Child Maintenance and Other Payments Act 2008
2008 c. 6
An Act to establish the Child Maintenance and Enforcement Commission; to amend the law relating to child support; to make provision about lump sum payments to or in respect of persons with diffuse mesothelioma; and for connected purposes.
[5th June 2008]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
(1) The Secretary of State may by regulations make provision about the charging of fees by the Secretary of State in connection with the exercise of its functions.
(2) Regulations under subsection (1) may, in particular, make provision—
(a) about when a fee may be charged;
(b) about the amount which may be charged;
(c) for the supply of information needed for the purpose of determining the amount which may be charged;
(d) about who is liable to pay any fee charged(including provision for the apportionment of fees and the matters to be taken into account in determining an apportionment);
(e) about when any fee charged is payable;
(f) about the recovery of fees charged;
(g) about ..., reduction or repayment of fees.
(h) about waiver of fees (including the matters to be taken into account in determining a waiver).
(3) The power conferred by subsection (1) includes power to make provision for the charging of fees which are not related to costs.
(3A) The Secretary of State must review the effect of the first regulations made under subsection (1).
(3B) The review must take place before the end of the period of 30 months beginning with the day on which those regulations come into force.
(3C) After the review, the Secretary of State must make and publish a report containing—
(a) the conclusions of the review, and
(b) a statement as to what the Secretary of State proposes to do in view of those conclusions.
(3D) The report must be laid before Parliament by the Secretary of State.
(4) The Secretary of State may by regulations provide that the provisions of the Child Support Act 1991 (c. 48) with respect to—
(a) the collection of child support maintenance,
(b) the enforcement of any obligation to pay child support maintenance,
shall apply equally (with any necessary modifications) to fees payable by virtue of regulations under subsection (1).
(5) The Secretary of State may by regulations make provision for a person affected by a decision of the Secretary of State under regulations under subsection (1) to have a right of appeal against the decision to the First-tier Tribunal.
(6) Subsections (3) to (5), (7) and (8) of section 20 of the Child Support Act 1991 (appeals to First-tier Tribunal) apply to appeals under regulations under subsection (5) as they apply to appeals under that section.
(7) The Secretary of State shall pay into the Consolidated Fund any amount which the Secretary of State receives in respect of fees charged by the Secretary of State under regulations under this section.
(1) Any function of the Secretary of State relating to child support may be exercised by, or by employees of, such person (if any) as the Secretary of State may authorise for the purpose.
(2) An authorisation given by virtue of subsection (1) may authorise the exercise of the function concerned—
(a) either wholly or to such extent as may be specified in the authorisation,
(b) either generally or in such cases or areas as may be so specified, and
(c) either unconditionally or subject to the fulfilment of such conditions as may be so specified.
(3) An authorisation given by virtue of subsection (1)—
(a) may specify its duration,
(b) may be revoked at any time by the Secretary of State, and
(c) shall not prevent the Secretary of State or any other person from exercising the function to which the authorisation relates.
(4) Where a person is authorised to exercise any function by virtue of subsection (1), anything done or omitted to be done by or in relation to that person (or an employee of that person) in, or in connection with, the exercise or purported exercise of the function shall be treated for all purposes as done or omitted to be done by or in relation to the Secretary of State.
(5) Subsection (4) shall not apply—
(a) for the purposes of so much of any contract made between the authorised person and the Secretary of State as relates to the exercise of the function, or
(b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by the authorised person (or an employee of that person).
(6) Where—
(a) a person is authorised to exercise any function by virtue of subsection (1), and
(b) the authorisation is revoked at a time when a relevant contract is subsisting,
the authorised person shall be entitled to treat the relevant contract as repudiated by the Secretary of State(and not as frustrated by reason of the revocation).
(7) In subsection (6), the reference to a relevant contract is to so much of any contract made between the authorised person and the Secretary of State as relates to the exercise of the function.
The following provisions of the Child Support Act 1991 (c. 48) cease to have effect—
(a) section 6 (under which the claim of benefit by or in respect of a parent with care, or the payment of benefit to or in respect of such a person, triggers an application by her or him for child support maintenance), and
(b) section 46 (which enables the Secretary of State in certain circumstances to reduce the benefit of a person in relation to whom section 6 triggers the making of an application for child support maintenance).
In section 17 of the Child Support Act 1991 (c. 48) (decisions superseding earlier decisions), for subsections (2) and (3) substitute—
(2) The Secretary of State may by regulations make provision with respect to the exercise of the power under subsection (1).
(3) Regulations under subsection (2) may, in particular—
(a) make provision about the cases and circumstances in which the power under subsection (1) is exercisable, including provision restricting the exercise of that power by virtue of change of circumstance;
(b) make provision with respect to the consideration by the Secretary of State, when acting under subsection (1), of any issue which has not led to the Secretary of State's so acting;
(c) make provision with respect to procedure in relation to the exercise of the power under subsection (1).
(1) Section 28D of the Child Support Act 1991 is amended as follows.
(2) After subsection (2) insert—
(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 Secretary of State that consideration of further information or evidence may affect the decision under subsection (1)(a) whether or not to agree to a variation.
