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The Child Support (Northern Ireland) Order 1995

Status:

This is the original version (as it was originally made).

SCHEDULES

Article 3(2).

SCHEDULE 1Departure Directions

The following Schedule shall be inserted in the Order of 1991, after Schedule 4—

Schedule 4ADeparture Directions

Interpretation

1.  In this Schedule—

“departure application” means an application for a departure direction;

“regulations” means regulations made by the Department;

“review” means a review under Article 18, 19, 20 or 21.

Applications for departure directions

2.  Regulations may make provision—

(a)as to the procedure to be followed in considering a departure application;

(b)as to the procedure to be followed when a departure application is referred to a child support appeal tribunal under Article 28D(1)(b);

(c)for the giving of a direction by the Department as to the order in which, in a particular case, a departure application and a review are to be dealt with;

(d)for the reconsideration of a departure application in a case where further information becomes available to the Department after the application has been determined.

Completion of preliminary consideration

3.  Regulations may provide for determining when the preliminary consideration of a departure application is to be taken to have been completed.

Information

4.(1) Regulations may make provision for the use for any purpose of this Order of—

(a)information acquired by the Department in connection with an application for, or the making of, a departure direction;

(b)information acquired by a child support officer or the Department in connection with an application for, or the making of, a maintenance assessment.

(2) If any information which is required (by regulations under this Order) to be furnished to the Department in connection with a departure application has not been furnished within such period as may be prescribed, the Department may nevertheless proceed to determine the application.

Anticipation of change of circumstances

5.(1) A departure direction may be given so as to provide that if the circumstances of the case change in such manner as may be specified in the direction a fresh maintenance assessment is to be made.

(2) Where any such provision is made, the departure direction may provide for the basis on which the amount of child support maintenance is to be fixed by the fresh maintenance assessment to differ from the basis on which the amount of child support maintenance was fixed by any earlier maintenance assessment made as a result of the direction.

Reviews and departure directions

6.  Regulations may make provision—

(a)with respect to cases in which a child support officer is conducting a review of a maintenance assessment which was made as a result of a departure direction;

(b)with respect to cases in which a departure direction is made at a time when a child support officer is conducting a review.

Subsequent departure directions

7.(1) Regulations may make provision with respect to any departure application made with respect to a maintenance assessment which was made as a result of a departure direction.

(2) The regulations may, in particular, provide for the application to be considered by reference to the maintenance assessment which would have been made had the departure direction not been given.

Joint consideration of departure applications and appeals

8.(1) Regulations may provide for two or more departure applications with respect to the same current assessment to be considered together.

(2) A child support appeal tribunal considering—

(a)a departure application referred to it under Article 28D(1)(b), or

(b)an appeal under Article 28H,

may consider it at the same time as hearing an appeal under Article 22 in respect of the current assessment, if it considers that to be appropriate.

Child support appeal tribunals

9.(1) Regulations may provide that, in prescribed circumstances, where—

(a)a departure application is referred to a child support appeal tribunal under Article 28D(1)(b), or

(b)an appeal is brought under Article 28H,

the application or appeal may be dealt with by a tribunal constituted by the chairman sitting alone.

(2) Sub-paragraph (1) does not apply in relation to any appeal which is being heard together with an appeal under Article 22.

Current assessments which are replaced by fresh assessments

10.  Regulations may make provision as to the circumstances in which prescribed references in this Order to a current assessment are to have effect as if they were references to any later maintenance assessment made with respect to the same persons as the current assessment.

Article 3(3).

SCHEDULE 2Departure Directions: The Cases and Controls

The following Schedule shall be inserted in the Order of 1991, after Schedule 4A—

Schedule 4BDeparture Directions: The Cases and Controls

Part IThe Cases

General

1.(1) The cases in which a departure direction may be given are those set out in this Part or in regulations made under this Part.

(2) In this Schedule “applicant” means the person whose application for a departure direction is being considered.

Special expenses

2.(1) A departure direction may be given with respect to special expenses of the applicant which were not, and could not have been, taken into account in determining the current assessment in accordance with the provisions of, or made under, Part I of Schedule 1.

(2) In this paragraph “special expenses” means the whole, or any prescribed part, of expenses which fall within a prescribed description of expenses.

(3) In prescribing descriptions of expenses for the purposes of this paragraph, the Department may, in particular, make provision with respect to—

(a)costs incurred in travelling to work;

(b)costs incurred by an absent parent in maintaining contact with the child, or with any of the children, with respect to whom he is liable to pay child support maintenance under the current assessment;

(c)costs attributable to a long-term illness or disability of the applicant or of a dependant of the applicant;

(d)debts incurred, before the absent parent became an absent parent in relation to a child with respect to whom the current assessment was made—

(i)for the joint benefit of both parents;

(ii)for the benefit of any child with respect to whom the current assessment was made; or

(iii)for the benefit of any other child falling within a prescribed category;

(e)pre-1993 financial commitments from which it is impossible for the parent concerned to withdraw or from which it would be unreasonable to expect that parent to have to withdraw;

(f)costs incurred by a parent in supporting a child who is not his child but who is part of his family.

