Clause 8: Revision and supersession of decisions

72. In June 1999, new decision-making and appeals rules were introduced for child support. The intention of these changes was to simplify the decision making process, to focus decisions on the outcome rather than the process, and to streamline the appeals system. However, in developing the new arrangements, it became clear that further changes to the 1991 Act were needed to support the new system.

73. In particular, the existing legislation did not always clearly provide for a decision to be made. This in turn made it difficult to frame the rules for the revision and supersession of decisions (in sections 16 and 17 of the 1991 Act) and to indicate clearly the point at issue in providing for a right of appeal (section 20).

74. The new decision-making provisions were introduced by the *Social Security Act 1998. This Act substituted section 16, 17 and 20 of the 1991 Act as well as introducing a new Schedule 4C which provided for decision-making and appeals in specific cases.

75. The amendments to sections 11 and 12 of the 1991 Act (introduced by clauses 1 and 4) and the new rules for variations in child support liability (clauses 5 to 7) focus more clearly on the decisions to be made. This in turn enables the revision, supersession and appeals rules to be restructured to clarify the rights of parents.

76. This clause amends section 16 of the 1991 Act by inserting a subsection (1A) to cover decisions to reduce benefit and decisions of appeal tribunals on variations. This replaces provisions currently in paragraph 1 of Schedule 4C to the 1991 Act.

77. A reduced benefit decision may be imposed if a parent with care who has claimed or who is receiving income support or income based Jobseeker’s Allowance requests, without good cause, not to be treated as having applied for child support, or fails to provide information or undergo a scientific test – see section 46, as substituted by clause 18.

78. An appeal tribunal can determine an application for a variation if asked to do so by the Secretary of State. This process is not the same as determining an appeal: there is no provision for the revision of decisions on appeals.

79. This clause also inserts a new subsection (1B) into section 16 which provides that on revision, a section 12(1) decision is treated as if made under section 11.

Clause 9: Decisions superseding earlier decisions

80. This clause amends section 17 of the 1991 Act to clarify the decisions which may be superseded.

81. Subsections (1) and (2) amend section 17(1) to provide for the supersession of:

• a reduced benefit decision;

• a decision of an appeal tribunal on a variation or a reduced benefit decision; and

• a decision of a Commissioner on an appeal from a decision under paragraph (b), (c) or (d).

82. Subsection (3) substitutes subsection (4) of section 17 with two new subsections (4) and (4A) which provide for the date from which a supersession takes effect. The existing legislation provides that a supersession takes effect from:

• the date that it is requested, or

• the date of the change, or

• such other date as may be prescribed.

83. In child support, decisions normally take effect from the beginning of a maintenance period: this subsection amends section 17 to make this clear. A ‘maintenance period’ represents the weekly unit in which maintenance liability is calculated. The first maintenance period starts on the date that the nonresident parent's liability begins: each subsequent maintenance period starts on the same day of the week. Other periods may be prescribed for particular cases.

Clause 10: Appeals to appeal tribunals

84. This clause substitutes section 20 of the 1991 Act with a new provision governing the right to appeal child support decisions. The intention of the amendment is to set out clearly the decisions which can be appealed and the circumstances in which an appeal can brought against such decisions. As now, the intention is that decisions that affect child support liability will be appealable. There will also continue to be a right of appeal against a decision to impose a reduced benefit decision. Decisions on fees and fixed penalties will also be appealable.

New section 20: Appeals to appeal tribunals

New section 20(1) sets out who may appeal and the decisions that they may appeal against. An appeal may be brought by any qualifying person. Subsection (2) provides a definition of this term. Decisions which can be appealed are:
(a) a decision to make a maintenance calculation (section 11), a default or interim decision (section 12) and a superseding decision (section 17);

(b) a decision not to make a maintenance calculation or revise or supersede a decision. The Secretary of State has no jurisdiction to make a maintenance calculation in certain circumstances (such as where the child is living abroad) and decisions which cannot be revised include default liabilities where there is still insufficient evidence to complete a maintenance calculation;

(c) a reduced benefit decision;

(d) the imposition of a penalty for late payment of maintenance and the amount of the penalty; and

(e) the requirement to pay fees

New section 20(2) provides the definition of 'qualifying person' for the purpose of subsection (1) of this section. A qualifying person is:

(a) either the person with care and the non-resident parent;

(b) a child in Scotland who made the application for a maintenance calculation which led to the decision;

(c) the parent with care affected by the decision to reduce benefit;

(d) the parent required to make penalty payments; or

(e) the person required to pay fees.

