A recent case highlights the issue of the link between the payment of child benefit and the liability of the non-resident parent (NRP) to pay child support.
In this post I set out a basic overview of how the Child Maintenance Service calculates how much child support an NRP has to pay, but there is another question: for how long should they pay it?
To go back to basics, child support is payable in respect of a ‘qualifying child’. Accordingly, the NRP remains liable for as long as the child remains a qualifying child.
What is a qualifying child? First the easy bit: if the child is under 16 then they are a qualifying child. However, children between 16 and 20 can also be a qualifying child if they are in full-time non-advanced education or child benefit is payable for them – provided they are not, or have not been, married or in a civil partnership.
The full-time non-advanced education part is relatively straightforward and I am not concerned with it here. However, the child benefit part can be surprisingly difficult.
Before we look at the case, we need to look at the basics of when child benefit is payable. Essentially, it is payable in respect of any child under 16 or under 20 if they are in approved education or training. However, child benefit stops if the child starts paid work for 24 hours or more a week and is no longer in approved education or training, if they start an apprenticeship, or if they start receiving certain benefits in their own right, such as Income Support.
OK, so on to the case – DJ v Secretary of State for Work and Pensions and TJ (CSM) (Child support – receipt of benefit). This concerned child support for a child who was born in 1996, and who has at all material times lived with her mother. The child support was paid by the father under the 2003 scheme, which was replaced by the current 2012 scheme. The Child Support Agency closed the case from the 3rd September 2015, on the basis that child benefit remained in payment for the child until the 7th September, and this resulted in a cancellation from the start of the payment week in which that day fell.
The father challenged that date, arguing that the child had been in full-time work since September 2014 (for some of the time at the “family firm” run by him), and that if child benefit was being paid it was an error. The First-tier Tribunal (FTT) upheld the decision of the Agency, expressing the view that the rules linked child support liability to the payment of child benefit and not the commencement of employment.
The father appealed to the Upper Tribunal. The Upper Tribunal held that the FTT had been in error. It had already been decided in a previous case that the word “payable” in relation to child benefit means “properly or lawfully payable”. Thus, if the child benefit was being paid in error, then the child support liability should have ended earlier.
That was not, however, the end of the matter. The case was remitted back to the FTT for it to make findings of fact as to whether the child benefit was lawfully in payment, i.e. in accordance with the rules that I have briefly set out above.
As mentioned, the case was dealt with under the 2003 child support scheme. However the current 2012 scheme still links the duration of child support to the payment of child benefit in a similar way, so the issue is still relevant to current cases.
The full report of the case can be read here.