[2023] UKUT 238 (AAC)

I have no doubts that the decision in SB was correct. I accept that, at least in the context of determining the level of "historic income" for the purposes of calculating a non-resident parent's "gross weekly income", the "HMRC figure" is of much greater significance than was the case under either of the two previous child support schemes.

Nevertheless, I derive little assistance from that decision. In particular, though it is impossible to disagree with the passage quoted at paragraph 63 above, that passage is in very general terms. Moreover it refers to the HMRC supplying the “HMRC figure”—which is a defined phrase and refers to the figure used in the main calculation (see paragraph 64 above)—and not to the undefined “information provided by HMRC” that provides (at least) a reference point for the determination required by regulation 69(3). All of which is unsurprising. SB was not an appeal about a variation but, rather, about the determination of “historic income” for the purposes of the main calculation.

Moreover, the general tenor of the decision in SB does not assist the Secretary of State. The appeal to the Upper Tribunal was allowed with the support of the Secretary of State. The Secretary of State’s position before the FTT—described by Judge Mitchell as being that, if the HMRC figure was wrong, “it was, in effect, tough luck”—was disapproved. Moreover, the Judge also held (albeit in a different context) that:

“34.

…As the Secretary of State’s argument implies, it would be absurd if he had to rely on income data that was clearly wrong, artificially inflating or deflating a parent’s child support maintenance liability.”