LF v Secretary of State for Work and Pensions & Anor (CSM)

A revision for official error may be made only to a decision which arose from that error. An error occurring after an earlier maintenance calculation cannot justify revision of that earlier calculation.

A refusal to supersede is nevertheless a decision under section 17 of the Child Support Act 1991. It may therefore be revised at any time for official error. Where a person requests an increased assessment after the revision period and the agency, despite holding material current-income information, refuses to act, the refusal may be revised into a supersession. The supersession takes effect from the application date under the Child Support Maintenance Calculation Regulations 2012.

The appellant was the non-resident parent liable for child maintenance. The Child Maintenance Service initially calculated liability from 18 January 2017 using historic income. Its later use of current income produced a weekly liability of £137.03.

The First-tier Tribunal, in decision SC328/18/00998 dated 18 May 2022, issued a Decision Notice treating the matter as a supersession from 21 March 2017. Its Statement of Reasons instead treated it as a revision from 18 January 2017. It also held that the Child Maintenance Service decisions of 7 March and 22 May 2018 were nullities.

The central issues were whether those inconsistencies and legal characterisations were erroneous, and the lawful effective date for the increased maintenance liability.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its Decision Notice and Statement of Reasons reached conflicting decisions on the central issue. As the tribunal neither set aside nor reviewed and amended its decision through the available procedure, the inconsistency meant that adequate reasons had not been given.

2. The First-tier Tribunal also erred in revising the 13 February 2017 calculation for an alleged official error on 21 March 2017. Under regulation 14(1)(e) of the Child Support Maintenance Calculation Regulations 2012, only a decision which arose from official error may be revised. A later alleged error cannot make an earlier decision one which arose from it.

3. The tribunal further erred in calling the March and May 2018 decisions nullities. Failure to give written notice did not make the March decision legally non-existent. The conclusion was not material by itself, but the term is rarely useful in child-support appeals. Such decisions ordinarily exist unless and until set aside.

4. The Upper Tribunal remade the decision. On 30 March 2017, the person with care requested a higher assessment while CMS had held the appellant’s current-income information for nine days. Its failure to investigate or act was official error. The resulting refusal was properly characterised as a refusal to supersede under section 17 of the Child Support Act 1991.

5. Following CCS/1282/2010, a refusal to supersede is a decision under section 17 and may be revised for official error. The refusal was revised into a supersession because the original calculation had been made in ignorance of the material fact that current income exceeded historic income by at least 25 per cent. The supersession took effect on the application date, 30 March 2017, under regulation 18(6)(a).

6. The appellant was liable for child maintenance of £137.03 per week from 30 March 2017 to 17 January 2018 inclusive. Later decisions governing the period from 18 January 2018 were unaffected.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision, and remade the Secretary of State’s decision.
• First-tier Tribunal (Social Entitlement Chamber): decision dated 18 May 2022, reference SC328/18/00998, was set aside for material errors of law.
• Earlier proceedings: an earlier First-tier Tribunal decision following a hearing on 18 June 2019 was overturned by the Upper Tribunal in CCS/70/2020, and the matter was remitted in May 2021.