Child Maintenance and Other Payments Bill

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Child Maintenance and Other Payments Bill

Child Maintenance and Other Payments Bill
Part 2 — Transfer of child support functions etc. to the Commission
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Directions and guidance
(1)
The Secretary of State may give the Commission—
(a)
guidance as to the exercise of its functions;
(b)
general or specific directions as to the exercise of its functions.
(2)
In exercising its functions, the Commission must—
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(a)
have regard to any guidance under subsection (1)(a), and
(b)
comply with any directions under subsection (1)(b).
(3)
Guidance or directions under this section must be in writing.
(4)
Power under this section to give guidance or directions includes power to vary
or revoke guidance or directions given in previous exercise of the power.
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Supplementary provisions
(1)
In this Part, “child” has the same meaning as in the Child Support Act 1991
(c. 48).
(2)
The Secretary of State may by regulations make provision about when a child
is, or is not, to be regarded for the purposes of this Part as living apart from a
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parent.
Part 2
Transfer of child support functions etc. to the Commission
12
Transfer of child support functions
(1)
Any function under the Child Support Act 1991 which—
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(a)
is a function of the Secretary of State, and
(b)
is not an excepted function,

is by virtue of this subsection transferred to the Commission.
(2)
The following functions of the Secretary of State under the Child Support Act
1991 are excepted functions for the purposes of subsection (1)—
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(a)
functions under sections 23A, 24 or 25 (appeals),
(b)
functions under section 46 (reduced benefit decisions) or any other
provision of the Act, so far as relating to such decisions,
(c)
the function under section 50(7)(c) (authorisation of a person as a
“responsible person” for the purposes of section 50),
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(d)
functions under section 58 (commencement power and power to make
consequential amendments),
(e)
the function under paragraph 2A of Schedule 4 (payment of expenses),
and
(f)
power to make regulations under any other provision of the Act.
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(3)
The functions of the Secretary of State under the provisions of subordinate
legislation specified in Schedule 2, except so far as relating to reduced benefit
decisions under section 46 of the Child Support Act 1991, are by virtue of this
subsection transferred to the Commission.
(4)
Schedule 3 (which makes consequential amendments and transitional
40
provision and savings) has effect.

Child Maintenance and Other Payments Bill
Part 2 — Transfer of child support functions etc. to the Commission
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Transfer of employees
(1)
For the purposes of the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (S.I. 2006/246) (“TUPE”) the transfer of functions from the
Secretary of State to the Commission under section 12 is to be treated as a
transfer of an undertaking or business which is a relevant transfer.
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(2)
In its application to the transfer of functions under section 12, TUPE shall have
effect with the following modifications.
(3)
In regulation 6 (effect of relevant transfer on trade union recognition)—
(a)
paragraph (1) (which limits the application of the regulation to cases
where those transferred maintain an identity distinct from the
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remainder of the transferee’s undertaking) is omitted, and
(b)
in paragraph (2), for “such a transfer” substitute “a relevant transfer”.
(4)
Paragraph 10 (exclusions relating to occupational pension schemes) is omitted.
(5)
The Secretary of State may by order made by statutory instrument provide for
TUPE, as applied by subsection (1), not to have effect in relation to such
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persons, or persons of such description, as may be specified in the order.
(6)
A statutory instrument containing an order under subsection (5) shall be
subject to annulment in pursuance of a resolution of either House of
Parliament.
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Transfer of property, rights and liabilities
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(1)
Subject to subsection (2), the Secretary of State may make one or more schemes
for the transfer to the Commission of any of the following—
(a)
property, rights and liabilities which the Secretary of State is entitled or
subject to in connection with the transferred functions;
(b)
property, rights and liabilities which the Secretary of State is entitled or
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subject to and which the Secretary of State considers it appropriate to
transfer to the Commission in consequence of any function conferred
on it by or under Part 1 of this Act.
(2)
A scheme under subsection (1) (“a transfer scheme”) may not provide for the
transfer to the Commission of rights and liabilities under a contract of
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employment.
(3)
A transfer scheme—
(a)
may provide for the transfer of property, rights and liabilities whether
or not they would otherwise be capable of being transferred or
assigned;
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(b)
may create for the Secretary of State interests in or rights over property
transferred by virtue of the scheme;
(c)
may create for the Commission interests in or rights over property
retained by the Secretary of State;
(d)
may create rights or liabilities between the Secretary of State and the
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Commission;
(e)
may make such supplementary, incidental, consequential or
transitional provision or savings as the Secretary of State considers
appropriate.
(4)
A transfer scheme shall come into force in accordance with its terms.
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Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.
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(5)
A certificate given by the Secretary of State that any property, rights or
liabilities have been transferred by virtue of a transfer scheme is conclusive
evidence of the transfer.
(6)
In this section, “transferred functions” means functions transferred to the
Commission by virtue of section 12.
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Part 3
Child Support etc.
Removal of compulsion for benefit claimants
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Repeal of sections 6 and 46
The following provisions of the Child Support Act 1991 (c. 48) cease to have
10
effect—
(a)
section 6 (under which the claim of benefit by or in respect of a parent
with care, or the payment of benefit to or in respect of such a person,
triggers an application by her or him for child support maintenance),
and
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(b)
section 46 (which enables the Secretary of State in certain circumstances
to reduce the benefit of a person in relation to whom section 6 triggers
the making of an application for child support maintenance).
Maintenance calculations
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Changes to the calculation of maintenance
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Schedule 4 (which makes various changes to the provisions about the
calculation of maintenance) has effect.
17
Power to regulate supersession
In section 17 of the Child Support Act 1991 (decisions superseding earlier
decisions), for subsections (2) and (3) substitute—
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“(2)
The Secretary of State may by regulations make provision with respect
to the exercise of the power under subsection (1).
(3)
Regulations under subsection (2) may, in particular—
(a)
make provision about the cases and circumstances in which the
power under subsection (1) is exercisable, including provision
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restricting the exercise of that power by virtue of change of
circumstance;
(b)
make provision with respect to the consideration by the
Commission, when acting under subsection (1), of any issue
which has not led to its so acting;
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(c)
make provision with respect to procedure in relation to the
exercise of the power under subsection (1).”

