The Child Support Maintenance Calculation Regulations (Northern Ireland) 2012

Made: 3rd December 2012

Coming into operation in accordance with regulation 1

The Department for Social Development makes the following Regulations in exercise of the powers conferred by Articles 3(1)(b), 4(3), 8(3), 14(4) and (5), 16(1) and (1A), 18(1), (4) and (6), 19(2), (3) and (5), 28ZA(2)(b) and (4)(c); 28ZB(6)(c) and (8), 28A(5), 28B(2)(c), 28C(2)(b) and (5), 28F(2)(b), (3)(b) and (5), 28G(2) and (3), 39, 47(1) and (2) and 48(4) of, and paragraphs 3(2) and (3), 4(1) and (2), 5, 5A(6)(b), 7(3), 8(2), 9, 10(1) and (2), 10C(2)(b) and 11 of Schedule 1, paragraphs 2, 4 and 5 of Schedule 4A and paragraphs 2(2) to (5) and 4 to 6 of Schedule 4B to, the Child Support (Northern Ireland) Order 1991[^f00001], and now vested in it[^f00002].

PART 1 — GENERAL

Citation and commencement

1

These Regulations may be cited as the Child Support Maintenance Calculation Regulations (Northern Ireland) 2012 and shall come into operation in relation to a particular case on the day on which paragraph 2 of Schedule 1 to the Child Maintenance Act (Northern Ireland) 2008[^f00003] comes into operation in relation to that type of case.

Interpretation

2

• (1) In these Regulations—

• “an authority” has the same meaning as in Article 2 of the Children Order;

• “capped amount” means the figure specified in paragraph 10(3) of Schedule 1 (or in that sub-paragraph as modified by regulations under paragraph 10A of that Schedule[^f00004]);

• “the Child Support Order” means the Child Support (Northern Ireland) Order 1991;

• “the Children Order” means the Children (Northern Ireland) Order 1995[^f00005];

• “the Contributions and Benefits Act” means the Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00006];

• “contribution-based jobseeker’s allowance” means an allowance under the Jobseekers (Northern Ireland) Order 1995 as amended by the provisions of Part 1 of Schedule 12 to the Welfare Reform (Northern Ireland) Order 2015 that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers (Northern Ireland) Order 1995 as that Order has effect apart from those provisions;

• “contributory employment and support allowance” means an allowance under Part 1 of the Welfare Reform Act 2007 as amended by the provisions of Schedule 3, and Part 1 of Schedule 12, to the Welfare Reform (Northern Ireland) Order 2015 that remove references to an income related allowance, and a contributory allowance under Part 1 of the Welfare Reform Act 2007 as that Part has effect apart from those provisions,

• “couple” has the meaning given by paragraph 10C(5) of Schedule 1;

• “current income” has the meaning given in regulation 36;

• “the Earnings and Pensions Act” means the Income Tax (Earnings and Pensions) Act 2003[^f00008];

• “electronic communication” has the same meaning as in section 4(1) of the Electronic Communications Act (Northern Ireland) 2001;

• “the flat rate” means the flat rate of child support maintenance payable under paragraph 4 of Schedule 1;

• “gross weekly income” means income calculated under Chapter 1 of Part 4;

• “historic income” has the meaning given in regulation 34;

• “HMRC” means Her Majesty’s Revenue and Customs;

• “the HMRC figure” has the meaning given in regulation 35;

• “income support” means support to which a person is entitled under section 123 of the Contributions and Benefits Act[^f00009];

• “initial effective date” has the meaning given in regulation 12;

• “net pay arrangements” means arrangements for relief in respect of pension contributions under section 193 of the Finance Act 2004[^f00010];

• “the nil rate” means the nil rate of child support maintenance payable under paragraph 5 of Schedule 1;

• “partner” has the meaning given by paragraph 10C(4) of Schedule 1;

• “party”, in relation to a maintenance calculation in force or an application for a maintenance calculation, means the non-resident parent and the person with care;

• “the PAYE Regulations” means the Income Tax (Pay As You Earn) Regulations 2003[^f00011];

• “qualifying lender” has the meaning given to it in section 376(4) of the Income and Corporation Taxes Act 1988[^f00012];

• “the reduced rate” means the reduced rate of child support maintenance payable under paragraph 3 of Schedule 1;

• “relevant training scheme” means—arrangements under section 1 of the Employment and Training Act (Northern Ireland) 1950[^f00013];arrangements made by the Secretary of State for Defence for persons enlisted in Her Majesty’s forces for any special term of service specified in regulations made under section 2 of the Armed Forces Act 1966[^f00014],for purposes which include the training of persons who, at the beginning of their training, are under the age of 18;

• “relievable pension contributions” has the meaning given by section 188(2) of the Finance Act 2004;

• “review date” has the meaning given in regulation 19;

• “self assessment return” means a return which an individual is required to make and deliver under section 8 of the Taxes Management Act 1970[^f00015];

• “state pension credit” means the benefit payable in accordance with section 1 of the State Pension Credit Act (Northern Ireland) 2002[^f00016];

• “supersession decision” means a decision made under Article 19[^f00017] superseding a decision mentioned in paragraph (1) of that Article;

• “tax year” has the meaning given by section 4 of the Income Tax Act 2007[^f00018];

• “the Trading and Other Income Act” means the Income Tax (Trading and Other Income) Act 2005[^f00019];

• “UK social security pension” means a pension to which section 577 of the Earnings and Pensions Act applies[^f00020];

• “work-based training for young people” means arrangements made by the Secretary of State for Defence for persons enlisted in Her Majesty’s forces for any special term of service specified in regulations made under section 2 of the Armed Forces Act 1966[^f00021] for purposes which include the training of persons who, at the beginning of their training, are under the age of 18.

• (2) Any reference in these Regulations to a numbered Article or Schedule is to the Article of, or Schedule to, the Child Support Order.

Meaning of “calculation decision”

3

In these Regulations “calculation decision” means a decision of the Department under Article 13, 18[^f00022] or 19 determining the amount of child support maintenance to be fixed in accordance with Part I of Schedule 1.

Meaning of “latest available tax year”

4

• (1) In these Regulations “latest available tax year” means the tax year which, on the date on which the Department requests information from HMRC for the purposes of regulation 34 or regulation 68, is the most recent relevant tax year for which HMRC have received the information required to be provided in relation to the non-resident parent under the PAYE Regulations or in a self assessment return.

• (2) In this regulation a “relevant tax year” is any one of the 6 tax years immediately preceding the date of the request for information referred to in paragraph (1).

Calculation – information applicable

5

Information required for the purposes of making a calculation decision or a decision in relation to an application for a variation is the information applicable at the date from which that decision (assuming that the decision was a decision to make or amend a maintenance calculation) would have effect.

Rounding

6

Where a calculation decision or a decision in relation to an application for a variation results in a fraction of a penny, that is to be treated as a penny if it is either one half or exceeds one half, and otherwise it is to be disregarded.

Service of documents

7

• (1) Where any document is given or sent to the Department, that document is to be treated as having been given or sent on the date of receipt by the Department.

• (2) Where the Department sends any written notification or any document by ordinary post to a person’s last known or notified address that document is treated as having been given or sent on the second day following the day on which it is posted.

• (3) Where the Department sends any written notification or any document by electronic communication to a person’s last known or notified address for electronic communication that document is treated as having been given or sent at the end of the first day after the day it was sent.

Authorisation of representative

8

• (1) A person may authorise a representative, whether or not legally qualified, to receive notices and other documents on that person’s behalf and to act on that person’s behalf in relation to the making of applications and the supply of information under any provision of the Child Support Order or these Regulations.

• (2) Where a person has authorised a representative for the purposes of paragraph (1) who is not legally qualified, that person must confirm that authorisation in writing to the Department.

PART 2 — APPLICATION FOR A MAINTENANCE CALCULATION

Applications under Article 7

9

• (1) The Department may determine the form in which an application for a maintenance calculation is to be made and may require the applicant to provide such information or evidence as it reasonably requires in order to process the application (including, in the case of an application by a person with care, information sufficient to enable the person named as the non-resident parent to be identified).

• (2) The application is to be taken to have been made when the application has been submitted to the Department in the required form and the information required under paragraph (1) has been provided.

