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[F1VariationsU.K.

Textual Amendments

F1Ss. 28A-28C substituted for ss. 28A-28C (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(2), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

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

(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 [F3Secretary of State] 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 [F4Secretary of State] has reached a decision (under section 11 or 12(1)) on the application for a maintenance calculation F5... .

(4)A person who applies for a variation—

(a)need not make the application in writing unless the [F6Secretary of State] 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.]

Textual Amendments

Modifications etc. (not altering text)

[F128B Preliminary consideration of applications.U.K.

(1)Where an application for a variation has been duly made to the [F7Secretary of State], [F7the Secretary of State] may give it a preliminary consideration.

(2)[F8The Secretary of State may on completing such a] preliminary consideration, reject the application (and proceed to make [F9a] decision on the application for a maintenance calculation without any variation) if it appears to [F10the [F11Secretary of State]]—

(a)that there are no grounds on which [F12a variation could be agreed to];

(b)that [F13the Secretary of State] 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 [F13the Secretary of State’s] decision would be made under section 12(1); or

(c)that other prescribed circumstances apply.]

Textual Amendments

Modifications etc. (not altering text)

[F128C Imposition of regular payments condition.U.K.

(1)Where—

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

(b)the [F14Secretary of State] makes an interim maintenance decision,

the [F14Secretary of State] may also, if [F14the Secretary of State] has completed [F14a] 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 [F15Secretary of State] imposes a regular payments condition, [F15the Secretary of State] 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 [F16Secretary of State] has made a decision on the application for a maintenance calculation under section 11 (whether [F16the Secretary of State] 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 [F17Secretary of State] may in prescribed circumstances refuse to consider the application for a variation, and instead reach [F17a] 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 [F18Secretary of State].

(7)Where the [F19Secretary of State] determines that a non-resident parent has failed to comply with a regular payments condition [F19the Secretary of State] shall give written notice of [F19the] 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.]

Textual Amendments

Modifications etc. (not altering text)

[F2028D Determination of applications.U.K.

[F21(1)Where an application for a variation has not failed, the [F22Secretary of State] 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 [F23the First-tier Tribunal] for the tribunal to determine what variation, if any, is to be made.]

(2)For the purposes of subsection (1), [F24an application for a variation] has failed if—

(a)it has F25... been withdrawn; or

(b)the [F26Secretary of State] has rejected it on completing a preliminary consideration under section 28B; [F27or]

[F27(c)the [F26Secretary of State] has refused to consider it under section 28C(5).]

[F28(2A)Subsection (2B) applies if—

(a)the application for a variation is made by the person with care or (in the case of an application for a maintenance calculation under section 7) the person with care or the child concerned, and

(b)it appears to the [F29Secretary of State] that consideration of further information or evidence may affect [F29the] decision under subsection (1)(a) whether or not to agree to a variation.

(2B)Before making the decision under subsection (1)(a) the [F30Secretary of State] must—

(a)consider any such further information or evidence that is available to [F30the Secretary of State], and

(b)where necessary, take such steps as the [F30Secretary of State] considers appropriate to obtain any such further information or evidence.]

(3)In dealing with [F24an application for a variation] which has been referred to it under subsection (1)(b), [F31the First-tier Tribunal] shall have the same powers, and be subject to the same duties[F32, apart from the duty under subsection (2B)], as would the [F33Secretary of State in] dealing with the application.]

