House of Commons - Explanatory Note
Child Support, Pensions And Social Security Bill - continued          House of Commons

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Clause 19: Voluntary payments

118. Liability to pay child support usually begins on the day that the non-resident parent is told about the application for a maintenance calculation. However, there will usually be some delay between this date and the date that a maintenance calculation is completed. This means that arrears of maintenance build before parents know how much they should be paying. Voluntary payments made during this period can reduce the debt and provide financial support for the children while child maintenance is being worked out.

119. However, at present voluntary payments are not defined and have no statutory status. The CSA follows policy guidelines in determining which payments can be set-off against arrears of maintenance. The Government considers that the use of the discretion is not providing sufficient reassurance to parents that all cases are being treated in the same way. This in turn provides a disincentive to make payments for the children before the maintenance calculation is completed. The Government therefore proposes to give statutory recognition to voluntary payments.

120. This clause gives statutory recognition to voluntary payments by inserting a new section in the 1991 Act which establishes clearly the range of payments to be covered and allowing such payments to be offset against child support arrears and current maintenance. Subsections (2) and (3) of this clause amend the provision for repayments of overpaid child support to cover the voluntary payments that exceed any child maintenance due.

121. Subsection (1) inserts a new section 28J in the 1991 Act.

New section 28J: Voluntary payments

    New section 28J(1) provides that this section applies where a person has made an application for a maintenance calculation or is treated as having made an application under section 6 of the 1991 Act; the application has not yet been determined; and the non-resident parent actually makes a voluntary payment.

    Section 6 of the 1991 Act is introduced by clause 3 of this Bill. It provides that a parent with care who claims or receives Income Support or income-based Jobseeker’s Allowance can be treated as having applied for a maintenance calculation.

    New section 28J(2) defines the term “voluntary payment" as:

      subsection (2)(a): a payment on account of child maintenance which the non-resident parent expects to pay. The payment may be based on an estimate provided to him by the Secretary of State or based on an amount he has worked out for himself as being due, and

      subsection 2(b): a payment, which is made before the actual calculation has been notified, or the application for maintenance determined.

    New section 28J(3) provides for regulations that will set out circumstances in which voluntary payments can be taken into account.

      Subsection 3(a) provides for voluntary payments to be offset against the arrears which have built up before the non-resident parent was notified of the calculation.

      Subsection 3(b) provides for the balance to be offset against future liability, to the extent that the voluntary payments exceed any outstanding debt.

    New section 28J(4) provides for conditions to be set regarding payments and to whom they can be paid. It allows for voluntary payments to be made via the CSA, direct to the parent with care, or another specified party.

    New section 28J(5) provides a general power for regulations about voluntary payments and, in particular, about the type of payment that can be accepted.

      Subsection (5)(a) provides for regulations to specify which payments are and which are not to be treated as a voluntary payment. This will relate to all payments whether they are paid to the parent with care or any other party. It is intended that as well as cash payments, any payment that is made for food, shelter and warmth will normally be taken into account. However, payments in kind, that is, where the non-resident parent spends money on other items for the child will not be taken into account.

      Subsection (5)(b) provides for regulations to specify the extent and the circumstances in which these payments can be taken into account once it is accepted that the payment is of the right type to be counted as a voluntary payment.

122. Subsections (2) to (4) amend section 41B of the 1991 Act which provides for the lump-sum repayment to the non-resident parent of maintenance that he has overpaid. This provision takes effect when the overpayment cannot be repaid in a reasonable time by offsetting it against future child support liability. The intention of this amendment is to treat overpayments of voluntary payments in the same way as overpayments of child support maintenance.

123. Subsection (3) provides for a new section to be inserted after subsection 1 of section 41B, which allows the provisions of section 41B to apply where a voluntary payment has been made, and:

  • it subsequently turns out that there is no maintenance liability due at all, or

  • the non-resident parent has paid more, in voluntary payments, than the total of arrears.

