SM v SSWP & Anor (CSM)

Payments for school-related extras are excluded by section 8(7) of the Child Support Act 1991 only where they are directly connected with the child’s instruction or training. Whether an item has that connection is fact-specific. Its optional or extra-curricular character may be relevant.

Extras not so connected may be considered when deciding whether a variation is just and equitable. They may also be voluntary payments if they meet the statutory conditions. A tribunal must determine a properly raised variation ground, including contact costs, and must consider relevant evidence. Failure by the Agency to provide relevant documents may breach natural justice and amount to a material error of law.

The father appealed against a First-tier Tribunal decision which upheld a variation increasing his child-support liability by reference to his assets. He contended that his payments for his son’s school extras, other expenses and contact travel should have been considered. He had also submitted a voluntary-payments declaration and supporting school invoices to the Agency.

The tribunal treated the variation as just and equitable. It found that the father had not produced invoices in the mother’s name, did not decide a contact-costs variation issue, and treated circumstances after 8 April 2014 as outside its jurisdiction. The Agency had omitted relevant invoices from the tribunal bundle.

The appeal concerned the classification of school extras under section 8(7), their relevance to the just-and-equitable discretion, voluntary payments, contact costs, procedural fairness, and the relevant date on an appeal against a revised decision.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and remitted to a differently constituted tribunal for a complete rehearing.

2. The expression “in connection with” instruction or training in section 8(7) of the Child Support Act 1991 requires a direct, rather than indirect, connection. Whether a particular extra has that connection is fact-sensitive. Its optional or extra-curricular nature is a relevant consideration. The tribunal erred by failing to determine, item by item, which payments were directly connected with education and which were not.

3. Extras not directly connected with instruction or training may be considered in deciding whether a variation is just and equitable. The discretion is broad but must be exercised within the child-support scheme, sections 28E and 28F, and regulation 21 of the Child Support (Variation) Regulations 2000. Qualifying voluntary payments under section 28J were also relevant to that assessment. The tribunal materially erred by failing to determine whether any had been made and their effect on arrears.

4. Contact costs are a ground for variation under regulation 11. The father’s letter raised that issue in substance. The tribunal therefore erred by making no findings and reaching no decision on it.

5. The Agency’s failure to supply the school invoices, despite its duty under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, deprived the tribunal of evidence central to its adverse finding against the father. This breached natural justice and independently justified allowing the appeal.

6. For the rehearing, the relevant circumstances are those obtaining on 15 January 2014, the date of the original decision later revised. Later evidence may be used only insofar as it bears on those circumstances.

• Upper Tribunal (Administrative Appeals Chamber): allowed the father’s appeal, set aside the First-tier Tribunal decision for material legal errors, and remitted the case to a fresh tribunal.
• First-tier Tribunal: sitting in Poole, dismissed the father’s appeal against the June 2014 revised maintenance decision and upheld the assets variation.