Dale William Band, R (on the application of) v The Secretary of State for Work and Pensions

Eleanor Grey KC: Introduction .

1. This is an application for judicial review of the Defendant’s decision not to reimburse sums overpaid by the Claimant by way of child support. The Claimant, Mr Dale Band, is a parent who with effect from 15 October 2019 was treated by the Defendant, the Secretary of State for Work and Pensions (“the SSWP”) as a non-resident parent liable to pay child support maintenance for his three children to his former wife. He complains that between 2019 and 2024 he repeatedly notified the Defendant that he shared equal day-to-day care of the children with his former wife and should not have been treated as a non-resident parent. He appealed twice to the First-tier Tribunal (Social Entitlement Chamber) about this situation. Although his first appeal was dismissed in March 2022, a second appeal was allowed on 22 April 2024. The Tribunal held that he should not have been treated as a non-resident parent with effect from 18 November 2019. The Child Maintenance Service (“CMS”), which has at all times acted on behalf of the Defendant in making the effective decisions in this matter, duly confirmed his liability was nil from that date, meaning that the Claimant had overpaid Child Support maintenance (“CS”) in the sum of what the Defendant calculates to be £40,854.54.

2. Mr Band asked for reimbursement of this sum by the Defendant, from public funds. On 11 November 2024, the CMS decided to reimburse overpaid maintenance, in the sum of £14,609.54, from 12 August 2022 onwards. This is therefore some £26,245.00 less than would have been repaid had the CMS reimbursed all that was overpaid from 18 November 2019 (on the Defendant’s calculations). The CMS gave reasons for its decision on 25 November 2024.

3. By an application lodged on 14 February 2025, the Claimant seeks judicial review of this reimbursement decision (“the Decision”). Permission to apply for judicial review was granted on by HHJ Jarman KC on 9 May 2025 on four grounds, which are as follows: i) Ground One : The Decision was unlawful as the CMS did not understand and give effect to the law governing the action in question; specifically, the law relating to the supersession of decisions under s17 of the Child Support Act 1991 (“ the 1991 Act ”); ii) Ground Two : The Decision was made without due regard to material considerations, namely pre-August 2022 notifications and evidence; alternatively, the Defendant took into account immaterial matters; iii) Ground Three : The Decision was based on a mistake of fact , namely that full supporting evidence was not received until 12 August 2022 (rather than 12 April 2022). iv) Ground Four : The Decision was irrational.

4. The overarching issue which underlies all these points is whether the Defendant acted unlawfully in applying his policy regarding the reimbursement of overpaid sums of child support. The policy, which is not said to be unlawful, requires the Defendant to identify an error in the CMS’s handling of the application for support, and that the error or errors was causative of loss.

5. The Claimant, Mr Band, has had legal assistance until recently but represented himself in the hearing before me. I have been much assisted both by him and by Counsel instructed for the SSWP. I have considered all the issues raised by them, but sought to address only the key matters in this written judgment, rather than every point argued. The evidence before me consists of: (1) two witness statements from the Claimant dated 14 February 2025 and 17 October 2025; and (2) two witness statements from Mr Lee dated 12 June 2025 and 11 September 2025, filed on behalf of the Defendant, together with the supporting documents which, read as a whole, evidence the SSWP’s decision-making. I granted permission to enable Mr Band to rely on his second statement, prepared in reply to the second statement of Mr Lee. Factual Background

6. The factual background is set out in some detail below, as these events formed the basis of the submission that Mr Band’s representations (to use a neutral term) about his liability to pay CS had been mishandled by the Defendant, and that reimbursement should therefore have been made.

7. Mr Band and his former wife (“L”) have three children together. The couple separated in 2018 and L moved out of the family home, with the children, on 29 January 2019. Initially, L had primary care of the children and Mr Band voluntarily paid child maintenance.

8. On 9 October 2019, L applied to the CMS for a calculation of child support in respect of the three children. On 10 October 2019, the SSWP fixed the initial effective date of the maintenance calculation at 15 October 2019. On 13 October 2019, the CMS nominated L as the ‘parent with care’ and Mr Band as the ‘non-resident parent’ (“NRP”). However, the Claimant’s evidence is that the parents started an equal care arrangement with effect from 1 November 2019. The two parents have not been in agreement about the existence of equal care and so at times the SSWP received representatives or evidence from L, asserting that she was entitled to CS.

9. By a notice issued on 4 November 2019, the Secretary of State notified the Claimant of an initial maintenance calculation made under s.11 of the 1991 Act , with an effective date of 15 October 2019, under which he was required to pay £220 per week to his former wife. This maintenance calculation contained the maximum adjustment for shared overnight care, i.e. the Secretary of State decided that the Claimant had overnight care of his three children for 175 or more days per year, known as “Shared care band Equal”. But shared overnight care is not equivalent to equal day-to-day shared care; the latter was crucial, as if both parties are effectively providing equal day-to-day care of their children, then neither parent can be treated as the NRP, and a case may be closed or the application rejected. The Claimant did not seek mandatory reconsideration of this first decision and therefore was unable to exercise his right of appeal against it. Accordingly (says the Defendant), there can be no dispute that the Claimant was an NRP liable to pay CS as of 15 October 2019.

10. On 5 November 2019, Mr Band contacted the CMS to advise that the case should be closed as there was no non-resident parent. According to the Defendant, this was treated as an application to supersede the award previously made. However, by a decision made on 13 November 2019, CMS refused the application because the Defendant was not satisfied that equal shared care had been established; the Claimant should continue to pay CS in the sum of £220/week.

11. The Claimant notes that on 18/19 November 2019, he cared for one of the children when they were unwell, taking the day off work to do so. This, and other later similar episodes, were subsequently relied on by the Claimant to show that equal shared care was in place by 18 November 2019, if not earlier.

12. On 19 November 2019, Mr Band asked for mandatory reconsideration of the decision made on 13 November 2019, contesting (amongst other things) the use of receipt of child benefit by L to reach the decision. On 12 December 2019, his application was rejected. On 6 January 2020, he therefore appealed the decision of 13 November 2019 to the First-tier Tribunal (Social Entitlement Chamber) (“the F-tT”) . A formal Response to the appeal was filed by the Defendant on or around 14 February 2020. It noted that the Response Writer had reconsidered the decision under appeal, but was unable to revise it “As the decision under appeal contains contentious matters, in this case shared care that require consideration by the First-tier Tribunal….”

13. By a decision made on 7 March 2022 (i.e., over 2 years later), the Claimant’s appeal was dismissed by the First-tier Tribunal. The F-tT held that, as of the date of 13 November 2019, “shared care under Regulation 50 [of the Child Support Maintenance Calculation Regulations 2012 ] had not been established” – the arrangements were too unsettled or unclear. The F-tT was not, of course, purporting to rule upon events after the date of the decision under appeal; this was not its task in the appeal, but its decision establishes the legal status of the arrangements up to 13 November 2019.

14. However , on the evidence now available, the Defendant accepts that on and after 18 November 2019, the Claimant did have equal shared day-to-day care with his former wife; and, furthermore, that he informed the Defendant of this change of circumstances on or around the time when it occurred. See the Decision Notice of the F-tT in the second appeal, on 22 April 2024: it held that as of 18 November 2019, the Claimant was not to be treated as an NRP as he provided day to day care, and not to a lesser extent than L. This change had occurred by 18 November 2019. The effective date of the decision was the date that this change was notified to the Secretary of State, which the F-tT held was the same day.

