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Lecture Notes

Another service offered by Child Support Solutions is a lecturing and presentation service for solicitors and other professionals.  Bob has delivered presentations concerning the CSA to solicitors, barristers, accountants and professional organisations such as Resolution (The Solicitors Family Law Association).  What follows are lecture notes used in 2005.  These are technical lecture notes and assume a knowledge of child support and family law.  They are substantially expanded upon during the presentation.  If you are a professional interested in securing a presentation please call us on 03456 588683.  Please note these lecture notes are strictly copyright.

Introduction

The Child Support Act 1991 came into force in April 1993 and represented a complete revolution in the law concerning maintenance. It set up an administrative bureaucracy under a new government agency, the Child Support Agency whereby child maintenance was calculated by reference to a strict formula. Following criticism as to its inflexibility and high level of assessments being produced amendments were brought in by the Child Support Act 1995 and in 1996 a “Departure” scheme was brought into effect.

Despite these changes criticism of the act continued. The system remained inefficiently administered with lengthy delays and numerous mistakes in the assessments. On the 1st July 1999 the Government published a white paper setting out a complete overhaul to the system which was carried through by the Child Support Pensions and Social Security Act 2000.

For those who have received this paper last year you should note that there has been several amendments to the Legislation and SI which I have been able to take into account in this summary.

CSA Dictionary

CSA Child Support Agency
CSA91 Child Support Act 1991
CSPA Child Support and Pensions Act 2000
CSM Child Support Maintenance
MCSC 2000 Child Support (Maintenance calculation and special cases) Regs
NRP Non-resident Parent
PWC Parent with Care
QC Qualifying Child
RC Relevant Child
SOS Secretary of State

Is it in force?

The changes will be brought into effect on 3rd March 2003 however some parts of it are already in force in particular:-

  • It is now an offence to knowingly give false information the CSA or to fail to give information when demanded. They may be liable to a fine or imprisonment. Reasonable excuse is a defence (Section 14a(4)).
  • Inspectors appointed by the SOS may acquire information needed “for any purpose under the act” (Section 15(2)), to enter premises and to make “such examination and enquiry as … appropriate” (Section 15(4)).
  • Where there are arrears which SOS has tried to enforce by distress or by County Court Order without success then an application can be made to commit (Section 39a(2)(a)) or for an Order for disqualification from driving (Section 39a(2)(b)). This is a summary procedure in the Court local to the defendant. It is important to bear in mind that the CSA has always had the power to apply committal but it is intended that far more applications of this nature will take place. Disqualification is a new weapon.

If an application is made for disqualification then the Magistrates must enquire as to:-

  • Whether the NRP needs his licence to earn a living
  • His means
  • Whether he has not paid due to “wilful neglect or refusal”

The Court can then consider whether to commit or disqualify and can disqualify for up to two years or indeed suspend disqualification. SOS may make representations as to how much should be paid before the disqualification is lifted to which the defendant may reply (Section 40b(6)).

New legislation in child support can be stated briefly as follows:-

  • The Child Support Act 1991 - Amended so substantially as to be new!
  • The Child Support And Pensions Act 2000 - primary legislation that sets out in skeleton the new regime, substantially amending the Child Support Act 1991.
    The Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (SI 2001 number 155) - the detailed regulations as to how the calculation is to be worked out, what the CSA is to do in certain situations, what are earnings, what is shared care etc etc.
  • The Child Support (Variations) Regulations 2000 (SI 2001 number 156) - this makes provision for variations to adjust the amount of child support payable in certain defined circumstances.
  • The Child Support (Maintenance Calculation Procedure) Regulations 2000 (SI 2001 number 157) - these provide the detail to enable the CSA to work, who is and who is not a parent with care, whether reduced benefit directions may be given, what to do with multiple applications etc etc.
  • The Child Support (Collection and Enforcement and Miscellaneous Amendments) Regulations 2000 - 2001 (SI number 162) - this primarily amends the relevant legislation with the new buzz words and provides the necessary authority for the disqualification from driving order.

There are several other regulations all making amendments on other regulations and legislation to reflect the new buzz words but the above reflect the major legislation.