Multiple applications

10

• (1) Where two or more applications for a maintenance calculation are made with respect to the same child the Department may determine which to proceed with.

• (2) In making a determination under paragraph (1) an earlier application has priority over one made later.

• (3) Where in relation to an application under Article 7[^f00023]—

• (a) both parents of a qualifying child are named as non-resident parents; or

• (b) it is made by both non-resident parents of a qualifying child,

the Department must proceed with the application in relation to each non-resident parent, treating it as a single application for a maintenance calculation in respect of that qualifying child.

Notice of application

11

• (1) Where an application has been made under Article 7 , and the requirement in paragraph (3) is satisfied, the Department must give written notice to the non-resident parent—

• (a) requesting such information as the Department may require to make the maintenance calculation; and

• (b) where relevant, advising the non-resident parent of the power of the Department to make an estimate of income or a default maintenance decision.

• (2) The notice must be sent by—

• (a) post to the last known address of the non-resident parent (as ascertained and verified in accordance with paragraph (3)(a)); or

• (b) by electronic communication in accordance with the Schedule.

• (3) The requirement is that the address of the non-resident parent in relation to the application has been ascertained and verified.

• (4) Except where paragraph (5) or (6) applies to an application, notice must be given as soon as is reasonably practicable.

• (5) Where—

• (a) there is an existing case related to the application; or

• (b) the applicant—

• (i) has been required to choose in an existing case whether or not to stay in the statutory scheme (under Schedule 2 to the 2008 Act (maintenance calculations: transfer of cases to new rules)), as a result of that applicant’s existing case being related to an application made under Article 7(1), and

• (ii) has chosen, by way of the application, to remain in the statutory scheme,

notice must be given as soon as is reasonable.

• (6) Subject to paragraph (8), where the applicant—

• (a) has been required to choose in an existing case whether or not to stay in the statutory scheme (under Schedule 2 to the 2008 Act), in circumstances where the existing case is not related to an application made under Article 7(1); and

• (b) has chosen, by way of the application, to remain in the statutory scheme,

notice must be given in accordance with paragraph (7).

• (7) Where paragraph (6) applies, notice must be given—

• (a) where the application is made and the requirement in paragraph (3) is satisfied before the day 39 days before the liability end date (which means the date determined in accordance with regulation 6 (liability end date) of the Ending Liability Regulations) in relation to the existing case has passed, as soon as is reasonable once that day has passed; or

• (b) where the application is made and the requirement in paragraph (3) is satisfied after the day 39 days before the liability end date has passed, as soon as is reasonable.

• (8) Where an application to which paragraph (6) applies becomes an application to which paragraph (5) applies (because it becomes an existing case related to an application), paragraph (6) ceases to apply to that application.

• (9) In this regulation—

• (a) “the 2008 Act” means the Child Maintenance Act (Northern Ireland) 2008;

• (b) “existing case” has the meaning given in paragraph 1(2) of Schedule 2 to the 2008 Act;

• (c) “the Ending Liability Regulations” means the Child Support (Ending Liability in Existing Cases and Transition to New Calculation Rules) Regulations (Northern Ireland) 2014;

• (d) an existing case is related to an application if—

• (i) the non-resident parent in relation to that application is also the non-resident parent in relation to the existing case and the person with care in relation to that application is not the person with care in relation to the existing case, or

• (ii) the non-resident parent in relation to that application is a partner of a non-resident parent in relation to the existing case and either or both are in receipt of a benefit prescribed by regulations made under paragraph 4(1)(c) (flat rate) of Schedule 1 to the Child Support Order.

PART 3 — DECISION MAKING

CHAPTER 1 — MAKING THE MAINTENANCE CALCULATION

Initial effective date

12

• (1) The effective date of a decision under Article 13 is the date provided as the initial effective date in the notice given to the non-resident parent under regulation 11.

• (2) The non-resident parent must be notified of the initial effective date—

• (a) by written notice posted to the last known postal address of the non-resident parent at least two days prior to the initial effective date; ...

• (b) by telephone on or before the initial effective date and by written notice sent by ordinary post to the last known postal address of the non-resident parent; or

• (c) by electronic communication in accordance with the Schedule, at least one day prior to the initial effective date.

Effect of variation applied for before a maintenance calculation is made

13

• (1) Subject to paragraph (2), where an application for a variation is made in the circumstances referred to in Article 28A(3) and the application is agreed to, the effective date of the maintenance calculation which takes account of the variation is—

• (a) where the ground giving rise to the variation existed from the initial effective date, that date; or

• (b) where the ground giving rise to the variation arose after the initial effective date, the day on which the ground arose.

• (2) Where—

• (a) the ground for the variation applied for under Article 28A(3) is a ground in regulation 64 or 66; and

• (b) payments falling within the relevant regulation which have been made by the non-resident parent constitute voluntary payments for the purposes of Article 28J[^f00024] and regulations made under that Article,

the date from which the maintenance calculation is to take account of the variation on this ground is to be the date on which the non-resident parent is notified under regulation 25 of the amount of the non-resident’s liability to pay child support maintenance.

• (3) Where the ground for the variation applied for under Article 28A(3) has ceased to exist by the date on which the maintenance calculation is made, that calculation is to take account of the variation for the period ending on the day on which the ground ceased to exist.

CHAPTER 2 — REVISION

Grounds for revision

14

• (1) A decision to which Article 18(1A)[^f00025] applies may be revised by the Department—

• (a) if the Department receives an application for the revision of a decision under either Article 18 or Article 28G of the Child Support Order—

• (i) within 30 days after the date of notification of the decision;

• (ii) within 30 days after the date on which notice of the correction is given under regulation 27A(3) (correction of accidental errors); or

• (iii) within such longer time as may be allowed under regulation 15;

• (b) if the Department is satisfied that the decision was wrong due to a misrepresentation of, or failure to disclose, a material fact and that decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would have been but for the wrongness of the decision;

• (c) if an appeal is made under Article 22[^f00026] against a decision within the time limit prescribed by the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999[^f00027] but that appeal has not been determined;

• (d) if the Department commences action leading to the revision of the decision within 30 days after the date of notification of the decision;

• (e) if the decision arose from official error;

• (f) if the information held by HMRC in relation to a tax year in respect of which the Department has determined historic income for the purposes of regulation 34 or unearned income for the purposes of regulation 68 has since been amended; or

• (g) if the ground for revision is that a person with respect to whom a maintenance calculation was made was not, at the time the calculation was made, a parent of a child to whom the calculation relates.

• (2) A decision may not be revised because of a change of circumstances that occurred since the decision had effect or is expected to occur.

• (3) An interim maintenance decision or default maintenance decision made under Article 14 may be revised at any time.

• (3A) Where—

• (a) the Department makes a decision and there is an appeal;

• (b) there is a further decision in relation to the appellant (“decision B”) after the appeal but before the appeal results in a decision by an appeal tribunal (“decision C”); and

• (c) the Department would have made decision B differently if aware of decision C at the time of making decision B,

decision B may be revised at any time.

• (4) In paragraph (1)(e) “official error” means an error made by an officer of the Department or HMRC acting as such to which no person outside the Department or HMRC materially contributed, but excludes any error of law which is shown to have been an error by virtue of a subsequent decision of a Child Support Commissioner or a court.

Late application for a revision

15

• (1) The time limit for making an application for a revision specified in regulation 14(1)(a) may be extended where the conditions specified in the following provisions of this regulation are satisfied.

• (2) An application for an extension of time must be made by one of the parties or that party’s authorised representative.

• (3) An application for an extension of time must contain particulars of the grounds on which the extension is sought and must contain sufficient details of the decision which it is sought to have revised to enable that decision to be identified.

• (4) An application for an extension of time may not be granted unless the applicant satisfies the Department that—

• (a) it is reasonable to grant the application;

• (b) the application for revision has merit , except in a case to which regulation 14A applies; and

• (c) special circumstances are relevant to the application and because of those special circumstances it was not practicable for the application to be made within the time limit specified in regulation 14(1)(a).

• (5) In determining whether it is reasonable to grant an application for an extension of time, the Department must have regard to the principle that the greater the amount of time that has elapsed between the end of the time specified in regulation 14(1)(a) for applying for a revision and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.

