The Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 1998

Amendment of the Departure Direction Regulations

9.—(1) The Departure Direction Regulations shall be amended in accordance with paragraphs (2) to (24).

(2) In regulation 8 (procedure in relation to the determination of an application)—

(a) in paragraph (1) after “Department shall” there shall be inserted “, unless it is satisfied on the information or evidence available to it that a departure direction is unlikely to be given”;

(b) after paragraph (4) there shall be inserted the following paragraph—

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

(3) For regulation 9 (departure directions and persons in receipt of income support or income-based jobseeker’s allowance) there shall be substituted the following regulation—

“Departure directions and persons in receipt of income support, income-based jobseeker’s allowance, family credit or disability working allowance

9.— (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 or income-based jobseeker’s allowance is or was in payment at the date on which any departure direction given in response to that application would take effect;

(b) by a person with care to or in respect of whom income support, income-based jobseeker’s allowance, family credit or disability working allowance is or was in payment at the date on which any departure direction given in response to that application would take effect; or

(c) by a person with care where, at the date on which any departure direction given in response to that application would take effect, income support or income-based jobseeker’s allowance is or was in payment to or in respect of the absent parent of the child or children in relation to whom the maintenance assessment in question is made.

(2) A transfer shall not constitute a transfer of property for the purposes of paragraph 3(1)(b) or 4(1)(b) of Schedule 4B to the Order(1), or of regulations 21 and 22, where the application is made—

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

(b) by a person with care and, at the date on which any departure direction given in response to that application would take effect, income support or income-based jobseeker’s allowance is or was in payment to or in respect of the absent parent of the child or children in relation to whom the maintenance assessment in question is made.

(3) A case shall not constitute a case under regulations 23 to 29 where the application is made—

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

(b) by an absent parent where, at the date on which any departure direction given in response to that application would take effect, income support, income-based jobseeker’s allowance, family credit or disability working allowance is or was in payment to or in respect of the person with care of the child or children in relation to whom the maintenance assessment in question is made;

(c) by a person with care where, at the date on which any departure direction given in response to that application would take effect, income support or income-based jobseeker’s allowance is or was in payment to or in respect of the absent parent of the child or children in relation to whom the maintenance assessment in question is made.”.

(4) In regulation 11 (departure application and review under Article 19 of the Order) for “is later” there shall be substituted “would be later”.

(5) After regulation 11 there shall be inserted the following regulation—

“Meaning of “current assessment” for the purposes of the Order

11A.   Where—

(a) an application made under Article 28A of the Order(2) has been made in respect of a current assessment;

(b) after the making of that application, that current assessment has been reviewed under Article 18, 19, 20 or 21 of the Order, whether or not that review was initiated by a reference under Article 28B(4) of the Order; and

(c) following that review, a fresh maintenance assessment has been made—

(i) the effective date of which is the same as the effective date of that current assessment, or

(ii) which takes effect on the correct date applicable to that current assessment in circumstances where that current assessment has been reviewed on grounds which include the ground that its effective date was incorrect,

references to the current assessment in Articles 28B(3), 28C(2)(a) and 28F(5) of, and in paragraph 8 of Schedule 4A and paragraphs 2, 3 and 4 of Schedule 4B to, the Order shall have effect as if they were references to that fresh maintenance assessment.”.

(6) In regulation 15 (illness or disability)—

(a) at the beginning of paragraphs (3) and (4) there shall be inserted “Subject to paragraph (4A),”;

(b) after paragraph (4) there shall be inserted the following paragraph—

“(4A) Paragraphs (3) and (4) shall not apply where the dependant of an applicant is adjudged eligible for either of the allowances referred to in paragraph (4) and in all the circumstances of the case the Department considers that the costs being met by the applicant in respect of the items listed in paragraph (1) shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order without the deductions in paragraph (3) being made.”.

(7) In regulation 17 (pre-1993 financial commitments)—

(a) in paragraph (1)—

(i) in sub-paragraph (a) for “a court order or” there shall be substituted “a maintenance order or a written” and at the end “and” shall be omitted;

(ii) after sub-paragraph (a) there shall be inserted the following sub-paragraph—

“(aa) at least one of the children referred to in sub-paragraph (a) is a child in respect of whom the current assessment was made; and”;

(b) paragraph (2) shall be omitted.

