interfacing with the child support agency and the child

INTERFACING WITH
THE CHILD SUPPORT
AGENCY AND THE
CHILD MAINTENANCE
SERVICE
www.pannone.com
FAMILY LAW
Family, Personal & Financial Solicitors
EMPLOYMENT
FAMILY & MATRIMONIAL
INTERNATIONAL PROPERTY
REGULATORY & WHITE COLLAR CRIME
RESIDENTIAL PROPERTY
WILLS, TRUST & ESTATE PLANNING
LEAFLETS IN OUR
FAMILY RANGE ARE
•
Alternatives to court
•
Divorce
•
Civil partnerships
•
Pre-nuptial agreements
•
Arrangements for children
•
The facts about cohabitation
•
Costs in the family department
•
The financial aspects of divorce
•
Divorce and the family business
•
Protecting wealth on divorce through trusts
•
Occupying the family home and protection
from domestic abuse
•
Interfacing with the Child Support Agency
and the Child Maintenance Service
•
Taking financial advice during divorce
CHILD MAINTENANCE
When parents split up the parent with whom the children are
living is entitled to receive maintenance for children who are under
the age of 16 or in full-time secondary education and under the
age of 20.
The children’s maintenance is not determined by the family courts
even if their parents are married unless:
• Both of the parties agree
• The child is not a child of both parties
• The child is under a disability
• The child is over 20 and is still in full-time education
• The payer’s net income exceeds £2,000 per week in which case
the CSA will make a maximum assessment on the £2,000 per
week and the courts can deal with the surplus income
• One of the parents lives abroad
• On 10th December 2012 the government began implementing
a new statutory scheme under the statutory body the Child
Maintenance Service (CMS) which will eventually replace
the CSA
• For families where there are four or more children of the same
parents the court will only have jurisdiction where the payer’s
gross income exceeds £3,000 per week and an assessment
is in place.
3
Family, Personal & Financial Solicitors
CHILD SUPPORT AGENCY (CSA)
In all other circumstances the parent with whom the children live has to apply to the
CSA, which was formerly part of the Department of Work and Pensions. For a period
of time it was run by the Child Maintenance Enforcement Commission (C-Mec) which
is an independent public body. It has now passed back to the DWP who have set up a
new statutory body called the Child Maintenance Service (CMS). All assessments will
migrate to this service by 2017. A the present time the CMS are responsible for all
assessments for families of more than four children of the same parents.
An application is made directly to the CSA who will send out a maintenance
application form. There is no fee to pay. The CSA will then contact the other parent
and make an assessment. The assessment will be based on a formula whereby the
non-resident parent pays a percentage of his or her “net income”. This includes
earned income, any bonus earned over the last 12 months, holiday pay, sick pay,
maternity pay, overtime, profit-related pay and income from a pension.
Deductions for tax, national insurance and full pension contributions to an approved
scheme are made to calculate net income. The formula applied is:
•
•
•
For one child, 15% of net income
For two children, 20% of net income
For three or more children, 25% of net income.
This formula is subject to two further possible deductions of net income which may
first be made:
Where there are any children living in the household of the payer, whether they are
his children or not, the CSA will deduct 15% for one child, 20% for two children and
25% for three or more children; and/or
When the CMS does the assessment it is based upon the gross income of the payer,
the details of which the CMS will obtain from Her Majesty’s Revenue and Customs
Service (HMRCS). That is on the NRPs gross weekly income up to £800;
•
•
•
12% for one or more qualifying child
16% for two qualifying children
19% for three or more qualifying children.
If the NRP’s gross weekly income exceeds the amount of maintenance payable
will be the relevant percentage of £800 plus a percentage of gross weekly income
above £800:
•
•
•
9% for one qualifying child
12% for two qualifying children
15% for three or more qualifying children.
If the NRP has other children living in their household the gross weekly income
to which the percentage calculation is applied is reduced as follows:
•
•
•
•
•
12% for one relevant child
16% for two relevant children
19% for three or more qualifying children.
The weekly income threshold at which the statutory scheme will cease to
have jurisdiction will change from £2,000 net to £3,000 gross
The reductions available where there is a shared care arrangement will
remain but where there is an equal sharing arrangement neither parent
will be able to claim.
Under both the current and the new scheme
When children for whom maintenance is being assessed stay overnight with
the payer the following deductions may be made:
•
•
•
•
•
One-seventh deduction for between 52 and 103 nights per annum
Two-sevenths deduction for between 104 and 155 nights per annum
Three-sevenths deduction for between 156 and 174 nights per annum
50% deduction for overnight contact of more than 175 nights per annum
However, when the CMS has done the assessment where the parents have
overnight contact on an equal basis neither will be entitled to apply for
an assessment.
