The sorry standards of the child support system

child support

“This case has a long and sorry history, even by the standards of the child support system.”

So begins the judgment of Nicholas Wikeley, Judge of the Upper Tribunal, in SG v Secretary of State for Work and Pensions and CL (CSM) (No. 2) (Child support : calculation of income). A pretty damning, though entirely realistic, indictment of our appalling child support system.

What kind of case can be so bad as to fall beneath even the low standards of the child support system? Judge Wikeley continues:

“It is difficult to know where to start, other than by saying the appeal relates to a Child Support Agency (CSA) decision originally taken in March 2004 and then revised in June and August 2007 on the father’s child support liability which had effect from 16 August 2002. The ‘child’ in question is now aged 26 and, according to her mother, no child maintenance has been paid since 2002.”

So, we have a case that has been running for fourteen years, no child maintenance paid during that time and a ‘child’ who has been an adult for eight years. Now, I know that the court-based child maintenance system that the child support system replaced was not perfect, but I don’t recall it ever failing a family as completely as that. Even if the father does pay any child support in future, it will obviously not benefit the child – the very rationale of any child support/maintenance system.

The litigation history of SG v Secretary of State for Work and Pensions and CL was quite complex, but essentially it was one of those cases in which the parent with care claimed that the non-resident parent (‘NRP’) had a substantial income and the NRP claimed that he had little or no income and could not therefore afford to pay any child support. We’ve all seen such cases many times before.

That the child support system has failed for so long to resolve such a fundamental issue is, quite frankly, an absurdity which brings the whole system into disrepute.

Very briefly, the facts of the case were as follows. The parents separated in 1993. At some point after that the mother applied for, and presumably obtained, child support. In June 2002 the father telephoned the CSA to report that he was unemployed, had no income and was claiming jobseeker’s allowance. Eventually, in March 2004 the Agency decided that the father was liable to pay £0.00 in child support as from August 2002. The mother appealed that decision and evidence came to light that the father may have actually had a substantial income. In particular, the father stated in a mortgage application form in May 2004 that he was a company director with a haulage firm on a salary of £80,000. Accordingly, on the basis that that was the father’s income, in June 2007 the CSA fixed the father with an assessment of £136.89 a week, with effect from August 2002. The father appealed against that decision, and the question essentially has not been resolved since, with the case ping-ponging between the First-tier Tribunal, the Upper Tribunal and the Court of Appeal.

I don’t really want to blame anyone working within the child support system (by which I mean the CSA, its successors, and the tribunals and courts involved in the various appeals) for this state of affairs, although there certainly have been errors along the way. For example, the Agency mislaid a substantial amount (if not all) of the pre-2007 paperwork relating to the mother’s application for child support, and that certainly did not help matters. However, the situation is really the fault of the system. Surely, under the old system the court could have done better? I hardly think it could have done worse. With everything being kept within the one (court) system (rather than CSA, tribunals and court), from original assessment of liability to ultimate appeal and enforcement, the likelihood must surely be that the court would have long since resolved the matter.

The outcome of Judge Wikeley’s decision is that the case will be referred back to the First-tier Tribunal for consideration. I won’t hold my breath, but I hope for the sake of all concerned that that tribunal’s decision will finally bring this whole sad affair to a conclusion.

The full judgment of SG v Secretary of State for Work and Pensions and CL can be read here.

Photo by Images Money via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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4 comments

Luke - May 5, 2016 at 10:43pm

The whole system from top to bottom is a shambles on child maintenance – and John as usual seems to be trying to at least partially let the courts off the hook here for their part in the incompetence shown – the only one who at least appears to have come out of this case with any credit is the mother who raised the child presumably successfully without any support at all.

Jo Archer - May 5, 2016 at 11:39pm

Let’s hope the Inland Revenue are on his back!

Do you have any info about the extent to which the CSA themselves have investigated this man’s claims?

Nordic - May 7, 2016 at 10:10pm

I suspect this case arose because the CMS only have access to PAYE data. Hence, the only data they can access directly from HMRC is salary income. For reasons which are completely beyond me, capital and dividend income is not reported to CMS.
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John is therefore right when he refrains from blaming the CMS staff, because they simply do not have access to the relevant data. However, he is of course completely wrong when he suggests that this suggests child maintenance should go back to the courts. For child maintenance, rules based systems are vastly superior to the courts, provided the rules are thought through and well designed. To fix this particular issue, HMRC needs to provide the CMS with data on the total taxable income across all income source and not just salaried income. HMRC have this data (which is a single number). They just don’t provide it to the CMS.

vito - May 23, 2016 at 2:09pm

does the CSA have jurisdiction if my child reside in another country member of the EU?
if not if a court has to decide the maintenance, will it be based on the UK tax system or the tax system of the child residence? will be done in GBP or EUR? will take in consideration cost of living in each country?

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