The Child Support Departure Direction and Consequential Amendments Regulations 1996

Whereas a draft of this instrument was laid before Parliament in accordance with section 52(2) of the Child Support Act 1991 and approved by a resolution of each House of Parliament:

Now, therefore, the Secretary of State for Social Security, in exercise of the powers conferred by sections 14(3), 21, 28A(3), 28B(2)(b), 28C, 28E(5), 28F, 28G, 28I(4)(c), 42, 51, 52(4) and 54 of, and paragraph 5 of Schedule 1, paragraphs 2, 4, 6, 7 and 9 of Schedule 4A and Schedule 4B to the Child Support Act 1991 and of all other powers enabling him in that behalf, after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992, hereby makes the following Regulations:

PART I — GENERAL

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the Child Support Departure Direction and Consequential Amendments Regulations 1996 and shall come into force on 2nd December 1996.

• (2) In these Regulations, unless the context otherwise requires—

• “the Act" means the Child Support Act 1991;

• “the Appeal Regulations" means the Child Support Appeal Tribunals (Procedure) Regulations 1992 ;

• “applicant" has the same meaning as in Schedule 4B to the Act;

• “application" means, except in regulations 32A to 32G, an application for a departure direction;

• “Arrears Regulations" means the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations 1992 ;

• ...

• “Contributions and Benefits Act" means the Social Security Contributions and Benefits Act 1992 ;

• “Departure Direction Anticipatory Application Regulations" means the Child Support Departure Direction (Anticipatory Application) Regulations 1996 ;

• “departure direction application form" means the form provided by the Secretary of State in accordance with regulation 4(1);

• “designated authority” means— the Secretary of State;a person providing services to the Secretary of State;a local authority; ora person providing services to, or authorised to exercise any functions of, any such authority;

• “effective date" in relation to a departure direction means the date on which that direction takes effect;

• “income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance);

• “Information, Evidence and Disclosure Regulations" means the Child Support (Information, Evidence and Disclosure) Regulations 1992 ;

• “Maintenance Arrangements and Jurisdiction Regulations" means the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 ;

• “Maintenance Assessment Procedure Regulations" means the Child Support (Maintenance Assessment Procedure) Regulations 1992 ;

• “Maintenance Assessments and Special Cases Regulations" means the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ;

• “maintenance period" has the same meaning as in regulation 33 of the Maintenance Assessment Procedure Regulations;

• “non-applicant" means—where the application has been made by a person with care, the absent parent;where the application has been made by an absent parent, the person with care;

• “official error" means an error made by– an officer of the Department of Social Security acting as such which no person outside that Department caused or to which no person outside that Department materially contributed; a person employed by a designated authority acting on behalf of the authority, which no person outside that authority caused or to which no person outside that authority materially contributed, but excludes any error of law which is only shown to have been an error by virtue of a subsequent decision of the Upper Tribunal or the court;

• “partner" has the same meaning as in paragraph (2) of regulation 1 of the Maintenance Assessments and Special Cases Regulations ;

• “relevant person" means—an absent parent, or a person who is treated as an absent parent under regulation 20 of the Maintenance Assessments and Special Cases Regulations (persons treated as absent parents), whose liability under a maintenance assessment may be affected by any departure direction given following an application;a person with care, or a child to whom section 7 of the Act applies, where the amount of child support maintenance payable under a maintenance assessment relevant to that person with care or that child may be affected by any departure direction given following an application;

• “relevant universal credit” means, in relation to an absent parent or parent with care, an award of universal credit made to the parent in question, where the award is calculated on the basis that the parent does not have any earned income;

• “universal credit” means universal credit under Part 1 of the Welfare Reform Act 2012

• (2A) For the purposes of the definition of “relevant universal credit” in paragraph (2), “earned income” has the meaning given in regulation 52 of the Universal Credit Regulations 2013.

• (3) In these Regulations, unless the context otherwise requires, a reference—

• (a) to the Schedule, is to the Schedule to these Regulations;

• (b) to a numbered regulation is to the regulation in these Regulations bearing that number;

• (c) in a regulation or the Schedule to a numbered paragraph is to the paragraph in that regulation or the Schedule bearing that number;

• (d) in a paragraph to a lettered or numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter or number.

