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Neutral Citation Number:	2010 UKUT 182 AAC
Reported Number:
File Number:	CSCS 570 2009
Appellant:	CS
Respondent:	CMEC
Judge/Commissioner:	Judge D. J. May Q.C.
Date Of Decision:	27/05/2010
Date Added:	30/06/2010
Main Category:	Child support
Main Subcategory:	variation/departure directions: just and equitable
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 2. Child support – variation of maintenance calculation – ability to control assets as a matter of Scots Law The parent with care applied for a variation of a maintenance calculation. The decision-maker refused to make the variation. The First-tier Tribunal allowed her appeal and determined that the maintenance calculation should be varied under regulation 18(1)(a) of the Child Support (Variations) Regulations 2000. The tribunal determined that the non-resident parent had assets amounting to £104,300 in which he had a beneficial interest and which he also had the ability to control. These consisted of two heritable properties and three policies of insurance which were jointly owned by the parties and of which, by order of the Sheriff Court, the parent with care had been ordered to transfer her half interest to the non-resident parent. The non-resident parent appealed to the Upper Tribunal. Held, allowing the appeal and re-making the tribunal’s decision, that: 1. in terms of regulation 18(1)(a) of the Child Support (Variations) Regulations 2000, it is not necessary for a party to own a particular asset. The regulation merely requires that person to have the ability to control the asset (paragraph 9); 2. at the material time, the parent with care owned her half share of the two heritable properties (which she had been ordered by the Sheriff to dispone to the non-resident parent) by virtue of the title in her name. Although it would have been open to the non-resident parent to apply to the Sheriff Clerk to grant a disposition in terms of section 5A of the Sheriff Courts (Scotland) Act 1907 in order to obtemper the failure of the parent with care to do so, it could not be said that the ability to require a third party to do something with an asset to complete a title to it was consistent with the concept of having an ability to control it. Accordingly the tribunal had erred in finding that the two heritable properties were assets for the purposes of the regulation (paragraph 9); 3. the insurance policies were not assets for the purposes of the regulation. The expression “chose in action” is a term of English law which is unknown in Scots Law (CCS/2499/2006 cited with approval). Without assignation to the non-resident parent of the interests of the parent with care in those policies, the non-resident parent could not surrender the policies in order to realise their value. It therefore could not be said that he had a beneficial interest in, or the ability to control, the half share of those policies owned by the parent with care until such time as her rights and interests had been assigned to him (paragraph 10); 4. the tribunal also failed to consider whether it would have been reasonable for the insurance policies to have been surrendered in order to realise their cash value. If it was reasonable for those assets to be retained to maturity, then the value of them would not count as part of his assets (paragraph 10); 5. it followed that the appellant’s assets for the purposes of regulation 18(1) did not exceed the statutory limit and a case for variation had not been established (paragraph 12).
Decision(s) to Download:	[2011] AACR 2 ws.doc