14th February 2017
Appeal considering whether a liability to pay child maintenance should end when a child begins full time employment
Facts:
- The appellant is a non-resident parent who was liable to be assessed for child support maintenance in respect of a qualifying child, K.
- Child benefit for K had remained in payment until K was 19, and the body administering child support maintenance (‘the agency’) had only terminated the appellant’s liability once child benefit was no longer paid.
- The appellant argued that K had been working full time since September 2014, and that if child benefit was being paid, it was an error. His obligation to pay should therefore have been terminated.
- The first tier tribunal confirmed the agency’s decision as child support liability is linked to the payment of child benefit and not the commencement of employment.
Held:
- JF v Secretary of State for Work and Pensions & DB (CSM) [2013] UKUT 209 (AAC) previously held that the phrase “payable” in paragraph 1A of Schedule 1 of the Child Support Maintenance Calculation Procedure Regulations 2000, which states “a person in respect of whom child benefit is payable”, meant “properly or lawfully payable.”
- Despite the legislative changes to Schedule 1 since JF (on 10 December 2012), the relevant definition of a child in relation ‘a person in respect of whom child benefit is payable’ remained in identical form. The conditions from JF therefore continue to apply.
- The tribunal fell into error of law in failing to investigate the father’s contention that K was working, as it was relevant under the Child Benefit regulations.
- Where there is a suggestion, which is not fanciful, that child benefit was not properly or lawfully payable, it should be investigated by a child support tribunal. This was not a simple matter, however.
- The District Tribunal Judge was invited to consider joining HMRC as a party, so they could make an informed decision as to the period for which child benefit was properly and lawfully payable.
