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Child Maintenance and Other Payments Act 2008


Section 35: Registered Maintenance Agreements: Scotland

350.This section amends sections 4, 7 and 9 of the Child Support Act 1991 to provide that, for the avoidance of doubt, a Minute of Agreement registered for execution in the Books of Council and Session, or the sheriff court books, which has been in force for less than twelve months, will exclude a person (or a child in Scotland) from making an application for a maintenance calculation.

Section 36: Offence of failing to notify change  of address

351.This section inserts a new subsection (3A) into section 14A of the Child Support Act 1991, which deals with offences relating to the provision of information.

352.Subsection (3A) includes, as someone who is committing an offence, a person who is liable to make payments of child support maintenance who does not notify their change of address to the Commission, where regulations require them to do so.

Section 37: Additional special case

353.This section inserts a new paragraph (g) into section 42(2) of the Child Support Act 1991.

354.Section 42 enables the Secretary of State to prescribe cases as ‘special cases’ for the purposes of the Act, and subsequently to make regulations concerning those special cases.

355.New subsection (g) will include as a ‘special case’ the circumstances where two parents of the same children each have care for one or more of those children, and so each parent is both a parent with care and a non-resident parent.

356.Currently in these circumstances, each parent will be required to make a maintenance payment to the other. The new provision will allow for the offset of maintenance liabilities between the two parents, so that only the parent with the highest liability will actually make a payment.

Section 38: Recovery of arrears from deceased’s estate

357.Section 38 inserts a new section 43A into the Child Support Act 1991, which gives the Secretary of State power to make regulations to enable arrears of child support maintenance to be recovered from the estate of a deceased non-resident parent.

358.Subsection (2) of new section 43A sets out that regulations made under subsection (1)may provide for:

  • the arrears to be paid by the executor or administrator of a deceased non-resident parent out of the non-resident parent’s estate, to the Commission;

  • how the amount of the arrears to be paid out of the estate is determined; and

  • the procedure by which claims for arrears against the deceased non-resident parent’s estate are made.

359.Subsection (3) states that regulations may also provide for the executor or administrator to institute, continue or withdraw any proceedings. The regulations could, for example, enable the personal representative to exercise a right of appeal that the deceased might have had.

360.This change will enable the recovery of arrears of child support maintenance from the estate of a deceased non-resident parent where it is appropriate to do so. It is intended that arrears of child support maintenance will be treated in the same way as civil debt, and will be paid before the estate is distributed to the beneficiaries. Personal representatives will be required to deduct the arrears from the assets of the deceased. They will also have rights to appeal and dispute the arrears demand. Regulations will also make provision for the procedure to be followed in determining the amount of any arrears and for resolving any dispute that arises in relation to a claim against a deceased non-resident parent’s estate.

Section 39: Disclosure of information relating to family proceedings

361.Section 39 inserts two new sections 49B and 49C into the Child Support Act 1991 to enable a party to family proceedings to disclose information relating to those proceedings to the Commission or to a person providing services to the Commission without such a disclosure being a contempt of court, unless a court dealing with the proceedings directs that the section does not apply.

362.Subsections (2)and (3) of section 49B clarify that the section applies if the party is a person with care in relation to a child, or a child of 12 or over in Scotland, for whom child support maintenance is payable or an application for child support maintenance has been made, and the party reasonably considers that the information is relevant to the Commission carrying out its functions in relation to that application

363.Subsection (4) allows a representative, if instructed by the party, to make a disclosure on their behalf.

364.Subsection (5) defines “representative” for the purposes of this section.

365.Section 49C(1) lists the proceedings that are “family proceedings” for the purposes of section 49B. Only proceedings commenced on or after the day on which section 49B comes into force are covered.

366.Subsection (2) defines “ancillary relief” for the purposes of subsection (1)(a)

367.Subsections (3) and (4) enable the Secretary of State to make an amendment by order, with the consent of the Lord Chancellor, to provide that “family proceedings” include proceedings of a description specified in the order, as long as the proceedings were not begun before the order comes into force.

Section 40: Disclosure of information to credit reference agencies

368.Section 40 inserts new section 49D into the Child Support Act 1991 which relates to the disclosure of information to credit reference agencies.

369.Section 49D allows the Commission to disclose certain information relating to non-resident parents to credit reference agencies. It will only allow the Commission to disclose information relating to a non-resident parent where that person has given their consent to the disclosure or is subject to a liability order. Credit reference agencies will be able to use the information only for the purpose of providing information relevant to the financial standing of individuals.

370.Subsection (2) of section 49D specifies that the information the Commission is able to disclose should meet all of the following criteria:

  • the information is held by the Commission for any purpose under the Child Support Act 1991;

  • it relates to a non-resident parent who is liable to pay child support maintenance; and

  • it is of a description specified in regulations.

