The Child Support (Meaning of Child and New Calculation Rules) (Consequential and Miscellaneous Amendments) Regulations (Northern Ireland) 2012

PART 1 General

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Child Support (Meaning of Child and New Calculation Rules) (Consequential and Miscellaneous Amendments) Regulations (Northern Ireland) 2012 and shall come into operation as follows—

(a) this regulation and regulation 10, on 10th December 2012;

(b) regulations 2, 3 and 9(1), on the day on which section 26 of the Act comes into operation;

(c) subject to sub-paragraph (d), regulations 4 to 8, 9(2) and 11, in relation to a particular case, on the day on which paragraph 2 of Schedule 1 to the Act comes into operation in relation to that type of case;

(d) regulations 4(3) to (6) and 11, in relation to an arrears-only case, on 10th December 2012, subject to the savings in regulation 10(1).

(2) In these Regulations—

“the Act” means the Child Maintenance Act (Northern Ireland) 2008;

“arrears of child support maintenance” means—

(a)

any payment of child support maintenance which has become due in relation to a maintenance assessment, or a maintenance calculation made under the 2003 scheme rules, and not paid; and

(b)

the Department is arranging for the collection of that maintenance under Article 29 of the Child Support (Northern Ireland) Order 1991;

“arrears-only case” means a case in which—

(a)

there are arrears of child support maintenance; and

(b)

there is—

(i)

no maintenance assessment, or maintenance calculation made under the 2003 scheme rules, still in force; and

(ii)

no application for a maintenance assessment, or a maintenance calculation falling to be made under the 2003 scheme rules, still to be determined;

“the Collection and Enforcement Regulations” mean the Child Support (Collection and Enforcement) Regulations (Northern Ireland)1992(1).

(3) For the purposes of paragraph (2), a maintenance calculation is made (or will fall to be made) under the 2003 scheme rules if the amount of the periodical payments required to be paid in accordance with it is (or will be) determined otherwise than in accordance with Part 1 of Schedule 1 to the Child Support (Northern Ireland) Order 1991, as amended by Schedule 1 to the Act.

PART 2 Meaning of Child

Amendment of the Child Support (Maintenance Assessment Procedure) Regulations

2.  In Schedule 1 to the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992(2) (meaning of “child” for the purposes of the Order)—

(a) for paragraphs 1 and 1A substitute—

“Persons of 16 or 17 years of age who are not in full-time non-advanced education

1.— (1)  A person satisfies such conditions as may be prescribed for the purposes of Article 3(1)(b) of the Order if that person satisfies any of the conditions in sub-paragraphs (2) and (3).

(2) The person is receiving full-time education (which is not advanced education)—

(a) by attendance at a recognised educational establishment; or

(b) elsewhere, if the education is recognised by the Department.

(3) The person is a person in respect of whom child benefit is payable.”;

(b) in paragraph 2 for—

(i) “Article 3 of the Order”, in both places, substitute “this Schedule”, and

(ii) in sub-paragraph (a) after “education” insert “, a higher national certificate”;

(c) in paragraph 3 for “Article 3 of the Order” substitute “this Schedule”;

(d) in paragraph 4(1) for “Article 3(1)(b) of the Order” substitute “paragraph 1(2)”; and

(e) for paragraph 6 substitute—

“Interpretation

6.   In this Schedule “recognised educational establishment” means an establishment recognised by the Department for the purposes of this Schedule as being, or as comparable to, a university, college or school.

Education otherwise than at a recognised educational establishment

7.   For the purposes of paragraph 1(2), the Department may recognise education provided for a person otherwise than at a recognised educational establishment only if it is satisfied that education was being so provided for that person immediately before that person attained the age of 16.”.

Amendment of the Child Support (Maintenance Calculation Procedure) Regulations

3.  In Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations (Northern Ireland) 2001(3) (meaning of “child” for the purposes of the Order)—

(a) for paragraphs 1 and 1A substitute—

“Persons of 16 or 17 years of age who are not in full-time non-advanced education

1.— (1)  A person satisfies such conditions as may be prescribed for the purposes of Article 3(1)(b) of the Order if that person satisfies any of the conditions in sub-paragraphs (2) and (3).

