Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 162 (AAC)

Fecha: 07-Mar-2024

Conclusions

Why I have refused Father’s applications for set-aside of the permission decision, and to introduce a new ground of appeal

12.

I refuse both Father’s applications, for the following reasons.

Application for set-aside

13.

The power to set aside under rule 43 requires two elements: some procedural irregularity in the Upper Tribunal proceedings, and a determination that it is in the interests of justice to set aside the relevant decision (here, the element of the permission decision that refused permission to appeal on the ground of an error of law in the Walnut Investments variation). In this case, neither element is present:

the documents sent with Father’s 3 February 2025 email (relating to Walnuts Investments Ltd – a short letter from his wife, and an “interactive investor” statement; and a statement from Assetz for the 2021-22 tax year) do not (in the language of rule 43(2)(b)) “relate to the proceedings”: the relevant proceedings (grant of permission to appeal) concerned whether there was an arguable error of law in the FTT decision; to the extent these documents were “new evidence”, they were not relevant to the question of whether the FTT decision had erred in law; and to the extent they were already in the FTT bundle (such as the Assetz statement), that was already before the Upper Tribunal; nor was there any other kind of procedural irregularity in the Upper Tribunal proceedings; and

even if it could be argued that the documents sent by Father on 3 February 2025 did “relate to the proceedings”, it would not be in the interests of justice to set aside the permission decision, as they did not affect the reasoning in the permission decision for finding no arguable error of law in the FTT decision’s Walnuts Investments variation (see paragraph 12 of that decision, in particular).

Application to admit new ground of appeal

14.

I have borne the following in mind as regards to application to admit a new ground of appeal:

the application was made more than three months after the deadline for making an application for permission to appeal; and there was nothing to explain why it had not been made with the original application (which was itself 38 days late, but had been admitted); this is a very significant degree of “lateness”;

the application was made some three weeks after the permission decision was issued; the process, set out in case management directions, of the respondents responding to the appeal, was already under way; admitting a new ground of appeal would mean re-starting that process, with consequent delay;

the application did not, however, imperil a hearing date;

as to the merits of the new ground of appeal,

the FTT was clearly alive to the issue of double counting and took pains to avoid it: see [52] and [103]

ii.

it is not the task of the appeals tribunal to revisit and re-evaluate the detailed evidence: Father’s criticism of the FTT decision is connected with its detailed fact-finding and evaluative judgement; the hurdle to showing a material error of law in these matters is high

iii.

in all the circumstances, the prospects of success of Father’s new ground, as a material error of law, are in my view low;

overall, it does not seem to me fair and just to admit Father’s new ground (with the inevitable delaying effect on the proceedings): there is no good reason why it was not presented with his other grounds in his original application for permission to appeal; and its prospects of success are low.

15.

I note that, even if I had admitted the new ground and found that the Assetz variation was in error of law, that would not have changed my decision (as explained in the following section) to decline to set aside the FTT decision (as Father’s gross weekly income would have exceeded £3,000 even without the Assetz variation and the Crows Nest variation, combined).

Why I have decided that the permitted ground of appeal is made out, but that the error of law is not material

16.

It seems to me that the effect of Mother’s response to the appeal is that she concedes, as a matter of fact, that Father’s 50% holding in the Crows Nest property was being used in the course of Father’s trade or business. It follows that the FTT decision erred in law in making the Crows Nest variation. The only question is whether this legal error was material, given that, even without the Crows Nest variation, Father’s gross weekly income (as found by the FTT) exceeded £3,000.

17.

The relevant right of appeal to the FTT under s20 in this case is that in respect a decision of the SoS under s17. The subject matter of that decision was how much child support maintenance was payable (see s11(2)). Child support maintenance means periodical payments which are required to be paid in accordance with a maintenance calculation (s3(6)). Maintenance calculation means a calculation of maintenance made under the Child Support Act 1991. Effect is given to variations under regulation 69 and 69A by “increasing the gross weekly income of the non-resident parent which would otherwise be taken into account by the weekly amount of the additional income except that, where the amount of gross weekly income calculated in this way would exceed the capped amount, the amount of the gross weekly income taken into account is to be the capped amount” (regulation 73(1)). Capped amount here means £3,000, the figure specified in paragraph 10(3) of Schedule 1.