Calculation under the new formula

The current complex calculation which takes account of things like housing costs, travelling, Council Tax etc is swept away and replaced instead by a simple basic rate calculation as follows:-

  • One QC 15% of net weekly income.
  • Two QC 20% of net weekly income.
  • Three or more QC 25% of net weekly income.

These figures apply to all cases where the NRP has no children living with him and earns more than £200.00 per week. It is however not quite as simple as that and in order to accurately consider the situation we must rewind a little.

CSM is calculated as a weekly amount at one of four rates subject to a further two considerations. (Who said it was going to be simpler!).

1. Basic Rate

This is exactly as stated above. The basic rate applies unless one of the other rates, reduced, flat or nil applies. It can however be reduced if the NRP has “relevant” other children. These other children must be living in the same household as the NRP. They need not be the NRP’s natural children. It does not matter whether they are being maintained or not. If this circumstance applies then before basic rate is worked out the NRP’s net income is first of all reduced by 15% for one relevant child, 20% for two and 25% for three or more. The remaining amount after deduction is then subject to the basic rate calculation.

2. Nil Rate

The nil rate is payable by those people appearing in a list at Regulation 5 of the MCSC 2000. The list includes prisoners, students and a child within the meaning of Section 55 CSA91.

3. Flat Rate

A flat rate of £5.00 is payable if the nil rate does not apply and

  • NRP’s net income is £100.00 or less; or
  • he/she or a partner receives certain benefits, pensions or allowances as prescribed by MCSC Regs 2000 Reg 4 (note this does not include WFTC which is counted as an income in most circumstances - see below)

4. Reduced Rate

The reduced rate applies when neither the flat nor the nil rate applies and the NRP’s net weekly income is more than £100.00 but less than £200.00. This rate is aimed to ease the transition from the flat rate of £5.00 per week to the full basic rate payments which at £200.00 per week for three or more children will be £50.00 per week. The reduced rate formula takes into account relevant other children. This is perhaps the most confusing element of the calculation and will be dealt with below.

5. Shared care - contact

Finally, basic reduced or flat rate maintenance assessments are affected by shared care calculations. Pursuant to Schedule 1 paragraph 8 CSA91 flat rate calculations are reduced to nil if the care of a QC is shared for at least 52 nights during any 12 month period. (By the MCSC a reduced period may be used on a pro-rata basis, 26 nights in 26 weeks, 10 nights in 10 weeks etc.)

For the purposes of basic rate and reduced rate calculations where the NRP has staying contact the maintenance calculation as worked out is reduced as follows

  • 52 nights (average of 1 night per week) to 103 nights by one/seventh
  • 104 nights to 155 nights by two/sevenths
  • 156 nights to 174 nights by three/sevenths
  • 175 nights or more by one half plus £7.00 further reduction for each child.

If different QC’s stays different amounts of time the fractions are averaged out pro-rata.

It should be noted that where a QC is at a boarding school or in hospital the person who would otherwise have the care of the child overnight during that time shall be treated as providing the care during the period in question. This enables a notional continuation of shared care, and indeed the PWC for these purposes would remain the PWC (MCSC 2000 Reg 7(6)).

6. The maintenance cap

Initially it was intended that the percentages of the basic rate would apply to all cases over £200.00 no matter what their earnings, in other words there would be no cap. After a force 10 gale of protest the government backed down. Net income is capped at £104,000.00 per annum net, £2,000.00 per week. This equates to approximately

£170,000.00 per annum gross. Therefore the maximum amounts payable under the new legislation are:-

  • £300.00 per week for the first child
  • £400.00 per week for two children
  • £500.00 per week for three or more children.

Where the NRP’s income is more than £2,000.00 net per week the PWC may make an application to the Court for a top-up Order. Such applications are likely to be even more rare than at present and it is difficult to envisage circumstances in which the Court would consider adding to the above figures except in the most “mega money” cases.

