The Child Support Departure Direction and Consequential Amendments Regulations 1996

[F1 PART II E+W+S PROCEDURE ON AN APPLICATION FOR A DEPARTURE DIRECTION AND PRELIMINARY CONSIDERATION

Textual Amendments

F1 Instrument Regulations revoked (coming into force in accordance with reg. 1(4) of the amending S.I.) by The Child Support (Meaning of Child and New Calculation Rules) (Consequential and Miscellaneous Amendment) Regulations 2012 (S.I. 2012/2785), reg. 10(d)

Application for a departure direction E+W+S

4.— (1) Every application shall be made in writing on a form (a “departure direction application form") provided by the Secretary of State, or in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case.

(2) Departure direction application forms shall be supplied without charge by such persons as the Secretary of State authorises for that purpose.

(3) Every application shall be given or sent to the Secretary of State or to such persons as he may authorise for that purpose.

(4) Where an application is defective at the date when it is received, or has been made in writing but not on the departure direction application form provided by the Secretary of State, the Secretary of State may refer that application to the person who made it or, as the case may be, supply him with a departure direction application form.

(5) In a case to which paragraph (4) applies, if the departure direction application form is received by the Secretary of State properly completed—

(a) within the specified period, he shall treat the application as if it had been duly made in the first instance;

(b) outside the specified period, unless he is satisfied that the delay has been unavoidable, he shall treat the application as a fresh application made on the date upon which the properly completed departure direction application form was received.

(6) An application which is made on a departure direction application form is, for the purposes of paragraph (5), properly completed if completed in accordance with the instructions on the form and defective if not so completed.

(7) In a case to which paragraph (4) applies, the specified period for the purposes of paragraph (5) shall be the period of 14 days commencing with the date upon which, in accordance with paragraph (4), the application is referred to the person who made the defective application or a departure direction application form is given or sent to the person who made a written application but not on a departure direction application form.

(8) For the purposes of paragraph (7), the provisions of regulation 2 shall apply to an application referred to in paragraph (4).

(9) A person applying for a departure direction may authorise a representative, whether or not legally qualified, to receive notices and other documents on his behalf, and to act on his behalf in relation to an application.

(10) Where a person has, under paragraph (9), authorised a representative who is not legally qualified, he shall confirm that authorisation in writing, or as otherwise required, to the Secretary of State, unless such authorisation has already been approved by the Secretary of State under regulation 53 of the Maintenance Assessment Procedure Regulations (authorisation of representative).

F2 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 Reg. 4(11)-(14) omitted (1.6.1999) by virtue of The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 35

Amendment or withdrawal of application E+W+S

5.   A person who has made an application may amend or withdraw his application by notice in writing to the Secretary of State at any time prior to a determination being made in relation to that application.

Provision of information E+W+S

6.— (1) Where an application has been made, the Secretary of State may request further information or evidence from the applicant to enable that application to be determined.

(2) Any information or evidence requested by the Secretary of State in accordance with paragraph (1) shall be given within [F3 one month, or such longer period as the Secretary of State is satisfied is reasonable in the circumstances of the case,] of the request for such information or evidence having been given or sent.

(3) Where the time limit specified in paragraph (2) is not complied with, the Secretary of State may determine that application, in the absence of that information or evidence.

Textual Amendments

F3 Words in reg. 6(2) substituted (1.6.1999) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 36

Rejection of application on completion of a preliminary consideration E+W+S

7.— (1) The Secretary of State may, on completing a preliminary consideration of an application, reject that application on the ground set out in section 28B(2)(b) of the Act if it appears to him that the difference between the current amount and the revised amount is less than £1.00.

(2) Where an application has been rejected in accordance with paragraph (1), the Secretary of State shall, as soon as reasonably practicable, give notice of that rejection to the relevant persons.

Procedure in relation to the determination of an application E+W+S

8.— (1) Subject to paragraph (4), where an application has not failed within the meaning of section 28D of the Act, the Secretary of State shall[F4 , unless he is satisfied on the information or evidence available to him that a departure direction is unlikely to be given]—

(a) give notice of that application to the relevant persons other than the applicant;

(b) send to them details of the grounds on which the application has been made and any relevant information or evidence the applicant has given, except details, information or evidence falling within paragraph (2);

(c) invite representations in writing from the relevant persons other than the applicant on any matter relating to that application; and

(d) set out the provisions of paragraphs (2), (5) and (6) in relation to such representations.

