Child Support, Pensions and Social Security Act (Northern Ireland) 2000

PART I — CHILD SUPPORT

Maintenance calculations and default and interim maintenance decisions

Maintenance calculations and terminology

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• (1) In the Child Support (Northern Ireland) Order 1991 (NI 23) (in this Act referred to as the Child Support Order), for Article 13 (maintenance assessments) there shall be substituted—

(13) (1) An application for a maintenance calculation made to the Department shall be dealt with by it in accordance with the provision made by or under this Order. (2) The Department shall (unless it decides not to make a maintenance calculation in response to the application, or makes a decision under Article 14) determine the application by making a decision under this Article about whether any child support maintenance is payable and, if so, how much. (3) Where— (a) a parent is treated under Article 9(3) as having applied for a maintenance calculation; but (b) the Department becomes aware before determining the application that the parent has ceased to fall within Article 9(1), it shall, subject to paragraph (4), cease to treat that parent as having applied for a maintenance calculation. (4) If it appears to the Department that paragraph (10) of Article 7 would not have prevented the parent with care concerned from making an application for a maintenance calculation under that Article it shall— (a) notify that parent of the effect of this paragraph; and (b) if, before the end of the period of one month beginning with and including the day on which notice was sent to the parent with care, that parent asks the Department to do so, treat that parent as having applied not under Article 9 but under Article 7. (5) Where paragraph (3) applies but paragraph (4) does not, the Department shall notify— (a) the parent with care concerned; and (b) the non-resident parent (or alleged non-resident parent), where it appears to the Department that that person is aware that the parent with care has been treated as having applied for a maintenance calculation. (6) The amount of child support maintenance to be fixed by a maintenance calculation shall be determined in accordance with Part I of Schedule 1 unless an application for a variation has been made and agreed. (7) If the Department has agreed to a variation, the amount of child support maintenance to be fixed shall be determined on the basis it determines under Article 28F(4). (8) Part II of Schedule 1 makes further provision with respect to maintenance calculations.

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• (2) In the Child Support Order—

• (a) for maintenance assessment, wherever it occurs, there shall be substituted “maintenance calculation”; and

• (b) for assessment (or any variant of that term), wherever it occurs, there shall be substituted “calculation” (or the corresponding variant) preceded, where appropriate, by a instead of an.

Applications under Article 7 of the Child Support Order

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• (1) Article 7(10) of the Child Support Order (child support maintenance) shall be amended as follows.

• (2) In sub-paragraph (a), after maintenance order there shall be inserted “made before a prescribed date”.

• (3) After sub-paragraph (a), there shall be inserted—

(aa) a maintenance order made on or after the date prescribed for the purposes of sub-paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with and including the date on which it was made; or

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Applications by persons claiming or receiving benefit

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Default and interim maintenance decisions

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For Article 14 of the Child Support Order (interim maintenance assessments) there shall be substituted—

(14) (1) Where the Department— (a) is required to make a maintenance calculation; or (b) is proposing to make a decision under Article 18 or 19, and it appears to the Department that it does not have sufficient information to enable it to do so, it may make a default maintenance decision. (2) Where an application for a variation has been made under Article 28A(1) in connection with an application for a maintenance calculation (or in connection with such an application which is treated as having been made), the Department may make an interim maintenance decision. (3) The amount of child support maintenance fixed by an interim maintenance decision shall be determined in accordance with Part I of Schedule 1. (4) The Department may by regulations make provision as to default and interim maintenance decisions. (5) The regulations may, in particular, make provision as to— (a) the procedure to be followed in making a default or an interim maintenance decision; and (b) a default rate of child support maintenance to apply where a default maintenance decision is made.

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Applications for a variation

Departure from usual rules for calculating maintenance

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• (1) The Child Support Order shall be amended as follows.

• (2) For Articles 28A to 28C (application for a departure direction, preliminary consideration of applications and the imposition of a regular payments condition) there shall be substituted—

