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

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Clause 6: Applications for a variation: further provisions

98. This clause substitutes both Schedule 4A to the Child Support Act 1991 (which, among other things, provides additional regulation-making powers relating to the procedural handling of departure applications) and Schedule 4B to the same Act (which specifies the cases in which a departure direction may be given and the regulatory controls which govern the operation of the departures scheme) with the equivalent provisions in relation to variation applications.

Schedule 2

99. Schedule 2 substitutes Schedules 4A and 4B to the Child Support Act 1991.

New Schedule 4A: Applications for a variation

100. This Schedule contains detailed provisions supplementing the rules governing applications for variations in section 28A. In particular, it provides for:

  • regulations to specify the procedure to be followed by the Secretary of State or a tribunal in considering an application (paragraph 2);

  • information to be supplied within a specified period to enable an application for a variation to be determined (paragraph 4);

  • two or more variation applications to be considered together (paragraph 5(1));

  • a tribunal to be able to consider any variation application which has been referred to it for determination under section 28D(1)(b) at the same time as any appeal under section 20 connected to an interim maintenance decision (paragraph 5(3)).

New Schedule 4B: Applications for a variation: the cases and controls

101. This Schedule details the cases and controls relating to variations.

Part I: The cases

Paragraph 2: Special expenses

102. Paragraph 2 relates to the special expenses in respect of which a non-resident parent may apply for a variation of the normal rules by which maintenance liability is calculated.

Sub-paragraph (2) provides that the Secretary of State may have regard either to all of the expenses, or, in prescribed cases, only to that element of the expenses which exceeds a prescribed threshold.

Sub-paragraph (3) specifies some cases. The list is not intended to be exhaustive. The non-resident parent will be able to seek a variation in recognition of one or more of the following expenses:

  • the costs incurred in keeping in contact with a qualifying child;

  • the costs attributable to the long-term illness or disability of a relevant other child;

  • the costs incurred in honouring debts which were incurred at time when both parents were living together and were for the joint benefit of both parents, or for the benefit of the child in respect of whom a maintenance calculation has been applied for ("the child concerned"), or for the benefit of any other child within a prescribed category;

  • the costs incurred in meeting the boarding school fees payable in respect of the child concerned; and payments of the mortgage on the former home, where the former partner continues to live in the house with a qualifying child, in the circumstances where, exceptionally, the non-resident parent no longer has any interest in the property.

Sub-paragraph (4) provides that the definitions of "illness", "disability" and "long term" will be prescribed in regulations.

Sub-paragraph (5) provides that the definition of "boarding school fees" and the elements of the fees that the Secretary of State may recognise will be prescribed in regulations. Regulations will also allow the Secretary of State to make an estimate of the fees that he may recognise, in the circumstances where the relevant amounts are not otherwise readily identifiable.

Paragraph 3: Property or capital transfers

103. This is an existing feature of the departures scheme and the ground rules and calculations remain unchanged.

Sub-paragraph (1) requires there to have been a property settlement between the parties in pursuance of a court order or maintenance agreement which pre-dates 5thApril 1993. A variation may be made in respect of, for example, the equivalent weekly value of that transfer.

Sub-paragraph (2) provides that the Secretary of State will continue to take no account of transfers valued at less than a minimum figure. This figure will, as now, be prescribed in regulations and is intended to remain at £5000.

Paragraph 4: Additional cases

104. This paragraph provides for regulations to specify further grounds on which any person with care (or, in Scotland, a child) may apply for a variation of the rules on the calculation of liability.

Sub-paragraph (2) gives examples of such cases. The list is not intended to be exhaustive. The person with care (or child) will be able to seek a variation in recognition of one or more of the following grounds: where the non-resident parent has assets which exceed a prescribed value (it is intended to prescribe cash or its equivalent, or property other than his normal place of residence which exceed in total a value of £65,000); where the non-resident parent enjoys a lifestyle which is inconsistent with the income to which the Secretary of State is able to have regard in the determination of the rate of liability; where the non-resident parent is in receipt of income to which the Secretary of State would not otherwise have had regard (the intention is to prescribe for cases where the non-resident parent has a flat rate liability because he is in receipt of a prescribed social security benefit or war pension, or where he has a nil rate of liability, and to prescribe a minimum additional income threshold of £100 per week); or where the non-resident parent has unreasonably reduced the income which the Secretary of State has had regard to in the calculation of maintenance liability.

Part II: Regulatory controls

105. Paragraph 5 provides additional regulation-making powers relating to variations.

Sub-paragraphs (1) and (3) provide regulation-making powers relating to the manner in which the Secretary of State may modify the normal rules for calculating maintenance in the event of a successful variation application. The Secretary of State will normally give effect to a variation by offsetting the expenses against, or increasing the value of, the non-resident parent's net income prior to any further adjustment in respect of relevant children (where appropriate). The only exception to the normal rules will apply to pre-1993 property transfers, where the equivalent weekly value of the transfer (as calculated) will be deducted from the non-resident parent's "bottom line" liability.

