Child Maintenance And Other Payments Bill - continued          House of Commons

back to previous text

Clause 27: Commitment to prison

298.     Clause 27 inserts four new subsections (2A), (2B), (2C) and (2D) into section 40 of the Child Support Act 1991. These provisions will enable the Commission to make a separate application to a magistrates' court to commit a non-resident parent to prison for failure to pay child support maintenance.

299.     The new subsection (2A) enables the Commission to apply to a magistrates' court for the issue of a warrant committing a non-resident parent to prison if:

  • it has sought to recover an amount through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;

  • the whole or any part of the amount due remains unpaid; and

  • it is of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.

300.     New subsection (2B) provides that the Commission is to be taken as having sought to recover an amount due through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.

301.     New subsection (2C) requires the court to inquire about (in the presence of the non-resident parent against whom the liability order has been made) that person's means, and whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.

302.     New subsection (2D) prevents a court, when considering an application for committal to prison, from questioning the liability order on which an application has been made, or the original maintenance calculation which is the basis of the liability order.

303.     Subsection (2) of clause 27 replaces subsection (10) of section 40, and provides that the court may order the search of a non-resident parent in respect of whom a commitment to prison order has been made. During a search, any money found on a non-resident parent can be taken by the court and put towards the amount specified in the order (the balance, if any, would be returned to the non-resident parent). The court is prevented from taking money if it is satisfied that it does not belong to the non-resident parent.

304.     Subsection (3) inserts four new subsections (A1), (A2), (A3) and (A4) into section 40A of the Child Support Act 1991. These provisions will enable the Commission to make a separate application to the sheriff to commit a non-resident parent to prison if they fail to pay child support maintenance.

305.     The new subsection (A1) enables the Commission to apply to the sheriff for the issue of a warrant committing a non-resident parent, against whom a liability order has been made, to prison if:

  • it has sought to recover the amount for which the liability order was made through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;

  • the whole or any part of the amount due in respect of the order remains unpaid; and

  • it is of the opinion that that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.

306.     New subsection (A2) provides that the Commission is to be taken as having sought to recover arrears through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.

307.     New subsection (A3) requires the sheriff to inquire about (in the presence of the non-resident parent against whom the liability order has been made) that person's means, and establish whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.

308.     New subsection (A4) prevents the sheriff, when considering an application for committal to prison, from questioning the liability order on which an application has been made, or the original maintenance calculation which is the basis of the liability order.

309.     Subsection (4) of clause 27 inserts four new subsections (7A), (7B), (7C) and (7D) into section 40A to provide that the sheriff may order the search of a non-resident parent in respect of whom a commitment to prison order has been made. During a search, any money found on a non-resident parent can be taken by the sheriff and put towards the amount specified in the order (the balance, if any, would be returned to the non-resident parent). The sheriff is prevented from taking money if it is satisfied that it does not belong to the non-resident parent.

Clause 28: Disqualification for driving

310.     Clause 28 amends section 40B of the Child Support Act 1991, to enable the Commission to make a separate application to the magistrates' court (or, in Scotland, the sheriff) to disqualify a non-resident parent for holding or obtaining a driving licence if they fail to pay child support maintenance.

311.     Subsection (A1) of the revised section 40B enables the Commission to apply to a magistrates' court (or, in Scotland, the sheriff) for an order disqualifying a non-resident parent for holding or obtaining a driving licence if:

  • it has sought to recover an amount through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;

  • the whole or any part of the amount due remains unpaid; and

  • it is of the opinion that that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.

312.     Subsection (A2) provides that the court may specify the length of the disqualification order, but that it will not exceed two years.

313.     Subsection (A3) determines that the Commission is to be taken as having sought to recover arrears through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.

314.     Subsection (A4) requires the court to inquire about (in the presence of the non-resident parent against whom the liability order has been made) whether that person requires a driving licence to earn a living, that person's means, and whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.

315.     Subsection (A5) prevents a court, when considering an application made under this section, from questioning the liability order on which an application has been made, or the original maintenance calculation which is the basis of the liability order.

316.     Subsection (1) provides that only if the court finds that there has been wilful refusal or culpable neglect on the part of the non-resident parent, it may make a disqualification order against the non-resident parent, or make such an order but suspend it until such time and on such conditions as it thinks just.

317.     Subsection (2) replaces subsection (10) of section 40B, to enable the court to order a search of a non-resident parent in respect of whom a disqualification order has been made. During a search, any money found on a non-resident parent can be taken by the court and put towards the amount specified in the order (the balance, if any, would be returned to the non-resident parent). The court is prevented from taking any money if it is satisfied that it does not belong to the non-resident parent.

