KB v Secretary of State for Work and Pensions & Anor

Where child-support variation grounds under regulations 69 and 69A of the Child Support Maintenance Calculation Regulations 2012 may overlap, there is no automatic requirement to consider regulation 69 first. The First-tier Tribunal must decide the appropriate order by reference to all relevant circumstances and the overriding requirement that a variation be just and equitable. It may consider the outcome under either ground when making that assessment.

The same funds must not both generate unearned income for a regulation 69 variation and be treated as an asset for a regulation 69A variation. A tribunal must identify and address actual or potential overlap, avoid double-counting, and give adequate reasons for its justice-and-equity conclusions.

The mother appealed two child-support decisions concerning the father’s liability. The First-tier Tribunal allowed her appeals, recalculated the father’s gross income, and made variations for unearned income and assets.

The mother challenged the tribunal’s assumption that regulation 69 had to be considered before regulation 69A. The father also asserted that funds had been double-counted and raised an issue about the statutory interest rate. The central issue was whether the regulations imposed a hierarchy and how overlapping income and asset variations should be approached.

1. Appeal allowed. The First-tier Tribunal erred in law. Its decision was set aside and the case was remitted to a freshly constituted First-tier Tribunal for rehearing.
2. The Child Support Act 1991 and the Child Support Maintenance Calculation Regulations 2012 are silent on the ordering of regulations 69 and 69A. Neither the text nor the character of those two grounds creates an inherent hierarchy. The Upper Tribunal followed the approach in CCS/1047/2006: where potentially overlapping variation grounds arise, the tribunal may consider all grounds and must determine the appropriate sequence in the circumstances.
3. The decisive constraint is that a variation may be agreed only where it is just and equitable. That requires the tribunal to identify whether the same funds are capable of being treated both as income under regulation 69 and as an asset under regulation 69A. The same funds must not be counted twice. The tribunal has a broad discretion, informed by section 28F(2), and may compare the outcome under either ground when deciding what justice and equity require.
4. The First-tier Tribunal merely assumed that regulation 69 came before regulation 69A. It neither made nor explained a judgment on the existence of overlap or the appropriate ordering. Its reasons for the two justice-and-equity decisions did not address double-counting. Those defects were sufficient to set aside the decision.
5. The Upper Tribunal did not determine the mother’s remaining permission grounds or admit the father’s late appeal. Those matters, including the alleged double-counting and the statutory interest-rate issue, could be addressed on the rehearing. Remittal was proportionate because the unresolved issues required factual findings and evaluation better undertaken by the First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): allowed the mother’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the matter to a fresh tribunal under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Social Entitlement Chamber): on 30 July 2021 allowed the mother’s appeals, determined the father’s gross income, and made variations for unearned income, diversion of income and assets.