Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                     Case No.  CCS/3157/2013

ADMINISTRATIVE APPEALS CHAMBER

1.         This is an appeal by the non-resident parent (Mr R), brought with my permission, against a decision of a First-tier Tribunal sitting at Bexleyheath on 30 July 2012. For the reasons set out below I dismiss the appeal. I held an oral hearing of this appeal earlier to-day at which Mr R and the parent with care (Mrs R) appeared in person, and the Secretary of State was represented by Mr Stephen Cooper, of the Office of the Solicitor to the Department for Work and Pensions.

2.         Mr R and Mrs R have two children, now aged 15 and 17. At the material time they were subject to the residence order made on July 2010 which is at pages 25 to 28 of the papers, under which the children were to live with Mrs R for part of the time and with Mr R for the rest of the time.

3.         On 22 July 2010 an Order was also made by the Tunbridge Wells County Court that Mr R pay 75% of the children’s school fees and 50% of the cost of reasonable extras on the school bill, and that Mrs R pay the remaining 25% of the school fees and 50% of the extras. The Order further provided that Mr R was to be given credit for payments by the trustees of a family trust, which were likely to be of 50% of the school fees.

4.         On 8 September 2010 Mrs R applied for child support maintenance.

5.         On 20 October 2010 child support maintenance payable by Mr R was calculated in the sum of £92.86 per week, from the effective date of 22 September 2010. That figure included a two-sevenths reduction for shared care.

6.         On 2 November 2010 Mr R applied for a variation on grounds which are no longer material, as Mr R no longer relies on them.

7.         On 5 November 2010 Mr appealed against the maintenance calculation. That appeal was dismissed by a First-tier Tribunal (“the First Tribunal”) on 31 March 2011, following a hearing which Mr R attended. For the purposes of this decision it is necessary to mention only that the First Tribunal rejected Mr R’s contention that there had been no jurisdiction to make a maintenance calculation. That contention had been based on the provision in s.4(10)(aa) of the Child Support Act 1991 that no application may be made for a maintenance calculation if a maintenance order has been in force for less than a year. The First Tribunal rightly decided that that contention was not correct because s.18(6) of the Child Support Act 1995 provides that s.4(10) of the 1991 Act does not apply in relation to a maintenance order which is made in the circumstances specified in s.8(7) of the 1991 Act. Section 8(7) applies in the case of a maintenance order if the child is undergoing instruction at an educational establishment and 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 ……..”

8.         Mr R did not seek permission to appeal against the First Tribunal’s decision.

9.         On 16 May 2011 the CSA rejected the application for a variation on the ground that it did not “pass preliminary consideration.” Mr R appealed against that decision, and by the decision now under appeal to me a First-tier Tribunal (“the Second Tribunal”) dismissed that appeal.

10.       The ground of Mr R’s appeal to the Second Tribunal which is material for present purposes is his contention that the CSA had “failed to take into account” (p.32) the sums which he was paying under the Court Order relating to school fees, which he contended were by way of maintenance. In short, he contended (p.33) that

            “The fact that in the 1995 amendments such orders remain maintenance orders for the purposes of the Child Support Act (rather than the relevant section of the 1991 Act being deleted) indicate that they should be taken into account by the CSA.”

11.       He went on to contend (p.34) that the appropriate way for the school fee payments to be taken into account would be by offsetting them against the maintenance calculation sum.

12.       So far as material to that ground of appeal, the Second Tribunal’s reasoning was as follows. First, the Tribunal held that it had no jurisdiction to deal with this contention in so far as it amounted to a challenge to the amount of the maintenance calculation, because the amount of the maintenance calculation had been finally determined (subject to any decision made on supersession) by the First Tribunal’s decision. Secondly, the Second Tribunal held that the contention that Mr R’s (and the trustees’) contribution to the school fees was required to be offset against the amount payable under the maintenance calculation was wrong, on the grounds which it had succinctly stated in its Decision Notice as follows:

            “The decision of [the First Tribunal] is final and binding on me. All s.8(7) of the Child Support Act 1991 allows for is for a “school fees order” to be made or still have effect notwithstanding the general ouster on court child maintenance orders where a child support assessment is in effect. But section 8(7) says nothing about whether or not the money paid under the school fees order should be taken into account against a child support liability (so as to reduce it), nor does any other part of child support law. So, even if I had jurisdiction on this issue (which I do not – and in any event Mr R said he does not disagree with the £92.86 pw assessment), I would have had to reject the argument to offset the school fee sums against the £92.86 as being absent any legislative authority to do so (Mr R having made it plain that he no longer pursued his variation under reg. 13 on the school fees point).”

