The Child Support Departure Direction and Consequential Amendments Regulations 1996

[F1 PART VIII E+W+S MAINTENANCE ASSESSMENT FOLLOWING A DEPARTURE DIRECTION

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)

Effect of a departure direction—general E+W+S

36.— (1) Except where a case falls within regulation 22, 41, 42 or 43, a departure direction shall specify, as the basis on which the amount of child support maintenance is to be fixed by any fresh assessment made in consequence of the direction, that the amount of net income or exempt income of the parent with care or absent parent or the amount of protected income of the absent parent be increased or, as the case may be, decreased in accordance with those provisions of regulations 37, 38 and 40 which are applicable to the particular case.

(2) Where the provisions of paragraph (1) apply to a departure direction, the amount of child support maintenance fixed by a fresh maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1 to the Act, but with the substitution of the amounts changed in consequence of the direction for the amounts determined in accordance with those provisions.

Effect of a departure direction in respect of special expenses—exempt income E+W+S

37.— (1) Subject to paragraph (2), where a departure direction is given in respect of special expenses, the exempt income of the absent parent or, as the case may be, the parent with care shall be increased by [F2 the amount specified in that departure direction being the whole or part of] the amount constituting the special expenses or the aggregate of the special expenses determined in accordance with regulations 13 to 20.

(2) Where a departure direction is given with respect to costs incurred in travelling to work or expenses which include such costs, and a component of exempt income has been determined in accordance with regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations or regulation 10 of those Regulations applying regulation 9(1)(i), the increase in exempt income determined in accordance with paragraph (1) shall be reduced by that component of exempt income.

(3) A departure direction with respect to special expenses for a case falling within regulation 16 shall be given only for the repayment period remaining applicable to that debt at the date on which that direction takes effect except—

(a) where in consequence of the applicant’s unemployment or incapacity for work, the repayment period of that debt has been extended by agreement with the creditor, a departure direction may be given to cover the additional weeks allowed for repayment; or

(b) where the Secretary of State is satisfied that, as a consequence of the income of the applicant having been substantially reduced the repayment period of that debt has been extended by agreement with the creditor, a departure direction may be given for such repayment period as the Secretary of State considers is reasonable.

(4) Where paragraph (4) of regulation 16 applies, a departure direction may be given in respect only of [F3 the whole or part of the amount required to repay] that part of the debt incurred which is referable to the debt, repayment of which would have fallen within paragraph (1) of that regulation, based upon the amount, rate of repayment and repayment period agreed in respect of that part at the time it was taken out.

Textual Amendments

F2 Words in reg. 37(1) inserted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 20(2) (with reg. 59)

F3 Words in reg. 37(4) substituted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 20(3) (with reg. 59)

Effect of a departure direction in respect of special expenses—protected income E+W+S

38.— (1) Subject to paragraphs (2) and (3), where a departure direction is given with respect to special expenses in response to an absent parent’s application, his protected income shall be determined in accordance with paragraph (1) of regulation 11 of the Maintenance Assessments and Special Cases Regulations M1 with the modification that the increase of exempt income as determined in accordance with regulation 37 shall be added to the aggregate of the amounts mentioned in sub-paragraphs (a) to (kk) of paragraph (1) of regulation 11 of the Maintenance Assessments and Special Cases Regulations.

(2) Protected income shall not be increased in accordance with paragraph (1) on account of special expenses constituted by costs falling within regulation 18 (costs incurred in supporting certain children).

(3) Where a departure direction is given with respect to costs which include costs incurred in travelling to work, the absent parent’s protected income shall be determined in accordance with paragraph (1), but without inclusion of the amount determined in accordance with sub-paragraph (kk) of regulation 11(1) of the Maintenance Assessments and Special Cases Regulations within the aggregate of the amounts mentioned in that regulation.

Marginal Citations

M1 Sub-paragraphs (a) to (k) of paragraph (1) have been amended by regulation 4(4) of S.I. 1994/227, by regulation 46(2)(a), (b) and (c) of S.I. 1995/1045, and by regulation 43(1), (2) and (3) of S.I. 1995/3261. Sub-paragraph (kk) was added to paragraph (1) of regulation 11 by regulation 46(2)(d) of S.I. 1995/1045.

Effect of a departure direction in respect of a transfer of property E+W+S

39.— (1) Where a departure direction is given in respect of a transfer of property for a case falling within paragraph 3 of Schedule 4B to the Act—

(a) where the exempt income of an absent parent includes a component of exempt income determined in accordance with regulation 9(1)(bb) of the Maintenance Assessments and Special Cases Regulations M2 , the exempt income of the absent parent shall be reduced by that component of exempt income;

[F4 (b) subject to sub-paragraph (c) and paragraphs (2) and (3), the fresh maintenance assessment made in consequence of the direction shall be the lower of—

(i) the amount, calculated in accordance with the provisions of paragraphs 1 to 5 and 7 to 10 of Part I of Schedule 1 to the Act, as modified in a case to which it applies by sub-paragraph (a) where that sub-paragraph is applicable to the case in question, reduced by the amount specified in that departure direction being the whole or part of the equivalent weekly value of the property transferred as determined in accordance with regulation 22; or

(ii) where the provisions of paragraph 6 of Schedule 1 to the Act (protected income) apply, the amount, calculated in accordance with the provisions of Part I of Schedule 1 to the Act, as modified in a case to which it applies by sub-paragraph (a) where that sub-paragraph is applicable to the case in question;]

(c) where the equivalent weekly value is nil, the fresh maintenance assessment made in consequence of the direction shall be the maintenance assessment calculated in accordance with the provisions of Part I of Schedule 1 to the Act, as modified by sub-paragraph (a), where that sub-paragraph is applicable to the case in question.

