Green v Secretary of State for Work and Pensions and Adams (Interests in Trusts and Ability to Control Assets): [2018] UKUT 377 (AAC);[2019] AACR 13

Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 12 November 2018

• From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
• Published: 19 December 2018
• Last updated: 17 September 2020 — See all updates

• Categories: Child support
• Sub-categories: Child support - variation/departure directions: other
• Judges: Jacobs, E
• Decision date: 12 November 2018

Read the full decision in [2019] AACR 13ws

Judicial Summary

Reported as [2019] AACR 13

Child Support – interests in trusts – ability to control assets

The parents of a child, who was by the time of the appeal to the Upper Tribunal, seventeen years old, each appealed against three decisions of the Secretary of State concerning the non- resident father’s liability for child support under the 2003 Child Support Scheme. The three decisions covered defined time periods between April 2009 and August 2013. The non- resident father was a beneficiary of a family trust which had been set up by his parents for the benefit of various family members and which held various assets which the parent with care mother argued were assets in which he held either a beneficial interest or had the ability to control within the definition in regulation 18 of the Child Support (Variations) Regulations 2000 (SI No 2001/156). The Upper Tribunal considered whether a beneficiary’s interest under a discretionary trust was an asset for the purposes of regulation 18 and therefore capable of constituting a case in which a variation might be agreed for the purposes of paragraph 4 of Schedule 4B of the Child Support Act 1991.

Held, allowing the appeals, that:

1. that an interest in a trust is not an asset for the purposes of regulation 18 which does not treat the beneficiary’s interest as an asset but treats the property transferred into the trust as such, disregarding the trust itself for those purposes (Adams v Secretary of State and Green [2014] UKUT 359 (AAC) not followed) ;
2. the beneficiaries under a trust do not have an interest in the assets held by the trust, they have a parcel of rights that protect their interests.

The judge remade the First-tier Tribunal’s findings of fact and remitted the case to the Secretary of State to remake the decisions.

Published 19 December 2018
Last updated 17 September 2020 + show all updates

1. 17 September 2020

   Decision selected for reporting as [2019] AACR 13

2. 19 December 2018

   First published.