13.       Mr R contends, in this appeal to the Upper Tribunal, that the Second Tribunal went wrong in law in deciding as it did in relation to his contention that sums which he pays under the order relating to school fees should be deducted from the child support maintenance calculation when determining how much he should pay by way of child support maintenance.

14.       There are in my judgment only two possible ways in which Mr R’s contention could be put. The first is by way of challenge to the correctness of the child support maintenance calculation which was made on 20 October 2010. However, it is in my judgment clear that any such challenge must fail. That is for the simple reason that the child support legislation lays down what is in effect a formula for how a maintenance calculation is to be made, and provides for grounds on which that primary calculation can be varied. The formula for the primary calculation does not provide for sums paid in respect of school fees, whether under a Court Order permitted by s.8(7) of the 1991 Act or otherwise, to be taken into account. It follows that they cannot be. It is irrelevant whether the sums paid under the Court Order are properly to be regarded as payments by way of maintenance. Whether or not they are, they cannot be taken into account in making the maintenance calculation because there is no provision saying that they can be. As regards variation, there is in reg. 13 of the Child Support (Variations) Regulations 2000 a specific variation ground in respect of what is described as the “maintenance element” of boarding school fees. As the First-tier Tribunal rightly held, that cannot have been applicable because the children are not boarders: see the express requirement in reg. 13(5) that the expression “boarding school fees” in reg. 13 applies only where the qualifying child is a boarder.

15.       The second possible way of putting Mr R’s contention, which is essentially the way in which he does put it, is that in determining, for the purposes of enforcement of the maintenance calculation, what sums are payable by him, he should in effect be credited, by means of an off-set, with sums paid under the Court Order. However, the Secretary of State is in my judgment right in submitting that the Second Tribunal had no jurisdiction to consider this contention. That is because a First-tier Tribunal has only the jurisdiction expressly given to it by statute, which in the case of child support matters is the jurisdiction given by section 20 of the Child Support Act 1991. That jurisdiction (see s.20(1)) is to determine appeals against decisions under sections 11 (maintenance calculations), 12 (default and interim maintenance decisions) and 17 (decisions superseding earlier decisions) of the 1991 Act. The question whether there should be an offset is a question arising in relation to the collection and enforcement of the amount payable under the maintenance calculation. Questions of collection and enforcement are for the discretion of the Secretary of State, and cannot be appealed to a First-tier Tribunal. That point was made by Mr (as he then was) Deputy Commissioner Jacobs in para. 25 of CCS/37/1997:

            “The decision whether or not to treat the payment of school fees as wholly or partly on account of child support maintenance is a matter for the Secretary of State and not, as the Commissioner recognised, for the child support officer, the tribunal or the Commissioner.”

16.       I refer by way of authority also to R(CS) 9/98, where the non-resident parent argued that mortgage payments which he had to make should be deducted from the amount of maintenance which he was liable to pay. Mr Commissioner Rice said at para. 7:

            “Unfortunately for the absent parent, the mortgage payments cannot be taken into account in arriving at the maintenance payments he has to make in respect of his children. The formula simply does not allow crediting of this nature. Moreover, at the end of the day crediting the absent parent with any part of the mortgage payments which he has made goes to enforcement of payment due under the maintenance assessment, and this is a matter for the Secretary of State alone (see CCS/12/1995). Although it might be thought that any benefits in kind receivable by the parent with care from the absent parent should be taken into account in arriving at the maintenance figure payable, that is not how the relevant legislation has dealt with the matter. The absent parent will be dependent on the discretion of the Secretary of State subject only to the right, for what it is worth, to apply for judicial review.”

17.       As the Second Tribunal had no jurisdiction to determine whether there should be an offset, it follows that I on appeal from the Second Tribunal also have no jurisdiction to do so. My comments in paragraphs 18 below onwards are therefore intended to be informative, but are without binding effect. Further, I would question lwhether the only possible means of challenge to a decision by the Secretary of State not to apply an offset would be by means of an application (in the Administrative Court) for judicial review. If the scheme of the legislation suggested, as contended by Mr R, that payments under the maintenance order ought to be offset against liability under the maintenance calculation, it may be that that is a point which could properly be taken in any proceedings which the Secretary of State might need to bring to enforce payment under the maintenance calculation.