The reduced rate and examples

The reduced rate is a fairly complex provision. As stated the idea is to provide a gradual phasing of maintenance between the flat rate at £5.00 per week for those that are earning less than £100.00 per week and the basic rate which for two QC and an NRP in receipt of £200.00 per week would be £50.00 per week. The reduced rate is therefore applicable only on an income of between £100.00 and £200.00 per week and is £5.00 per week for the first £100.00 with the remaining income being subject to deduction at the rate of 25% if there is one qualifying child, 35% if there are two qualifying children and 45% if there are three qualifying children.

To put this into figures the following table demonstrates the amount of maintenance payable by an NRP without any children living with him in receipt of various incomes going up depending upon the number of children he has to support.

As can be seen there is a very smooth effect lifting the maintenance from the flat rate of £5.00 per week to the basic rate payments at £200.00 per week or more. Nonetheless nothing can alter the fact that a parent suffering a 45% deduction on monies earned between £100.00 and £200.00 per week upon which they have already paid Tax at 21% and NI at 10%.

The combined effect of all of these deductions means that this earner who is only marginally better off for working rather than in receipt of benefits is going to have deductions from his gross pay at a rate of 62.05% including direct taxes and child support. The issue about child support and discouragement to work is unlikely to be addressed for these particular earners.

NRP Weekly Earnings
£100.00
£130.00
£150.00
£180.00
£200.00
£250.00
1QC
5.00
12.50
17.50
25.00
30.00
37.50
2QC
5.00
15.50
22.50
33.00
40.00
50.00
3QC
5.00
18.50
27.50
41.00
50.00
62.50

Other children

If however the NRP has one or more relevant children living with them the percentages are reduced as follows:-

  1QC of the NRP 2QC of the NRP 3 or more QC of the NRP
Number of relevant other children of the NRP
1
2
3 or more
1
2
3 or more
1
2
3 or more
(%)
20.5
19
17.50
29
27
25
37.5
35
32.5


The tables below illustrate the effect:-

£130.00 1QC 2QC 3QC
1RC
11.15
13.40
16.25
2RC
10.70
13.40
15.50
3RC
10.25
12.50
14.75

180.00 1QC 2QC 3QC
1RC
21.40
27.40
35.00
2RC
20.20
26.60
33.00
3RC
18.00
25.00
31.00

Finally by way of comparison the table below indicates the amount payable at Basic Rate.
200.00 1QC 2QC 3QC
1RC
25.50
34.00
42.50
2RC
24.00
32.00
40.00
3RC
22.50
30.00
37.50

Default rate

There is one other rate of child support that is worth mentioning. Pursuant to Regulation 7 where the SOS has insufficient information to make a maintenance calculation a default rate can be set that will apply until the NRP co-operates. This rate is based purely on the number of QC’s as follows:-

a) One QC £30.00 per week
b) Two QC’s £40.00 per week
c) Three QC’s or more £50.00 per week

As can be seen this is based upon a net income of £200.00 per week and there will be many NRP’s that will be better off ignoring the CSA and accepting the default calculation than cooperating with the CSA. It should be noted however that the SOS will not stop the calculation procedure once the default calculation is in place (in contrast to the current position). It must be remembered that the SOS can obtain information directly from employers, from the Contributions Agency and from the Inland Revenue. If as a result of enquiries the SOS finds the calculation should have been higher he can make a calculation and backdate it. If he finds it should have been lower he will reduce the calculation but there will be no backdating.

This provision is quite clearly open to abuse. Unless the CSA sharpens up its act considerably they are likely to make speedy default assessments and an NRP that simply pays them will, if the current situation is anything to go by, simply have his money accepted by the CSA without any further action. For many PWC’s this will be a very unfair result.
Calculation of net income

As we now know the percentage what is the net income itself? Net income is defined by the schedules to MCSC 2000 part (ii) (employed) or part (iii) (self-employed) as followed:-

(a). Employed earners

Net income is gross pay including bonuses and overtime but excluding benefits in kind and miscellaneous income (eg tips, expenses repaid etc). less:

  • Income tax
  • Class 1 NI contributions
  • Full pension contributions (75% in the event of a pension mortgage)

CSA is entitled to estimate “average earnings “ where the CSO deems appropriate.

