The Child Support Maintenance Calculation Regulations 2012

Made: 20th October 2012

Coming into force in accordance with regulation 1

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 3(3), 5(3), 12(4) and (5), 14(1) and (1A), 16(1), (4) and (6), 17(2), (3) and (5), 20(4) 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), 42, 51(1) and (2), 52(4), 54 and 55(1)(b) 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), 4, 5 and 6 of Schedule 4B to, the Child Support Act 1991 .

A draft of this instrument was laid before and approved by a resolution of each House of Parliament in accordance with section 52(2) and (2A) of that Act .

PART 1 — GENERAL

Citation and commencement

1

These Regulations may be cited as the Child Support Maintenance Calculation Regulations 2012 and come into force in relation to a particular case on the day on which paragraph 2 of Schedule 4 to the Child Maintenance and Other Payments Act 2008 (calculation by reference to gross weekly income) comes into force in relation to that type of case.

Interpretation

2

In these Regulations—

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

• “contribution-based jobseeker’s allowance” means an allowance under the Jobseekers Act 1995 as amended by the provisions of Part 1 of Schedule 14 to the Welfare Reform Act 2012 that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers Act 1995 as that Act 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 14, to the Welfare Reform Act 2012 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;;

• “capped amount” means the figure specified in paragraph 10(3) of Schedule 1 to the 1991 Act (or in that sub-paragraph as modified by regulations under paragraph 10A of Schedule 1 to the 1991 Act );

• “couple” has the meaning given by paragraph 10C(5) of Schedule 1 to the 1991 Act;

• “current income” has the meaning given in regulation 37;

• “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000;

• “the flat rate” means the flat rate of child support maintenance payable under paragraph 4 of Schedule 1 to the 1991 Act;

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

• “historic income” has the meaning given in regulation 35;

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

• “the HMRC figure” has the meaning given in regulation 36;

• “income support” means support to which a person is entitled under section 124 of the Social Security Contributions and Benefits Act 1992 ;

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

• “ITEPA” means the Income Tax (Earnings and Pensions) Act 2003 ;

• “ITTOIA” means the Income Tax (Trading and Other Income) Act 2005 ;

• “local authority” means, in relation to England, a county council, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly and, in relation to Wales, a county council or a county borough council and, in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

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

• “the nil rate” means the nil rate of child support maintenance payable under paragraph 5 of Schedule 1 to the 1991 Act;

• “partner” has the meaning given by paragraph 10C(4) of Schedule 1 to the 1991 Act;

• “party”, in relation to a maintenance calculation in force or an application for a maintenance calculation, means the non-resident parent, the person with care and, in the case of an application by a child under section 7 of the 1991 Act or a maintenance calculation made in response to such an application, the child in question;

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

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

• “the reduced rate” means the reduced rate of child support maintenance payable under paragraph 3 of Schedule 1 to the 1991 Act;

• “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 ;

• “supersession decision” means a decision made under section 17 of the 1991 Act superseding a decision mentioned in subsection (1) of that section;

• “state pension credit” means the benefit payable in accordance with section 1 (entitlement) of the State Pension Credit Act 2002 ;

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

• “Tribunal Procedure Rules” means the Tribunal Procedure (First-tier Tribunal) (Social (Entitlement Chamber) Rules 2008 ; and

• “UK social security pension” means a pension to which section 577 of ITEPA applies .

Meaning of “calculation decision”

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In these Regulations “calculation decision” means a decision of the Secretary of State under section 11 (the maintenance calculation), section 16 (revision) or section 17 (supersession) of the 1991 Act determining the amount of child support maintenance to be fixed in accordance with Part 1 of Schedule 1 to that Act.

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 Secretary of State requests information from HMRC for the purposes of regulation 35 (historic income) or regulation 69 (non-resident parent with unearned income), 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 Secretary of State, that document is to be treated as having been given or sent on the date of receipt by the Secretary of State.

• (2) Where the Secretary of State sends any written notification or any document by 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 Secretary of State 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

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• (1) A person may authorise a representative, whether or not legally qualified, to receive notices and other documents on their behalf and to act on their behalf in relation to the making of applications and the supply of information under any provision of the 1991 Act 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 the authorisation in writing to the Secretary of State.

PART 2 — APPLICATION FOR A MAINTENANCE CALCULATION

Applications under section 4 or 7 of the 1991 Act

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• (1) The Secretary of State 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 the Secretary of State 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 Secretary of State in the required form and the information required under paragraph (1) has been provided.

Multiple applications

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

• (2) In making a determination under paragraph (1) the Secretary of State must have regard to the following order of priority—

• (a) an application by a person with care or a non-resident parent has priority over an application by a child under section 7 of the 1991 Act ;

• (b) otherwise an earlier application has priority over one made later.

• (3) Where—

• (a) in relation to an application under section 4 or 7 of the 1991 Act , both parents of a qualifying child are named as non-resident parents; or

• (b) an application is made under section 4 of that Act by both non-resident parents of a qualifying child,

the Secretary of State 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

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• (1) Where an application has been made under section 4 or 7 of the 1991 Act, and the requirements in paragraph (3) are satisfied, the Secretary of State must... give written notice to the non-resident parent—

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

• (b) where relevant, advising the non-resident parent of the power of the Secretary of State 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 Schedule 1.

• (3) The requirements referred to in paragraph (1) are—

• (a) the address of the non-resident parent in relation to the application has been ascertained and verified; and

• (b) any application fee payable under regulation 3(1) (the application fee) of the Child Support Fees Regulations 2014 has been paid or waived in accordance with those Regulations.

• (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 5 (maintenance calculations: transfer of cases to new rules) to the 2008 Act), as a result of that applicant's existing case being related to an application made under section 4(1) or 7(1) of the 1991 Act, 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 5 to the 2008 Act), in circumstances where the existing case is not related to an application made under section 4(1) or 7(1) of the 1991 Act; 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 requirements in paragraph (3) are 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 requirements in paragraph (3) are 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) For the purposes of paragraphs (5) to (8) and this paragraph—

• (a) “the 2008 Act” means the Child Maintenance and Other Payments Act 2008;

• (b) “existing case” has the meaning given in paragraph 1(2) of Schedule 5 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 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 1991 Act.

PART 3 — DECISION MAKING

CHAPTER 1 — MAKING THE MAINTENANCE CALCULATION

Initial effective date

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• (1) The effective date of a decision under section 11 of the 1991 Act (“the initial effective date”) 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 post to the last known postal address of the non-resident parent; or

• (c) by electronic communication in accordance with Schedule 1, 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 section 28A(3) of the 1991 Act (that is before the Secretary of State has reached a decision under section 11 or 12(1) of the Act) 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 section 28A(3) of the 1991 Act is a ground in regulation 65 (prior debts) or 67 (payments in respect of certain mortgages, loans or insurance policies), and

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

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 (notification of a maintenance calculation) of the amount of their liability to pay child support maintenance.

• (3) Where the ground for the variation applied for under section 28A(3) of the 1991 Act 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

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• (1) A decision to which section 16(1A) of the 1991 Act applies may be revised by the Secretary of State—

• (a) if the Secretary of State receives an application for the revision of a decision under either section 16 or section 28G (application for a variation where a maintenance calculation is in force) of that Act—

• (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 Secretary of State 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;