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.
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Transfer of cases to new rules
Schedule 5 (which makes provision for, and in connection with, enabling the
Commission to require existing cases to transfer to the new maintenance
calculation rules or to leave the statutory scheme, so far as future accrual of
liability is concerned) has effect.
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Collection and enforcement
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Use of deduction from earnings orders as basic method of payment
In section 29 of the Child Support Act 1991 (c. 48) (under which payments of
child support maintenance are to be made in accordance with regulations) at
the end insert—
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“(4)
If the regulations include provision for payment by means of deduction
in accordance with an order under section 31, they must make
provision—
(a)
for that method of payment not to be used in any case where
there is good reason not to use it; and
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(b)
for the person against whom the order under section 31 would
be made to have a right of appeal to a magistrates’ court (or, in
Scotland, to the sheriff) against a decision that the exclusion
required by paragraph (a) does not apply.
(5)
If the regulations include provision for payment by means of deduction
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in accordance with an order under section 31, they may make
provision—
(a)
prescribing matters which are, or are not, to be taken into
account in determining whether there is good reason not to use
that method of payment;
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(b)
prescribing circumstances in which good reason not to use that
method of payment is, or is not, to be regarded as existing.”
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Deduction from earnings orders: the liable person’s earnings
In section 31 of the Child Support Act 1991 (deduction from earnings orders),
for subsection (8) substitute—
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“(8)
In this section and section 32 “earnings” means (subject to such
exceptions as may be prescribed) any sums payable to a person which
fall within one or more of the following paragraphs—
(a)
sums payable by way of wages or salary (including any fees,
bonus, commission, overtime pay or other emoluments payable
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in addition to wages or salary or payable under a contract of
service);
(b)
periodical payments by way of pension (including an annuity
payable for the purpose of providing a pension), whether or not
in respect of past services;
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(c)
periodical payments by way of compensation for the loss,
abolition or relinquishment, or diminution in the emoluments,
of any office or employment;
(d)
sums payable by way of statutory sick pay.

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.
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(9)
For the purposes of this section and section 32 any person who (as a
principal and not as a servant or agent) pays to the liable person any
earnings is to be treated as having the liable person in his employment;
and the following are to be read accordingly—
(a)
in this section and section 32, references to the liable person’s
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employer; and
(b)
in section 32(3), “employment”, “employed” and “re-
employed”.”
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Current account deduction orders
After section 32 of the Child Support Act 1991 (c. 48) insert—
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“32A
Current account deduction orders
(1)
If in relation to any person it appears to the Commission—
(a)
that the person has failed to pay an amount of child support
maintenance;
(b)
that the person holds a current account with a deposit-taker;
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and
(c)
that the account is not a joint account or an account operated
wholly or partly as a trade or business account;

it may make an order against that person to secure the payment of any
amount due under the maintenance calculation in question by means of
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regular deductions from the account.
(2)
An order under this section may be made so as to secure the payment
of—
(a)
arrears of child support maintenance payable under the
calculation;
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(b)
amounts of child support maintenance which will become
payable under the calculation; or
(c)
both such arrears and such future amounts.
(3)
An order under this section may be made in respect of amounts due
under a maintenance calculation which is the subject of an appeal only
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if it appears to the Commission—
(a)
that liability for the amounts would not be affected were the
appeal to succeed; or
(b)
where paragraph (a) does not apply, that the making of an order
under this section in respect of the amounts would nonetheless
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be fair in all the circumstances.
(4)
An order under this section—
(a)
shall specify the current account in respect of which it is made;
(b)
shall be expressed to be directed at the deposit-taker with which
the account is held; and
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(c)
shall have effect from such date as may be specified in the order.
(5)
An order under this section shall operate as an instruction to the
deposit-taker at which it is directed to—
(a)
make deductions from the amount (if any) standing to the credit
of the account-holder in the account specified in the order; and
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(b)
pay the amount deducted to the Commission.

