A Kafkaesque child support decision

Family Law|March 8th 2016

Never having read any Kafka, I thought that, before I wrote this post, I should check my understanding of the term ‘Kafkaesque’, by Googling for a definition of the word. As with so many such commonly used terms, I quickly found that the definitions did not always quite match with one another. However, rightly or wrongly, here I am using the term to mean “having a nightmarishly complex, bizarre, or illogical quality”, as in “Kafkaesque bureaucratic delays”.

In my post here yesterday I mentioned that there have recently been two interesting child support decisions published. I covered one there, and in this post I will cover the other: SB v Secretary of State for Work and Pensions and & Another (Child support: calculation of income).

Now, as I believe I have stated here previously, the child support system has, since its inception, been characterised as being mired in a thicket of almost impenetrable rules and regulations. That thicket could of itself be quite easily described as ‘Kafkaesque’, but in this particular case the term was used by the First-Tier Tribunal to describe a truly absurd situation, brought about by a literal interpretation of the rules.

The case is believed to be the first time that a decision under the current 2012 child support maintenance scheme has been considered by the Upper Tribunal. As we shall see, the 2012 scheme uses (or should use) the latest available figure for the gross income of the non-resident parent (‘NRP’), as supplied by HM Revenue and Customs (‘HMRC’), to calculate the amount of the child support.

The relevant facts in the case were that the parent with care applied for a maintenance calculation in May 2014. On the 2nd of June 2014 the Secretary of State electronically requested the NRP’s income data from HMRC. HMRC provided a figure for the tax year 2008/09, giving an annual income of around £34,000. The NRP was aggrieved with this because he said his current annual income for 2013/14, as was known to HMRC, was only some £30,000. He informed the Secretary of State’s child support officials of this fact.

This is where things got a little Kafkaesque. In response to the NRP’s information, a child support official tried to “re-trigger” the HMRC button, but it still only pulled through the 2008/09 income. The reason for this, apparently, was that the HMRC computer system was configured to permit only one request for a HMRC figure per maintenance application. Accordingly, the maintenance calculation was made on the basis of the 2008/09 figure. The NRP appealed. However, the First-tier Tribunal reluctantly refused his appeal, agreeing with the Secretary of State that the computer system was simply operating in accordance with the 2012 Regulations, which permitted only a single request for a HMRC figure.

The NRP appealed to the Upper Tribunal. By the time the appeal was heard the Secretary of State had withdrawn his previous argument, now accepting that further requests for HMRC income data are permitted where the data initially provided is out-of-date or inaccurate. The Judge of the Upper Tribunal agreed, saying:

“As the Secretary of State’s argument implies, it would be absurd if he had to rely on income data that was clearly wrong, artificially inflating or deflating a parent’s child support maintenance liability. I see nothing in the 2012 Regulations to prevent subsequent requests for a HMRC figure from being made if there is a reasonable doubt as to the accuracy of the information initially supplied.”

Accordingly, he allowed the appeal, set aside the First-tier Tribunal’s decision and directed the Secretary of State to make a fresh request for a HMRC figure and make a new child support maintenance calculation on the basis of that figure.

The full report of SB v Secretary of State for Work and Pensions can be read here.

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