Tony Stacey v Lucy McNicholas

Schedule 1 to the Children Act 1989 permits a court to order capital provision for a child’s housing. That jurisdiction is not excluded merely because the Child Support Agency has jurisdiction to assess periodical child support. It extends to reasonable rent incurred before the housing capital is paid, where the rent is part of the child’s housing need.

The court may use one or more lump sums, including quantified or continuing monthly sums, provided the order is genuinely directed to housing provision and does not disguise maintenance or circumvent the statutory scheme. An appeal court reviewing such an order must ask whether it was wrong or affected by serious procedural irregularity. A discretionary order will stand unless no reasonable judge could have made it.

The father appealed against an order made by HHJ Reardon in proceedings under Schedule 1 to the Children Act 1989. The order required him to pay a lump sum for rent incurred while a previously ordered housing fund remained unpaid, followed by monthly lump sums until that fund was paid.

The father argued that the payments were periodical maintenance in disguise and were prohibited by section 8(3) of the Child Support Act 1991. Permission to appeal was limited to jurisdiction and to whether the payments could properly cover rent incurred before the housing fund became payable. The central issue was whether housing costs pending payment of capital provision fell within the court’s Schedule 1 jurisdiction or within the statutory prohibition on additional maintenance orders.

1. Appeal dismissed. The order was within the court’s jurisdiction, and HHJ Reardon had exercised her discretion properly.
2. Under rule 30.12 of the Family Procedure Rules 2010, the appeal was by way of review. The relevant questions were whether the decision was wrong or resulted from serious procedural or other irregularity. No procedural irregularity was alleged. If there had been no jurisdiction, the appeal would have succeeded; otherwise the discretionary order could be disturbed only if no reasonable judge properly directing herself could have made it.
3. Schedule 1 permitted a lump sum for the child’s benefit and for liabilities or expenses reasonably incurred in maintaining the child before the order. The court had jurisdiction to provide a capital housing fund for the child and the parent with care. It would be illogical to recognise that jurisdiction while excluding reasonable rent incurred before the property was acquired or the capital paid.
4. The prohibition in section 8(3) of the Child Support Act 1991 prevented a disguised maintenance top-up, as explained in Dickson v Rennie. It did not prevent a genuine capital award directed to housing. Past rent could be covered by a crystallised lump sum. A series of monthly lump sums could also be justified where that was the only practical way to meet the housing need, although the judge regarded that issue as more difficult and drew support from R v R (Lump Sum Repayments).
5. The father had accepted the overall housing quantum and had not paid the capital. The mother therefore continued to incur rent to house the child. The father could not benefit from the delay in making the capital payment. The backdated element was also within the judge’s discretion, notwithstanding that it might have been raised at the earlier hearing.

• High Court (Family Division): appeal from the order of HHJ Reardon made in the Central Family Court on 21 December 2021. Limited permission to appeal was granted by Sir Jonathan Cohen on 14 July 2022. The appeal was dismissed.
• Central Family Court: HHJ Reardon ordered payment of rent-related lump sums and costs pending payment of the housing fund.