[2023] UKUT 238 (AAC)

It has been suggested that any injustice to qualifying children that might result from First Interpretation could be prevented through the use of two remedies that are available to the person with care, namely applying for a variation and seeking different information from the Secretary of State.

In DB v CMEC (CSM) [2011] UKUT 202 (AAC), the Secretary of State submitted to Judge Howell QC that the remedy for any injustice to the qualifying children resulting from HMRC holding incorrect information about (in that case) the non-resident parent’s self-employed income would be for the person with care to apply for a departure direction—now, a variation—on what was known as the “lifestyle” ground (i.e., that the maintenance calculation was based upon a level of income which was substantially lower that the level of income required to support the non-resident parent’s overall lifestyle). That suggestion received limited endorsement from the Court of Appeal in Gray, although the actual decisions in DB and Gray had the effect that applying for a lifestyle variation was unnecessary under previous schemes.

Under the 2012 Regulations, such an application is now impossible. The 2012 scheme does allow for the possibility of a Lifestyle variation. An “additional income” variation (see para 37 above) is only possible if a non-resident parent:

has unearned income (i.e., as in this appeal);

has assets exceeding a prescribed value;

has been assessed as liable to pay child support maintenance on the flat rate or the nil rate but nevertheless has a gross weekly income; or