Debt management powers

Clause 29: Power to treat liability as satisfied

318.     This clause inserts a new section 41C into the Child Support Act 1991 which provides the Secretary of State with regulation-making powers enabling the Commission to offset liabilities to pay child support maintenance (including arrears) in prescribed circumstances.

319.     Subsection (1)(a) of section 41C enables the Commission to offset liabilities to pay child support maintenance. It is envisaged that offsetting will occur mainly where a child moves from the care of one parent to the other, and therefore the non-resident parent becomes the parent with care and vice versa. If the non-resident parent who becomes the parent with care has built up arrears, some or all of the maintenance liability of the new non-resident parent may be offset against those arrears.

320.     Offsetting may also apply where liability switches from one parent to the other for other reasons, for example, where each parent is caring for one or more children and there is a change in income. Where both parents have arrears these may also be offset against each other.

321.     Subsection (1)(b) enables the Commission, in certain circumstances, to accept payments made by the non-resident parent to prescribed third parties as payments against ongoing liability or arrears.

322.     Subsection (2) confirms that offsetting maintenance payments and third party payments as described in subsection (1) will result in the liability of a non-resident parent being met to the extent that it has been set off.

323.     Subsection (3) applies the offsetting rules only to those cases where the Commission is authorised to make arrangements for the collection of the child support maintenance.

Clause 30: Power to accept part payment of arrears in full and final satisfaction

324.     This clause inserts new section 41D into the Child Support Act 1991 which enables the Commission to accept partial payments of maintenance arrears from a non-resident parent, as full and final settlement of the whole arrears.

325.      Subsection (2) provides regulation-making power to the Secretary of State with regard to the Commission exercising its power to accept part payment in satisfaction of the liability.

Clause 31: Power to write off arrears

326.     This clause inserts new section 41E into the Child Support Act 1991, enabling the Commission to write off arrears in circumstances where it appears to the Commission that:

  • the circumstances of a case are as specified in regulations made by the Secretary of State; and

  • it would be unfair or otherwise inappropriate to enforce liability for maintenance arrears (for example, if a parent with care does not wish the arrears to be pursued because of a reconciliation with the non-resident parent).

327.     Subsection (2) of section 41E provides regulation-making powers to the Secretary of State with respect to the Commission's power to write off arrears.

Clause 32: Transfer of arrears

328.     Clause 32 inserts new section 49A into the Child Support Act 1991, which provides regulation-making powers to the Secretary of State, to enable the Commission to enter into arrangements with other organisations under which liability in respect of arrears of child support maintenance becomes debt due to such an organisation.

329.     Subsection (2) of new section 49A prevents the Commission from using its enforcing powers in relation to collecting any debt that has been transferred to another organisation, and also ensures that only the transferee organisation will have title to the debt.

330.     Subsection (3) provides that regulations made by the Secretary of State under this power may:

  • Specify when arrears would be considered for transfer. The regulations could specify, for example, that arrears could be transferred only if the consent of the person with care has been obtained.

  • Specify the type of organisation to which arrears can be transferred. The regulations could, for example, include safeguards to ensure that the organisation is reputable and abides by a professional code of conduct.

  • Specify the terms and conditions which the transfer arrangements must include. The regulations may require, for example, that the transfer agreement must provide that the debt can not be sold on further.

331.     Subsection (4) sets out further that the regulations may include:

  • provision as to the means of recovery the organisation to which debt has been transferred is able to use;

  • provision that the Commission may, in certain circumstances, prevent an organisation to which debt has been transferred from taking steps to recover it. The circumstances could be, for example, that the steps being taken are inappropriate; and

  • provision regarding the type of information which the Commission may supply to an organisation to which debt has been transferred, for the purposes of recovering the debt.

Miscellaneous

Clause 33: Additional special case

332.     This clause inserts a new subsection (g) into section 42(2) of the Child Support Act 1991.

333.     Section 42 enables the Secretary of State to prescribe cases as 'special cases' for the purposes of the Act, and subsequently to make regulations concerning those special cases.

334.     New subsection (g) will include as a 'special case' the circumstances where two parents of the same children each have care for one or more of those children, and so each parent is both a parent with care and a non-resident parent.

335.     Currently in these circumstances, each parent will be required to make a maintenance payment to the other. The new provision will allow for the offset of maintenance liabilities between the two parents, so that only the parent with the highest liability will actually make a payment.

