JP v Secretary of State for Work and Pensions & Anor

An error in a child-support variation is not material where correcting it would reduce the non-resident parent’s gross weekly income from one sum above the statutory cap to another sum still above that cap. In that situation the error cannot affect the maintenance payable, which is the subject matter of the First-tier Tribunal’s jurisdiction.

Section 8(6) of the Child Support Act 1991 gives the court a top-up jurisdiction once gross weekly income exceeds the specified figure. It does not make the precise amount by which income exceeds that figure relevant to the maintenance calculation or to the court’s discretion to make an additional maintenance order.

The First-tier Tribunal allowed the mother’s appeal against a supersession decision and found that the father’s maintenance liability was to be calculated using the maximum gross weekly income of £3,000. Its calculation included a variation in respect of the father’s interest in the Crows Nest holiday-let property.

The Upper Tribunal granted limited permission to appeal on whether that interest was excluded from the assets variation because it was used in the father’s trade or business. The father also sought to set aside the refusal of permission on a separate issue and to introduce a late ground alleging double counting. The central issue was whether the conceded error concerning the Crows Nest variation was material when the father’s income remained above the statutory cap without it.

1. The Upper Tribunal held that the First-tier Tribunal erred in law by making the Crows Nest variation. The mother’s response conceded, as a matter of fact, that the father’s 50% interest in the property was used in the course of his trade or business.

2. The error was nevertheless not material. An appeal under section 20 concerning a supersession under section 17 concerns the amount of child support maintenance payable. Under regulation 73(1) of the Child Support Maintenance Calculation Regulations 2012, variations under regulations 69 and 69A increase gross weekly income only up to the capped amount. The cap was £3,000 under paragraph 10(3) of Schedule 1. Even excluding the Crows Nest variation, the father’s gross weekly income exceeded that amount.

3. Section 8(6) of the Child Support Act 1991 did not alter that conclusion. It permits a court to make an additional maintenance order where a maintenance calculation is in force, gross weekly income exceeds the specified figure, and the court considers an additional order appropriate. Following the explanation of Dickson v Rennie [2014] EWHC 4306 (Fam), the relevant income is that assessed by the Secretary of State or CMS. The provision is concerned with whether income exceeds the cap, not the amount of the excess. Its discretion concerns an addition to child support maintenance, which does not change once the cap is reached.

4. The judge therefore declined under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to set aside the First-tier Tribunal’s decision.

5. The judge also refused the father’s applications. Rule 43 required both a procedural irregularity and that setting aside be in the interests of justice; neither was established. The proposed new ground was substantially late, unexplained, would delay proceedings, and had low prospects of showing a material error of law.

• Upper Tribunal (Administrative Appeals Chamber): held that the First-tier Tribunal made an immaterial error of law and declined to set aside its decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

• First-tier Tribunal (Social Entitlement Chamber): on 7 March 2024, allowed the mother’s appeal against the Secretary of State’s supersession decision and directed recalculation on the maximum gross weekly income figure of £3,000.