The CSA can gain jurisdiction where a court order has been made for maintenance
when the parties are in agreement if either parent makes an application after 12
months to the CSA. This rule will continue when the CMS has taken over.
EXCEPTIONAL CASES
The rigidity of the formula means that in many circumstances either parent may feel
the application of the formula is unfair. There is no discretion in the way the formula
is applied but applications can be made to the CSA for variations where:
•
•
•
•
•
The payer has special expenses
The payer has made a capital or property transfer prior to 5th April 1993 as part
of an overall settlement which includes payment of maintenance for the children
now being assessed
The payer has capital other than his home or business which exceeds £65,000
The payee believes that the payer has diverted income to another source
The payer’s lifestyle is inconsistent with his stated income.
5
Family, Personal & Financial Solicitors
To make an application for a variation either parent applies to the CSA with as much
evidence as is available to support the application. If the CSA refuse a variation that
refusal can be appealed to the Child Support Appeal Tribunal.
When the CMS has taken over the assessment the grounds for a variation upwards
have been narrowed to being limited to:
•
•
Evidence of an unearned income
Diversion of income.
CHILD SUPPORT APPEAL TRIBUNAL
Decisions made by the CSA or CMS either in assessing and applying the formula
or in refusing a variation are subject to an appeal to the Lower Tier Tribunal Service.
Appeals must be made within 28 days of the decision against which the appeal is
made. Under special circumstances, appeals out of time are allowed up to 12 months
after the end of the 28 day period. Appeals are not allowed after the expiration of
those 12 months.
Appeals can be made in writing. It is not necessary to attend the tribunal hearing in
all circumstances, some appeals are decided on paper.
The Lower Tier Appeal Tribunal is independent of the CSA and the CMS. The
proceedings before it are less formal than proceedings brought in the family courts.
In complex cases a tribunal will be made up of a district judge and an accountant,
in less complex cases only a district judge will hear the case. There is a further appeal
allowed to an Upper Tier Tribunal and the Court of Appeal.
PROBLEMS
When interfacing with the CSA or CMS it is always important to record dates and the
content of any telephone conversations, and keep copies of any letters that are sent.
It is not unusual for letters to be ignored for many months by the CSA.
One reform that has already been introduced is that it is now a criminal offence not
to keep the CSA or CMS notified of a change of address.
CHILD MAINTENANCE OPTIONS
If you are in receipt of benefits and you apply for an assessment you will be referred
to this service – www.cmoptions.org once the CMS has jurisdiction all applications
will be via this service.
It is a service to assist parents to make informal decisions about maintenance and to
encourage them to reach voluntary agreements for child maintenance. To encourage
them to do so CMS intends to charge fees to do an assessment.
ARREARS
The CSA has enforcement powers to deal with arrears of maintenance; they are
wide ranging and include the ability to obtain a charging order against property,
the restraint of goods, imprisonment and confiscation of a passport. In the past the
difficulty has been getting the CSA to utilise their powers. Unfortunately, the parent
who wishes to enforce a maintenance assessment cannot do so themself and must
utilise the CSA. The CMS will have the same powers but will charge both parents for
implementing them. Parents with Care (PWCs) who have suffered domestic violence
will be exempt from the fees.
JUDICIAL REVIEW
The CSA, C-MEC and CMS are government bodies and in some circumstances where
they fail to provide a satisfactory service the matter can be referred to a High Court
Judge for judicial review.
COMPENSATION
Applications can be made to the CSA for compensation for its failure to do
assessments on time or enforce arrears. Unfortunately the regulations are complex.
This right will continue when the CMS take over.
MEMBERS OF PARLIAMENT
MPs regularly complain that their post is full of complaints from constituents
regarding the CSA, but this does remain a good way of forcing the CSA into action.
This will apply to the CMS.
FUTURE CHANGES
Once the CMS has taken over all new assessments which should be by the end of
2013, it is intended to migrate all old assessments to the CMS by the end of 2017.
Sadly the history of the CSA has been dogged with administrative blunders and it
is hoped that the CMS will provide a better service.
7
CONTACT US
For further information on the issues covered in this booklet, or to see
how we could help you, please contact Liz Cowell on 0161 909 1565
or email [email protected]
Pannone part of Slater & Gordon have offices nationwide. To find your local
office visit www.pannone.co.uk
www.pannone.com
Slater & Gordon (UK) LLP is authorised and
regulated by the Solicitors Regulation Authority.
www.slatergordon.co.uk
1