Clause 34: Recovery of arrears from deceased's estate

336.     Clause 34 inserts a new section 43A into the Child Support Act 1991, which gives the Secretary of State powers to make regulations to enable arrears of child support maintenance to be recovered from the estate of a deceased non-resident parent.

337.     Subsection (2) of new section 43A sets out that regulations made under subsection (1) may provide for:

  • the arrears to be paid by the executor or administrator of a deceased non-resident parent out of the non-resident parent's estate, to the Commission;

  • how the amount of the arrears to be paid out of the estate is determined; and

  • the procedure by which claims for arrears against the deceased non-resident parent's estate are made.

338.     Subsection (3) states that regulations may also provide for the executor or administrator to institute, continue or withdraw any proceedings. The regulations could, for example, enable the personal representative to exercise a right of appeal that the deceased might have had.

339.     This change will enable the recovery of arrears of child support maintenance from the estate of a deceased non-resident parent where it is appropriate to do so. It is intended that arrears of child support maintenance will be treated in the same way as civil debt, and will be paid before the estate is distributed to the beneficiaries. Personal representatives will be required to deduct the arrears from the assets of the deceased. They will also have rights to appeal and dispute the arrears demand. Regulations will also make provision for the procedure to be followed in determining the amount of any arrears and for resolving any dispute that arises in relation to a claim against a deceased non-resident parent's estate.

Clause 35: Disclosure of information to credit reference agencies

340.     Clause 35 inserts new section 49B into the Child Support Act 1991 which relates to the disclosure of information to credit reference agencies.

341.     Section 49B allows the Commission to disclose certain information relating to non-resident parents to credit reference agencies. It will only allow the Commission to disclose information relating to a non-resident parent where that person has given their consent to the disclosure or is subject to a liability order. Credit reference agencies will be able to use the information only for the purpose of providing information relevant to the financial standing of individuals.

342.     Subsection (2) of section 49B specifies that the information the Commission is able to disclose should meet all of the following criteria:

  • the information is held by the Commission for any purpose under the Child Support Act 1991;

  • it relates to a non-resident parent who is liable to pay child support maintenance; and

  • it is of a description specified in regulations.

343.     Subsection (4) provides that regulations made under section 14(3) of the Child Support Act 1991 may not make provision authorising the supply of information to credit reference agencies. Section 14 concerns the requiring and disclosing of information by the Secretary of State. This provision means that if the Secretary of State wishes to disclose information to credit reference agencies, he must rely on the provisions in this new section. He can not circumvent the safeguards provided by using other regulation-making provisions.

344.     Subsection (5) provides that for the purposes of this section, 'credit reference agency' has the same meaning as in the Consumer Credit Act 1974, which is 'a person carrying on a business comprising the furnishing of persons with information relevant to the financial standing of individuals, being information collected by the agency for that purpose'.

Clause 36: Pilot schemes

345.     This clause inserts a new section 51A into the Child Support Act 1991, enabling the power to pilot any regulation-making power made under that Act.

346.     Subsection (1) prevents a pilot scheme from lasting more than twenty four months.

347.     Subsection (2) provides that for the purposes of this section, regulations being piloted will be referred to as a 'pilot scheme'.

348.     Subsection (3) enables a pilot scheme to apply in relation to specific areas, classes of person or persons who meet prescribed criteria, or are selected by sampling.

349.     Subsection (4) enables transitional arrangements to be made where necessary for cases involved in any pilot schemes, when the pilot period ends.

350.     Subsection (5) enables a further pilot to operate under the same or similar circumstances once the initial, or any further, pilot ends.

Clause 37: Meaning of 'child'

351.     Clause 37 replaces section 55 of the Child Support Act 1991 to amend the definition of a child. Subsection (1) of section 55 increases the potential upper age limit of a child from up to the nineteenth birthday, to up to the twentieth birthday in prescribed circumstances. It is intended that this change will only apply to applications made under the new arrangements once they are introduced.

352.     It is intended that the regulations will operate to re-align the definition of a child with that used in child benefit legislation following the Child Benefit Act 2005. Child Benefit can now be paid up to a person's twentieth birthday (previously it stopped at the nineteenth birthday) and it is no longer confined to those in full-time non-advanced education, but is also payable for persons undertaking 'approved training'.

Clause 38: Extinction of liability in respect of interest and fees

353.     This clause provides for the write off of outstanding liability in respect of interest and fees. Regulations under the Child Support Act 1991 made in 1992 introduced changes which meant that interest could be charged on arrears of maintenance, and that fees could be charged to parents using the CSA collection service. These regulations were repealed in 2001, and debt which built up as a result of parents not paying interest or fees will be extinguished.