(2B) Before making the decision under subsection (1)(a) the Secretary of State must—
(a) consider any such further information or evidence that is available to the Secretary of State, and
(b) where necessary, take such steps as the Secretary of State considers appropriate to obtain any such further information or evidence.
(3) In subsection (3), after “duties” insert “ , apart from the duty under subsection (2B) ”.
Schedule 5 (which makes provision for, and in connection with, enabling the Commission to require existing cases to transfer to the new maintenance calculation rules or to leave the statutory scheme, so far as future accrual of liability is concerned) has effect.
20 Use of deduction from earnings orders as basic method of payment
In section 29 of the Child Support Act 1991 (c. 48) (under which payments of child support maintenance are to be made in accordance with regulations) at the end insert—
(4) If the regulations include provision for payment by means of deduction in accordance with an order under section 31, they must make provision—
(a) for that method of payment not to be used in any case where there is good reason not to use it; and
(b) for the person against whom the order under section 31 would be made to have a right of appeal to a magistrates' court (or, in Scotland, to the sheriff) against a decision that the exclusion required by paragraph (a) does not apply.
(5) On an appeal under regulations made under subsection (4)(b) the court or (as the case may be) the sheriff shall not question the maintenance calculation by reference to which the order under section 31 would be made.
(6) Regulations under subsection (4)(b) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of a magistrates' court (or, in Scotland, of the sheriff) in relation to an appeal under the regulations.
(7) If the regulations include provision for payment by means of deduction in accordance with an order under section 31, they may make provision—
(a) prescribing matters which are, or are not, to be taken into account in determining whether there is good reason not to use that method of payment;
(b) prescribing circumstances in which good reason not to use that method of payment is, or is not, to be regarded as existing.
After section 32 of the Child Support Act 1991 (c. 48) insert—
Orders for regular deductions from accounts
32A (1) If in relation to any person it appears to the Commission—
(a) that the person has failed to pay an amount of child support maintenance; and
(b) that the person holds an account with a deposit-taker;
it may make an order against that person to secure the payment of any amount due under the maintenance calculation in question by means of regular deductions from the account.
(2) An order under this section may be made so as to secure the payment of—
(a) arrears of child support maintenance payable under the calculation;
(b) amounts of child support maintenance which will become payable under the calculation; or
(c) both such arrears and such future amounts.
(3) An order under this section may be made in respect of amounts due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amounts would not be affected were the appeal to succeed; or
(b) where paragraph (a) does not apply, that the making of an order under this section in respect of the amounts would nonetheless be fair in all the circumstances.
(4) An order under this section—
(a) may not be made in respect of an account of a prescribed description; and
(b) may be made in respect of a joint account which is held by the person against whom the order is made and one or more other persons, and which is not of a description prescribed under paragraph (a), if (but only if) regulations made by the Secretary of State so provide.
(5) An order under this section—
(a) shall specify the account in respect of which it is made;
(b) shall be expressed to be directed at the deposit-taker with which the account is held; and
(c) shall have effect from such date as may be specified in the order.
(6) An order under this section shall operate as an instruction to the deposit-taker at which it is directed to—
(a) make deductions from the amount (if any) standing to the credit of the account specified in the order; and
(b) pay the amount deducted to the Commission.
(7) The Commission shall serve a copy of any order made under this section on—
(a) the deposit-taker at which it is directed;
(b) the person against whom it is made; and
(c) if the order is made in respect of a joint account, the other account-holders.
(8) Where—
(a) an order under this section has been made; and
(b) a copy of the order has been served on the deposit-taker at which it is directed,
it shall be the duty of that deposit-taker to comply with the order; but the deposit-taker shall not be under any liability for non-compliance before the end of the period of 7 days beginning with the day on which the copy was served on the deposit-taker.
(9) Where regulations have been made under section 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this section to have failed to pay an amount of child support maintenance unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.
Orders under section 32A: joint accounts
32B (1) Before making an order under section 32A in respect of a joint account the Commission shall offer each of the account-holders an opportunity to make representations about—
(a) the proposal to make the order; and
(b) the amounts to be deducted under the order, if it is made.
(2) The amounts to be deducted from a joint account under such an order shall not exceed the amounts that appear to the Commission to be fair in all the circumstances.
(3) In determining those amounts the Commission shall have particular regard to—
(a) any representations made in accordance with subsection (1)(b);
(b) the amount contributed to the account by each of the account-holders; and
(c) such other matters as may be prescribed.
Regulations about orders under section 32A
32C (1) The Secretary of State may by regulations make provision with respect to orders under section 32A.
