F1Variations

28A Application for variation of usual rules for calculating maintenance.

(1)

Where an application for a maintenance calculation is made under section 4 or 7 F2... the person with care or the non-resident parent or (in the case of an application under section 7) either of them or the child concerned may apply to the F3Commission for the rules by which the calculation is made to be varied in accordance with this Act.

(2)

Such an application is referred to in this Act as an “application for a variation”.

(3)

An application for a variation may be made at any time before the F3Commission has reached a decision (under section 11 or 12(1)) on the application for a maintenance calculation F4... .

(4)

A person who applies for a variation—

(a)

need not make the application in writing unless the F3Commission directs in any case that he must; and

(b)

must say upon what grounds the application is made.

(5)

In other respects an application for a variation is to be made in such manner as may be prescribed.

(6)

Schedule 4A has effect in relation to applications for a variation.

F128B Preliminary consideration of applications.

(1)

Where an application for a variation has been duly made to the F5Commission, F6it may give it a preliminary consideration.

(2)

Where F7the Commission does so F8it may, on completing the preliminary consideration, reject the application (and proceed to make F9its decision on the application for a maintenance calculation without any variation) if it appears to F10the Commission—

(a)

that there are no grounds on which F8it could agree to a variation;

(b)

that F8it has insufficient information to make a decision on the application for the maintenance calculation under section 11 (apart from any information needed in relation to the application for a variation), and therefore that F9its decision would be made under section 12(1); or

(c)

that other prescribed circumstances apply.

F128C Imposition of regular payments condition.

(1)

Where—

(a)

an application for a variation is made by the non-resident parent; and

(b)

the F11Commission makes an interim maintenance decision,

the F11Commission may also, if F12it has completed F13its preliminary consideration (under section 28B) of the application for a variation and has not rejected it under that section, impose on the non-resident parent one of the conditions mentioned in subsection (2) (a “regular payments condition”).

(2)

The conditions are that—

(a)

the non-resident parent must make the payments of child support maintenance specified in the interim maintenance decision;

(b)

the non-resident parent must make such lesser payments of child support maintenance as may be determined in accordance with regulations made by the Secretary of State.

(3)

Where the F14Commission imposes a regular payments condition, F15it shall give written notice of the imposition of the condition and of the effect of failure to comply with it to—

(a)

the non-resident parent;

(b)

all the persons with care concerned; and

(c)

if the application for the maintenance calculation was made under section 7, the child who made the application.

(4)

A regular payments condition shall cease to have effect—

(a)

when the F14Commission has made a decision on the application for a maintenance calculation under section 11 (whether F15it agrees to a variation or not);

(b)

on the withdrawal of the application for a variation.

(5)

Where a non-resident parent has failed to comply with a regular payments condition, the F14Commission may in prescribed circumstances refuse to consider the application for a variation, and instead reach F16its decision under section 11 as if no such application had been made.

(6)

The question whether a non-resident parent has failed to comply with a regular payments condition is to be determined by the F14Commission.

(7)

Where the F14Commission determines that a non-resident parent has failed to comply with a regular payments condition F15it shall give written notice of F16its determination to—

(a)

that parent;

(b)

all the persons with care concerned; and

(c)

if the application for the maintenance calculation was made under section 7, the child who made the application.

F1728DDetermination of applications.

F18(1)

Where an application for a variation has not failed, the F19Commission shall, in accordance with the relevant provisions of, or made under, this Act—

(a)

either agree or not to a variation, and make a decision under section 11 or 12(1); or

(b)

refer the application to F20the First-tier Tribunal for the tribunal to determine what variation, if any, is to be made.

(2)

For the purposes of subsection (1), F21an application for a variation has failed if—

(a)

it has F22... been withdrawn; or

(b)

the F19Commission has rejected it on completing a preliminary consideration under section 28B; F23or

F23(c)

the F19Commission has refused to consider it under section 28C(5).

(3)

In dealing with F21an application for a variation which has been referred to it under subsection (1)(b), F24the First-tier Tribunal shall have the same powers, and be subject to the same duties, as would the F19Commission if F25it were dealing with the application.

F2628EMatters to be taken into account.

(1)

In determining F27whether to agree to a variation, the F28Commission shall have regard both to the general principles set out in subsection (2) and to such other considerations as may be prescribed.

(2)

The general principles are that—

(a)

parents should be responsible for maintaining their children whenever they can afford to do so;

(b)

where a parent has more than one child, his obligation to maintain any one of them should be no less of an obligation than his obligation to maintain any other of them.

(3)

In determining F27whether to agree to a variation, the F28Commission shall take into account any representations made to F29it—

(a)

by the person with care or F30non-resident parent concerned; or

(b)

where the application for the current F31calculation was made under section 7, by either of them or the child concerned.

(4)

In determining F27whether to agree to a variation, no account shall be taken of the fact that—

(a)

any part of the income of the person with care concerned is, or would be if F32the F28Commission agreed to a variation, derived from any benefit; or

(b)

some or all of any child support maintenance might be taken into account in any manner in relation to any entitlement to benefit.

(5)

In this section “benefit” has such meaning as may be prescribed.

F3328F Agreement to a variation.

(1)

The F34Commission may agree to a variation if—

(a)

F35it is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and

(b)

it is F36its opinion that, in all the circumstances of the case, it would be just and equitable to agree to a variation.

(2)

In considering whether it would be just and equitable in any case to agree to a variation, the F34Commission—

(a)

must have regard, in particular, to the welfare of any child likely to be affected if F35it did agree to a variation; and

(b)

must, or as the case may be must not, take any prescribed factors into account, or must take them into account (or not) in prescribed circumstances.

(3)

The F34Commission shall not agree to a variation (and shall proceed to make F36its decision on the application for a maintenance calculation without any variation) if F35it is satisfied that—

(a)

F35it has insufficient information to make a decision on the application for the maintenance calculation under section 11, and therefore that F36its decision would be made under section 12(1); or

(b)

other prescribed circumstances apply.

(4)

Where the F34Commission agrees to a variation, F35it shall—

(a)

determine the basis on which the amount of child support maintenance is to be calculated in response to the application for a maintenance calculation F37... ; and

(b)

make a decision under section 11 on that basis.

(5)

If the F34Commission has made an interim maintenance decision, it is to be treated as having been replaced by F36its decision under section 11, and except in prescribed circumstances any appeal connected with it (under section 20) shall lapse.

(6)

In determining whether or not to agree to a variation, the F34Commission shall comply with regulations made under Part II of Schedule 4B.

F3828G Variations: revision and supersession.

(1)

An application for a variation may also be made when a maintenance calculation is in force.

(2)

The Secretary of State may by regulations provide for—

(a)

sections 16, 17 and 20; and

(b)

sections 28A to 28F and Schedules 4A and 4B,

to apply with prescribed modifications in relation to such applications.

(3)

The Secretary of State may by regulations provide that, in prescribed cases (or except in prescribed cases), a decision under section 17 made otherwise than pursuant to an application for a variation may be made on the basis of a variation agreed to for the purposes of an earlier decision without a new application for a variation having to be made.

F3928HDeparture directions: decisions and appeals

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F4028I Transitional provisions.

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