Green v Secretary of State for Work and Pensions and Adams (Interests in Trusts and Ability to Control Assets)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Jacobs |
| Neutral Citation | [2018] UKUT 377 (AAC),[2018] UKUT 377 (AAC),[2019] AACR 13 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 12 November 2018 |
| Subject Matter | Child support,Child support - variation/departure directions: other,Jacobs,E |
| Published date | 19 December 2018 |
Green v SSWP and (Interests in Trusts and Ability to control assets)
[2019] AACR 13
1
[2019] AACR 13
(Green v Secretary of State for Work and Pensions and Adams (Interests in Trusts and
Ability to Control Assets) [2018] UKUT 377 (AAC))
Judge Jacobs CCS/2548/2252/2254/2259/2794/2800/2801/2802/2017
14 December 2018
Child Support – interests in trusts – ability to control assets
The parents of a child, who was by the time of the appeal to the Upper Tribunal, seventeen years old, each
appealed against three decisions of the Secretary of S tate concerning the non- resident fat her’s liability for child
support under the 2003 Child Support Scheme. The three decisions covered defined time periods between April
2009 and August 2013. T he non- resident father was a beneficiary of a family trust which had been set up by his
parents for the benefit of various family members and which held various assets which the par ent with care
mother argued were assets in which he held either a beneficial interest or had the ability to control within the
definition in regulation 18 of the Child Support (Var iations) Regulations 2000 (SI No 20 01/156). The Upper
Tribunal considered whether a beneficiary’s interest under a discretionary trust was an asset for the purposes of
regulation 18 and therefore capable of constituting a case in which a variation might be agreed for the purposes
of paragraph 4 of Schedule 4B of the Child Support Act 1991.
Held, allowing the appeals, that:
1. that an interest in a trust is not an asset for the purposes of regulation 18 which d oes not treat the
beneficiary’s interest as an asset but treats the property transferred into the trust as such, disregarding the
trust itself for those purposes (Adams v Secretary of State and Green [2 014] UKUT 359 (AAC) not
followed);
2. the beneficiaries under a trust do not have an interest in the assets held by the trust , they have a parcel of
rights that protect their interests.
The judge remade the First-tier Tribunal’s findings of fact and remitted the case to the Sec retary of State to
remake the decisions.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
As the decisions of the First-tier Tribunal made on 19 April 2017 at Enfield under these
references
SC242/11/07499
SC242/13/10298
SC921/13/02960 and
SC242/14/00425
involved the making of an error in point of law, they are SET ASIDE under section 12(2)(a)
and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decisions are to be RE-
MADE by the Secretary of State in accordance with the findings of fact and analysis of just
and equitable in paragraphs 84 to 108.
Green v SSWP and (Interests in Trusts and Ability to control assets)
[2019] AACR 13
2
REASONS FOR DECISION
A. The parties
1. These eight appeals concern the child support liability of Mr Adams for his son
Nicholas. Ms Green is Nicholas’ mother and parent with care. I have decided not to make an
anonymity order in respect of anyone involved, including Nicholas who is now 17. The
Secretary of State for Work and Pensions is the other party.
B. The decisions and periods before me
2. It will never be possible to write a short history of the litigation between Mr Adams and
Ms Green. Nicholas was born on 22 March 2001 when the couple were living together. They
separated in 2002/2003 and have been litigating ever since. There have been cases in both the
county court and the High Court. It was only in 2007 that Ms Green made an application for
child support, which has led to a series of appeals to both the First-tier Tribunal and the Upper
Tribunal.
3. The number of appeals before me creates an illusion, as both parents have appealed
against four decisions of the First-tier Tribunal. Even that overstates the scale of the appeals,
because two of the First-tier Tribunal’s decisions concerned the same decision by the
Secretary of State, both parties having appealed. So ultimately I am concerned with three
decisions by the Secretary of State as decision-maker for the child support scheme. All
concern the 2003 version of the scheme. I have already decided a ninth appeal that concerns
the 2012 version: Green v Secretary of State for Work and Pensions and Adams (Diversion of
Income) [2018] UKUT 240 (AAC).
4. These are the three decisions of the Secretary of State that have led to these
proceedings.
CCS/2548 and 2794/2017
5. These are the parents’ appeals in respect of a decision with the effective date of 24 April
2009. There were a series of revisions, the result of which is that the relevant date for the
purposes of section 20(7)(b) of the Child Support Act 1991 is 16 July 2010: see R(CS) 1/03.
The First-tier Tribunal reference was SC242/11/07499.
6. The First-tier Tribunal’s first decision was set aside by Upper Tribunal Judge Turnbull
in Adams v Secretary of State and Green [2014] UKUT 359 (AAC). Judge Turnbull decided
that a beneficiary’s interest under a discretionary trust was an asset for the purpose of
regulation 18 of the Child Support (Variations) Regulations 2000 (SI No 2001/156). The
First-tier Tribunal reheard the case on that basis and the other cases were decided accordingly.
CCS/2552, 2554, 2800 and 2802/2017
7. These are the parents’ appeals in respect of a decision with the effective date of 16
December 2011. The relevant date for section 20(7)(b) is 20 March 2013. The First-tier
Tribunal references were SC/242/13/10298 and SC921/13/02960.
CCS/2559 and 2801/2017
8. These are the parents’ appeals in respect of a decision with the effective date of 5 July
2013. The relevant date for section 20(7)(b) of the Child Support Act 1991 is 24 August 2013.
The First-tier Tribunal reference was SC242/14/00425.
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