(2) Regulations under subsection (1) may, in particular, make provision—
(a) requiring an order to specify the amount or amounts in respect of which it is made;
(b) requiring an order to specify the amounts which are to be deducted under it in order to meet liabilities under the maintenance calculation in question;
(c) requiring an order to specify the dates on which deductions are to be made under it;
(d) for the rate of deduction under an order not to exceed such rate as may be specified in, or determined in accordance with, the regulations;
(e) as to circumstances in which amounts standing to the credit of an account are to be disregarded for the purposes of section 32A;
(f) as to the payment of sums deducted under an order to the Commission;
(g) allowing the deposit-taker at which an order is directed to deduct from the amount standing to the credit of the account specified in the order a prescribed amount towards its administrative costs before making any deduction required by section 32A(6)(a);
(h) with respect to notifications to be given to the person against whom an order is made (and, in the case of an order made in respect of a joint account, to the other account-holders) of amounts deducted, and amounts paid, under the order;
(i) requiring the deposit-taker at which an order is directed to notify the Commission in the prescribed manner and within a prescribed period—
(i) if the account specified in the order does not exist at the time at which the order is served on the deposit-taker;
(ii) of any other accounts held with the deposit-taker at that time by the person against whom the order is made;
(j) requiring the deposit-taker at which an order is directed to notify the Commission in the prescribed manner and within a prescribed period if, after the time at which the order is served on the deposit-taker—
(i) the account specified in the order is closed;
(ii) a new account of any description is opened with the deposit-taker by the person against whom the order is made;
(k) as to circumstances in which the deposit-taker at which an order is directed, the person against whom the order is made and (in the case of an order made in respect of a joint account) the other account-holders may apply to the Commission for it to review the order and as to such a review;
(l) for the variation of orders;
(m) similar to that made by section 32A(8), in relation to any variation of an order;
(n) for an order to lapse in such circumstances as may be prescribed;
(o) as to the revival of an order in such circumstances as may be prescribed;
(p) allowing or requiring an order to be discharged;
(q) as to the giving of notice by the Commission to the deposit-taker that an order has lapsed or ceased to have effect.
(3) The Secretary of State may by regulations make provision with respect to priority as between an order under section 32A and—
(a) any other order under that section;
(b) any order under any other enactment relating to England and Wales which provides for deductions from the same account;
(c) any diligence done in Scotland against the same account.
(4) The Secretary of State shall by regulations make provision for any person affected to have a right to appeal to a court—
(a) against the making of an order under section 32A;
(b) against any decision made by the Commission on an application under regulations made under subsection (2)(k).
(5) On an appeal under regulations made under subsection (4)(a), the court shall not question the maintenance calculation by reference to which the order was made.
(6) Regulations under subsection (4) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of the court to which the appeal under the regulations lies.
Orders under section 32A: offences
32D (1) A person who fails to comply with the requirements of—
(a) an order under section 32A, or
(b) any regulation under section 32C which is designated by the regulations for the purposes of this paragraph,
commits an offence.
(2) It shall be a defence for a person charged with an offence under subsection (1) to prove that the person took all reasonable steps to comply with the requirements in question.
(3) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level two on the standard scale.
After section 32D of the Child Support Act 1991 (c. 48) (inserted by section 22 of this Act) insert—
Lump sum deductions: interim orders
32E (1) The Commission may make an order under this section if it appears to the Commission that a person (referred to in this section and sections 32F to 32J as “the liable person”) has failed to pay an amount of child support maintenance and—
(a) an amount stands to the credit of an account held by the liable person with a deposit-taker; or
(b) an amount not within paragraph (a) that is of a prescribed description is due or accruing to the liable person from another person (referred to in this section and sections 32F to 32J as the “third party”).
(2) An order under this section—
(a) may not be made by virtue of subsection (1)(a) in respect of an account of a prescribed description; and
(b) may be made by virtue of subsection (1)(a) in respect of a joint account which is held by the liable person and one or more other persons, and which is not of a description prescribed under paragraph (a) of this subsection, if (but only if) regulations made by the Secretary of State so provide.
(3) The Secretary of State may by regulations make provision as to conditions that are to be disregarded in determining whether an amount is due or accruing to the liable person for the purposes of subsection (1)(b).
(4) An order under this section—
(a) shall be expressed to be directed at the deposit-taker or third party in question;
(b) if made by virtue of subsection (1)(a), shall specify the account in respect of which it is made; and
(c) shall specify the amount of arrears of child support maintenance in respect of which the Commission proposes to make an order under section 32F.
(5) An order under this section may specify an amount of arrears due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amount would not be affected were the appeal to succeed; or
(b) where paragraph (a) does not apply, that the making of an order under section 32F in respect of the amount would nonetheless be fair in all the circumstances.
(6) The Commission shall serve a copy of any order made under this section on—
(a) the deposit-taker or third party at which it is directed;
(b) the liable person; and
(c) if the order is made in respect of a joint account, the other account-holders.
(7) An order under this section shall come into force at the time at which it is served on the deposit-taker or third party at which it is directed.
(8) An order under this section shall cease to be in force at the earliest of the following—
(a) the time at which the prescribed period ends;
(b) the time at which the order under this section lapses or is discharged; and
(c) the time at which an order under section 32F made in pursuance of the proposal specified in the order under this section is served on the deposit-taker or third party at which that order is directed.
(9) Where regulations have been made under section 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this section to have failed to pay the amount unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.
Lump sum deductions: final orders
32F (1) The Commission may make an order under this section in pursuance of a proposal specified in an order under section 32E if—
(a) the order in which the proposal was specified (“the interim order”) is in force;
(b) the period prescribed for the making of representations to the Commission in respect of the proposal specified in the interim order has expired; and
(c) the Commission has considered any representations made to it during that period.
(2) An order under this section—
(a) shall be expressed to be directed at the deposit-taker or third party at which the interim order was directed;
(b) if the interim order was made by virtue of section 32E(1)(a), shall specify the account specified in the interim order; and
(c) shall specify the amount of arrears of child support maintenance in respect of which it is made.
