RR v The Secretary of State for Work and Pensions & Anor

RR appealed to the First-tier Tribunal (“FTT”) against the following decisions regarding his child maintenance liability for his two children “F” and “L”:

The FTT decided to hear all three appeals together. After a hearing in November 2022, there was an oral hearing of the appeal on 19 June 2023 before an FTT consisting of a Judge and a Financially Qualified Tribunal Member. RR took part, as did a presenting officer on behalf of CMS. CF, the mother of F and L, did not take part in the hearing. The FTT adjourned the hearing of the appeals on 19 June 2023. On 28 June 2023, it made directions for the parties to provide additional information.

No further hearing took place. It appears the FTT dealt with the appeals in chambers on 27 November 2023.

On 08 December 2023, the FTT issued a decision for appeal SC297/18/00917. This allowed RR’s appeal, and set aside CMS’s decision dated 22 March 2026, as revised on 17 August 2018. The FTT decided that RR’s child maintenance liability for his children should be based on earned income of £33,900 per annum and include a shared care reduction of 3/7s in respect of the children.

On 13 December 2023, the FTT issued a single decision notice for appeals SC297/20/00568 and SC297/20/00683. The FTT decided the following:

The FTT issued a single Statement of Reasons for all three decisions on 17 June 2024. It refused RR permission to appeal against its decisions, in a decision issued to the parties on 21 August 2024.

On 11 September 2024, the Upper Tribunal received an application from RR for permission to appeal against the FTT’s decisions. In a decision darted 29 January 2025, I granted RR permission to appeal, limited to the grounds set out below.

The FTT’s approach in determining the appeals on the papers: RR had requested an oral hearing of his appeals in his appeal forms for appeals SC297/18/00917 and SC297/20/00568. While RR did not tick any box about having a hearing for appeal SC297/20/0038, he proceeded to tick the box stating he was available to attend a hearing at any time. CF ticked hearing enquiry forms for the appeals indicating she also requested an oral hearing of those appeals.

Rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (“the 2008 SEC Rules”) provides that subject to paragraphs (2) to (5), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless: (a) each party has consented to, or has not objected to, the matter being decided without a hearing; and (b) the Tribunal considers that it is able to decide the matter without a hearing. The First-tier Tribunal must also have regard to the overriding objective in Rule 2 of the 2008 SEC Rules and, in particular, whether it is fair and just to proceed without a hearing (see DT v SSWP (UC) [2019] UKUT 268 (AAC)).

The three appeals covered a period of approximately 4 years, involved just under 1500 pages of documents, and indicated a substantial level of dispute between RR and CF about whether he provided day to day care to a lesser extent than CF. The appeals also included disputes about the level of shared care, the income or capital available to RR and his assets and whether the FTT should agree to one or more variations (for assets for unearned income and for diversion of income). The FTT adjourned the appeals on 19 December 2022 in circumstances where the Judge’s note of the hearing indicated CF left the hearing before she had given any oral evidence about why she considered day to day care of F and L was not equal and instead favoured her. On that occasion, the FTT heard oral evidence from RR but adjourned the hearing when it realised RR was giving oral evidence while in Spain and the authorities in Spain had not given the necessary permission for him to do so.

The FTT adjourned a second hearing of the appeals on 19 June 2023 in circumstances where CF did not participate in the hearing. The transcript RR provided of that hearing does not indicate that the FTT addressed whether, under rules 2 and 31 of the SEC Rules 2008, it should proceed with the hearing in CF’s absence. The FTT’s Adjournment Notice dated 19 June 2023 explained the FTT adjourned the hearing because CMS had prepared for appeals SC297/20/00568 and SC297/20/00638 on a different basis (the appropriate level of shared care) and was not in a position to respond to arguments about whether RR provided day to day care to a lesser extent than CF.

The Adjournment Notice dated 19 June 2023 indicated the FTT was directing the parties to provide a substantial amount of further documentary evidence and for RR and CF to each complete a shared care questionnaire for the period from 2016 to 2020. It appears the FTT considered the evidence it directed the parties to provide was relevant to what it needed to decide, and it wanted the parties to comment on the decisions it was considering making. The FTT made a direction at paragraph 66 of the Adjournment Notice that any party was entitled to ask for a hearing following disclosure of further evidence (and made directions about this).

