Green v Secretary of State for Work and Pensions (CSM): [2018] UKUT 240 (AAC) ; [2019] AACR 3

Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 18 July 2018.

• From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
• Published: 24 August 2018
• Last updated: 5 February 2020 — See all updates

• Categories: Child support
• Sub-categories: Child support - variation/departure directions: diversion of income
• Judges: Jacobs, E
• Decision date: 18 July 2018

Read the full decision in [2019] AACR 3ws

Judicial Summary

Reported as [2019] AACR 3

Child Support – 2012 Scheme – Diversion of Income – Regulation 71 of Child Support Maintenance Calculation Regulations 2012 – whether the transfer of an asset with potential income can amount to diversion

The NRP acquired a property from a trust fund (APF), but it was not let and he received no income from it. The NRP sold the property to a different trust fund (PT) of which he was not a trustee or a beneficiary. The property was subsequently let to a nursery on a 10 year lease at an annual rent of £50,000. The Secretary of State decided that the NRP child support liability was nil under the 2012 scheme. On an appeal to the First-tier Tribunal (Ft-T), the parent with care (PWC) argued that the diversion of the capital (the asset value of the property) led to a diversion of income and therefore she was entitled to a variation under regulation 71 of the Child Support Maintenance Calculation Regulations 2012. The First-tier Tribunal rejected the argument and found that as letting and rental occurred following the transfer from APF to PT, there was no diversion of income within the meaning of the law. The PWC appealed to the Upper Tribunal.

Held, dismissing the appeal, that:

1. regulation 71(1) contains two conditions: (a) the control condition; and (b) the diversion condition. For as long as the NRP was owner of the property, it was not let and he received no income from it. Regulation 71 did not apply because the NRP did not divert the income that might have been generated to another person or another purpose; (paragraphs 16 and 32)

2. once the property came into ownership of the PT, the NRP ceased to have any control over it. Accordingly, the control condition under regulation 71 was not satisfied, from which it follows that the diversion condition could not be satisfied either. (paragraph 33)

Published 24 August 2018
Last updated 5 February 2020 + show all updates

1. 5 February 2020

   Decision selected for reporting as [2019] AACR 3

2. 24 August 2018

   First published.