New section 20(3) provides that anyone with a right of appeal against a decision or imposition of a requirement should be told of this right. In the case of maintenance calculations, default and interim decisions and superseding decisions, they must also be given notice of the decision.

New sections 20(4) and (5) provide for regulations to specify how, and in what time, an appeal must be brought. As now, it is intended that there will be a one-month time limit for bringing an appeal, which can be extended at the tribunal's discretion if there was good cause for failing to appeal sooner.

New section 20(6) provides that the time to appeal against a decision to reduce benefit runs from the date that benefit is reduced.

New section 20(7) provides that the tribunal cannot consider changes in circumstances which happened after the date of the decision and need not look at any issue not raised when the decision was made. This is the same as for social security benefit appeals.

New section 20(8) provides for the way that a tribunal can decide the appeal if it is allowed. The tribunal can either:

(a) decide the appeal itself, or

(b) send the decision back to the CSA with directions as to how a new decision must be made. This provision is needed because the tribunal will often not have all the information or computer support necessary to make a new maintenance calculation.

Information

85. The power to request information in section 14(1) of the 1991 Act is currently phrased in terms of information or evidence needed to determine an application, or a question arising in connection with an application, or needed in connection with collection or enforcement of maintenance.

86. The ability to request information should not be limited to the initial decision regarding maintenance liability, but should apply in connection with any decision to be made under the Act, as well as in connection with collection and enforcement of child support or other maintenance.

87. Clause 11 amends section 14 of the 1991 Act to allow the Secretary of State to require any information which he may need to make any decision or impose any condition or requirement under the Act.

Clause 12: Information – offences

88. The current child support scheme can be thwarted by parents who fail to produce the information required to make a child maintenance assessment. Parents may also provide false information, which can result in an incorrect assessment of liability. When the current scheme was developed this problem was to be addressed by applying punitive interim maintenance assessments to uncooperative non-resident parents. This sanction has proved ineffective because it is practically impossible to enforce a punitive interim maintenance assessment. The lack of effective sanctions was highlighted in the Benefit Fraud Inspectorate’s report on the Child Support Agency.

89. The White Paper A new contract for welfare: CHILDREN’S RIGHTS AND PARENTS’ RESPONSIBILITIES made it clear that, for the new scheme, the Government intended to ensure that parents who sought to avoid their child support responsibilities would face effective penalties. In particular the White Paper proposed a new penalty for parents who lied to the Child Support Agency or refused to provide information.

90. Clause 12 introduces a new section 14A which provides for a fine of up to £1000 for anyone who provides false information or refuses to supply information.

New section 14A: Information – offences

New section 14(1) provides whom this section applies to.
Subsection (1)(a) specifies those who are required to provide the information necessary to trace and, in the case of a maintenance application made under section 4 identify, the non-resident parent, and to assess and collect the maintenance liability.

Subsection (1)(b) enables the Secretary of State to apply the section to other persons. It is intended to specify for example, employers of non-resident parents and their accountants.

New section 14A(2) introduces an offence of making a false statement or representation or knowingly providing, or allowing to be provided, information which is false.

knowingly providing, or allowing to be provided, information which is false, or New section 14A(3) introduces an offence of failure to provide information when required by the Secretary of State to do so.

New section 14A(4) provides that if a person has a reasonable excuse for failing to comply with the Secretary of State’s request the offence will not apply to him.

New section 14A(5) provides that if a person is found guilty of either new offence he will be subject on conviction to a fine of up to £1000.

Clause 13: Inspectors

91. As explained in the note on clause 12, the process of deciding child support liability and collecting maintenance for children can be delayed if information is not provided. Clause 12 provides for a penalty if parents lie or refuse to give information to the Child Support Agency (CSA). In other circumstances, other means of getting information may be appropriate. In some cases, a visit to an employer’s premises, or the premises from which a non-resident parent conducts his business, can yield information that would be difficult to get by other means.