(28A) (1) Where an application for a maintenance calculation is made under Article 7, or treated as made under Article 9, the person with care or the non-resident parent may apply to the Department for the rules by which the calculation is made to be varied in accordance with this Order. (2) Such an application is referred to in this Order as an application for a variation. (3) An application for a variation may be made at any time before the Department has made a decision (under Article 13 or 14(1)) on the application for a maintenance calculation (or the application treated as having been made under Article 9). (4) A person who applies for a variation— (a) need not make the application in writing unless the Department directs in any case that he must; and (b) shall say upon what grounds the application is made. (5) In other respects an application for a variation shall be made in such manner as may be prescribed. (6) Schedule 4A shall have effect in relation to applications for a variation. (28B) (1) Where an application for a variation has been duly made to the Department, it may give it a preliminary consideration. (2) Where the Department does so it may, on completing the preliminary consideration, reject the application (and proceed to make its decision on the application for a maintenance calculation without any variation) if it appears to it— (a) that there are no grounds on which it could agree to a variation; (b) that it has insufficient information to make a decision on the application for the maintenance calculation under Article 13 (apart from any information needed in relation to the application for a variation), and therefore that its decision would be made under Article 14(1); or (c) that other prescribed circumstances apply. (28C) (1) Where— (a) an application for a variation is made by the non-resident parent; and (b) the Department makes an interim maintenance decision, it may also, if it has completed its preliminary consideration (under Article 28B) of the application for a variation and has not rejected it under that Article, impose on the non-resident parent one of the conditions mentioned in paragraph (2) (a regular payments condition). (2) The conditions are that— (a) the non-resident parent shall make the payments of child support maintenance specified in the interim maintenance decision; (b) the non-resident parent shall make such lesser payments of child support maintenance as may be determined in accordance with regulations made by the Department. (3) Where the Department imposes a regular payments condition, it shall give written notice of the imposition of the condition and of the effect of failure to comply with it to— (a) the non-resident parent; and (b) all the persons with care concerned. (4) A regular payments condition shall cease to have effect— (a) when the Department has made a decision on the application for a maintenance calculation under Article 13 (whether it agrees to a variation or not); (b) on the withdrawal of the application for a variation. (5) Where a non-resident parent has failed to comply with a regular payments condition, the Department may in prescribed circumstances refuse to consider the application for a variation, and instead make its decision under Article 13 as if no such application had been made. (6) The question whether a non-resident parent has failed to comply with a regular payments condition shall be determined by the Department. (7) Where the Department determines that a non-resident parent has failed to comply with a regular payments condition it shall give written notice of its determination to— (a) that parent; and (b) all the persons with care concerned.

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• (3) In Article 28D (determination of applications)—

• (a) for paragraph (1) there shall be substituted—

(1) Where an application for a variation has not failed, the Department shall, in accordance with the relevant provisions of, or made under, this Order— (a) either agree or not agree to a variation, and make a decision under Article 13 or 14(1); or (b) refer the application to an appeal tribunal for the tribunal to determine what variation, if any, is to be made.

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• (b) in paragraphs (2) and (3), for departure direction there shall be substituted “variation”; and

• (c) in paragraph (2), in sub-paragraph (a) lapsed or shall cease to have effect, at the end of sub-paragraph (b) “or” shall be inserted, and after that sub-paragraph there shall be added—

(c) the Department has refused to consider it under Article 28C(5).

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• (4) In Article 28E (matters to be taken into account)—

• (a) in paragraphs (1), (3) and (4), for any application for a departure direction there shall be substituted “whether to agree to a variation”; and

• (b) in paragraph (4)(a), for a departure direction were made there shall be substituted “the Department agreed to a variation”.

• (5) For Article 28F (departure directions) there shall be substituted—

(28F) (1) The Department may agree to a variation if— (a) it is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and (b) it is the opinion of the Department that, in all the circumstances of the case, it would be just and equitable to agree to a variation. (2) In considering whether it would be just and equitable in any case to agree to a variation, the Department— (a) shall have regard, in particular, to the welfare of any child likely to be affected if it did agree to a variation; and (b) shall, or as the case may be shall not, take any prescribed factors into account, or shall take them into account (or not) in prescribed circumstances. (3) The Department shall not agree to a variation (and shall proceed to make its decision on the application for a maintenance calculation without any variation) if it is satisfied that— (a) it has insufficient information to make a decision on the application for the maintenance calculation under Article 13, and therefore that its decision would be made under Article 14(1); or (b) other prescribed circumstances apply. (4) Where the Department agrees to a variation, it shall— (a) determine the basis on which the amount of child support maintenance shall be calculated in response to the application for a maintenance calculation (including an application treated as having been made); and (b) make a decision under Article 13 on that basis. (5) If the Department has made an interim maintenance decision, that decision shall be treated as having been replaced by the Department's decision under Article 13, and except in prescribed circumstances any appeal connected with it (under Article 22) shall lapse. (6) In determining whether or not to agree to a variation, the Department shall comply with regulations made under Part II of Schedule 4B.

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Applications for a variation: further provisions

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• (1) For Schedule 4A to the Child Support Order there shall be substituted the Schedule 4A set out in Part I of Schedule 2.

• (2) For Schedule 4B to that Order there shall be substituted the Schedule 4B set out in Part II of Schedule 2.

