BK v Secretary of State for Work and Pensions & Anor

For a child-maintenance calculation based on historic income, the tribunal must ordinarily use the figure identified by HMRC under the Child Support Maintenance Calculation Regulations 2012. It cannot substitute a parent’s PAYE documents for that figure.

Where cogent evidence indicates that the existing HMRC figure is inconsistent with PAYE information, the tribunal should adjourn and require a further request to HMRC. This preserves the possibility of a revision with effect from the review date. The current-income tolerance does not answer an alleged error in the historic-income figure during mandatory reconsideration.

The father appealed against a First-tier Tribunal decision dismissing his challenge to a child-support maintenance calculation effective from 29 January 2020. The calculation used an HMRC figure for 2018–19 which produced gross weekly income of £924.45.

The father relied on his P60 and P11D to contend that the correct annual figure was lower. The First-tier Tribunal held that it had to use the originally supplied HMRC figure. It also rejected a separate current-income argument, which the father no longer pursued.

The Upper Tribunal considered whether the First-tier Tribunal should have substituted the father’s figures, or instead adjourned for the Secretary of State to obtain a current HMRC figure.

1. Appeal allowed. The First-tier Tribunal erred in law. Its decision was set aside and remade under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

2. Regulations 35 and 36 of the Child Support Maintenance Calculation Regulations 2012 make the HMRC figure central to the calculation of historic income. The figure is the amount which HMRC identifies as income charged to tax after the relevant information has been reconciled. PAYE Real Time Information, or documents supplied by the non-resident parent, cannot alone replace it.

3. The First-tier Tribunal was therefore right not simply to substitute the P60 and P11D figures. However, it had cogent evidence that the HMRC figure might be wrong, because the PAYE documents contradicted it. It should have adjourned and required the Secretary of State to make a further request for an HMRC figure.

4. The 25% current-income tolerance was irrelevant when the father sought correction of the historic-income figure on mandatory reconsideration. A further HMRC figure could have enabled revision of the Secretary of State’s decision from the review date.

5. Once the First-tier Tribunal gave a final decision, that decision replaced the Secretary of State’s decision. The Secretary of State could not revise the tribunal’s decision under section 16 of the Child Support Act 1991, and no applicable supersession power could achieve the required retrospective effect. Adjournment was consequently necessary.

6. The later HMRC figure established annual income of £45,787.29 and gross weekly historic income of £878.11. The father’s liability from 29 January 2020 was remade on that basis. The Secretary of State was left to perform the maintenance calculation.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal’s decision of 12 November 2020 was set aside and remade.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the father’s appeal against the child-support calculation.