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The Social Security (Northern Ireland) Order 1990

Status:

This is the original version (as it was originally made).

Liability to maintain dependants

10.—(1) After Article 25 of the 1986 Order (recovery of expenditure on benefit from person liable for maintenance) there shall be inserted the following Articles—

Recovery of expenditure on income support: additional amounts and transfer of orders

25A.(1) In any case where—

(a)the claim for income support referred to in paragraph (1) of Article 25 is or was made by the parent of one or more children in respect of both himself and those children, and

(b)the other parent is liable to maintain those children but, by virtue of not being the claimant’s husband or wife, is not liable to maintain the claimant,

the sum which the court may order that other parent to pay under paragraph (4) of that Article may include an amount, determined in accordance with regulations, in respect of any income support paid to or for the claimant by virtue of such provisions as may be prescribed.

(2) Where the sum which a court orders a person to pay under Article 25(4) includes by virtue of paragraph (1) an amount (in this Article referred to as a “personal allowance element”) in respect of income support by virtue of paragraph 1(2) of Schedule 2 to the Income Support (General) Regulations (Northern Ireland) 1987(1) (personal allowance for lone parent) the order shall separately identify the amount of the personal allowance element.

(3) In any case where—

(a)there is in force an order under paragraph (4) of Article 25 made against a person (“the liable parent”) who is the parent of one or more children, in respect of the other parent or the children, and

(b)payments under the order fall to be made to the Department by virtue of paragraph (6)(a) of that Article, and

(c)that other parent (“the dependent parent”) ceases to claim income support,

the Department may, by giving notice in writing to the court which made the order and to the liable parent and the dependent parent, transfer to the dependent parent the right to receive the payments under the order, exclusive of any personal allowance element, and to exercise the relevant rights in relation to the order, except so far as relating to that element.

(4) Notice under paragraph (3) shall not be given (and if purportedly given, shall be of no effect) at a time when there is in force a maintenance order made against the liable parent—

(a)in favour of the dependent parent or one or more of the children; or

(b)in favour of some other person for the benefit of the dependent parent or one or more of the children;

and if such a maintenance order is made at any time after notice under that paragraph has been given, the order under Article 25(4) shall cease to have effect.

(5) Except as provided by paragraphs (7) and (8), where the Department gives notice under paragraph (3), it shall cease to be entitled—

(a)to receive any payment under the order in respect of any personal allowance element, or

(b)to exercise the relevant rights, so far as relating to any such element,

notwithstanding that the dependent parent does not become entitled to receive any payment in respect of that element or to exercise the relevant rights so far as so relating.

(6) If, in a case where the Department gives notice under paragraph (3), a payment under the order is or has been made to the Department wholly or partly in respect of the whole or any part of the period beginning with the day on which the transfer takes effect and ending with the day on which the notice under paragraph (3) is given to the liable parent, the Department shall—

(a)repay to or for the liable parent so much of the payment as is referable to any personal allowance element in respect of that period or, as the case may be, the part of it in question; and

(b)pay to or for the dependent parent so much of any remaining balance of the payment as is referable to that period or part;

and a payment under sub-paragraph (b) shall be taken to discharge, to that extent, the liability of the liable parent to the dependent parent under the order in respect of that period or part.

(7) If, in a case where the Department has given notice under paragraph (3), the dependent parent makes a further claim for income support, then—

(a)the Department may, by giving a further notice in writing to the court which made the order and to the liable parent and the dependent parent, transfer back from the dependent parent to the Department the right to receive the payments and to exercise the relevant rights; and

(b)that transfer shall revive the Department’s right to receive payment under the order in respect of any personal allowance element and to exercise the relevant rights so far as relating to any such element.

(8) A transfer under paragraph (3) or (7) does not transfer or otherwise affect the right of any person—

(a)to receive a payment which fell due to him at a time before the transfer took effect; or

(b)to exercise the relevant rights in relation to any such payment;

and, where notice is given under paragraph (3), paragraph (5) does not deprive the Department of its right to receive such a payment in respect of any personal allowance element or to exercise the relevant rights in relation to such a payment.