92. The 1991 Act contains a provision to allow child support inspectors to be appointed on a case-by-case basis to carry out visits. The legislation allows for inspectors to enter any premises which are not solely residential, to question anyone they find there and to see any documents. Obstructing an inspector carries a fine of up to £1,000.

93. In practice, however, inspectors are very rarely used. This is because inspectors cannot be appointed for a period: they have to be separately appointed for each case. This in turn means that the CSA cannot build up a team of trained inspectors to be used as required. Given the substantial training, which is required to make an inspector fully effective, this rule severely limits the usefulness of this provision.

94. Clause 13 amends section 15 of the 1991 Act to provide for inspectors to be appointed in a way that does not tie the appointment to an individual case. The clause also restates the powers of inspectors to bring this child support provision in line with the more general provisions for DSS investigators set out in Part III of this Bill.

95. Subsection (2) substitutes subsections (1) to (4A) of section 15 in the 1991 Act.

Amended section 15: Inspectors

New section 15(1) allows Secretary of State to appoint inspectors. This provision allows the Secretary of State to set the terms of appointment. We intend that inspectors will be appointed for fixed periods. Normally, inspectors will work for the CSA, but on occasion other people with special qualifications will be appointed for specific tasks. It is intended for example to have reciprocal arrangements with inspectors in local authorities and the Benefits Agency.

New section 15(4) sets out the inspectors’ powers to enter at any reasonable time, the premises defined in subsection (4A) as being liable to inspection either alone or accompanied. In these premises, the inspector is empowered to examine and enquire as he thinks appropriate.

New section 15(4A) defines premises liable to inspection for the purpose of subsection 4. These are any premises other than places used only as a person’s home in which:

• a non-resident parent is working- or where he has been working (as an employee or on a self-employed basis); or

• where another person holds information in a professional capacity about a non-resident parent

96. Subsection (3) inserts subsection (11) in section 15, which provides that premises include:

(a) permanent and moveable structures, and, if appropriate, vehicles, boats etc;

(b) offshore installations such as oil-rigs; and

(c) all other places occupied on a permanent or temporary basis.

Parentage

Clause 14: Presumption of parentage in child support cases

97. Most fathers who are non-resident parents acknowledge their children and accept their responsibility to them. In these cases, child support liability can be worked out without any further investigation as to paternity. However, occasionally a man may have good reason to doubt the parent with care’s statement that he is the father of the child in question. And, in some cases, men have contested paternity in order to slow down the process of collecting child maintenance.

98. To allow child support to be worked out without unnecessary delay, the Secretary of State can, in specific circumstances, assume that a man is the father of a child even if he denies it. In these cases, child support liability can only be stopped if the non-resident parent proves in court that he is not in fact the child’s father.

99. In England and Wales, the circumstances in which paternity can be assumed include those where a child was adopted by the man in question and also where there is a court declaration that the man is the child’s father. However, in Scotland, there is also a presumption that a man is the father of a child if he was married to the child’s mother at any time between the date of conception and the child’s birth. The Bill extends this presumption to England and Wales.

100. A person who is treated as a non-resident parent as a result of these presumptions can challenge his child support liability by applying to court. The provision for such applications is in secondary legislation made under section 45 of the 1991 Act. Clause 56 provides specifically for the courts to determine whether or not one person is the parent of another.

101. This clause amends section 26 of the 1991 Act to add three new cases in which child support liability can be worked out on the basis that a man who denies paternity is in fact the father of the qualifying child.

• Case A1 allows the Secretary of State to presume that a man is the father of a child living in England and Wales if the man was married to the child’s mother at any time between the date of conception and the child’s birth. This follows the existing presumption in Scottish law.

• Case A2 provides a presumption that a man who is named on the child’s birth certificate is the child’s father even if he was not married to the mother.

• Case A3 enables the Secretary of State to presume parentage if either:

  • the alleged parent has refused to take a DNA test; or

  • the result of a DNA test shows that he is a parent of the child but he refuses to accept it.

Disqualification from driving

Clause 15: Disqualification from driving

102. Currently section 40 of the Child Support Act 1991, which applies only in England and Wales, enables the Secretary of State to apply to a magistrates’ court for the issue of a warrant committing a non-resident parent to prison where distress action, garnishee proceedings or a charging order have failed to recover some, or all, of the child support maintenance outstanding.

