House of Commons - Work and Pensions

Select Committee on Work and Pensions Second Report

8 Enforcement

158. If compliance with a maintenance assessment is not secured, enforcement measures can be applied. As DWP notes, enforcement is a specialist area and there are now 225 staff across the UK working exclusively on enforcement. The whole service approach means that an additional 2,500 caseworkers are engaged in compliance focussed activity.[169] Evidence received during the inquiry was more likely to comment that the CSA has the powers of enforcement necessary, but does not use them.

Enforcement measures

159. The enforcement measures currently available to the CSA in England and Wales are:

a) levying of a distress warrant involving bailiff action;

b) registering a county court judgement;

c) establishing a third party debt order;

d) establishing a charging order; and

e) committal to prison or disqualification from driving.[170]

160. These enforcement measures cannot be taken if the welfare of a child might be affected; the non-resident parent (NRP) or a member of their family has a disability; the action might affect future maintenance payments; or the NRP is on benefit.

OBTAINING A LIABILITY ORDER

161. All enforcement measures require a liability order to be obtained from the courts. The court cannot question the maintenance calculation itself. The NRP and CSA can be legally represented and the court usually orders the NRP to pay the Agency's legal expenses. The CSA must give the NRP seven days' notice of its intention to seek a liability order and the amount of maintenance outstanding.

162. In Scotland, the rules are slightly different. A liability order is still required - the procedures are similar to those under the enforcement of debts under Part II of the Debtors (Scotland) Act 1987. The liability order may be enforced by inhibition of sale of property or an arrestment of bank accounts.[171]

163. Evidence received during the inquiry raised a number of difficulties around pursuing enforcement measures. During the Committee's visit to the CSA Centre in Dudley, we were told by staff that delays are caused by the time taken to obtain a liability order through the courts. The slow progress of enforcement was also raised by the Law Society.[172]

164. Professor Wikeley noted that the UK's statutory insistence on a judicial gateway to obtain a liability order contrasts with child support in some states of the USA where administrative agencies have wider powers without the need for court intervention.[173] Nonetheless, he also referred to the Agency's poor performance on accuracy of assessments commenting that the Agency should be accountable to a third party and that NRPs have rights too. Professor Wikeley concluded that the key issue is the importance attached to child support work within the courts system and that any efforts to prioritise child support is a political issue. [174]

165. According to the National Association for Child Support Action (NACSA), errors in the assessment process mean that the calculated arrears may be inaccurate and this has resulted in many liability orders being rejected.[175] This is evidenced in the CSA Standards Committee Report which examined 54 old scheme cases referred to enforcement teams during 2003-04 and discovered that 65% of cases were procedurally or legally incorrect and/or the liability order calculations inaccurate.[176] The main error reported (in 32% of these cases) was that Agency powers were not used to convert an assessment from an interim maintenance assessment to a full maintenance assessment. In 20% of cases, the amount applied for was incorrect. A further error reported in 20% of cases was that a letter was sent to the NRP warning of enforcement action but no subsequent action was taken. The Committee questioned the Secretary of State on this appalling performance and were, rather unhelpfully, told:

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166. This somewhat misses the point and does not account for the one in five cases where no action was taken after an enforcement letter was sent.

167. The Committee recommends that Parliament provide, greater administrative powers to the CSA to recover arrears of maintenance, but, because of the very poor levels of CSA accuracy, there will need to be appropriate administrative appeal rights for the non-resident parent, which should not include a stay pending an appeal's outcome.

DISQUALIFICATION FROM DRIVING AND IMPRISONMENT

168. The final enforcement step available to the CSA is disqualification from driving or imprisonment. According to the CSA's Chief Executive, committal to prison or disqualification from driving are the final levers to achieve compliance rather than a punitive measure for those who will not pay, consequently there is a large difference between the number of warrants obtained and the sentences served or licenses withdrawn.[178] Since April 2001, 28 suspended driving licence sentences have been issued and 4 driving licences have been removed. There have also been 234 suspended committal orders and 15 prison sentences have been served.[179]

169. In oral evidence, the Secretary of State, Alan Johnson, said:

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170. While there is some truth in the Minister's assertion that imprisonment will not necessarily get the money for the child, many parents with care (PWCs) would disagree that 'forced compliance' is frequently used - they are more likely to report a reluctance to enforce compliance and this is certainly reflected in the figures showing 50% compliance for new scheme cases, full compliance of 53% and partial compliance of 21% for old scheme cases.

171. Professor Wikeley informed the Committee that the power to withdraw driving licences was introduced in the USA in the mid-1990s and they use the threat of driving licence revocation at a much earlier stage in the maintenance default proceedings: action is usually taken after two to three months of arrears have built up.[181] Some states set a threshold of around $1,000 which must have accumulated before licences can be suspended and in some states licence revocation is an administrative, rather than judicial, process. According to Professor Wikeley, administrative processes may be less sensitive to individual circumstances but may have the advantage over court-based procedures as they are quicker and more efficient.

