YRC v Secretary of State for Work and Pensions & Anor

When deciding whether a parent is the non-resident parent in a shared-care case, the tribunal must apply regulation 50 on its own terms. It must decide, on all relevant evidence, which parent provides day-to-day care to the lesser extent. Overnight stays are relevant but are not conclusive, and the tests in regulations 46 and 47 must not be imported into regulation 50. The tribunal must examine the substance of the children’s actual care, rather than attach decisive weight to labels in a child arrangements order or to recitals describing parental responsibility. A tribunal must also explain the factors it has considered sufficiently to make its reasoning intelligible.

The appellant challenged a First-tier Tribunal decision concerning liability to pay child support for two children. The First-tier Tribunal had treated the appellant as liable to pay child support and applied a shared-care reduction, relying principally on the number of nights spent by the children in each household and referring to the threshold in regulations 46 and 47.

The Upper Tribunal considered whether the First-tier Tribunal had applied the correct statutory test under regulation 50, whether it had wrongly taken account of a later family-court order, and whether an oral hearing was required in the Upper Tribunal.

1. Outcome. The appeal was allowed. The First-tier Tribunal’s decision of 2 August 2023 was set aside for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted for a complete rehearing before a newly constituted tribunal at an oral hearing.
2. Extension of time. Applying the three-stage approach in Martland v Commissioners for HMRC [2018] UKUT 0178 (TCC) and BB v Disclosure and Barring Service (extension of time) [2019] UKUT 366 (AAC), the breach was moderately serious. The appellant’s advisers provided a potentially good reason for part of the delay, and the underlying appeal appeared strong. The extension was granted after weighing all the circumstances, including the absence of material prejudice and the children’s interest in correct support calculations.
3. Regulation 50. Regulation 50 had to be applied without importing considerations arising under regulations 46 and 47. Whether a parent provides a home and provides day-to-day care to a lesser extent must be determined as a question of fact in light of all relevant evidence. Overnight care is one factor, but it is not conclusive: JS v SSWP and another (CSM) [2017] UKUT 296 (AAC).
4. The First-tier Tribunal appeared to have looked exclusively at overnight stays. If it had considered other factors, it gave no adequate explanation. That failure was an error of law: Flannery v Halifax Estate Agencies [2000] 1 WLR 377.
5. The family-court order dated 22 December 2021 post-dated the decision under appeal and should not have been considered. In any event, the statutory question concerned actual day-to-day care. The tribunal should be cautious about treating the description of an order, such as a shared-care label, as significant where the underlying arrangements are the same. A recital concerning equal responsibility or decision-making cannot establish how care is actually exercised without supporting evidence.

The fresh tribunal was directed to reconsider all issues of fact and law afresh. The success of the appeal carried no implication as to the likely result of the rehearing.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision of 2 August 2023 was set aside and the case remitted for a complete rehearing before a fresh tribunal. The Upper Tribunal decision is [2024] UKUT 430 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): decision made on 2 August 2023 under number SC914/22/00006; set aside for error of law.