Sub-paragraph (2) provides that no variation may be made other than in the circumstances prescribed.

Sub-paragraphs (4) and (5) provide that the Secretary of State may by regulations impose a limit on the amount of special expenses which he may take into account for the purposes of a variation, and that regulations may provide for different provision with respect to different levels of income. The intention is that the Secretary of State will recognise expenditure on certain of the prescribed grounds only in so far as it exceeds £10 or £15 per week, depending on the non-resident parent's net weekly income.

106. Paragraph 6 provides that the Secretary of State may, by regulations, and with prescribed modifications, apply the "shared care" rules and adjustments referred to in paragraph 7 of Part I, Schedule 1 (as substituted by Schedule 1 to this Bill) in cases where he has agreed to a variation of the normal rules by which the maintenance liability is calculated.

Clause 7: Variations: revision and supersession

107. This clause substitutes section 28G of the Child Support Act 1991. (The terms "revision" and "supersession" refer to replacing decisions, either from the original date (revision) or a later date (supersession)).

New section 28G: Variations: revision and supersession

108. New section 28G(1) enables variation applications to be made when a maintenance calculation is in force.

109. New section 28G(2) provides the power by regulations to modify sections 16, 17, 20 and 28A to 28F of, and Schedules 4A and 4B to, the Act for these variation applications.

110. New section 28G(3) provides a power by regulations to permit the Secretary of State, when superseding a decision on his own initiative under section 17, to make a decision on the basis of a variation agreed to in respect of an earlier decision being superseded. This is because some variation circumstances, such as property transfers, once accepted, will continue to be relevant to liability except in flat rate or nil rate cases.

Clause 8: Revision and supersession of decisions

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

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

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

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

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

116. A reduced benefit decision may be imposed if a parent with care who has claimed or who is receiving Income Support or income-based Jobseeker's Allowance requests, without good cause, not to be treated as having applied for child support, or fails to provide information or undergo a scientific test - see section 46, as substituted by clause 19.

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

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

Clause 9: Decisions superseding earlier decisions

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

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

  • a reduced benefit decision;

  • a decision of an appeal tribunal on a variation referral; and

  • a decision of a Commissioner on an appeal from a decision referred to in paragraph (b) or (d) (a decision of an appeal tribunal, including a decision on referral of a variation).

121. Subsection (3) substitutes subsection (4) of section 17 with two new subsections (4) and (4A) which provide for the date from which a supersession takes effect. The existing section 17 provides that a supersession takes effect from the date of the decision or the date of the application unless otherwise prescribed. Regulations have been made which enable decisions to take effect from the date of the change of circumstances which leads to the supersession (the Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (SI 1047/1999)).

122. In child support, decisions normally take effect from the beginning of a maintenance period: this subsection amends section 17 to provide for this. A "maintenance period" represents the weekly unit in which maintenance liability is calculated. The first maintenance period starts on the date that the non-resident parent's liability begins: each subsequent maintenance period starts on the day after the last day of the previous one. Other periods may be prescribed for particular cases.

Clause 10: Appeals to appeal tribunals

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

New section 20: Appeals to appeal tribunals

124. New section 20(1) sets out who may appeal and the decisions that they may appeal against. An appeal may be brought by any qualifying person. Subsection (2) provides a definition of this term. Decisions which can be appealed are:

    (a) a decision to make a maintenance calculation (section 11), a default or interim decision (section 12) and a superseding decision (section 17);

    (b) a decision not to make a maintenance calculation or supersede a decision. The Secretary of State has no jurisdiction to make a maintenance calculation in certain circumstances (such as where the child is living abroad) and decisions which cannot be superseded include certain changes of circumstances (such as housing costs, as these will not be taken into account in the maintenance calculation);

    (c) a reduced benefit decision;

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

    (e) the requirement to pay fees.

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

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

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

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

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

    (e) the person required to pay fees.

126. New section 20(3) provides that anyone with a right of appeal against a decision or imposition of a requirement must be told of this right.

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

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

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

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

    (a) decide the appeal itself, or

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

Clause 11: Redetermination of appeals

131. The 1998 Social Security Act (the 1998 Act) introduced a new system of decision-making and appeals in child support and social security. This Act replaced the existing structure of appeal tribunals, including child support appeal tribunals, with a unified tribunal system. The legislation governing child support appeals remains separate, however, with section 20 of the 1991 Act providing the basic legislative framework.

