Child Maintenance and Other Payments Act 2008

Part 1 — The Child Maintenance and Enforcement Commission

Registered maintenance agreements: Scotland

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Objectives of the Commission

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Functions of the Commission: general

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Promotion of child maintenance

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Provision of information and guidance

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Fees

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• (1) The Secretary of State may by regulations make provision about the charging of fees by the Secretary of State in connection with the exercise of its functions.

• (2) Regulations under subsection (1) may, in particular, make provision—

• (a) about when a fee may be charged;

• (b) about the amount which may be charged;

• (c) for the supply of information needed for the purpose of determining the amount which may be charged;

• (d) about who is liable to pay any fee charged(including provision for the apportionment of fees and the matters to be taken into account in determining an apportionment);

• (e) about when any fee charged is payable;

• (f) about the recovery of fees charged;

• (g) about ..., reduction or repayment of fees.

• (h) about waiver of fees (including the matters to be taken into account in determining a waiver).

• (3) The power conferred by subsection (1) includes power to make provision for the charging of fees which are not related to costs.

• (3A) The Secretary of State must review the effect of the first regulations made under subsection (1).

• (3B) The review must take place before the end of the period of 30 months beginning with the day on which those regulations come into force.

• (3C) After the review, the Secretary of State must make and publish a report containing—

• (a) the conclusions of the review, and

• (b) a statement as to what the Secretary of State proposes to do in view of those conclusions.

• (3D) The report must be laid before Parliament by the Secretary of State.

• (4) The Secretary of State may by regulations provide that the provisions of the Child Support Act 1991 (c. 48) with respect to—

• (a) the collection of child support maintenance,

• (b) the enforcement of any obligation to pay child support maintenance,

shall apply equally (with any necessary modifications) to fees payable by virtue of regulations under subsection (1).

• (5) The Secretary of State may by regulations make provision for a person affected by a decision of the Secretary of State under regulations under subsection (1) to have a right of appeal against the decision to the First-tier Tribunal.

• (6) Subsections (3) to (5), (7) and (8) of section 20 of the Child Support Act 1991 (appeals to First-tier Tribunal) apply to appeals under regulations under subsection (5) as they apply to appeals under that section.

• (7) The Secretary of State shall pay into the Consolidated Fund any amount which the Secretary of State receives in respect of fees charged by the Secretary of State under regulations under this section.

Agency arrangements and provision of services

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Contracting out

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• (1) Any function of the Secretary of State relating to child support may be exercised by, or by employees of, such person (if any) as the Secretary of State may authorise for the purpose.

• (2) An authorisation given by virtue of subsection (1) may authorise the exercise of the function concerned—

• (a) either wholly or to such extent as may be specified in the authorisation,

• (b) either generally or in such cases or areas as may be so specified, and

• (c) either unconditionally or subject to the fulfilment of such conditions as may be so specified.

• (3) An authorisation given by virtue of subsection (1)—

• (a) may specify its duration,

• (b) may be revoked at any time by the Secretary of State, and

• (c) shall not prevent the Secretary of State or any other person from exercising the function to which the authorisation relates.

• (4) Where a person is authorised to exercise any function by virtue of subsection (1), anything done or omitted to be done by or in relation to that person (or an employee of that person) in, or in connection with, the exercise or purported exercise of the function shall be treated for all purposes as done or omitted to be done by or in relation to the Secretary of State.

• (5) Subsection (4) shall not apply—

• (a) for the purposes of so much of any contract made between the authorised person and the Secretary of State as relates to the exercise of the function, or

• (b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by the authorised person (or an employee of that person).

• (6) Where—

• (a) a person is authorised to exercise any function by virtue of subsection (1), and

• (b) the authorisation is revoked at a time when a relevant contract is subsisting,

the authorised person shall be entitled to treat the relevant contract as repudiated by the Secretary of State(and not as frustrated by reason of the revocation).

• (7) In subsection (6), the reference to a relevant contract is to so much of any contract made between the authorised person and the Secretary of State as relates to the exercise of the function.

Annual report to Secretary of State

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Directions and guidance

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Review of the status of the Commission

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Supplementary provisions

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Part 2 — Transfer of child support functions etc. to the Commission

Transfer of child support functions

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Transfer of property, rights and liabilities

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Part 3 — Child support etc.