Textual Amendments

F21S. 28D(1) substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(3)(a), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

F24Words in s. 28D(2)(3) substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(3)(b), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

F25Words in s. 28D(2)(a) repealed (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(3)(c), 86(1)(a)(2), Sch. 9 Pt. I (with s. 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

F27S. 28D(2)(c) and preceding word inserted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(3)(c), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

F28S. 28D(2A)(2B) inserted (10.12.2012 for specified purposes, 29.7.2013 for specified purposes, 25.11.2013 in so far as not already in force) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 18(2), 62(3); S.I. 2012/3042, arts. 2(c), 3 (with art. 5) (as amended (29.7.2013) by S.I. 2013/1860, art. 6 and (24.6.2014) by S.I. 2014/1635, art. 6); S.I. 2013/1860, arts. 2(c), 3 (with arts. 5, 7) (as amended (24.6.2014) by S.I. 2014/1635, art. 7); S.I. 2013/2947, art. 2(a) (with arts. 3-5)

F32Words in s. 28D(3) inserted (10.12.2012 for specified purposes, 29.7.2013 for specified purposes, 25.11.2013 in so far as not already in force) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 18(3), 62(3); S.I. 2012/3042, arts. 2(c), 3 (with art. 5) (as amended (29.7.2013) by S.I. 2013/1860, art. 6 and (24.6.2014) by S.I. 2014/1635, art. 6); S.I. 2013/1860, arts. 2(c), 3 (with arts. 5, 7) (as amended (24.6.2014) by S.I. 2014/1635, art. 7); S.I. 2013/2947, art. 2(a) (with arts. 3-5)

Modifications etc. (not altering text)

[F3428E Matters to be taken into account.U.K.

(1)In determining [F35whether to agree to a variation], the [F36Secretary of State] 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 [F35whether to agree to a variation], the [F37Secretary of State] shall take into account any representations made to [F37the Secretary of State]—

(a)by the person with care or [F38non-resident parent] concerned; or

(b)where the application for the current [F39calculation] was made under section 7, by either of them or the child concerned.

(4)In determining [F35whether 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 [F40the [F41Secretary of State] 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.]

Textual Amendments

F34S. 28E inserted (14.10.1996 for specified purposes, 2.12.1996 in so far as not already in force) by Child Support Act 1995 (c. 34), ss. 5, 30(4); S.I. 1996/2630, art. 2, Sch. Pts. 1, 2

F35Words in s. 28E(1)(3)(4) substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(4)(a), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

F38Words in Act substituted (31.1.2001 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 11(2) (with s. 83(6)); S.I. 2000/3354, art. 2(1)(b); S.I. 2003/192, art. 3, Sch.

F39Word in Act substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 1(2)(b), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2003/192, art. 3, Sch.

F40Words in s. 28E(4)(a) substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(4)(b), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

Modifications etc. (not altering text)

[F4228F Agreement to a variation.U.K.

(1)The [F43Secretary of State] may agree to a variation if—

(a)[F44the Secretary of State] 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 [F45the Secretary of State’s] 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 [F46Secretary of State]—

(a)must have regard, in particular, to the welfare of any child likely to be affected if [F47the Secretary of State] 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 [F48Secretary of State] shall not agree to a variation (and shall proceed to make [F49a] decision on the application for a maintenance calculation without any variation) if F50... satisfied that—

(a)[F51the Secretary of State] has insufficient information to make a decision on the application for the maintenance calculation under section 11, and therefore that [F51the] decision would be made under section 12(1); or

(b)other prescribed circumstances apply.

(4)Where the [F52Secretary of State] agrees to a variation, [F52the Secretary of State] 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 F53... ; and

(b)make a decision under section 11 on that basis.

(5)If the [F54Secretary of State] has made an interim maintenance decision, it is to be treated as having been replaced by [F54the Secretary of State’s] 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 [F55Secretary of State] shall comply with regulations made under Part II of Schedule 4B.]

Textual Amendments

F42S. 28F substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(5), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

Modifications etc. (not altering text)

[F5628G Variations: revision and supersession.U.K.

(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.]

Textual Amendments

F56S. 28G substituted (10.11.2000 for specified purposes, 1.1.2001 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 7, 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pts. 1, 2; S.I. 2003/192, art. 3, Sch.

F5728HDeparture directions: decisions and appealsU.K.

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Textual Amendments

F5828I Transitional provisions.U.K.

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Textual Amendments