(3) The amount so specified—
(a) shall not exceed the amount of arrears specified in the interim order which remain unpaid at the time at which the order under this section is made; and
(b) if the order is made in respect of a joint account, shall not exceed the amount that appears to the Commission to be fair in all the circumstances.
(4) In determining the amount to be specified in an order made in respect of a joint account the Commission shall have particular regard—
(a) to the amount contributed to the account by each of the account-holders; and
(b) to such other matters as may be prescribed.
(5) An order under this section may specify an amount of arrears due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amount would not be affected were the appeal to succeed; or
(b) where paragraph (a) does not apply, that the making of an order under this section in respect of the amount would nonetheless be fair in all the circumstances.
(6) The Commission shall serve a copy of any order made under this section on—
(a) the deposit-taker or third party at which it is directed;
(b) the liable person; and
(c) if the order is made in respect of a joint account, the other account-holders.
Orders under sections 32E and 32F: freezing of accounts etc.
32G (1) During the relevant period, an order under section 32E or 32F which specifies an account held with a deposit-taker shall operate as an instruction to the deposit-taker not to do anything that would reduce the amount standing to the credit of the account below the amount specified in the order (or, if already below that amount, that would further reduce it).
(2) During the relevant period, any other order under section 32E or 32F shall operate as an instruction to the third party at which it is directed not to do anything that would reduce the amount due to the liable person below the amount specified in the order (or, if already below that amount, that would further reduce it).
(3) Subsections (1) and (2) have effect subject to regulations made under section 32I(1).
(4) In this section “the relevant period”, in relation to an order under section 32E, means the period during which the order is in force.
(5) In this section and section 32H “the relevant period”, in relation to an order under section 32F, means the period which—
(a) begins with the service of the order on the deposit-taker or third party at which it is directed; and
(b) (subject to subsection (6)) ends with the end of the period during which an appeal can be brought against the order by virtue of regulations under section 32J(5).
(6) If an appeal is brought by virtue of the regulations, the relevant period ends at the time at which—
(a) proceedings on the appeal (including any proceedings on a further appeal) have been concluded; and
(b) any period during which a further appeal may ordinarily be brought has ended.
(7) References in this section and sections 32H and 32J to the amount due to the liable person are to be read as references to the total of any amounts within section 32E(1)(b) that are due or accruing to the liable person from the third party in question.
Orders under section 32F: deductions and payments
32H (1) Once the relevant period has ended, an order under section 32F which specifies an account held with a deposit-taker shall operate as an instruction to the deposit-taker—
(a) if the amount standing to the credit of the account is less than the remaining amount, to pay to the Commission the amount standing to the credit of the account; and
(b) otherwise, to deduct from the account and pay to the Commission the remaining amount.
(2) If an amount of arrears specified in the order remains unpaid after any payment required by subsection (1) has been made, the order shall operate until the relevant time as an instruction to the deposit-taker—
(a) to pay to the Commission any amount (not exceeding the remaining amount) standing to the credit of the account specified in the order; and
(b) not to do anything else that would reduce the amount standing to the credit of the account.
(3) Once the relevant period has ended, any other order under section 32F shall operate as an instruction to the third party at which it is directed—
(a) if the amount due to the liable person is less than the remaining amount, to pay to the Commission the amount due to the liable person; and
(b) otherwise, to deduct from the amount due to the liable person and pay to the Commission the remaining amount.
(4) If an amount of arrears specified in the order remains unpaid after any payment required by subsection (3) has been made, the order shall operate until the relevant time as an instruction to the third party—
(a) to pay to the Commission any amount (not exceeding the remaining amount) due to the liable person; and
(b) not to do anything else that would reduce any amount due to the liable person.
(5) This section has effect subject to regulations made under sections 32I(1) and 32J(2)(c).
(6) In this section—
“the relevant time” means the earliest of the following—
the time at which the remaining amount is paid;
the time at which the order lapses or is discharged; and
the time at which a prescribed event occurs or prescribed circumstances arise;
“the remaining amount”, in relation to any time, means the amount of arrears specified in the order under section 32F which remains unpaid at that time.
Power to disapply sections 32G(1) and (2) and 32H(2)(b) and (4)(b)
32I (1) The Secretary of State may by regulations make provision as to circumstances in which things that would otherwise be in breach of sections 32G(1) and (2) and 32H(2)(b) and (4)(b) may be done.
(2) Regulations under subsection (1) may require the Commission's consent to be obtained in prescribed circumstances.
(3) Regulations under subsection (1) which require the Commission's consent to be obtained may provide for an application for that consent to be made—
(a) by the deposit-taker or third party at which the order under section 32E or 32F is directed;
(b) by the liable person; and
(c) if the order is made in respect of a joint account, by any of the other account-holders.
(4) If regulations under subsection (1) require the Commission's consent to be obtained, the Secretary of State shall by regulations provide for a person of a prescribed description to have a right of appeal to a court against the withholding of that consent.
(5) Regulations under subsection (4) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of the court to which the appeal under the regulations lies.
Regulations about orders under section 32E or 32F
32J (1) The Secretary of State may by regulations make provision with respect to orders under section 32E or 32F.
