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Finance and Divorce Update, December 2017

Frances Bailey Principal Associate and Naomi Shelton, Associate with Mills & Reeve LLP, analyse the news and case law relating to financial remedies and divorce during November 2017.

Frances Bailey and Naomi Shelton, both of Mills & Reeve LLP 

As usual, this month's update is divided into two parts:

A. News in brief
Pilot Financial Remedies Courts to launch early next year

Six months after declaring that the time had come to 'de-link' divorce and money, the President of the Family Division, Sir James Munby is proposing to pilot a financial remedies court 'concept' in London, the West Midlands and south-east Wales. Further pilots are expected to follow.

The basic concept builds on the Family Court and Court of Protection models. Each circuit will typically have two regional hubs, headed by a lead judge expert in financial remedy work. Mr Justice Mostyn has agreed to be the national lead judge; His Honour Judge Edward Hess will be deputy lead judge.  Hearings will be conducted at the regional hubs and some financial remedies hearing centres within the hub area. Ticketed judges will initially deal with financial relief cases, with the work being expanded to cover all financial remedy work in time. The FR courts will function separately from the regional divorce centres.

A poll marking Cohabitation Awareness Week underlines the extent of the "common-law marriage" myth
The poll commissioned by Resolution found that a quarter of Britons wrongly believe that, after living together for more than two years, unmarried couples have similar rights to married couples on separation, and over a third wrongly think it is true that unmarried couples who have lived together for more than two years benefit from what is known as a 'common law marriage'.  More than four in five Britons (84%) agree that the government should take steps to ensure unmarried cohabitating couples are aware they do not have the same legal protection as married couples if they separate, or if one of them should die.

Statistics published by the Office for National Statistics in November 2017 revealed that the cohabiting couple is the second largest family type and the fastest growing, having more than doubled from 1.5 million families in 1996 to 3.3 million families in 2017.

Calls for legal aid for early advice to be reinstated in family cases
Research commissioned by the Law Society shows a clear statistical link between getting early legal advice and resolving problems sooner.  According to the Law Society, the analysis adds weight to the argument that early legal advice – much of which was removed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - should be reinstated.  The research states that, on average, one in four people who receive early professional legal advice had resolved their problem within three to four months. For those who did not receive early legal advice, it was not until nine months after the issue had first occurred that one in four had resolved their issue.

Practice Guidance released
Sir James Munby, President of the Family Division, has issued Practice Guidance and a set of standard financial and enforcement order for general use.  Whilst the orders do not have the strict status of forms (within Part 5 FPR 2010), their use is being strongly encouraged.  The standard orders can be varied to suit the particular circumstances of a case but the President has indicated that the orders are to "represent the starting point, and, I would hope and expect, usually the finishing point, of the drafting exercise".

Child Support Agency caseload continues to fall
The case closure process has seen the CSA's caseload fall to 906,400. The bulk of these cases have no current liability and no payments are being made.  Due to the way case closure is working, many of the cases left with the CSA have arrears (because they cannot be fully closed). 

Resolution, FLBA and the IAFL publish paper on post-Brexit family law options
Resolution, the Family Law Bar Association and the International Academy of Family Lawyers, have published a paper, Brexit and Family Law, which sets out the options for family law following the UK's withdrawal from the EU.

The paper states that current reciprocal agreements between the UK and other EU member states, which have evolved over decades, bring vital assurances to families across the EU. It ensures orders made in one country can be enforced in another, for example, as well as harmonising the rules for where a case can be heard. The three organisations say this reciprocity must be maintained after Brexit, in order to provide safeguards and reassurance to those families and their children affected by divorce or separation, and involved in cross-border EU-UK family or child protection cases.

There are approximately 140,000 international divorces and 1,800 cases of child abduction within the EU each year. If family law remains unaddressed, the bodies warn, it would leave British citizens facing these issues in a position of significant vulnerability and confusion, and would lead to unfair outcomes.

House of Commons debates family justice reform
The House of Commons held a Westminster Hall debate on family justice reform on 15 November 2017. The debate was secured by Suella Fernandes, a Conservative MP and former lawyer. In the debate Ms Fernandes called for, and Members discussed, the introduction of:

For the Hansard record of the debate, click here.

