Rachel Baul

My previous posts about the Child Support Agency and its replacement, C-MEC, drew a number of pointed comments and questions from readers. Thank you to everyone who got in touch.

I would like to emphasise that every case is different and my responses are not intended as substitutes for tailored legal advice. If there are question marks over your case, you should consult a solicitor. However, I very much hope that my answers may be of benefit to questioners and others.

Question: I have recently received the assessment from the CSA. My son’s father has to pay £5 a week – he has lied about his income, and is self employed. He is actually a very successful TV producer who earns at least £50k a year. What can I do to question this? It’s a disgrace and unjust. It reflects a serious loophole in the system and I want to fight it all the way – not just for my son but for other children and their mums. Any advice would be gratefully received.

Rachel says: If you can demonstrate his income, either through paperwork such as proof of contracts or by his standard of living (this may require a private investigator), you can apply to a CSA team that specialises in working out payment calculations for those whose incomes are not easy to ascertain. Unfortunately, when a person’s income is largely cash or fluctuates heavily, it is always difficult to prove that the actual income is greater than the amount disclosed by that person.

I seem to be having a lot of trouble with the CSA the moment. I had my first call from them on September the 20th. They asked me if I would like to complete the application there and then, or have the forms posted out. I explained I was at work so I would like them posted out to me. When my ex partner left the family home months prior to this conversation, she had her mail redirected to her new home. Unfortunately, a lot of my mail was redirected too so I never got the forms.

I had another call from the CSA on the 13th October. I agreed to complete the application on the phone and was informed that payments would be effective from the 13th October. I was advised by the case worker to put some money aside to cover the next two weekly payments of October. I received several letters confirming that the effective date is the 13th but whilst on the telephone with them today, they said it was their mistake and the effective date is 20th September. They have informed me that they will take 40% of my monthly salary until I catch up.

Rachel says: Whenever an assessment is made, it is backdated to the date of the application. Therefore the non-resident parent may end up paying considerably more than 25 per cent of their net salary.

Payment of arrears is compulsory, but there is one course of action available to you. You can ring the CSA and apply to pay the arrears over a longer period of time. Note that this has to be agreed with them direct.  Usually, they seek to recoup arrears within 12 months. However, if the arrears stretch across a period of time that is in excess of 12 months, you may wish to arrange to repay over 2 years or more. See below for more details.

I have recently been contacted by the CSA and asked to pay for my two children. I had been offering my partner 20% of my net salary for weeks but she continued to refuse it because she was convinced that she would get 20% of my gross salary. The CSA have now told me how much I have to pay and they are refusing to take my student loan into consideration. I believe this is unfair because I incurred this debt whilst I was with my partner and after my children were born. Before I graduated, I was unemployed and was earning nothing. Had I not taken the student loan, I would not be in a position to pay the amount that I am able to at the current time.

The family home was signed over to me recently and I will struggle to make the payments and pay – what is in effect – more than 20% of my salary. The response from the CSA was “Tell the student loan body that you can no longer pay them”. My student loan is taken directly from my salary.

Could you please tell me if my student loan should be considered?

Rachel says: I’m afraid that your student loan is not considered when calculating CSA payments. However, you may be eligible for a variation of maintenance (as described above).

Eligibility is centred upon factors that you believe should be taken into account. These can include student loans and/or other deductions at source, or if you are self employed and have lost a contract or source of income since the last tax year.

You can apply for a variation of the maintenance through the CSA by applying with evidence of the factors that you would like to be taken into consideration.  Since October 2008 you have been able to enter into a private agreement and opt out of the CSA.  The CSA is becoming more flexible  – but unfortunately, this is at their discretion and they are not compelled to take these factors into consideration.

When my son was born I had no reason to question whether or not I was the father until some time later when an affair was uncovered. My (now) ex-partner never allowed me to be put on the birth certificate, nor does my son have my last name. He was told not to call me “daddy” and I have no parental rights. My ex says I will only ever get them “over her dead body”. Lastly and this may have just been out of spite when the relationship ended, but she once said to me, “How does it feel to pay for another man’s child?”

I reported this to the CSA whose response was to call my ex and ask her if I am the father. She obviously said I was and in the eyes of the CSA my claim was unfounded.

Now the CSA say I need to apply for a section 20 in court to get a DNA test carried out, but that’s all the information they will give me. Do you have any advice for people in my situation who have signed the form saying they where the father but later have had doubts and would like to clarify the situation?

Rachel says: One particularly tragic circumstance, which has cropped up on the comments section more than once, is when a father accepts the CSA calculation and begins paying out, only to discover at a later date that he may not be the biological father of a child.

