Woman seeking additional child maintenance from entrepreneur ex-partner loses appeal against Upper Tribunal decision

About this case:

• Citation:
  [2024] CSIH 28
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

It was maintained by the applicant LM that her former partner SM has deliberately manipulated the accounts of his business to deceive the Department for Work and Pensions into awarding her less money. The Advocate General for Scotland, responding to the application on behalf of the Secretary of State for Work and Pensions, opposed on the basis that the appeal was factual rather than legal.

The application was considered by Lord Pentland. The applicant appeared as a party litigant while the respondent was represented by Middleton, advocate.

Cooked the books

The applicant had a child, A, for whom she had caring responsibilities, with an ex-partner referred to as SM. SM worked as a police officer but also owned and ran his own businesses. In 2018 the applicant asked the Child Maintenance Service, run by the DWP, to fix the amount of maintenance SM should pay in respect of A, and in February 2019 it determined he should contribute £79.37 per week.

A mandatory reconsideration was sought by the applicant, who took the position that SM had manipulated his business accounts to deceive the CMS into calculating a lower figure. The CMS confirmed its original decision in March 2019, prompting an appeal to the First-tier Tribunal. At a hearing in May 2021 SM was unable to give a detailed explanation of his companies’ finances, however he appealed to the Upper Tribunal, which ordered the matter to be reconsidered by a differently constituted FTT on the basis that the first had erred in law.

At the re-hearing, SM and his accountant gave a better account of his companies’ affairs, and the FTT accepted their evidence in full. It concluded that there was no evidence SM had “cooked the books” and while the accounts revealed a history of “lax” financial organisation, there was no dishonesty on his part. The applicant sought permission to appeal this decision, but the Second Division of the FTT and the UT were not convinced that there was an error of law capable of being subject to appeal.

The proposed grounds of appeal submitted by the appellant were expressed as “inadequacy of evidence” and “lack of investigation”. While she sought to appeal the decision of the UT of 21 March 2024, both of these criticisms referred to the appeal to the Second Division. For the respondent it was submitted that the applicant had failed to identify a procedural irregularity in the decision amounting to an error of law.

Insurmountable difficulty

In his decision, Lord Pentland began: “LM does not accept the Second FtT Decision. She has formed the strongly-held view that it was wrong and that SM pulled the wool over the tribunal’s eyes. Her criticisms of the FtT and SM are detailed. For the purpose of deciding this application for permission to appeal, I have taken them pro veritate – in other words, I have assumed them to be true. That should not be read as suggesting SM has in fact behaved in the way LM describes, which is not a question I have to decide.”

However, he went on to say: “The starting point is the statutory scheme for permission to appeal which Parliament has set out in the Tribunals, Courts and Enforcement Act 2007. That statutory scheme provides that an appeal may be taken from the Upper Tribunal to this court on a point of law against any decision which is not an excluded decision per s13(8). S13(8)(c) provides that an UT decision on permission to appeal from the FtT is an excluded decision. Therefore, LM cannot achieve by this route her objective in bringing this application: to have the Second FtT Decision set aside.”

Assessing whether there was an identifiable error of law, Lord Pentland said: “None of [the appellant’s] grounds or statements says anything about the [UT] Decision. They are all directed at the Second FtT Decision. They do not, therefore, amount to arguable grounds that the UT erred in considering that there was no procedural error or irregularity in the proceedings in the UT. Although LM submitted that the lack of evidence supporting the Second FtT Decision was a procedural irregularity in itself, I do not consider even on a broad reading that this amounts to an arguable ground.”

He concluded: “At the end of the day the insurmountable difficulty for the applicant is that what she really wishes is to appeal to the Court of Session against the second FtT decision on the basis that the conclusions reached were factually wrong. She has not identified any genuine point of law. An appeal to the Court of Session on such factual grounds is not open to her.”

The application for permission to appeal was therefore refused.