First Courts and Tribunals Service Centres launched
The country's first Courts and Tribunals Service Centres will be launched in Birmingham and Stoke-on-Trent. The centres will bring together expertise in managing court and tribunal cases as cases transfer from traditional paper-processes to modern digital systems.  The two centres will employ more than 300 people each, in roles that range from processing cases, and issuing court orders and hearing notices, to answering telephone and web enquiries.

The new service centres are being planned based on research into what users want and need, and in consultation with judges, magistrates and legal professionals, as well as agencies that represent the public and support people with cases going through the justice system.

New Part 3A inserted into Family Procedure Rules 2010
The Family Procedure (Amendment No 3) Rules 2017 came into force on 27 November 2017.  They inserted a new Part 3A into the FPR 2010 making special provision about the participation of vulnerable persons in family proceedings and about vulnerable persons giving evidence in such proceedings.

Nearly three-quarters of divorced people did not discuss pensions during divorce proceedings
Seven in ten couples do not consider pensions during divorce proceedings, leaving women short-changed by £5billion every year, according to new Scottish Widows research. The research shows that more than half of married people (56%) would fight for a fair share of any jointly owned property, and 36% would want to split their combined savings. Yet fewer than one in ten (9 %) claim they want a fair share of pensions, despite the average married couple's retirement pot totalling £132,000 – which is more than five times the average UK salary of £26,000. In fact, according to the research, more married people would be concerned about losing a pet during a settlement than sharing a pension (13% vs 9%).

The key findings also include that women are less well-prepared for retirement, with only 52% saving adequately, compared with 59% of men, and that divorced women are even less prepared – 24% are not saving anything into a pension.  Scottish Widows says that almost half of women (48%) have no idea what happens to pensions when a couple gets divorced, which may explain why so few couples consider them as part of a settlement. 22% presume that each partner keeps their own pension and 15% believe they are split 50-50, no matter what the circumstances.

B. Case Law Update

Richardson-Ruhan v Ruhan [2017] EWHC 2739 (Fam)
In Richardson-Ruhan, the court was faced with a hugely complex financial remedy matter.  The judgment deals solely with findings of fact/computation of assets, leaving distribution to be dealt with at a further three day hearing.

The case was heard by Mr Justice Mostyn in public with certain reporting restrictions imposed.  The case had attracted attention from the media prior to Final Hearing due to the high profile of the husband. 

The applicant wife was 49 and respondent husband was 55.  The parties married in 1997 and were married for 16 years, before separating in 2013.  There were two children of the marriage, aged 16 and 19 at the time of judgment.

The court was asked to determine a key fact in dispute between the parties, namely whether the husband was still very rich (his fortune had been around £200m) or, as presented by the husband, he was insolvent to the tune of £2m.  The husband's case was that virtually his entire fortune had been stolen from him in 2014 by a convicted fraudster, Dr Smith, with the assistance of the husband's former "front-men".  The wife argued that this was a false presentation and that the husband remained vastly rich in that very large sums, or his right to receive very large sums, were held on his behalf by a nominee, Mr Stevens, and that he had potential further wealth due to him depending on the outcome of an arbitration against BAE.

The court had regard to the related, hugely complex, commercial litigation involving the husband and Dr Smith, which informed the wife's financial remedy application.

By way of a brief background to that litigation, Mostyn J's judgment records that Dr Smith had been imprisoned in 2006 for theft and false accounting relating to a company, Orb, of which he had been chief executive.  According to the husband's counsel, he chose to blame the husband for his conviction and incarceration and claimed that the husband held assets worth in excess of £41m which belonged to him.

Following his release from prison Dr Smith (through his cohorts) intimated claims against the Husband, leading to the launch of the 'Orb proceedings' in 2012.  By the time of the hearing before Mostyn J, the commercial litigation had given rise to seven reported judgments, numerous other rulings and orders, a foray to the Court of Appeal, as well as proceedings in the Isle of Man, the BVI and an appeal in the Eastern Caribbean Court of Appeal.  The first round of litigation was settled by consent on a drop hands basis but there had recently been a 'spring back into life' (the 'Phoenix proceedings').
The husband at pre-trial review asked the court to adjourn the wife's claims until after the conclusion of the Phoenix proceedings which the court declined to do given the long-standing of the wife's financial remedy claims, which had been ongoing since January 2014.  The Judge did however order that the wife's statement of case be served on all parties to (and interested in) the Phoenix proceedings and extended permission for those parties to intervene.  No third parties took up that invitation.