172. While we would wish to protect the position of the child involved, it is, in our view, necessary to reverse the widely held view that the CSA is a 'push-over' and we believe any short-term pain would be compensated by long-term gain if the withdrawal of driving licences was more prevalent. The Committee recommends that the Department investigates the feasibility of driving licence removal from non-compliant NRPs becoming an administrative rather than a judicial process and its use of such power at a much earlier stage in enforcement. Once again, though, it would seem imperative, in view of the CSA's lamentable record of inaccuracy, that there should be an administrative appeal system, but without a stay pending the determination of the appeal.

Tracing NRPs

173. One Parent Families commented that PWCs are often expected to be their own private detectives and find out the NRP's contact details and the details of their income to enable compliance and enforcement activity to be pursued.[182] In addition, in written and oral evidence, the Independent Case Examiner identified difficulties in locating NRPs as one of the major barriers to compliance and enforcement. A PWC applying to the Agency has a duty to provide information to identify and trace the NRP. If the PWC does not have an address for the NRP she is asked for further information such as previous addresses, place of work, benefit claims made and details of his car. The CSA can also use its powers to seek information from employers, other DWP Agencies, local authorities, the Inland Revenue, the Courts, accountants and companies or partnerships for whom the NRP has had a contract.

174. The final method used for tracing NRPs is through the Driver and Vehicle Licensing Agency (DVLA).[183] 1,319 requests for traces were made to the DVLA from 1 April 2002 to 31 August 2004. Of these, 393 were successful in getting the information sought.[184] This suggests that a significant proportion of cases remain untraced after the method of last resort has been used. Where a confident address cannot be found, the CSA may suspend action for 12 months.[185]

175. Evidence received during the inquiry, and through correspondence to the Committee, suggests that in spite of the power to seek information from a range of sources, the CSA fails to use them in tracing NRPs.[186] Following the oral evidence session, the Secretary of State wrote to the Committee stating that comprehensive procedures to trace NRPs are in place; that staff are led through the trace process; that recently revised guidance has been issued to staff; and a management check has been introduced to ensure that staff follow the procedures.[187]

176. A further problem concerning tracing NRPs was pointed out by the Independent Case Examiner: there is no legal obligation for NRPs to keep the Agency informed of their whereabouts if their address changes and also no sanction if they fail to inform the CSA of a change of address. This is a feature of many old scheme cases referred to the Independent Case Examiner's office.[188]

177. The Committee recommends that Parliament provides additional powers, backed by court sanctions, to require NRPs to provide current address and contact details to the CSA. We also recommend that utility companies should be required to provide a NRP's contact details to the CSA on request.

178. Once the NRP is in contact with the Agency they are obliged to provide the information required to establish a maintenance assessment and it is a criminal offence to fail to provide the CSA with the required information or to provide false information. In 2003, there were 228 prosecutions for failing to provide the required information and 6 for providing false information, a number which appears staggeringly low when compared with the evidence of the number of cases, especially of the self-employed, where the NRP misrepresents his financial position.[189] By June 2004, these rose to 302 and 16 respectively and a further 73 cases were withdrawn as the NRP complied with the request for information prior to the court hearing.[190] When questioned on the Agency's powers of investigation, the CSA's Chief Executive replied:

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Information sharing and data protection

179. As noted above, the CSA has powers to obtain information from a range of sources including employers, other DWP Agencies, local authorities and the Inland Revenue. The Agency has established two service level agreements with the Inland Revenue to ensure that a wide range of data can be shared.[192] The extent to which the limits of these powers are tested has been questioned throughout this inquiry. During the Committee's visit to Australia, it appeared that the Australian CSA has better access to personal information held by other organisations and Agencies. In light of this, we sought additional evidence from the UK's Information Commissioner to assess whether the CSA needs wider powers of access to information.[193]

180. The Commissioner stated that the Data Protection Act 1998 is not a barrier to the disclosure of personal information where there is a statutory requirement to disclose. He stated:

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181. The Commissioner listed the "extensive statutory powers" the CSA has and concluded that the Agency should work closely with the Information Commissioner's office to ensure that it uses the existing enforcement powers it has, whilst obeying the rules of data protection.

182. The Committee is satisfied that enforcement activity through data protection legislation is not as hindered as has been suggested. It is crucial that staff are fully trained in data protection and the CSA's information-seeking powers to ensure that enforcement is robustly pursued within the limits of data protection law. The Committee recommends that the CSA makes much greater use of its already wide-ranging powers of access to information and, if necessary, that the Department revisits the list of organisations that have a statutory duty to disclose information to the CSA, with a view to extending the range and number of organisations covered.