When first contacted by the CSA, a non-resident father is offered the opportunity to take a paternity test.  The non-resident parent pays for the test and if he is shown not to be the father, he is reimbursed.  If the test is refused and a person wishes to contest at a later date, there will be no such reimbursement. When a paternity test is taken at a later date, the parent must apply through the magistrates’ courts for a declaration of non-parentage and to obtain a paternity test from a specialist firm.  We are able to assist with this somewhat complex procedure and liaise with the CSA to ensure that matters are resolved.

It is important to note that the CSA does not refund child maintenance that has already been paid prior to contesting parentage.

Also, even if a person is not the biological parent of a child, they are able to apply for contact with the child on the basis that they have been a de facto parent. We can assist a step-parent or equivalent in applying for contact with the children of their ex-spouse or ex-partner.

Will I receive more maintenance if my child is disabled?

Rachel says: No. The CSA uses a flat rate calculator and does not factor in special educational or care needs.  We have been asked if, in such circumstances, the court can order a top-up of maintenance. Unfortunately, this is not a case unless the non-resident parent has a net income in excess of £2,000 per week.

However, the resident parent can make an application through the courts in respect of provision of accommodation, capital and school fees where appropriate.

Your site contains a wealth of detailed information, especially your reference to the Child Maintenance and Enforcement Commission (CMEC) and I would be grateful to receive clarification of reported implementation dates for revised legislation detailed hereunder:

• CMEC will operate on the percentage based scheme as seen in CS2 rules but income of the NRP will be taken from the latest available tax information.

• Child maintenance will be calculated on the gross income of the NRP.

• Percentage rates will be set at 12% for one child 16% for two children and 19% for three or more children.

• Increase the capping of income from £2000 pw to £3000 pw

• One year fixed term payment schedules will be imposed, with variations to maintenance payable allowed only if a minimum 25% change of income is reported.

Rachel says: There has been a great deal of interest in what the CSA will charge going forward. Unfortunately, at the time of writing we are still awaiting confirmation from CMEC or the CSA as to what percentage of income will be used to calculate maintenance in the future. We will keep you posted…

Finally, a note on appeals:

I have been charged arrears and the CSA cannot provide a breakdown of these arrears. What can I do? I’m still having to pay, although I know for a fact I do not owe them. This is on top of what I already pay – in total, £320 out of £1000 a month

Rachel says: An appeal must be made within 1 month of the CSA’s decision, if it is received outside of the time limit then the appeal may be disregarded.  The CSA produce a leaflet detailing how to appeal and this includes an appeal application form.  However, when considering an appeal consider whether you are appealing the calculation or the timeframe over which this has to be paid.  A risk of appeal is that the calculation may go up as well as down.

Upon receiving a valid appeal the CSA will contact you to try and resolve matters, if it is not resolved a submission is made by the CSA to the appeals tribunal.  This includes all of the information that the CSA used to make their decision and all documents and information provided with the appeal application.  This can be a long process and you are required to pay the assessed rate of child maintenance throughout.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

A guest post by Rachel Baul of Stowe Family Law.

Many lawyers are sceptical that C-MEC can provide effective solutions to the CSA’s shortcomings.

Further to my last guest post, which answered some common questions about the CSA, here are ten things that you should know about the changes currently in hand.

The CSA is currently undergoing huge revisions. Later this year it will be phased out and replaced by C-MEC (Child Maintenance and Enforcement Commission).  All cases should have been transferred to C-MEC by the end of 2011. C-MEC will become fully operational from 2013-2014.

C-MEC aims to simplify and streamline assessments, and improve the collection process. A number of changes are planned, and he most significant of these are as follows:

