VSN v Secretary of State for Work and Pensions & Anor

A parent’s application for a statutory child-support maintenance calculation is barred by a post-2003 maintenance order only during the first year for which that order has been in force. A financial-relief mirror order made following an overseas divorce was a maintenance order for this purpose.

Once a valid application is made and the Secretary of State has jurisdiction, the Child Support Act 1991 requires a maintenance calculation. The First-tier Tribunal decides the validity and amount of that calculation. It does not decide the effect which the calculation has on a pre-existing foreign or Family Court order.

The Mother appealed a maintenance calculation under which the Father, the non-resident parent, was required to pay £105.05 weekly for two children. She contended that a Hong Kong child-maintenance order, replicated by a 2015 English Family Court mirror order, prevented the Secretary of State from making the calculation.

The First-tier Tribunal rejected the appeal and confirmed the calculation. The Mother sought permission to appeal to the Upper Tribunal, challenging both factual and procedural findings and the conclusion that the mirror order was a maintenance order made under Part III of the Matrimonial and Family Proceedings Act 1984.

The central issues were whether the Father’s application was valid and whether the status or continuing effect of the mirror order could invalidate the statutory maintenance calculation.

1. Permission to appeal was refused. The factual and procedural challenges disclosed no realistic prospect of success. Assessment of the evidence was for the First-tier Tribunal, which had adequate material and acted fairly.

2. The mirror order was made under Part III of the Matrimonial and Family Proceedings Act 1984. The application, the order’s terms and the Family Court’s dismissal of other Part III claims showed that it was an order for financial relief following an overseas divorce. It was therefore a maintenance order within section 8(11) of the Child Support Act 1991.

3. Section 4(10) prevented an application only while such a post-2003 maintenance order had been in force for less than one year. The Father applied more than a year after the mirror order. He was accordingly entitled to apply for a maintenance calculation.

4. The First-tier Tribunal had correctly found that the Secretary of State had jurisdiction. The Upper Tribunal held, however, that section 8(3) concerned the making, variation or revival of orders after a calculation; it did not determine whether an existing order survived a later calculation. That question belonged to the Family Court or, where relevant, the Hong Kong court. It could not affect the validity or amount of the calculation under appeal.

5. Independently, the Mother’s case could not succeed whichever characterisation of the mirror order were adopted. If it was a maintenance order, the one-year restriction had expired. If it was not, section 4(10) imposed no restriction on the Father’s application. Once the Secretary of State had jurisdiction and received a valid application, the statutory scheme required a maintenance calculation.

6. The judge observed that a decision refusing permission to appeal creates no binding precedent, although it may be persuasive.

• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal refused in [2022] UKUT 138 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): On 25 September 2019, dismissed the Mother’s appeal and confirmed the Secretary of State’s maintenance calculation.
• Secretary of State for Work and Pensions: Notified the maintenance calculation on 8 December 2017.