[2024] UKUT 259 (AAC)

Section 28F(1) of the Child Support Act 1991 permits the Secretary of State to agree to a variation to a child maintenance calculation if it falls within a case in Part 1 of Schedule B to the Act or in regulations and the Secretary of State agrees that it would be just and equitable to agree to the variation.

Paragraph 2 of Schedule 4B provides for a special expenses variation of a variety of descriptions to be prescribed by variation. Paragraph 2(3) provides:

“(3)

In prescribing descriptions of expenses for the purposes of this paragraph, the Secretary of State may, in particular, make provision with respect to –

… c) debts of a prescribed description incurred, before the non-resident parent became a non-resident parent in relation to a child with respect to whom the maintenance calculation has been applied for:

(i)

For the joint benefit of both parents; …

… e) the cost to the non-resident parent of making payments in relation to a mortgage on the house he and the person with care shared, if he no longer has an interest in it, and she and a child in relation to whom the application for a maintenance calculation has been made still live there.”

The descriptions of special expenses variations are found in the Child Support Maintenance Calculations Regulations 2012. For the purpose of this appeal the relevant provisions are:

“65 Prior debts

(1)

Subject to the following paragraphs of this regulation and regulation 68 (thresholds), the repayment of debts to which paragraph (2) applies constitutes special expenses for the purposes of paragraph 2(2) of Schedule 4B to the 1991 Act where those debts were incurred—

(a)

before the non-resident parent became a non-resident parent in relation to the qualifying child; and

(b)

at the time when the non-resident parent and the person with care in relation to the child referred to in sub-paragraph (a) were a couple.

(2)

This paragraph applies to debts incurred—

(a)

for the joint benefit of the non-resident parent and the person with care;

(b)

for the benefit of the person with care where the non-resident parent remains legally liable to repay the whole or part of the debt; …

(3)

Paragraph (1) does not apply to repayment of—

(a)

a debt which would otherwise fall within paragraph (1) where the non-resident parent has retained for the non-resident parent's own use and benefit the asset in connection with the purchase of which the debt was incurred; …

(h)

amounts payable by the non-resident parent under a mortgage or loan taken out on the security of any property, except where that mortgage or loan was taken out to facilitate the purchase of, or to pay for repairs or improvements to, any property which was, and continues to be, the home of the person with care and any qualifying child;…”

67 Payments in respect of certain mortgages, loans or insurance policies

(1)

Subject to regulation 68 (thresholds), the payments to which paragraph (2) applies constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the 1991 Act.

(2)

This paragraph applies to payments, whether made to the mortgagee, lender, insurer or the person with care—

(a)

in respect of a mortgage or a loan from a qualifying lender where—

(i)

the mortgage or loan was taken out to facilitate the purchase of, or repairs or improvements to, a property (“the property”) by a person other than the non-resident parent;

(ii)

the payments are not made under a debt incurred by the non-resident parent and do not arise out of any other legal liability of the non-resident parent for the period in respect of which the variation is applied for;

(iii)

the property was the home of the applicant and the person with care when they were a couple and remains the home of the person with care and the qualifying child; and

(iv)

the non-resident parent has no legal or equitable interest in and no charge or right to have a charge over the property; …”