• (6) In determining whether it is reasonable to grant the application for an extension of time , except in a case to which regulation 14A applies, no account shall be taken of the following—

• (a) that the applicant, or any person acting for the applicant, was unaware of or misunderstood the law applicable to the case (including ignorance or misunderstanding of the time limits imposed by these Regulations); or

• (b) that a Child Support Commissioner or a court has taken a different view of the law from that previously understood and applied.

• (7) An application under this regulation for an extension of time which has been refused may not be renewed.

• (8) In paragraph (6)(b) the reference to a Child Support Commissioner shall be read as including a reference to the Upper Tribunal established under section 3 of the Tribunals, Courts and Enforcement Act 2007[^f00028].

Effective date of a revision

16

Where a decision is revised and the date from which the original decision took effect is found to be wrong, the decision as revised takes effect from the date on which the original decision would have taken effect had the error not been made.

CHAPTER 3 — SUPERSESSION

Grounds for supersession

17

• (1) A decision mentioned in Article 19(1)[^f00029] may be superseded by a decision of the Department, on an application or on the Department’s own initiative, where—

• (a) there has been a relevant change of circumstances since the decision had effect or it is expected that a relevant change of circumstances will occur;

• (b) the decision was made in ignorance of, or was based on a mistake as to, some material fact; or

• (c) the decision was wrong in law (unless it was a decision made on appeal).

• (2) The circumstances in which a decision may be superseded include where the relevant change of circumstances causes the maintenance calculation to cease by virtue of paragraph 16 of Schedule 1[^f00030] or where the Department no longer has jurisdiction by virtue of Article 41[^f00031].

• (3) A decision may be superseded by a decision made by the Department where it receives an application for the supersession of a decision by way of an application under Article 28G.

• (4) A decision may not be superseded in circumstances where it may be revised.

• (5) A decision to refuse an application for a maintenance calculation may not be superseded.

• (6) In making a supersession decision under Article 19(1) the Department need not consider any issue that is not raised by the application or, as the case may be, did not cause the decision to be made on the Department’s own initiative.

• (7) This regulation is subject to any provision in Chapter 4 relating to the circumstances in which a supersession decision may be made.

Effective dates for supersession decisions

18

• (1) This regulation sets out cases and circumstances in which a supersession decision takes effect on a date other than the date mentioned in Article 19(4)[^f00032].

• (2) Where the ground for the supersession decision is that a relevant change of circumstances is expected to occur or that a ground for a variation is expected to occur, the decision takes effect from the date on which that change or that ground is expected to occur.

• (3) Where the ground for the supersession decision is that a relevant change of circumstances of the following kind has occurred, the decision takes effect from the date on which the change occurred—

• (a) a child ceases to be a qualifying child, a relevant other child, or a child supported under another arrangement;

• (b) the person with care dies or ceases to be a person with care in relation to a qualifying child;

• (c) the person with care, the non-resident parent or a qualifying child ceases to be habitually resident in the United Kingdom;

• (d) the non-resident parent begins or ceases to receive a benefit mentioned in regulation 43(1) or begins or ceases to be a person who receives, or whose partner receives, a benefit referred to in regulation 43(2).

• (4) Where the ground for the supersession decision is that a relevant change of circumstances affecting the non-resident parent’s current income has occurred and the non-resident parent was required to report that change in accordance with regulations under Article 16(1)[^f00033], the decision takes effect from the date on which the change occurred.

• (5) Where the ground for the supersession decision is that there is a new qualifying child in relation to the non-resident parent, the decision takes effect from the date which would be the initial effective date in relation to an application under Article 7 in relation to that child if there were no maintenance calculation already in force.

• (6) Where paragraphs (2) to (5) do not apply—

• (a) if the supersession decision is made on an application by one of the parties, the decision takes effect from the date of the application;

• (b) if the supersession decision is made on the Department’s own initiative on the basis of information provided by a third party, the decision takes effect from the date on which that information is provided; and

• (c) if the supersession decision is made on the Department’s own initiative and sub-paragraph (b) does not apply, the decision takes effect from the date on which it is made.

• (7) In paragraph (3)—

• (a) the reference to a child supported under another arrangement is to a child supported under a qualifying maintenance arrangement mentioned in paragraph 5A of Schedule 1[^f00034] or a child mentioned in regulation 51; and

• (b) the reference to the date on which a person begins or ceases to receive a benefit is to the date on which entitlement to the benefit commences or ceases.

• (8) This regulation is subject to any provision in Chapter 4 relating to the date from which a supersession decision made under that Chapter takes effect.

CHAPTER 4 — UPDATING GROSS WEEKLY INCOME

Setting the review date

19

• (1) The Department must, in relation to each application for a maintenance calculation, fix a date at which the non-resident parent’s gross weekly income is to be reviewed by reference to an updated HMRC figure (“the review date”).

• (2) Subject to paragraph (3), the first review date falls 12 months after the initial effective date and subsequent review dates fall on each anniversary of that date, unless the Department decides in any particular case or class of case to fix a different date.

• (3) Where a maintenance calculation is in force and there is a further application in relation to the non-resident parent in respect of a new qualifying child, the review dates are to be aligned so that the first review date in respect of the new application is the next review date for the calculation already in force.

• (4) Where an application for a maintenance calculation in relation to both non-resident parents of a qualifying child is treated as a single application by virtue of regulation 10(3) the Department may fix different review dates in respect of each non-resident parent.

Updating gross weekly income at the review date

20

• (1) Where an updated figure is provided by HMRC for the latest available tax year in accordance with a request under regulation 34(2)(b), that figure applies, for the purposes of determining historic income, on or after the review date.

• (2) If the non-resident parent’s gross weekly income, as calculated in accordance with Chapter 1 of Part 4 by reference to that updated figure, has changed, the Department may make a supersession decision with effect from the review date.

Updating unearned income at the review date

21

• (1) This regulation applies where, in relation to a maintenance calculation in force, additional income has been taken into account by virtue of a variation previously agreed to under regulation 68.

• (2) When the Department makes a request to HMRC for the purposes of reviewing the non-resident parent’s gross weekly income in accordance with regulation 20 the Department may also request information relating to the non-resident parent’s unearned income for the latest available tax year and, where appropriate, make a supersession decision on the basis of that information with effect from the review date.

Periodic current income check

22

• (1) Where—

• (a) the non-resident parent’s gross weekly income is based on an amount of current income by virtue of regulation 33(2); and

• (b) no supersession decision changing that amount has been made within the past 11 months,

the Department may, for the purposes of validating that amount, require evidence of current income to be provided by the non-resident parent.

• (2) Where the non-resident parent fails to provide evidence as requested under paragraph (1) the Department may make a supersession decision determining the non-resident parent’s gross weekly income on the basis of historic income.

• (3) Where the Department is provided with sufficient information on which to make a new determination of current income, it may make a supersession decision applying the general rule in regulation 33(2).

• (4) Subject to paragraph (5), a supersession decision under this regulation has effect from the date on which it is made.

• (5) Where the Department makes a supersession decision under paragraph (3) and the relevant change of circumstances affecting the non-resident parent’s current income was one that the non-resident parent was required to report in accordance with regulations under Article 16(1), the decision takes effect from the date on which the change occurred.

25 per cent. tolerance for changes outside annual review or periodic current income check

23

• (1) This regulation applies where the non-resident parent’s gross weekly income is based on an amount of current income by virtue of regulation 33(2) and, before the next review date, there is a change of circumstances affecting the amount of that current income.

• (2) No supersession decision giving effect to that change may be made unless the amount of that current income has changed by at least 25 per cent.

• (3) Paragraph (1) does not prevent a supersession decision that—

• (a) is made on the Department’s own initiative under regulation 20 or 22;

• (b) is made on the ground mentioned in regulation 17(1)(c); or

• (c) supersedes a decision determining the non-resident parent’s gross weekly income on the basis of regulation 41.

• (4) Where the condition in paragraph (2) is satisfied, the current income (as changed) is to apply even if it does not differ from historic income by an amount that is at least 25 per cent of historic income.

CHAPTER 5 — NOTIFICATION OF DECISIONS

Notification – general

24

• (1) Notification of a decision made by the Department under Article 13, 14 or 19 or of any revision of such a decision under Article 18 must be given to the parties in accordance with this Chapter.