(b). Self employed earners

Net income is taxable profits as per Inland Revenue Returns or gross receipts, less:

  • Income tax
  • Class 2 and Class 4 NI contributions
  • Full pension contributions (75% of a pension mortgage)

Contributions towards pension schemes can only be taken into account if the scheme falls within the Pension Schemes Act 1993 and has been approved by the Revenue. Note that the regulations prescribe no maximum amount.
It should be noted that unearned income is deliberately ignored for calculation purposes which includes investment income, benefits in kind (company car etc) and the income above the cap although there are variation provisions which we will go into later.

It should further be noted that an oddity remains from the previous legislation. The current legislation indicates that no account is taken of a new partners income however that is incorrect. When it comes to tax credits pursuant to part 1(v) of the MCSC 2000 where WFTC is payable and the amount which is payable has been calculated by reference to the weekly earnings for the NRP and another person WFTC will belong to the NRP if his income is higher than that of his partner when WFTC was calculated. If it is the same only half of the WFTC will be taken into account, if it is less than none of it will. The important thing here is that WFTC is, where the partner is working, likely to be received by her rather than the NRP (more a matter of practise than of law). It does seem very strange that a benefit that is meant to lift a family off the poverty line and encourage them to work is taken into account in order to calculate child support.

Another oddity relates to income from board or lodging which is ignored for child support purposes unless it is the only or main source of income of the earner concerned. Therefore you have an income that is not counted for some people but is counted for others.

Also included in income are employment credits and disabled persons tax credits.

Finally, any pension income paid “periodically” under an occupation or personal pension or retirement annuity contract will also be taken into account.

Transitional provisions and the court - how to proceed now

If a CSA application is issued now, an assessment should theoretically be carried out on the current rules and move onto the new rules later on. In practice however any applications now made to the Agency will end up under the new system with immediate effect. For those currently subject to a CSA assessment it is likely that they will move to the regime in 2004 but will be subject to considerable phasing over a period of up to five years. The amount of phasing will be subject to the income of the paying parent. If the father earns under £100.00 per week the new assessment will be phased in at the rate of £2.50 per week each year. If the income is between £100.00 and £400.00 per week the phased will be £5.00 per week and if the figure is over £400.00 per week the phasing figure will be £10.00 per week. What this would mean in say a situation where the current assessment amounts to £110.00 per week with the NRP earning say £500.00 per week is that the new assessment in the sum of £75.00 would reduce upon conversion to from £110.00 to £100.00 and after one year would reduce to £90.00 per week, after two years to £80.00 per week before finally on the third anniversary reducing to £75.00 per week.

The maximum period of phasing will be five years. Last minute manoeuvres by the PWC to increase and the NRP to decrease are therefore to be expected as there is going to be a very long period phasing.

There is however a real question for those currently outside the system, should they go in now, should they go in after 2002, do they want to reach an agreement and if so do they want to make an order now or again after April 2002? Different considerations will apply.

The CSA is able now and will be able under the new legislation to takeover child support in any case where the PWC is in receipt of a prescribed benefit (Section 6). However pursuant to Section 4 no private application can be made to the CSA where there is in force a “written maintenance agreement made before 5th April 1993, or a maintenance order made before 3rd March 2003 in respect of that child or those children and that the person who is, at that time, the NRP”.

This raises a very important point, if a Consent Order is made before 3rd March 2003 that Order will prohibit the CSA’s involvement. The Court will continue to retain jurisdiction to vary the order, consensually or otherwise.

However, all orders made after 3rd March 2003 will only hold the CSA off for 14 months as once the order has been in operation for 12 months either party may “opt out” by giving two months notice.

Hence, if a client wishes to contract out of the new CSA formula completely, a Court Order must be obtained by 3rd March 2003. Note, it is the date of the Order itself that is relevant, not the date the agreement was reached. I well remember the flurry to obtain Orders prior to October 1988 when the taxation treatment changed. I anticipate something similar this time around but it may not be quite so consensual. It is going to be very important to make the right decision in these circumstances.

I would once again emphasise, if you want to keep the CSA away from your case you will need to have a Consent Order in place by 3rd March 2003. If you achieve this the CSA will not become involved unless the PWC falls on benefits.