Removal of compulsion for benefit claimants

Repeal of sections 6 and 46

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The following provisions of the Child Support Act 1991 (c. 48) cease to have effect—

• (a) section 6 (under which the claim of benefit by or in respect of a parent with care, or the payment of benefit to or in respect of such a person, triggers an application by her or him for child support maintenance), and

• (b) section 46 (which enables the Secretary of State in certain circumstances to reduce the benefit of a person in relation to whom section 6 triggers the making of an application for child support maintenance).

Maintenance calculations

Changes to the calculation of maintenance

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Schedule 4 (which makes various changes to the provisions about the calculation of maintenance) has effect.

Power to regulate supersession

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In section 17 of the Child Support Act 1991 (c. 48) (decisions superseding earlier decisions), for subsections (2) and (3) substitute—

(2) The Secretary of State may by regulations make provision with respect to the exercise of the power under subsection (1). (3) Regulations under subsection (2) may, in particular— (a) make provision about the cases and circumstances in which the power under subsection (1) is exercisable, including provision restricting the exercise of that power by virtue of change of circumstance; (b) make provision with respect to the consideration by the Secretary of State, when acting under subsection (1), of any issue which has not led to the Secretary of State's so acting; (c) make provision with respect to procedure in relation to the exercise of the power under subsection (1).

Determination of applications for a variation

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• (1) Section 28D of the Child Support Act 1991 is amended as follows.

• (2) After subsection (2) insert—

(2A) Subsection (2B) applies if— (a) the application for a variation is made by the person with care or (in the case of an application for a maintenance calculation under section 7) the person with care or the child concerned, and (b) it appears to the Secretary of State that consideration of further information or evidence may affect the decision under subsection (1)(a) whether or not to agree to a variation. (2B) Before making the decision under subsection (1)(a) the Secretary of State must— (a) consider any such further information or evidence that is available to the Secretary of State, and (b) where necessary, take such steps as the Secretary of State considers appropriate to obtain any such further information or evidence.

• (3) In subsection (3), after “duties” insert “ , apart from the duty under subsection (2B) ”.

Transfer of cases to new rules

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Schedule 5 (which makes provision for, and in connection with, enabling the Commission to require existing cases to transfer to the new maintenance calculation rules or to leave the statutory scheme, so far as future accrual of liability is concerned) has effect.

Collection and enforcement

Use of deduction from earnings orders as basic method of payment

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In section 29 of the Child Support Act 1991 (c. 48) (under which payments of child support maintenance are to be made in accordance with regulations) at the end insert—

(4) If the regulations include provision for payment by means of deduction in accordance with an order under section 31, they must make provision— (a) for that method of payment not to be used in any case where there is good reason not to use it; and (b) for the person against whom the order under section 31 would be made to have a right of appeal to a magistrates' court (or, in Scotland, to the sheriff) against a decision that the exclusion required by paragraph (a) does not apply. (5) On an appeal under regulations made under subsection (4)(b) the court or (as the case may be) the sheriff shall not question the maintenance calculation by reference to which the order under section 31 would be made. (6) Regulations under subsection (4)(b) may include— (a) provision with respect to the period within which a right of appeal under the regulations may be exercised; (b) provision with respect to the powers of a magistrates' court (or, in Scotland, of the sheriff) in relation to an appeal under the regulations. (7) If the regulations include provision for payment by means of deduction in accordance with an order under section 31, they may make provision— (a) prescribing matters which are, or are not, to be taken into account in determining whether there is good reason not to use that method of payment; (b) prescribing circumstances in which good reason not to use that method of payment is, or is not, to be regarded as existing.

Deduction from earnings orders: the liable person’s earnings

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In section 31 of the Child Support Act 1991 (deduction from earnings orders), for subsection (8) substitute—

(8) In this section and section 32 “earnings” means (subject to such exceptions as may be prescribed) any sums payable to a person which fall within one or more of the following paragraphs— (a) sums payable by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service); (b) periodical payments by way of pension (including an annuity payable for the purpose of providing a pension), whether or not in respect of past services; (c) periodical payments by way of compensation for the loss, abolition or relinquishment, or diminution in the emoluments, of any office or employment; (d) sums payable by way of statutory sick pay. (9) For the purposes of this section and section 32 any person who (as a principal and not as a servant or agent) pays to the liable person any earnings is to be treated as having the liable person in his employment; and the following are to be read accordingly— (a) in this section and section 32, references to the liable person's employer; and (b) in section 32(3), “employment”, “employed” and “re-employed”.

Orders for regular deductions from accounts

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After section 32 of the Child Support Act 1991 (c. 48) insert—