The Child Support Management of Payments and Arrears (Amendment) Regulations 2012

Amendment of the Child Support (Management of Payments and Arrears) Regulations 2009

2.—(1) The Child Support (Management of Payments and Arrears) Regulations 2009(1) are amended as follows.

(2) In regulation 2(1) (interpretation), after the definition of “the AIMA Regulations” insert—

““child in Scotland” means a child who has made an application for a maintenance calculation under section 7 of the 1991 Act;”.

(3) After Part 4 (recovery from estates) insert—

“PART 4A Part Payment of Arrears in Full and Final Satisfaction

Interpretation of this Part

13A.   In this Part—

“appropriate person” means the person from whom the appropriate consent is required under section 41D(5) or (6) of the 1991 Act.

Amounts owed to different persons to be treated separately

13B.   Where the arrears of child support maintenance for which a person is liable comprise amounts that have accrued in respect of—

(a) separate applications for a maintenance calculation; or

(b) one application but would, if recovered, be payable to different persons,

those amounts are to be treated as separate amounts of arrears for the purpose of exercising the power under section 41D(1) of the 1991 Act.

Appropriate consent

13C.— (1) The Secretary of State may not exercise the power under section 41D(1) of the 1991 Act without the appropriate consent (as provided for in subsections (5) to (7) of section 41D), unless one of the following conditions applies—

(a) that the Secretary of State would be entitled to retain the whole of the arrears under section 41(2) of the 1991 Act if it recovered them; or

(b) that the Secretary of State would be entitled to retain part of the arrears under section 41(2) of that Act if it 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 section 41D(1) of that Act.

(2) Where the consent of any appropriate person is required, the Secretary of State must make available such information and guidance as the Secretary of State thinks appropriate for the purpose of helping that person decide whether to give that consent.

Agreement

13D.— (1) Where the Secretary of State proposes to exercise the power under section 41D(1) of the 1991 Act, the Secretary of State must prepare a written agreement.

(2) The agreement must—

(a) name the non-resident parent, and where the consent of any appropriate person is required, the name of that person;

(b) specify the amount of arrears to which the agreement relates and the period of liability to which those arrears relate;

(c) state the amount that is agreed will be paid in satisfaction of those arrears;

(d) state the method of payment and to whom payment will be made; and

(e) state the day by which payment is to be made.

(3) The Secretary of State must send the non-resident parent and, where applicable, the appropriate person, a copy of the agreement.

(4) The agreement does not take effect until—

(a) the non-resident parent has agreed in writing to its terms; and

(b) where applicable, the appropriate person has given to the Secretary of State their consent in writing.

Where payment is received

13E.— (1) Unless the non-resident parent fails to comply with the terms of the agreement, the Secretary of State must not take action to recover any of the arrears to which the agreement relates.

(2) Where the non-resident parent has made full payment in accordance with the agreement all remaining liability in respect of the arrears of child support maintenance to which the agreement relates is extinguished.

(3) Where the non-resident parent fails to make any payment or only makes part payment or otherwise fails to adhere to the terms of the agreement, the non-resident parent remains liable to pay the full amount of any outstanding arrears to which the agreement relates and the Secretary of State may arrange to recover any of those outstanding arrears in accordance with the 1991 Act.

(4) Nothing in these Regulations prevents the Secretary of State from entering into a new agreement with the non-resident parent in respect of any of the arrears to which the previous agreement relates provided that the new agreement complies with the requirements set out in regulation 13D.

(5) Where the Secretary of State enters into a new agreement with the non-resident parent in respect of any of the arrears to which a previous agreement related, the previous agreement ceases to have effect on the coming into effect of that new agreement.

PART 4B Write Off of Arrears

Amounts owed to different persons to be treated separately

13F.   Where the arrears of child support maintenance for which a person is liable comprise amounts that have accrued in respect of—

(a) separate applications for a maintenance calculation; or

(b) one application, but would, if recovered, be payable to different persons,

those amounts are to be treated as separate amounts of arrears for the purpose of exercising the power under section 41E(1) of the 1991 Act.

Circumstances in which the Secretary of State may exercise the power in section 41E of the 1991 Act

13G.   The circumstances of the case specified for the purposes of section 41E(1)(a) of the 1991 Act are that—

(a) the person with care has requested under section 4(5) of that Act that the Secretary of State ceases to act in respect of the arrears;

(b) a child in Scotland has requested under section 7(6) of that Act that the Secretary of State ceases to act in respect of the arrears;

(c) the person with care, or (in Scotland) the child, has died;

(d) the non-resident parent died before 25 January 2010 or there is no further action that can be taken with regard to recovery of the arrears from the non-resident parent’s estate under Part 4;

(e) the arrears relate to liability for child support maintenance for any period in respect of which an interim maintenance assessment was in force between 5 April 1993 and 18 April 1995; or

(f) the non-resident parent has been informed by the Secretary of State that no further action would ever be taken to recover those arrears.

Secretary of State required to give notice

13H.— (1) Where the Secretary of State is considering exercising the powers under section 41E(1) of the 1991 Act, the Secretary of State must send written notice to the person with care or, where relevant, a child in Scotland and the non-resident parent.

(2) The requirement in paragraph (1) does not apply where the person in question cannot be traced or has died.

(3) The notice must—

(a) specify the person with care or, where relevant, a child in Scotland, in respect of whom liability in respect of arrears of child support maintenance has accrued;

(b) specify the amount of the arrears and the period of liability to which the arrears relate;

(c) state why it appears to the Secretary of State that it would be unfair or inappropriate to enforce liability in respect of the arrears;

(d) advise the person that they may make representations, within 30 days of receiving the notice, to the Secretary of State as to whether the liability in respect of the arrears should be extinguished; and

(e) explain the effect of any decision to extinguish liability in respect of any arrears of child support maintenance under section 41E(1) of the 1991 Act.

(4) If no representations are received by the Secretary of State within 30 days of the notice being received by the person with care or, where relevant, a child in Scotland and the non-resident parent, the Secretary of State may make the decision to extinguish the arrears.

(5) For the purposes of this regulation, where the Secretary of State sends any written notice by post to a person’s last known or notified address that document is treated as having been received by that person on the second day following the day on which it is posted.

Secretary of State to take account of the parties’ views

13I.   Where the Secretary of State receives representations within the 30 day period referred to in regulation 13H(3)(d), the Secretary of State must take account of those representations in making a decision under section 41E(1) of the 1991 Act.

Notification of decision to write off

13J.— (1) On making a decision under section 41E(1) of the 1991 Act, the Secretary of State must send written notification to the non-resident parent and the person with care or, where relevant, a child in Scotland, of that decision.

(2) The requirement in paragraph (1) does not apply where the person in question cannot be traced or has died.”.

(1)

S.I. 2009/3151