Avoiding the new CSA

When the new regime is up and running problem will occur as a result of the ability of the PWC to make an application the CSA 14 months after a Consent Order has been made. Problems are bound to arise in particular where has been a clean break ordered on divorce or on the case of unmarried parents, agreed capital provision on consent child maintenance under the Children Act 1989.

If you wish to avoid the impact of the new regime you may wish to consider:-

  • A Segal or Connell Order. These orders enable the Court to order maintenance providing for the needs of a family as a whole by way of a global sum which is to be reduced by whatever the CSA calculates to be the maintenance payable in respect of the children. A Segal is a temporary order and a Cornell is of course the long term position. Such orders can however only be made where the PWC has a substantive maintenance entitlement and not where there is a clean break (Dorney Kingdom vs Dorney Kingdom 2000). Where time is short do not forget to consider a consent interim or even nominal order for periodical payments which can be varied when an overall settlement is reached (or not) after 3rd March 2003.
  • A charge could be kept on property transferred to the PWC whereby, if she makes an application to the CSA, any excess of child maintenance over and above the order is clawed back in favour of the NRP. It is questionable however whether a Court would regard such an order as being in the best interests of the children.
  • An application for school fees order could be made by the NRP against the PWC by consent and expressed only to be operative where the maintenance calculation exceeds the specified figure. This obviously only works when the children attend fee paying schools.
  • A compensatory periodical payments order in favour of the NRP by which the PWC could be ordered to pay periodical payments equal to the excess of the maintenance calculation over the maintenance order. If there is a clean break you may have to try and stretch the District Judges imagination with some kind of compensating lump sum order payable by instalments.

Is it possible the CSA’s jurisdiction could be challenged under the Human Rights Act 1998?

There are certainly several areas of child support practice that are questionable in terms of access to justice, equality of arms and a right to a fair trial. These in reality only tinker with the system. For the adventurous gambler how about:-

  1. The operation of an agency assessing maintenance by means of a formula is in itself the denial of a fair trial. Section 23(1)(d) MCA1973 remains on the statue books supposedly enabling a spouse to apply for periodical payments for his/her child yet the CSA1991 precludes such an application being made without repealing this provision.
  2. Pursuant to Section 2 of the Child Support Act the SOS must consider the welfare of the child but only when exercising any “discretionary power”. Is this contrary to the welfare of the child and thus in breach of the HRA?
  3. The variation jurisdiction enables the SOS to “agree” a variation if, inter alia, it is “just and equitable”. He is therefore required to act in a judicial capacity even through there is no hearing of any kind.
  4. Is the imposition of a quasi criminal penalty namely disqualification from driving in relation to civil obligation a breach of Human Rights? Remember however that there is a defence here of “necessary and proportional”.

I am not a Human Rights lawyer but it is easy to see that there is a lot here to get your teeth into if you are that way inclined and are feeling flush!

Whilst in the area of Court Orders etc do also remember that if NRP has other children his total limit on his child support liability is 25% of his net income if all children are being dealt with through the CSA. For the more proliferate NRP this may be attractive. If your client is a PWC in these circumstances and the NRP is unaware of the position a Consent Order could be arranged.

Always concentrate your mind, school fees are not effected one way or another by a CSA calculation. If this looks like the kind of case where school fees are likely to become subject it might be a good idea to ensure a recital is in a Consent Order for the intention of the parties as to liability for future school fees where a calculation is in force.

Variation

1. Background

The Child Support Act 1991 and the regime brought into force in 1993 was considered far to inflexible and in 1995 amendments to the scheme were proposed which did nothing with regard to flexibility but did superficially appear to provide some comfort to those who had made capital settlements prior to 1993 and those individuals who had a long distance to travel to work. In accordance with that act a Departure Scheme was drafted in 1996 which allowed for further flexibility although in absolutely defined circumstances. The government likes the way the Departure system works and has therefore broadly repeated it, although as with everything in the new scheme it is given a shiny new name, “variations”.