15. Returning to the sequences of events as they unrolled, o n 14 April 2020 Mr Band notified the CMS (the Appeals Team) that HMRC had determined he met the conditions to qualify for child benefit (“CB”) with effect from 5 January 2020. He explains in evidence that he had been told by the CMS that the receipt of CB was the deciding factor in the award of CS; although he disputed this approach, he had applied for CB to resolve the point. Having been successful in his claim, in his letter to the CMS Mr Band therefore asked for the child maintenance arrangement to be reviewed and a finding that equal day-to-day care had been in place since 5 November 2019 (which he said was the relevant calculation date). He set out detailed reasons why his wife’s claim to CS should not be accepted. He explains in his witness statement that HMRC determined that both he and L met the conditions for the CB award, but as it could not be split evenly between them, he received child benefit for one child, with his former wife being awarded it for the other two (see the letter from HMRC dated 24 March 2020).

16. The Defendant’s system records receipt of these April 2020 representations, but no response.

17. Mr Band thus repeated his request on 6 May 2020, when he ‘phoned to chase a response to his April submission. The Defendant’s file notes record that he “stated he has provided copy of award from CHB along with other information to show that equal shared care applied.” Mr Band was advised that the advice might need to be sought, and then, on a call-back made on the same day, that as he had already appealed to the First-tier Tribunal no further decision “would be made without consulting appeals first”.

18. Internal CMS system notes suggest that on 7 May 2020, caseholders: a) Opened a ‘change of circumstances’ process, but then closed it down some three minutes later – the Defendant says that this must have been because it was recognised that such a process was incorrect (but there is no contemporary evidence of the reasoning behind these actions); b) A few minutes later, sent an email to the Advice and Guidance team, setting out the history of the case, including of the award of CB from 6 January 2020, and asking “Can we use the information PP [the Claimant] has provided from CHB to conclude that there is equal shared care (and day to day care) of 3 QC’s from 6/1/20 or can we only remove QC [Child 1] from case from 6/1/20 (once appeals have been consulted).”

19. On 11 May, Advice and Guidance responded promptly, noting that providing advice that was “intended to assist you in making the relevant decision on your case”. Decisions were a matter for the individual decision maker, although decisions might vary amongst the three children. “Only if you deem that there is no non-resident parent in respect of each child or that there is but the primary carer status is different from what is held on the case would you need to remove the child/ren or close the case and these changes would be from the date when the change occurred, for this reason, it is not possible to advise you on the actual date of the potential change, however, the dates could be different in respect of each child.” Links to decision-making guidance were provided, including to a flowchart with a header ‘effective-date-table-4-supersession-remove-child-role.” It is not disputed by the Defendant that what was being discussed in this exchange of emails was a potential supersession, whether concerning responsibility for the care of only one, or all three, children.

20. On 13 May, there is a record of an email being sent described as “Email to Appeals Service regarding removal of QC [Child 1] from 6/1/20”. The evidence is that the underlying email was automatically deleted from the Defendant’s system after 14 months and cannot be retrieved. There is no record of a response from the Appeals Team. Equally, there is no record of a decision actually being made as a result of these communications and the advice received, or of any communication with either Mr Band, or his former wife. The Claimant received no replies to his letters of 14 April or the telephone ‘chasing’ on 6 May.

21. Instead, the Claimant responded to Directions Notices from the F-tT dated 10 July 2020 (on 10 August) and then again on 22 January 2021 (on 11 February), on both occasions providing further information about the care provided by him for his children up to the date of those Notices. He points out that he was not aware that the F-tT would be concerned to assess only evidence relevant to events as of 13 November 2019 (i.e. the date of the decision under appeal). This was, he says in effect, further material available to the Defendant about the parenting arrangements at a later date.

22. On 16 October 2020, the SSWP carried out an annual review of the maintenance calculation and decided not to alter it. No request for mandatory reconsideration (or, thus subsequently, an appeal) was made, although the Defendant points out that this was possible; the Claimant in turn replies that the document appeared to concern the financial calculations only, not the underlying merits of the decision.

23. On 13 April 2021, a video hearing of the F-tT was due to take place. However, it was adjourned, apparently as no presenting officer for the SSWP was in attendance.

24. On 10 May 2021, Mr Band copied to the Defendant the complaint that he had made to his MP. In his letter to the MP, he outlined the share care arrangements, in place from 5 November 2019. There was a detailed account of his position. To summarise, the thrust of the letter concerned a challenge to the decision under appeal, insofar as Mr Band asserted that the position he described had been in place since November 2019. However, there are some broader passages, e.g., his account of the telephone discussion of 6 May 2020: “They still wanted internal guidance .. Again, I challenged this on the basis of their previous correspondence with me and that on their reasoning, surely this was a change of circumstance.” In his covering letter to the CMS, he complained of a “Failure to review your decision and the position – particularly in relation to my letter 14 th April and my responses to the Direction Notices, sent on 9 August 2020 and February 2021.” There was no reply to this correspondence.

25. According to a later email from the MP’s office, his MP then emailed the Defendant in August raising the case and highlighting the need for a “re-evaluation” following the successful claim for CB. The MP highlighted the successful claim for CB: “After the CMS were involved and the original claim was established, the care pattern with the children has now changed which is to trigger a change of circumstances re-evaluation….” Mr Band, it was noted, had been asked to provide evidence of such a set-up, through a claim to CB which would “provide sufficient evidence for the case of a re-evaluation of payment.” It continued: “This has now been processed and the evidence is attached. At this point, no re-evaluation has occurred and roadblocks have met the progress of this case.”

26. It appears that the CMS have no record of this correspondence from the MP. Eventually, the email from the MP’s office was resent to the CMS on 26 November 2021. The internal CMS records of this date record that the MP “wants us to consider a change of circumstances review in connection with PP’ case. He advises us that RP is no longer the primary carer if QC’s and care is now split equally between him and P since 5/11/19…”

27. A letter of response was sent to the MP on 31 December 2021. It acknowledged the importance of the CB issue in the decision of 13 November 2019 (“we rejected his request as CB was in payment to [L]”). It noted that Mr Band had asked for mandatory reconsideration and had then lodged an appeal. It continued: “As Mr Band’s appeal is currently ongoing we are unable to look at the decision again until the appeal is heard and we are informed of the outcome.”

28. After Mr Band commented on this letter to his MP, there was further communication from the MP. On 3 March 2022, a second letter was sent by the Defendant to the MP, responding to Mr Band’s observations. This letter confirms that the ‘Appeals Team’ had agreed with the refusal on Mandatory Reconsideration, and thus the appeal was ‘ongoing.’ It refers the decision under appeal being based on the evidence available at the time: “when we made our decision, CB was in payment to Mrs LB … and we are unable to confirm if information not available at the time would have impacted our decision.” I read this as a reference to the formal response to the F-tT, which as set out above had in February 2020 confirmed the outcome of the Mandatory Reconsideration. The letter thus confirms that there had been no substantive consideration of the impact of the CB award, or whether it might lead to supersession.

