[2025] UKUT 027 (AAC)

The Father’s grounds of appeal were wide ranging. I granted permission to appeal. In my grant of permission I said:

“C. Why I have given permission to appeal

5.

I am very sorry to see this dispute again. In my decision allowing the previous appeal to the Upper Tribunal in SC228/20/00326 I described this as an appeal with a “long and unhappy history”. Seeing it come around a second time, its history can only be said to be longer and yet more unhappy.

6.

As with the previous appeal to the Upper Tribunal, much of what [the Father] says in his criticisms of the First-tier Tribunal’s decisions of 17 October 2023 (which relates to two decisions of the Secretary of State, dated 13 January 2020 and 20 July 2023) amounts simply to a robust and heartfelt disagreement with the judge’s assessment of the evidence her findings of fact and a disagreement with the decision that [the Father] was responsible for a lesser proportion of the children’s day to day care than [the Mother]. That on its own is insufficient to warrant permission to appeal to the Upper Tribunal.

7.

However, I am satisfied that it is arguable with a realistic (as opposed to fanciful) prospect of success that the judge who heard [the Mother]’s appeal in SC228/20/00326 and [the Father]’s appeal in SC337/23/00628 erred in law because she may not have applied the correct legal tests, may not have made adequate findings of fact to support her decision, or may not have explained her decision with adequate clarity.

8.

While in her statement of reasons under the heading “Findings of Fact” the judge summarised examples of the evidence she heard from the father and mother about the care that the children receive from each of them, she may not have explained with adequate clarity what evidence she accepted and what she rejected (for example, both parents claim to have paid for their daughter’s gymnastics classes), or why.

9.

Given that the examples given on the face of it indicate that they provide remarkably similar care to the children when the children are living with them, the judge may not have explained with adequate clarity why she decided that [the Mother] “provides more in terms of both the practical and emotional needs of the children” (see paragraph 12 of the statement of reasons).

10.

The First-tier Tribunal was considering two decisions which were made over 3 years apart. As such it was incumbent on it to make findings of fact about the care provided by the mother and father at different points in time. To the extent that it did make findings of fact, it is perhaps insufficiently clear whether these facts applied at the relevant time for the first decision, at the relevant time for the second decision, or both.

11.

[The Father] has said that the First-tier Tribunal’s decision in relation to SC337/23/00628 was erroneous because the judge recorded a liability to pay for their daughter, while the appeal was about liability to pay for their son. The decision of the Secretary of State under appeal in SC337/23/00618 was its maintenance calculation supersession decision of 20 July 2023 removing the son from the maintenance calculation as a qualifying child, and calculating the father’s liability to pay maintenance in respect of the daughter (who remained a qualifying child) from 13 March 2022 at £43.94 per week. That decision was appealed to the First-tier Tribunal by [the Mother] because she considered that she should receive maintenance payments in respect of their son.

12.

What the judge said in relation to that decision is very limited indeed:

“Regarding the second appeal, I found on the totality of the evidence before me that [the Father] is liable to pay the sum of £42.71 per week child maintenance in respect of [the daughter]”.

13.

This explanation is arguably inadequate to explain her decision-making.”

I directed the parties to make submissions on the appeals.

Ms Holly Taylor of the Decision Making and Appeals section of the Department for Work and Pensions provided a clear submission on behalf of the Secretary of State supporting the appeal. She adopted the reasons I gave in my grant of permission.

The Second Respondent opposed the appeal. She maintained that the Tribunal had decided the appeals fairly and explained them clearly. Much of what she says amounts to the giving of new evidence about the day to day care that she and the Father provide to the children now. She has attached evidence of payments made for school meals and gymnastics activities in respect of periods falling after the 2020 CMS Decision. None of this is relevant to the issues I must decide in this appeal.

The Appellant maintained his position that the Tribunal had erred materially in law. He asked that I set aside the FtT Decision. While he invited me to exercise my discretion to remake the decision, he said that he was content for the matter to be remitted to the First-tier Tribunal for rehearing if necessary and he would be willing to attend to give evidence.