(9) For the purposes of this Article—

(a)a transfer under paragraph (3) takes effect on the day on which the dependent parent ceases to be in receipt of income support in consequence of the cessation referred to in sub-paragraph (c) of that paragraph, and

(b)a transfer under paragraph (7) takes effect on—

(i)the first day in respect of which the dependent parent receives income support after the transfer under paragraph (3) took effect, or

(ii)such later day as may be specified for the purpose in the notice under paragraph (7),

irrespective of the day on which notice under the paragraph in question is given.

(10) Section 24(1) of the Interpretation Act (Northern Ireland) 1954 as it applies to the giving of a notice under paragraph (3) or (7), shall have effect as if the word “registering” were omitted.

(11) In this Article—

“child” means a person under the age of 16, notwithstanding Article 27(3)(d);

“court” shall be construed in accordance with Article 25;

“maintenance order” means an order for the making of periodical payments or the payment of a lump sum under any statutory provision prescribed for the purposes of this paragraph;

“the relevant rights”, in relation to an order under Article 25(4), means the right to bring any proceedings, take any steps or do any other thing under or in relation to the order which the Department could have brought, taken or done apart from any transfer under this Article.

Reduction of expenditure on income support: certain maintenance orders to be enforceable by the Department

25B.(1) This Article applies where—

(a)a person (“the claimant”) who is the parent of one or more children is in receipt of income support either in respect of those children or in respect of both himself and those children; and

(b)there is in force a maintenance order made against the other parent (“the liable person”)—

(i)in favour of the claimant or one or more of the children; or

(ii)in favour of some other person for the benefit of the claimant or one or more of the children;

and in this Article “the primary recipient” means the person in whose favour that maintenance order was made.

(2) If, in a case where this Article applies, the liable person fails to comply with any of the terms of the maintenance order—

(a)the Department may bring any proceedings or take any other steps to enforce the order that could have been brought or taken by or on behalf of the primary recipient; and

(b)any court before which proceedings are brought by the Department by virtue of sub-paragraph (a) shall have the same powers in connection with those proceedings as it would have had if they had been brought by the primary recipient.

(3) The Department’s powers under this Article are exercisable at the Department’s discretion and whether or not the primaryrecipient or any other person consents to their exercise; but any sums recovered by virtue of this Article shall be payable to or for the primary recipient, as if the proceedings or steps in question had been brought or taken by him or on his behalf.

(4) The powers conferred on the Department by paragraph (2)(a) include power—

(a)to apply for the registration of the maintenance order under—

(i)section 17 of the Maintenance Orders Act 1950;

(ii)section 11 of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966; or

(iii)the Civil Jurisdiction and Judgments Act 1982; and

(b)to make an application under section 2 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (application for enforcement in reciprocating country).

(5) Where this Article applies, the prescribed person shall in prescribed circumstances give the Department notice of any application—

(a)to alter, vary, suspend, discharge, revoke, revive, or enforce the maintenance order in question; or

(b)to remit arrears under that maintenance order;

and the Department shall be entitled to appear and be heard on the application.

(6) Where by virtue of this Article, the Department commences any proceedings to enforce a maintenance order, the Department shall, in relation to those proceedings, be treated for the purposes of any statutory provision relating to maintenance orders as if it were a person entitled to payment under the maintenance order in question (but shall not thereby become entitled to any such payment).

(7) Where, in any proceedings under this Article, the court makes an order for the whole or any part of the arrears due under the maintenance order in question to be paid as a lump sum, the Department shall inform the Incorporated Law Society of Northern Ireland of the amount of that lump sum if the Department knows—

(a)that the primary recipient received legal aid under Part II of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 in connection with the proceedings in which the maintenance order was made; and

(b)that a sum remains unpaid on account of the contribution required of the primary recipient under Article 12 of that Order in respect of those proceedings.

(8) In this Article “maintenance order” has the same meaning as it has in Article 25A, but does not include any such order for the payment of a lump sum..

(2) In Article 27 of the 1986 Order, in paragraph (3) (definitions for purposes of Articles 25, 26 and 27) after the words “Articles 25” there shall be inserted “, 25A, 25B”.

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