(2) The person is receiving full-time education (which is not advanced education)—

(a) by attendance at a recognised educational establishment; or

(b) elsewhere, if the education is recognised by the Department.

(3) The person is a person in respect of whom child benefit is payable.”;

(b) in paragraph 2—

(i) for “Article 3 of the Order”, in both places, substitute “this Schedule”, and

(ii) in sub-paragraph (a) after “education” insert “, a higher national certificate”;

(c) in paragraph 3 for “Article 3 of the Order” substitute “this Schedule”;

(d) in paragraph 4(1) for “Article 3(1)(b) of the Order” substitute “paragraph 1(2)”; and

(e) for paragraph 6 substitute—

“Interpretation

6.   In this Schedule “recognised educational establishment” means an establishment recognised by the Department for the purposes of this Schedule as being, or as comparable to, a university, college or school.

Education otherwise than at a recognised educational establishment

7.   For the purposes of paragraph 1(2), the Department may recognise education provided for a person otherwise than at a recognised educational establishment only if satisfied that education was being so provided for that person immediately before that person attained the age of 16.”.

PART 3 New Calculation Rules – Consequential and Miscellaneous Amendments

Amendment of the Collection and Enforcement Regulations

4.—(1) The Collection and Enforcement Regulations are amended in accordance with paragraphs (2) to (6).

(2) For regulation 4(4) (interval of payment) substitute—

“Payments to be scheduled over reference period

4.— (1) The Department may, for the purposes of determining the frequency and amount of the payments of child support maintenance required to be made by a liable person—

(a) determine the total amount payable for the reference period on the assumption that the weekly rate of child support maintenance will not change over that period; and

(b) require that amount to be paid by equal instalments over that period at intervals determined by the Department.

(2) The reference period in relation to the maintenance calculation is, subject to paragraph (3), the period of 52 weeks mentioned in Article 29(3A) of the Order beginning with—

(a) the initial effective date (where it is the first such period in relation to the maintenance calculation); or

(b) the review date.

(3) In this regulation “initial effective date” and “review date” have the meanings given by regulations 12 and 19 respectively of the Child Support Maintenance Calculation Regulations (Northern Ireland) 2012(5).”.

(3) In regulation 8(1) (interpretation of this Part) in the definition of “normal deduction rate” for “week, month or other period” substitute “month and the equivalent of that sum for a 1, 2 and 4 week period”.

(4) For regulations 10 and 11(6) (normal deduction rate and protected earnings proportion) substitute—

“Normal deduction rate

10.— (1) The period by reference to which the normal deduction rate is set must be the period by reference to which the liable person is normally paid where that period is a 1, 2 or 4 weekly or monthly period.

(2) The employer must select the normal deduction rate which applies depending on the period by reference to which the liable person’s earnings are normally paid.

(3) Where the liable person is paid by reference to a period other than at a 1, 2 or 4 weekly or monthly period, the Department must discharge the deduction from earnings order in accordance with regulation 20.

Protected earnings proportion

11.— (1) The period by reference to which the protected earnings proportion is set must be the same as the period by reference to which the normal deduction rate is set in accordance with regulation 10(1).

(2) The protected earnings proportion in respect of any period shall be 60 per cent. of the liable person’s net earnings in respect of that period as calculated at the pay-day of the liable person by the employer.”.

(5) In regulation 20(1)(7) (discharge of deduction from earnings orders)—

(a) omit “or” after sub-paragraph (e); and

(b) after sub-paragraph (f) add—

“or

(g) the circumstances in regulation 10(3) apply.”.

(6) In regulations 25C(1)(a) and 25G(2)(d)(8) (maximum deduction rate and review of a regular deduction order) for “net” substitute “gross”.

Amendment of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations

5.—(1) The Child Support (Maintenance Arrangements and Jurisdiction) Regulations (Northern Ireland) 1992(9) are amended in accordance with paragraphs (2) to (4).

(2) In regulation 1(2) (interpretation) omit the definitions of “Maintenance Assessment Procedure Regulations” and “Maintenance Calculation Procedure Regulations”(10).

