Key Facts
- •LM and NM jointly purchased a property and had a joint mortgage.
- •They separated in 2020, with LM and the child remaining in the property.
- •NM continued to pay half the mortgage.
- •The CMS varied NM's child support liability, allowing a special expenses variation for his mortgage payments.
- •LM appealed the CMS decision to the First-tier Tribunal (FtT), which dismissed her appeal.
- •LM appealed to the Upper Tribunal (UT).
Legal Principles
Section 28F(1) of the Child Support Act 1991 allows for child maintenance calculation variations if just and equitable.
Child Support Act 1991, Section 28F(1)
Schedule 4B, paragraph 2 of the Child Support Act 1991 provides for special expenses variations, including mortgage payments (paragraph 2(3)(e)).
Child Support Act 1991, Schedule 4B, paragraph 2
Regulations 65 and 67 of the Child Support Maintenance Calculation Regulations 2012 address special expenses variations concerning mortgages. Regulation 65 covers 'prior debts', while Regulation 67 covers payments where the non-resident parent has no interest in the property.
Child Support Maintenance Calculation Regulations 2012, Regulations 65 and 67
A tribunal cannot consider circumstances not obtaining at the date of the decision (Section 20(7) of the Child Support Act 1991).
Child Support Act 1991, Section 20(7)
In interpreting Regulation 65(3)(a), 'use and benefit' are distinct concepts. Retention of an asset for future benefit doesn't automatically equate to current use.
CCS/3674/2007 (Commissioner Williams)
Outcomes
The Upper Tribunal dismissed LM's appeal.
The FtT correctly applied Regulation 65 to the mortgage payments. NM's legal and equitable interest in the property didn't constitute 'use and benefit' under Regulation 65(3)(a) as he didn't live there. Regulation 67 didn't apply because the mortgage was jointly held.