Documents

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• (1) Except where express provision is made to the contrary, where, under any provision of these Regulations—

• (a) any document is given or sent to the Secretary of State, that document shall, subject to paragraph (2), be treated as having been so given or sent on the date it is received by the Secretary of State; and

• (b) any document is given or sent to any other person, that document shall, if sent by post to that person’s last known or notified address, and subject to paragraph (3), be treated as having been given or sent on the second day after the day of posting, excluding any Sunday or any day which is a Bank Holiday in England, Wales, Scotland or Northern Ireland under the Banking and Financial Dealings Act 1971 .

• (2) The Secretary of State may treat any document given or sent to him as given or sent on such day, earlier than the day it was received by him, as he may determine, if he is satisfied that there was unavoidable delay in his receiving the document in question.

• (3) Where, by any provision of these Regulations, and in relation to a particular application, notice or notification—

• (a) more than one document is required to be given or sent to a person, and more than one such document is sent by post to that person but not all the documents are posted on the same day; or

• (b) documents are required to be given or sent to more than one person, and not all such documents are posted on the same day,

all those documents shall be treated as having been posted on the later or, as the case may be, the latest day of posting.

Determination of amounts

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• (1) Where any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount and, except where the context otherwise requires, any reference to such an amount shall be construed accordingly.

• (2) Where any calculation made under these Regulations results in a fraction of a penny that fraction shall be treated as a penny if it is either one half or exceeds one half and shall be otherwise disregarded.

PART II — PROCEDURE ON AN APPLICATION FOR A DEPARTURE DIRECTION AND PRELIMINARY CONSIDERATION

Application for a departure direction

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• (1) Every application shall be made in writing on a form (a “departure direction application form") provided by the Secretary of State, or in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case.

• (2) Departure direction application forms shall be supplied without charge by such persons as the Secretary of State authorises for that purpose.

• (3) Every application shall be given or sent to the Secretary of State or to such persons as he may authorise for that purpose.

• (4) Where an application is defective at the date when it is received, or has been made in writing but not on the departure direction application form provided by the Secretary of State, the Secretary of State may refer that application to the person who made it or, as the case may be, supply him with a departure direction application form.

• (5) In a case to which paragraph (4) applies, if the departure direction application form is received by the Secretary of State properly completed—

• (a) within the specified period, he shall treat the application as if it had been duly made in the first instance;

• (b) outside the specified period, unless he is satisfied that the delay has been unavoidable, he shall treat the application as a fresh application made on the date upon which the properly completed departure direction application form was received.

• (6) An application which is made on a departure direction application form is, for the purposes of paragraph (5), properly completed if completed in accordance with the instructions on the form and defective if not so completed.

• (7) In a case to which paragraph (4) applies, the specified period for the purposes of paragraph (5) shall be the period of 14 days commencing with the date upon which, in accordance with paragraph (4), the application is referred to the person who made the defective application or a departure direction application form is given or sent to the person who made a written application but not on a departure direction application form.

• (8) For the purposes of paragraph (7), the provisions of regulation 2 shall apply to an application referred to in paragraph (4).

• (9) A person applying for a departure direction may authorise a representative, whether or not legally qualified, to receive notices and other documents on his behalf, and to act on his behalf in relation to an application.

• (10) Where a person has, under paragraph (9), authorised a representative who is not legally qualified, he shall confirm that authorisation in writing, or as otherwise required, to the Secretary of State, unless such authorisation has already been approved by the Secretary of State under regulation 53 of the Maintenance Assessment Procedure Regulations (authorisation of representative).

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment or withdrawal of application

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A person who has made an application may amend or withdraw his application by notice in writing to the Secretary of State at any time prior to a determination being made in relation to that application.

Provision of information

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• (1) Where an application has been made, the Secretary of State may request further information or evidence from the applicant to enable that application to be determined.

• (2) Any information or evidence requested by the Secretary of State in accordance with paragraph (1) shall be given within one month, or such longer period as the Secretary of State is satisfied is reasonable in the circumstances of the case, of the request for such information or evidence having been given or sent.

• (3) Where the time limit specified in paragraph (2) is not complied with, the Secretary of State may determine that application, in the absence of that information or evidence.

Rejection of application on completion of a preliminary consideration

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• (1) The Secretary of State may, on completing a preliminary consideration of an application, reject that application on the ground set out in section 28B(2)(b) of the Act if it appears to him that the difference between the current amount and the revised amount is less than £1.00.