(2) The regulations may, in particular, make provision—
(a) as to circumstances in which amounts standing to the credit of an account are to be disregarded for the purposes of sections 32E, 32G and 32H;
(b) as to the payment to the Commission of sums deducted under an order under section 32F;
(c) allowing a deposit-taker or third party at which an order under section 32F is directed to deduct from the amount standing to the credit of the account specified in the order, or due to the liable person, a prescribed amount towards its administrative costs before making any payment to the Commission required by section 32H;
(d) with respect to notifications to be given to the liable person (and, in the case of an order made in respect of a joint account, to the other account-holders) as to amounts deducted, and amounts paid, under an order under section 32F;
(e) requiring a deposit-taker or third party at which an order under section 32E or 32F is directed to supply information of a prescribed description to the Commission, or to notify the Commission if a prescribed event occurs or prescribed circumstances arise;
(f) for the variation of an order under section 32E or 32F;
(g) for an order under section 32E or 32F to lapse in such circumstances as may be prescribed;
(h) as to the revival of an order under section 32E or 32F in such circumstances as may be prescribed;
(i) allowing or requiring an order under section 32E or 32F to be discharged.
(3) Where regulations under subsection (1) make provision for the variation of an order under section 32E or 32F, the power to vary the order shall not be exercised so as to increase the amount of arrears of child support maintenance specified in the order.
(4) The Secretary of State may by regulations make provision with respect to priority as between an order under section 32F and—
(a) any other order under that section;
(b) any order under any other enactment relating to England and Wales which provides for payments to be made from amounts to which the order under section 32F relates;
(c) any diligence done in Scotland against amounts to which the order under section 32F relates.
(5) The Secretary of State shall by regulations make provision for any person affected by an order under section 32F to have a right to appeal to a court against the making of the order.
(6) On an appeal under regulations under subsection (5), the court shall not question the maintenance calculation by reference to which the order under section 32F was made.
(7) Regulations under subsection (5) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of the court to which the appeal under the regulations lies.
Lump sum deduction orders: offences
32K (1) A person who fails to comply with the requirements of—
(a) an order under section 32E or 32F; or
(b) any regulation under section 32J which is designated by the regulations for the purposes of this paragraph,
commits an offence.
(2) It shall be a defence for a person charged with an offence under subsection (1) to prove that the person took all reasonable steps to comply with the requirements in question.
(3) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level two on the standard scale.
After section 32K of the Child Support Act 1991 (inserted by section 23 of this Act) insert—
Orders preventing avoidance
32L (1) The Commission may apply to the court, on the grounds that a person—
(a) has failed to pay an amount of child support maintenance, and
(b) with the intention of avoiding payment of child support maintenance, is about to make a disposition or to transfer out of the jurisdiction or otherwise deal with any property,
for an order restraining or, in Scotland, interdicting the person from doing so.
(2) The Commission may apply to the court, on the grounds that a person—
(a) has failed to pay an amount of child support maintenance, and
(b) with the intention of avoiding payment of child support maintenance, has at any time made a reviewable disposition,
for an order setting aside or, in Scotland, reducing the disposition.
(3) If the court is satisfied of the grounds mentioned in subsection (1) or (2) it may make an order under that subsection.
(4) Where the court makes an order under subsection (1) or (2) it may make such consequential provision by order or directions as it thinks fit for giving effect to the order (including provision requiring the making of any payments or the disposal of any property).
(5) Any disposition is a reviewable disposition for the purposes of subsection (2), unless it was made for valuable or, in Scotland, adequate consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of an intention to avoid payment of child support maintenance.
(6) Subsection (7) applies where an application is made under this section with respect to—
(a) a disposition or other dealing with property which is about to take place, or
(b) a disposition which took place after the making of the application on which the maintenance calculation concerned was made.
(7) If the court is satisfied—
(a) in a case falling within subsection (1), that the disposition or other dealing would (apart from this section) have the consequence of making ineffective a step that has been or may be taken to recover the amount outstanding, or
(b) in a case falling within subsection (2), that the disposition has had that consequence,
it is to be presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of avoiding payment of child support maintenance.
(8) In this section “disposition” does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.
(9) This section does not apply to a disposition made before the coming into force of section 24 of the Child Maintenance and Other Payments Act 2008.
(10) In this section “the court” means—
(a) in relation to England and Wales, the High Court;
(b) in relation to Scotland, the Court of Session or the sheriff.
(11) An order under this section interdicting a person—
(a) is effective for such period (including an indefinite period) as the order may specify;
(b) may, on application to the court, be varied or recalled.
27 Disqualification for holding or obtaining travel authorisation
Before section 40 of the Child Support Act 1991 (c. 48) insert—
Disqualification for holding or obtaining travel authorisation
39B (1) The Secretary of State may apply to the court for an order under this section against a person where—
(a) the Secretary of State has sought to recover an amount from the person by means of taking enforcement action by virtue of section 35 or 38, or by means of a third party debt order or a charging order by virtue of section 36;
(b) the whole or any part of the amount remains unpaid; and
(c) the Secretary of State is of the opinion that there has been wilful refusal or culpable neglect on the part of the person.
(2) For the purposes of subsection (1)(a), the Secretary of State is to be taken to have sought to recover an amount by means of a charging order if an interim charging order has been made, whether or not any further steps have been taken to recover the amount.
