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(Queen's Bench Division, Administrative Court; Black J; 16 July 2010)
The parents had agreed pre-separation to educate their child privately and took out a policy to cover the expense. However when the policy matured, it was not sufficient to cover the entire school fees. The father claimed that he had agreed on divorce to meet the remainder of the school fees in lieu of child maintenance. The mother applied to the CSA for child support, acknowledging that father had paid the school fees. The CSA assessed the amount due as £74.70 per week, without making any allowance for the school fee payments although the CSA did ask the mother if she was willing to have the school fee payments offset against child maintenance, to which she responded that she was not. Consequently the father was served with a notice of intention to apply for a liability order (arrears of £10,203.14). The CSA refused to allow the father to see the mother's response to enquiries about any school fees agreement on data protection grounds. The issue was whether the CSA had failed to exercise its discretion as to whether the school fees should be offset and denied the father a fair hearing.
The father's judicial review application was allowed. The Child Support Guide made it clear that the CSA had the discretion whether to offset child maintenance, based on the welfare of the child's particular circumstances, giving weight to the current view of the parent with care. There was an obligation on the CSA to seek evidence of the circumstances and to document its decision with relevant evidence. The CSA seemed to have been under the impression for most of the process that it could offset maintenance only if the parent with care agreed. The CSA should have made its own enquiries into the circumstances, and could not claim that the decision was justified because the father had not been addressing the key question of whether an agreement was reached with the mother that the school fees would be paid instead of child maintenance.
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