(2) The details, information or evidence referred to in paragraphs (1)(b), (6) and (7) are—

(a) medical evidence or medical advice that has not been disclosed to the applicant or a relevant person and which the Secretary of State considers would be harmful to the health of the applicant or that relevant person if disclosed to him;

(b) the address of a relevant person, or of any child in relation to whom the assessment was made in respect of which the application has been made, or any other information which could reasonably be expected to lead to that person or that child being located, where that person has not agreed to disclosure of that address or that information, it is not known to the other party to that assessment and—

(i) the Secretary of State is satisfied that that address or that information is not necessary for the determination of that application; or

(ii) the Secretary of State is satisfied that that address or that information is necessary for the determination of that application and that there would be a risk of harm or undue distress to that person or that child if disclosure were made.

(3) Subject to paragraph (4), the notice referred to in paragraph (1)(a) shall be given as soon as reasonably practicable after—

(a) completion of the preliminary consideration of that application under section 28B of the Act; or

(b) where the Secretary of State has requested information or evidence under regulation 6, receipt of that information or evidence or the expiry of the period F5 ... referred to in regulation 6(2).

(4) The provisions of paragraphs (1) and (3) shall not apply where information or evidence requested in accordance with regulation 6 has not been received by the Secretary of State within the period specified in paragraph (2) of that regulation and the Secretary of State is satisfied on the information or evidence available to him that a departure direction should not be given.

[F6 (4A) Where the provisions of paragraph (1) have not been complied with because the Secretary of State was satisfied on the information or evidence available to him that a departure direction was unlikely to be given, but on further consideration of the application he is minded to give a departure direction in that case, he shall, before doing so, comply with the provisions of this regulation.]

(5) Where the Secretary of State does not receive written representations from a relevant person within 14 days of the date on which representations were invited under paragraph (1), (6) or (7) he may, in the absence of written representations from that person, proceed to determine the application.

(6) The Secretary of State may, if he considers it reasonable to do so, send to the applicant a copy of any written representations made following an invitation under paragraph (1)(c), whether or not they were received within the time specified in paragraph (5), except to the extent that the representations contain information or evidence which falls within paragraph (2), and invite him to submit representations in writing on any matters contained in those representations.

(7) Where any information or evidence requested by the Secretary of State under regulation 6 is received after notification has been given under paragraph (1), the Secretary of State may, if he considers it reasonable to do so and except where that information or evidence falls within paragraph (2), send a copy of such information or evidence to the relevant persons and invite them to submit representations in writing on that information or evidence.

F7 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Where the Secretary of State has determined an application he shall, as soon as is reasonably practicable—

(a) notify the relevant persons of that determination;

(b) where a departure direction has been given, [F8 make a decision in accordance with regulation 17(2) or 20(2)(c) of the Maintenance Assessment Procedure Regulations].

(10) A notification under paragraph (9)(a) shall set out—

(a) the reasons for that determination;

(b) where a departure direction has been given, the basis on which the amount of child support maintenance is to be fixed by any assessment made in consequence of that direction.

F9 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 Words in reg. 8(1) inserted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 7(2) (with reg. 59)

F5 Words in reg. 8(3)(b) omitted (1.6.1999) by virtue of The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 37(a)

F6 Reg. 8(4A) inserted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 7(3) (with reg. 59)

F7 Reg. 8(8) omitted (19.6.2000) by virtue of The Social Security and Child Support (Miscellaneous Amendments) Regulations 2000 (S.I. 2000/1596), regs. 1(1), 11

F8 Words in reg. 8(9)(b) substituted (1.6.1999) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 37(c)

F9 Reg. 8(11) omitted (1.6.1999) by virtue of The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 37(d)

[F10 Procedure in relation to determination of an application for a revision or a supersession of a decision with respect to a departure direction E+W+S

8A.— (1) Subject to the modifications described in paragraph (2), regulation 8 shall apply to any application for a revision or a supersession of a decision with respect to a departure direction as it applies to an application for a departure direction.

(2) The modifications described in this paragraph are–

(a) for paragraph (1) there shall be substituted the following paragraphs–

“(1) Except where paragraph (1A) applies, the Secretary of State shall–

(a) give notice of an application for a revision or a supersession of a decision with respect to a departure direction to the relevant persons other than the applicant;

(b) inform them of the grounds on which the application has been made and any relevant information or evidence the applicant has given, except details, information or evidence falling within paragraph (2);

(c) invite representations from the relevant persons other than the applicant on any matter relating to that application; and

(d) explain the provisions of paragraphs (2), (5) and (6) in relation to such representations.

