DB v Secretary of State for Work and Pensions & Anor.
[2023] UKUT 70 (AAC)
LP v Secretary of State for Work and Pensions & Anor (CSM)
24 September 2024
[2024] UKUT 302 (AAC)
Upper Tribunal
Two parents argued about who should pay child support. A judge said the lower court made a mistake by only looking at how many hours each parent spent with the child, not the actual care given. The judge said to look at all the care, like who gets the kids ready for school, cooks meals, etc., not just who had them overnight more. The case will be heard again correctly.
Key Facts
- •Separated parents share care of their child.
- •Dispute over which parent provides 'day-to-day care to a lesser extent' under regulation 50(2) of the Child Support Maintenance Calculation Regulations 2012.
- •First-tier Tribunal erred in law by focusing on number of hours and nights of care, rather than the amount of practical care provided.
- •Tribunal failed to make findings of fact on significant elements of care (school pick-ups/drop-offs, holidays, meals, clubs).
- •Tribunal treated additional nights' care as a 'trump card'.
Legal Principles
Definition of 'day-to-day care' in regulation 50(2) focuses on practical care, not just hours or nights.
JS v SSWP [2017] UKUT 296 (AAC), CF v SSWP & GG (CSM) [2018] UKUT 276 (AAC), MR v SSWP [2018] UKUT 340 (AAC), DW v SSWP and JH (CSM) [2023] UKUT 19 (AAC), DB v SSWP and SB (CSM) [2023] UKUT 70 (AAC)
Overnight care is a factor but not a 'trump card'; a holistic assessment of all aspects of care is required.
JS v SSWP [2017] UKUT 296 (AAC), MR v SSWP [2018] UKUT 340 (AAC)
Arranging for care (e.g., childminder, after-school club) constitutes 'day-to-day care'.
JS v SSWP [2017] UKUT 296 (AAC), MR v SSWP [2018] UKUT 340 (AAC)
Regulation 50(3) (child benefit presumption) is not a tie-breaker; all evidence must be assessed.
CF v SSWP & GG (CSM) [2018] UKUT 276 (AAC)
Tribunal must make findings of fact on significant elements of care, not just focus on hours or nights.
R(CS)11/02, CCS/1875/10, DW v SSWP and JH (CSM) [2023] UKUT 19 (AAC)
Outcomes
Appeal allowed.
First-tier Tribunal made errors of law by focusing on hours and nights, failing to make findings of fact on various care elements, treating additional nights as determinative, and using flawed numerical data.
Case remitted for rehearing.
A new tribunal will reconsider the case in accordance with the legal guidance provided in the Upper Tribunal's decision.
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