A father of two’s appeal against his child maintenance obligations must be reconsidered, a tribunal has ruled.
The case concerned a boy referred to as ‘A’, who lives with his mother, and his brother, ‘R’, who lives with hi father. Both boys attended private schools, for which the father paid the fees.
In June 2014, the man launched an appeal against the amount of child support he was required to pay, despite the fact that it had been reduced a few months earlier following R’s move to his home. He was now required to pay maintenance for A only.
The previous year the mother had applied for the existing maintenance award to be ‘varied’ (increased), on the basis of certain assets held by the father – a half share in a flat and some premium bonds. She successfully argued that these should be included in the calculation of the father’s weekly income.
The father disputed this approach, arguing that the revised calculation was “neither fair no equitable” as it did not take into account regular expenditure by him on both boys, money spent on such things as school trips, school uniforms, bus fares and extra-curricular activities like music lessons. Other expenses he cited included mobile phones and laptops for the siblings, travel costs associated with the contact schedule, rugby club membership and even haircuts.
He insisted that some of this expenditure was the responsibility of the mother but he had agreed to cover it if she dropped her child support claims. She denied this, and a tribunal ruled in her favour.
After an initial refusal, the father was given permission to appeal to the Upper Tribunal. Judge Knowles QC noted that the earlier tribunal:
“…had to consider “how far the contributions made by the father to the extra expenses associated with school could be taken into account in deciding whether a variation of child support maintenance on the basis of the father’s assets was both just and equitable.”
The parents had been unable to prove whether or not they had reached any agreement regarding payment of the expenses, and in addition, the father had failed to supply invoices backing up his claims.
However, Judge Knowles said he was:
“… not so certain that such “extras” cannot be classified as voluntary payments if they are made within the requisite timeframe required by section 28J(2) [of the Child Support Act 1991].. They are not made “in connection with” instruction or training and thus not excluded by section 8(7) and they may also be regarded as a payment in lieu of child support maintenance as long as payment for the “extras” is made to the parent with care.”
Section 28J states that the Secretary of State for Work and Pensions must not agree to a change [‘variation’] in child support payments unless “it is the Secretary of State’s opinion that, in all the circumstances of the case, it would be just and equitable to agree to a variation”.
Meanwhile, section 8(7) declares that
“This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—
(a)the child is, will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (whether or not while in gainful employment); and
(b)the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training.”
Judge Knowles criticised the Child Support Agency for failing to include copies of important invoices paid by the father in its submission to the Tribunal and inadvertently misleading the hearing.
The decision made by the tribunal had been “materially flawed in a number of respects”, he concluded. Therefore the father’s case must be ‘remitted’ [sent back] to the lower courts for a rehearing. He warned the parents:
“Both the father and the mother will need to provide a great deal more evidence to the tribunal in order that it might make detailed findings of fact.”
Read SM v Secretary of State for Work and Pensions and BM (CSM) here.