NO v Secretary of State for Work and Pensions & Anor

Where there is a serious possibility that the HMRC income figure used in a child-maintenance calculation is inaccurate, the First-tier Tribunal must investigate the issue. It should adjourn where necessary and require the Secretary of State to obtain a further HMRC figure. Real Time Information is not itself an HMRC figure for the purposes of regulation 36(1) of the 2012 Regulations.

The tribunal is not required simply to substitute figures supplied by a parent. A later HMRC figure may nevertheless be used retrospectively where the statutory conditions permit. A tribunal which has reservations about the reliability of the existing figure errs in law if it treats itself as bound by it without taking those steps.

The appellant challenged a superseding child-maintenance calculation made on 8 February 2022. The calculation used an HMRC figure for the 2020–21 tax year and fixed his liability at £216.31 per week.

Before the First-tier Tribunal, the appellant contended that the HMRC figure was inflated by an error concerning company cars. The tribunal obtained HMRC Real Time Information, which showed a lower taxable-income figure, but concluded that it was required to use the original HMRC figure. It dismissed the appeal in its decision of 16 June 2023.

Permission to appeal was ultimately granted to the Upper Tribunal. The Secretary of State supported the appeal. The central issue was whether the First-tier Tribunal should have sought a further HMRC figure rather than treating the existing figure, or the Real Time Information, as determinative.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 and the appeal was remitted for a fresh hearing.

2. The Real Time Information obtained by the First-tier Tribunal was not an HMRC figure within regulation 36(1) of the 2012 Regulations. It therefore did not answer the statutory question of the income figure to be used.

3. The tribunal had material indicating that a further HMRC figure might differ from the figure already supplied. Its own reasons also showed reservations about the existing figure’s reliability. In those circumstances, its inquisitorial duty required it to investigate the matter fully, make the necessary findings of fact and, if necessary, adjourn so that the Secretary of State could request a further HMRC figure.

4. The tribunal was not required to substitute the appellant’s own figures. The proper course was to obtain a new HMRC figure where cogent, though inconclusive, material raised a serious possibility that the existing figure was wrong.

5. A further HMRC figure may be requested. If it changes after the Secretary of State’s decision, it may still be used consistently with section 20(7)(b) of the 1991 Act because it operates retrospectively and concerns circumstances obtaining when that decision was made.

6. The remitted tribunal must conduct a complete re-determination without relying on the set-aside tribunal’s findings or conclusions. It must require the Secretary of State to obtain a further HMRC figure for the relevant tax year. It may consider later evidence only insofar as it bears on circumstances existing at the date of decision, consistently with section 12(8) of the Social Security Act 1998.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision and remitted the case for re-determination: [2024] UKUT 342 (AAC).
• First-tier Tribunal (Social Security and Child Support): Dismissed the appeal against the maintenance calculation on 16 June 2023. Permission to appeal was initially refused by a District Tribunal Judge on 8 January 2024.