In the case of S vs. M [2022] EWHC 278 (Fam), the Honourable Judge Moor J dismissed F’s appeal against the lump sum orders.

In proceedings under Schedule 1 to the Children Act 1989, the father (F) was ordered to provide a £400,000 housing fund by 29 December 2020. In December 2021, F was ordered to pay the mother’s (M’s) rent pending receipt of the housing fund. This comprised a lump sum of £42,500 by 12 January 2022 to cover M’s rent before the hearing and a series of lump sums of £2,500 per month from 17 December 2021 until the capital was paid. The judge distinguished between housing and maintenance provision. M was entitled to rent a property pending payment of the housing fund and that should be covered by F until he paid the capital.

Moor J dismissed F’s appeal against the lump sum orders. The court has jurisdiction to make lump sum orders to cover rent before a housing fund is paid. Lump sums cannot be used to provide for what is maintenance and should be used to meet capital expenditure of a singular nature, and not daily living expenses. However, a lump sum has been used to pay for debt which included historic mortgage costs.

Despite the statutory child maintenance scheme, the court retains jurisdiction to provide for a child’s housing costs via a capital sum. Such provision does not fall within the maintenance provisions where the CMS has exclusive jurisdiction. If the court has jurisdiction to provide a housing fund, it must have jurisdiction to provide for housing costs before the home is acquired. It would be “completely illogical” if one was not maintenance provision but the other was.

Moor J rejected the proposition that F should instead pay interest on the housing fund, because this would not cover the period up to the making of the order. Any interest accrues to the capital fund and reverts to the payer at the end of the settlement period and does not assist with rental payments.

Moor J dismissed F’s appeal against the judge’s decision to backdate the order to a date before the original order became payable (representing £15,000). The original judgment was given on 1 July 2020 and the rent was payable from then to November 2020.

The decision clarifies that lump sum orders can be used to meet rent in Schedule 1 cases.

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