Heavy handed enforcement

183. It would be a mistake to think that the issue of enforcement is purely about the CSA's failure to use the measures it has; the errors made when the Agency attempts to use enforcement; and the behaviour of NRPs in avoiding the Agency. Evidence received during the inquiry has also pointed out:

"there are NRPs in realistic dispute with the Agency over the quantum of their payments who are distraught at the heavy handed enforcement steps from the Agency and incapable of securing dialogue with the Agency to have matters resolved."[

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184. In their evidence, Citizens Advice outlined a number of cases where the NRP experienced harsh and unfair treatment from the CSA when arrears were built up due to Agency error. These included cases where the NRP was on Incapacity Benefit and errors with the case had led to £20,000 in arrears; requests for a change of assessments for a drop in income being ignored and a deduction from earnings order (DEO) being established for a much higher amount; and an NRP paying through a DEO who then changed jobs and inexplicably was served with a court order for £10,000.[196] It is important that service standards to NRPs are vastly improved and relations with both compliant and non-compliant NRPs are enhanced Considering the planned whole service approach, the Australian Client Service Delivery Model and their Intensive Debt Collection scheme, it is apparent that the CSA needs to work on improving how it deals with both parents, but particularly NRPs to ensure that compliance and enforcement are not adversely affected.

Agency action to improve enforcement

185. It is fair to say that the CSA has focussed their attention on improving the enforcement rate over the past year or two. During 2003, following a recommendation from the Independent Case Examiner's annual report, the Agency undertook a review of enforcement to identify the barriers to delivering an effective service. The review examined enforcement policy; staff roles and responsibilities; the referral process of enforcement cases; the management of bailiffs and other service providers; the guidance material given to staff; and training. The review went on to suggest reforms, most of which have now been implemented, and the Agency reports improved service on enforcement activity. This includes a 63% increase in the number of liability orders granted; a 24% increase in the number of cases referred to bailiffs; a trebling of monies collected through bailiff action; a 58% increase in successful third party debt orders; and a 31% increase in successful charging orders.[197] In correspondence to the Committee, the Secretary of State informed us that in the six month period from 1 April to 30 September 2004 the Agency took as many people to court as in the whole of the previous year and bailiffs collected £1.2 million compared with £1.5 million in the whole of 2003.[198]

186. When asked about the importance of enforcement within the Agency's agenda, the Secretary of State told the Committee that:

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187. In spite of this increased action on enforcement, it is worth noting the recent figure that nearly 15,000 cases are currently with the CSA's specialist enforcement teams.[200] Considering that 50% of new scheme cases and 25.6% of cases on the old scheme are registered as nil compliant,[201] the Agency still has a long way to go.

Enforcement measures in other countries

188. While it is apparent that the more severe enforcement measures are rarely used in the UK, the Committee were keen to hear of different forms of enforcement used in other countries. Professor Wikeley informed the Committee that in the USA, where a non-resident parent owes more than $5,000, action can be taken under the Personal Responsibility and Work Opportunity and Reconciliation Act 1996 to refuse, revoke, or restrict a passport. A similar measure is available in Australia where, since June 2001, the Australian Child Support Registrar has the power to make a departure prohibition order (DPO) where a non-resident parent using the CSA collection service is in arrears. The making of a DPO is an administrative procedure which prevents the non-resident parent from leaving Australia unless all child support debts have been discharged or satisfactory arrangements to do so have been made. Since the DPO legislation came into effect, the CSA has collected A$850,936 from the 90 DPOs issued. Professor Wikeley commented that the Australian sanction appears to be more effective for two reasons: it can take immediate effect as DPOs are copied to the federal police and customs services and there is no need to impound passports; and it is not confined to Australian citizens only.[202] During the visit to Australia, the Committee also heard that DPOs can be issued quickly and are an effective enforcement tool.

189. The sanction of removing passports as an enforcement measure was considered prior to the implementation of the child support reforms in the UK but Professor Wikeley notes it is not clear why the Government decided not to pursue this option. He suggests that the issue of withdrawing passports from serious child support defaulters should now be revisited in the UK. The advantage of revoking passports is that it is an enforcement tool that can be applied to both employed and self-employed non-resident parents.

190. In oral evidence, the Secretary of State said that there are complexities around the withdrawal of passports but that the option needs to be looked into.[203] The complexities arise because there is no statutory basis for the issue or withdrawal of passports - the power to issue passports is derived from the royal prerogative. Passports can already be withdrawn under the Football (Offences and Disorders) Act 1999 and the Football (Disorder) Act 2000 which requires the court to order a football hooligan to surrender their passport during periods when a travel ban is active against them.

191. Before considering pursuing the strengthening of the Agency's enforcement powers, it should be noted that several witnesses commented that before this is an option, the new scheme should be given time to be fully operative and that the CSA should use the enforcement powers it already has more effectively.[204] We consider that the need to widen the range of effective tools available to the CSA in this connection is urgent.

192. The Committee recommends that the Department further examines the use of travel bans and passport withdrawal as a child support enforcement tool for the NRPs who persistently default on their child support commitments.

169 Ev 122 Back

170 See para 162 for the arrangements in Scotland Back

171 CPAG (2004) Child Support Handbook Back

172 Ev 121 Back

173 Ev 82 Back

174 Qq 62-65 Back

175 Ev 85 Back

176 CSA Standards Committee Annual Report 2004 Back

177 Ev 132 Back

178 HC Deb 18 June 2004, col 1133w Back

179 HC Deb, 19 Oct 2004, col 205WH Back

180 Q 268 Back