29. On 18 October 2021, the CMS conducted a second annual review and decided that the claimant remained liable to pay child maintenance in respect of all three children. According to the Claimant, on 25 October 2021, he sent a letter to the Appeals Team headed ‘Mandatory Reconsideration Noice.’ The letter again reiterated his case about equal care from 5 November 2019. In his second witness statement on behalf of the Defendant, Mr Lee says that there is no evidence that this was ever received by the SSWP – by email or by post (which should have led it being uploaded to the CMS computer system), and so this must be disregarded. But the SSWP also contends that in any event, on its true construction this letter involved a request for a revision of the decision of 13 November 2019, not a request for a supersession, as it asserted that the Claimant had shared care of the children from 5 November 2019.

30. On 7 March 2022, the first appeal was dismissed by the First-tier Tribunal, as set out above.

31. Following this and after taking legal advice, on 12 April 2022, the Claimant made an online service request, expressly seeking supersession of the maintenance calculation and filing a detailed letter of claim. He says that he uploaded significant supporting evidence to the CMS portal (referenced in his covering letter). However, the SSWP says that he has not found that supporting evidence, despite exhaustive searches.

32. Mr Band then wrote to check that all the documents uploaded had been safely received (listing what he had sent). He received an acknowledgment letter dated 15 April 2022. This confirmed that the CMS had received his “documents” and that they were being processed. However, this reassurance was sent in error, says the Defendant; the SSWP mistook information that it had received from HMCTS as information from the Claimant.

33. On 4 May 2022, the Claimant made a complaint, sent by email, to the CMS. He asked why earlier letters were not treated as applications for supersession. According to the Claimant’s evidence, he attached some 153 pages of evidence; but apparently this was not scanned on the CMS system at the time and the Defendant is therefore not in a position to identify what was or was not sent. There is a response to the complaint from the DWP dated 11 May 2022, which says that the DWP “did not act on your letters as this issue was already under appeal.” Mr Lee’s second statement says that as of 12 June 2025 and September 2025, the SSWP does not retain a copy of the email of complaint or the supporting evidence.

34. On 8 June 2022, a further letter was sent, with some 18 pages of evidence.

35. The SSWP considered the application for supersession of 12 April 2022 in July. By an initial decision made on 4 July 2022, the Defendant decided not to supersede the decision made in relation to two of the Claimant’s three children; but by a further decision dated 2 August, the SSWP reversed the decision in relation to the remaining child (for whom CB was being paid to Mr Band). That supersession decision took effect from 18 November 2019 and adjustments were made to the ongoing payments of CS still due (according to the Defendant) to take account of these decisions. These decisions were notified to the Claimant on 3 August 2022.

36. The Claimant sought mandatory reconsideration of the negative decision of 4 July 2022. On 12 August 2022, the Secretary of State received a letter from the Claimant dated 8 August 2022, attaching around 170 pages of supporting evidence. According to the Defendant’s Detailed Grounds and Skeleton Argument: “The Secretary of State accepts that this letter was not reviewed at the time, or before he declined to revise the decision of 4 July 2022, following mandatory reconsideration, on 7 September 2022 [SB/D5/180]. The Secretary of State accepts that had he reviewed this evidence at the time, he might well have revised the decision in the Claimant’s favour, ending his liability to pay CSM.” There was thus an official error made on 7 September 2022, when the SSWP upheld the decision of 4 July 2022 without taking this material evidence into account.

37. After this application for mandatory reconsideration was unsuccessful and on 20 September 2022, Mr Band appealed to the F-tT. On 22 April 2024, the Tribunal set aside CMS’ decision, on the basis that he was not to be treated as a non-residential parent; he provided day to day care, and not to a lesser extent than his former wife. The Tribunal was satisfied that this change occurred by 18 November 2019.

38. On 30 May 2024, the claimant asked the CMS to reimburse the maintenance he had overpaid. Following an initial rejection, Mr Band submitted a complaint.

39. By a decision taken on 11 November 2024 but explained in writing on 25 November 2024, the CMS decided that the Claimant should be reimbursed the amount of £14,609.54, with the operative date being 12 August 2022, on the basis that this was when the SSWP “first received the substantial evidence from the Claimant to support his request for equal day to day care”; that evidence should have been considered and would have supported the decision eventually made by the second Tribunal. This is the decision under challenge in these proceedings.

40. The decision under challenge made no reference to the representations made by Mr Band in the period before the first F-tT decision . The file notes of the reasoning justifies the decision-making during this period on the basis that the decision of 13 November 2019 was upheld by the F-tT, “therefore there was no errors made during this decision made by HMCTS.” It resumes the history on 12 April 2022. In the reasons subsequently provided, it is said in respect of this early period: “As you took our decision, with the effective date of 6 November 2019, to HMCTS [ie the F-tT] this could not be revisited, irrespective of the number of times you raised this, before the appeal was heard, as it was up to HMCTS to look at our calculation and decided if it was correct.”

41. The letter continues: “On 12 April 2022, you told us again that [L] was not the primary carer of [the three children]. We accepted that you were the primary carer of [Child 1], as Child Benefit is still in payment to you, and [L] did not provide sufficient evidence to prove she was still the primary carer. As such, we removed [Child 1] from the maintenance calculation, effective from 18 November 2019 …” It then considered the history of the documentary evidence supplied, and the financial calculations made.

42. There is a difference in the calculations of those losses between the Claimant and the Defendant. The Claimant says that he overpaid £42,928.60; the Defendant carried out his own calculations and arrived at a figure of £40,854.54 (First statement of Mr Lee, para 46). The Defendant’s calculations are not the subject of legal challenge, and I have not considered them further. Legal and Policy Background

43. Payments of Child Support Maintenance are made by a “non-resident parent” to support “ qualifying children” under the Child Support Act 1991 . If there is no non-resident parent, then the duty does not arise. So a shared care arrangement may remove the duty to pay CS, provided that statutory conditions relating to equal burden-sharing are fulfilled.

44. Initial decisions are made under s11 of 1991 Act and attract a right of appeal to the F-tT. The SSWP also has the power to revise a decision under s16 of this Act : “(1) Any decision to which subsection (1A) applies may be revised by the Secretary of State— (a) either within the prescribed period or in prescribed cases or circumstances; and (b) either on an application made for the purpose or on the Secretary of State’s own initiative; and regulations may prescribe the procedure by which a decision of the Secretary of State may be so revised. …. (3) Subject to subsections (4) and (5) and section 28ZC, a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect. (4) Regulations may provide that, in prescribed cases or circumstances, a revision under this section shall take effect as from such other date as may be prescribed. (5) Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised. (6) Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined.”

45. Regulation 14(2) of the Child Support Maintenance Calculation Regulations 2012 (“the 2012 Regulations”) provides that: “A decision may not be revised because of a change of circumstances that occurred since the decision had effect or is expected to occur.” Instead, changes of circumstances are dealt with as supersessions.

46. The SSWP explains that this means that the power of revision may be used to correct a decision that was wrong at the time when it was made; revisions take effect retrospectively from the date of the original decision. The power to revise may be exercised whilst an appeal to the F-tT is outstanding (see Reg 14(1)(c)). A refusal to make a revision does not attract a right of appeal.