1. The way that maintenance is calculated is set to change. As of 27 October 2008, parents can choose to opt out of the CSA by reaching agreement between themselves.  The CSA has set up a team to assist parents in coming to a written agreement. Please note that this agreement is not legally binding. If it fails, parties will have to apply to the CSA for an enforceable agreement. This new option will apply both to new cases, and to existing cases and arrangements.
2. It will no longer be compulsory for a parent on benefits to apply to the CSA.
3. A parent in receipt of benefits will be able to retain a greater amount of the child maintenance paid through the CSA: £20 per week instead of £10.  However the Child Maintenance Bonus for parents in receipt of maintenance returning to work will end from 26 November 2008.
4. From April 2010 money parents receive in child maintenance payments will not be taken into account when calculating that parent’s out-of-work benefits or Housing and Council Tax benefits.
5. C-MEC will differ from the CSA in that it will use gross income rather than net income (“take-home pay|) to determine CSA liability. The details have yet to be confirmed, but the change could mean there will no longer be an allowance made for large pension contributions – which were previously deducted from the “net” calculation. The formula for maintenance is expected to change from net to gross in 2011.
6. The flat rate of maintenance will increase for those earning less than £200 net per week, from £5 per week to £7.
7. C-MEC will have greater powers of enforcement. These will include deducting child maintenance directly from the non-resident parent’s bank accounts, and -confiscating passports, curfews and powers to negotiate repayment, or to reclaim payment from the estate of a deceased parent.  C-MEC also will have greater powers to enforce its decisions without the need to apply to court.
8. The rules governing the payment of maintenance arrears are to be changed. They will affect the processes and procedures that are followed when the agency seeks to enforce the payment of maintenance, and the changes are intended to increase effectiveness and efficiency. Again, the details have yet to be confirmed.
9. A change to enforcement will mean that in a large percentage of cases, C-MEC will no longer need to apply to the court to take enforcement action against a non-resident parent who refuses to pay. The new procedure is more streamlined, and purely administrative.
10. Many lawyers – myself included – are sceptical that C-MEC can provide effective solutions to the CSA’s many shortcomings. To date there is a lack of clarity in exactly what formula will be used to calculate maintenance and how, if at all C-MEC will be more efficient that the CSA.  It has been reported that in order to make the necessary savings and increase effectiveness up to 43% of the current case load will have to be scrapped. There is also controversy about a proposed scheme to “name and shame” parents who do not pay maintenance. It has been viewed by many parents’ rights groups as a mere continuation of a flawed system.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

When I was a pupil at Leeds Girls’ High School, (how many years ago?!!!) each week we had to learn some Shakespeare by heart. The meaning of what we learned was never explained beforehand, and we had to work it out for ourselves. The following day we had to take turns to recite it from memory, with all the meaning we had attributed to it. This was quite difficult to do, but one speech fascinated me more than the others. I have never forgotten learning Portia’s role as the male lawyer in the Merchant of Venice, and her words about the “quality of mercy” in the law. This famous speech argues that there is room for moral obligations within the law’s confines.

I think Portia fashioned my own approach to the law, and fired up my enthusiasm for becoming a lawyer. I liked her clever arguments. I liked her understanding of justice because it is mine too.  “Justice” can often mean something completely different to two people caught up on opposing sides of the same case. Justice is about more than administration; it is about tempering the application of law with mercy, to bring about the right result. This is how the law is applied within the English legal system, in both the civil and criminal courts. It is a system within which I have been privileged to work, and I love it.

However, reading The Times about the new reforms to the Child Support Agency, I wondered for the umpteenth time when the principles of mercy and justice will come into play.

To date, they have been lacking from a system that is administrative, rather than judicial. I believe that if mercy and justice were applied on a judicial basis, and discretion was introduced to make the system more flexible, the CSA would flourish.

I was one of the first appointed Chairs of the Child Support Appeals Tribunal, hearing appeals against CSA assessments. I held judicial office – but quickly discovered that I had no judicial discretion. Even if a decision was plainly unfair to anyone with a modicum of common sense, I couldn’t find it to be legally unfair.  In effect, all I was empowered to do was correct any errors in the computation. I then had to complete a complex decision statement explaining why I had upheld the assessment, or directed it to be “re-determined” (sent back again for yet further complicated computer calculations).

This was not my understanding of the administration of justice. I could not, in all conscience, be part of a purely administrative system of law. So, I resigned.

I watched from the sidelines as – predictably – the system tumbled into ruins. Millions of devastated people were left behind in its wake. I watched again as a revised system went exactly the same way, costing all us taxpayers billions into the bargain.

The relatively untrained and inexperienced CSA staff, who had to try and make sense of this mess, had my sympathy. I knew it was an impossible task for anybody other than trained family lawyers and family judges, because child maintenance is part of their everyday workload. I watched, horrified, as crooks who played the system and bamboozled CSA employees got away scot free. Meanwhile naïve and trusting parents and children, desperate for money, were ignored. Where did the justice go?

Now the  CSA is to be re-branded and the ridiculously titled “Child Maintenance and Enforcement Commission” (C-MEC) will be the third attempt to get it right. Sorry to say, I haven’t the slightest confidence that it will.

I’m not the only one. Patrick Parkinson, who designed the Australian model of the CSA, has said we are having a “nervous breakdown” with this third system and has pointed out further pitfalls.

So I ask again: why not return the CSA’s duties to the professionals who do every other part of the job in family law? Give them a system that is cost-friendly and incorporates discretion.  Let the real professionals get stuck into the problem.

If justice could be applied as it should be – to rein in those who hope to “get away with it” and alleviate the hardships of those who are suffering – I am certain that strong, positive results could be achieved.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.