(8) In regulation 18 (costs incurred in supporting certain children)—

(a) in paragraph (1) after “part of his family” there shall be inserted “and who was, at the date on which any departure direction given in response to an application under this regulation would take effect, living in the same household as that parent”;

(b) in paragraph (2)—

(i) for sub-paragraph (a) there shall be substituted the following sub-paragraph—

“(a) the child became a relevant child prior to 5th April 1993 and has remained a relevant child for the whole of the period from that date to the date on which any departure direction given in response to an application under this regulation would take effect;”;

(ii) for sub-paragraph (b) there shall be substituted the following sub-paragraph—

“(b) subject to paragraph (7)—

(i) the liability of the absent parent of a relevant child to pay maintenance to or for the benefit of that child under a maintenance order, a written maintenance agreement or a maintenance assessment, or

(ii) any deduction from benefit under Article 40 of the Order in place of payment of child support maintenance to or for the benefit of that child,

is less than the amount specified in paragraph (4), or there is no such liability or deduction; and”;

(c) in paragraph (3)—

(i) at the beginning there shall be inserted “Subject to paragraph (7A),”;

(ii) after “paragraph (2)(b)” there shall be inserted “(i) or any deduction from benefit mentioned in paragraph (2)(b)(ii)”;

(iii) after “no such liability” there shall be inserted “or deduction”;

(d) in paragraph (4)—

(i) at the beginning there shall be inserted “Subject to paragraphs (4A) and (4B),”;

(ii) at the end of sub-paragraph (b) there shall be added “and”;

(iii) for sub-paragraph (c) there shall be substituted the following sub-paragraph—

“(c) except where the family includes other children of the parent, an amount equal to the income support family premium—

(i) specified in sub-paragraph (a) of paragraph 3 of that Schedule where, if the applicant were a claimant, the rate of income support family premium specified in that sub-paragraph would be applicable to him, or

(ii) specified in paragraph 3(b) in all other cases.”;

(iv) sub-paragraph (d) shall be omitted;

(e) after paragraph (4) there shall be inserted the following paragraphs—

“(4A) Where day to day care of the relevant child is shared between the current partner of the person making an application under this regulation and the other parent of that child, the amounts referred to in paragraph (4) shall be reduced by the proportion of those amounts which is the same as the proportion of the week in respect of which the child is not living in the same household as the applicant.

(4B) Where an application under paragraph (1) is made in respect of more that one relevant child and the family does not include any other children of the parent, the amount applicable under sub-paragraph (c) of paragraph (4) in respect of each relevant child shall be calculated by dividing the amount referred to in that sub-paragraph by the number of relevant children in respect of whom that application is made.”;

(f) in paragraph (6) at the end of sub-paragraph (d) there shall be added “or the aggregate of those amounts where paragraph (7A) applies to that partner”;

(g) in paragraph (7) after “paragraph (2)(b)” there shall be inserted “(i)”;

(h) after paragraph (7) there shall be inserted the following paragraph—

“(7A) Where an application is made in respect of relevant children of different parents, a separate calculation shall be made in accordance with paragraphs (3) and (4) in respect of each relevant child or group of relevant children who have the same parents and the amount constituting special expenses referred to in paragraph (1) shall be the aggregate of the amounts calculated in accordance with paragraph (3) in respect of each such relevant child or group of relevant children.”;

(i) in paragraph (8) for sub-paragraph (a) there shall be substituted the following sub-paragraph—

“(a) a child who is not the child of a particular person is a part of that person’s family where—

(i) that child is the child of a current partner of that person, or

(ii) that child is the child of a former partner of that person and lives in the same household as the applicant for every night of each week;”.

(9) In regulation 22(1) (value of a transfer of property and its equivalent weekly value for a case falling within paragraph 3 of Schedule 4B to the Order) after “in lieu of” there shall be inserted “periodical payments of”.

