation, as the school fees order was a child maintenance order, and no application can be made for a maintenance calculation within one year of the making of a child maintenance order.
Just to explain the above, the original idea behind child support was to take the power to deal with child maintenance away from the courts and pass it to the Child Support Agency. Accordingly, since the advent of the Child Support Act 1991 the courts have not been able to make a child maintenance order where a child support maintenance calculation could be made under the Act. There are exceptions to this, however. One of the most common is that the court can make maintenance orders where the maintenance has been agreed. Another is that the court can make maintenance orders in respect of school fees.
Then there is the rule, mentioned above, that an application for child support maintenance cannot be made if a maintenance order has been made by a court, but has been in force for less than one year. As the term ‘maintenance order’ is used in relation to school fees orders, one would think that the father had a good argument. However, hidden in the maze of child support legislation is another provision: that the one year prohibition specifically does not apply to school fees orders. A school fees maintenance order is not a ‘maintenance order’ for the purpose of the one year rule. Accordingly, the father’s argument failed.
The father did, however, have another argument: that the payments he was making in respect of school fees should have been taken into account in the calculation of the child support maintenance, by offsetting them against the maintenance calculation sum. This argument failed simply because the formula for the calculation of child support maintenance does not provide for sums paid in respect of school fees to be taken into account, unless they relate to the maintenance element of boarding school fees. The argument also fails for logical reasons. As the judge of the Upper Tribunal put it:
“An additional consideration pointing strongly … against any offsetting – seems to me to be this. If the children were attending a non fee-paying school, the child support maintenance calculation would be the same as it presently is. [The father’s] contention that his … 75% share of the school fees should be offset against the maintenance calculation is therefore in effect that (save to the extent that the 75% share of the fees exceeds the amount of the maintenance calculation) his liability in respect of the children should be no greater than it would have been if they were at a non fee-paying school. If (for the sake of argument) a 75% share of the school fees had been equal to the amount of the maintenance calculation, his total liability would have been no greater than if the children had been at a non fee-paying school.”
The moral of the story is clear: despite the confusing terminology, child maintenance and school fees are two separate things – take proper expert advice before any decision is made regarding what each parent should pay.
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