At least two of the three parties to the appeals (RR and CF) had requested oral hearings of them The FTT had listed, and then adjourned, oral hearings in situations where it did not consider the parties had given full evidence or been asked all the relevant questions about it. The FTT observed in its Statement of Reasons that the information received from the parties on the issue of day-to-day care was incomplete.

The FTT wrote at paragraph 6 of its Statement of Reasons that no party objected to the matter being finalised without a further hearing and that it had enough information, even without the evidence RR and CF had failed to provide, to make a fair decision. However, it was arguable the FTT needed to provide a more substantive explanation of its decision to proceed, in particular, about why it decided the appeals should no longer be dealt with at an oral hearing. The FTT also arguably needed to explain why it was fair and just to move from having the oral hearings several parties had requested to a paper-based determination, where an oral hearing would only be arranged if a party requested it. The FTT did not explain what had occurred to justify that change in approach.

In the circumstances, it was arguably procedurally irregular for the FTT to direct that the three appeals would now only be listed for oral hearings if a party requested this, and to proceed to determine the appeals on the basis of the papers. It is also arguable that such procedural irregularity was capable of affecting the fairness or outcome of proceedings. Further or alternatively, the FTT arguably failed to provide adequate reasoning in its Statement of Reasons to explain the approach it took and that this was adequate to allow it to proceed, applying rules 2 and 27 of the SEC Rules 2008.

Adequacy of the FTT’s factual findings and / or reasoning about day-to-day care: The FTT’s decision about day-to-day care, and its explanation of that decision in the Statement of Reasons, appear to be inconsistent with what it wrote in paragraph 51 of the Adjournment Notice dated 19 June 2023. The FTT stated in the Adjournment Notice that in the context of appeal SC297/20/00638, it was considering finding that there was equal day to day care of RR and CF’s children, and if so, RR’s appeal would succeed. The FTT referred to the possibility of making a decision that CF remained the person with care, “having heard further from the parties” (paragraph 52 of the Adjournment Notice).

In circumstances where the FTT had not received further evidence from CF (in particular), it was unclear why the FTT decided to prefer the documentary evidence she had previously submitted on this issue. The FTT appeared to have focused less on making factual findings about what CF provided in terms of day-to-day care during the relevant periods; instead, its focus at paragraphs 149 to 189 of its Statement of Reasons appeared to be on highlighting its evaluation of what care RR provided. Furthermore, it was arguable that paragraphs 145 to 148 of the Statement of Reasons did not provide adequate reasoning about why the Tribunal felt able to rely on what it described as “very little evidence” from CF, as demonstrating she provided day-to-day care to a greater extent than RR.

Adequacy of factual findings and / or reasoning for decision to agree to a variation for diversion of income: This ground related to appeal SC297/20/00638, the only appeal in which the FTT decided there was a diversion of income by RR. The FTT dealt with diversion at paragraphs 235 to 237 of its Statement of Reasons. It was arguable the FTT may not have made adequate, or adequately clear, findings of fact about the position in relation to his company “SA”, including the date on which RR’s sons, “J” and “F”, were appointed as company directors (paragraph 76 of Statement of Reasons).

RR had submitted a statement on 10 July 2023 that his children now owned a majority stake directly in the company (page 773 of appeal SC297/18/00917). The FTT wrote that RR was the majority shareholder in SA but had not explained what it made of RR’s written statement on this (paragraph 76 of Statement of Reasons). It may be that RR was a majority shareholder at one point in time and then became a minority shareholder. However, the Statement of Reasons did not address this.

At paragraph 237 of the Statement of Reasons, the FTT wrote that RR had effective control of the income due to J and F’s inexperience and respective positions in the family. It was arguable the FTT had failed to provide adequate reasoning about how RR had the ability to control what income he might receive from SA. For example, the FTT had not explained whether it considered RR’s control arose as a director or as a shareholder in the company (or in some other fashion). The Tribunal also had not explained RR’s position in contrast to what control could be, or was, exercised by other company officers or shareholders in SA.