• (2) Any such notification must include information as to the provisions relating to the revision and supersession of, and appeals from, decisions made under the Child Support Order.

Notification of a maintenance calculation

25

• (1) Notification of a decision made under Article 13 or 14(2)[^f00035] must set out—

• (a) the effective date of the maintenance calculation;

• (b) where relevant, the non-resident parent’s gross weekly income, including—

• (i) whether that is based on historic income or current income, and

• (ii) if based on current income, whether that income has been estimated in accordance with regulation 41;

• (c) the number of qualifying children;

• (d) the number of relevant other children;

• (e) the weekly rate;

• (f) the amounts calculated in accordance with Part 1 of Schedule 1[^f00036] and, where there has been an agreement to a variation or a variation has otherwise been taken into account, Part 5 of these Regulations;

• (g) where the weekly rate is adjusted by apportionment or to take account of shared care;

• (h) where the amount of child support maintenance is decreased—

• (i) to take account of a child supported under a qualifying maintenance arrangement mentioned in paragraph 5A of Schedule 1; or

• (ii) in accordance with regulation 51 or 52.

• (2) A notification of a maintenance calculation made under Article 14(1) must set out—

• (a) the effective date of the maintenance calculation;

• (b) the default rate;

• (c) the number of qualifying children on which the rate is based; and

• (d) whether apportionment has been applied under regulation 48,

and must state the nature of the information required to enable a calculation decision to be made.

• (3) Except with the written permission of the person concerned, a notice under this regulation must not include—

• (a) the address of any person other than the recipient of the notice (other than the address of the relevant office of the Department) or any other information the use of which could reasonably be expected to lead to any such persons being located; and

• (b) any other information the use of which could reasonably be expected to lead to any person other than the qualifying child or a party to the application being identified.

Notification of a revision or supersession

26

• (1) A notification of a decision made following the revision or supersession of a decision made under Article 13, 14 or 19, whether as originally made or revised under Article 18, must, subject to the qualification in regulation 25(3), set out the information mentioned in regulation 25(1) and (2) in relation to the decision in question.

• (2) The requirement in paragraph (1) does not apply where the Department has decided not to supersede a decision and in that case the Department must, where appropriate and as far as reasonably practicable, notify the parties of that decision.

Notification of cessation of a maintenance calculation

27

Where the Department decides that a maintenance calculation has ceased or is to cease to have effect, the Department must immediately notify the non-resident parent and person with care so far as that is reasonably practicable.

CHAPTER 6 — MISCELLANEOUS MATTERS RELATING TO APPEALS

Decisions involving issues that arise on appeal in other cases

28

• (1) For the purposes of Article 28ZA(2)(b)[^f00037]—

• (a) a case in which there is no maintenance calculation in force is a prescribed case; and

• (b) the prescribed basis on which the Department may make the decision is as if—

• (i) the appeal in relation to the different matter, which is referred to in Article 28ZA(1)(b) had already been determined, and

• (ii) for the purposes of making that decision, the appeal had been determined in a way that resulted in the lowest possible amount of child support maintenance in the circumstances of that case being payable.

• (2) The circumstances prescribed under Article 28ZA(4)(c) are that the Department—

• (a) certifies in writing that an appeal against that decision is being considered; and

• (b) considers that, if such an appeal were to be determined in a particular way—

• (i) there would be no liability for child support maintenance, or

• (ii) such liability would be less than would be the case were an appeal not made.

Appeals involving issues that arise in other cases

29

The circumstances prescribed for the purposes of Article 28ZB(6)(c)[^f00038], are where the Department—

• (a) certifies in writing that an appeal against that decision in question is being considered; and

• (b) considers that, if such an appeal were already determined, it would affect the determination of the appeal described in Article 28ZB(1)(a).

Tribunal decision made pending outcome of a related appeal

30

Where, in accordance with Article 28ZB(5) the Department makes a decision superseding the decision of an appeal tribunal or Child Support Commissioner, the superseding decision takes effect from the date on which the decision of the appeal tribunal or, as the case may be, the Child Support Commissioner would have taken effect had it been decided in accordance with the determination of the Child Support Commissioner or the court in the appeal referred to in Article 28ZB(1)(b).

Supersession of tribunal decision made in error due to misrepresentation etc.

31

• (1) Where—

• (a) a decision made by an appeal tribunal or Child Support Commissioner is superseded on the ground that it was erroneous due to misrepresentation of, or that there was a failure to disclose, a material fact; and

• (b) the Department is satisfied that the decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would otherwise have been but for that error,

the superseding decision takes effect from the date on which the decision of the appeal tribunal or, as the case may be, the Child Support Commissioner, took or was to take, effect.

Supersession of look-alike case where law reinterpreted by a Child Support Commissioner or a court

32

Any supersession decision made under Article 19[^f00039] in consequence of a determination which is a relevant determination for the purposes of Article 28ZC[^f00040] takes effect from the date of the relevant determination.

PART 4 — THE MAINTENANCE CALCULATION RULES

CHAPTER 1 — DETERMINATION OF GROSS WEEKLY INCOME

The general rule for determining gross weekly income

33

• (1) The gross weekly income of a non-resident parent for the purposes of a calculation decision is a weekly amount determined at the effective date of the decision on the basis of either historic income or current income in accordance with this Chapter.

• (2) The non-resident parent’s gross weekly income is to be based on historic income unless—

• (a) current income differs from historic income by an amount that is at least 25 per cent. of historic income; or

• (b) ...no historic income is available ; or

• (c) the Department is unable, for whatever reason, to request or obtain the information from HMRC.

• (2A) For the purposes of paragraph (2)(a), current income is treated as differing from historic income by an amount that is at least 25 per cent. of historic income where

• (a) the amount of historic income is nil; and

• (b) the amount of current income is greater than nil.

• (3) For the purposes of paragraph (2)(b) no historic income is available if HMRC did not, when a request was last made by the Department for the purposes of regulation 34, have the required information in relation to a relevant tax year.

• (4) “Relevant tax year” has the meaning given in regulation 4(2).

• (5) This regulation is subject to regulation 23(4).

Historic income – general

34

• (1) Historic income is determined by—

• (a) taking the HMRC figure last requested from HMRC in relation to the non-resident parent;

• (b) adjusting that figure where required in accordance with paragraph (3); and

• (c) dividing by 365 and multiplying by 7.

• (2) A request for the HMRC figure is to be made by the Department—

• (a) for the purposes of a decision under Article 13 no more than 30 days before the initial effective date; and

• (b) for the purposes of updating that figure, no more than 30 days before the review date.

• (3) Where the non-resident parent has made relievable pension contributions during the tax year to which the HMRC figure relates and those contributions have not been deducted under net pay arrangements, the HMRC figure is, if the non-resident parent so requests and provides such information as the Department requires, to be adjusted by deducting the amount of those contributions.

Historic income – the HMRC figure

35

• (1) The HMRC figure is the amount identified by HMRC from information provided in a self-assessment return or under the PAYE Regulations, as the sum of the income on which the non-resident parent was charged to tax for the latest available tax year—

• (a) under Part 2 of the Earnings and Pensions Act;

• (b) under Part 9 of that Act;

• (c) under Part 10 of that Act but only in so far as that income comprises the following taxable UK benefits listed in Table A[^f00041] in Chapter 3 of that Part—

• (i) incapacity benefit,

• (ii) contributory employment and support allowance,

• (iii) jobseeker’s allowance, and

• (iv) income support, and

• (d) under Part 2 of the Trading and Other Income Act.

• (2) The amount identified as income for the purposes of paragraph (1)(a) is to be taken after any deduction for relative pension contributions made by the non-resident parent’s employer in accordance with net pay arrangements.

• (3) The amount identified as income for the purposes of paragraph (1)(b) is not to include a UK social security pension.

• (4) The amount identified as income for the purposes of paragraph (1)(d) is to be taken after deduction of any relief under section 83 of the Income Tax Act 2007[^f00042].

• (5) Where, for the latest available tax year, HMRC has both information provided in a self- assessment return and information provided under the PAYE Regulations, the amount identified for the purposes of paragraph (1) is to be taken from the former.