(10) In regulation 23 (assets capable of producing income or higher income) paragraph (3) shall be omitted.

(11) In regulation 25 (life-style inconsistent with declared income)—

(a) in paragraph (1) “maintenance” shall be omitted;

(b) for paragraph (2) there shall be substituted the following paragraph—

“(2) Paragraph (1) shall not apply where the Department is satisfied that the life-style of the non-applicant is paid for—

(a) out of capital belonging to him; or

(b) by his partner, unless the non-applicant is able to influence or control the amount of income received by that partner.”;

(c) in paragraph (3) for “(2)(b)(ii)” there shall be substituted “(2)(b)”.

(12) In regulation 32 (effective date of a departure direction)—

(a) in paragraph (3) for “paragraph (6)” there shall be substituted “paragraphs (3A) and (6)”;

(b) after paragraph (3) there shall be inserted the following paragraph—

“(3A) Where an application is determined in accordance with regulation 14 and is one to which paragraph (7) of that regulation applies, a departure direction given in response to that application shall take effect—

(a) from the first day of the maintenance period immediately following the date on which the absent parent and the parent with care have agreed the pattern of contact for the future is to commence; or

(b) where no such date has been so agreed, from the first day of the maintenance period immediately following the date upon which the departure direction is given.”.

(13) After regulation 34 (cancellation of a departure direction on recognition of an error) there shall be inserted the following regulation—

“Correction of accidental errors in departure directions

34A.— (1) Subject to paragraphs (3) and (4), accidental errors in any departure direction made by the Department or record of such a departure direction may, at any time, be corrected by the Department and a correction made to, or to the record of, that departure direction shall be deemed to be part of that direction or of that record.

(2) Where the Department has made a correction under the provisions of paragraph (1), it shall immediately notify the persons who were notified of the departure direction that has been corrected, so far as that is reasonably practicable.

(3) In determining whether the time limit specified in Article 28H(3) of the Order(3) has been complied with, there shall be disregarded any day falling before the day on which notification was given or sent under paragraph (2).

(4) The power to correct errors under this regulation shall not be taken to limit any other powers to correct errors that are exerciseable apart from these Regulations.”.

(14) In regulation 37 (effect of a departure direction in respect of special expenses—exempt income)—

(a) in paragraph (1) after “shall be increased by” there shall be inserted “the amount specified in that departure direction being the whole or part of”;

(b) in paragraph (4) for the words “repayment of”, where they first appear, there shall be substituted “the whole or part of the amount required to repay”.

(15) In regulation 39(1) (effect of a departure direction in respect of a transfer of property) for sub-paragraph (b) there shall be substituted the following sub-paragraph—

“(b) subject to sub-paragraph (c) and paragraphs (2) and (3), the fresh maintenance assessment made in consequence of the direction shall be the lower of—

(i) the amount, calculated in accordance with the provisions of paragraphs 1 to 5 and 7 to 10 of Part I of Schedule 1 to the Order, as modified in a case to which it applies by sub-paragraph (a) where that sub-paragraph is applicable to the case in question, reduced by the amount specified in that departure direction being the whole or part of the equivalent weekly value of the property transferred as determined in accordance with regulation 22, or

(ii) where the provisions of paragraph 6 of Schedule 1 to the Order (protected income) apply, the amount, calculated in accordance with the provisions of Part I of Schedule 1 to the Order, as modified in a case to which it applies by sub-paragraph (a) where that sub-paragraph is applicable to the case in question;”.

(16) In regulation 40 (effect of a departure direction in respect of additional cases) in paragraphs (2) to (5) after “shall be increased by” there shall be inserted “the amount specified in that departure direction, being the whole or part of”.