(1A) This paragraph applies where an application for a revision or a supersession has been made and the Secretary of State is satisfied on the information or evidence available to him that either–

(a) a revision or supersession of a departure direction is unlikely to be made; or

(b) in a case where the applicant was the applicant for the decision which is to be revised or superseded, a ground on which the decision to be revised or superseded was made no longer applies.”;

(b) paragraphs (3), (4) and (7) shall be omitted;

(c) in paragraph (4A) for the words from “that a departure direction” to the words “in that case” there shall be substituted the words “that a decision revising or superseding a decision with respect to a departure direction was unlikely to be made, but on further consideration of the application he is minded to make such a decision”;

(d) in paragraph (5)–

(i) for the words “(1), (6) or (7)” there shall be substituted the words “(1) or (6)”;

(ii) after the word “application” there shall be added the words “for a decision revising or superseding a decision”;

(e) in paragraph (8)–

(i) for the words “In deciding whether to give a departure direction” there shall be substituted the words “Before deciding whether or not to make a decision revising or, as the case may be, superseding a decision as to a departure direction in consequence of an application for such a decision”; and

(ii) in sub-paragraph (a), for the words “by the applicant for that direction” there shall be substituted the words “in connection with the application”;

(f) for paragraphs (9) and (10) there shall be substituted the following paragraph–

“(9) Where the Secretary of State has determined an application made for the purpose of revising or superseding a decision he shall, as soon as is reasonably practicable, notify the relevant persons of–

(a) that determination;

(b) the reasons for it; and

(c) where appropriate, the basis on which the amount of child support maintenance is to be fixed by any fresh assessment made in consequence of that determination.”]

Textual Amendments

F10 Reg. 8A inserted (1.6.1999) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 38

[F11 Departure directions and persons in receipt of income support[F12 , state pension credit][F13 , income-related employment and support allowance,] income-based jobseeker’s allowance, [F14 universal credit] [F15 or working tax credit] E+W+S

9.— (1) The costs referred to in regulations 13 to 18 shall not constitute special expenses where they are or were incurred—

(a) by an absent parent to or in respect of whom income support[F16 , state pension credit][F17 , income-related employment and support allowance][F18 , income-based jobseeker’s allowance or relevant universal credit] is or was in payment at the date on which any departure direction given in response to that application would take effect;

(b) by a person with care to or in respect of whom income support[F19 , state pension credit][F17 , income-related employment and support allowance], income-based jobseeker’s allowance[F20 , working tax credit or relevant universal credit] is or was in payment at the date on which any departure direction given in response to that application would take effect; or

(c) by a person with care where, at the date on which any departure direction given in response to that application would take effect, income support[F21 , state pension credit][F17 , income-related employment and support allowance][F22 , income-based jobseeker’s allowance or relevant universal credit] is or was in payment to or in respect of the absent parent of the child or children in relation to whom the maintenance assessment in question is made.

(2) A transfer shall not constitute a transfer of property for the purposes of paragraph 3(1)(b) or 4(1)(b) of Schedule 4B to the Act, or of regulations 21 and 22, where the application is made—

(a) by an absent parent to or in respect of whom income support[F23 , state pension credit][F17 , income-related employment and support allowance][F24 , income-based jobseeker’s allowance or relevant universal credit] is or was in payment at the date on which any departure direction given in response to that application would take effect;

(b) by a person with care and, at the date on which any departure direction given in response to that application would take effect, income support[F25 , state pension credit][F17 , income-related employment and support allowance][F24 , income-based jobseeker’s allowance or relevant universal credit] is or was in payment to or in respect of the absent parent of the child or children in relation to whom the maintenance assessment in question is made.

(3) A case shall not constitute a case under regulations 23 to 29 where the application is made—

(a) by an absent parent to or in respect of whom income support[F26 , state pension credit][F17 , income-related employment and support allowance][F27 , income-based jobseeker’s allowance or relevant universal credit] is or was in payment at the date on which any departure direction given in response to that application would take effect;

(b) by an absent parent where, at the date on which any departure direction given in response to that application would take effect, income support[F28 , state pension credit][F17 , income-related employment and support allowance], income-based jobseeker’s allowance[F29 , working tax credit or relevant universal credit] is or was in payment to or in respect of the person with care of the child or children in relation to whom the maintenance assessment in question is made;

(c) by a person with care where, at the date on which any departure direction given in response to that application would take effect, income support[F30 , state pension credit][F17 , income-related employment and support allowance][F31 , income-based jobseeker’s allowance or relevant universal credit] is or was in payment to or in respect of the absent parent of the child or children in relation to whom the maintenance assessment is made.]

