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Neutral Citation Number:	2014 UKUT 82 AAC
Reported Number:
File Number:	CCS 2717 2013
Appellant:	SJ
Respondent:	Secretary for Work and Pensions and CMcN (CSM)
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	19/02/2014
Date Added:	05/03/2014
Main Category:	Child support
Main Subcategory:	maintenance assessments/calculations
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 32. Child support – jurisdiction – payment made under private capitalised maintenance agreement – subsequent county court consent order confirming private accord – private agreement not a “maintenance agreement” and consent order not a “maintenance order” – Child Support Act 1991, section 8 The appellant was the father, and non-resident parent, of a boy who lived with the mother. In 2007 the appellant agreed to make a capital transfer of over £50,000 to the mother consisting of a payment of some £10,000 and the release of a charge of over £40,000 on the former family home. He did so on the understanding that she would not apply for maintenance under the Child Support Act 1991 until July 2017 – they each signed a contract to that effect. But, despite this agreement, the mother applied to the Child Support Agency (CSA) in December 2008 and it made a maintenance award which took no account of the capital transfer. The appellant’s initial appeal was dismissed by the First-tier Tribunal (F-tT). Following a review by the CSA the appellant applied to the county court which embodied the private agreement in a consent order in 2012. A second F tT upheld the CSA’s decision to refuse to supersede the original maintenance calculation. It was argued on the appellant’s behalf before the Upper Tribunal (UT) that the second F tT had erred in law by failing to take into account the original capital agreement, and the county court’s endorsement of that agreement, and also by failing to exercise any discretion and to give adequate reasons for its decision. Held, dismissing the appeal, that: 1. the capital transfer agreed between the parents was not a “maintenance agreement” within section 9 of the Child Support Act 1991; it was not an “agreement for the making, or for securing the making, of periodical payments by way of maintenance”. Nor was there anything in section 4 of the 1991 Act to prevent the mother from making an application for child support maintenance (paragraphs 19 to 25); 2. neither the informal agreement nor the consent order could affect the calculation of the appellant’s child support liability. The original capital transfer was not a maintenance agreement under the 1991 Act, the consent order was not a circumstance obtaining at the time of the Secretary of State’s decision and the consent order was in the nature of a lump sum order; it was not a “maintenance order” for the purposes of section 8 (paragraphs 26 to 35); 3. the F-tT had no discretionary power to disregard statutory provisions which may appear to result in injustice or unfairness under either the 1991 Act or the Tribunals, Courts and Enforcement Act 2007 (paragraph 36); 4. the F-tT’s reasons for its decision might have been more expansive but were generally adequate when read in context, including the proceedings before the first F-tT and the various directions and submissions on the appeal before the second tribunal (paragraphs 37 to 40).
Decision(s) to Download:	[2014] AACR 32bv.doc