[2024] UKUT 343 (AAC)

In these appeals, the Appellant and Second Respondent are respectively the father and mother of three children. The children live with the Second Respondent who is therefore the Parent with Care (“PWC”) and the Appellant is the Non-Resident Parent (“NRP”).

The NRP had originally been assessed as liable to pay child support on the basis that all three children were qualifying children (“QCs”). I do not need to refer to the entire history of the child support decisions and start the chronology at 18 September 2020 when the Secretary of State decided, by way of supersession of a previous decision, that from 7 September 2020 there were only two QCs.

When the second QC turned 18, the CMS superseded the maintenance calculation on the basis that there was only one QC but on 20 January 2021 revised that decision to calculate maintenance on the basis of 2 QCs with effect from 7 September 2020. The NRP appealed against that decision. I refer to this as “the QC appeal”.

In the meantime, following an annual review on 8 November 2020 and with effect from that date, the Secretary of State superseded the assessment of the amount of child maintenance, on the basis of the NRP’s historic income in the tax year ending April 2019. The NRP sought mandatory reconsideration which was refused on 8 February 2021 and the NRP appealed against the 8 November decision. This is referred to as the “historic income appeal”.

The FtT consolidated the two appeals.

In responding to the historic income appeal, the PWC submitted that there was a diversion of income from the NRP to his wife. This in essence repeated the substance of an application that the PWC had made in 2019 for a variation of the child maintenance assessment on the basis that the NRP was diverting his income to his wife. That application had been rejected, mandatory reconsideration was refused and the PWC did not appeal.

The FtT judge made directions on 24 November 2021. The FtT observed:

“The PWC’s (Footnote: ¹) variation request is relevant to the level of income to be determined by the Tribunal and should be considered as she is a party to the NRP’s appeal and it would be undesirable for a differently constituted tribunal to make different findings on the same facts in a future appeal.”

The FtT’s directions included that the Secretary of State

“make a preliminary consideration of the PWC’s variation application… pursuant to section 26B Child Support Act 1991 and determine the application or refer it to the Tribunal under section 28D(1)(b) Child Support Act 1991…”

and that the Secretary of State provide a supplementary submission on that matter.

The Secretary of State responded on 3 December 2021 as follows:

“In accordance with Section 28B of the Child Support Act 1991 where an application for a variation has been duly made to the Secretary of State the Secretary of State may give it a preliminary consideration. The Secretary of State may on completing such a preliminary consideration, reject the application (and proceed to make decision on the application for a maintenance calculation without any variation) if it appears to the Secretary of State that there are no grounds on which a variation could be agreed to or that the Secretary of State has insufficient information to make a decision on the application for the maintenance calculation.

The Secretary of State has considered the PWC’s request for a variation on the ground of diversion of income. However, the PWC has not been able to provide the Secretary of State with sufficient evidence to depict whether the NRP is diverting income and to who or for what purpose income, if any is being diverted.

In this case the Secretary of state has decided to refuse the application for a variation on the ground of diversion of income and this is notification to all parties of the refusal on that ground.

With regard to the issue of the variation refusal, the Tribunal are respectfully requested to consider and decide if the Secretary of State is correct to refuse the variation application and to confirm or replace the decision as they consider appropriate….”

On 28 April 2022 the FtT judge noted that the Secretary of State had considered and rejected the variation application and made further directions for the progress of the appeals including for disclosure of documents relevant to the variation application and directed that the appeals should be listed for a 2 day hearing.

On 20 May 2022 the NRP wrote to the tribunal to withdraw both appeals. In directions dated 9 June 2022, the FtT noted that the withdrawals were automatically effective. On 28 June 2022 the PWC applied for the appeals to be reinstated, because she wanted the FtT to consider the matter of diversion of income. By directions dated 26 August the FtT reinstated the appeals.

On 26 September 2022 the NRP applied for certain information to be disclosed to the PWC. A directions hearing took place on 20 November 2022 at which the NRP and DWP were directed to provide further evidence.

The NRP then made an application to the FtT to set aside the directions in regard to the variation application, on the ground that the FtT had no jurisdiction to determine that matter, and to determine the two appeals without a hearing on the available evidence.

On 30 May 2023 the FtT decided that the appeals properly included consideration of the variation application, refused the NRP’s application to set aside the directions, and made further directions for the progress of the appeal.

In addressing the NRP’s submissions in regard to the FtT’s jurisdiction to determine the variation application, the FtT first addressed what would be the effective date of any variation. It noted that by virtue of section 28G of the Child Support Act 1991 variations take effect as revisions or supersessions. It noted that the PWC had said that the maintenance calculations in this case were always wrong and so the application was for a revision. The application had been made on 5 August 2021 (that being the date of the PWC’s submissions to the tribunal in which she sought a variation) and so was made within 13 months of both decisions under appeal. The FtT ruled that a variation would be effective from the date of the decisions being revised, that is 7 September 2020 and 8 November 2020.

The FtT then addressed the NRP’s submission that the FtT lacked jurisdiction to deal with the variation application. It said:

“…Where an application for a variation is made by a party during the proceedings, the Tribunal can use its case management powers in Rule 5(1) to regulate its own procedure, by directing the CMS to consider the application, as it is bound to do anyway, having been served with a copy of it. It is not necessary to require the PWC to bring a separate appeal, as the variation issue was an issue raised in the current appeals, to which she was a party.”

The FtT referred to two Upper Tribunal cases (DE v SSWP and AE [2018] UKUT 128, and AB v SSWP and RS [2021] UKUT 129), the power in section 20(7) to consider issues not raised in the appeal, and its role to ensure that as far as possible the NRP is assessed as liable to pay the amount of maintenance for which the law provides. The FtT concluded:

“The NRP’s suggestion that the appeals should be shorn of the issue of diversion and the PWC left out of time to appeal would deprive her of a remedy or involve additional procedural hurdles of filing an out of time appeal and asking for time to be extended. Neither approach is in the interests of justice.”

The FtT gave the NRP permission to appeal that decision and stayed the appeal in the FtT pending the outcome of the appeal to the Upper Tribunal.

The NRP and the Secretary of State have filed submissions in the appeal. The PWC has simply stated that she has nothing further to add. All the parties have stated that they do not request an oral hearing. I do not need to make findings of fact, and I am able fairly to determine the issues of law on the basis of the written submissions without an oral hearing. It would be disproportionate to require an oral hearing in those circumstances.