Mostyn J was tasked with the complex job of summarising the effect of the judgments in the Orb litigation and the impact of the Phoenix litigation on the issues to be decided by him. 

The fundamental question for Mostyn J to decide was whether Mr Stevens has acted as the husband's nominee, particularly in relation to the transfer of £92m by one company to another company in which Mr Stevens had been transferred the shares, and the creation of a loan note for £73.75m in favour of Mr Stevens following the settlement of the Orb litigation. 

Mostyn J determined that Mr Stevens was a nominee for the husband.  He placed significance on the fact that the husband habitually used nominees for his business dealings and referenced a number of examples of this.  His Lordship also confirmed that he was satisfied by the wife's truthful evidence of her knowledge of the existence of the husband's nominee and found it 'highly significant' that Mr Stevens had not intervened in the proceedings, or at the very least appeared as a witness, to defend his ownership of certain assets.  He was satisfied that the test for a sham (as summarised by him in Bhura v Bhura [2014] EWHC 727 (Fam)) was fully met.

Mostyn J also determined that of the £92m that had been transferred to Mr Stevens, all but £12m had been spent and that the husband should therefore be treated as having the sum of £12m available for the purposes of a distributable award. 

In so far as the Husband' s interest in the £73.75m loan note and 50% in a further company called Sentrum Rugby, the Judge found that no-one but the wife had any valid claim against the husband, those assets representing the consensual recovery achieved by the husband of his own money following the appropriation of Dr Smith.  He further noted that Dr Smith had not taken up the opportunity to intervene in the matrimonial proceedings to argue that the monies appropriated by him were, in fact, his or to be treated as his and in his view it would be an abuse were Dr Smith, or his cohorts, to be allowed in later proceedings to assert that that was the case. 

Mostyn J did note that it remained to be seen whether the husband would make any meaningful recovery of the funds owing in the Phoenix proceedings and confirmed that he did not seek to trespass on the future of that civil case.

So far as next steps were concerned, His Lordship invited the wife to formulate what distribution she sought in her favour, for the husband to respond to that claim and for the parties to agree the necessary directions for that process.  Mostyn J ordered that the matter be re-fixed for a three day hearing before him to deal with the issue of distribution.

Hayes v Hayes [2017] EWHC 2806 (Ch)
Hayes concerned a former wife's appeal against the dismissal of her application to set aside a statutory demand served on her by her former husband.

There was a convoluted litigation history to the matter but the debt in question was £15,085.38 (plus interest), representing the total of various costs orders made against Mrs Hayes, and due to Mr Hayes, pursuant to various court orders in three different sets of proceedings spanning at least 8 years, beginning in 2007.

Mrs Hayes' application to set aside the statutory demand was heard at first instance by Deputy District Judge Wright in January 2017.  Various arguments were put by Mrs Hayes but her application was dismissed.  She sought was given permission to appeal, following an oral hearing (the transcript in respect of which, the appeal court noted, was incomplete), on limited grounds. 

Pursuant to the grant of permission, the primary issue the court had to determine was the effect, if any, that a settlement between Mrs Hayes (and others) and Mr Hayes' trustee in bankruptcy, pursuant to which Mrs Hayes bid £66,000 for the trustee in bankruptcy's claims for financial losses incurred by Mr Hayes prior to 2 April 2006 and for potential personal injury damages, had on the costs orders forming the basis of the statutory demand. 

Mr Justice Morgan, sitting in the High Court, found that the costs orders in question were outwith the terms of the agreement with the trustee in bankruptcy and that the benefit of those costs orders remained vested in Mr Hayes when he was discharged from his bankruptcy.  The costs orders made against Mrs Hayes were therefore unaffected by the agreement and by anything that had happened previously.

As such, Mrs Hayes' appeal was dismissed and, indeed, Mr Justice Morgan found that there had never been any prospect of success.  However, recognising that she had been given permission to appeal, he noted he had given the issues a good deal of thought.

Radseresht v Radseresht – Spain [2017] EWHC 2932 (Fam)
In Radseresht, Cohen J dealt with an application for recognition of a divorce granted in Dubai in 2009, a declaration of marital status under s 55 Family Law Act 1986 and, following on from that, a strike out of a petition subsequently brought by the applicant's wife in England & Wales.