132. In social security legislation, the provisions governing appeal rights are supplemented by a provision allowing tribunals to redetermine appeals when an appeal to a Commissioner against the appeal decision has been sought. Section 13 of the 1998 Act allows a tribunal to set the decision aside if all the parties to the appeal agree that the decision is wrong in law. The appeal then goes to another tribunal to be considered again. This means that Commissioners do not have to deal with uncontested appeals.

133. This provision was not carried over into child support legislation. This clause corrects this omission by introducing a new section 23A in the 1991 Act. This new section mirrors section 13 of the 1998 Act.

New section 23A: Redetermination of appeals

134. This section provides for the setting aside of appeal tribunal decisions and the reconsideration of the appeal by the tribunal. It sets out the circumstances in which this can happen and the procedure to be followed.

135. New section 23A(1) provides that the section applies when there is an application for leave to appeal to a Commissioner from a decision of a tribunal on a question of law.

136. New section 23A(2) allows the person who constituted the tribunal, or otherwise a tribunal chairman to set aside the tribunal decision if he decides it was wrong on a point of law. He can then either refer it for redetermination by the same tribunal or a different one.

137. New section 23A(3) provides that a tribunal decision shall be set aside if each of the principal parties accepts that it was wrong in law. Such a case is to be referred for determination by a different tribunal.

138. New section 23A(4) defines the "principal parties" to an appeal. They are the Secretary of State and the qualifying persons referred to in section 20(2) of the 1991 Act (clause 10); the person with care and the non-resident parent; and where the application for a maintenance calculation has been made under section 7 of the 1991 Act (a child in Scotland) the person with care, the non-resident parent and the child concerned. In the case of an appeal relating to financial penalties or fees, they are the person liable to make payment and in the case of a reduced benefit direction they are the person in respect of whom the benefit is payable.


Clause 12: Information required by the Secretary of State

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

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

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

Clause 13: Information - offences

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

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

144. Clause 13 introduces a new section 14A which provides for a fine of up to £1000 for anyone who provides false information or refuses to supply information.

New section 14A: Information - offences

145. New section 14A(1) provides whom this section applies to.

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

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

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

147. New section 14A(3) introduces an offence of failure to provide information when required by the Secretary of State to do so.

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

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

Clause 14: Inspectors

150. As explained in the note on clause 13, the process of deciding child support liability and collecting maintenance for children can be delayed if information is not provided. Clause 13 provides for a penalty if parents lie or refuse to give information to the Child Support Agency (CSA). In other circumstances, other means of getting information may be appropriate. In some cases, a visit to an employer's premises, or the premises from which a non-resident parent conducts his business, can yield information that would be difficult to get by other means.

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

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

153. Clause 14 amends section 15 of the 1991 Act to provide for inspectors to be appointed in a way that does not tie the appointment to an individual case. The clause also restates the powers of inspectors to bring this child support provision in line with the more general provisions for DSS investigators set out in Part III of this Bill.

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

Amended section 15: Inspectors

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

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

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

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

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

158. Subsection (3) of clause 14 amends subsection (6) of section 15 to allow inspectors to obtain from the persons named in subsection (5) (any person aged 18 or over whom the inspector finds on the premises) any information and documents which the inspector reasonably requires.

159. Subsection (4) inserts subsection (11) in section 15, which provides that premises include:

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

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

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


Clause 15: Presumption of parentage in child support cases

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

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

162. In England and Wales, the circumstances in which paternity can be assumed include those where a child was adopted by the man in question and also where there is a court declaration that the man is the child's father. However, in Scotland, there is also a presumption that a man is the father of a child if he was married to the child's mother at any time between the date of conception and the child's birth. This clause makes clear that the presumption of paternity arising from marriage, already recognised by the courts in England and Wales, can be applied for child support purposes.

163. A person who is treated as a non-resident parent as a result of these presumptions can challenge his child support liability by applying to court. The provision for such applications is in secondary legislation made under section 45 of the 1991 Act. Clause 80 introduces a new, simplified route specifically for the courts to determine whether or not one person is the parent of another. This will be of general application.

164. This clause amends section 26 of the 1991 Act to add four new cases in which child support liability can be worked out on the basis that a person who denies he or she is a parent is in fact the parent of the qualifying child.

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

  • Case A2 provides a presumption that a man who is named on the child's birth certificate is the child's father even if he was not married to the mother. This will apply also to children registered in Northern Ireland.

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

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

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

  • Case B1 provides that the alleged parent may be presumed to be the parent of the child where section 27 or 28 of the Human Fertilisation and Embryology Act 1990 applies. These sections relate to children born as a result of fertility treatment or surrogacy. Section 27 provides that a woman who gives birth as a result of such treatment will be treated as the child's mother unless the child is adopted. Section 28 provides that a man who is married to a woman who has received such treatment (or a man who is himself taking part in the treatment) will normally be the father of the child in law. This provision does not apply if the man did not consent to the treatment, or where the child is adopted.

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