Current income – general

36

• (1) Current income is the sum of the non-resident parent’s income—

• (a) as an employee or office-holder;

• (b) from self-employment; and

• (c) from a pension,

calculated or estimated as a weekly amount at the effective date of the relevant calculation decision in accordance with regulations 37 to 41.

• (2) Where payment is made in a currency other than sterling, an amount equal to any banking charge payable in converting that payment to sterling is to be disregarded in calculating the current income of a non-resident parent.

Current income as an employee or office-holder

37

• (1) The non-resident parent’s current income as an employee or office-holder is income of a kind that would be taxable earnings within the meaning of section 10(2) of the Earnings and Pensions Act and is to be calculated as follows.

• (2) As regards any part of the non-resident parent’s income that comprises salary, wages or other amounts paid periodically—

• (a) if it appears to the Department that the non-resident parent is (or is to be) paid a regular amount according to a settled pattern that is likely to continue for the foreseeable future, that part of the non-resident parent’s income is to be calculated as the weekly equivalent of that amount; and

• (b) if sub-paragraph (a) does not apply (for example where the non-resident parent is a seasonal worker or has working hours that follow an irregular pattern) that part of the non-resident parent’s income is to be calculated as the weekly average of the amounts paid over such period preceding the effective date of the relevant calculation decision as appears to the Department to be appropriate.

• (3) Where the income from the non-resident parent’s present employment or office has, during the past 12 months, included bonus or commission or other amounts paid separately from, or in relation to a longer period than, the amounts referred to in paragraph (2), the amount of that income is to be calculated by aggregating those payments, dividing by 365 and multiplying by 7.

• (4) Where the earnings from the non-resident parent’s present employment or office have, in the past 12 months, included amounts treated as earnings under Chapters 2 to 11 of Part 3 of the Earnings and Pensions Act the non-resident parent’s current income is to be taken to include the amount of those benefits as last obtained by HMRC divided by 365 and multiplied by 7.

• (5) Where the non-resident parent’s employer makes deductions of relievable pension contributions from the payments referred to in paragraph (2) or (3) the amount of those payments is to be calculated after those deductions.

Current income from self-employment

38

• (1) The non-resident parent’s current income from self-employment is to be determined by reference to the profits of any trade, profession or vocation carried on by the non-resident parent at the effective date of the relevant calculation decision.

• (2) The profits referred to in paragraph (1) are the profits determined in accordance with Part 2 of the Trading and Other Income Act for the most recently completed relevant period or, if no such period has been completed, the estimated profits for the current relevant period.

• (3) The weekly amount is calculated by dividing the amount of those profits by the number of weeks in the relevant period.

• (4) In paragraphs (2) and (3) the “relevant period” means a tax year or such other period in respect of which the non-resident parent should, in the normal course of events, report the profits or losses of the trade, profession or vocation in question to HMRC in a self assessment return.

• (5) In the case of a non-resident parent who carries on a trade, profession or vocation in partnership, the profits referred to in this regulation are the profits attributable to the non-resident parent’s share of the partnership.

• (6) The profits of a trade, profession or vocation that the non-resident parent has ceased to carry on at the effective date of the relevant calculation decision are to be taken as nil.

Deduction for pension contributions relievable at source

39

Where the non resident parent—

• (a) has current income from self-employment or as an employee or office-holder at the effective date of the relevant calculation decision; and

• (b) makes relievable pension contributions which are not taken into account under regulation 37(5),

there is to be deducted from the sum of any amounts calculated in accordance with regulation 37 or 38 an amount determined by the Department as representing the weekly average of those contributions.

Current income from a pension

40

The non-resident parent’s current income from a pension is to be calculated as the weekly average, over such period as the Department considers appropriate, of amounts received by the non-resident parent from a pension or annuity or other income (excluding UK social security pensions) of a kind that would be charged to tax under Part 9 of the Earnings and Pensions Act.

Estimate of current income where insufficient information available

41

• (1) Where—

• (a) current income applies by virtue of regulation 33(2)(a) where the amount of historic income is nil or by virtue of regulation 33(2)(b) or (c) ; and

• (b) the information available in relation to current income is insufficient or unreliable,

the Department may estimate that income and, in doing so, may make any assumption as to any fact.

• (2) Where the Department is satisfied that the non-resident parent is engaged in a particular occupation, whether as an employee, office-holder or a self-employed person, the assumptions referred to in paragraph (1) may include an assumption that the non-resident parent has the average weekly income of a person engaged in that occupation in the UK or in any part of the UK.

CHAPTER 2 — RATES OF CHILD SUPPORT MAINTENANCE

Reduced rate

42

The reduced rate is an amount calculated as follows—

		Number of relevant other children of the non-resident parent	Number of relevant other children of the non-resident parent		T (%)
1 qualifying child of the non-resident parent	1 qualifying child of the non-resident parent		0		17.0
1 qualifying child of the non-resident parent	1 qualifying child of the non-resident parent		1		14.1
1 qualifying child of the non-resident parent	1 qualifying child of the non-resident parent		2		13.2
1 qualifying child of the non-resident parent	1 qualifying child of the non-resident parent		3 or more		12.4
2 qualifying children of the non-resident parent	2 qualifying children of the non-resident parent		0		25.0
2 qualifying children of the non-resident parent	2 qualifying children of the non-resident parent		1		21.2
2 qualifying children of the non-resident parent	2 qualifying children of the non-resident parent		2		19.9
2 qualifying children of the non-resident parent	2 qualifying children of the non-resident parent		3 or more		18.9
3 or more qualifying children of the non-resident parent	3 or more qualifying children of the non-resident parent		0		31.0
3 or more qualifying children of the non-resident parent	3 or more qualifying children of the non-resident parent		1		26.4
3 or more qualifying children of the non-resident parent	3 or more qualifying children of the non-resident parent		2		24.9
3 or more qualifying children of the non-resident parent	3 or more qualifying children of the non-resident parent		3 or more		23.8

Flat rate

43

• (1) The following benefits, pensions and allowances are prescribed for the purposes of paragraph 4(1)(b) of Schedule 1—

• (a) under the Contributions and Benefits Act—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) category A retirement pension,

• (iii) category B retirement pension,

• (iv) category C and category D retirement pension,

• (v) incapacity benefit,

• (vi) carer’s allowance,

• (vii) maternity allowance,

• (viii) severe disablement allowance,

• (ix) industrial injuries benefit,

• (x) widowed mother’s allowance,

• (xi) widowed parent’s allowance, and

• (xii) widow’s pension;

• (b) contribution-based jobseeker’s allowance under the Jobseekers (Northern Ireland) Order 1995[^f00043];

• (c) a social security benefit paid by a country other than the United Kingdom;

• (d) a training allowance (other than in respect of a relevant training scheme);

• (e) a war disablement pension within the meaning of section 146(2) of the Contributions and Benefits Act[^f00044] or a pension which is analogous to such a pension paid by the government of a country outside the United Kingdom;

• (f) a war widow’s pension within the meaning of that section, or a war widower’s pension or surviving civil partner’s war pension;

• (g) a payment under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004[^f00045]; ...

• (h) contributory employment and support allowance ; ...

• (i) a state pension under Part 1 of the Pensions Act (Northern Ireland) 2015; and

• (j) the carer support payment component of carer support given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023.

• (2) The following benefits are prescribed for the purposes of paragraph 4(1)(c) of Schedule 1—

• (a) income support;

• (b) income-based jobseeker’s allowance;

• (c) income-related employment and support allowance; ...

• (d) state pension credit; and

• (e) universal credit under Part 2 of the Welfare Reform (Northern Ireland) Order 2015, where the award of universal credit is calculated on the basis that the non-resident parent does not have any earned income.

• (3) Where the conditions referred to in paragraph 4(2) of Schedule 1 are satisfied the flat rate of maintenance payable is half the flat rate that would otherwise apply.

• (4) In paragraph (1)(d) “training allowance” means a payment under section 1 of the Employment and Training Act (Northern Ireland) 1950[^f00046] which is paid to a person for that person’s maintenance while undergoing training.

• (5) For the purposes of paragraph (2)(e) and regulation 44(1)(c) “earned income” has the meaning given in regulation 51 of the Universal Credit Regulations (Northern Ireland) 2016.