The FTT stated in paragraph 237 of the Statement of Reasons that it had directed RR to provide financial disclosure, including the accounts for SA, and it had warned RR it might draw an adverse inference if RR did not. However, the documents the FTT had directed RR to provide were full company accounts, profit and loss and director’s loan account for the company). It is unclear that these would have identified who had control, in principle or in practice, within the company. The FTT’s ability to draw an inference from the failure to provide evidence did not remove the requirement to provide adequate reasoning for this part of its decision. It was therefore arguable the FTT had failed to provide adequate reasons for this part of its decision.

Ms Foody is the Secretary of State’s representative in these proceedings. She has provided a helpful written submission dated 26 March 2025. Ms Foody supports the appeals and invites the Upper Tribunal to set aside the FTT’s decisions dated 08 December 2023 and 13 December 2023 for containing material errors of law, for the reasons set out below.

Deciding to determine the appeals on the papers and explaining that decision: Ms Foody refers to paragraph 4 of the decision in DT v SSWP (UC) [2019] UKUT 268 (AAC). This states the following:

“The consideration found in rule in rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 is subject to the overriding objective in rule 2 of those rules, which includes dealing with an appeal fairly and justly and ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.”.

Ms Foody submits the FTT erred in law by failing to explain in the Statement of Reasons for its decision why it was fair and just to determine the appeals on the basis of the papers. She submits that, as decided by the House of Lords in South Bucks District Council v Porter (No. 2) [2004] UKHL 33, the reasons for a decision must be intelligible and adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issues of law and fact were resolved.

Ms Foody submits that in relation to the appeals it decided, the FTT failed to explain how it complied with the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 when deciding to determine the appeals on the papers. She submits the FTT failed to provide adequate reasoning for this part of its decisions and that this is a material error of law.

Adequacy of the FTT’s factual findings and / or reasoning about day-to-day care: Ms Foody submits that the FT failed to provide adequate reasoning for why it placed weight on the evidence provided by CF. She argues that while the FTT is entitled to prefer evidence from one party, it must ensure its reasoning is clear so that all parties can understand why it preferred this evidence.

Ms Foody submits that paragraphs 145 to 148 of the Statement of Reasons notes CF’s position about day-to-day care of F and L. Ms Foody submits that although the FTT stated it preferred CF’s evidence as it was not “as overstated” as RR’s (paragraph 148 of Statement of Reasons), the FTT had not explained why it found RR’s evidence to be overstated and which evidence it had in mind.

Ms Foody refers to paragraph 6 of the decision in CI/747/2011, which explains that a Statement of Reasons should address expressly the principal arguments advanced by the losing party. This is required for fairness, because only through giving reasons can a tribunal demonstrate it has given proper consideration to those arguments.

Ms Foody submits that in accordance with this principle, the FTT should have addressed the evidence, to demonstrate the FTT considered all the evidence provided and made a decision on the basis of this. She submits the FTT failed to do so and thereby made an error of law.

Adequacy of factual findings and / or reasoning for decision to agree to a variation for diversion of income: Ms Foody submits that the FTT’s reasoning at paragraph 237 of its Statement of Reasons about why it drew an adverse inference against RR, failed to explain adequately how the FTT determined that RR had control over SA. Ms Foody acknowledges the FTT is entitled to make findings of fact on the basis of the evidence before it and had warned RR about the potential consequences of failing to provide the required evidence. Ms Foody submits, however, that the FTT was still required to make its reasoning clear (see paragraph 2 of CCS/2152/04).

Ms Foody submits the FTT made an error of law because it failed to explain adequately how it decided that RR had such a level of control over the income of J and F and such a level of influence over reducing that income, to justify concluding there had been a diversion of income under regulation 71 of the CSMC Regulations 2012.

CF has provided a reply to the appeal. CF made generalised comments about the proceedings before the FTT and other matters. She has expressed frustration that the outcome of the appeals might be set aside on what she describes as a technicality.