18.       In para. 26 of CCS/37/1997 Mr Jacobs went on to comment as follows in relation to the Secretary of State’s discretion:

            “Section 8 of the Child Support Act 1991 provides for the extent to which the courts retain power to make orders for the payment of maintenance of a child. Section 8(7) preserves the power of the court to order payments to “meet some or all of the expenses incurred in the provision of instruction” at an educational establishment. The words “expenses incurred in the provision of instruction” are very broad and cover the maintenance of the child while boarding. This subsection authorises the court to make provision that is additional to any child support maintenance for which the absent parent is liable. It is difficult to understand how a payment under a court order that is by definition additional to a payment of child support maintenance could be regarded as if it were, in part at least, a payment of child support maintenance. Moreover, as regards any overlap that is considered to arise between payments under a court order and payments of child support maintenance, a judge making an order under section 8(7) is likely to have had regard, in fixing the amount of the order, to the amount of any existing liability to pay child support maintenance.”

19.       I note that Mr Jacobs in fact slightly misquoted from section 8(7). The relevant words in s.8(7) are in fact: “……the expenses incurred in connection with the provision of instruction or training”, thus making it even clearer that even the part of school fees attributable to maintenance at a boarding school can be covered by an order within s.8(7): see NS v SSWP [2013] UKUT 0252 (AAC). With that minor qualification, I agree with what Mr Deputy Commissioner Jacobs there said.

20.       To put the matter in my own words, s.8(1) of the 1991 Act forbids the making of a child maintenance order where a child support maintenance calculation could be made under the Act, save in specified cases, one of which is the case specified in s.8(7) of an order in respect of school fees, which may of course include sums attributable to the cost of maintenance of the child while at the school. It is further provided by s.4(10) of the 1991 Act, when read with section 18(6) of the Child Support Act 1995, that although, generally, a child support maintenance calculation cannot be made within one year of the making of a maintenance order, that is not so if the maintenance order is one made in the circumstances specified in section 8(7). Further, there is specific provision, in reg. 13 of the Child Support (Variations) Regulations 2000 for school fees to be taken into account in determining the amount of child support maintenance, but only where they relate to the maintenance element of boarding school fees. In addition, section 41C of the 1991 Act and regulations made thereunder expressly provide for offsetting of certain payments by the non-resident parent in respect of property which is the qualifying child’s home, but do not provide for offsetting of school fees paid by a non-resident parent.

21.       In agreement with Mr Jacobs, the clear implication of all that is in my view that the liability under a maintenance order permitted by section 8(7) is additional to, and therefore does not fall to be offset against, liability under a child support maintenance calculation. The exception is in relation to the “maintenance element” of boarding school fees, which can be taken into account by way of variation of the maintenance calculation. The fact that an order falling within section 8(7) is, as held by the Court of Appeal in Secretary of State v Foster R(CS) 1/01, properly described as a “maintenance order” within the meaning of section 4(10), in no way affects that conclusion, which must in my view depend not on the proper description (for the purposes of section 4(10)) of an order within s.8(7) but on the structure and content of the legislation, looked at as a whole.

22.       Mr R rightly points out that, contrary to the assumption made by Mr Jacobs in the last sentence of para. 26 of his decision, in this case the maintenance order was made before the child support maintenance calculation. It would, however, have  been apparent in the County Court proceedings that the potential for Mrs R to apply for child support maintenance existed. And as I have said, the structure of the legislation contemplates that (save in respect of the maintenance element of boarding school fees) the liability under a maintenance order within section 8(7) will be additional to liability under a maintenance calculation. The Secretary of State could further legitimately take the view that even if there were any element of “double counting” as between the County Court Order and the maintenance calculation, the only proper way of reconciling them would be for Mr R to apply to the County Court for a variation of the maintenance order.

23.       An additional consideration pointing strongly in the same direction – i.e. against any offsetting - seems to me to be this. If the children were attending a non fee-paying school, the child support maintenance calculation would be the same as it presently is. Mr R’s contention that his (and his family trust’s) 75% share of the school fees should be offset against the maintenance calculation is therefore in effect that (save to the extent that the 75% share of the fees exceeds the amount of the maintenance calculation) his liability in respect of the children should be no greater than it would have been if they were at a non fee-paying school. If (for the sake of argument) a 75% share of the school fees had been equal to the amount of the maintenance calculation, his total liability would have been no greater than if the children had been at a non fee-paying school. As a matter of common sense, that surely cannot have been the intention of the County Court, but if it was, then he could presumably apply to the County Court for a variation of its order.

24.       I would wish to conclude by acknowledging the considerable assistance which I have gained from the very helpful written submission by Mrs Jennie Tarver on behalf of the Secretary of State.

Charles Turnbull

Judge of the Upper Tribunal

30 April 2014