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

In shared-care child-support cases, “day to day care” requires an assessment of practical care actually provided, not merely the hours or nights for which each parent is responsible. Overnight care is relevant but has no special status and is not a trump card. Care may include arranging for another person or service to care for the child, although that will usually carry less weight than care personally provided. Tribunals should assess the evidence as a whole, make findings on relevant elements such as meals, schooling, health, clothing and activities, and reach a broad, evidence-based evaluation. Child benefit is not a tie-breaker where evidence about the division of care exists. If the evidence does not establish that one parent provides care to a lesser extent, the application must fail.

LP appealed against a First-tier Tribunal decision concerning his liability for child maintenance to EM in respect of their child. The First-tier Tribunal had found that LP provided day to day care to a lesser extent than EM under regulation 50(2) of the Child Support Maintenance Calculation Regulations 2012, relying principally on EM having one additional night of care each week. Permission to appeal was initially refused by the First-tier Tribunal and was later granted by the Upper Tribunal. The Secretary of State supported LP’s appeal, while EM resisted it. The central issue was the correct approach to deciding whether one parent provides day to day care to a lesser extent than the other.

The appeal was allowed. The First-tier Tribunal’s decision involved errors of law, was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted to a fresh First-tier Tribunal for an oral rehearing.

1. Meaning of day to day care. The statutory phrase requires attention to the practical care actually provided. Responsibility for a child, the opportunity to provide care, love and affection, and expenditure on the child are not themselves equivalent to day to day care. A parent may provide care by arranging for another person to care for the child, whether or not payment is made, but the weight of that care is for the tribunal to assess.
2. Evaluation required. The tribunal must assess the evidence as a whole and make findings of fact about relevant elements of care. A balance-sheet approach may assist, including consideration of time with each parent, health and personal care, recreation, clothing and belongings, food, and schooling. There is no fixed formula. The exercise is broad and sometimes impressionistic, but must remain realistic, evidence-based and adequately reasoned.
3. Nights and child benefit. Nights are relevant because care may arise at night, but nights are neither more nor less important than days and are not decisive. Regulation 50(3) is not a tie-break provision. Once evidence about the division of care exists, the evidence must be assessed. If the tribunal cannot conclude on the balance of probabilities that one parent provides care to a lesser extent, the legislative default applies and the application must be dismissed.
4. The First-tier Tribunal wrongly confined its assessment to hours of responsibility, failed to make findings about significant disputed matters including school transport, holidays, meals and clubs, treated additional nights as a trump card, and relied on inconsistent night-care figures. The case was therefore remitted with directions that it be heard by a new tribunal, which would not be bound by the previous decision.

• First-tier Tribunal (Social Entitlement Chamber): On 25 October 2023, dismissed LP’s appeal against the Secretary of State’s child-maintenance decision. Permission to appeal was refused on 7 February 2024.
• Upper Tribunal (Administrative Appeals Chamber): Permission was granted on 11 May 2024. The appeal was allowed, the First-tier Tribunal decision was set aside, and the case was remitted for rehearing by a fresh tribunal.