Nil rate

44

• (1) The nil rate is payable where the non-resident parent is—

• (a) a child;

• (b) a prisoner or a person serving a sentence of imprisonment detained in hospital;

• (c) a person who is 16 or 17 years old and—

• (i) in receipt of income support, income-based jobseeker’s allowance or income-related employment and support allowance, ...

• (ii) a member of a couple whose partner is in receipt of income support, income-based jobseeker’s allowance or income-related employment and support allowance;

• (iii) in receipt of universal credit under Part 2 of the Welfare Reform (Northern Ireland) Order 2015, where the award of universal credit is calculated on the basis that they do not have any earned income; or

• (iv) in a case not covered by paragraph (iii), a member of a couple where their partner is in receipt of universal credit under Part 2 of the Welfare Reform (Northern Ireland) Order 2015 and the award of universal credit is calculated on the basis that the non-resident parent does not have any earned income;

• (d) a person receiving an allowance in respect of a relevant training scheme; or

• (e) a person who is resident in a residential care home, nursing home or an independent hospital who—

• (i) is in receipt of a pension, benefit or allowance specified in regulation 43(1) or (2), or

• (ii) has the whole or part of the cost of the accommodation met by the Regional Health and Social Care Board or an HSC trust.

• (2) For the purposes only of determining whether paragraph 5(b) of Schedule 1[^f00047] applies, the gross weekly income of the non-resident parent is to include any payments made by way of benefits, pensions and allowances referred to in regulation 43(1) or (2).

• (3) In this regulation—

• an “HSC trust” means a Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991[^f00048], by which functions are exercisable by virtue of an authorisation for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994;

• “independent hospital” has the meaning assigned to it by Article 2(2) of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003[^f00049];

• “nursing home” has the meaning assigned to it by Article 11 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003;

• “person serving a sentence of imprisonment detained in hospital” means a person who—is being detained under Article 53 of the Mental Health (Northern Ireland) Order 1986[^f00050]; andin any case where there is in relation to that person a release date within the meaning of Article 56(3) of that Order, is being detained on or before the day which the Department certifies to be that release date;

• “prisoner” means a person who is detained in custody pending trial or sentence upon conviction or under sentence imposed by court other than a person who is detained in hospital under the provisions of the Mental Health (Northern Ireland) Order 1986;

• “the Regional Health and Social Care Board” means the Regional Health and Social Care Board established under section 7 of the Health and Social Care (Reform) Act (Northern Ireland) 2009[^f00051];

• “residential care home” has the meaning assigned to it by Article 10 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003.

Decrease for shared care

45

• (1) This regulation and regulation 46 apply where the Department determines the number of nights which count for the purposes of the decrease in the amount of child support maintenance under paragraphs 7 and 8 of Schedule 1[^f00052].

• (2) Subject to paragraph (3), the determination is to be based on the number of nights for which the non-resident parent is expected to have the care of the qualifying child overnight during the 12 months beginning with the effective date of the relevant calculation decision.

• (3) The Department may have regard to a period of less than 12 months where it considers a shorter period is appropriate (for example where the parties have an agreement in relation to a shorter period) and, if the Department does so, paragraphs 7(3) and 8(2) of Schedule 1 are to have effect as if—

• (a) the period mentioned there were that shorter period; and

• (b) the number of nights mentioned in the Table in paragraph 7(4), or in paragraph 8(2), of that Schedule were reduced proportionately.

• (4) When making a determination under paragraphs (1) to (3) the Department must consider—

• (a) the terms of any agreement made between the parties or of any court order providing for contact between the non-resident parent and the qualifying child; or

• (b) if there is no agreement or court order, whether a pattern of shared care has already been established over the past 12 months (or such other period as the Department considers appropriate in the circumstances of the case).

• (5) For the purposes of this regulation—

• (a) a night will count where the non-resident parent has the care of the qualifying child overnight and the child stays at the same address as the non-resident parent;

• (b) the non-resident parent has the care of the qualifying child when the non-resident parent is looking after the child; and

• (c) where, on a particular night, a child is a boarder at a boarding school, or an in-patient in a hospital, the person who would, but for those circumstances, have the care of the child for that night, shall be treated as having care of the child for that night.

Assumption as to number of nights of shared care

46

• (1) This regulation applies where the Department is required to make a determination under regulation 45 for the purposes of a calculation decision.

• (2) If it appears to the Department that—

• (a) the parties agree in principle that the care of a qualifying child is to be shared during the period mentioned in regulation 45(2) or (3); but

• (b) there is insufficient evidence to make that determination on the basis set out in regulation 45(4) (for example because the parties have not yet agreed the pattern of frequency or the evidence as to a past pattern is disputed),

the Department may make the decision on the basis of an assumption that the non-resident parent is to have the care of the child overnight for one night per week.

• (3) Where the Department makes a decision under paragraph (2) the assumption applies until an application is made under Article 19 for a supersession of that decision and the evidence provided is sufficient to enable a determination to be made on the basis set out in regulation 45(4).

Non-resident parent party to another maintenance arrangement

47

• (1) An agreement described in paragraph (2) is an agreement of a prescribed description for the purposes of paragraph 5A(6)(b) of Schedule 1[^f00053].

• (2) The agreement may be oral or written and satisfy the following conditions—

• (a) it must relate to a child of the non-resident parent who is habitually resident in the UK;

• (b) it must be between the non-resident parent and a person with whom the child resides (but not in the same household as the non-resident parent) and who usually provides day to day care for that child; and

• (c) it must provide for the non-resident parent to make regular payments for the benefit of the child.

• (3) The payments mentioned in paragraph (2)(c) may include payments made by the non-resident parent direct to the person mentioned in paragraph (2)(b) or payments to other persons.

CHAPTER 3 — DEFAULT MAINTENANCE DECISIONS

Default rate

48

• (1) Where the Department makes a default maintenance decision under Article 14(1)[^f00054] the default rate is set out in paragraph (2).

• (2) The default rate is—

• (a) £39 where there is one qualifying child;

• (b) £51 where there are two qualifying children; or

• (c) £64 where there are three or more qualifying children,

apportioned, where the non-resident parent has more than one qualifying child and in relation to them there is more than one person with care, as provided in paragraph 6(2) of Schedule 1.

CHAPTER 4 — SPECIAL CASES

Parent treated as a non-resident parent in shared care cases

49

• (1) Where the circumstances of a case are that—

• (a) an application is made by a person with care under Article 7[^f00055]; and

• (b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant,

the case is to be treated as a special case for the purposes of the Child Support Order.

• (2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant.

• (3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.

• (4) For the purposes of paragraph (3), where a person has made an election under section 11A(1) of the Social Security Administration (Northern Ireland) Act 1992 for payments of child benefit not to be made, that person is to be treated as receiving child benefit.

Child in care who is allowed to live with a parent

50

• (1) Where the circumstances of a case are that a qualifying child who is in the care of an authority is allowed by the authority to live with a parent of that child under Article 27(5) of the Children Order, that case is to be treated as a special case for the purposes of the Child Support Order.

• (2) For the purposes of this case, Article 4(3)(b) is to be modified so that, for the reference to the person who usually provides day to day care for the child there is substituted a reference to the parent of the child with whom the authority has allowed the child to live.

Non-resident parent liable to maintain a child of the family or a child abroad

51

• (1) A case is to be treated as a special case for the purposes of the Child Support Order where—

• (a) an application for a maintenance calculation has been made or a maintenance calculation is in force with respect to a qualifying child and a non-resident parent;

• (b) there is a different child in respect of whom no application for a maintenance calculation may be made but whom the non-resident parent is liable to maintain—

• (i) in accordance with a maintenance order made in respect of that child as a child of the non-resident parent’s family, or

• (ii) in accordance with an order made by a court outside Northern Ireland or under the legislation of a jurisdiction outside the United Kingdom; and

• (c) the weekly rate of child support maintenance, apart from this regulation, would be the basic rate, or the reduced rate, or would be calculated following agreement to a variation where the rate would otherwise be a flat rate or the nil rate.

• (2) In any such case the amount of child support maintenance is to be calculated in accordance with paragraph 5A of Schedule 1 as if the child in question were a child with respect to whom the non-resident parent was a party to a qualifying maintenance arrangement.

