When is a child a qualifying child and so within the jurisdiction of the Child Maintenance Service?
Recent figures released by the BBC suggest that the amount of uncollected child maintenance in Britain now exceeds £3.8 billion. An estimated 1.2 million parents with care of their children are currently owed child maintenance payments by former partners.
The figures are staggeringly high. All parents have a legal obligation to maintain their children. Whilst it is possible to reach an agreement on the amount of child maintenance to be paid, many separated parents have to look to the Child Maintenance Service for assistance in the calculation and collection of maintenance payments.
The Child Maintenance Service have jurisdiction to deal with child maintenance when the child is a ‘qualifying child.’
So, when is a child a qualifying child and so within the jurisdiction of the Child Maintenance Service?
A child under 16 is automatically a qualifying child. A child between 16 and 20 can however also be a qualifying child if they are in full time, non-advanced education or if child benefit is payable for them. This is subject to the condition that they are not, or have not been, married or in a civil partnership.
Full-time non-advanced education means exactly what it says on the tin. Child benefit is payable in respect of any child under 16 or under 20 if in approved education or training.
However, what may come as a surprise is that child benefit stops if the child (1) starts work for 24 hours or more per week and is no longer in full time, non-advanced education (2) starts an apprenticeship or traineeship, or (3) starts receiving state benefits in their own right.
The recent case of DJ v Secretary of State for Work and Pensions and TJ (CSM) (Child support – receipt of benefit) highlights the link between child benefit payments and the liability to pay child support. The issue for the First-tier Tribunal in this case was the date on which the father’s liability to pay child support for his daughter ended.
In this case the child, Katherine, was born on 10 June 1996. She lived with her mother and child support was paid by her father. Child benefit was in payment until September 2015 when she was 19 years old.
Katherine’s father argued that she had been in full time employment since September 2014. His argument was that if child benefit was being paid, it was being paid in error. The First-tier Tribunal upheld the initial decision of the Secretary of State for Work and Pensions and indicated that the rules linked the payment of child maintenance to the payment of child benefit and not the commencement of employment.
The father appealed to the Upper Tribunal. The Upper Tribunal held that the First-tier Tribunal decision had been made in error. A previous case (JF v Secretary of State for Work and Pensions & DB) had already determined that the word ‘payable’ in relation to child benefit means ‘properly or lawfully payable’. Therefore, if child benefit was being paid in error then the obligation to pay child maintenance should have ended earlier.
The case has been remitted back to the First-tier Tribunal for it to make findings as to whether child benefit paid was done so properly or lawfully.
It is worth giving some additional consideration to the term ‘payable.’ The question before the Upper Tribunal in the case of JF was what payable meant in the context of child benefit. The decision of the Upper Tribunal as discussed above, was that payable meant properly or lawfully payable. This means that if child benefit was not being paid but that it would have been proper or lawful for it to be paid then child maintenance is still due.
As outlined above, child benefit is payable in respect of any child under 16 or under 20 if in approved education or training. However, if either parent has an individual income of over £50,000 then a tax charge known as the ‘High Income Child Benefit Charge’ applies. Therefore, some parents take the view that they should stop receiving child benefit to avoid paying additional tax at the end of the financial year. Despite not being in receipt of child benefit, it is still properly or lawfully due and therefore child maintenance still requires to be paid.