T v Secretary of State for Work and Pensions and A (CSM)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Mitchell |
| Judgment Date | 08 December 2017 |
| Neutral Citation | [2017] UKUT 492 (AAC) |
| Subject Matter | Child support,Child support - variation/departure directions: other,Mitchell,E |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 02 January 2018 |
| Date | 08 December 2017 |
T v Secretary of State for Work & Pensions & A [2017] UKUT 0492 (AAC)
CCS/2967/2016 1
IN THE UPPER TRIBUNAL Upper Tribunal case No. CCS/2967/2016
ADMINISTRATIVE APPEALS CHAMBER
Before: Mr E Mitchell, Judge of the Upper Tribunal
Decision: The decision of the First-tier Tribunal (1 June 2016, file reference SC
007/14/000803) involved the making of an error on a point of law. The Tribunal’s decision is
SET ASIDE under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
Under section 12(2)(b)(ii) of the 2007 Act, I RE-MAKE the First-tier Tribunal’s decision to
the same effect:
(1) Mr T’s appeal against the Secretary of State’s decision to refuse his variation
application under section 28F of the Child Support Act 1991 is dismissed;
(2) Mr T does not have a special expense in the form of a prior debt within the meaning of
regulation 12 of the Child Support (Variation) Regulations 2000.
Terminology
1. In these reasons:
- “CSA” refers to the Secretary of State for Work & Pensions;
- “Miss A” refers to the parent with care;
- “Mr T” refers to the non-resident parent.
Decision-making history
What Mr T told the CSA
2. Mr T wrote (in February 2014) that, in early 2006, Miss A realised she could not “oust” him
from their home and “approached me to ascertain what her position would be on separation”
(p.48 of the First-tier Tribunal file). Mr T said he presented Miss A with two options:
(a) he could abide by their “original commitment when she first moved in” to restore her to the
position, in home-owning terms, that she was in just before they started living together. That
position was described as “a 50-50 arrangement with a housing association and if necessary
take on the 50% share myself”; or
(b) he could provide a lump sum of £55,000 “in lieu of child maintenance that Miss [A] could
use as deposit for a property” but, if she chose this option, she would have to accept “a modest
child maintenance payment of £200” and if she sought to “forcibly amend” the agreement and
“the advance payment was not considered as such” then “the entire amount would be repayable
in full”.
3. Mr T argued that Miss A’s subsequent acceptance of the sum of £55,000 constituted
agreement to the above terms.
T v Secretary of State for Work & Pensions & A [2017] UKUT 0492 (AAC)
CCS/2967/2016 2
4. In June 2006 the Alliance & Leicester informed Mr T that they had granted his application
for a “further loan” of £55,000. In fact, this was a mortgage offer valid for 6 months. On 9
November 2006, Mr T took out a 22 year mortgage in the sum of £55,000 (p.29). The
mortgage was secured on Mr T’s home which, at this date, was also the matrimonial home
although Miss A had no legal interest in it.
5. Mr T said that, towards the end of November 2006, the mortgage was converted to interest-
only so that House 1 (see below) could be renovated without incurring further debt. A
mortgage statement records an opening balance of £55,000 at 9 November 2006.
6. Written evidence about the intended purpose of this sum of £55,000, according to Mr T,
included:
(a) a CSA telephone note of 7 February 2014 (p.60) recording Mr T’s statement that Miss A
verbally agreed to receive a £55,000 deposit for the purchase of a property. I shall refer to the
property subsequently purchased as House 1;
(b) a CSA telephone note of 20 February 2014 (p.63) recording Mr T’s statement that the
payment was made in lieu of child maintenance payments but Miss A chose to use it as a
deposit;
(c) a letter written by Mr T to ‘Dear Sir or Madam’, dated 13 November 2006 (i.e. 4 days after
Mr T entered into a secured loan agreement with Alliance & Leicester), which stated under the
heading “Re: Mortgage deposit for [Miss A]”:
“The £55,000 mortgage deposit is paid as part of a private settlement between myself
and [Miss A]. The full payment being approximately fifty percent of the increase in the
market value of the property we have shared since April 2000.”
The payment is made in good faith and in doing so I do not admit liability for this or
any other payment.”
This may be the solicitor’s letter that Miss T reportedly mentioned during a CSA telephone
conversation on 20 February 2014 (p.68).
(d) By letter dated 20 January 2014, Mr T stated the £55,000 was for the benefit of “the
family” because “it was used in its entirety to partially fund the property which [Miss A]
moved into when we separated and over which I had no interest”;
(e) in a November 2014 CSA enquiry form (p.17), Mr T wrote that, in 2006, Miss A “agreed
to a reduced monthly payment [of child maintenance] in return for an advanced payment of
£55,000”;
(f) in January 2014 (p.24 & p.28), Mr T stated the £55,000 transfer was a ‘debt’, in the form
of a loan, further described as (a) incurred as part-payment for House 1 (“a property for the
sole use of [Miss A] on our separation”); and (b) a “secured loan” used to partially fund House
1, into which Miss A moved on their separation and in which he had no interest.
7. The appeal papers indicate that Mr T did not address Miss A’s claim that House 1 was
originally purchased as an investment property (see below) until a letter of 7 September 2015
(p.124), written in connection with a previous appeal to the Upper Tribunal. Mr T wrote:
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