• (3) For the purposes of this regulation “child” includes a person who has not attained the age of 20 whom the non-resident parent is liable to maintain in accordance with paragraph (1)(b)(ii).

Care provided in part by an authority

52

• (1) This regulation applies where paragraph (2) applies and the rate of child support maintenance payable is the basic rate, or the reduced rate, or has been calculated following agreement to a variation where the non-resident parent’s liability would otherwise have been the flat rate or the nil rate.

• (2) Where the circumstances of a case are that the care of the qualifying child is shared between the person with care and an authority and—

• (a) the qualifying child is in the care of the authority for 52 nights or more in the period of 12 months ending with the effective date of the relevant calculation decision;

• (b) where, in the opinion of the Department, a period other than the period of 12 months mentioned in sub-paragraph (a) is more representative of the current arrangements for the care of the qualifying child, the qualifying child is in the care of the authority during that period for no fewer than the number of nights which bears the same ratio to 52 nights as that period bears to 12 months; or

• (c) it is intended that the qualifying child is to be in the care of the authority for a number of nights in a period beginning with the day after the effective date and—

• (i) if that period were a period of 12 months, the number of nights is 52 nights or more, or

• (ii) if that period were a period other than 12 months, the number of nights is no fewer than the number of nights which bears the same ratio to 52 nights as that period bears to 12 months,

that case is to be treated as a special case for the purpose of the Child Support Order.

• (3) In a case where this regulation applies, the amount of child support maintenance which the non-resident parent is liable to pay the person with care of that qualifying child is the amount calculated in accordance with the provisions of Part I of Schedule 1 and decreased in accordance with this regulation.

• (4) First, there is to be a decrease according to the number of nights spent or to be spent by the qualifying child in the care of the authority during the period under consideration.

• (5) Where paragraph (2)(b) or (c) applies, the number of nights in the period under consideration shall be adjusted by the ratio which the period of 12 months bears to the period under consideration.

• (6) After any adjustment under paragraph (5), the amount of the decrease for one child is set out in the following Table—

Number of nights in care of an authority	Fraction to subtract
52-103	One-seventh
104-155	Two-sevenths
156-207	Three-sevenths
208-259	Four-sevenths
260-262	Five-sevenths

• (7) If the non-resident parent and the person with care have more than one qualifying child, the applicable decrease is the sum of the appropriate fractions in the Table divided by the number of such qualifying children.

• (8) In a case where the amount of child support maintenance which the non-resident parent is liable to pay in relation to the same person with care is to be decreased in accordance with the provisions of both this regulation and of paragraph 7 of Part I of Schedule 1, read with these Regulations, the applicable decrease is the sum of the appropriate fractions derived under those provisions.

• (9) If the application of this regulation would decrease the weekly amount of child support maintenance (or the aggregate of all such amounts) payable by the non-resident parent to less than the flat rate referred to in paragraph 4(1) of Schedule 1 (or in that sub-paragraph as modified by regulations under paragraph 10A of that Schedule), the non-resident parent is instead liable to pay child support maintenance at a rate equivalent to that rate, apportioned (if appropriate) in accordance with paragraph 6 of Schedule 1.

• (10) If the number of nights calculated for the purposes of applying the Table in paragraph (6) is 263 or more, the amount of child support maintenance payable by the non-resident parent in respect of the child in question is nil.

• (11) Where a qualifying child is a boarder at a boarding school or is an in-patient at a hospital, the qualifying child shall be treated as being in the care of an authority for any night that the authority would otherwise have been providing such care.

• (12) A child is in the care of an authority for any night in which that child is being looked after by the authority within the meaning of Article 25 of the Children Order[^f00056].

Care provided for relevant other child by an authority

53

• (1) Where a child, other than a qualifying child, is cared for in part or in full by an authority and the non-resident parent or the non-resident parent’s partner receives child benefit for that child the child is a relevant other child for the purposes of Schedule 1.

• (2) For the purposes of paragraph (1), where a person has made an election under section 11A(1) of the Social Security Administration (Northern Ireland) Act 1992 for payments of child benefit not to be made, that person is to be treated as receiving child benefit.

Child who is a boarder or an in-patient in hospital

54

• (1) Where the circumstances of the case are that—

• (a) a qualifying child is a boarder at a boarding school or is an in-patient in a hospital; and

• (b) by reason of those circumstances, the person who would otherwise provide day to day care is not doing so,

that case is to be treated as a special case for the purposes of the Child Support Order.

• (2) For the purposes of this case, Article 4(3)(b) is to be modified so that for the reference to the person who usually provides day to day care for the child there is substituted a reference to the person who would usually provide day to day care for that child but for the circumstances specified in paragraph (1).

PART 5 — VARIATIONS

CHAPTER 1 — GENERAL

Application for a variation

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• (1) Where an application for a variation is made other than in writing it is treated as made on the date on which the applicant notifies the Department that the applicant wishes to make such an application.

• (2) Where an application for a variation is made in writing it is treated as made on the date that the Department receives it.

• (3) Two or more applications for a variation with respect to the same maintenance calculation or application for a maintenance calculation may be considered together.

• (4) The Department may treat an application for a variation made on one ground as made on another ground if that other ground is more appropriate to the facts alleged in that case.

Rejection of an application following preliminary consideration

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• (1) The circumstances prescribed for the purposes of Article 28B(2)(c)[^f00057] are—

• (a) the applicant does not state a ground for variation or provide sufficient information to enable a ground to be identified;

• (b) although a ground is stated, the Department is satisfied that the application would not be agreed to because—

• (i) the facts alleged do not bring the case within the ground, or

• (ii) no facts are alleged that would support the ground or could reasonably form the basis of further enquiries;

• (c) a default maintenance decision is in force;

• (d) the non-resident parent is liable to pay a flat rate or nil rate because either the non-resident parent or partner is in receipt of a benefit listed in regulation 43(2);

• (e) in the case of an application made by the non-resident parent on the grounds mentioned in Chapter 2—

• (i) the amount of the expenses does not exceed the relevant threshold,

• (ii) the amount of maintenance for which the non-resident parent is liable is equal to or less than the flat rate referred to in paragraph 4(1) of Schedule 1 (or in that sub-paragraph as modified by regulations under paragraph 10A of that Schedule),

• (iii) the amount of the non-resident parent’s gross weekly income would exceed the capped amount after deducting special expenses, or

• (iv) the non-resident parent’s gross weekly income has been determined on the basis of regulation 41, or

• (f) in the case of an application on any of the grounds mentioned in Chapter 3 the amount of the non-resident parent’s gross weekly income (without taking that ground into account) is the capped amount.

• (2) The circumstances set out in paragraph (1) are circumstances prescribed for the purposes of Article 28F(3)(b)[^f00058] in which the Department must not agree to a variation.

Provision of information

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• (1) Where the Department has received an application for a variation it may request further information or evidence from the applicant to enable that application to be determined.

• (2) Any such information or evidence requested in accordance with paragraph (1) must be provided within 14 days after the date of notification of the request or such longer period as the Department is satisfied is reasonable in the circumstances of the case.

• (3) Where any information or evidence requested is not provided within the time specified in paragraph (2), the Department may, where able to do so, proceed to determine the application in the absence of the requested information or evidence.

Procedure in relation to a variation

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• (1) Where the Department has given the preliminary consideration to an application for a variation and not rejected it, it—

• (a) must give notice of the application to any other party informing them of the grounds on which the application has been made and any relevant information or evidence given by the applicant or obtained by the Department, except information or evidence falling within paragraph (5); and

• (b) may invite representations (which need not be in writing but must be in writing if in any case the Department so directs) from the other party on any matter relating to that application, to be submitted to the Department within 14 days after the date of notification or such longer period as the Department is satisfied is reasonable in the circumstances of the case.

• (2) The Department need not act in accordance with paragraph (1) if—

• (a) it is satisfied on the information or evidence available that the application would not be agreed to;

• (b) in the case of an application for a variation on the ground mentioned in regulation 68, the information from HMRC for the latest available tax year does not disclose unearned income exceeding the relevant threshold and the Department is not in possession of other information or evidence that would merit further enquiry; or

• (c) regulation 74 applies.

