PP v Secretary of State for Work and Pensions and SP [2022] UKUT 286 (AAC)1 November 2022

Published: 09/01/2023 09:00


Upper Tribunal Judge Wikeley. Decision on F’s appeal.

A reconsideration of a re-assessment of F’s child maintenance liability resulted in FTT ruling (in the absence of both parties): (1) that F’s unearned income was £34,191; (2) that it was just and equitable to make a variation on the basis of a conclusion that F could have reasonably paid himself a dividend of approx. £164k instead of £30k and he had therefore diverted income. This resulted in the CMS demanding arrears from F of £55k. F, belatedly, asked for the decision to be set aside, permission to appeal was initially refused.

F renewed his application for permission to appeal on the grounds of: (A) procedural unfairness (owing to absence of parties); (B) diversion of income variation; (C) unearned income variation; (D) other relevant child and (E) shared care. The Secretary of State agreed with grounds B and C but disputed A, D and E. The judge agreed with that approach, set aside the FTT’s decision and remitted for re-hearing.

Judge highlighted the importance of obtaining a Statement of Reasons, the absence of which is not necessarily fatal to an appeal but may well be if it is impossible to know what the FTT’s reasoning was without it. The lack of a Statement of Reasons proved fatal to F’s first ground of appeal. Consideration was also given to assessment of ‘diversion of income’ and whether the HMRC figure for unearned income is determinative or just informative.

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