47. The SSWP has a further power to supersede (amend) a decision under s17 of the 1991 Act , which provides, materially: “17 Decisions superseding earlier decisions (1)Subject to subsection (2), the following, namely— (a) any decision of the Secretary of State under section 11 or 12 or this section, whether as originally made or as revised under section 16 ; (b) any decision of an appeal tribunal or the First-tier Tribunal under section 20; may be superseded by a decision made by the Commission, either on an application made for the purpose or on the Secretary of State’s own initiative. (2) The Secretary of State may by regulations make provision with respect to the exercise of the power under subsection (1). (3) ….. (4) Subject to subsection (5) and section 28ZC, a decision under this section shall take effect as from the beginning of the maintenance period in which it is made or, where applicable, the beginning of the maintenance period in which the application was made. (4A)In subsection (4), a “maintenance period” is (except where a different meaning is prescribed for prescribed cases) a period of seven days, the first one beginning on the effective date of the first decision made by the Secretary of State under section 11 or (if earlier) the Secretary of State’s first default or interim maintenance decision (under section 12) in relation to the non-resident parent in question, and each subsequent one beginning on the day after the last day of the previous one. (5) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.”

48. These provisions are supplemented by Regulation 17 of the 2012 Regulations which provides, materially: “(1) A decision mentioned in section 17(1) of the 1991 Act may be superseded by a decision of the Secretary of State, on an application or on the Secretary of State's own initiative, where (a) there has been a relevant change of circumstances since the decision had effect or it is expected that a relevant change of circumstances will occur; (b) the decision was made in ignorance of, or was based on a mistake as to, some material fact; or (c) the decision was wrong in law (unless it was a decision made on appeal). …. (4) A decision may not be superseded in circumstances where it may be revised. (5) – (6) In making a supersession decision under s17(1) of the 1991 Act , the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause the decision to be made on the Secretary of State’s own initiative.”

49. Regulation 18 concerns the “effective date” for supersessions; broadly, where the basis of the decision is that there has been a change of circumstances, the decision takes effect from the date at which that occurred.

50. Regulations 19 and 20 concern the review of a non-resident parent’s income; these were the powers under which the annual reviews whose results were communicated to the Claimant in October 2020, 2021 and 2022 took place.

51. Regulation 50 concerns ‘shared care’ and was applied to this case: “Parent treated as a non-resident parent in shared care cases

50. — (1) Where the circumstances of a case are that— (a) an application is made by a person with care under section 4 of the 1991 Act ; and (b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant, the case is to be treated as a special case for the purposes of the 1991 Act . (2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant. (3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person. (4) For the purposes of paragraph (3), where a person has made an election under section 13 A(1) of the Social Security Administration Act 1992 (election not to receive child benefit) for payments of child benefit not to be made, that person is to be treated as receiving child benefit.”

52. Repayment of overpaid sums . This is governed by section 41 B of the 1991 Act , which provides: “41B Repayment of overpaid child support maintenance. (1) This section applies where it appears to the Secretary of State that a non-resident parent has made a payment by way of child support maintenance which amounts to an overpayment by him of that maintenance and that— (a) it would not be possible for the non-resident parent to recover the amount of the overpayment by way of an adjustment of the amount payable under a maintenance calculation ; or (b) it would be inappropriate to rely on an adjustment of the amount payable under a maintenance calculation as the means of enabling the non-resident parent to recover the amount of the overpayment. …. (2) The Secretary of State may make such payment to the non-resident parent by way of reimbursement, or partial reimbursement, of the overpayment as the Secretary of State considers appropriate. (3) Where the Secretary of State has made a payment under this section the Secretary of State may, in such circumstances as may be prescribed, require the relevant person to pay to the Secretary of State the whole, or a specified proportion, of the amount of that payment.”

53. In R (Dalton) v the Secretary of State for Work and Pensions [2017] EWHC 213 (Admin) Ms Lieven QC (as she then was) considered these provisions. She noted that whilst Section 41 B is, on its face, an unfettered discretion which does not set out any specific factors that must be considered, plainly in exercising the discretion, the Defendant must take into account all relevant matters, and exercise the discretion in accordance with the statutory purpose and any applicable Guidance. She noted that s41 B “necessarily contemplates that there will be overpayments which the Secretary of State lawfully decides are not to be reimbursed.”

54. The SSWP has published Guidance on the application of (relevantly) s41 B, contained in his Decision Maker’s Guide (“DMG”). Chapter 59 of the DMG addresses overpayments of CS. The DMG observes (para 59017) that there is no automatic right to reimbursements out of public funds, and such decisions should be made on an “exceptional basis”. In general, decision makers should, in deciding whether to consider a reimbursement, ensure that: “1. the NRP has asked for a reimbursement;

2. the overpayment was caused by a CMS error (for example, the CMS failed to act on information given to them);

3. any reimbursement is only from the date the Secretary of State they were told about the change (the notified date)” (para 59019).

55. The general approach to the interpretation of guidance is that (i) it is for this Court to interpret the meaning of a policy, applying an objective approach and having regard to the statutory purpose; however (ii) given that the application of a policy, properly construed, to a set of facts may involve an exercise of judgement, whether the policy has been properly applied will generally be judged in a rationality basis. The Grounds – Submissions and Analysis

56. Against that background, I turn to the Grounds and the parties’ submissions. Submissions were divided into what was described as ‘Phase 1’ – the period until the first F-tT decision and the application for supersession made on 12 April 2022, and ‘Phase 2’: the period from that application until 12 August 2022, which is the point from which the Defendant has acknowledged error and the need to repay overpayments of CMS.

57. What follows at paragraphs 58 - 93 relates to Ground 1 and Phase 1 only; this occupied the greater part of the Court time and argument. Phase 2 is addressed more briefly in the context of Ground 2 and 3, at paragraph 94 onwards. Ground One : Illegality, and the treatment of the case for supersession of the decision of 13 November 2019. A. The Defendant’s approach to revising the decision of 13 November 2019

58. The Claimant contends that the Decision was unlawful as the CMS did not understand and give effect to the law governing the action in question; specifically, the law relating to the supersession of decisions under s17 of the 1991 Act . The Claimant says that the Defendant wrongly determined that he had no power to reconsider a decision whilst it was under appeal to the First-tier Tribunal and failed to consider any alternative form of action. In support of the proposition that the Defendant should have considered whether the decision of 13 November 2019 should be superseded, he relies on all the letters or emails sent, which he says either explicitly or implicitly asked for supersession to be considered. Most specifically he relies on the communications: a) On 14 April 2020, when he first informed the Defendant that he qualified for CB for all three children; b) On 6 May 2020, when he ‘chased’ this submission, and the calls and internal communications that following in May 2020; c) The further evidence filed with the F-tT in response to the Tribunal’s Directions (August 2020 and 11 February 2021); d) On 10 May 2021, when he sent to the Defendant the detailed complaint to his MP; e) In August 2021, when his MP wrote to the Defendant; f) On 21 October 2021, when he asked for a mandatory reconsideration of the latest decision; g) In November/December 2021, when his MP reiterated the August 2021 complaint and this time received a response from the Defendant.

