WK v The Secretary of State for Work and Pensions & Anor

A tribunal must resolve material contradictions in the evidence concerning the decisions under appeal. It must not determine an appeal on an uncertain account of the agency decisions or their effect.

Where it brings a further decision within the appeal, procedural fairness may require it to obtain the decision itself, seek the decision-maker’s explanation of its legal basis, and consider an adjournment. A party must have fair notice of the regulatory case to meet and a proper opportunity to participate. Failure in those respects is a material error of law and may require the decision to be set aside and remitted.

The appellant challenged child-maintenance calculations concerning his daughter. Four of his other children had initially been treated as relevant other children, but were later accepted to be children in a family-based arrangement.

The First-tier Tribunal dismissed his appeal against decisions said to have been made in February 2021. It accepted that the four children were not relevant other children, but did not retrospectively treat them as children in a family-based arrangement.

On appeal, the Upper Tribunal considered apparent conflicts between the CMS response and the relevant decision letters, the absence of a copy of one decision, the lack of a CMS submission explaining its regulatory basis, and whether the appellant had fair notice of the case he had to meet.

1. Appeal allowed. The First-tier Tribunal’s decision was made in error of law. It was set aside under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a), and the case was remitted to a freshly constituted First-tier Tribunal under section 12(2)(b)(i).

2. The First-tier Tribunal failed to identify and resolve material conflicts between the CMS response and the CMS letters concerning the terms and effective dates of the decisions of 9/10 February and 18 February 2021. There was no satisfactory answer to the Secretary of State’s concession that these failures were errors of law.

3. Having treated the 9 February 2021 decision as within the appeal, the First-tier Tribunal should at least have considered an adjournment. It had neither the decision letter itself nor a CMS submission addressing that decision.

4. The absence of the decision and of an explanation of its regulatory basis meant that the appellant was not given fair notice of the case he had to meet. He was thereby disadvantaged and was not afforded a fair opportunity to participate fully in the proceedings.

5. The merits of the revised maintenance calculation were not determined. The Secretary of State was directed to provide a supplementary submission addressing the conflicting documents, the missing decision, and the basis on which the children were removed retrospectively as relevant other children but not retrospectively included as children in a family-based arrangement.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the matter for a fresh hearing.
• First-tier Tribunal (Social Entitlement Chamber): On 28 June 2022, dismissed the appellant’s appeal and confirmed the CMS decisions concerning his child-maintenance liability.