When an agreement is made on separation or divorce for school fees to be paid by a parent, should the payment of the fees be taken into account by the Child Support Agency (CSA) when calculating that person’s child support liability?
It might seem that where such an agreement is reached by a separating or divorcing couple, the obvious answer would be ‘yes’. However, the guidance on this issue, contained in the CSA’s ‘Child Support Guide Volume 7’, is unclear and has even been described as potentially contradictory. It does, however, give the CSA discretion in the matter.
The CSA is required to use its discretion depending on the circumstances of the case. Clearly if the parent with care (PWC) of the children was not on benefits and agreed to the offset, it would be accepted. However, if the PWC did not agree the offset, it is open for the CSA to rule as it sees fit.
In a recent case, the CSA was challenged by a father who paid school fees for his children and offset them against the child support payments he made to their mother. The mother did not accept that an offset should apply and the CSA’s reaction was to treat the matter as essentially closed, with the father therefore being liable for the payment of support as assessed without any offset for the fees. The CSA sought a liability order to force the husband to pay the alleged shortfall in maintenance.
He went to court to oppose the order and showed that the CSA had effectively denied him the opportunity to make his case that the school fees payments were made in lieu of child support. It was clear from contemporaneous correspondence that the CSA had not understood the extent of its discretion and had not made a proper review of all the relevant circumstances.
A judicial review of the decision was therefore agreed to allow the father to make his case.
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