SM v Secretary of State for Work and Pensions and BM (CSM): [2016] UKUT 245 (AAC); [2016] AACR 45

Upper Tribunal Administrative Appeals Chamber decision by Judge Knowles on 20 May 2016.

Read the full decision in [2016] AACR 47ws.

Judicial summary

Child support – variation – “just and equitable” – whether sums spent on extras for activities taking place on school sites to be taken into account

The mother, the parent with care, applied for a variation of the child support maintenance (CSM) originally awarded by the Child Support Agency (CSA) on the basis that the appellant, the non-resident father, had assets which had not been included in the assessment. That assessment was for two children, but one subsequently moved to live permanently with the appellant. The appellant appealed against the revised award for the remaining child, arguing that it was neither fair nor equitable as it took no account of his voluntary payments towards various expenses. At the First-tier Tribunal (F-tT) hearing the appellant submitted that, in addition to the school fees, he had paid for a variety of extras, including music lessons, school trips, and bus fares, on the understanding that the mother would withdraw her application for CSM. The F-tT rejected that appeal, holding that the variation was reasonable and that it had seen no evidence for the alleged agreement or for the extra expenses (the CSA had failed to forward to the tribunal the invoices it had received from the appellant). Among the issues before the Upper Tribunal was whether sums spent on extras for activities taking place on school sites were items “in connection with instruction or training” which could be taken into account in deciding whether a variation of child support was just and equitable, despite being excluded for child support purposes under section 8(7) of the Child Support Act 1991.

Held, allowing the appeal, that:

  1. the phrase “in connection with” in section 8(7) of the 1991 Act should be given its ordinary natural meaning as something that connects or joins or links. That connection must be direct rather than indirect. Although the extra expenses could not influence the maintenance calculation, there was no reason why they could not be classified as voluntary payments if they were made within the timeframe required by section 28J(2) of the 1991 Act (paragraph 34 to 36);

  2. to determine whether a payment was “in connection with” instruction or training required a fact-specific consideration of the “extra” alleged and whether it was directly “in connection with” instruction or training. Weight should also be placed on whether the “extra” was properly considered to be optional or extra-curricular. In the instant case those considerations required the decision-maker to make findings about the status of each of the items for which the father paid, and the amount (paragraph 38);

  3. payments directly connected to instruction or training fall to be excluded, either as a voluntary payment or as an extra, but there was nothing in the 1991 Act, or the Child Support (Variations) Regulations 2000, to prohibit taking into account payment of extras not linked to schooling, including voluntary payments, in a just and equitable determination. That test provided a largely unrestricted discretion to take account of the whole of the financial circumstances relevant to both the parent with care and the non-resident parent: DB v CMEC (CSM) [2010] UKUT 356 (AAC). However it must be applied within the context both of the child support scheme as a whole and of the matters contained in section 28F, 28E of the 1991 Act and in regulation 21 (paragraphs 42 to 43);

  4. the CSA ignored the issue of voluntary payments in its submission to the F-tT and the tribunal erred in failing to consider whether the father had made any voluntary payment within the meaning of section 28J. That factor was not excluded from consideration by regulation 21(2)(f) of the Regulations and it would have been relevant to any assessment of whether it was just and equitable to agree a variation (paragraphs 44 to 46);

  5. the CSA’s failure to provide all the relevant evidence to the F-tT about a crucial issue constituted a breach of natural justice amounting to a material error of law (paragraphs 48).

The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with her directions.

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