[2024] UKUT 343 (AAC)

Child support is payable in respect of a “qualifying child”, which is defined in the legislation. The amount of child support is calculated on the basis of the NRP’s gross weekly income. Either the NRP’s ‘historic income’ or ‘current income’ is used to calculate the gross weekly income. There are complex rules governing this which I do not need to rehearse for the purpose of this appeal.

The Child Support Act 1991 (CSA) and the Child Support Maintenance Calculation Regulations 2012 (“the 2012 Regulations”) provide for the calculation of child support to be varied on specified grounds, and variation can reduce or increase the NRP’s liability. The grounds are specified in the 2012 Regulations. One of the grounds is “Diversion of income”, provided for in regulation 71, which applies where the NRP can control the amount of income they receive or the amount that is taken into account as their gross income and they unreasonable reduce that amount by diverting it to someone else or for some other purpose. Where a variation is agreed under regulation 71, the diverted income is taken into account as the NRP’s income.

A variation can be made following an application by the PWC, NRP or both. If the application is made before the child maintenance calculation is made, section 28A applies. The application need not be in writing unless the Secretary of State directs it and must state the grounds.

Section 28G allows an application for a variation to be made when a maintenance calculation is in force. The Child Support (Variations)(Modification of Statutory Provisions) Regulations 2000 modify sections 28A to 28F where an application for a variation is made under section 28G.

Section 28B (as modified in regard to section 28G applications) permits the Secretary of State to give preliminary consideration to an application, and to reject the application and proceed to revise or supersede a maintenance calculation decision without taking the variation into account, or not to revise or supersede a maintenance calculation. The grounds for rejection are set out in section 28B(2) and in regulations. One of the grounds, set out in Regulation 57 of the 2012 Regulations, is that the applicant does not provide sufficient information to enable a ground to be identified, or the facts alleged do not bring the case within the ground or do not support the ground.

By section 28D (as modified), where an application for variation has not failed (which includes where it has not been rejected under section 28B) the Secretary of State shall either agree or not to a variation and decide whether to revise or supersede the maintenance calculation, or refer the application to the FtT for the tribunal to determine what if variation if any is to be made.