(3) A person against whom an order under this section is made is disqualified for holding or obtaining a travel authorisation while the order has effect.
(4) On an application under subsection (1) for an order against a person the court shall (in the presence of that person) inquire as to—
(a) whether the person needs a travel authorisation to earn a living;
(b) the person's means;
(c) whether there has been wilful refusal or culpable neglect on the part of the person.
(5) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the person, it may make an order under this section.
(6) The court may not take action under both this section and section 40.
(7) On an application under subsection (1) the court shall not question—
(a) the liability order by reference to which the Secretary of State acted as mentioned in paragraph (a) of that subsection; or
(b) the maintenance calculation by reference to which that liability order was made.
(8) An order under this section shall specify the amount in respect of which it is made, which shall be the aggregate of—
(a) the amount sought to be recovered as mentioned in subsection (1)(a), or so much of it as remains unpaid; and
(b) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under this section.
(9) A court which makes an order under this section shall require the person to whom it relates to produce any travel authorisation that the person holds.
(10) The court shall send to the prescribed person any travel authorisation produced to the court under subsection (9).
(11) Where a court—
(a) makes an order under this section, or
(b) allows an appeal against such an order,
it shall send notice of that fact to the Secretary of State; and the notice shall contain such particulars and be sent in such manner and to such address as the Secretary of State may determine.
(12) In this section “travel authorisation” means—
(a) a United Kingdom passport (within the meaning of the Immigration Act 1971);
(b) an ID card issued under the Identity Cards Act 2006 that records that the person to whom it has been issued is a British citizen.
(13) In this section (except for the purposes of subsection (11)(b)) and in sections 39C to 39E, “court” means—
(a) in relation to England and Wales, a magistrates' court;
(b) in relation to Scotland, the sheriff.
Period for which orders under section 39B are to have effect
39C (1) Disqualification by an order under section 39B shall be for such period not exceeding two years as the court may specify in the order.
(2) On making an order under section 39B, the court may include in the order provision suspending the running of the period for which the order is to have effect until such day and on such conditions (if any) as the court thinks just.
(3) After making such an order the court may by order suspend the running of the period for which it has effect until such day and on such conditions (if any) as the court thinks just.
(4) The powers conferred by subsections (2) and (3) may be exercised by the court only—
(a) if the person against whom the order under section 39B is made agrees to pay the amount specified in the order; or
(b) if the court is satisfied that the suspension in question is justified by exceptional circumstances.
(5) The Secretary of State may make a further application under section 39B if the amount specified in an order under that section has not been paid in full by the end of the period for which the order has effect.
Power to order search
39D (1) On making an order under section 39B the court may order the person against whom the order is made to be searched.
(2) Any money found on such a search shall, unless the court otherwise directs, be applied towards payment of the amount specified under section 39B(8); and the balance (if any) shall be returned to the person searched.
(3) The court shall not allow the application under subsection (2) of money found on a search under subsection (1) if it is satisfied that the money does not belong to the person searched.
Variation and revocation of orders following payment
39E (1) If part of the amount specified in an order under section 39B is paid to any person authorised to receive it, the court may, on an application made by the Secretary of State or the person against whom the order is made, by order—
(a) reduce the period for which the order under section 39B is to have effect; or
(b) revoke the order under section 39B.
(2) If the whole of the amount specified in an order under section 39B is paid to any person authorised to receive it, the court shall, on an application made by the Secretary of State or the person against whom the order is made, by order revoke the order under section 39B.
(3) The Secretary of State may make representations to the court as to the amount which should be paid before it would be appropriate to make an order under subsection (1) revoking an order under section 39B, and the person against whom the order was made may reply to those representations.
(4) The court may exercise the powers conferred on it by subsection (1) or (2) without the need for an application where money found on a search under section 39D(1) is applied towards payment of the amount specified in the order under section 39B.
(5) Where a court makes an order under this section, it shall send notice of that fact to the Secretary of State; and the notice shall contain such particulars and be sent in such manner and to such address as the Secretary of State may determine.
Power to make supplementary provision
39F The Secretary of State may by regulations—
(a) make provision in relation to orders under section 39B corresponding to the provision that may be made under section 40(11);
(b) make provision for sections 39C to 39E to have effect with prescribed modifications in cases where a person against whom an order under section 39B has effect is outside the United Kingdom.
Application of sections 39B and 39F to Scotland
39G (1) In their application to Scotland, sections 39B and 39F have effect with the following modifications.
(2) In section 39B(6) for “section 40” substitute “ section 40A ”.
(3) For section 39F substitute—
Power to make supplementary provision
39F In relation to orders under section 39B—
(a) the Secretary of State may by regulations make provision—
(i) for sections 39C to 39E to have effect with prescribed modifications in cases where a person against whom such an order has effect is outside the United Kingdom;
(ii) that a statement in writing to the effect that wages of any amount have been paid to a person during any period, purporting to be signed by or on behalf of the person's employer, shall be sufficient evidence of the facts stated; and
(b) the power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make provision corresponding to that which may be made by virtue of section 40A(8).