354.     Subsection (a) provides that debt which accrued from interest charged under the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations 1992, will be extinguished.

355.     Subsection (b) provides that debt which resulted from unpaid fees charged to parents under the Child Support Fees Regulations 1992 will be extinguished.

Clause 39: Use of information

356.     This clause introduces Schedule 6 which sets out information sharing gateways. The gateways enable information to be supplied to the Commission by the Department for Work and Pensions, HMRC, and the Northern Ireland Department for use for the purpose of functions relating to child support. They also enable information held by the Commission, for the purposes of functions relating to child support, to be supplied to the Department for Work and Pensions, HMRC and Customs and the Northern Ireland Department for the purpose of specified functions for each of these Departments.

Clause 40: Liable relative provisions: exclusion of parental duty to maintain

357.     This clause replaces subsection (3) and amends subsection (4) of section 105 of the Social Security Administration Act 1992 ("the Administration Act").

358.     Section 105 provides that it is a criminal offence for a person to persistently refuse or neglect to maintain themselves or a person whom they are liable to maintain, if the result of that refusal or neglect is that income support is payable to or in respect of any of those persons. Section 78(6) of the Act provides that a person is liable to maintain their spouse or civil partner, their children and sponsored immigrants. Section 106 enables the Secretary of State to apply to a magistrates' court to secure the recovery of benefit from a liable person who fails to maintain.

359.     When income-based jobseekers allowance was introduced in 1996, the extent to which section 105 applied for that benefit was limited to failure to maintain spouses (and later, civil partners) only.

360.     Under section 6 of the Child Support Act 1991 parents with care in receipt of income support or income-based jobseeker's allowance were treated as having applied for child support maintenance. As a result, action to pursue maintenance for children under section 105, in order to offset income support expenditure, fell into disuse although it is still available to pursue spousal maintenance.

361.     Since the Bill provides for the repeal of section 6 of the Child Support Act 1991, parents with care claiming income support or income-based jobseeker's allowance will no longer be treated as applying for child support maintenance and will have the freedom to make arrangements outside of the statutory scheme.

362.     Section 105, as it currently stands, would allow the Department to pursue non-resident parents for child support maintenance where the person with care is in receipt of income support. The amendment to section 105 ensures that the legislation is consistent in its approach and allows parents to have a choice.

363.     These amendments will result in a consistent approach to child support maintenance for both income support and income-based jobseeker's allowance.

Part 4 - Lump Sum Payments: Mesothelioma etc.

Mesothelioma lump sum payments

Clause 41: Lump sum payments

364.     This clause provides for the Secretary of State to make a lump sum payment to either a person with diffuse mesothelioma, or to their dependant if the person with diffuse mesothelioma is deceased.

365.     Subsection (2) provides that entitlement to a lump sum payment is dependant on satisfying certain conditions which are specified in section 42.

366.     Subsection (3) provides that regulations may:

  • set out the amount that should be paid as a lump sum; and

  • set the amount at different levels for different people. This may be based on factors such as, for example, whether they are a person with mesothelioma, or a dependant of a person with mesothelioma.

367.     Subsection (4) defines what is meant by a 'dependant' of a person who, immediately before their death, suffered from mesothelioma. It also defines "diffuse mesothelioma" as having the same meaning as under the Pneumoconiosis etc. (Workers' Compensation) Act 1979. A dependant can bring a claim for a lump sum payment under this part of the legislation if their relative with mesothelioma has died. A dependant is defined as:

  • a wife or husband or civil partner who was living with the person with mesothelioma;

  • children under 16 years of age;

  • children under 21 years of age who are not receiving wages from full time employment;

  • children of any age who are permanently unable to support themselves;

  • a person living with the person with mesothelioma as if they were husband and wife or as if they were civil partners;

  • any other relatives who are completely or mostly dependent on the person with mesothelioma immediately before their death and who are also under the age of 16, under the age of 21 and not receiving wages from full time employment, or permanently unable to support themselves.

368.     Payments are to be made to the dependant who is listed first in the above definition, taking the three categories of children together.

369.     Subsection (5) provides that where more than one dependent may claim, the Secretary of State will decide whether the payment is paid to one or more of them. This could happen, for example, when a person with mesothelioma does not have a wife or husband, or civil partner, who was living with them, but has three children under the age of 16.

 
previous Section Bill Home page continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries ordering index

© Parliamentary copyright 2007
Prepared: 7 June 2007