59. He points out that there was no substantive reply to his various requests until 31 December 2021, when the Defendant confirmed (in the letter to the Claimant’s MP) that “we are unable to look at this decision again until the appeal is heard and we are informed of the outcome”. The Defendant’s letter of 11 May 2022 took a similar approach.

60. He points out that the Decision Letter then states that “As you took our decision, with the effective date of 6 November 2019, to HMCTS, this could not be revisited, irrespective of the number of times you raised this, before the appeal was heard, as it was up to HMCTS to look at our calculation and decide if it was correct”. Further, he says that to rely on the applications as being ‘purely’ for revision (and therefore covered by the appeal) rather than for a supersession “is a retrospective rationalisation that cannot cure the earlier misdirection”. It is clear from the evidence, he says, that the Defendant took the view that it could not consider any application whilst the appeal was outstanding, and this was wrong.

61. Whilst most of these complaints relate to the history preceding the Decision, he says that the Decision was wrong in law as it failed to consider or acknowledge these errors.

62. The Defendant responds as follows: a) It is accepted that, insofar as letters such as that to the MP and the Decision Letter under challenge assert that a decision under appeal could not be altered, that was legally wrong. The power to revise an award persists even after there has been an appeal lodged (Regulation 14(1)(c) of the 2012 Regulations). The revised award will lapse the appeal (but a party offended by the fresh decision will have the right to request mandatory reconsideration and appeal if still aggrieved). b) The likely explanation for the error contained in the letters of (e.g.) 31 December 2021 and the Decision Letter is that the Secretary of State does operate a policy that cases under appeal will rarely be revised. See the SSWP’s decision-making guidance which says, in relation to cases under appeal “… one of the parties may produce further information / guidance that allows the disputed decision to be revised. NOTE: this action can be taken at any point until the appeal is heard and decided, if this occurs, but in practice, once the appeals Response has been submitted, we would normally leave decisions of this type to the Tribunal.” This, it is said, is a sensible policy given that the decisions affect two parents and it is not under challenge in the appeal (although I would comment that no policy can be applied in a ‘blanket’ fashion, especially when it may take more than two years for an appeal to be heard). c) However, any error of approach made in relation to the power to revise was not material, as the first F-tT dismissed the appeal against the decision of 13 November 2019; the decision was correct and should not have been revised.

63. I accept that last submission, based as it is on the F-tT’s decision in March 2022. I would, however, comment that this is the judgment of hindsight. The Defendant’s position does not account for the frustrations experienced by the Claimant. He had been told that the receipt CB by his wife was – as a minimum – a factor in the decisions of October and November 2019 (see for example the SSWP’s formal Response to his appeal, which at pp4 – 5 made it plain that the fact that his former wife was in receipt of CB was treated as a “good indicator” of who was the parent with the greater day to day care). Having applied for CB as a result and established his entitlement, he either received no response at all to representations based on it, or – eventually, in December 2021 - was told via his MP that this information did not mean that the decision could be reopened before the appeal was heard. B. The Defendant’s approach to supersession of the decision of 13 November 2019

64. The Defendant’s submissions above go to the issue of revision of the decision of 13 November 2019. However, the arguments before me were primarily focussed on the proposition that the Claimant’s letters either asked – whether explicitly or implicitly – for supersession of the decision of 13 November 2019, on the basis that there had been a change of circumstances; or, alternatively, that even if not directly requested, the SSWP erred by not considering supersession of his own initiative. The fact that revision would have been wrong does not address the alternative means of altering the decision, based on a later change of circumstances.

65. The Defendant responds as follows: a) The SSWP was “well aware” of his powers of supersession, which were well known and understood (see the first statement of Mr Lee, para 20). b) But, objectively construed, none of the ‘Phase 1’ communications relied upon amounted to an application for supersession. There was no obligation to consider such an application, or to generate a decision (favourable or unfavourable) that could have generated a right to reconsideration and then appeal to the F-tT, c) Whilst the SSWP does have a power to supersede an award on his own initiative, the conditions for the exercise of this power are more restrictive than under corresponding social security legislation, and any failure to exercise them in this case did not amount to an error of law. It was not erroneous not to consider supersession when the Claimant’s case was consistent and based on the proposition that equal shared care had been in place since 5 November 2019 – a matter for the F-tT. d) But in fact, the SSWP twice considered superseding the decision of 13 November 2019, as part of the annual reviews of the Claimant’s income in October 2020 and October 2021. No applications were made for mandatory reconsideration, when the award were upheld. Supersession and the Decision of November 2024

66. I observe at the outset that none of these issues were actually considered by the decision-maker, whether in the Decision Letter under challenge or in the underlying file note. As I have summarised above, the SSWP’s reasons deal summarily with events in Phase 1, dismissing this period on the basis of the findings of the F-tT only. There was therefore no consideration by the decision-maker of the issue of whether the representations made by Mr Band should have triggered consideration of supersession, in any form. Not surprisingly, Mr Band submits, in relation the submissions now made about this period, that this is all ex-post facto rationalisation, and does not represent a true account of decision-making.

67. In my view, the Decision of 11 November 2024 (and its expression in the reasons given on 25 November 2024) was flawed and defective, in that it failed to consider the material issue of whether the decision of 13 November 2019 should have been superseded by the SSWP at any point prior to the first F-tT decision. Given the decision of the second F-tT, the complaint or case for reimbursement was clearly based on the proposition that supersession should have taken place much earlier (thus cutting the NRP’s payments earlier). It was no answer to that complaint to assert that revision was impossible during an appeal and would not have been justified. There should have been a wider analysis of what happened in Phase 1 at this stage, and not merely in response to this application for judicial review. In my view, consideration of whether there had been “error” on the part of the SSWP in handling the case necessarily required consideration of whether the SSWP’s powers had been properly exercised, and that required consideration of all the powers designed to ensure fairness, as between two parents and their children.

68. To that extent, I also accept the complaint from Mr Band that the analysis now of what happened (or should have happened) is artificial, not being based on the Decision Letter.

69. On the other hand, there is no real point or merit in quashing the Decision of 25 November 2024 and remitting it back to the SSWP for further consideration, if all that is very likely to happen is that the SSWP relies upon the very points that have been ventilated in this application for judicial review. The SSWP could have accepted that, because of the legal flaw acknowledged by him (see para 62(a) above), the Decision should be set aside and remade. But that is not his approach. Instead, the SSWP now vigorously defends the legitimacy of the history of not using of the powers of supersession in Phase 1, and says that no material errors were made.

70. As a result, the issue of whether this was a failure or error on behalf of the CMS needs to be addressed – not least given its relevance to any relief. I have been invited to refuse any relief under section 31 (2A) of the Senior Courts Act 1981 (Defendant’s Skeleton para 57). This provides that: “(2A)The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under sub section (4 ) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B)The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.”