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.
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(6)
The Commission shall serve a copy of any order made under this
section on—
(a)
the deposit-taker at which it is directed; and
(b)
the person against whom it is made.
(7)
Where—
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(a)
an order under this section has been made; and
(b)
a copy of the order has been served on the deposit-taker at
which it is directed,

it shall be the duty of that deposit-taker to comply with the order; but
the deposit-taker shall not be under any liability for non-compliance
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before the end of the period of 7 days beginning with the day on which
the copy was served on the deposit-taker.
(8)
Where regulations have been made under section 29(3)(a), a person
liable to pay an amount of child support maintenance is to be taken for
the purposes of this section to have failed to pay an amount of child
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support maintenance unless it is paid to or through the person specified
in, or by virtue of, the regulations for the case in question.
32B
Regulations about orders under section 32A
(1)
The Secretary of State may by regulations make provision with respect
to orders under section 32A.
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(2)
Regulations under subsection (1) may, in particular, make provision—
(a)
requiring an order to specify the amount or amounts in respect
of which it is made;
(b)
requiring an order to specify the amounts which are to be
deducted under it in order to meet liabilities under the
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maintenance calculation in question;
(c)
requiring an order to specify the dates on which deductions are
to be made under it;
(d)
for the rate of deduction under an order not to exceed such rate
as may be specified in, or determined in accordance with, the
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regulations;
(e)
as to circumstances in which amounts standing to a person’s
credit in a current account are to be disregarded for the
purposes of section 32A;
(f)
as to the payment of sums deducted under an order to the
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Commission;
(g)
allowing the deposit-taker which deducts and pays any amount
under an order also to deduct a prescribed amount towards its
administrative costs from the account specified in the order;
(h)
with respect to notifications to be given to the person against
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whom an order is made of amounts deducted, and amounts
paid, under the order;
(i)
requiring the deposit-taker at which an order is directed to
notify the Commission in the prescribed manner and within a
prescribed period—
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(i)
if the account specified in the order does not exist at the
time at which the order is served on the deposit-taker;
(ii)
of any other accounts held with the deposit-taker at that
time by the person against whom the order is made;

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.
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(j)
requiring the deposit-taker at which an order is directed to
notify the Commission in the prescribed manner and within a
prescribed period if, after the time at which the order is served
on the deposit-taker—
(i)
the account specified in the order is closed;
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(ii)
a new account of any description is opened with the
deposit-taker by the person against whom the order is
made;
(k)
as to circumstances in which an application may be made to the
Commission for it to review an order and as to such a review;
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(l)
for the variation of orders;
(m)
similar to that made by section 32A(7), in relation to any
variation of an order;
(n)
for an order to lapse in such circumstances as may be
prescribed;
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(o)
as to the revival of an order in such circumstances as may be
prescribed;
(p)
allowing or requiring an order to be discharged;
(q)
as to the giving of notice by the Commission to the deposit-taker
that an order has lapsed or ceased to have effect.
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(3)
The Secretary of State may by regulations make provision with respect
to     priority as between an order under section 32A and—
(a)
any other order under that section;
(b)
any order under any other enactment relating to England and
Wales which provides for deductions from the same current
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account;
(c)
any diligence done in Scotland against the same current
account.
(4)
The Secretary of State may by regulations make provision for any
person affected to have a right to appeal to a magistrates’ court (or, in
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Scotland, to the sheriff)—
(a)
against the making of an order under section 32A;
(b)
against any decision made by the Commission on an
application under regulations made under subsection (2)(k).
(5)
On an appeal under regulations made under subsection (4)(a), the court
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or (as the case may be) the sheriff shall not question the maintenance
calculation by reference to which the order was made.
(6)
Regulations under subsection (4) may include—
(a)
provision with respect to the period within which a right of
appeal under the regulations may be exercised;
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(b)
provision with respect to the powers of a magistrates’ court (or,
in Scotland, of the sheriff) in relation to an appeal under the
regulations.
32C
Orders under section 32A: offences
(1)
A person who fails to comply with the requirements of—
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(a)
an order under section 32A, or
(b)
any regulation under section 32B which is designated by the
regulations for the purposes of this paragraph,