RR has provided a response to the First Respondent’s Reply and a response to the Second Respondent’s reply, plus various other documents. In his response dated 24 May 2025, RR thanks Ms Foody for supporting the appeals, and for agreeing that the FTT made errors of law in its decisions. He states he broadly agrees with Ms Foody’s suggestion that the appeals are remitted to a new FTT to decide. RR invites the Upper Tribunal to use its discretion to accept all aspects of his appeal and to set out clearly that there cannot be any further claim for child maintenance from him outside what has already been paid.

In the alternative, RR asks the Upper Tribunal to refer the appeals back to the FTT to decide. At paragraph 17 of his submissions dated 25 May 2025, RR states: “Hence, if the matter cannot be dealt with in its entirety now and subject to agreement of and amendment as the court may see fit, I would like to suggest recommendations to the FTT should the matter be referred back to them and the appeal not succeed in its entirety.” RR then sets out a number of matters at paragraphs 17 onwards, which I understand to reflect the recommendations he is inviting the Upper Tribunal to make.

RR states at paragraph 34 of his submissions that:

“34.

Where maintenance payments were made on time and in the correct amount, leading up to shared time with shared day-to-day care from 2018, and the Mother has not participated in either of the last 2 hearings, and also not contributed to the submissions of the UT (at this stage), there seems little point in wasting more court resources with more hearings. DB v SB [2025] UKUT 027 (AAC) sets out that further facts needed to be found (§51), but in this case, I cant see how more requests for information going unanswered and more court hearings going unattended can be in any parties interests.”

At paragraph 3 of his submissions, RR submits that the matter has gone on for almost 7 years and almost certainly qualifies as “tortured” as per the judgment of Upper Tribunal Church at paragraph 50 of DB v SB [2025] UKUT 027 (AAC), He submits this is a case where the Upper Tribunal can use its discretion to remake the decision of the FTT and settle the matter in its entirety.

Under the heading “Other matters”, RR has expressed the view that the Secretary of State is a special type of litigant. Rr states he appreciates the reason for costs not to be available where the state is always one side of litigation in the Social Entitlement Chamber. He states that the Secretary of State is bound by the moral guidance of the Nolan Principles and that 1.4 of this appears particularly appropriate, as well as the legal principles in the Human Rights Act 1998 (specifically article 8 and the right to respect for private and family life). RR writes that there has never been a reason for the Secretary of State to defend its cases, and it never has in the Upper Tribunal, asking twice for the matter to be passed back to the FTT for reconsideration.

The Secretary of State did not ask for a hearing of this appeal. CF said she would take part in one if it would avoid the FTT’s decisions being set aside on a technicality. RR’s submissions received on 28 May 2025 did not state whether he wanted an oral hearing of the appeal or not. However, he has previously indicated he did want an oral hearing of his application, in particular because he asked me to reconsider my decision not to have an oral hearing of that application.

I have taken the preferences indicated above into account. Having looked at the matter for myself, I decided an oral hearing is not required. The Secretary of State and RR agree the FTT made material errors of law in its decision. Neither of those parties requires an oral hearing in order to put forward that agreed position. It is clear from their written submissions.

CF would take part in a hearing before the Upper Tribunal to argue against setting aside the appeals on the basis of what she describes as a technicality. However, the errors of law I identified as arguable, and which the Secretary of State and RR agree were made by the FTT, are not technicalities. They go to the heart of the decisions. The FTT has failed to explain adequately what it took into account and why. This is relevant to the substance of two of its decisions. It is also relevant to the process by which the FTT decided all three appeals on the papers.

In light of these matters, and taking account of the overriding objective, I decided it was proportionate to determine the appeals on the papers, and to avoid the further, unnecessary delay that would be caused by arranging for an oral hearing to reach a conclusion already sufficiently clear from the documents.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made one or more errors of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error of law in relation to each of its decisions that was material. The word “material” means an error of law capable of making a difference to the outcome of the specific appeal.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law for the reasons set by Ms Foody summarised at paragraphs 23 to 31 above, and addressed in more detail in her submissions dated 26 March 2025.

