R(CS) 9/98

Mr. D. G. Rice	CCS/8066/1995
10.10.96
Maintenance assessment - absent parent’s payments towards parent with care’s mortgage and children’s pocket money - whether to be taken into account
The absent parent was required under a mortgage agreement to pay £110 per month in respect of the mortgage on the property where the parent with care and the qualifying children resided.  He also paid the two children £20 per week pocket money.  He appealed to the Commissioner against the decision of a child support appeal tribunal, contending that in determining his appeal against the maintenance assessment, the tribunal had failed to take account of his payments towards the mortgage and by way of pocket money.
Held, dismissing the appeal, that:
1.	the mortgage payments and pocket money could not be taken into account in the maintenance assessment because the formula simply did not allow crediting of that nature;
2.	crediting the absent parent with any part of the mortgage payments or pocket money he had paid went to enforcement of payment due under the maintenance assessment, and that was a matter for the discretion of the Secretary of State alone, subject only to the right to apply for judicial review.

DECISION OF THE CHILD SUPPORT COMMISSIONER
1. 	For the reasons set out below, the decision of the child support appeal tribunal given on 2 May 1995 is not erroneous in point of law, and accordingly this appeal fails.
2. 	This is an appeal by the absent parent, brought with my leave, against the decision of the child support appeal tribunal of 2 May 1995. The absent parent asked for an oral hearing, a request which was acceded to. At that hearing the absent parent was present, but unrepresented, whilst the child support officer appeared by Mr. L. Scoon of the Solicitor’s Office of the Department of Social Security. The person with care, the mother of the relevant children, who for convenience will be called “the parent with care”, was neither present nor represented.
3. 	On 20 August 1993 the parent with care applied for child support maintenance. On 12 May 1994 the child support officer decided that the absent parent was liable to pay in respect of his children Rashid and Rashim child support maintenance in the sum of £80.18 per week from 14 May 1994. On 26 July 1994 a second child support officer reviewed the original award, and decided that the absent parent was liable to pay £74.74. In due course, the absent parent appealed to the tribunal, who allowed the appeal in part. They decided that the matter should be referred back to the Secretary of State for the child support officer to carry out a review, in which the absent parent’s eligible housing costs should be calculated up to June 1994 by reference to his rented property, and thereafter by reference to his mortgaged property.
4. 	The absent parent, whilst not challenging the tribunal’s decision so far as it went, complains that the tribunal failed to take into account in addition two crucial matters, namely:
(i)	the fact that he was required under a mortgage agreement which he had entered into to pay £110 per month in respect of the mortgage on the property where the parent with care and the children resided, and
(ii)	the further fact that he paid to the two children some £20 per week by way of pocket money.
5. 	As regards the mortgage payments, this obligation disappeared when the mortgage was paid off, and the property transferred in March 1995 into the name of the parent with care. Accordingly, there is no continuing commitment in this respect, but arrears of maintenance have built up, now amounting to £3,096.13, and the absent parent contends that this figure should have been reduced by the mortgage payments he made up to the period when the obligation ceased.
6. 	I see the force of the absent parent’s contention. During the relevant period, he was conferring on the parent with care a benefit in kind, and no part of it was taken into account in reduction of his obligation to pay maintenance in respect of his children. However it would seem that on no footing could the entirety of each mortgage payment be attributable to the absent parent’s obligation to maintain his children, some part must relate to his ex‑wife.
7. 	Unfortunately for the absent parent, the mortgage payments cannot be taken into account in arriving at the maintenance payments he has to make in respect of his children. The formula simply does not allow crediting of this nature. Moreover, at the end of the day crediting the absent parent with any part of the mortgage payments he has made goes to enforcement of payment due under the maintenance assessment, and this is a matter for the Secretary of State alone (see CCS/12/1995). Although it might be thought that any benefits in kind receivable by the parent with care from the absent parent should be taken into account in arriving at the maintenance figure payable, this is not how the relevant legislation has dealt with the matter. The absent parent will be dependent upon the discretion of the Secretary of State subject only to the right, for what it is worth, to apply for judicial review. I say “for what it is worth” because the absent parent might not be entitled to legal aid, and any appeal might expose him to horrendous costs.
8. 	As regards the absent parent’s contention that he should be given credit for the pocket money which he gives to his two sons, unfortunately for him this is again something which is not taken into account in the formula. All he can do is to seek some concession from the Secretary of State, but that is not a matter which falls within my jurisdiction.
9. 	It follows from what has been said above that the tribunal did not err in point of law, and accordingly I have no option but to dismiss this appeal.

Date: 10 October 1996	(signed) Mr. D. G. Rice
	Commissioner