After section 41B of the Child Support Act 1991 (c. 48) insert—
Power to treat liability as satisfied
41C (1) The Secretary of State may by regulations—
(a) make provision enabling the Commission in prescribed circumstances to set off liabilities to pay child support maintenance to which this section applies;
(b) make provision enabling the Commission in prescribed circumstances to set off against a person's liability to pay child support maintenance to which this section applies a payment made by the person which is of a prescribed description.
(2) Liability to pay child support maintenance shall be treated as satisfied to the extent that it is the subject of setting off under regulations under subsection (1).
(3) In subsection (1), the references to child support maintenance to which this section applies are to child support maintenance for the collection of which the Commission is authorised to make arrangements.
32 Power to accept part payment of arrears in full and final satisfaction
After section 41C of the Child Support Act 1991 (inserted by section 31 of this Act) insert—
Power to accept part payment of arrears in full and final satisfaction
41D (1) The Secretary of State may, in relation to any arrears of child support maintenance, accept payment of part in satisfaction of liability for the whole.
(2) The Secretary of State must by regulations make provision with respect to the exercise of the power under subsection (1).
(3) The regulations must provide that unless one of the conditions in subsection (4) is satisfied the Secretary of State may not exercise the power under subsection (1) without the appropriate consent.
(4) The conditions are—
(a) that the Secretary of State would be entitled to retain the whole of the arrears under section 41(2) if Secretary of State recovered them;
(b) that the Secretary of State would be entitled to retain part of the arrears under section 41(2) if Secretary of State recovered them, and the part of the arrears that the Secretary of State would not be entitled to retain is equal to or less than the payment accepted under subsection (1).
(5) Unless the maintenance calculation was made under section 7, the appropriate consent is the written consent of the person with care with respect to whom the maintenance calculation was made.
(6) If the maintenance calculation was made under section 7, the appropriate consent is—
(a) the written consent of the child who made the application under section 7(1), and
(b) if subsection (7) applies, the written consent of the person with care of that child.
(7) This subsection applies if—
(a) the maintenance calculation was made under section 7(2), or
(b) the Secretary of State has made arrangements under section 7(3) on the application of the person with care.
After section 41D of the Child Support Act 1991 (c. 48) (inserted by section 32 of this Act) insert—
Power to write off arrears
41E (1) The Secretary of State may extinguish liability in respect of arrears of child support maintenance if it appears to the Secretary of State—
(a) that the circumstances of the case are of a description specified in regulations made by the Secretary of State, and
(b) that it would be unfair or otherwise inappropriate to enforce liability in respect of the arrears.
(2) The Secretary of State may by regulations make provision with respect to the exercise of the power under subsection (1).
(1) In section 4(10) of the Child Support Act 1991 (c. 48) (exclusion of application for maintenance calculation), after paragraph (aa) insert—
(ab) a maintenance agreement—
(i) made on or after the date prescribed for the purposes of paragraph (a); and
(ii) registered for execution in the Books of Council and Session or the sheriff court books,
is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or
.
(2) In section 7(10) of that Act (exclusion of application by child in Scotland for maintenance calculation), at the end of paragraph (b) insert
; or
(c) a maintenance agreement—
(i) made on or after the date prescribed for the purposes of paragraph (a); and
(ii) registered for execution in the Books of Council and Session or the sheriff court books,
is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made.
(3) In section 9(3) of that Act (agreements about maintenance), after “4(10)(a)” insert “ and (ab) ”.
(1) In section 14A of the Child Support Act 1991 (information_offences), after subsection (3) insert—
(3A) In the case of regulations under section 14 which require a person liable to make payments of child support maintenance to notify a change of address, a person who fails to comply with the requirement is guilty of an offence.
(2) In that section, in subsection (4), after “subsection (3)” insert “ or (3A) ”.
In section 42(2) of the Child Support Act 1991 (examples of cases in relation to which the power under subsection (1) to prescribe circumstances in which a case is to be treated as a special case for the purposes of the Act may be exercised), at the end insert—
(g) the same persons are the parents of two or more children and each parent is—
(i) a non-resident parent in relation to one or more of the children, and
(ii) a person with care in relation to one or more of the children.
After section 43 of the Child Support Act 1991 (c. 48) insert—
Recovery of arrears from deceased's estate
43A (1) The Secretary of State may by regulations make provision for the recovery from the estate of a deceased person of arrears of child support maintenance for which the deceased person was liable immediately before death.
(2) Regulations under subsection (1) may, in particular—
(a) make provision for arrears of child support maintenance for which a deceased person was so liable to be a debt payable by the deceased's executor or administrator out of the deceased's estate to the Commission;
(b) make provision for establishing the amount of any such arrears;
(c) make provision about procedure in relation to claims under the regulations.
(3) Regulations under subsection (1) may include provision for proceedings (whether by appeal or otherwise) to be instituted, continued or withdrawn by the deceased's executor or administrator.
40 Disclosure of information to credit reference agencies
After section 49C of the Child Support Act 1991 (c. 48) (inserted by section 39 of this Act) insert—
Disclosure of information to credit reference agencies
49D (1) Subject to subsection (3), the Secretary of State may supply qualifying information to a credit reference agency for use for the purpose of furnishing information relevant to the financial standing of individuals.
(2) The reference in subsection (1) to qualifying information is to information which—
(a) is held by the Secretary of State for the purposes of this Act,
(b) relates to a person who is liable to pay child support maintenance, and
(c) is of a prescribed description.