Variations: revision and supersession

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For Article 28G of the Child Support Order (effect and duration of departure directions) there shall be substituted—

(28G) (1) An application for a variation may also be made when a maintenance calculation is in force. (2) The Department may by regulations provide for— (a) Articles 18, 19 and 22; and (b) Articles 28A to 28F and Schedules 4A and 4B, to apply with prescribed modifications in relation to such applications. (3) The Department may by regulations provide that, in prescribed cases (or except in prescribed cases), a decision under Article 19 made otherwise than pursuant to an application for a variation may be made on the basis of a variation agreed to for the purposes of an earlier decision without a new application for a variation having to be made.

Revision and supersession of decisions

Revision of decisions

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• (1) Article 18 of the Child Support Order (revision of decisions) shall be amended as follows.

• (2) In paragraph (1), for of the Department under Article 13, 14 or 19 there shall be substituted “to which paragraph (1A) applies”.

• (3) After paragraph (1), there shall be inserted—

(1A) This paragraph applies to— (a) a decision of the Department under Article 13, 14 or 19; (b) a reduced benefit decision under Article 43; (c) a decision of an appeal tribunal on a referral under Article 28D(1)(b). (1B) Where the Department revises a decision under Article 14(1)— (a) it may (if appropriate) do so as if it were revising a decision under Article 13; and (b) if it does that, its decision, as revised, shall be treated as a decision under Article 13 instead of Article 14(1) (and, in particular, shall be so treated for the purposes of an appeal against it under Article 22).

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Decisions superseding earlier decisions

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• (1) Article 19 of the Child Support Order (decisions superseding earlier decisions) shall be amended as follows.

• (2) In paragraph (1), for sub-paragraph (c) there shall be substituted—

(c) any reduced benefit decision under Article 43; (d) any decision of an appeal tribunal on a referral under Article 28D(1)(b); and (e) any decision of a Child Support Commissioner on an appeal from such a decision as is mentioned in sub-paragraph (b) or (d),

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• (3) For paragraph (4) there shall be substituted—

(4) Subject to paragraph (5) and Article 28ZC, a decision under this Article shall take effect as from the beginning of the maintenance period in which it is made or, where applicable, the beginning of the maintenance period in which the application was made. (4A) In paragraph (4), a maintenance period is (except where a different meaning is prescribed for prescribed cases) a period of seven days, the first one beginning on and including the effective date of the first decision made by the Department under Article 13 or (if earlier) the Department's first default or interim maintenance decision (under Article 14) in relation to the non-resident parent in question, and each subsequent one beginning on and including the day after the last day of the previous one.

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Appeals

Appeals to appeal tribunals

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For Article 22 of the Child Support Order (appeals to appeal tribunals) there shall be substituted—

(22) (1) A qualifying person has a right of appeal to an appeal tribunal against— (a) a decision of the Department under Article 13, 14 or 19 (whether as originally made or as revised under Article 18); (b) a decision of the Department not to make a maintenance calculation under Article 13 or not to supersede a decision under Article 19; (c) a reduced benefit decision under Article 43; (d) the imposition (by virtue of Article 38A) of a requirement to make penalty payments, or their amount; (e) the imposition (by virtue of Article 44) of a requirement to pay fees. (2) In paragraph (1), qualifying person means— (a) in relation to sub-paragraphs (a) and (b), the person with care, or non-resident parent, with respect to whom the Department made the decision; (b) in relation to sub-paragraph (c), the person in respect of whom the benefits are payable; (c) in relation to sub-paragraph (d), the parent who has been required to make penalty payments; and (d) in relation to sub-paragraph (e), the person required to pay fees. (3) A person with a right of appeal under this Article shall be given such notice as may be prescribed of— (a) that right; and (b) the relevant decision, or the imposition of the requirement. (4) Regulations may make— (a) provision as to the manner in which, and the time within which, appeals are to be brought; and (b) such provision with respect to proceedings before appeal tribunals as the Department considers appropriate. (5) The regulations may in particular make any provision of a kind mentioned in Schedule 4 to the Social Security (Northern Ireland) Order 1998. (6) No appeal lies by virtue of paragraph (1)(c) unless the amount of the person's benefit is reduced in accordance with the reduced benefit decision; and the time within which such an appeal may be brought runs from the date of notification of the reduction. (7) In deciding an appeal under this Article, an appeal tribunal— (a) need not consider any issue that is not raised by the appeal; and (b) shall not take into account any circumstances not obtaining at the time when the Department made the decision or imposed the requirement. (8) If an appeal under this Article is allowed, the appeal tribunal may— (a) itself make such decision as it considers appropriate; or (b) remit the case to the Department, together with such directions (if any) as it considers appropriate.

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Redetermination of appeals

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After Article 24 of the Child Support Order there shall be inserted—