Dickson v Rennie

The Child Support Act 1991 creates a clear division between child-support calculations and the court’s Schedule 1 jurisdiction. Where a maintenance calculation is in force, the court’s top-up jurisdiction is unavailable unless the Child Maintenance Service has assessed gross weekly income at or above the prescribed threshold, or made a maximum maintenance calculation. The court cannot use a lump sum to recover maintenance excluded by the statutory scheme or to disguise a periodical-payment claim. It may, however, make a lump sum order under Schedule 1 to fund proportionate and reasonable litigation intended to secure a higher level of underlying maintenance.

The parties were the parents of a child for whom the court had made financial provision under Schedule 1 to the Children Act 1989 in 2007, including periodical payments. The father later obtained a maintenance calculation from the Child Maintenance Service based on his United Kingdom income. The mother challenged the Service’s jurisdiction and income assessment before the First-tier Tribunal.

She applied to the Family Division for restoration of the former maintenance order, a lump sum representing alleged maintenance shortfalls, and a lump sum to fund her tribunal appeal. The central issues were the effect of the statutory scheme on the earlier order, the availability of the section 8(6) top-up jurisdiction, and the extent of the court’s power to make lump sum orders.

1. Effect of the statutory scheme. Sections 8 and 10 of the Child Support Act 1991 establish a barrier between child-support calculations and the court’s powers under Schedule 1 to the Children Act 1989. Once a maintenance calculation became effective, the earlier order ceased to have effect so far as it concerned periodical payments for the child, subject to the mother’s statutory appeal.
2. Top-up jurisdiction. The court rejected the submission that it could determine for itself whether the father’s true worldwide income exceeded the statutory threshold. Although section 8(6)(b) refers to gross weekly income without expressly saying that it must be assessed by the Secretary of State or the Child Maintenance Service, the statutory scheme requires that income to be the income assessed or calculated by the Service. Section 8(6) provides a top-up jurisdiction, not an appeal or challenge to the Service’s calculation. The jurisdiction was therefore unavailable because the Service had assessed income below £3,000 per week and had not made a maximum maintenance calculation.
3. Lump sum claims. The power under Schedule 1 to make lump sum orders remained available and was not directly removed by the child-support scheme. It could not, however, be used to recover the difference between the former court-ordered maintenance and the Service’s calculation. That would circumvent sections 8 and 10 by treating maintenance as a lump sum.
4. Funding the tribunal appeal. A lump sum could properly fund proportionate and reasonable litigation intended to secure higher underlying maintenance. The court ordered £10,000 for that purpose, payable to the mother’s solicitors, subject to production of the final bill and repayment of any surplus.
5. All other applications were dismissed. The agreed or substantially agreed repair provision was also to be implemented, but the court made no order restoring the former maintenance liability.

First-instance decision. The judgment records that the mother had appealed the Child Maintenance Service’s jurisdiction and income assessment to the First-tier Tribunal, but that appeal had not yet been determined.