124. Subsection (4) substitutes subsection (7) of section 41B. The substituted subsection (7) will provide that a payment can be treated as being an overpayment of child support maintenance made by a non-resident parent where:

  • a payment was made but the maintenance calculation turns out not to be valid (for example where a person who believes himself to be the non-resident parent turns out not to be the non-resident parent or where the CSA do not have jurisdiction over a case) and;

  • a voluntary payment has been made but there is no liability to pay child maintenance.

Clause 20: Recovery of arrears by deduction from benefit

125. In the current scheme, where a non-resident parent has no assessable income because he is in receipt of an income-related benefit a contribution to maintenance can be deducted in certain circumstances. However, there are many exempt categories and, in practice, only around 23,000 non-resident parents make a contribution to maintenance.

126. In the reformed scheme most non-resident parents in receipt of certain prescribed benefits, including income-related benefits and war pensions will be liable to pay a minimum amount of maintenance (£5) a week. The vast majority of exemptions will be removed.

127. In addition, the parent with care may make an application for a variation against a non-resident parent in receipt of certain prescribed benefit where he has, for example, earnings, an occupational pension or assets. Provision is also made to deduct from benefit the amount of child maintenance determined in these cases. Where arrears of maintenance have accrued, an amount may be deducted from benefit.

128. This clause substitutes section 43 of the 1991 Act (contribution to maintenance by deduction from benefit) with a new section on the recovery of maintenance by deduction from benefits. It increases the range of arrears of benefits from which deductions can be made and includes deductions from war pensions.

The new section 43 – recovery of maintenance by deduction from benefit

    New section 43(1) states that the section applies where the non-resident parent is liable to pay a flat rate of child support maintenance because he (or with some benefits, his partner) is receiving one of a range of prescribed benefits or a war pension. This subsection also allows regulations to prescribe additional conditions which may have to be satisfied before a deduction can be made.

    New section 43(2) is an enabling provision which allows arrears to be deducted from benefits, by means of regulations under subsection (1)(p) of section 5 of the *Social Security Administration Act 1992).

    New Section 43(3) provides that, for the purposes of making deductions from benefit, a war pension is to be included as a benefit.

Clause 21: Child Support jurisdiction

129. This clause amends section 44 of the 1991 Act to extend child support jurisdiction to non-resident parents who are not habitually resident in the United Kingdom but who are employed by a UK-based employer. This will mean that non-resident parents who are employed abroad will be required to pay child support for their children who live in the United Kingdom.

130. Subsection (2) amends subsection 44(1) (which limits child support jurisdiction) to refer to a new subsection (2A), inserted by subsection (3).

131. Subsection (3) adds a new subsection (2A) which lists the cases where, even though the non-resident parent is living abroad, the CSA will have jurisdiction to calculate and collect maintenance. These cases cover people employed abroad:

    (a) in the civil service;

    (b) in the armed services;

    (c) by a UK-based company, the description of which will be prescribed in regulations, or

    (d) by a body prescribed in regulations. These regulations are intended to be used to cover employment comparable to those listed in this subsection which are subsequently identified.

Clause 22: Abolition of the child maintenance bonus

132. The child maintenance bonus is a lump sum payment of up to £1,000 which can be paid to a parent with care who has been receiving Income Support (or income-based Jobseeker’s Allowance) when she leaves benefit to take up work. The payment is based on the amount of maintenance paid for the parent with care’s children during her time on benefit: it accrues at up to £5 for each week in which maintenance is paid. This allows families to see some gain from maintenance payments which reduce benefit entitlement pound for pound. The bonus is also intended as a work incentive.

133. In practice, few lone parents gain from the child maintenance bonus. Around 1,000 payments are made each month.

134. Under the reformed scheme, it is intended to replace the child maintenance bonus by a child maintenance premium, which will allow all families on Income Support or income-based Jobseeker’s Allowance to keep up to £10 per week of any child maintenance paid. When a parent with care transfers to the new scheme and so becomes entitled to the child maintenance premium, she will no longer be able to receive a child maintenance bonus.