• (2) Where an application has been rejected in accordance with paragraph (1), the Secretary of State shall, as soon as reasonably practicable, give notice of that rejection to the relevant persons.

Procedure in relation to the determination of an application

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• (1) Subject to paragraph (4), where an application has not failed within the meaning of section 28D of the Act, the Secretary of State shall, unless he is satisfied on the information or evidence available to him that a departure direction is unlikely to be given—

• (a) give notice of that application to the relevant persons other than the applicant;

• (b) send to them details of the grounds on which the application has been made and any relevant information or evidence the applicant has given, except details, information or evidence falling within paragraph (2);

• (c) invite representations in writing from the relevant persons other than the applicant on any matter relating to that application; and

• (d) set out the provisions of paragraphs (2), (5) and (6) in relation to such representations.

• (2) The details, information or evidence referred to in paragraphs (1)(b), (6) and (7) are—

• (a) medical evidence or medical advice that has not been disclosed to the applicant or a relevant person and which the Secretary of State considers would be harmful to the health of the applicant or that relevant person if disclosed to him;

• (b) the address of a relevant person, or of any child in relation to whom the assessment was made in respect of which the application has been made, or any other information which could reasonably be expected to lead to that person or that child being located, where that person has not agreed to disclosure of that address or that information, it is not known to the other party to that assessment and—

• (i) the Secretary of State is satisfied that that address or that information is not necessary for the determination of that application; or

• (ii) the Secretary of State is satisfied that that address or that information is necessary for the determination of that application and that there would be a risk of harm or undue distress to that person or that child if disclosure were made.

• (3) Subject to paragraph (4), the notice referred to in paragraph (1)(a) shall be given as soon as reasonably practicable after—

• (a) completion of the preliminary consideration of that application under section 28B of the Act; or

• (b) where the Secretary of State has requested information or evidence under regulation 6, receipt of that information or evidence or the expiry of the period ... referred to in regulation 6(2).

• (4) The provisions of paragraphs (1) and (3) shall not apply where information or evidence requested in accordance with regulation 6 has not been received by the Secretary of State within the period specified in paragraph (2) of that regulation and the Secretary of State is satisfied on the information or evidence available to him that a departure direction should not be given.

• (4A) Where the provisions of paragraph (1) have not been complied with because the Secretary of State was satisfied on the information or evidence available to him that a departure direction was unlikely to be given, but on further consideration of the application he is minded to give a departure direction in that case, he shall, before doing so, comply with the provisions of this regulation.

• (5) Where the Secretary of State does not receive written representations from a relevant person within 14 days of the date on which representations were invited under paragraph (1), (6) or (7) he may, in the absence of written representations from that person, proceed to determine the application.

• (6) The Secretary of State may, if he considers it reasonable to do so, send to the applicant a copy of any written representations made following an invitation under paragraph (1)(c), whether or not they were received within the time specified in paragraph (5), except to the extent that the representations contain information or evidence which falls within paragraph (2), and invite him to submit representations in writing on any matters contained in those representations.

• (7) Where any information or evidence requested by the Secretary of State under regulation 6 is received after notification has been given under paragraph (1), the Secretary of State may, if he considers it reasonable to do so and except where that information or evidence falls within paragraph (2), send a copy of such information or evidence to the relevant persons and invite them to submit representations in writing on that information or evidence.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) Where the Secretary of State has determined an application he shall, as soon as is reasonably practicable—

• (a) notify the relevant persons of that determination;

• (b) where a departure direction has been given, make a decision in accordance with regulation 17(2) or 20(2)(c) of the Maintenance Assessment Procedure Regulations.

• (10) A notification under paragraph (9)(a) shall set out—

• (a) the reasons for that determination;

• (b) where a departure direction has been given, the basis on which the amount of child support maintenance is to be fixed by any assessment made in consequence of that direction.

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Departure directions and persons in receipt of income support or income-based jobseeker’s allowance

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• (1) The costs referred to in regulations 13 to 18 shall not constitute special expenses where they are or were incurred—

• (a) by an absent parent to or in respect of whom income support, state pension credit, income-related employment and support allowance, income-based jobseeker’s allowance or relevant universal credit is or was in payment at the date on which any departure direction given in response to that application would take effect;