2. Applying for a variation

An application can be made either after a calculation has been made or indeed before it is made. Once received the SOS must consider the application on a preliminary basis and can dismiss it without bothering the other side. The rejection would basically be that the grounds applied for do not hold water. It should be further noted the SOS can reject an application at any time if the applicant has failed to abide by a “regular payment condition” pending the outcome of his deliberations.

3. Grounds for variation

There are three principle types of “variation cases”, special expenses, property or capital transfers and “additional” cases.

(a) Special expenses

(i). Contact costs.

All necessarily incurred contact costs can be put forward in a variation application by the NRP. They must satisfy the minimum amount which I will come to later and include:-

a) Travel tickets
b) Fuel
c) Taxi fare where necessary
d) Cost of car hire where necessary
e) Cost of overnight stay where appropriate and can include the cost of breakfast
f) Further costs such as tolls and parking fees.

It should be noted that the contact must be to a set pattern.

(ii). Illness or disability of a relevant other child

An application for a variation may be made as a cost for looking after a disabled child most particularly personal care and attendance, communication needs, mobility, domestic help, medical aid (where not provided by NHS), heating, clothing, laundry, diet, day care, rehabilitation, respite care or adaptations to NRP’s home. This list is comprehensive. The regulations provide that a disabled child must be registered blind or treated as blind, or in receipt of attendance allowance, DLA or mobility supplement (or would be if it were not for the fact that they are an inpatient).

(iii). Prior debts

If the NRP has debts incurred before he became an NRP in relation to a qualifying child and at the time where the NRP and the PWC were a couple he may apply for a variation in respect of debts incurred:-

a) For the joint benefit of the NRP and PWC
b) For the benefit of the PWC were the NRP remains legally liable to pay whole or part of the debt
c) For the benefit of any non-qualifying child of the NRP/PWC when the child lived with them, providing the debt was incurred when that child was a child
d) For the benefit of any qualifying child
e) For the benefit of any child who at the time of the debt was incurred lived with the NRP and PWC and the PWC is the parent.
f) If the loan was for items, that those items remain with the PWC.

There is a whopping list of loans that do not qualify such as fines, overdrafts, credit cards, business debts.

It should be noted that the NRP cannot apply in respect of loans upon which he has assumed responsibility as part of the ancillary relief settlement unless the debt concerned is the mortgage on the former matrimonial home.

(iv). Boarding school fees

A variation application may be made by the NRP where he pays boarding school fees for the child. Note the only part of boarding school fees that are allowable are the fees for boarding, not for education. When the amount is not readily ascertainable the element of boarding will be capped at 35%. Whereas most of the variation system is directly lifted from the current departure system. This however is a brand new ground and has almost certainly been included because there are going to be far more children at boarding school that fall within the auspices of the CSA following the introduction of the higher limits. It should be noted that the effect of this ground cannot be allowed above 50% of the non-resident parents net income.

(v). Mortgage payments

Where the NRP pays a mortgage or loan relating to the purchase of or repairs or improvements to a property owned by someone other than the NRP and the property concerned was the home of the NRP and the PWC when they were a couple and remains the home of the parent with care and the child providing the NRP has no legal or equitable interest in and no charge or right to have a charge over the property a variation application can be made in respect of those payments.

Again this in another new ground. The current departure system allows for such an application to be made as a “debt incurred before he became an NRP”. The invention of this new ground would suggest clear approval for this kind of arrangement, giving the SOS a “green light” to use this method of variation and by the back door in effect instructing the SOS to be very careful about granting variations concerning mortgages as part of the “debts” ground.

Finally it should be noted in respect of all special expenses claims there is a threshold of £15.00 per week where the NRP earns of £200.00 or £10.00 per week where he earns under £200.00. He can however aggregate his claims to exceed the threshold.

(b). Property or capital transfers

Where the NRP transferred a property as part a matrimonial settlement, even if he has the benefit of say a Mesher or Martin Order, the value of the physical transfer to the PWC can be taken into account in a variation application. This in reality is simply lifted directly from the departure regulations. Only transfers made prior to April 1993 will qualify.