Textual Amendments

F11 Reg. 9 substituted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 8 (with reg. 59)

F12 Words in reg. 9 heading inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F13 Words in reg. 9 heading inserted (27.10.2008) by The Employment and Support Allowance (Consequential Provisions) (No. 2) Regulations 2008 (S.I. 2008/1554), regs. 1(2)(b), 60(3)(a)

F14 Words in reg. 9 heading inserted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(a)

F15 Words in reg. 9 heading substituted (6.4.2003) by The Child Support (Miscellaneous Amendments) Regulations 2003 (S.I. 2003/328), regs. 1(3)(d), 4(2)

F16 Words in reg. 9(1)(a) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F17 Words in reg. 9 inserted (27.10.2008) by The Employment and Support Allowance (Consequential Provisions) (No. 2) Regulations 2008 (S.I. 2008/1554), regs. 1(2)(b), 60(3)(b)

F18 Words in reg. 9(1)(a) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(b)(i)

F19 Words in reg. 9(1)(b) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F20 Words in reg. 9(1)(b) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(b)(ii)

F21 Words in reg. 9(1)(c) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F22 Words in reg. 9(1)(c) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(b)(i)

F23 Words in reg. 9(2)(a) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F24 Words in reg. 9(2)(a)(b) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(c)

F25 Words in reg. 9(2)(b) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F26 Words in reg. 9(3)(a) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F27 Words in reg. 9(3)(a) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(d)(i)

F28 Words in reg. 9(3)(b) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F29 Words in reg. 9(3)(b) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(d)(ii)

F30 Words in reg. 9(3)(c) inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(a)

F31 Words in reg. 9(3)(c) substituted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 42(3)(d)(i)

Departure directions and interim maintenance assessments E+W+S

10.— (1) For the purposes of section 28A(1) of the Act, the term “maintenance assessment" does not include—

(a) a Category A or Category C interim maintenance assessment;

(b) a Category B interim maintenance assessment where the application is made under paragraph 2 of Schedule 4B to the Act in respect of expenses prescribed by regulation 18 and that Category B interim maintenance assessment was made because the applicant fell within paragraph (3)(b) of regulation 8 of the Maintenance Assessment Procedure Regulations M1 ;

(c) a Category D interim maintenance assessment, where the application is made under paragraph 3 or 4 of Schedule 4B to the Act or by an absent parent under paragraph 2 or 5 of that Schedule.

(2) For the purposes of this regulation, Category A, Category B, Category C and Category D interim maintenance assessments are defined in regulation 8(3) of the Maintenance Assessment Procedure Regulations (categories of interim maintenance assessment).

Marginal Citations

M1 S.I. 1992/1813. Regulation 8 was substituted by S.I. 1995/3261.

Departure application and review under section 17 of the Act E+W+S

F32 11.   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F32 Reg. 11 revoked (1.6.1999) by virtue of The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 39

[F33 Meaning of “current assessment” for the purposes of the Act E+W+S

[F34 11A.   Where–

(a) an application under section 28A of the Act has been made in respect of a current assessment; and

(b) after the making of that application, a fresh maintenance assessment has been made upon a revision of a decision as to a maintenance assessment under section 16 of the Act,

references to the current assessment in sections 28B(3), 28C(2)(a) and 28F(5) of, and in paragraph 8 of Schedule 4A and paragraphs 2, 3 and 4 of Schedule 4B to, the Act shall have effect as if they were references to the fresh maintenance assessment.]]

Textual Amendments

F33 Reg. 11A inserted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2)(4), 10 (with reg. 59)

F34 Reg. 11A substituted (1.6.1999) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999 (S.I. 1999/1047), regs. 1(1), 40

Meaning of “benefit" for the purposes of section 28E of the Act E+W+S

12.   For the purposes of section 28E of the Act, “benefit" means income support[F35 , state pension credit], income-based jobseeker’s allowance[F36 , income-related employment and support allowance,] [F37 working tax credit, housing benefit and relevant universal credit.]]

Textual Amendments

F35 Words in reg. 12 inserted (5.11.2003) by The Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 (S.I. 2003/2779), regs. 1, 2(b)

F36 Words in reg. 12 inserted (27.10.2008) by The Employment and Support Allowance (Consequential Provisions) (No. 2) Regulations 2008 (S.I. 2008/1554), regs. 1(2)(b), 60(4)

F37 Words in reg. 12 substituted (30.6.2014) by The Child Support (Consequential and Miscellaneous Amendments) Regulations 2014 (S.I. 2014/1386), regs. 1(2), 4 (as amended (24.6.2014) by S.I. 2014/1621, reg. 3)