[2024] UKUT 343 (AAC)

Mr Atkinson on behalf of the NRP submits that the FtT in effectturned the respondent into the appellant contrary to the principle in DE (referred to above). The FtT had been seized of two appeals brought by the NRP. Neither concerned a variation. The variation application was raised by the PWC who was the respondent to the appeals but was now making the case.

He further submits that section 28A requires an application to be made to the Secretary of State by a parent. It cannot be made to the Tribunal or by the Secretary of State or on the Tribunal’s own motion. The FtT had no power under the Tribunal’s rules of procedure to direct to the Secretary of State to make a preliminary consideration of the application and either determine it or refer it to the FtT and, in any event, the Secretary of State refused the application but did not refer it to the FtT so the application was not before the Tribunal and was not an issue in the appeal. Further section 20(8) allows the Tribunal to remit the case to the Secretary of State only where the appeal is allowed.

Mr Atkinson submits that the FtT wrongly relied on AB (referred to above). In that case, a variation application was the subject of the appeal and the FtT allowed the appeal but on a different ground of variation to that relied on by the appellant. This was a straightforward application of the regulation 56(4) which permits a variation made on one ground to be treated as a variation made on another ground.

He further submits that it is clear that there is no power for the Secretary of State to consider an application of their own initiative because the legislation requires an application to be made setting out the grounds, and because the effective date is fixed by reference to the date of the application.

In response, the Secretary of State submits that one issue in the appeal before the FtT was the amount of the NRP’s child maintenance liability. The PWC raised the issue of the NRP having additional income and this would affect the amount of the child maintenance liability. It was open to the FtT to consider this issue during the appeal. Applying the reasoning in AB, the PWC raised an issue which was material to the decision the FtT was considering and, in the exercise of its inquisitorial function, the FtT was bound to consider the additional income to ensure, as far as it could within its rules of procedure, that the NRP was being assessed as liable to pay the correct amount of child maintenance. The FtT’s decision was consistent with the overriding objective. It did not turn the respondent into the appellant, but merely enabled the FtT to exercise its inquisitorial function to reach the correct decision.