[2023] UKUT 238 (AAC)

I doubt whether answering that question is a matter for me.

It would be different if my reading of regulation 69(3) led to an absurdity, but it does not. The legislator has decided to identify two cases and treat them differently. Provided she has done so with sufficient clarity (which, in my judgment, she has) then she is not also obliged to satisfy the intellectual curiosity of judges. I note that Judge Jacobs’ commentary does not seek to explain why regulation 69(3) is as it is.

However, and in full realisation that I may be in territory on which angels would fear to tread, I do not find it difficult to see reasons for treating those non-resident parents who declare that they have no unearned income differently from those who declare that they have some. The exception created by the “is to be treated as nil” test greatly increases administrative convenience in circumstances where it is unlikely to undermine the accuracy of the determination.

People with no unearned income are likely to form the overwhelming majority of non-resident parents. Most people do not own rental properties or receive dividends from shares. The most recent statistics state that, although 77% of UK residents have savings accounts, 9% have no savings, and over 40% of people do not have sufficient savings to support themselves for a month in the absence of income. Even if they have small amounts of interest on savings, so that a nil declaration on the self-assessment return may not technically be correct, the omission is immaterial. Such savings are unlikely to attract tax because of the personal savings allowance of £1,000 (or £500 for higher rate taxpayers). They will also not come anywhere near reaching the £2,500 annual threshold required by regulation 69(1). Except among landlords and those who own shares, unearned income of at least £2,500 a year is rare.

In those circumstances, treating those non-resident parents who do not declare unearned income as having no unearned income greatly increases administrative convenience.

It also promotes fairness by preventing those non-resident parents who have no unearned income from having to prove a negative. Those who have unearned income should be able to produce documentary evidence of the amount. Those who have none will, by definition, have no such documents. The concluding words of regulation 69(3), have the effect of that non-resident parents who say they have no unearned income are not to be vexed by the need to prove otherwise unless the circumstances of the case bring it within regulation 69(5).