(4) For the purposes of sub-paragraph (3)(c)—

(a)the question whether one person is a dependant of another shall be determined in accordance with regulations made by the Department;

(b)“disability” and “illness” have such meaning as may be prescribed; and

(c)the question whether an illness or disability is long-term shall be determined in accordance with regulations made by the Department.

(5) For the purposes of sub-paragraph (3)(e), “pre-1993 financial commitments” means financial commitments of a prescribed kind entered into before 5th April 1993 in any case where—

(a)a court order of a prescribed kind was in forced with respect to the absent parent and the person with care concerned at the time when they were entered into; or

(b)an agreement between them of a prescribed kind was in force at that time.

(6) For the purposes of sub-paragraph (3)(f), a child who is not the child of a particular person is a part of that person’s family in such circumstances as may be prescribed.

Property or capital transfers

3.(1) A departure direction may be given if—

(a)before 5th April 1993—

(i)a court order of a prescribed kind was in force with respect to the absent parent and either the person with care with respect to whom the current assessment was made or the child, or any of the children, with respect to whom that assessment was made; or

(ii)an agreement of a prescribed kind between the absent parent and any of those persons was in force;

(b)in consequence of one or more transfers of property of a prescribed kind—

(i)the amount payable by the absent parent by way of maintenance was less then would have been the case had that transfer or those transfers not been made; or

(ii)no amount was payable by the absent parent by way of maintenance; and

(c)the effect of that transfer, or those transfers, is not properly reflected in the current assessment.

(2) For the purposes of sub-paragraph (1)(b), “maintenance” means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the current assessment was made.

(3) For the purposes of sub-paragraph (1)(c), the question whether the effect of one or more transfers of property is properly reflected in the current assessment shall be determined in accordance with regulations made by the Department.

4.(1) A departure direction may be given if—

(a)before 5th April 1993—

(i)a court order of a prescribed kind was in force with respect to the absent parent and either the person with care with respect to whom the current assessment was made or the child, or any of the children, with respect to whom that assessment was made, or

(ii)an agreement of a prescribed kind between the absent parent and any of those persons was in force;

(b)in pursuance of the court order or agreement, the absent parent has made one or more transfers of property of a prescribed kind;

(c)the amount payable by the absent parent by way of maintenance was not reduced as a result of that transfer or those transfers;

(d)the amount payable by the absent parent by way of child support maintenance under the current assessment has been reduced as a result of that transfer or those transfers, in accordance with provisions of or made under this Order; and

(e)it is nevertheless inappropriate, having regard to the purposes for which the transfer or transfers was or were made, for that reduction to have been made.

(2) For the purposes of sub-paragraph (1)(c), “maintenance” means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the current assessment was made.

Additional cases

5.(1) The Department may by regulations prescribe other cases in which a departure may be given.

(2) Regulations under this paragraph may, for example, make provision with respect to cases where—

(a)assets which do not produce income are capable of producing income;

(b)a person’s life-style is inconsistent with the level of his income;

(c)housing costs are unreasonably high;

(d)housing costs are in part attributable to housing persons whose circumstances are such as to justify disregarding a part of those costs;

(e)travel costs are unreasonably high; or

(f)travel costs should be disregarded.

Part IIRegulatory Controls

6.(1) The Department may by regulations make provision with respect to the directions which may be given in a departure direction.

(2) No directions may be given other than those which are permitted by the regulations.

(3) Regulations under this paragraph may, in particular, make provision for a departure direction to require—

(a)the substitution, for any formula set out in Part I of Schedule 1, of such other formula as may be prescribed;

(b)any prescribed amount by reference to which any calculation is to be made in fixing the amount of child support maintenance to be increased or reduced in accordance with the regulations;

(c)the substitution, for any provision in accordance with which any such calculation is to be made, of such other provision as may be prescribed.

(4) Regulations may limit the extent to which the amount of the child support maintenance fixed by a maintenance assessment made as a result of a departure direction may differ from the amount of the child support maintenance which would be fixed by a maintenance assessment made otherwise than as a result of the direction.

(5) Regulations may provide for the amount of any special expenses to be taken into account in a case falling within paragraph 2, for the purposes of a departure direction, not to exceed such amount as may be prescribed or as may be determined in accordance with the regulations.

(6) No departure direction may be given so as to have the effect of denying to an absent parent the protection of paragraph 6 of Schedule 1.

(7) Sub-paragraph (6) does not prevent the modification of the provisions of, or made under, paragraph 6 of Schedule 1 to the extent permitted by regulations under this paragraph.

(8) Any regulations under this paragraph may make different provision with respect to different levels of income.

SCHEDULE 3Minor and Consequential Amendments

Child Support (Northern Ireland) Order 1991 (NI 23)

1.  The Order of 1991 shall be amended as follows.

2.  In Article 2(2) (interpretation)—

(a)insert the following definitions in the appropriate places—

“application for a departure direction” means an application under Article 28A;

“current assessment”, in relation to an application for a departure direction, means (subject to any regulations made under paragraph 10 of Schedule 4A) the maintenance assessment with respect to which the application is made;

“departure direction” has the meaning given in Article 28A; and

“parent with care” means a person who is, in relation to a child, both a parent and a person with care;; and

(b)in the definition of “benefit Acts” for “Social Security (Northern Ireland) Acts 1975 to 1991” substitute “Social Security Contributions and Benefits (Northern Ireland) Act 1992 and the Social Security Administration (Northern Ireland) Act 1992”.

