DB v Secretary of State for Work and Pensions & Anor

A procedural power to regulate a tribunal’s own procedure does not authorise it to compel the Secretary of State to exercise a substantive statutory function. A tribunal may, however, invite the Secretary of State to consider an issue raised during an appeal.

In child-support appeals, a party’s submissions may amount in substance to an application for a variation where they state the statutory ground and are consistent with the legislative requirements. A respondent may raise an issue relevant to the maintenance calculation. The First-tier Tribunal’s inquisitorial jurisdiction requires it to determine issues raised by any party so that the liability is fixed at the amount for which the law provides.

The non-resident parent appealed two child-maintenance decisions concerning the number of qualifying children and the use of historic income. During those appeals, the parent with care alleged diversion of income and sought a variation of the maintenance calculation.

The First-tier Tribunal directed the Secretary of State to consider the variation application. It later held that the variation issue fell within the existing appeals. The non-resident parent appealed that procedural ruling.

The central issue was whether the First-tier Tribunal had jurisdiction, in an appeal brought by the non-resident parent, to consider the parent with care’s variation case.

1. Appeal dismissed. The First-tier Tribunal did not err in including the diversion-of-income variation issue within the scope of the child-maintenance appeals.

2. The First-tier Tribunal had exceeded its procedural powers by directing the Secretary of State to make a decision under the Child Support Act 1991. Rule 5(1) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) 2008 regulates procedure only. It cannot require a party to exercise a substantive statutory function. The statutory power in section 20(8)(b) arises only after an appeal has been allowed.

3. That error was immaterial. A tribunal may invite a party to consider an issue, although such an invitation has no compulsory effect. The parent with care’s submissions asserted diversion of income, stated the ground for a variation, and were served on the Secretary of State. It was therefore appropriate to treat them as an application for a variation, following the substance rather than the form of the communication.

4. The Secretary of State’s decision was, in substance, a rejection under section 28B(2). A rejected application had failed for the purposes of section 28D, so the Secretary of State could not refer it to the First-tier Tribunal under that provision. Nevertheless, the variation remained relevant to the maintenance calculation already under appeal.

5. A respondent is entitled to raise any issue relevant to the maintenance calculation and is not confined to the appellant’s grounds. Under section 20(7)(a), an issue is raised if a party raises it at or before the tribunal’s decision. The tribunal’s inquisitorial jurisdiction requires it to decide all clearly raised issues and to assess the non-resident parent’s liability at the amount provided by law. The procedure adopted gave all parties an opportunity to address the variation and was not unfair.

The stay was lifted and the substantive appeals may proceed in the First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the non-resident parent’s appeal and upheld the First-tier Tribunal’s conclusion that the variation issue was within the scope of the appeals: [2024] UKUT 343 (AAC).

• First-tier Tribunal (Social Entitlement Chamber): on 30 May 2023, refused to set aside directions concerning the variation application and held that the consolidated child-maintenance appeals properly included that issue.