71. In looking at this issue, I should be mindful of the need to avoid reconstructing an artificial account of what decisions were actually taken during this period. However, the Defendant has given extensive disclosure of its files, enabling this to be carefully scrutinised. The SSWP has – properly - not asserted that decisions were taken, when they were not; rather the submission is essentially that the duty to supersede never fell to be exercised at all. The SSWP’s powers of supersession: the legal powers

72. The relevant provisions concerning the power of supersession were set out at para 47, 48 above. The Defendant draws attention to the fact that these powers are narrower than the provisions contained in (for example) the Social Security and Child Support (Decisions and Appeals) Regulations 1999 governing ‘general’ social security appeals. Reg 3(10) of the 1999 Regulations provides that: “The Secretary of State may treat an application for a supersession as an application for a revision”. Similarly, at Reg 6(5): “The Secretary of State may treat an application for a revision or a notification of a change of circumstances as an application for a supersession.” These provisions are then contrasted with Reg 6A(2) in the 1999 Regulations, which relates to supersessions made under the previous child support schemes: “A decision may be superseded by a decision of the Secretary of State on an application or acting under the Secretary of State’s own initiative, where [there has been a relevant change of circumstances]…” This language is consistent with that now used in Reg 17 of the 2012 Regulations (quoted above, para 48), which governs the present case. The distinction, says the Defendant, is that in the child support legislation, whilst the Secretary of State has the power to supersede on his own initiative, he does not have the power to treat an application for revision as an application for supersession.

73. Decision-making powers under appeal the 1991 Act (albeit in respect of the power of variation) were considered by Commissioner Jacobs (as he then was) in R(CS) 2/06, which concerned an by a parent with care against an income calculation for the NRP. Having considered the letter of appeal that had been lodged, the SSWP invited the parent with care to apply for a variation of a decision, before the appeal was forwarded to the Appeals Service. The SSWP then made a decision on that application (refusing it) and the appeal therefore proceeded; the procedural consequences were in issue. Commissioner Jacobs commented on the powers of the Secretary of State in that context. He observed, relevantly: “25. The Commissioners, and their predecessors in the social security jurisdiction, have encouraged the Secretary of State to be realistic and not to expect claimants to understand the adjudication procedures. This allows letters to be treated as applications for whatever course of action is most appropriate in the circumstances of the case. This allows the Secretary of State to deal with a letter from a claimant by reference to its substance rather than its form. It has also been used to allow any contact by the claimant to be treated as an application if this will be advantageous in terms of the effective date.

26. The same considerations that apply in social security apply in child support. However, the context is different. In the social security jurisdiction, the only parties are the Secretary of State and the claimant, and the Secretary of State is not a contentious party. In the child support jurisdiction in contrast, there will usually be two parties in addition to the Secretary of State; their involvement is contentious and their interests conflict. An interpretation of a letter that works to the benefit of one of those parties may work to the detriment of the other. That behoves a greater degree of restraint than is appropriate in the social security context. I suggest that in applying this approach in child support two qualifications are appropriate.

27. First qualification : It is appropriate to interpret letters by reference to their substance rather than their form. This is especially so if the writer is not represented and is not familiar with the child support adjudication procedures. However, it is not appropriate simply to treat any point of contact as an application just because that will be advantageous to the person concerned. To do so may operate to the disadvantage of the other party.

28. Second qualification : The approach can only be applied within the limits allowed by the legislation. In the case of an application for a variation, that means that it must be applied consistently with the Variations Regulations. The form in which an application may be made in governed by regulation 4. Regulation 5 allows an application to be amended and regulation 8 allows the evidence and information to be supplemented. Both those provisions show that it is not necessary for an application to be complete before it is made.”

74. Counsel for the Defendant (who helpfully drew this authority to my attention) submitted that the observation that, if in the social security context it is permissible to allow “any contact by the claimant to be treated as an application”, then to say “the same considerations that apply in social security apply in child support” was per incuriam and wrong. He submitted that it overlooked the difference in the statutory provisions regarding the two regimes; there is no general power, when looking at the CS regime, to treat an application for a revision or a notification of a change of circumstances as an application for a supersession. I was however invited to accept the point that a “greater degree of constraint” was required in the child support context.

75. I can see no reason to depart from the well-known proposition, in the field of social support and social entitlement generally, that claimants – usually dealing with the statutory authorities without the benefit of any representation or assistance - should be treated realistically, and the SSWP should look at the substance of communications to assess the action needed. To the extent there is a need for that general approach to be applied carefully in a field where there are two parents with colliding interests, this was recognised by Commissioner Jacobs. Further, his second principle referred expressly to the need to ensure conformity with the legislation and I am not persuaded that his comments were, therefore, made without consideration of material differences between two regimes. The question is what this implies, having regard to the facts and statutory regime applicable to this case.

76. I further note the application of this approach to the facts by Commissioner Jacobs, as he continued:

29. Bearing that in mind, it is possible that the Secretary of State could have treated the letter of appeal as an application for a variation. The letter was not worded as an application for a variation. It was worded as an appeal. But the Secretary of State treated the matter raised in the letter as appropriate to the variation scheme and invited the parent with care to make an application. That invitation makes it difficult to say that the Secretary of State treated the letter of appeal as the application. However, the letter could be treated as an invitation to allow it to be treated as an application and to provide further details and evidence. …

77. This paragraph is not a statement of the law, but an application of the approach set out at paragraphs 25 – 28 of the decision to the facts. But it illustrates the power that the Secretary of State has – within the Regulations – to take a practical approach to the contents of communications to him, including inviting a party to make an application. Even accepting that the SSWP lacks the power to treat an application for a revision as an application for supersession, he: (i) has the power to invite an application for supersession (see R(CS) 2/06) ; and (ii) in any event, may supersede of his own initiative. Whilst such powers, and perhaps particularly that of invitation, have to be exercised having regard to the contest between the two parents – see paragraph 26 of R(CS) 2/06 - any exercise of the power of supersession will give rise to rights of appeal. By contrast, a refusal to act on information about changes of circumstances may risk injustice.

78. The Defendant further submitted that: a) A NRP may make an application to revise or supersede; b) Where a valid application is made, the SSWP must consider and determine it; however, he has only to determine the application that is made, not any issues not raised by the application; c) If there is an application to revise, then, whilst there is a discretion to exercise the power to supersede on the SSWP’s own initiative, there is no duty to exercise this power; d) Specifically, if the Secretary of State considers a ‘supersession issue’ of his own initiative, but decides that no action is needed, there is no obligation to issue a determination to that effect (as there would be, had there been an application); e) Overall, it is vital to determine the nature of the contents of submissions by (here) the NRP to decide what is being requested as this determines the duties of the SSWP on receipt. It was accepted that this exercise of construction was an objective one for this Court.

79. Applying this approach to the facts, it is submitted by the Defendant that all of the representations made by the Claimant (and his MP) in ‘Phase 1’ were, objectively construed, applications for revision of the decision of 13 November 2019; this is apparent from the repeated emphasis on issues such as the fact that the shared care arrangements were in place by 5 November 2019. Accordingly, there was no obligation on the Defendant to treat them as applications for supersession and the duty to exercise the power of supersession never arose.

80. Furthermore, to the extent that there was any consideration of the case for a ‘change in circumstances’ and therefore supersession (as the Defendant accepts there was, in May 2020 – see the internal communications referred to above), and this was on the SSWP’s own initiative, it plainly did not result in a decision to supersede. There was no obligation to issue a decision as a result of the internal consideration of this matter, or to generate further correspondence with the Claimant (or his former wife). Analysis

81. First, I accept that the primary purpose of all the communications made by Mr Band and his MP to the Defendant (including its Appeals Team) in Phase One was to secure revision of the decision of 13 November 2019. At that time, that was the decision under appeal and it is not surprising that his focus was on persuading the Defendant to alter that decision, without waiting for the Tribunal.