103. If the court is satisfied that there has been wilful refusal or culpable neglect, it may issue a warrant for committal to prison for a maximum period of six weeks, or suspend the sentence. It has previously been held that the term “wilful refusal or culpable neglect” means that the conduct of the non-resident parent must amount to deliberate defiance or reckless disregard. The non-resident parent may be released from prison on payment of the amount stated on the warrant or have the period reduced for part payment.

104. This clause provides for a disqualification order to be made in relation to holding or obtaining a driving licence as an alternative to committal. Subsections (2) and (3) of clause 12 amend section 40 (the provision for committal) and insert a new section 40B (the further provision of disqualification from driving).

105. Subsection (1) inserts a new section 39A in the 1991 Act;

New section 39A: Commitment to prison and disqualification from driving

New section 39A(1) provides that this section applies where the Secretary of State has tried distress or enforcement through the county courts.

New section 39A(2) provides for the courts to be able to consider either committal or disqualification from driving.

New section 39A(3) provides for the courts to consider:

• whether a driving licence is needed by the liable person to earn a living;

• the financial circumstances of the liable person; and

• whether there has been wilful refusal or culpable neglect.

  New section 39A(4) provides for the Secretary of State and the liable person to make representations to court on which penalty should be imposed.

  New section 39A(5) defines “driving licence”.

  New section 39A(6) modifies section 39A for Scotland.

106. Subsection (2) amends section 40 of the 1991 Act which provides for committal by omitting subsections (1) and (2) which set out the powers of the Court and what must be considered..

107. Subsection (3) provides for a new section 40B to be inserted before section 41.

New section 40B: Disqualification from driving: further provision

New section 40B(1) provides a power for the Court to disqualify the liable person from driving if the courts agree that the he has wilfully refused to pay or been guilty of culpable neglect in connection with paying maintenance.
• (1)(a) provides for the disqualification order to apply for a period not exceeding two years.

• (1)(b) provides that the disqualification order may be suspended.

New section 40B(2) provides that the courts cannot make both a disqualification order and warrant for committal.

New section 40B(3) provides that the order should include the amount of the arrears included in the liability order and the court costs.

New section 40B(4) provides for the courts to require the liable person to produce his driving licence (defined in section 108(1) of the Road Traffic Act 1988).

New section 40B(5) provides that the courts may lift the order, or substitute a shorter disqualification period, if part of the amount outstanding is paid, and must revoke the disqualification if payment is made in full before the end of the disqualification period.

New section 40B(6) provides for the Secretary of State to be able to recommend to the court the amount that should be paid before the disqualification order is lifted. It also provides for the liable person to reply to the recommendations.

New section 40B(7) provides for a further application to be made to the courts if any amount remains outstanding at the end of the disqualification period.

New section 40B(8) provides for a reference to the disqualification to be made in Section 44 of the Power of Criminals Courts Act 1973. This enables the police to require production of the licence if it is not given to the courts.

New section 40B(9) provides for Section 80 of the Magistrates Court Act 1980 to apply to a disqualification order, to reflect provisions currently in section 40. This enables a liable person to be searched in Court and money found applied against the amount owing.

New section 40B(10) provides for regulations to be made, prescribing the way in which disqualification orders will operate.

New section 40B(11) modifies this section in its application to Scotland.

Clause 16: Civil Imprisonment: Scotland

108. Clause 16 inserts new section 40A into the 1991 Act. This replaces the provisions of section 40(13) and (14) of the 1991 Act on Civil Imprisonment in Scotland for failure to pay sums due under a liability order.

109. The clause provides for the procedure for the Sheriff to follow if he is satisfied that it is appropriate to commit a liable person to prison. The maximum period of imprisonment is six weeks.

Financial penalties

Clause 17 Financial Penalties

110. Early attempts to implement interest charges on arrears of child support maintenance were abandoned from April 1995. The calculations were complex and difficult to explain to clients. An alternative provision to interest was introduced by the Child Support Act 1995 but did not come into force. Neither of these provisions will have effect in the new scheme.

