ROE v Secretary of State for Work and Pensions & Anor

A variation for diversion of income requires satisfaction of both the paying parent's ability to control relevant income and an unreasonable reduction of income by diversion. Where the tribunal finds that the parent was subject to a freezing order, it must explain how those requirements are met despite the restrictions. A failure to address them can make the reasons inadequate and amount to an error of law under the Child Support Maintenance Calculation Regulations 2012.

The mother, who cared for the parties’ child, appealed Child Maintenance Service decisions about maintenance payable by the father, the non-resident parent. The First-tier Tribunal allowed her appeals and varied the income used to calculate his liability. The father appealed to the Upper Tribunal. The Secretary of State supported his appeals, while the mother opposed them.

The First-tier Tribunal had found that the father was subject to a freezing order restricting his access to money from one of his companies. The central question was whether its reasons adequately explained how he could control the relevant income and had unreasonably reduced it by diversion, as required by regulation 71 of the Child Support Maintenance Calculation Regulations 2012.

1. The appeals were allowed. The First-tier Tribunal’s decisions involved an error of law because it did not adequately explain its findings on the statutory requirements for a diversion-of-income variation.

2. Under regulation 71 of the Child Support Maintenance Calculation Regulations 2012, the relevant requirements included that the father could control, directly or indirectly, the amount of income he received or that counted as his gross weekly income, and that he had unreasonably reduced income otherwise countable as gross weekly income or unearned income under regulation 69 by diverting it to others or to other purposes.

3. Given its finding that a freezing order restricted the father’s access to money from a company, the First-tier Tribunal had to explain how it was satisfied that both requirements were met. Without that explanation, it was impossible to know whether a variation was justified. Detailed reasons on other aspects of the decision did not cure this omission.

4. The father’s disagreements with the First-tier Tribunal’s assessment of evidence, findings and conclusions did not by themselves establish errors of law. Any other alleged errors would be subsumed into the rehearing.

5. The decisions were set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007. Because further factual findings were needed, the appeals were remitted to a fresh First-tier Tribunal for redetermination.

1. Upper Tribunal (Administrative Appeals Chamber) — allowed the father’s appeals, set aside the First-tier Tribunal decisions and remitted the appeals for redetermination: [2026] UKUT 283 (AAC) .
2. First-tier Tribunal (Social Entitlement Chamber) — on 11 June 2024, allowed the mother’s appeals against the Child Maintenance Service decisions and set those decisions aside. Tribunal case nos SC124/20/00688 and SC124/24/01291.