EVH v SSWP & Anor

Regulation 76(2) of the Child Support Maintenance Calculation Regulations 2012 cannot be applied to a period before it came into force. Doing so gives the provision an impermissible retrospective effect and is a material error of law.

Further, regulation 76(2)(a) asks whether a young person performed at least 24 hours’ remunerative work in any week during the prescribed period. It does not permit hours to be averaged over a representative period. For child-benefit purposes, the relevant week runs from Monday to Sunday.

The appellant was the parent with care of two children. The second respondent was liable to pay child maintenance. On 25 September 2021, the Secretary of State made a supersession decision removing one child from the claim from 6 September 2021.

The second respondent appealed, contending that the child had left education and had worked sufficient hours from June 2021 to cease being a qualifying child. The First-tier Tribunal found that she had worked an average of more than 24 hours per week between 7 June and 2 September 2021, and treated her as engaged in remunerative work throughout that period.

The appellant appealed to the Upper Tribunal. The central issues were whether the First-tier Tribunal had applied regulation 76(2) before it was in force and whether hours under that provision could be calculated by averaging them over a representative period.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law. It was set aside and the appeal was remitted for a complete rehearing before a differently constituted First-tier Tribunal.

2. Regulation 76(2) of the Child Support Maintenance Calculation Regulations 2012 was inserted on 19 July 2021. The First-tier Tribunal nevertheless used it to determine the child’s status from 7 June 2021. That gave the provision retrospective effect for a substantial part of the period considered. The tribunal had therefore misdirected itself as to the applicable law: paras [8]-[9].

3. The Upper Tribunal also observed, for the assistance of future tribunals, that regulation 76(2)(a) requires consideration of whether the person was engaged in remunerative work in any week during the prescribed period. Read according to its ordinary natural meaning, it contains no power to calculate weekly hours by averaging work over a representative period: paras [10]-[14]. By section 147(1) of the Social Security Contributions and Benefits Act 1992, the relevant child-benefit week is seven days beginning on Monday. The observation was not germane to the outcome of this appeal.

4. Further factual findings were required. The remitted tribunal must consider all relevant evidence afresh and must not take account of the set-aside tribunal’s findings or conclusions. It may consider later evidence only insofar as it bears on circumstances at the date of the Secretary of State’s decision: paras [16]-[23].

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appellant’s appeal, set aside the First-tier Tribunal’s decision for material error of law, and remitted the appeal for rehearing: [2025] UKUT 77 (AAC).

• First-tier Tribunal (Social Security and Child Support): Determined the second respondent’s appeal against the Secretary of State’s supersession decision of 25 September 2021. It treated the child as having undertaken remunerative work by averaging her hours over the period from 7 June to 2 September 2021. Its decision was set aside.