18.

It would seem from these provisions that the FTT decision’s legal error with regard to the Crows Nest variation was not material since it did not affect the amount of child support maintenance payable (being the matter over which the FTT had jurisdiction): even without this variation, Father’s gross weekly income, as determined by the FTT decision, exceeded the capped amount.

19.

The question is whether section 8(6) affects or changes this conclusion.

20.

Section 8(6) sets out three conditions to be satisfied, if the court is to exercise “any power which it has to make a maintenance order in relation to a child” (maintenance order means an order requiring the making or securing of periodical payments to or for the benefit of a child, under various pieces of family law legislation). The first is that a maintenance calculation is in force with respect to the child. The second is that the non-resident parent’s gross weekly income exceeds the figure in paragraph 10(3) of Schedule 1. Dickson v Rennie decided that the reference here to gross weekly income means that income as determined by the SoS (as opposed to being something for the court to determine). Holman J put it thus at [30]:

“… Section 8(6)(b) merely refers in the abstract to what is essentially a question of fact, namely, as a matter of fact that the gross weekly income does exceed the specified figure. But it seems to me crystal clear from the scheme of the Act as a whole, and s8(6) within it, that even although the question may be said to go to the jurisdiction of the court, to make a top-up order the relevant ‘gross weekly income’ for the purposes of s8(6)(b) has to be the gross weekly income that has been assessed or calculated by the Secretary of State or the CMS. Quite clearly that subsection is, indeed, providing a ‘top-up’ jurisdiction; it is not providing some avenue of challenge or appeal to the calculation or assessment that has earlier been performed by the Secretary of State or the CMS.”

21.

The third condition in s8(6) is that

“the court is satisfied that the circumstances of the case make it appropriate for the non-resident parent to make or secure the making of periodical payments under a maintenance order in addition to the child support maintenance payable by him in accordance with the maintenance calculation.”

22.

It seems to me clear that s8(6), much like the provisions cited at paragraph 17 above, is concerned with whether or not the non-resident parent’s gross weekly income exceeds the capped amount (£3,000); if it does, the court has power to ‘top-up’ the child support maintenance payable. Section 8(6) is not, however, concerned with “by how much” the non-resident parent’s gross weekly income exceeds £3,000 – and this is seen in with the wording of the third condition (which is really an expression of the court’s discretion), which speaks of “addition”, not to the amount of gross weekly income, but to the amount of the child support maintenance payable (which doesn’t change, once gross weekly income exceeds £3,000).

23.

I accept that the last part of the last sentence from Dickson v Rennie quoted above (from the semi-colon onwards) could be read as giving s8(6) a broader remit, of preventing challenge or appeal to the SoS’s “calculation or assessment” of gross weekly income; but, read in context, these words are simply reiterating the point at issue in the case i.e. that the second condition in s8(6) works off the SoS’s determination of gross weekly income; it was not a comment on the breadth of the court’s discretion as described in the third condition.

24.

I conclude that there is nothing in s8(6), or indeed in Dickson v Rennie, that would change or effect the initial conclusion, on the basis of the operative provisions of the legislation alone, that an error of law in relation to a variation under regulation 69 or 69A, whose effect was to increase gross weekly income from one figure in excess of the capped amount, to another figure (even more) in excess of the capped amount, is not a material error, as it has no effect on the child support maintenance payable, which is the matter on which the FTT had jurisdiction.

25.

For this reason, I decline to exercise my discretion to set the FTT decision aside.

Zachary Citron

Judge of the Upper Tribunal

Authorised by the Judge for issue on 30 May 2025