(17) In regulation 41 (child support maintenance payable where effect of a departure direction would be to decrease an absent parent’s assessable income)—

(a) for paragraph (3) there shall be substituted the following paragraph—

“(3) There shall be determined the amount that would be payable under a maintenance assessment made in accordance with the provisions of Part I of Schedule 1 to the Order which would be in force at the date any departure direction referred to in paragraph (1) would take effect if it were to be given.”;

(b) for paragraph (4) there shall be substituted the following paragraph—

“(4) The revised amount for the purposes of regulation 7 (rejection of application on completion of a preliminary consideration) and regulation 31 (refusal to give a departure direction under Article 28F(4) of the Order) shall be the lowest of the following amounts—

(a) the amount calculated in accordance with paragraph (2);

(b) the amount determined in accordance with paragraph (3);

(c) where the provisions of paragraph 6 of Schedule 1 to the Order (protected income) as modified in a case to which they apply by the provisions of regulation 38 (effect of a departure direction in respect of special expenses—protected income) would apply if a departure direction were given, the amount payable under those provisions,

and the Department may apply regulation 7 and shall apply regulation 31 in relation to the current amount and the revised amount as so construed.”;

(c) in paragraph (5) “Subject to paragraph (7),” shall be omitted;

(d) paragraph (7) shall be omitted;

(e) in paragraph (8) for “paragraphs (1) to (7)” there shall be substituted “paragraphs (1) to (6)”.

(18) In regulation 42 (application of regulation 41 where there is a transfer of property falling within paragraph 3 of Schedule 4B to the Order)—

(a) for paragraph (1) there shall be substituted the following paragraphs—

“(1) Where an absent parent applies for a departure direction on the grounds that the case falls within both paragraph 2 of Schedule 4B to the Order (special expenses) and paragraph 3 of that Schedule (property or capital transfers), regulation 41 shall be applied subject to the modifications set out in paragraphs (1A) to (3).

(1A) In regulation 41(1), the reference to a departure direction shall be construed as a reference to any departure direction that would be given if the application had been made solely on the grounds that the case falls within paragraph 2 of Schedule 4B to the Order, and the reference to the absent parent’s assessable income shall be construed as a reference to the assessable income calculated in consequence of such a direction.”;

(b) for paragraph (3) there shall be substituted the following paragraph—

“(3) For the purposes of this regulation, the revised amount for the purposes of regulations 7 and 31 shall be—

(a) subject to sub-paragraph (b), the lower of the amounts specified in regulation 41(4)(a) and (b), subject to paragraph (2) of this regulation, less the amount determined in accordance with regulation 22 (value of a transfer of property and its equivalent weekly value for a case falling within paragraph 3 of Schedule 4B to the Order);

(b) where the amount specified in regulation 41(4)(c) is lower than the amount determined in accordance with sub-paragraph (a), that amount.”;

(c) in paragraph (4) after “following that direction shall be” there shall be inserted “determined by the child support officer as being”.

(19) After regulation 42 there shall be inserted the following regulation—

“Application of regulation 41 where the case falls within paragraph 2 and paragraph 5 of Schedule 4B to the Order

42A.— (1) Where an absent parent applies for a departure direction on the grounds that the case falls within both paragraph 5 of Schedule 4B to the Order (additional cases) and paragraph 2 of that Schedule (special expenses), and the conditions set out in regulation 41(1) are satisfied, the amount of child support maintenance payable shall be determined in accordance with paragraphs (2) to (6).

(2) The application shall in the first instance be treated as an application (an “additional cases application”) made solely on the grounds that the case falls within paragraph 5 of Schedule 4B to the Order, and a determination shall be made as to whether a departure direction would be given in response to that application.

(3) Following the determination mentioned in paragraph (2), the application shall be treated as an application (a “special expenses application”) made solely on the grounds that the case falls within paragraph 2 of Schedule 4B to the Order, and the provisions of regulation 41 shall be applied to the special expenses application, subject to the provisions of paragraphs (4) to (6).

(4) Where no departure direction would be given in response to the additional cases application, the provisions of regulation 41 shall be applied to determine the amount of child support maintenance payable.

(5) Where a departure direction would be given in response to the additional cases application, the provisions of regulation 41 shall be applied to determine the amount of child support maintenance payable, subject to the modification set out in paragraph (6).

(6) In regulation 41 for paragraph (3) there shall be substituted the following paragraph—

“(3) There shall be determined the amount that would be payable under the maintenance assessment made in consequence of the direction that would be given in response to the additional cases application mentioned in regulation 42A(2) which would be in force at the date any departure direction referred to in paragraph (1) would take effect if it were to be given.”.

