Variation of child maintenance on the grounds of assets

Variation of child maintenance on the grounds of assets

Family analysis: The child support maintenance case of SM v Secretary of State for Work and Pensions shows that the infinite variety of family arrangements will always create fresh litigation despite the efforts of legislators to provide a comprehensive code, says James Pirrie, director of Family Law in Partnership Ltd.

Original news

SM v Secretary of State for Work and Pensions and BM (Child support: variation/departure directions: just and equitable) [2016] UKUT 245 (AAC)

The Upper Tribunal (UT) allowed a father’s appeal against a First-tier Tribunal (FTT) decision that payments he had made for his son’s extra-curricular activities such as music lessons and sport at school would not be taken into account when deciding the amount of child support maintenance he should pay.

What were the background facts?

There were two applications for a variation of child support maintenance seeking an adjustment to the formula figure:

  • an application for an increase by the mother, as the parent with care, on the basis of the father’s ‘underused’ assets
  • an application for a reduction by the father, as the non-resident parent, on the basis that he was paying school fees

The Child Support Agency (CSA) granted both applications. But the father appealed to the FTT, arguing that the variation did not pass the required test of being ‘just and equitable’, within the meaning of section 28F of the Child Support Act 1991 (CSA 1991), as regard should be had to the sums he paid as voluntary contributions towards his school extras for his son such as music lessons, school trips, bus fares, school uniform, school clubs and sports activities.

The FTT rejected the father’s argument, and he appealed to the UT.

What did the UT decide?

The UT found that the CSA and the FTT had correctly decided that the sums paid by the father were not simply to be lumped together as, within the meaning of CSA 1991, s 8(7)(b), ‘expenses incurred in connection with the provision of the instruction or training’ of his son and treated as generating an adjustment on the

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