• (3) Where the Department receives representations from the other party—

• (a) it may, if it is satisfied that it is reasonable to do so, inform the applicant of the representations concerned (excluding material falling within paragraph (5)) and invite comments within 14 days or such longer period as the Department is satisfied is reasonable in the circumstances of the case; and

• (b) where the Department acts under sub-paragraph (a) it must not proceed to determine the application until such comments are received or the period referred to in that sub-paragraph has expired.

• (4) Where the Department has not received representations from the other party notified in accordance with paragraph (1) within the time specified in sub-paragraph (b) of that paragraph, it may in their absence proceed to agree (or not, as the case may be) to the variation.

• (5) The information or evidence referred to in paragraph (1)(a) is as follows—

• (a) details of the nature of the long-term illness or disability of the relevant other child which forms the basis of a variation application on the ground in regulation 63 where the applicant requests they should not be disclosed and the Department is satisfied that disclosure is not necessary in order to be able to determine the application;

• (b) medical evidence or medical advice which has not been disclosed to the applicant or the other party and which the Department considers would be harmful to the health of the applicant or that party if disclosed; or

• (c) the address of the other party or qualifying child, or any other information which could reasonably be expected to lead to that party or child being located, where the Department considers that there would be a risk of harm or undue distress to that other party or that child or any other children living with that other party if the address or information were disclosed.

Factors not taken into account for the purposes of Article 28F

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The following factors are not to be taken into account in determining whether it would be just and equitable to agree to a variation in any case—

• (a) the fact that the conception of the qualifying child was not planned by one or both of the parents;

• (b) whether the non-resident parent or the person with care of the qualifying child was responsible for the breakdown of the relationship between them;

• (c) the fact that the non-resident parent or the person with care of the qualifying child has formed a new relationship with a person who is not a parent of that child;

• (d) the existence of particular arrangements for contact with the qualifying child, including whether any arrangements made are being adhered to;

• (e) the income or assets of any person other than the non-resident parent;

• (f) the failure by a non-resident parent to make payments of child support maintenance, or to make payments under a maintenance order or a maintenance agreement; or

• (g) representations made by persons other than the parties.

Procedure on revision or supersession of a previously determined variation

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• (1) Subject to paragraph (2), where the Department has received an application under Article 18 or 19[^f00059] in connection with a previously determined variation which has effect on a maintenance calculation in force, regulations 57 to 59 apply in relation to that application as if it were an application for a variation that had not been rejected after preliminary consideration.

• (2) The Department need not act in accordance with regulation 58(1) if—

• (a) were the application to succeed, the decision as revised or superseded would be less advantageous to the applicant than the decision before it was so revised or superseded; or

• (b) it appears to the Department that representations of the other party would not be relevant to the decision.

Regular payments condition

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• (1) For the purposes of Article 28C(2)(b)[^f00060] the payments are those fixed by the interim maintenance decision or the maintenance calculation in force, as the case may be, adjusted to take account of the variation applied for by the non-resident parent as if that variation had been agreed.

• (2) The Department may refuse to consider the application for a variation where a regular payments condition has been imposed and the non-resident parent fails to make such payments, which are due and unpaid, within one month after being required to do so by the Department or such other period as the Department may in the particular case decide.

CHAPTER 2 — GROUNDS FOR VARIATION: SPECIAL EXPENSES

Contact costs

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• (1) Subject to the following provisions of this regulation and regulation 67, the following costs incurred or reasonably expected to be incurred by the non-resident parent, whether in respect of the non-resident parent or the qualifying child or both, for the purpose of maintaining contact with that child, constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B[^f00061]—

• (a) the cost of purchasing a ticket for travel;

• (b) the cost of purchasing fuel where travel is by a vehicle which is not carrying fare-paying passengers;

• (c) the taxi fare for a journey or part of a journey where the Department is satisfied that the disability or long-term illness of the non-resident parent or the qualifying child makes it impracticable for any other form of transport to be used for that journey or part of that journey;

• (d) the cost of car hire where the cost of the journey would be less in total than it would be if public transport or taxis or a combination of both were used;

• (e) where the Department considers a return journey on the same day is impracticable, or the established or intended pattern of contact with the child includes contact over two or more consecutive days, the cost of the non-resident parent’s or, as the case may be, the child’s accommodation for the number of nights the Department considers appropriate in the circumstances of the case; and

• (f) any minor incidental costs such as tolls or fees payable for the use of a particular road or bridge incurred in connection with such travel, including breakfast where it is included as part of the accommodation cost referred to in sub-paragraph (e).

• (2) The costs to which paragraph (1) applies include the cost of a person to travel with the non-resident parent or the qualifying child, if the Department is satisfied that the presence of another person on the journey, or part of the journey, is necessary including, but not limited to, where it is necessary because of the young age of the qualifying child or the disability or long-term illness of the non-resident parent or that child.

• (3) The costs referred to in paragraphs (1) and (2)—

• (a) are expenses for the purposes of paragraph 2(2) of Schedule 4B only to the extent that they are—

• (i) incurred in accordance with a set pattern as to frequency of contact between the non-resident parent and the qualifying child which has been established at or, where at the time of the variation application it has ceased, which had been established before, the time that the variation application is made, or

• (ii) based on an intended set pattern for such contact which the Department is satisfied has been agreed between the non-resident parent and the person with care of the qualifying child; and

• (b) are—

• (i) where sub-paragraph (a)(i) applies and such contact is continuing, calculated as an average weekly amount based on the expenses actually incurred during the period of 12 months, or such lesser period as the Department may consider appropriate in the circumstances of the case, ending immediately before the day from which a variation agreed on this ground would take effect,

• (ii) where sub-paragraph (a)(i) applies and such contact has ceased, calculated as an average weekly amount based on the expenses actually incurred during the period from the day from which a variation agreed on this ground would take effect to the last day on which the variation would take effect, or

• (iii) where sub-paragraph (a)(ii) applies, calculated as an average weekly amount based on anticipated costs during such period as the Department considers appropriate.

• (4) Where, at the date on which the variation application is made, the non-resident parent has received, is in receipt of, or will receive, any financial assistance, other than a loan, from any source to meet, wholly or in part, the costs of maintaining contact with a child as referred to in paragraph (1), only the amount of the costs referred to in that paragraph, after the deduction of the financial assistance, constitutes special expenses for the purposes of paragraph 2(2) of Schedule4B.

Illness or disability of relevant other child

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• (1) Subject to the following provisions of this regulation, expenses necessarily incurred by the non-resident parent in respect of the items listed in sub-paragraphs (a) to (m) due to the long-term illness or disability of a relevant other child constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B—

• (a) personal care and attendance;

• (b) personal communication needs;

• (c) mobility;

• (d) domestic help;

• (e) medical aids where these cannot be provided as part of health services;

• (f) heating;

• (g) clothing;

• (h) laundry requirements;

• (i) payments for food essential to comply with a diet recommended by a medical practitioner;

• (j) adaptations required to the non-resident parent’s home;

• (k) day care;

• (l) rehabilitation; or

• (m) respite care.

• (2) For the purposes of this regulation and regulation 62—

• (a) a person is “disabled” for a period in respect of which—

• (i) adult disability payment, armed forces independence payment , child disability payment , disability living allowance , Scottish adult disability living allowance or personal independence payment is paid to or in respect of that person,

• (ii) that person would receive disability living allowance , or the care component of child disability payment in accordance with regulation 11 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, if it were not for the fact that the person is a patient, though remaining part of the applicant’s family, ...

• (iii) that person is registered as blind in a register maintained by or on behalf of a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972[^f00062], ...

• (iv) that person would receive personal independence payment but for regulations under Article 91(1) of the Welfare Reform (Northern Ireland) Order 2015 (hospital in-patients), and remains part of the applicant’s family, ...

• (v) that person would receive adult disability payment but for regulation 28 (effect of admission to hospital on ongoing entitlement to Adult Disability Payment) of the Disability Assistance for Working Age People (Scotland) Regulations 2022, and remains part of the applicant’s family, or

• (vi) that person would receive Scottish adult disability living allowance but for regulation 23 (effect of admission to hospital on ongoing entitlement to Scottish adult disability living allowance) of the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025, and remains part of the applicant’s family,

and “disability” is to be construed accordingly;

• (aa) “armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;

• (ab) “child disability payment” has the meaning given in regulation 2 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021