All three of the FTT’s decisions are materially affected by the error of law in relation to the decision to determine the appeals on the papers, and the failure to provide an adequate explanation for why that approach was consistent with rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008. The other errors of law go to individual decisions, rather than all three, but remain material to the individual decision in question.

I have decided the FTT’s decisions involved material errors of law. I have decided to use my discretion to set aside the FTT’s decision dated 08 November 2024. I do so, using the legal power in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Section 12 of the 2007 Act requires me either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

The Secretary of State asked me to remit the appeals to a new First-tier Tribunal to decide. RR asked me to decide the appeals myself. However, this is a case like DB v SSWP and SB (CSM) [2025] UKUT 027 (AAC), where further facts need to be found. There would need to be a hearing to do so. There are matters in at least two appeals (SC297/18/00917 – diversion of income and SC27/20/00568 – valuation of asset) which will require the use of financial expertise. The First-tier Tribunal is best placed to evaluate the evidence, using the dedicated expertise of Financially Qualified Tribunal Member, and to make appropriate findings of fact.

I therefore remit RR’s appeals to be reheard before a new First-tier Tribunal.

I decline to make any of the recommendations RR has suggested should be set out for the FTT to apply. In my assessment, they represent the position RR argues in relation to the appeals in question and are not simply matters of undisputed fact. Some of the matters seek to rely on what the FTT had decided (for example RR’s level of income at stated times). Those matters will require the new First-tier Tribunal to make its own findings of fact, having explored the evidence in the appeal.

It is, of course, open to RR to argue these positions before the FTT. To the extent that he seeks to ask the Upper Tribunal to effectively argue those positions on his behalf or to direct the FTT to accept them, it is not appropriate for me to do so. To do so, would potentially interfere with the judicial independence of the First-tier Tribunal, or could be perceived as doing so. Neither would be appropriate.

Although I have set aside the FTT’s decisions dated 08 December 2023 and 13 December 2023, I am not making any findings, or expressing any view, about what would be the appropriate level of child maintenance for F and for L (or either of them) at the various effective dates covered by the CMS’s decisions under appeal. The next First-tier Tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decisions it reaches.

RR has referred throughout these appeal proceedings to his concerns about the level of arrears CMS has calculated, and the approach CMS has taken towards recovering the arrears it states remain outstanding. He most recently wrote to the Upper Tribunal on this issue on 16 October 2025. As I explained to RR when I granted him permission to appeal, and in another Decision Notice dated 26 April 2025, section 20 of the Child Support Act 1991 sets out what can be appealed to the First-tier Tribunal. Section 20 does not include decisions about the calculation of arrears or how arrears are recovered. Those decisions are not appealable to the First-tier Tribunal. RR has referred to the fact section 20 refers to maintenance calculation decisions made under section 11. This is correct, but the appeals that I am remitting to the First-tier Tribunal deal with those maintenance calculation decisions. RR’s challenge against CMS’s decisions concerning levels of arrears and recovery of them, are not appealable to the FTT.

Finally, I note what RR has written about a moral case for costs as some form of accountability for the Secretary of State. I dealt with the scope for an application for costs against the Secretary of State, in paragraphs 42 to 44 of my decision granting RR permission to appeal. Rule 10(1) of the UT Rules 2008 confirms that the Upper Tribunal may not make an order in respect of costs in proceedings on appeal from another Tribunal except to the extent that the other tribunal had the power to make an order in respect of costs. As I explained in my decision granting RR permission to appeal, the Social Entitlement Chamber of the First-tier Tribunal has no power to make an order for costs. As a result, rule 10(1) of the UT Rules 2008 means the Upper Tribunal cannot do so either, in respect of RR’s appeals.

RR’s recent submissions do not change the position that under the relevant procedural rules, the Upper Tribunal does not have any power to order the Secretary of State to pay costs. There is therefore nothing to address in relation to RR’s suggestion that the Upper Tribunal should consider directing the Secretary of State to pay costs in this matter.