(c). Additional variation cases

These cases are available to the PWC dissatisfied with the amount of the assessment.

a) Assets

Where the NRP has a beneficial interest in an asset or has the ability to control an asset that has been transferred or has become “subject to a trust created by legal implication” a variation can be agreed by the SOS. Assets included money whether on deposit, in cash, interest in land, shares, unit trusts, gilt’s and other financial instruments or a chose in action and can include assets located outside Great Britain. It should be noted that such an application cannot be made in relation to any asset which is worth less than £65,000.00 (after deduction of any amount owing on the asset), compensation for personal injury, the home of the NRP (or any child of his), any asset used in the course of his trade or business and finally any asset that the SOS is satisfied as being retained by the NRP for uses “considered reasonable”.

b) Income not taken into account under diversion of income

This comes in two parts, where the NRP is due to pay a nil or flat rate because he is in receipt of benefits or his income is less than £100.00 and where the PWC can prove that the NRP has undisclosed income amounting with his declared income to over £100.00 per week the SOS can agree to a variation and aggregate the income found with benefit or allowances already in payment.

The parent with care can also apply for variation where the NRP has the ability to control the amount of income he receives including earnings from income or self-employment and the SOS is satisfied that the NRP has unreasonably reduced the amount of his income by diverting it to other persons.

The final variation ground is that of lifestyle inconsistent with declared income. Again this is for the PWC to apply. Superficially this may appear to be law transferred from the current legislation but it does represent a change as under the current legislation the SOS must be satisfied that the lifestyle is “significantly” inconsistent with declared income. The word significantly is now dropped and the SOS now has to be satisfied that the “income which would otherwise be taken into account for the purposes of the maintenance calculation is substantially lower than the level of income required to support the overall lifestyle of the NRP”. Assuming the SOS is satisfied he must then put a figure on the top-up to the declared income necessary to support the lifestyle and can then carry out the maintenance calculation on that basis.

Effect of variation

Maintenance calculations affected by variations are as follows:-

1. Special expenses

The amount of special expenses are deducted from the NRP’s income to calculate his net income.

2. Property transfer

The weekly amount of the property transfer is deducted direct from the maintenance calculation.

3. Additional cases

The NRP’s net income is increased by the amount found to be appropriate unless as a result that takes the NRP’s income above the capped amount in which case the amount is restricted to the capped amount (the maximum).

New methods of enforcement

As discussed earlier inspectors can be appointed to obtain information needed “for any purposes under the act”. They may enter premises and make “such information and enquiry as is considered appropriate”. Solicitors offices are not exempt.

In addition to the usual methods of enforcement the CSA has namely Deduction from Earnings Order as a matter of administration, Liability Order followed by distress, Garnishee or Charging Order, and if necessary by committal, an application can now be made for disqualification from driving. An application is made to the Magistrates Court where the liable person lives and when considering the matter the Magistrates must enquire as to:-

a) Whether the NRP needs his licence to earn a living.
b) His means
c) Whether the failure to pay has been due to “wilful neglect or refusal”

When disqualifying the Court may disqualify for up to two years or suspend disqualification subject to various conditions usually on the basis of payments that are at a set rate until a certain sum if paid off.

Note, the Magistrates do not have to set the same sum as the Liability Order, they can set a different amount. The Magistrates have no provision to award their figure plus the maintenance assessment currently due. The two must be treated separately.

Do not forget that the CSA is the only authority that can obtain a Liability Order against the NRP however once a Liability Order is granted the PWC can appoint her own solicitor to enforce it like any Court Judgement. This is particularly important bearing in mind the CSA’s lamentable record in this area.

Last but no means least, the complex calculation of interest on child support arrears is now done away with (in reality the CSA have not been able to charge interest since 1994) but instead the SOS can charge penalty payment on arrears amounting to 25% of the amount of CSM payable from week to week.

Conclusions

The new legislation is going to make child support easier to calculate however with the many variation grounds, driving licences to be saved together with phasing, top-ups and school fees orders there is going to be plenty of grist to the family lawyers mill.

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Child Support Solutions specialises in helping resident and non-resident parents who are having problems with the
Child Support Agency or who need general advice and support relating to issues with the CSA.