82. However, this does not conclude the issue of whether either (i) there was an ‘application’ for supersession; or (ii) the Defendant had a duty to considering acting on his own initiative. In relation to the first point, it is possible for letters to serve more than one purpose. The Defendant accepts, as I understand it, that had the Claimant added an explicit rider to his requests to revision, asking in the alternative for supersession, that would have amounted to an ‘application’. There are no specific formalities required for such an application to be made in the 2012 Regulations, and it seems to me that it would be unrealistic and therefore wrong to expect a claimant to use the word ‘supersession’. In relation to the second point, the existence of a statutory power implies a duty to consider whether it needs to be exercised, in order to fulfil the statutory purpose; a failure to exercise it may be unlawful if contrary to that purpose (if authority for that proposition is needed, see RM v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 , at para 47).

83. In my view, in relation to both points, what is needed is a clear assertion that there has been a change of circumstances since the date of decision; or evidence of such a change sufficiently credible and relevant as to require consideration or further investigation. The purpose of the statutory powers is to enable corrective action to be taken, if the case for change is made out.

84. With this in mind, and focussing on the communications that in my view were key, it seems to me that on a fair-minded and objective reading: a) Although the letter of 14 April 2020 cannot be read as an application for supersession (given its repeated focus on the facts as at 5 November 2019), it did squarely raise the issue of a post-decision ‘change of circumstances’ (given the award of CB for Child 1 with effect from 6 January 2020), sufficient to trigger the SSWP’s legal duty to consider acting of his own initiative; further b) The MP’s communication – reaching the Defendant in November 2021 at any rate –referred clearly to a ‘change in circumstances’ and the need for “re-evaluation”, again based on the award of CB. In substance, this was an application for a supersession and should have been treated as such. Supersession, and the letter of 14 April 2020

85. With regards to the letter of 14 April 2020, my interpretation that this raised a potential case of a change in circumstances draws not only on an objective reading of its contents, but also upon the response and actions of the caseworker who began to investigate decision-making on that very basis, after Mr Band chased a response. See the email of 7 May 2020 seeking advice. The response from the Advice and Guidance centre (11 May) discussed the option of supersession. The title of the deleted email of 13 May 2020 to the Appeals Service makes it plain that the removal of one Qualifying Child was being actively contemplated.

86. The Defendant says that if the SSWP was acting on his own initiative but decided not to supersede, there would have been no further action needed; no decision needed to be generated. However, there is no evidence that such a decision was ever reached; rather, the decision-making trail runs cold after the email of 13 May 2020. If, as I have held, the legal duty to consider whether to exercise the power of supersession had been triggered, then a failure to complete the process, for no explicable reason, does not improve the position. Rather, it merely confirms that the SSWP acted unlawfully in failing to determine whether he should exercise of his power to supersede, and whether it was necessary to use the power to secure a proper and fair assessment of Mr Band’s liability for CS.

87. The Defendant has further argued (Skeleton para 55) that it would have been wrong to have superseded the CS award, for all three children, on the basis of the CB award only; what was important later was all the evidence of shared care, only supplied in spring 2022. But: a) There is no doubt that the fact that L “retained the child benefit” was considered to be a material factor in the original decision on day to day care (see the Defendant’s Response of 18 February 2020 to the F-tT at pp4 - 5, including the reference to the statutory presumption under Regulation 50(3) of the 2012 Regulations and that “Payment of [CB] is therefore a good indicator of who should be treated as the parent with care”). b) The importance of the CB change is reinforced by the reaction of the caseworker in May 2020 to the news that payments had since been altered by HMRC – supersession in relation to one child at least was in contemplation. Equally, the Defendant accepts (Skeleton, para 54) that ultimately the evidence supplied on 14 April 2020, regarding the CB award, was relied upon by the SSWP on 2 August 2022 to supersede the decision of 13 November 2019 with retrospective effect from 18 November 2019, in respect of one child. There is essentially no explanation for why that same supersession decision was not made in May 2020 (or shortly thereafter). c) The letter of 14 April 2020 contained information, not only about the award of CB but also about day to day care, including such matters as contact points or registered addresses for school, dentists and opticians. d) The Defendant relies on the fact that, logically, the case for supersession applied to all three children – the shared care arrangements covered all of them - as a justification for any failure to supersede in April/May 2020 (Skeleton, para 55). But that was not the approach of the caseworker in May 2020, nor was it the approach of the Defendant in July – August 2022, when the issue of CB was finally considered, and supersession of the decision in respect of one child took place. It seems to me that, had there not been a failure to complete the process of decision-making that started in May 2020, it is likely that supersession would have followed in the case of one child only. I am prepared to accept the Defendant’s submission that it did not, perhaps, have sufficient evidence in April/May 2020 to make a supersession in respect of all the children; but on the basis of the Defendant’s own approach two years later, there was sufficient to supersede in relation to one child. e) Even if supersession had taken place in May/early June 2020 in respect of one child only, this would have diminished the payments due from the Claimant. More materially (since the SSWP asserts that the overpayments established by the August 2022 decision were recouped by Mr Band after that date - see para 29 of Mr Lee’s first statement), such an outcome would have resulted in a new decision, triggering rights of mandatory reconsideration and appeal (for both parents). It would also have alerted Mr Band to the crucial distinction between revision and supersession, and invited further consideration of the day to day care of all the children. Looking at (for example) the submissions that Mr Band filed on 9 August 2020, in response to the F-tT’s Directions (which included important material such as the details of his daytime care of a child on 18 – 19 November 2019, taking time off work), it seems overwhelmingly likely that the Claimant’s response to any decision from the SSWP would have been to rely explicitly on the very type of evidence that was later to persuade the second Tribunal to make the further supersession decision, with effect from 18 November 2019. He was, at all times, an active advocate for his case. f) It therefore seems likely that, as a minimum, that an explicit application by the Claimant for supersession (perhaps in the form of mandatory reconsideration), coupled with supporting evidence, would have reached the SSWP by July 2020, or the beginning of August 2020 at the latest. g) An alternative approach, if there was doubt in May 2020, would have been to apply the approach discussed in R(CS) 2/06: i.e., the SSWP could have invited the Claimant to make an application for supersession and to supply any further information or evidence. What was profoundly unsatisfactory, and in my view failed to give effect to the SSWP’s duty to exercise his powers to secure a fair assessment of liabilities, was to leave, unaddressed by any decision-making process, the evidence of change after 13 November 2019 (including in the award of CB). Decision-makers should have appreciated that this could not be properly dealt with by the pending appeal, but it was never substantively considered.