The parties had married in 1992 in Tehran and, as was clear from Cohen J's judgment, lived an international life with business and property interests extending to Ireland, the US, Iran and the UAE.  The Wife was an Irish Catholic, who converted to Islam for the purposes of the marriage to the Husband, but never practised the religion and, of note, did not read or write Arabic.

The key events surrounding the Dubai divorce in 2009 were as follows: -

• In spring 2009, the Husband became suspicious that the Wife was having an affair.  He subsequently instructed a private investigator and his suspicions turned out to be justified (and indeed the Wife admitted the affair);

• On 1 April 2009, the Husband alleged that in an argument in San Francisco he pronounced a talaq, overheard by people in his office in Dubai.  The Dubai courts subsequently found the witnesses' evidence to be conflicting;

• In August 2009, the Husband instructed solicitors.   They filed a case in the courts in Dubai and prepared a draft financial settlement and a power of attorney for the Wife to sign.  The power of attorney was in Arabic and appointed someone who, Cohen J found, the Wife had had no choice or say in selecting;

• The Husband argued that the contents of the settlement agreement were discussed between the parties in a ten day period in mid-August 2009 but this was not accepted by Cohen J;

• On 27 August 2009, whilst packing to return to London with the two younger children, the Wife was presented with the settlement agreement and power of attorney to sign.  She was not given the opportunity to take advice, could not read the power of attorney, which was in Arabic, no financial disclosure was provided and she was not given copies of either document to go away and take advice on.  Notwithstanding that, she signed.  Cohen J noted that some of the terms of the settlement agreement were draconian, particularly in relation to the children, who were to remain in the custody and guardianship of the Husband, and the Wife's conduct of her household going forward;

• The power of attorney was returned to the Husband's PA, who sent it to the Husband's lawyer, who sent it on to the Wife's attorney.  Cohen J found that the Wife's attorney was selected by the Husband's advisers, the Wife did not understand the agreement she signed appointing him and the attorney never communicated with her in any way;

• The matter came before the Dubai courts on 8 September when a two-week adjournment was obtained (at, apparently, the Wife's attorney's request although Cohen J notes that no explanation of what happened that day had been given);

• At the adjourned hearing on 24 September the Dubai court ordered the witnesses to the alleged talaq to appear at court at a further hearing in October.  They did and gave conflicting evidence.  However, giving judgment on 3 November 2009, the Dubai court found that there had been a divorce on 24 September 2009 as (a) the Husband bringing his application was equivalent to a declaration he wanted a divorce and (b) the appearance at court on 24 September 2009 amounted to a single revocable talaq.

Cohen J therefore had to consider (a) whether the 24 September 2009 divorce should be recognised and (b) the issue of revocability.

In relation to the former, Cohen J found that the divorce should not be recognised (relying on section 51(3)(a) FLA 1986) as it was obtained (i) without proper notice and (ii) without the Wife being given the opportunity to take part in the proceedings.  He found the Wife had had no notice.  The power of attorney was in Arabic and no copy was provided to the Wife.  Whilst the settlement agreement made reference to divorce those references did not constitute proper notice (it did not refer to the filing of a petition, commencement of proceedings or any court hearing dates).

The Husband's counsel attempted to argue that, notwithstanding those findings, the court had discretion to recognise the divorce anyway as the Wife's financial interests could be protected by other means (namely by a Part III application under the 1984 Act), relying on Lachaux v Lauchaux [2017] EWHC 385 (Fam).  Cohen J rejected that argument, noting that (i) the Wife's award under a Part III claim would not necessarily be the same as under an MCA 1973 claim, (ii) that the Husband in any Part III application would argue that there had been a valid divorce and weight should be placed on the settlement agreement, (iii) that Moylan J's (as he was then) comments in Lachaux were, in any event, taken out of context and (iv) issues could turn on whether the Wife was divorced in 2009 or 2017.

On the question of revocability, little turned on it given Cohen J's findings as to notice and participation.  However, for completeness His Lordship addressed it in his judgment.  Under Islamic law, a revocable divorce can be revoked if the parties, in the 90 day period following the divorce, have exhibited an intent to continue the matrimonial partnership.  Having considered the facts, he found there was such an intention.