(7) Where—

(a) a departure direction has been given in a case where regulation 41 has been applied and an application is then made on the grounds that the case falls within paragraph 5 of Schedule 4B to the Order; or

(b) a departure direction has been given on the grounds that the case falls within paragraph 5 of Schedule 4B to the Order, an application is then made on the grounds that the case falls within paragraph 2 of that Schedule, and the conditions set out in regulation 41(1) are satisfied,

the case shall be treated as a case which falls within paragraph (1), and the date of the later application treated as the date on which both applications were made.

(8) Where a departure direction is given in accordance with the provisions of paragraph (7), the earlier direction shall cease to have effect from the date the later direction has effect.”.

(20) In regulation 43(2) (maintenance assessment following a departure direction for certain cases falling within regulation 22 of the Maintenance Assessments and Special Cases Regulations)—

(a) for “lower” there shall be substituted “lowest”;

(b) for sub-paragraph (b) there shall be substituted the following sub-paragraphs—

“(b) the amount calculated by the formula—

where

• A and P have the same meanings as in regulation 41(2) and Q is the sum of the amounts calculated in accordance with sub-paragraph (a) for each assessment;

(c) where the provisions of paragraph 6 of Schedule 1 to the Order (protected income) apply, as modified in a case to which they apply by the provisions of regulation 38 (effect of a departure direction in respect of special expenses—protected income) or, as the case may be, regulation 40(6), (8) or (10) (effect of departure direction in respect of additional cases), the amount calculated as payable under those provisions.”.

(21) In regulation 44(5) (maintenance assessment following a departure direction where there is a phased maintenance assessment) for “paragraphs (1) to (3)” there shall be substituted “paragraphs (1) and (3)”.

(22) In regulation 46(2) (special case—departure direction having effect from date earlier than effective date of current assessment) at the end of sub-paragraph (b) there shall be added “or, where regulation 11A (meaning of “current assessment” for the purposes of the Order) applies, in respect of the fresh maintenance assessment referred to in that regulation”.

(23) After regulation 46 there shall be inserted the following regulation—

“Cases to which regulation 11A applies

46A.— (1) A case where the conditions set out in regulation 11A(a) to (c) (meaning of “current assessment” for the purposes of the Order) are satisfied shall be treated as a special case for the purposes of the Order.

(2) Where a case falls within paragraph (1), references to “the current assessment” and “the current amount” in these Regulations shall, subject to paragraph (3), be construed as including reference to the fresh maintenance assessment referred to in regulation 11A.

(3) Paragraph (2) shall not apply to references to “the current assessment” in regulation 32, with the exception of the reference in paragraph (1)(a) of that regulation, and in regulations 46, 47 and 48.”.

(24) In the Schedule (equivalent weekly value of a transfer of property)—

(a) in paragraph 2 the Table—

(i) before the column headed “8.0%” there shall be inserted the following column—

“7.0%
0.02058
0.01064
0.00733
0.00568
0.00469
0.00403
0.00357
0.00322
0.00295
0.00274
0.00256
0.00242
0.00230
0.00220
0.00211
0.00204
0.00197
0.00191”;

(ii) between the columns headed “10.0%” and “12.0%” there shall be inserted the following column—

“11.0%
0.02135
0.01123
0.00787
0.00620
0.00520
0.00455
0.00408
0.00374
0.00347
0.00327
0.00310
0.00296
0.00285
0.00275
0.00267
0.00261
0.00255
0.00250”;

(b) in paragraph 4 for “maintenance that was” there shall be substituted “periodical payments of maintenance which were”;

(c) paragraph 5 shall be omitted.

(1)

Schedule 4B was inserted by Schedule 1 to the Child Support (Northern Ireland) Order 1995

(2)

Articles 28A to 28C and 28F were inserted by Article 3(1) of the Child Support (Northern Ireland) Order 1995

(3)

Article 28H was inserted by Article 3(1) of the Child Support (Northern Ireland) Order 1995