DW v Secretary of State for Work and Pensions & Anor

In a shared-care case under regulation 50 of the Child Support Maintenance Calculation Regulations 2012, the tribunal must decide whether one parent provides day-to-day care to a lesser extent than the applicant. The inquiry is factual and evaluates the whole pattern of practical and personal care. It is not resolved by equal overnight stays, equal opportunity to care, or a mechanical count of small periods of time.

Details of routine responsibilities may properly be considered where, cumulatively, they assist the tribunal to identify the pattern of care. An appellate tribunal should not displace supported factual findings merely because it might have assessed the evidence differently. A parent’s motive for seeking a reassessment cannot override the statutory test, although a credibility-related observation will not invalidate a decision unless material.

The appellant father and the second respondent mother both cared for their child, G. Following a shared-care order, the father sought revision of a child-maintenance calculation on the basis that day-to-day care was equal. The Child Maintenance Service maintained his liability of £37.33 per week from 22 May 2019 on mandatory reconsideration.

The First-tier Tribunal dismissed the father’s appeal after finding that, although overnight care was equal, he provided day-to-day care to a lesser extent than the mother. The father appealed to the Upper Tribunal. He challenged the tribunal’s evaluation of individual care arrangements, its treatment of care by proxy and equal opportunity for care, its comments on his motive, and its reliance on the duty to maintain.

The central issue was whether the First-tier Tribunal had erred in law when applying regulation 50 of the Child Support Maintenance Calculation Regulations 2012.

1. Appeal dismissed. The First-tier Tribunal made no error of law in finding that the father provided day-to-day care to a lesser extent than the mother and was therefore to be treated as the non-resident parent under regulation 50(2) of the Child Support Maintenance Calculation Regulations 2012.

2. Day-to-day care is a matter of fact to be evaluated from all the evidence. It does not require a fixed definition or formula. The tribunal may consider the overall pattern of practical and personal care, including preparation, planning, responsibility and facilitation of activities. Equal overnight care does not establish equal day-to-day care.

3. The First-tier Tribunal was entitled to organise extensive evidence into broad categories, including time with each parent, healthcare, recreation, clothing and schooling. It did not make impermissible micro time allocations. Small matters may be relevant when they collectively reveal a difference in the extent of care. Equal opportunity to provide care is not the statutory test.

4. The Upper Tribunal should respect supported findings of a specialist First-tier Tribunal unless it is clear that it misdirected itself in law. The First-tier Tribunal had assessed the evidence, identified a pattern of care and given adequate reasons. Its conclusion could not be reopened merely because a different factual assessment was possible.

5. The father’s motive and the timing of his reassessment application could not displace the regulation 50 lesser-extent test. The First-tier Tribunal’s observation about his explanation for contacting the dentist was not determinative and was, at most, relevant to credibility. It did not demonstrate actual, presumed or subconscious bias.

6. The duty to maintain under section 1 of the Child Support Act 1991 formed part of the statutory scheme, but it was not the criterion that determined the result. The operative finding was the unequal extent of day-to-day care.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the father’s appeal and upheld the First-tier Tribunal’s decision: [2023] UKUT 19 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): on 7 September 2020, dismissed the father’s appeal against the mandatory reconsideration decision and found that he provided day-to-day care to a lesser extent than the mother.
• Secretary of State for Work and Pensions: on mandatory reconsideration under section 16 of the Child Support Act 1991, maintained the calculation requiring the father to pay £37.33 per week from 22 May 2019.