135. This Bill contains no provision for the child maintenance premium. Existing legislation which governs Income Support and income-based Jobseeker’s Allowance already allows for regulations to provide that income can be disregarded.

136. This clause repeals the legislation governing the child maintenance bonus. Regulations will bring the child maintenance premium into effect for parents with care with an existing child support assessment when they are transferred to the new scheme.

Clause 23: Periodical reviews.

137. When the 1991 Child Support Act was passed by Parliament, it included a provision for the periodical review of child support assessments. When an assessment had been in force for a prescribed period (initially a year, subsequently extended to two years) the Secretary of State was required by this provision to write to both parents to find out if their circumstances had changed. When all the information needed to make an assessment had been checked, a new assessment of child support liability would be made.

138. In practice, this process proved difficult to operate. Parents, many of whom had been unwilling to co-operate in making the first assessment, failed to reply to requests for further information. Others were unable to provide all the information which the Secretary of State required. Since it was impossible to clear the periodical review without this information, substantial backlogs of work built up. The problem became even worse as cases where a review was stalled became due for another review.

139. In June 1999, the decision-making and appeal processes in CSA were improved and streamlined. Section 16 of the 1991 Act, which provided for periodical reviews, was replaced by a provision for revision of decisions. However, transitional provisions ensured that outstanding periodical reviews could still be completed.

140. There are still some 350,000 periodical reviews outstanding. The CSA has made it clear that it will complete any review where either parent requests this. There is, however, little sign that parents want past periodical reviews completed. The effect of these reviews is difficult to predict – some will increase liability, thus creating substantial debts for the non-resident parent, while others reduce liability, creating overpayments which have to be recovered from the parent with care.

141. This clause removes the requirement on the CSA to complete outstanding periodic reviews. This provision will come into effect when the Bill receives Royal Assent. Before this happens the CSA will make sure that there is sufficient publicity to alert any parent who might wish to see an outstanding review completed.

Clause 24: Regulations

142. Section 52 of the Child Support Act 1991 provides for the Parliamentary control of regulations and orders made under this Act. Many of the delegated powers in the 1991 Act require a resolution of both Houses before any regulations made under them can come into effect (the "affirmative procedure").

143. This clause amends section 52 to provide for Parliamentary control of regulations made under new child support delegated powers in this Bill.

144. Subsection (2) alters the list of regulation making powers which follow the affirmative procedure.

145. This subsection also amends the reference to Part I of Schedule 1 to refer specifically to the new paragraph 3(2) (regulations prescribing how the reduced rate of liability is worked out) and 10A(1) (regulations amending the way that liability is worked out) – see commentary on Schedule 1 above.

146. Subsection (3) inserts a new subsection (2A) in section 52. This subsection provides that the first set of regulations under paragraph 10 of Schedule 1 to the 1991 Act (regulations defining net weekly income for the maintenance calculation) will follow the affirmative procedure. Subsequent regulations will follow the negative procedure.

Clause 25 Amendments

147. This clause introduces Schedule 3 which makes minor amendments to the 1991 and 1995 Child Support Acts.

Schedule 3

148. Paragraph 1 amends the 1991 Act.

    Sub-paragraph (2) replaces the term ‘absent parent’ in the 1991 Act with the term ‘non-resident parent’;

    sub-paragraph (3) amends section 4 of the 1991 Act to make it clear that the information that must be provided when applying for child support includes information which enables the non-resident parent to be identified;

    sub-paragraph (4) amends section 8 of the 1991 Act, which governs the role of the courts in dealing with child maintenance.

      Sub-paragraph (4)(a) substitutes part of subsection 8(3A) to reflect the changes to section 6 of the 1991 Act made by clause 3 of this Bill.

      Currently, a parent with care who claims or is receiving Income Support or income-based Jobseeker’s Allowance can be required to apply for child support. Clause 3 provides that in the reformed scheme, a parent with care in these circumstances will be treated as applying for child support unless she opts out.

      Sub-paragraph (4)(c) deletes section 8(6) to remove the power of the courts to make ‘top up’ maintenance orders when a maximum child support assessment has been made. This is in consequence of the removal of a maximum liability under the new scheme.