3.—(1) In Article 16 (information required by the Department), after paragraph (1) insert—

(1A) Regulations under paragraph (1) may make provision for notifying any person who is required to furnish any information or evidence under the regulations of the possible consequences of failing to do so.

(2) In Article 16, after paragraph (2) insert—

(2A) Where the Department has in its possession any information acquired by it in connection with its functions under this Order, it may—

(a)make use of that information for purposes of any of the benefit Acts or of the Jobseekers (Northern Ireland) Order 1995; or

(b)disclose it to the Secretary of State for purposes of any enactment corresponding to any of those Acts or to that Order, and having effect with respect to Great Britain.

4.  In Article 20 (review of decisions by child support officers), after paragraph (6)(b) insert “or”.

5.  In Article 22 (appeals to child support appeal tribunals), after paragraph (2) insert—

(2A) A tribunal hearing an appeal under this Article may, at the request of any party to the appeal, take into account—

(a)any later maintenance assessment made with respect to the same parties;

(b)any change in the circumstances of the case.

6.  In Article 23 (1) (functions of child support appeal tribunals), add at the end “and have such other functions as are conferred by this Order”.

7.—(1) Article 25 (appeal to Child Support Commissioner) shall be amended as follows.

(2) After paragraph (1) insert—

(1A) The Department may appeal to a Child Support Commissioner ona question of law in relation to any decision of a child support appeal tribunal made in connection with an application for a departure direction.

(3) In paragraph (3), for sub-paragraph (c) substitute—

(c)on an appeal by the Department, refer the case to a child support appeal tribunal with directions for its determination; or

(d)on any other appeal, refer the case to a child support officer or, if he considers it appropriate, to a child support appeal tribunal with directions for its determination.

8.  In Article 30 (collection and enforcement of maintenance payments other than child support maintenance), at the end add—

(4A) Regulations made under paragraph (1) or (2) prescribing payments which may be collected by the Department may make provision for the payment to the Department by such person or persons as may be prescribed of such fees as may be prescribed.

9.  In Article 38 (retention by Department of arrears recovered by it in benefit cases) for paragraph (2) substitute—

(2) Where the Department recovers any such arrears it may, in such circumstances as may be prescribed and to such extent as may be prescribed, retain them if it is satisfied that the amount of any benefit paid to or in respect of the person with care of the child or children in question would have been less had the absent parent made the payment or payments of child support maintenance in question.

(2A) In determining for the purposes of paragraph (2) whether the amount of any benefit paid would have been less at any time than the amount which was paid at that time, in a case where the maintenance assessment had effect from a date earlier than that on which it was made, the assessment shall be taken to have been in force at that time.

10.  In Article 43(5) (circumstances in which a child support officer may give a reduced benefit direction), after “may” insert “, except in prescribed circumstances,”.

11.  In Article 44 (fees), in paragraph (1) after “takes” insert “, or proposes to take,”.

12.  In Article 45 (conduct of proceedings), for “person authorised” substitute “officers of the Department who is authorised”.

13.  In Article 48(2) (statutory rules subject to confirmatory procedure)—

(a)after “14(2),” insert “28C(2)(b), 28F(3), 30(4A)”;

(b)after “or (4)” insert “38A 38B(6)”; and

(c)after “Schedule 1” insert “or under Schedule 4B”.

14.  In paragraph 2 of Schedule 3 (constitution of child support appeal tribunals), add at the end—

(4) This paragraph is subject to the provisions of any regulations made under paragraph 9 of Schedule 4A.

15.  In Schedule 4 (matters concerning Child Support Commissioners), after paragraph 3 insert—

Expenses of persons required to attend proceedings

3A.(1) The Lord Chancellor may pay to any person required to attend at any proceedings before a Child Support Commissioner such travelling and other allowances as, with the consent of the Treasury, he may determine.

(2) In sub-paragraph (1), references to travelling and other allowances include references to compensation for loss of remunerative time.

(3) No compensation for loss of remunerative time shall be paid to any person under this paragraph in respect of any time during which he is in receipt of other remuneration so paid.

Social Security Administration (Northern Ireland) Act 1992 (c. 8)

16.  In section 149(5) of the Social Security Administration (Northern Ireland) Act 1992 (functions of the Social Security Advisory Committee in relation to legislation and regulations) in the definition of “the relevant enactments”, after paragraph (aa) insert—

(ab) Article 4 of the Child Support (Northern Ireland) Order 1995;.

Children (Northern Ireland) Order 1995 (NI 2)

17.  In Schedule 9 to the Children (Northern Ireland) Order 1995 (amendments), in paragraph 182(a) for “paragraph (1)” substitute “paragraph (1A)”.

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