(2) The amount of child support maintenance fixed by an assessment made in consequence of a direction falling within paragraph (1) shall not be less than the amount prescribed by regulation 13 of the Maintenance Assessments and Special Cases Regulations.

(3) Where there has been a transfer by the applicant of property to trustees as set out in regulation 21(2) and the equivalent weekly value is greater than nil, any monies paid to the parent with care out of that trust fund for maintenance of a child with respect to whom the current assessment was made shall be disregarded in calculating the assessable income of that parent with care in accordance with the provisions of Part I of Schedule 1 to the Act.

(4) A departure direction falling within paragraph (1) shall cease to have effect at the end of the number of years of liability, as defined in paragraph 1 of the Schedule, for the case in question.

(5) Where a departure direction has ceased to have effect under the provisions of paragraph (4), the exempt income of an absent parent shall be determined as if regulation 9(1)(bb) of the Maintenance Assessments and Special Cases Regulations were omitted.

(6) Where a departure direction is given in respect of a transfer of property for a case falling within paragraph 4 of Schedule 4B to the Act, the exempt income of the absent parent shall be reduced by the component of exempt income determined in accordance with regulation 9(1)(bb) of the Maintenance Assessments and Special Cases Regulations.

(7) This regulation is subject to regulation 42.

Textual Amendments

F4 Reg. 39(1)(b) substituted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 21 (with reg. 59)

Marginal Citations

M2 Sub-paragraph (bb) was added to paragraph (1) of regulation 9 by regulation 44(2)(a) of 1995/1045.

Effect of a departure direction in respect of additional cases E+W+S

40.— (1) This regulation applies where a departure direction is given for an additional case falling within paragraph 5 of Schedule 4B to the Act.

(2) In a case falling within paragraph (1)(a) of regulation 23 (assets capable of producing income or higher income), subject to paragraph (4), the net income of the non-applicant shall be increased by [F5 the amount specified in that departure direction, being the whole or part of] an amount calculated by applying interest at the statutory rate prescribed for a judgment debt M3 or, in Scotland, at the statutory rate in respect of interest included in or payable under a decree in the Court of Session M4 at the date on which the departure direction is given to—

(a) any monies falling within that paragraph;

(b) the net value of any asset, other than monies, falling within that paragraph, after deduction of the amount owing on any mortgage or charge on that asset,

less any income received in respect of that asset which has been taken into account in the calculation of the current assessment.

(3) In a case falling within paragraph (1)(b) or (c) of regulation 23, subject to paragraph (4), the net income of the non-applicant shall be increased by [F5 the amount specified in that departure direction, being the whole or part of] an amount calculated by applying interest at the statutory rate prescribed for a judgment debt, or, in Scotland, at the statutory rate in respect of interest included in or payable under a decree in the Court of Session at the date of the application to the value of the asset subject to the trust less any income received from the trust which has been taken into account in the calculation of the current assessment.

(4) In a case to which regulation 24 (diversion of income) applies, the net income of the non-applicant who is a parent of a child in respect of whom the current assessment is made shall be increased by [F5 the amount specified in that departure direction, being the whole or part of] the amount by which the Secretary of State is satisfied that that parent has reduced his income.

(5) In a case to which regulation 25 (life-style inconsistent with declared income) applies, the net income of the non-applicant who is a parent of a child in respect of whom the current assessment is made shall be increased by [F5 the amount specified in that departure direction, being the whole or part of] the difference between the two levels of income referred to in paragraph (1) of that regulation.

(6) In a case to which regulation 26 applies (unreasonably high housing costs) the amount of housing costs included in exempt income and the amount referred to in regulation 11(1)(b) of the Maintenance Assessments and Special Cases Regulations shall not exceed the amounts set out in regulation 18(1)(a) or (b), as the case may be, of the Maintenance Assessments and Special Cases Regulations (excessive housing costs) and the provisions of regulation 18(2) of those Regulations shall not apply.

(7) In a case to which regulation 27 applies (partner’s contribution to housing costs) that part of the exempt income constituted by the eligible housing costs determined in accordance with regulation 14 of the Maintenance Assessments and Special Cases Regulations (eligible housing costs) shall, subject to paragraphs (8) and (9), be reduced by the percentage of the housing costs which the Secretary of State considers appropriate, taking into account the income of that parent and the income or estimated income of that partner.

(8) Where paragraph (7) applies, the housing costs determined in accordance with regulation 11(1)(b) of the Maintenance Assessments and Special Cases Regulations (protected income) shall remain unchanged.

(9) Where a Category B interim maintenance assessment is in force in respect of a non-applicant, the whole of the eligible housing costs may be deducted from the exempt income of that non-applicant.

(10) In a case to which regulation 28 (unreasonably high travel costs) or regulation 29 (travel costs to be disregarded) applies, for the component of exempt income determined in accordance with regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations or in accordance with that regulation as applied by regulation 10 of those Regulations and, in the case of an absent parent, for the amount determined in accordance with regulation 11(1)(kk) of those Regulations, there shall be substituted such amount, including a nil amount, as the Secretary of State considers to be appropriate in all the circumstances of the case.]

Textual Amendments

F5 Words in reg. 40(2)-(5) inserted (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 22 (with reg. 59)

Marginal Citations

M3 See Order 42, rule 1 of the Rules of the Supreme Court, S.I. 1965/1776.

M4 See Act of Sederunt (Rules of the Court of Session 1994) 1994.