111. Instead, a simpler, discretionary financial penalty will be introduced. The intention is for the Secretary of State to have discretion to impose a financial penalty of up to 25 per cent of the amount owed. This will be levied for each week in which payment was not made but will not be compounded. The charge will not be child support maintenance but will be an administrative penalty payable to the Department of Social Security in recognition of the additional work involved in pursuing late or non-payment and will be paid into the Consolidated Fund.

112. It is intended that the penalty will not be imposed if: a missed payment is paid within a reasonable period; the payment was missed for good reason, such as sickness; or acceptable arrangements are made to pay the missing amount and to continue to pay over an agreed period.

113. It is envisaged that the penalty will rarely need to be applied, but that it will provide a useful incentive for persuading non-resident parents to meet their responsibilities.

114. Clause 13 makes an amendment to Section 41 and replaces Section 41A of the 1991 Act. It removes the provisions on charging interest and inserts new provisions for financial penalties to be charged.

115. Subsection (1) amends Section 41 of the 1991 Act to remove the charging of interest on arrears. Transitional provisions will allow the Secretary of State to continue to collect and enforce interest charges already imposed.

116. Subsection (2) substitutes section 41A of the 1991 Act with a new provision on financial penalties.

New section 41A: Penalty payments

New section 41A(1) provides for regulations that allow the Secretary of State to require a non-resident parent who is late in paying child support maintenance to make a penalty payment. Regulations will further provide the way in which penalties are calculated.

New section 41A(2) makes the amount of a penalty payment discretionary but limits the amount to be charged to 25 per cent of the amount due for that week.

New section 41A(3) provides that the amount of the child support maintenance arrears remains due even when a financial penalty has been imposed. The financial penalty is not child support maintenance and is not passed on to the parent with care.

New section 41A(4) provides for regulations to

(a) state at what point in time a financial penalty becomes payable;

(b) allow all or part of the penalty to be waived at the discretion of the Secretary of State. This will depend on reasons given for late or non-payment and the level of co-operation in paying the arrears.

New section 41A(5) allows regulations on collection and enforcement to apply to penalty payments in the same way as they do to child maintenance payments. Therefore the Secretary of State will have exactly the same powers to collect and enforce penalty payments and may combine this action with action to collect and enforce child maintenance.

New section 41A(6) provides that any payment collected therefore remains in the Consolidated Fund and is not paid over to the parent with care.

Clause 18: Reduced benefit decisions

117. This clause replaces section 46 of the Child Support Act 1991.

The new section 46: Reduced benefit decisions

New section 46(1) provides the section applies where a parent with care has asked the Secretary of State not to pursue child maintenance, or failed to provide information or refused to take a scientific test such as a DNA test. For example, where the parent with care fears violence from the non-resident parent if he were to be pursued for maintenance.

New section 46(2) enables the Secretary of State to require the parent with care to provide reasons why she has ‘good cause’ either to ask the Secretary of State not to act under section 6 or to fail to give information as required by section 6, or to refuse to take a scientific test. When a parent with care is in receipt of a benefit referred to in, or prescribed for, the purposes of section 6(1) and asks the Secretary of State not to act, or refuses to take a test, the parent with care will be interviewed. If she is unsure whether she wants to ask the Secretary of State not to act she will be given a specified period to make her decision and give her reasons.

New section 46(3) provides that when the specified period has expired the Secretary of State must make a decision, based on the information provided by the parent with care, on whether there are reasonable grounds for believing that she or her child(ren) would be at a risk of harm or undue distress as a consequence of the Secretary of State recovering child support maintenance from the non-resident parent, insisting on the provision of information or if she were to agree to a scientific test. The term “reduced benefit decision” will replace the term “reduced benefit direction” in the existing Act.

"Specified" is defined in section 46(11), which gives power to prescribe a period. The Government intends to prescribe 4 weeks, from the date when the parent with care is given notice asking for her reasons under section 46(2).

New section 46(4) provides that if the Secretary of State considers that there are reasonable grounds for believing that the parent with care or her child would be at risk of harm or undue distress, then he is to take no further action under section 46, and that she will be notified of this.

New section 46(5) to (11) set out the same provisions as section 46 of the 1991 Child Support Act, but substitutes some of the existing terminology. For example, reduced benefit direction in section 46 is changed to reduced benefit decision under this legislation.

New section 46(6) enables the Secretary of State to require the parent to state whether she still does not wish him to act under section 6(3) and to give her reasons.