    Sub-paragraphs (5) to (7) amend sections 9, 14 and 26 respectively, in consequence of the changes to section 6.

    Sub-paragraph (8) provides that sections 28H and 28I will no longer have effect. This is because the departures scheme is to be replaced by new provisions for variations in child support liability – see clauses 5 to 7.

    Sub-paragraph (9) amends section 30. Section 30 is about collection and enforcement of forms of maintenance other than child maintenance. It amends this so as to avoid doubts about the meaning. It clarifies that regulations can be made for both periodical payments and secured periodical payments.

    Sub-paragraph (10) amends section 47 which relates to fees. Although section 47 is in force, the ability to charge fees has not been used since April 1995, pending improvements in the CSA’s performance. The Government intends to consider charging fees again when the new system is running smoothly. Sub-paragraph (10) inserts a new subparagraph 4 in section 47 that enables payments of fees to be recovered in the same way as maintenance. For example, by a deduction from earnings order 6 .

    Sub-paragraph (11) amends section 54 as regards definitions. For example, "assessable income" and "departure direction" are omitted, and "voluntary payments" are added.

149. Paragraph 2 amends the 1995 Act.

    Sub-paragraph (2) amends section 18 to remove the delegated power which enabled the Secretary of State to bring parents with court orders into the CSA’s jurisdiction. This repeal is consequential on the changes to section 4(10) of the 1991 Act introduced by clause 2.

Clause 26: Temporary compensation payment scheme

150. Some arrears of maintenance will normally accrue after the start-date for liability but before maintenance assessment has been made. However, in recognition of the significant backlogs that developed in the early years of the CSA, the 1995 Child Support White Paper Improving Child Support (Cm 2745) introduced a scheme which allowed the Agency to agree not to enforce more than six months worth of arrears, providing the non-resident parent met his responsibilities for a year. After a year, the Agency makes payments to the parent with care in lieu of those she would have received had he paid in full.

151. The scheme was never intended to become a catch-all for individual cases of delay or maladministration. It was part of a strategy to tackle the backlogs, improve compliance and get the Agency on its feet. The scheme was not therefore translated into primary legislation, and authority for compensation payments was therefore granted by HM Treasury on a non-statutory basis, with payments approved annually in the Appropriation Act.

152. However, the CSA did not start to clear backlogs to the expected timescales. The scheme was expanded, to include arrears arising from delayed periodic reviews (Section 16 of the 1991 Act), and change of circumstance reviews (Section 17 of the 1991 Act), because it was accepted that, on balance, the lack of transparency and the complexity of the current system often produced changes in maintenance assessments which were difficult for non-resident parents to predict. Because the scheme was still non-statutory, a condition of the extension was that the Government should seek legislative powers if the arrangements needed to continue further.

153. This clause provides the circumstances in which a non-resident parent will not be required to pay the whole of the arrears of maintenance where significant delay by CSA arises, provided he gives a commitment to meet his ongoing liabilities and to pay the six months arrears, and then meets them.

154. Subsection (1) provides the circumstances where this clause applies. These are where the effective date of an assessment following an application or a review means that arrears have built up.

155. Subsection (2) enables the Secretary of State to apply this clause to different cases of arrears to those in subsection (1).

156. Subsection (3) provides the powers for an agreement between the Secretary of State and the non-resident parent, in order for the Secretary of State not to require him to pay, and not to take action to recover, the whole of the arrears.

157. Subsection (4) provides the Secretary of State with the power to prescribe the terms of the agreement in subsection (3).

158. Subsection (5) provides that the clause will only apply to agreements made before 1st April 2002 with ongoing liabilities expiring before April 2003.

159. Subsection (6) provides that the Secretary of State will not seek to recover the arrears provided the non-resident parent meets the terms of that agreement.

160. Subsection (7) provides that if the non-resident parent has complied with the agreement, then when it expires the Secretary of State may make payments to the person with care, and the non-resident parent will cease to be liable for the full amounts of the arrears of maintenance.

