Child Maintenance and Other Payments Bill

House of Lords

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Child Maintenance and Other Payments Bill

Child Maintenance and Other Payments Bill
Part 3 — Child support etc.
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Transfer of property, rights and liabilities
(1)
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;
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(b)
property, rights and liabilities which the Secretary of State is entitled or
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”)—
10
(a)
may provide for the transfer of property, rights and liabilities whether
or not they would otherwise be capable of being transferred or
assigned;
(b)
may create for the Secretary of State interests in or rights over property
transferred by virtue of the scheme;
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(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
Commission;
(e)
may make such supplementary, incidental, consequential or
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transitional provision or savings as the Secretary of State considers
appropriate.
(3)
A transfer scheme shall come into force in accordance with its terms.
(4)
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
25
evidence of the transfer.
(5)
In this section, “transferred functions” means functions transferred to the
Commission by virtue of section 13.
Part 3
Child support etc.
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Removal of compulsion for benefit claimants
15
Repeal of sections 6 and 46
The following provisions of the Child Support Act 1991 (c. 48) cease to have
effect—
(a)
section 6 (under which the claim of benefit by or in respect of a parent
35
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
(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
40
the making of an application for child support maintenance).

Child Maintenance and Other Payments Bill
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Maintenance calculations
16
Changes to the calculation of maintenance
Schedule 4 (which makes various changes to the provisions about the
calculation of maintenance) has effect.
17
Power to regulate supersession
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In section 17 of the Child Support Act 1991 (c. 48) (decisions superseding
earlier decisions), for subsections (2) and (3) substitute—
“(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—
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(a)
make provision about the cases and circumstances in which the
power under subsection (1) is exercisable, including provision
restricting the exercise of that power by virtue of change of
circumstance;
(b)
make provision with respect to the consideration by the
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Commission, when acting under subsection (1), of any issue
which has not led to its so acting;
(c)
make provision with respect to procedure in relation to the
exercise of the power under subsection (1).”
18
Determination of applications for a variation
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(1)
Section 28D of the Child Support Act 1991 is amended as follows.
(2)
After subsection (2) insert—
“(2A)
Subsection (2B) applies if—
(a)
the application for a variation is made by the person with care
or (in the case of an application for a maintenance calculation
25
under section 7) the person with care or the child concerned,
and
(b)
it appears to the Commission that consideration of further
information or evidence may affect its decision under
subsection (1)(a) whether or not to agree to a variation.
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(2B)
Before making the decision under subsection (1)(a) the Commission
must—
(a)
consider any such further information or evidence that is
available to it, and
(b)
where necessary, take such steps as the Commission considers
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appropriate to obtain any such further information or
evidence.”
(3)
In subsection (3), after “duties” insert “, apart from the duty under subsection
(2B)”.

Child Maintenance and Other Payments Bill
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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.
5
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)
On an appeal under regulations made under subsection (4)(b) 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 under section 31 would be
made.
(6)
Regulations under subsection (4)(b) may include—
(a)
provision with respect to the period within which a right of
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appeal under the regulations may be exercised;
(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.
(7)
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.”
21
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—

Child Maintenance and Other Payments Bill
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(a)
sums payable by way of wages or salary (including any fees,
bonus, commission, overtime pay or other emoluments payable
in addition to wages or salary or payable under a contract of
service);
(b)
periodical payments by way of pension (including an annuity
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payable for the purpose of providing a pension), whether or not
in respect of past services;
(c)
periodical payments by way of compensation for the loss,
abolition or relinquishment, or diminution in the emoluments,
of any office or employment;
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(d)
sums payable by way of statutory sick pay.
(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—
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(a)
in this section and section 32, references to the liable person’s
employer; and
(b)
in section 32(3), “employment”, “employed” and “re-
employed”.”
22
Orders for regular deductions from accounts
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After section 32 of the Child Support Act 1991 (c. 48) insert—
“32A
Orders for regular deductions from accounts
(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; and
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(b)
that the person holds an account with a deposit-taker;

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
regular deductions from the account.
(2)
An order under this section may be made so as to secure the payment
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of—
(a)
arrears of child support maintenance payable under the
calculation;
(b)
amounts of child support maintenance which will become
payable under the calculation; or
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(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
if it appears to the Commission—
(a)
that liability for the amounts would not be affected were the
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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
be fair in all the circumstances.
(4)
An order under this section—
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(a)
may not be made in respect of an account of a prescribed
description; and