S v S (Applicant to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam)
In S v S, Williams J had to deal with an application by a husband in defended divorce proceedings (the Husband defending the divorce, asserting that the parties were already divorced in Russia and disputing the Wife's habitual residence) for an order that the Wife's solicitors be debarred from acting for her in the proceedings and/or in any related or ancillary proceedings arising out of the dissolution of the marriage.

The issue arose due to a disputed meeting which the Husband claimed his representative, OE, had with Sears Tooth, on 30 November 2015.  The Wife, subsequently, on 26 September 2016 issued a divorce petition in the Central Family Court, with Sears Tooth as her solicitors.  The Husband had, in fact, signed a retainer letter with his representatives, Hughes Fowler Carruthers, a week before the disputed meeting in November 2015 (a fact that was disclosed at the hearing).

The law was, in the most part, not in issue, save for three issues, namely (a) whether the risk of disclosure of confidential or privileged information can come from subconscious or unconscious influence (b) whether there can be a partial waiver of privilege and how that might be dealt with and (c) whether, if the grounds are established, the granting of an injunction is mandatory or discretionary. 

Williams J helpfully summarised the law as follows:

• duties of confidentiality and legal professional privilege arise whether the information is imparted directly or by the use of an agent;

• the duty arises regardless of whether a formal legal relationship is entered into or not;

• the rules apply in family cases just as much as civil ones.  However, there is no absolute rule that a solicitor cannot act in litigation against a former client;

• in the first instance it is for the solicitor to decide whether he can continue to act but the court retains the power to grant an injunction preventing them from acting;

• public policy reasons rooted in the proper administration of justice support the approach that a solicitor in receipt of information imparted in confidence by a former client should not act in a way which might appear to put that confidential information at risk of coming into the hands of someone with an adverse interest;

• the confidential or privileged information in question must be relevant or potentially relevant to the matter on which the solicitor is now instructed by the person with an adverse inference;

• the court should intervene to prevent confidential or privileged information from coming into the hands of someone with an adverse interest, unless there is no real risk of disclosure, 'real' meaning the risk is not fanciful or theoretical, but not requiring the risk to be substantial;

• the risk of disclosure may arise from a deliberate act, inadvertent disclosure, unconscious influence or subconscious influence;

• in family cases, it is hard to conceive of a situation where the risk of disclosure would not satisfy the above test, where the court has found there has been disclosure of detailed, confidential financial or privileged information to a solicitor which was, or might be, of relevance to the dispute;

• the party making the application may decline to waive privilege or confidentiality, or may elect to only partially waive privilege.  If privilege is partially waived the court can order full disclosure to be able to determine the issue, whilst ensuring privilege is not waived for all purposes (later in the judgment Williams J mentions in passing the possibility of adopting a special advocate type measure to protect privilege, subject to questions as to proportionality);

• if the principles are established, an order should usually be made preventing the solicitor from acting.  The exception would be where there were significant public policy reasons for not granting the application, including that the injustice to the respondent in granting it would outweigh the injustice to the applicant in not granting it.  Williams J comments that, in determining that issue, the court may look at the purpose of the imparting of information (whether it was done simply to conflict out other solicitors), what other solicitors could act for the respondent and the costs and delay of changing representatives, whether the application was made promptly to debar etc.

The case largely turned on factual issues, in respect of which Williams J found, on the balance of probabilities that:

• a meeting had taken place between the Husband's representative and Mr Tooth of Sears Tooth on 30 November 2015;

• no confidential material was imparted to Mr Tooth at that meeting and no privileged information or advice arose.  Williams J found that the facts suggested that the it  had been a very brief meeting which, perhaps, the representative was attending to complete the job of going around the firms he had been instructed to, with the parallel intention to conflict them, and not a detailed, fact heavy, advice heavy meeting. 

• as such, there was no need for Williams J to determine whether there was any risk of disclosure nor to consider whether an injunction should be granted.

Grasso v Naik [2017] EWHC 2789 (Fam)
Grasso v Naik concerned 21 applications by the Queen's Proctor in respect of 20 divorce petitions, and one civil partnership dissolution petition, issued between 2006 and 2016.  The Queen's Proctor argued that in each case the court had been deceived by fraud into accepting it had jurisdiction and that accordingly, each petition and all decrees nisi and absolute were void (four having proceeded to decree nisi only and eleven having proceeded to decree absolute).