161. Subsection (8) provides if the non-resident parent defaults under the agreement he becomes liable to pay all the outstanding arrears.

162. Subsection (9) provides the Secretary of State with the power to regulate for agreements made after 1st April 2002 subject to approval by resolution in each House of Parliament. Subsection (10) defines "prescribed".

163. Subsections (11) and (12) concern the procedure for regulations under this clause.

Clause 27: Interpretation, transitional provisions, savings, etc.

164. The Government has stated that the new scheme will deal with new applications first. Existing cases will be transferred at a later date when the scheme has bedded in and the new rates will be phased in over time. Transitional provisions will therefore be introduced to facilitate the conversion of cases and the phasing of amounts payable.

165. This wide-ranging general power introduces the ability to make regulations which will allow cases to be transferred from the existing scheme to the new scheme. The Bill does not provide detail on all aspects of the new scheme or state exactly how it will work. The detail will be set out in regulations.

166. It is intended that provisions will also be introduced to safeguard the way in which aspects of current liability have been calculated, and to ensure that amounts can be carried forward to the new scheme. New child support legislation will have a knock-on effect on other legislation and the ability to make consequential provisions is therefore also introduced in this clause.

167. Subsection (2) provides for regulations to ensure that the new legislation can be brought into being as smoothly as possible. Such regulations may cover the transition to the new scheme, the ability to save any current provisions so that they can continue to be used in the new scheme, amending other legislation which is affected by the new scheme and making any other regulations that may be required.

168. Subsection (3) provides that section 175(3) and (5) of the *Social Security Contributions and Benefits Act 1992 (the "Contributions and Benefits Act") applies to the regulation-making power of this section, to allow for different provisions to be made for different cases and for different purposes. It also provides powers for discretion to be exercised in dealing with various matters.

169. Subsections (4) and (5) provide that regulations will be made by Statutory Instrument, and subject to the negative procedure.

The following two clauses appear in the Bill in Part V: Miscellaneous and Supplemental.

Clause 61: Tests for determining parentage

170. Part III of the Family Law Reform Act 1969 enables the court to direct the use of blood tests in order to resolve a dispute about paternity which has arisen in the course of civil proceedings.

171. Regulations under the Act provide that samples may only be taken by a registered medical practitioner, or someone who has been appointed as a tester under the Act; prescribe the procedure for the taking of samples; set conditions for the secure despatch of samples to a tester; and prescribe the fees payable to samplers.

172. Blood testing under the Act is carried out by authorised testers who are appointed by the Lord Chancellor. There is no regulation of the laboratory conditions and standards under which testers work, or the frequency with which they undertake the work. Once a person is appointed as a tester, there is no mechanism to review his or her suitability.

173. This clause replaces the present system of approving individual paternity testers by one based on the accreditation of laboratories. This will allow the Lord Chancellor to regulate laboratory conditions and set minimum qualifications for the individual testers.

174. Subsection (2) amends section 20 of the 1969 Act to provide for tests to be carried out by a body which has been accredited either by the Lord Chancellor or by a body appointed by him for that purpose.

175. Subsection (3) amends section 22 of the 1969 Act, which sets out procedural matters on which the Lord Chancellor may make regulations, in two respects. First, an amendment replaces the current requirement that samples be taken by appointed individual medical practitioners with a provision enabling samples to be taken by registered medical practitioners or members of such professional bodies as may be prescribed by the regulations. Secondly, an amendment enables the Lord Chancellor to prescribe conditions which a body must meet to be eligible for accreditation.

176. Subsection (4) provides that neither this clause nor anything else in the Bill will affect proceedings to determine declarations of parentage which are pending when these provisions take effect.

177. It is also intended that the Government will bring section 23 of the Family Law Reform Act 1981 into force by commencement order in conjunction with these new provisions. Section 23 amended the 1969 Act to allow for other bodily samples as well as blood to be taken from the categories of people specified in the 1969 Act (the child, the mother and the putative father) and from any other party to the proceedings, to resolve a dispute about parentage.