88. I am therefore satisfied that the failure to not only consider but to accept the case for supersession in the Claimant’s favour – at least in respect of one child – shortly after May 2020 was not only an error, but caused loss. The SSWP accepts that he could and should have anticipated the decision ultimately taken by the second F-tT on 12 August 2022, as this was the date when he was “first supplied with substantial evidence substantiating the Claimant’s case that he was no longer an NRP”. That position should, in my view, have been arrived at some 2 years earlier: by the beginning of August 2020. Supersession, and the representations from the Claimant’s MP

89. Second, even if this is wrong, it seems to me that on an objective and fair-minded reading, the representations from the Claimant’s MP amounted to an application for supersession. Again, the basis for the request was the award of CB (with evidence supplied) and the statement that changes in the care pattern “trigger a change of circumstances re-evaluation.” The MP’s email framed the request in terms of ‘change of circumstances’ in the way that Mr Band’s own letter did not (it had a greater focus on the handling of the appeal). Internally, there were clear references to the fact that the “MP wants us to consider a change of circumstances review”.

90. These representations were ultimately received by the Defendant on 26 November 2021; there is no explanation for the fact that they were not received earlier, but nevertheless I accept that the Defendant’s response to the MP’s complaint must be assessed by reference to that November date only. The substance of the response was, however, legally flawed in that it referred only to the extant appeal (stating that as the “appeal is currently ongoing we are unable to look at this decision again”) and failed to grapple with the issue of whether the successful claim for CB made a difference.

91. At the hearing, there was some suggestion that the MP had no standing to make an application on behalf of Mr Band. If that was the attitude of the CMS at the time, it should have been explained in the reply to the MP and a proper application invited from the Claimant; but it was not. The MP’s intervention should have led to prompt consideration of the case for supersession, in any event.

92. The Defendant’s decisions to supersede . The Defendant points out that he did make two supersession decisions, in October 2020 and October 2021; so he did exercise the power to supersede (and the decisions could have been appealed). But in my view that does not negate the errors discussed above. The two October decisions involved reconsideration of the financial calculations. But there is no evidence that any of the issues relating to the Claimant’s underlying liability to pay CS were considered afresh, and the Claimant’s failure to appreciate that they could have provided a vehicle for a further and wider appeal is not surprising, given the narrow focus of the decision letters. It does not seem to me that these decisions affect the analysis of what went wrong. Impact on the Decision under challenge

93. I have noted that the substance of the case handling in ‘Phase 1’ was not reviewed by the SSWP when looking at the case for reimbursement, in the Decision under challenge. I have also noted that there is no definition of ‘CMS error’ in the Defendant’s guidance, and it is potentially wide, comprehending all forms of official error that cause loss. It was not submitted that, even if there had been a failure to make an earlier supersession (causing loss), this would not have been considered an error of a kind that fell within the SSWP’s policy. In those circumstances, I find that if the issue of potential supersession been appropriately considered by the SSWP as part of his consideration of the case for reimbursement, he should or would have identified the flaws that I have described above. Grounds Two – Four

94. In view of my conclusion on Ground 1, I can take these Grounds more briefly. Grounds Two and Three

95. Under Ground Two, the Claimant says that the decision was made without due regard to material considerations, namely pre-August 2022 notifications and evidence; alternatively, the Defendant took into account immaterial matters.

96. Ground Three is based on the assertion that it was a mistake of fact to treat the 150 page ‘dossier’ only received on 12 August 2022 as the substantive evidence supporting a change of circumstances. In fact ‘voluminous documentation’ had been supplied, from November 2019 onwards.

97. Specifically, says the Claimant, he uploaded the dossier onto the CMS portal on 14 April 2022 and received an acknowledgement on15 April 2022. He also resent his letter of 14 April by email on 4 May 2022. This should have been recognised by the Defendant. Analysis

98. Some of the arguments under these Grounds overlap with the arguments already considered under Phase 1, and I will not reconsider that period, given the analysis under Ground 1. In particular, I accept that in general, the SSWP was not obliged, as matter of law or under his policy, to consider issues of general maladministration (some recognised in a payment of £200 to the Claimant) as errors justifying reimbursement. This includes the repeated problems relating to documents not being received or logged, etc. Equally, the SSWP was rationally entitled to decide that the failure to send a Presenting Officer to the hearing scheduled for 13 April 2021 was not an error giving rise to a right to reimbursement.

99. The new point of substance made under this heading relates to the issue of the receipt of the detailed ‘dossier’ which Mr Band says that he uploaded to the CMS system on 12 April 2022, in support of his application for supersession. He says that this was material which the Defendant wrongly treated as being unavailable in its reimbursement Decision, which was based on the assessment that the substantial supporting material for the claim had not been made available until 12 August 2022.

100. To the extent that the Claimant argues that the decision by the Defendant, that his dossier was not uploaded or made available on 12 April 2022 constitutes a ‘mistake of fact’, I reject that submission. The law on mistake of existing fact is based on mistakes about facts that are “established”, in the sense that they are ‘uncontentious and objectively verifiable’ (see E v SSHD [2004] QB 1044 at para 66). The evidence that the dossier was provided on 12 April 2022 does not fall into that category.

102. However, to the extent that it is relevant (given my findings on Ground 1) I do accept that it was irrational of the SSWP to fail to consider the causative effect of the erroneous confirmation of receipt that the Claimant then received on 15 April 2022. The issue that the SSWP was considering, at this point, is when he might reasonably have been in a position to consider the application with the benefit of all the supporting material that the Claimant had put together. It is clear that, had the Claimant not been wrongly reassured by the Defendant that this was all being considered and had instead been told that it was missing, he would have refiled all the evidence within a very short period of time. The Defendant acknowledged the error made in that letter, as part of its ‘consolatory payment’ of £200. In my view, the failure to engage with the obvious causative impact of that false reassurance, and its relationship to the reimbursement decision made (i.e., that the supersession decision should have been made at the point when that dossier was received by the SSWP) was unreasonable. Ground Four : the CMS’ decision was irrational.

102. In my view , this Ground does not add to the points considered above. Conclusion .

103. In summary, I have concluded that: a) The Decision was materially flawed, in that it adopted a legally erroneous approach when it stated that reconsideration of the decision of 13 November 2019 was not possible whilst the first F-tT appeal was pending and failed, as a result, to consider the issue of supersession of the decision during that period; b) Whilst the Decision might be quashed on that basis alone, as the Defendant submits that the error was not material and/or it is highly likely that the outcome for the Claimant would have been no different had the issue of supersession been considered, that decision-making during that period too must be determined; however c) In May/early June 2020, there was a failure on the part of the SSWP’s decision-makers to not only consider but to determine, on their initiative, the case for supersession in the Claimant’s favour – at least in respect of one child. This failure caused loss. A supersession decision in respect of one child only by the SSWP at that point is likely to have resulted in an application for further supersession, supported by sufficient evidence, from the Claimant by the beginning of August 2020. This would have put the Claimant and the SSWP into the same position as both were in by 12 August 2022, but some two years earlier. In the alternative, the SSWP should have invited an application for supersession from the Claimant; d) Further, it was an error not to treat the MP’s representations on the Claimant’s behalf (November 2021) as an application for supersession, or to invite the Claimant to make such an application if the MP was regarded as not having standing to do so. e) The reimbursement decision should also have recognised the causative impact of the SSWP’s letter of 15 April 2022, which led Mr Band to believe that the SSWP had received and was considering all his documents – the dossier would have been sent to the SSWP shortly after that date, rather than on 8 August 2022, had that error not been made.

104. This application for judicial review succeeds. The issue of reimbursement should be reconsidered, having regard to these findings.