DB v Secretary of State for Work and Pensions & Anor.

In shared-care child maintenance cases, the comparison is between the extent of the parties’ actual day to day care. That expression concerns the hands-on, immediate, short-term and mundane aspects of caring for a child. It requires evidence-based findings about what each person does in practice.

A tribunal must not decide the comparative extent of care by judging the parties’ values, philosophies or motivations. Where the tribunal applies that impermissible approach, it errs in law. The appropriate remedy may be to set aside the decision and remit the case for factual findings by a fresh tribunal.

The Child Maintenance Service initially decided that DB, the father, was not required to pay child maintenance because he and the mother provided equal shared care. On the mother’s appeal, the First-tier Tribunal found that she provided more day to day care and directed payment of maintenance.

DB appealed to the Upper Tribunal. Permission was granted on the basis that the First-tier Tribunal might have applied the wrong legal test, failed to make adequate findings of fact, or failed to explain its decision clearly. The central issue was whether the First-tier Tribunal lawfully assessed the comparative extent of the parents’ day to day care.

1. The appeal was allowed. The First-tier Tribunal’s decision of 14 February 2022 was set aside as having been made in error of law. The case was remitted to a freshly constituted First-tier Tribunal for an oral rehearing.
2. Under regulation 50 of the Child Support Maintenance Calculation Regulations 2012, the relevant question was whether the father provided day to day care to a lesser extent than the mother. The First-tier Tribunal had a broad discretion when evaluating the evidence and making findings of fact, but that discretion had to be exercised by applying the correct legal test.
3. There is no definition of day to day care in the applicable regulations. The proper approach, explained by Judge Wikeley in CCS/1875/10 and by Commissioner Jacobs in R(CS) 11/02, is to focus on the immediate, short-term and mundane aspects of care. Examples include providing food, washing clothes, dealing with school correspondence and reading bedtime stories.
4. The First-tier Tribunal did not make sufficient evidence-based findings about the care actually provided by either parent. Its conclusion principally rested on its impression that the mother was motivated by the children’s best interests, whereas the father was focused on money. Those comparative value judgments and assumptions about motivation were irrelevant to the issue of comparative day to day care.
5. The only differentiating factual finding, concerning cleaning and cutting a child’s nails, was expressly treated by the First-tier Tribunal as not decisive. The error therefore went to the legal approach adopted. Further findings of fact were required, making remittal to a new tribunal appropriate. The new tribunal was not bound by the previous decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and set aside the First-tier Tribunal decision made on 14 February 2022 under number SC228/20/00326. The case was remitted to a fresh First-tier Tribunal for reconsideration at an oral hearing.