(3) In regulation 5(3)(c)(11) (notifications by the Department) for “regulation 8 of the Maintenance Calculations and Special Cases Regulations (Northern Ireland) 1992” substitute “regulation 49 of the Child Support Maintenance Calculation Regulations (Northern Ireland) 2012”.

(4) In regulation 8A(d)(12) (maintenance calculations and maintenance orders – payments) omit “in accordance with regulation 25 of the Maintenance Calculation Procedure Regulations”.

Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations

6.—(1) The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(13) are amended in accordance with paragraphs (2) to (7).

(2) In regulation 1(2) (interpretation) omit the definitions of “the Arrears, Interest and Adjustment of Maintenance Assessments Regulations”, “the Maintenance Calculation Procedure Regulations”, “the Maintenance Calculations and Special Cases Regulations”, “relevant other child”, “relevant person” and “the Variations Regulations”(14).

(3) Omit regulations 3A, 5A, 6A, 6B, 7B, 7C, 15A, 15B, 15C, 23 and 24(15).

(4) In regulation 4(16) (late application for a revision)—

(a) in paragraph (1) omit “or 3A(1)(a)”;

(b) in paragraph (2) omit “the relevant person”;

(c) in paragraph (4)(c) omit “or, as the case may be, 3A”;

(d) in paragraph (5) omit “or, as the case may be, regulation 3A(1)(a)”; and

(e) omit paragraph (8) (as substituted by regulation 2(5)(e) of the Social Security and Child Support (Decisions and Appeals) (Amendment) Regulations (Northern Ireland) 2001(17)).

(5) In regulation 30(18) (appeals against decisions which has been replaced or revised) omit “replaced or” in each place where it occurs.

(6) In regulation 31(2)(19) (time within which appeals are to be brought) for “, 3A(1) or regulation 16(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992”, in both places where it occurs, substitute “or regulation 14 of the Child Support Maintenance Calculation Regulations (Northern Ireland) 2012”.

(7) Omit Schedule 2D(20) (effective dates for supersession of child support decisions).

Amendment of the Child Support (Voluntary Payments) Regulations

7.—(1) The Child Support (Voluntary Payments) Regulations (Northern Ireland) 2001(21) are amended in accordance with paragraphs (2) and (3).

(2) In regulation 1(2) (interpretation)—

(a) omit the definition of “the Maintenance Calculations and Special Cases Regulations”;

(b) in the definition of “the qualifying child’s home” omit the words from “and “home” has” to the end; and

(c) in the definition of “relevant person”(22), in paragraph (c) for the words from “regulation 8” to the end substitute “regulation 49 of the Child Support Maintenance Calculation Regulations (Northern Ireland) 2012”; and

(3) In regulation 2(1) (voluntary payment) in sub-paragraph (c) omit the words from “, and for this purpose” to the end.

Amendment of the Child Support Information Regulations

8.—(1) The Child Support Information Regulations (Northern Ireland) 2008(23) are amended in accordance with paragraphs (2) to (4).

(2) In regulation 2 (interpretation)—

(a) in paragraph (1) for the definition of “Maintenance Calculation Procedure Regulations” substitute—

““the Maintenance Calculation Regulations” means the Child Support Maintenance Calculation Regulations (Northern Ireland) 2012;”; and

(b) omit paragraphs (2) and (3).

(3) In regulation 7 (duty of persons from whom information requested) omit paragraph (3).

(4) After regulation 9 (duty to notify change of address) insert—

“Duty to notify increase in current income

9A.— (1) In a case falling within paragraph (2) or (3), the Department may notify the non-resident parent of the requirement to notify the Department of any relevant change of circumstances in relation to that income.

(2) A case falls within this paragraph if, in relation to a maintenance calculation in force—

(a) gross weekly income is determined by reference to the non-resident parent’s current income as an employee or officeholder (in accordance with regulation 37 of the Maintenance Calculation Regulations); and

(b) paragraph 5(b) of the Schedule 1 to the Order(24) (nil rate) does not apply.

