HH v Secretary of State for Work and Pensions and another
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2021] UKUT 280 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2021 Nov 12
Upper Tribunal Judge
Children - Child support maintenance - Assessment - Non-resident father leaving employment to start own business resulting in drop in income - First-tier Tribunal calculating father’s liability to pay child support maintenance based on current income - Tribunal’s determination of current income including income received from previous employment which had ended before effective date of calculation - Whether tribunal erring in law - Whether “current income” as employee or office-holder restricted to employment ongoing at effective date -
The non-resident father of a qualifying child was notified of his liability to pay child support maintenance with effect from 1 October 2017 in a sum calculated by reference to “historic income” in accordance with regulations 34 and 35 of the Child Support Maintenance Calculation Regulations 2012F1 and based on information obtained by the Secretary of State from HM Revenue and Customs about the father’s income in the 2015/16 tax year. Although the father had been employed as a senior manager with a large company until May 2016, he had then resigned to pursue his own management consultancy business. Having received information from the father which indicated that his current income at the effective date was significantly lower than his historic income, the Secretary of State revised the earlier decision and recalculated the father’s child maintenance liability at a much lower sum. On the mother’s appeal to the First-tier Tribunal the father was directed to provide detailed information and evidence in relation to his employment position and income, including complete copies of his tax returns for the years 2015/16 and 2016/17. On the basis of the information provided the tribunal revised the father’s child support maintenance upwards based on a calculation of his current income which included sums received in or around May 2016 as income from his previous employment. On appeal by the father the issue arose whether current income “as an employee or office-holder”, within the meaning of regulation 37(1)(a) of the 2012 Regulations, could include income derived from employment which the non-resident parent no longer held at the effective date.
On the appeal—
Held, allowing the appeal, that although the Child Support Maintenance Calculation Regulations 2012 did not include express provision about the period by reference to which a non-resident parent’s current income as an employee or officer-holder was to be determined, the reference in regulation 37(1) to “a weekly amount at the effective date” suggested that the starting point was the state of affairs on that date, and therefore, so far as employment income was concerned, the employment or office which the non-resident parent was in on that date; that the rationale of the 2012 Regulations was that current income was income from sources which were ongoing at the effective date and thus the 2012 Regulations did not permit the determination of a non-resident parent’s current income for the purpose of a maintenance calculation to take into account income from an employment or office that the non-resident parent was no longer in at the effective date of the calculation; that as the father’s only employment or office on the effective date of 1 October 2017 was as director of his management consultancy business, only his remuneration in that capacity could be taken into account as employment income in the determination of his “current income”; and that the First-tier Tribunal had therefore erred in law in holding that the father’s income in May 2016 from the employment which he had left shortly thereafter was to be included in his current income for the purposes of the maintenance calculation at the effective date of 1 October 2017 (post, paras 2, 15).
The following cases are referred to in the judgment:
AR v Secretary of State for Work and Pensions (No 2)
CCS/3862/2007 (unreported) 19 June 2008,
SB v Secretary of State for Work and Pensions
APPEAL from the First-tier Tribunal (Social Entitlement Chamber)
By a decision dated 11 October 2019 the First-tier Tribunal (Social Entitlement Chamber) allowed an appeal by the mother, ASP, against a decision of the Secretary of State for Work and Pensions notified on 22 December 2017 revising the liability of the non-resident father, HH, to pay child support maintenance in respect of his qualifying child from an effective date of 1 October 2017 on the basis that the father’s current income from his own management consultancy business was much lower than his historic income derived from his previous employment, on which the calculation had previously been based.
With permission to appeal granted by the Upper Tribunal (Upper Tribunal Judge Robinson) on 13 November 2020, the father appealed on the ground that the First-tier Tribunal had erred in law in taking into account as part of his current income remuneration received in or around May 2016 from his former employment, since current income “as an employee or office-holder”, within the meaning of regulation 37(1)(a) of the Child Support Maintenance Calculation Regulations 2012, could not include income derived from employment which the non-resident parent no longer held at the effective date.
The facts are stated in the judgment, post, paras 1, 2.
The appeal was determined on written submissions.
12 November 2021. UPPER TRIBUNAL JUDGE ROBINSON promulgated the following judgment.
Decision
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 11 October 2019 under number SC242/18/01247 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
Directions
1. This case is remitted to the First-tier Tribunal for rehearing.
2. The First-tier Tribunal hearing the remitted appeal— (a) should include a financially qualified panel member, and (b) should not involve the judge or member who heard the appeal on 11 October 2019.
3. These directions may be supplemented by later directions by a tribunal judge or registrar in the Social Entitlement Chamber of the First-tier Tribunal.
Reasons
1 I granted the appellant permission to appeal in a determination dated 13 November 2020. The background to the case was set out in that determination as follows:
“3. This case concerns the child support maintenance payable by the appellant to the second respondent in respect of their daughter (the ‘qualifying child’). The appellant, who is the father of the qualifying child, is the non-resident parent, while the second respondent (the mother) is the parent with care.
“4. The application for a maintenance calculation was made by the second respondent on 22 September 2017. On 30 October 2017 the appellant and second respondent were notified of the decision by the first respondent (the Secretary of State) that the appellant was liable to pay child support maintenance of £147.70 per week from 1 October 2017 (the ‘effective date’). The appellant’s gross weekly income for the purposes of the calculation was based on information obtained by the first respondent from HM Revenue and Customs (‘HMRC’) regarding the appellant’s income in the 2015/16 tax year (and was therefore based on ‘historic income’ in accordance with regulations 34 and 35 of the Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677)—the ‘2012 Regulations’).
“5. On 30 October 2017 the first respondent received information from the appellant regarding his current income (see pp 23–30 of the First-tier Tribunal appeal bundle). That information indicated that the appellant’s income at the effective date was significantly lower than it had been during the period covered by the information obtained from HMRC (£8,163.96 a year as compared with £135,849). As the difference between the...
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