Clause 62: Declarations of status

178. Anyone who is living in England or Wales (or who has been habitually resident there for at least a year) can seek a declaration from the High Court or a county court that:

  • a named person is or was his parent; or

  • he is legitimate; or

  • he has or has not become a legitimated person (that is, in the same position as being born legitimate).

179. Declarations may be sought, for example, to acquire nationality or citizenship, to establish rights of inheritance or to amend a birth certification. Only the ‘child’ in question (who may in fact be an adult) is entitled to apply for such a declaration. Both the child’s parents, if they are still alive, must be joined as respondents to the proceedings.

180. Section 56 of the Family Law Reform Act 1986 (as substituted by section 22 of the Family Law Reform Act 1987) provides for the declaration. The Family Proceedings Rules provide that both parents must be respondents.

181. A ‘section 56’ declaration is binding on the Crown and on all other persons. The declaration is without limit in time in the UK whether for the purpose of legal proceedings or for any other purpose. The legislation makes no provision for a declaration from the court that a named person is not the child’s parent.

182. This clause replaces the existing section 56 of the Family Law Act 1986, and also amends sections 58 and 60 of that Act. The clause provides for any person to apply to a civil court for a declaration as to whether or not a person named in the application is or was the parent of another person so named. The intention of the new clause is to provide a single procedure for obtaining a declaration of parentage to replace the two free-standing provisions contained in the 1986 Act and in section 27 of the Child Support Act 1991 (which is modified to take account of the new procedure), and to widen the power to make such declarations.

183. Subsection (2) inserts a new section 55A in the 1986 Act which allows for an application for a declaration that a person is or is not the parent of another person.

New section 55A: Declarations of parentage

    New section 55A(1) provides that any person may apply for a declaration as to whether or not a person named in the application is or was the parent of another person named in the application. The application may be made to the High Court, a county court or a magistrates’ court.

    New section 55A(2) provides that the court can consider such an application only if either of the persons named in the application is domiciled in England and Wales on the date of the application, or has been habitually resident in England and Wales throughout the period of one year ending with that date; or if either of the persons named in the application died before the period of one year ended and was at death domiciled in England and Wales, or had been habitually resident in England and Wales for one year preceding their death.

    New section 55A(3) provides that, where the application is not to determine whether the applicant is the parent or child of another person, or to determine the other parent of a child of the applicant, the court shall refuse to hear such an application unless it considers that the applicant has a sufficient personal interest in the determination of the applicant.

    New section 55A(4) provides that the court may refuse to determine an application where one of the persons named in it is a child, and it considers that to determine the matter would not be in the best interests of the child.

    New section 55A(5) provides that where the court has refused to hear an application, it may order that the applicant should require leave of the court to apply again for the same declaration.

    New section 55A(6) provides for notification of a declaration of parentage to the Registrar General.

184. Subsection (3) removes the provision of section 58 of the 1986 Act that no declaration may be made by any court that any person is or was illegitimate. This is because the effect of a declaration of parentage could be that a child is or was illegitimate, which is inconsistent with the existing provision of section 58(5)(b).

185. Subsection (4) provides for a right of appeal from the magistrates’ court to the High Court. This is in addition to the right of appeal to the High Court by way of case stated, that is, on the basis that the decision is wrong in law or magistrates have acted in excess of jurisdiction; or to apply to the High Court for leave to apply for judicial review. This right of appeal must be conferred expressly. Appeals to the Court of Appeal from the High Court and the county courts are governed by existing provisions in the Supreme Court Act 1981 and the County Courts Act 1984.

186. Subsection (5) introduces Schedule 6 which provides for consequential amendments and appeals.

187. Subsection (6) provides that neither this clause nor anything else in the Bill will affect proceedings about declarations of parentage which are pending when these provisions take effect.

(6) An instruction from the Secretary of State to a non-resident parent's employer to make deductions directly from his salary to pay his liability. Used where voluntary arrangements have broken down. A non-resident parent may also choose to pay by this method.      Back

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Prepared: 2 December 1999