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(b)
may be made in respect of a joint account which is held by the
person against whom the order is made and one or more other
persons, and which is not of a description prescribed under
paragraph (a), if (but only if) regulations made by the Secretary
of State so provide.
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(5)
An order under this section—
(a)
shall specify the 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
(c)
shall have effect from such date as may be specified in the order.
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(6)
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 specified in the order; and
(b)
pay the amount deducted to the Commission.
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(7)
The Commission shall serve a copy of any order made under this
section on—
(a)
the deposit-taker at which it is directed;
(b)
the person against whom it is made; and
(c)
if the order is made in respect of a joint account, the other
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account-holders.
(8)
Where—
(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,
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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
before the end of the period of 7 days beginning with the day on which
the copy was served on the deposit-taker.
(9)
Where regulations have been made under section 29(3)(a), a person
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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
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
Orders under section 32A: joint accounts
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(1)
Before making an order under section 32A in respect of a joint account
the Commission shall offer each of the account-holders an opportunity
to make representations about—
(a)
the proposal to make the order; and
(b)
the amounts to be deducted under the order, if it is made.
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(2)
The amounts to be deducted from a joint account under such an order
shall not exceed the amounts that appear to the Commission to be fair
in all the circumstances.
(3)
In determining those amounts the Commission shall have particular
regard to—
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(a)
any representations made in accordance with subsection (1)(b);

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(b)
the amount contributed to the account by each of the account-
holders; and
(c)
such other matters as may be prescribed.
32C
Regulations about orders under section 32A
(1)
The Secretary of State may by regulations make provision with respect
5
to orders under section 32A.
(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
10
deducted under it in order to meet liabilities under the
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
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as may be specified in, or determined in accordance with, the
regulations;
(e)
as to circumstances in which amounts standing to the credit of
an account are to be disregarded for the purposes of section
32A;
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(f)
as to the payment of sums deducted under an order to the
Commission;
(g)
allowing the deposit-taker at which an order is directed to
deduct from the amount standing to the credit of the account
specified in the order a prescribed amount towards its
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administrative costs before making any deduction required by
section 32A(6)(a);
(h)
with respect to notifications to be given to the person against
whom an order is made (and, in the case of an order made in
respect of a joint account, to the other account-holders) of
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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—
(i)
if the account specified in the order does not exist at the
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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;
(j)
requiring the deposit-taker at which an order is directed to
notify the Commission in the prescribed manner and within a
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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;
(ii)
a new account of any description is opened with the
deposit-taker by the person against whom the order is
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made;
(k)
as to circumstances in which the deposit-taker at which an order
is directed, the person against whom the order is made and (in
the case of an order made in respect of a joint account) the other

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account-holders may apply to the Commission for it to review
the order and as to such a review;
(l)
for the variation of orders;
(m)
similar to that made by section 32A(8), in relation to any
variation of an order;
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(n)
for an order to lapse in such circumstances as may be
prescribed;
(o)
as to the revival of an order in such circumstances as may be
prescribed;
(p)
allowing or requiring an order to be discharged;
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(q)
as to the giving of notice by the Commission to the deposit-taker
that an order has lapsed or ceased to have effect.
(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;
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(b)
any order under any other enactment relating to England and
Wales which provides for deductions from the same account;
(c)
any diligence done in Scotland against the same account.
(4)
The Secretary of State shall by regulations make provision for any
person affected to have a right to appeal to a court—
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(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
shall not question the maintenance calculation by reference to which
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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;
(b)
provision with respect to the powers of the court to which the
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appeal under the regulations lies.
32D
Orders under section 32A: offences
(1)
A person who fails to comply with the requirements of—
(a)
an order under section 32A, or
(b)
any regulation under section 32C which is designated by the
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regulations for the purposes of this paragraph,

commits an offence.
(2)
It shall be a defence for a person charged with an offence under
subsection (1) to prove that the person took all reasonable steps to
comply with the requirements in question.
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(3)
A person guilty of an offence under subsection (1) shall be liable on
summary conviction to a fine not exceeding level two on the standard
scale.”
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Lump sum deduction orders
After section 32D of the Child Support Act 1991 (c. 48) (inserted by section 22
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