JS v SSWP and ZS (CSM) 2018 UKUT: The Upper Tribunal decision in respect of the father’s appeal concerning the decision of the First-tier Tribunal (child maintenance)

02 / 07 / 2018

On 24 May 2018, the Upper Tribunal Judge gave their decision in respect of the father’s appeal concerning the decision of the First-tier Tribunal (child maintenance). This is where the Child Maintenance Service had made a decision with regards to the father’s liability to the mother for child maintenance which he did not agree with. This was therefore challenged by the father through the Child Maintenance Service itself, then to the First-tier Tribunal and then subsequently to the Upper Tribunal as the father argued that the First-tier Tribunal’s decision made an error on a material point of law. The Upper Tribunal however has not overturned the decision of the lower Tribunal and therefore it remains.

By way of background, the issue in dispute between the parents was what period should be considered/taking into account when calculating the father’s liability for child maintenance.

This is because when calculating the paying parent’s liability for child maintenance, various factors are taken into account including, but not limited to, the number of nights that the relevant child (or children) stay with the paying parent overnight. This is because if on average the relevant parent has the child (or children) one night per week, they get a 1/7 deduction in the amount of child maintenance that they are required to pay, two nights per week, a 2/7 deduction and so on.

Previously, the child maintenance legislation looked at the previous 12 months in order to determine this. However, the current legislation provides that:

2.) Subject to paragraph (3), the determination is to be based on the number of nights for which the non-resident is expected to have the care of the qualifying child overnight during the 12 months beginning with the effective date of the relevant calculation decision.

3.) The Secretary of State may have regard to a period of less than 12 months where the Secretary of State considers a shorter period is appropriate (for example where the parties have an agreement in relation to a shorter period) and, if the Secretary of State does so, paragraphs 7(3) and 8(2) of Schedule 1 to the 1991 Act are to have effect as if –

  • the period mentioned there were that shorter period; and
  • the number of nights mentioned in the Table in paragraph 7(4), or in paragraph 8(2), of the Schedule were reduced proportionately.

4.) When making a determination under paragraphs (1) to (3) the Secretary of State must consider –

  •  the terms of any agreement made between the parties or of any court order providing for contact between the non-resident parent and the qualifying child; or
  • if there has been no agreement or court order, whether a pattern of shared care has already been established over the past 12 months (or such other period as the Secretary of State considers appropriate in the circumstances of the case)”.

 

 

Therefore, this is looking forwards: how many nights overnight is it anticipated that the paying parent will have the child (or children) overnight in the forthcoming 12 months (or shorter period if it is deemed that it is appropriate to consider that period instead)?

Returning to the case in question, the mother had made an application for an assessment of the father’s liability for child maintenance on 17 August 2015.  As mentioned above, the father did not agree with the Child Maintenance Service’s decision and challenged this. The father challenged it on the basis of the fact that the 12 months had been looked at; however, the father previously had the child every Thursday and Friday night and each alternative Saturday night from separation but from July to October 2015 the father had the child much more frequently (even to the extent of the father saying that in those 4 months no child maintenance would have been due to the mother at all).

The father argued that the “or such other period as the Secretary of State considers appropriate in the circumstances of the case” should be applied, so that the 12 months should be looked at in 4 months and 8 months blocks as he said that was fairer. On the other hand, the mother said that whilst the child was with their father more during the relevant 4 month period due to her work pattern during that time, it was “an isolated case” and her work pattern would not be the same in the following 12 months.

The First-tier tribunal’s Decision Notice reads, in part:

“There was no real issue between the parties as to the number of [the child’s] overnight stays with [the father] during the 12 month period…..

The central issue is the length of the period to be taken into account for the purposes of Regulation 46…..Should it be a 12 month period or a period of less than 12 months as provided for in Regulation 46. [I have] to decide whether I take the 4 month period or a full 12 months as demonstrated at page 179.

 Both parties accept that during a course of a 12 month period there is an element of fluctuation.

 In my judgment the Regulations, whilst being a blunt instrument, were designed to iron out such fluctuations and whilst I recognise that that taking a 12 month period is more disadvantageous to [the father] then taking the 4 month period which would be disadvantageous to [the mother], on balance I prefer the 12 month period for the purpose of calculating overnight care as this levels out the peaks and troughs and produces a result which is fair and equitable to both parties in the spirit of the regulations” (the words in italics are additional words which were used by the First-tier Tribunal in its statement of reasons).

The father appealed on the basis of the above decision as he said that it did not provide a “fair and equitable result”.

The Upper Tribunal then dealt with the case and it had to decide whether the lower tribunal erred on a material point of law.

Ultimately, the Upper Tribunal agreed with the First-tier tribunal and upheld its decision.

The reasons (in brief) were as follows:

  • The starting point is a 12 month period. In some circumstances, a shorter period may be considered appropriate but that is an exception to the rule.
  • Whether the Secretary of State thinks it “appropriate” to use a shorter period gives them a wide discretion. It could not be demonstrated that the Secretary of State failed to take into account all the circumstances of the case or that the decision was legally perverse – the latter being a high threshold to meet.
  • The above “error of law” tests were not met.
  • Both parents were discussing what had happened in the prior 12 months – but the Upper Tribunal did not believe that anything had materially changed in terms of what had been anticipated in the forthcoming months.
  • The First-tier tribunal did not refer to regulation 46(4) in its reasoning ((4) When making a determination under paragraphs (1) to (3) the Secretary of State must consider – the terms of any agreement made between the parties or of any court order providing for contact between the non-resident parent and the qualifying child; or if there has been no agreement or court order, whether a pattern of shared care has already been established over the past 12 months (or such other period as the Secretary of State considers appropriate in the circumstances of the case)” or if there had been an agreement between the parents for a shorter period but the Tribunal decided that there had been a pattern of contact in the past 12 months – with the relevant 4 month period being an exception – and the parents had not agreed a shorter period.

Judge Stewart Wright of the Upper Tribunal therefore declared that “A one-off period could quite rationally be subsumed in a 12 month period, particularly where it did not arise under any agreement between the mother and father and where it was an exception to the previously existing settled pattern of shared-care. Its very exceptionality on the other hand may provide a basis for applying regulation 46(3). There are, however, no hard and fast rules.  It will depend on all the circumstances of the case and will be a matter for the evaluative judgment of the fact-finding body taking into account all relevant considerations.

 

It is for all the reasons set out above that this appeal by the father must fail”.