(3) A case falls within this paragraph if, in relation to a maintenance calculation in force—

(a) gross weekly income is determined by reference to the non-resident parent’s current income (in accordance with regulation 36 of the Maintenance Calculation Regulations); and

(b) paragraph 5(b) of Schedule 1 to the Order applies.

(4) A notification by the Department under paragraph (1) must be in writing.

(5) Where a relevant change of circumstances occurs after the non-resident parent has been notified of a requirement under paragraph (1) the non-resident parent must notify the Department of that change—

(a) within fourteen days beginning with and including the day on which the change occurs; or

(b) within such other period as the Department has specified in its notification.

(6) For the purposes of a case falling within paragraph (2), a relevant change of circumstances occurs where—

(a) the non-resident parent—

(i) commences a new employment or office, or

(ii) in relation to an existing employment or office, commences a new rate of remuneration or a new working pattern,

and could reasonably be expected to know that would result in an increased liability under the maintenance calculation in force if reported to the Department; or

(b) the non-resident parent receives from their employment or office the following number of consecutive payments, each of which (if it were taken as a weekly average) exceeds the gross weekly income taken into account in the maintenance calculation in force by 25 per cent. or more—

(i) five payments, in the case of a non-resident parent paid weekly,

(ii) three payments, in the case of a non-resident parent paid fortnightly,

(iii) two payments, in the case of a non-resident parent paid four weekly or monthly.

(7) The payments referred to in paragraph (6)(b) are the gross remuneration from the employment or office in question less any pension contributions deducted under net pay arrangements.

(8) In paragraph (7) “net pay arrangements” means arrangements for relief in respect of pension contributions under section 193 of the Finance Act 2004(25).

(9) For the purposes of a case falling within paragraph (3), a relevant change of circumstances occurs where the non-resident parent’s income increases to a gross weekly income of £5 or more.

(10) For the purposes of paragraph (9), gross weekly income is to be calculated in accordance with regulation 44(2) of the Maintenance Calculation Regulations.”.

(5) In regulation 13(1)(d) (disclosure of information to other persons) for “regulation 23 of “the Maintenance Calculation Procedure Regulations” substitute “regulation 25 of the Maintenance Calculation Regulations (notification of a maintenance calculation)”.

PART 4 Revocations, Savings and Transitional Provision

Revocations

9.—(1) Regulations 2(4)(a) and (e) and 4(2) and (6) of the Child Support (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2009(26) are revoked.

(2) The provisions specified in column (1) of the Schedule are revoked to the extent specified in column (3).

Savings – arrears-only case

10.—(1) Regulations 8, 10, 11 and 20 of the Collection and Enforcement Regulations continue to apply in relation to an arrears-only case, as they were in operation immediately before the amendments made by regulation 4(3) to (6) come into operation, until notice is given to the non-resident parent by the Department that the provisions of the Regulations (as amended by regulation 4(3) to (6)) apply to that case.

(2) Any notice given under paragraph (1) must be in writing and sent by ordinary post to the non-resident parent’s last known or notified address and will be treated as having been given on the second day following the day on which it is posted.

(3) For the purposes of this regulation any reference to a non-resident parent includes reference to an absent parent.

Transitional provisions

11.—(1) Where, in any case, a deduction from earnings order was made before the date on which the Collection and Enforcement Regulations, as amended by regulation 4(3) to (6) apply in relation to that case, this regulation shall apply in respect of that order.

(2) Where the deduction from earnings order still has effect immediately before regulation 4(3) to (6) comes into operation in relation to that case—

(a) the order continues to take effect for the purposes of any deductions which are required to be made under the order until it is discharged or lapses;

(b) the Collection and Enforcement Regulations, as they were in operation before the amendments made by regulation 4(3) to (6) came into operation, continue to apply in relation to the order until it is discharged or lapses; and

(c) the order is to be treated as discharged, if it has not otherwise lapsed or been discharged, on the date that the first deduction from earnings order made under the Collection and Enforcement Regulations, as amended by regulation 4(3) to (6), takes effect.

Sealed with the Official Seal of the Department for Social Development on 6th December 2012

(L.S.)

Anne McCleary

A senior officer of the Department for Social Development