SM v Secretary of State for Work and Pensions and BM (CSM)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Knowles |
| Judgment Date | 20 May 2016 |
| Neutral Citation | [2016] UKUT 245 (AAC),[2016] UKUT 245 (AAC),[2016] AACR 47 |
| Subject Matter | Child support,Child support - variation/departure directions: just,equitable,Knowles,G |
| Date | 20 May 2016 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2016] AACR 47
(SM v SSWP)
1
[2016] AACR 47
(SM v Secretary of State for Work and Pensions and BM (CSM)
[2016] UKUT 245 (AAC))
Judge Knowles QC CCS/1649/2015
20 May 2016
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 t o live
permanently with the appellant. The appellant appealed against the revised award for the remaining child, arguing
that it was neither fair n or equitable as it took no account of h is 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 extra s, 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, h olding that the variation was reasonable and that
it had seen no evidence for the alleged agreement or for the extra expen ses (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 i ts ordinary natural
meaning as something that connects or joi ns or links. That connection must be direct rather than indirect. Although
the extra expenses coul d not influence the maintenance calculation, there was n o 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 th e F-tT and the tribunal erred in
failing to consider whether the father had made any voluntary pa yment within the meaning of section 28J. That
factor was not excluded from con sideration by regulation 21(2)(f) of the Regulations and it would h ave 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 err or 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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1 cases
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Green v Secretary of State for Work and Pensions and Adams (Interests in Trusts and Ability to Control Assets)
...that it had been followed by Upper Tribunal Judge Knowles QC (now Knowles J) in SM v Secretary of State for Work and Pensions and BM [2016] UKUT 245 (AAC), reported as [2016] AACR 47. At [27], she cited what I wrote in DB at [34]: ‘the express legislative division of responsibility between ......