PG v Commissioners for HMRC & Anor

For competing child tax credit claims, the main responsibility test requires a comparative, balanced assessment of the practical responsibility exercised by each claimant. Time spent with the child is relevant but is not determinative and no factor has automatic priority.

Relevant matters include care, decisions, provision for needs, nurture and protection, and availability in need. Financial contribution and the quality of a parent’s performance do not ordinarily determine responsibility. The tribunal must decide the reality of the arrangements, rather than treat the terms of a contact order as conclusive.

The parents made competing single claims for child tax credit after separating. The Commissioners initially awarded credit to the father, but later decided that the mother had main responsibility for the children. The First-tier Tribunal dismissed the father’s appeal, principally because the children were to stay with the mother on four nights a week under a High Court order.

The father appealed to the Upper Tribunal. The central issue was the meaning of the main responsibility test in Rule 2.2 of Regulation 3 of the Child Tax Credit Regulations 2002, and in particular whether time and the contact order could determine the issue.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its decision was set aside and the case was remitted for a complete rehearing before a differently constituted tribunal.

2. The main responsibility test under Rule 2.2 requires a comparison of the practical responsibility exercised by the competing claimants. It does not concern legal parental responsibility. The tribunal must collect information about all relevant aspects of responsibility, resolve conflicts in the evidence, and make an overall balanced judgment. No factor predominates.

3. Care is an important component, but practical responsibility also includes making decisions, meeting the child’s needs, nurturing and protecting development, and being available when needed. A parent may remain responsible while teachers, grandparents or other carers provide assistance. The quality of a parent’s performance is generally immaterial, save where it is so poor that it does not amount to any discharge of responsibility.

4. Time with the child may be relevant but cannot be determinative. It does not capture every aspect of responsibility or provide a means of weighing long-term decisions against everyday care. Financial contribution, and a parent’s own travel or accommodation costs associated with contact, are not determinative measures of responsibility.

5. The tribunal erred by assessing time according to the High Court contact order rather than the arrangements actually exercised. It also erred by treating time as decisive. On remittal, it had to investigate and decide where main responsibility lay at the time of the claim, in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 0417 (AAC).

• Upper Tribunal (Administrative Appeals Chamber): allowed the father’s appeal on an error of law, set aside the First-tier Tribunal decision under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case for rehearing.
• First-tier Tribunal: dismissed the father’s appeal against the Commissioners’ decision that the mother had main responsibility for the children. Its decision is not separately cited in the judgment.