[2025] UKUT 162 (AAC)

The Upper Tribunal on 13 January 2025 issued my decision (the “permission decision”) giving permission to appeal limited to an error of law in respect of the Crows Nest variation. The permission decision noted that the FTT found that the Crows Nest property was owned jointly by Father and his wife ([71, 74]); that Father had a 50% interest ([23]); and that Father’s wife was running Crows Nest as a holiday let on a day-to-day basis with minimal involvement from Father ([23]). The FTT recorded Father’s evidence that the income received from the holiday let business was split 95% to his wife and 5% to him ([77]). The permission decision went on to say this:

“16.

It seems to me that the FTT decision did not expressly address the question of whether Father’s 50% interest in Crows Nest was being used in the course of a trade or business of Father’s; but it seems reasonably arguable that the inference could be made from the factual findings that the FTT decision did make, that the Crows Nest property was being used for a business (the holiday let business) and that business was in part Father’s (as he took 5% of the income received). It therefore seems to me realistically arguable that the FTT decision erred in not addressing this question and/or in failing to explain, adequately, how it reached the view that Father’s 50% interest in Crows Nest was not excluded from regulation 69A(1) by reason of regulation 69A(4)(b).

17.

I would add, acting inquisitorially, the following related points, which seem to me realistically arguable:

a.

even if there was no legal error in not excluding Father’s 50% interest in Crows Nest from regulation 69A(1) by reason of regulation 69A(4)(b), it seems to me realistically arguable that the FTT decision erred in law by not explaining, adequately, why it was in all the circumstances just and equitable (in the language of section 28F(1)(b)) to make the variation by reference to 50% of the value of Crows Nest, when it appeared to accept that Father was entitled to only 5% of the income received;

b.

I have noted that the variation in relation to Father’s 50% interest in Crows Nest amounts to £56,000 and that the overall correct income figure as found by the FTT decision was just over £346,000 – this means that, even if the Crows Nest variation had not been made, the income figure would have been over £290,000 per year, and so over £5,500 per week – well in excess of the capped amount (see regulations 73 and 2). It could thus be argued that any errors of law with respect to the Crows Nest variation are not material to the FTT decision, in that they do not affect the outcome that the child maintenance support amount is [based on the maximum income figure of] £3,000. Nevertheless, I consider that the opposite – that errors with regard to the Crows Next variation are material – is realistically arguable, principally because the maintenance calculation can be used for other purposes i.e. top up applications to the court under section 8(6) (I have in mind Dickson v Rennie [2014] EWHC 4306 (Fam) at [30])” (the words in square brackets in the penultimate sentence have been added to better express what I was trying to say in that sentence).