All 21 petitions used an address on West End Road, Southall, Middlesex.  The Queen's Proctor argued the architect of the fraud was a former barrister, Khalik Bhatoo, whose family members owned the properties in question.  The Queen's Proctor argued that Mr Bhatoo appeared to have been responsible for making all 21 applications and may have been involved in the signature process of some petitions/acknowledgements of service.

The court had before it (despite attempts to contact the parties to each petition) just (a) evidence from an expert Forensic Document Examiner (b) evidence from one petitioner in one case and (c) a statement from Mr Bhatoo himself in which he merely endorsed a 'skeleton argument' of Mr Patel.  The President of the Family Division, Munby P, noted that the skeleton argument did not seek to assert that any of the petitioners or respondents in fact lived at the West End Road properties.

The President found that the Queen's Proctor had proved his case that in the case of each petition, the underlying proceedings were tainted by deception and where decrees had been granted, they were obtained by deception.  As such all the petitions and any grants of decree nisi and absolute were dismissed, regardless of whether the parties had remarried or had a child.  Furthermore, Mr Bhatoo was ordered to pay the Queen's Proctor's costs.

Finally, a couple of child support decisions:

ZS v Secretary of State of Work and Pensions and SN (CSM) (Child Support – tribunal practice) [2017] UKUT 402 (AAC)
In ZS, the Upper Tribunal allowed a mother's appeal against a decision of the First Tier Tribunal (FTT) determining a non-resident father's liability for child maintenance for their two children.

In February 2014, the mother had applied for a variation of a 2010 child support award on the basis of assets and income which had not been taken into account.  The mother appealed the Secretary of State's decision to the FTT.  The judgment does not go into detail, other than to explain that the issues included whether or not the father had an interest in (a) a property known as flat 8 and/or (b) a family trust holding further properties.

The mother's appeal to the FTT resulted in various findings, including that (a) the value of flat 8 was exempt under the Child Support (Variation) Regulations 2000 as, although it was rented to a tenant, the father retained a room (whilst also living at his mother's) and it was his 'main home' (noting that under housing law it was possible to live in two homes) and (b) the father may have handed his interest in the family trust to his sisters in 2012 in settlement of debts, but should produce evidence to the Secretary of State of this and in the absence of production of evidence, his weekly income should take into account the £38,000 asset.

The mother was given permission to appeal and the Upper Tribunal allowed her appeal.

In relation to flat 8, the mother's appeal succeeded for three reasons:

• the FTT had failed to address the statutory definition of home under the Child Support (Maintenance Calculations and Special Cases) Regulations 2000, noting in particular that that definition, where a person has more than one home, only applies to their 'principle home'.  The upper tribunal did not know what the FTT had meant by the phrase 'main home' but noted no attempt had been made to decide which of the two properties was the father's principal home;

• the FTT had failed to (a) adequately address evidence before it (b) reconcile matters of dispute and (c) make adequate findings of fact to support a conclusion flat 8 was the father's home;

• the FTT had conflated the exemptions under regulations 18(3)(b) and (e) of the 2000 regulations and, in any event, the factual basis for a finding under either exemption was not made out.

In relation to the family trust, the Upper Tribunal agreed that the FTT should have determined the factual issue (or adjourned for further evidence), rather than directing that it be dealt with in the manner in which they had.

The Upper Tribunal allowed the appeal, set aside the FTT's decision and remitted the matter for a fresh hearing before a new FTT.

KW v Secretary of State for Work and Pensions and KE (CSM) (Child Support – variation – departure directions – diversion of income) [2017] UKUT 400 (AAC)
The central issue in this appeal to the Upper Tribunal was how the father's injury benefit received from the police (alongside his police pension) should be treated for the purposes of assessing child support. 

The original child support calculation required the father to only pay the flat rate of child support maintenance as he was receiving disablement benefit.  However, this was varied to take into account his police pension and injury benefit, resulting in a liability of £31.71 per week.  The father appealed to the FTT who dismissed his appeal but gave him permission to appeal to the Upper Tribunal.

The FTT had looked at case law as to the treatment of similar injury benefits under the original 1993 scheme and had determined that those cases applied equally to the 2003 scheme (under which the father's case fell).  As such the father's injury benefit was taken into account.  The Upper Tribunal agreed entirely with their reasoning and dismissed the father's appeal.    They further noted that there was no need for them to determine how the case might be dealt with under the 2012 regulations.

5 December 2017