371.Subsection (4) provides that regulations made under section 14(3) of the Child Support Act 1991 may not make provision authorising the supply of information to credit reference agencies. Section 14 concerns the requiring and disclosing of information by the Secretary of State. This provision means that if the Secretary of State wishes to disclose information to credit reference agencies, he must rely on the provisions in this new section. He can not circumvent the safeguards provided by using other regulation-making provisions.

372.Subsection (5) provides that for the purposes of this section, ‘credit reference agency’ has the same meaning as in the Consumer Credit Act 1974, which is ‘a person carrying on a business comprising the furnishing of persons with information relevant to the financial standing of individuals, being information collected by the agency for that purpose’.

Section 41: Pilot schemes

373.This section inserts a new section 51A into the Child Support Act 1991, enabling the power to pilot any regulation-making power made under that Act.

374.Subsection (1) prevents a pilot scheme from lasting more than twenty four months.

375.Subsection (2) provides that for the purposes of this section, regulations being piloted will be referred to as a ‘pilot scheme’.

376.Subsection (3) enables a pilot scheme to apply in relation to specific areas, classes of person or persons who meet prescribed criteria, or are selected by sampling.

377.Subsection (4) enables transitional arrangements to be made where necessary for cases involved in any pilot schemes, when the pilot period ends.

378.Subsection (5) enables a further pilot to operate under the same or similar circumstances once the initial, or any further, pilot ends.

 Section 42: Meaning of ‘child’

379.Section 42 replaces section 55 of the Child Support Act 1991 to amend the definition of a child. Subsection (1) of section 55 increases the potential upper age limit of a child from up to the nineteenth birthday, to up to the twentieth birthday in prescribed circumstances. It is intended that this change will only apply to applications made under the new arrangements once they are introduced.

380.It is intended that the regulations will operate to re-align the definition of a child with that used in child benefit legislation following the Child Benefit Act 2005. Child Benefit can now be paid up to a person’s twentieth birthday (previously it stopped at the nineteenth birthday) and it is no longer confined to those in full-time non-advanced education, but is also payable for persons undertaking ‘approved training’.

Section 43: Extinction of liability in respect of interest and fees

381.This section provides for the write off of outstanding liability in respect of interest and fees. Regulations under the Child Support Act 1991 made in 1992 introduced changes which meant that interest could be charged on arrears of maintenance, and that fees could be charged to parents using the CSA collection service. These regulations were revoked in 2001, and debt which built up as a result of parents not paying interest or fees will be extinguished.

382.Paragraph (a) provides that debt which accrued from interest charged under the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations 1992, will be extinguished.

383.Paragraph (b) provides that debt which resulted from unpaid fees charged to parents under the Child Support Fees Regulations 1992 will be extinguished.

Section 44: Use of information

384.This section introduces Schedule 6 which sets out information sharing gateways. The gateways enable information to be supplied to the Commission by the Department for Work and Pensions, HMRC, and the Northern Ireland Department for use for the purpose of functions relating to child support. They also enable information held by the Commission, for the purposes of functions relating to child support, to be supplied to the Department for Work and Pensions, HMRC and Customs and the Northern Ireland Department for the purpose of specified functions for each of these Departments.

Section 45: Liable relative provisions: exclusion of parental duty to maintain

385.This section replaces subsection (3) and amends subsection (4) of section 105 of the Social Security Administration Act 1992 (“the Administration Act”).

386.Section 105 provides that it is a criminal offence for a person to persistently refuse or neglect to maintain themselves or a person whom they are liable to maintain, if the result of that refusal or neglect is that income support is payable to or in respect of any of those persons. Section 78(6) of the Act provides that a person is liable to maintain their spouse or civil partner, their children and sponsored immigrants. Section 106 enables the Secretary of State to apply to a magistrates’ court to secure the recovery of benefit from a liable person who fails to maintain.

387.When income-based jobseekers allowance was introduced in 1996, the extent to which section 105 applied for that benefit was limited to failure to maintain spouses (and later, civil partners) only.

388.Under section 6 of the Child Support Act 1991 parents with care in receipt of income support or income-based jobseeker’s allowance were treated as having applied for child support maintenance. As a result, action to pursue maintenance for children under section 105, in order to offset income support expenditure, fell into disuse although it is still available to pursue spousal maintenance.

389.Since the Act provides for the repeal of section 6 of the Child Support Act 1991, parents with care claiming income support or income-based jobseeker’s allowance will no longer be treated as applying for child support maintenance and will have the freedom to make arrangements outside of the statutory scheme.

390.Section 105, as it currently stands, would allow the Department to pursue non-resident parents for child support maintenance where the person with care is in receipt of income support. The amendment to section 105 ensures that the legislation is consistent in its approach and allows parents to have a choice.

391.These amendments will result in a consistent approach to child support maintenance for both income support and income-based jobseeker’s allowance.

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