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Child Maintenance and Other Payments Act 2008

Part 1: The Child Maintenance and Enforcement Commission

Section 1: The Child Maintenance and Enforcement Commission

66.Section 1 provides that there will be a new body corporate called the Child Maintenance and Enforcement Commission but referred to as ‘the Commission’. The section also introduces Schedule 1 which sets out in more detail how the Commission will be structured.

67.The Commission will comprise a board consisting of a Chair, a chief executive to be known as the Commissioner for Child Maintenance, executive directors and non-executive directors.

Section 2: Objectives of the Commission

68.This section sets out the main objective of the Commission which is to maximise the number of effective child maintenance arrangements in place. This main objective is supported by two subsidiary objectives:

  • to encourage and support parents to make and keep their own maintenance arrangements; and

  • to support the making of applications for child support maintenance under the Child Support Act 1991 and to enforce maintenance arrangements made under that Act where appropriate.

69.Subsection (3) requires the Commission to aim to pursue and to have regard to its objectives, when exercising a function that is relevant to them.

Section 3: Functions of the Commission: general

70.This section sets out that the Commission has functions relating to child support transferred to it from the Secretary of State, and any other functions conferred under this Act or other legislation.

71.Subsection (2) provides the Secretary of State with a regulation-making power to add further functions, should they be required in assisting the Commission to meet its objectives.

72.Subsection (3) requires the Commission to exercise its functions effectively and efficiently.

Section 4: Promotion of child maintenance

73.This section places a duty on the Commission to take such steps as it considers appropriate to raise awareness among parents of the importance of taking responsibility for the maintenance of their children and if they live apart, making appropriate maintenance arrangements.

Section 5: Provision of information and guidance

74.Section 5 places a duty on the Commission to provide relevant information and guidance to help establish effective and appropriate maintenance arrangements for children who live apart from one or both of their parents. The section also enables the Commission to provide information for other purposes in the course of providing such information and guidance which might include, for example, information on other matters relating to parental separation such as housing or employment.

Section 6: Fees

75.Section 6 gives regulation-making powers to the Secretary of State to enable the Commission to charge fees in connection with the exercise of its functions.

76.Subsection (2) gives a non-exhaustive list of provisions that may be included in regulations. This includes:

  • when a fee may be charged;

  • the amount of fee to be charged;

  • the information required to determine the amount to be charged;

  • who is liable to pay any fee charged;

  • when a fee is payable;

  • recovery of fees charged; and

  • when a fee may be waived, reduced or repaid.

77.Subsection (3) provides that the regulations may permit the Commission to charge fees which are not related to the cost of it of carrying out its functions.

78.Subsection (4) allows the Secretary of State to provide by regulations that the collection and enforcement measures in the Child Support Act 1991 also apply to fees payable.

79.Subsection (5) provides that the Secretary of State may by regulations make provision for a person affected by a decision of the Commission under regulations made under subsection (1) to have a right of appeal against the decision to an appeal tribunal.

80.Subsection (6)provides that subsections (3) to (5), (7) and (8) of Section 20 of the Child Support Act 1991 (appeals to appeal tribunals) will also apply to appeals against a decision of the Commission concerning fees.

81.Subsection (7) requires the Commission to pay into the Consolidated Fund any amount which it receives in fees.

Section 7: Agency arrangements and provision of services

82.This section enables the Commission to make arrangements with a Government department or prescribed public body (defined as a “relevant authority” in subsection (4)), for the functions of one of them to be exercised on their behalf by the other, or for one to provide administrative, professional or technical services to the other.

83.Subsection (2) makes clear that this does not include functions in relation to making, confirming or approving secondary legislation.

84.Subsection (3) enables the Commission to agree the terms and conditions that it considers appropriate for any arrangements under this section.

Section 8: Contracting out

85.This section enables the Commission to contract out any of its functions to another person or organisation. In doing so, the Commission can authorise the extent to which the function is carried out, and the period of time the contract should last. Contracting out a function does not prevent the Commission from exercising it.

86.Where a contractor is carrying out a function on behalf of the Commission, subsection (4) ensures that its acts or omissions will be treated as acts or omissions of the Commission and the Commission will be responsible.

87.Subsection (5) sets out two exceptions to this:

  • A contractor’s act or omission will not be treated as being an act of the Commission for the purposes of relevant provisions of the contract between the Commission and the contractor itself. This ensures that, for example, if a contractor breaches the contract by failing to do something, or doing something they should not, the contractor remains responsible and the Commission will be able to sue for breach of contract.

  • The contractor will remain liable if it commits a criminal act.

88.Subsection (6) ensures that a person who is authorised to carry out a function on behalf of the Commission has a right to claim damages or compensation for repudiation of the contract if the Commission withdraw their authorisation thereby making it impossible for the contractor to perform.

Section 9: Annual report to the Secretary of State

89.This section requires the Commission to produce a report for each financial year (to 31 March). The report must:

  • deal with the activities of the Commission in the financial year for which it is prepared; and

  • include the report prepared by the non-executive functions committee.

90.Subsection (3) sets out the activities that should be covered in the report as follows:

  • the strategic direction of the Commission and how this is being monitored and reviewed;

  • the objectives and targets of the Commission, what steps have been taken to meet them and the extent to which they have been met;

  • how performance of the Commission has been monitored;

  • the extent to which the Commission has relied upon its power to enter into arrangements with government departments and other public bodies; and

  • the extent to which the Commission has contracted out its functions.

91.Subsections (4) and (5) require the Commission to publish the report and send it to the Secretary of State to be laid before Parliament.

Section 10: Directions and guidance

92.This section provides that the Secretary of State may give written guidance and directions to the Commission regarding the exercise of its functions.

93.Subsection (2) requires the Commission to have regard to any guidance given, and also to comply with directions.

94.Subsections (3) and (4) provide that guidance and directions given under this section should be in writing and can be varied or revoked by the Secretary of State.

95.Subsection (5) requires the Secretary of State to lay before Parliament any directions he gives under subsection (1).

96.Subsection (6) allows the Secretary of State to exclude from laying in Parliament, any information that he considers tobe against the commercial interests of any person, or any information which may lead to an individual being identified.

Section 11: Review of the status of the Commission

97.Section 11 sets out that the Secretary of State must review the status of the Commission as a Crown Body, as soon as is reasonably practicable after the end of an initial three year period, and may review any other time after that if he considers it appropriate.

98.Subsections (4)and (5) require the Secretary of State to prepare a report of any review and lay it before Parliament.

99.Subsections (6) and (7) enable the Secretary of State to make an order to provide that the Commission ceases to be a Crown body, if it appears that it is appropriate to do so following a review. The order may amend Schedule 1 and provide for the Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply.

Section 12: Supplementary provisions

100.Section 12 sets out the definition of ‘child’ for the purposes of Part 1 (the same as for the 1991 Act) and makes provision for the Secretary of State to make regulations about when a child is to be regarded as living apart from a parent or not, to ensure, for example, that a child is not regarded as living apart from a parent simply because they are at boarding school.

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