(3) Information may not be supplied under subsection (1) without the consent of the person to whom it relates, unless a liability order against that person is in force.
(4) No provision may be made under section 14(3) authorising the supply of information by the Secretary of State to credit reference agencies.
(5) In this section, “credit reference agency” has the same meaning as in the Consumer Credit Act 1974.
After section 51 of the Child Support Act 1991 insert—
Pilot schemes
51A (1) Any regulations made under this Act may be made so as to have effect for a specified period not exceeding 24 months.
(2) Regulations which, by virtue of subsection (1), are to have effect for a limited period are referred to in this section as a “pilot scheme”.
(3) A pilot scheme may provide that its provisions are to apply only in relation to—
(a) one or more specified areas or localities;
(b) one or more specified classes of person;
(c) persons selected by reference to prescribed criteria, or on a sampling basis.
(4) A pilot scheme may make consequential or transitional provision with respect to the cessation of the scheme on the expiry of the specified period.
(5) A pilot scheme may be replaced by a further pilot scheme making the same or similar provision.
For section 55 of the Child Support Act 1991 (c. 48) substitute—
Meaning of “child”
55 (1) In this Act, “child” means (subject to subsection (2)) a person who—
(a) has not attained the age of 16, or
(b) has not attained the age of 20 and satisfies such conditions as may be prescribed.
(2) A person who is or has been party to a marriage or civil partnership is not a child for the purposes of this Act.
(3) For the purposes of subsection (2), “marriage” and “civil partnership” include a void marriage and a void civil partnership respectively.
43 Extinction of liability in respect of interest and fees
Any outstanding liability in respect of the following is extinguished—
(a) interest under the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations 1992 (S.I. 1992/1816);
(b) fees under the Child Support Fees Regulations 1992 (S.I. 1992/3094).
45 Liable relative provisions: exclusion of parental duty to maintain
(1) In section 105 of the Social Security Administration Act 1992 (c. 5) (failure to maintain), for subsection (3) substitute—
(3) Subject to subsection (4), for the purposes of this Part, a person shall be liable to maintain another person if that other person is—
(a) his or her spouse or civil partner, or
(b) a person whom he or she would be liable to maintain if sections 78(6)(c) and (9) had effect for the purposes of this Part.
(2) In that section, in subsection (4), for the words from “a person” to the end, substitute “ subsection (3)(b) shall not apply ”.
(1) A claim for a payment under this Part may be made by—
(a) a person with diffuse mesothelioma, or
(b) a dependant of a person who, immediately before death, had diffuse mesothelioma.
(2) The Secretary of State must make the payment to the claimant if satisfied that the conditions of entitlement in section 47 are fulfilled.
(3) Regulations—
(a) may prescribe the amount of any payment;
(b) may prescribe different amounts for different cases or classes of cases or for different circumstances.
(4) In this Part—
“dependant” has the meaning given by section 3 of the Pneumoconiosis etc. (Workers' Compensation) Act 1979 (c. 41) (“the 1979 Act”);
“diffuse mesothelioma” has the same meaning as in the 1979 Act.
(5) Where, because of section 3(1)(b) or (d) of the 1979 Act (children, siblings etc.), a payment may be claimed by two or more persons, the payment is to be made to one of them or divided between some or all of them as the Secretary of State thinks fit.
(1) In the case of a person who has diffuse mesothelioma, the conditions of entitlement are—
(a) that no payment within subsection (3) has been made in consequence of the disease;
(b) that the person is not eligible for any payment in consequence of the disease that is of a description prescribed by regulations;
(c) that such requirement, if any, as may be prescribed by regulations as to the person's connection with the United Kingdom is satisfied.
(2) In the case of a dependant of a person who, immediately before death, had diffuse mesothelioma, the conditions of entitlement are—
(a) that no payment within subsection (3) has been made in consequence of the disease to that or another dependant or to the deceased or the deceased's personal representatives;
(b) that the dependant is not, and the deceased was not, eligible for any payment in consequence of the disease that is of a description prescribed by regulations;
(c) that such requirement, if any, as may be prescribed by regulations as to the deceased's connection with the United Kingdom is satisfied.
(3) The payments referred to in subsections (1)(a) and (2)(a) are—
(a) a payment under this Part or under corresponding provision made for Northern Ireland;
(b) a payment under the 1979 Act or under corresponding provision made for Northern Ireland;
(ba) a payment under the Diffuse Mesothelioma Payment Scheme (for the scheme, see the Mesothelioma Act 2014);
(c) an extra-statutory payment;
(d) damages or a payment in settlement of a claim for damages;
(e) a payment of a description prescribed by regulations.
(4) A payment is to be disregarded for the purposes of subsection (1)(a) or (2)(a) if it has been, or is liable to be, repaid—
(a) under section 49 of this Act or under corresponding provision made for Northern Ireland;
(b) under section 5 of the 1979 Act or under corresponding provision made for Northern Ireland;
(c) under the terms of an extra-statutory payment;
(d) in circumstances prescribed for the purposes of this section by regulations.
(5) In this section “extra-statutory payment” has the meaning given by section 1A(5)(d) of the Social Security (Recovery of Benefits) Act 1997 (c. 27).