99.Schedule 2 substitutes Schedules 4A and 4B to the 1991 Act.
100.This Schedule contains detailed provisions supplementing the rules governing applications for variations in section 28A. In particular, it provides for:
regulations to specify the procedure to be followed by the Secretary of State or a tribunal in considering an application (paragraph 2);
information to be supplied within a specified period to enable an application for a variation to be determined (paragraph 4);
two or more variation applications to be considered together (paragraph 5(1));
a tribunal to be able to consider any variation application which has been referred to it for determination under section 28D(1)(b) at the same time as any appeal under section 20 connected to an interim maintenance decision (paragraph 5(3)).
101.This Schedule details the cases and controls relating to variations.
102.Paragraph 2 relates to the special expenses in respect of which a non-resident parent may apply for a variation of the normal rules by which maintenance liability is calculated. These will be set out in regulations.
Sub-paragraph (2) provides that the Secretary of State may have regard either to all or part of the expenses, or, in prescribed cases, only to that element of the expenses which exceeds a prescribed threshold.
Sub-paragraph (3) specifies some cases which may be prescribed. The list is not intended to be exhaustive. The non-resident parent will be able to seek a variation in recognition of one or more of the following expenses:
the costs incurred in keeping in contact with a qualifying child;
the costs attributable to the long-term illness or disability of a relevant other child;
the costs incurred in honouring debts which were incurred at time when both parents were living together and were for the joint benefit of both parents, or for the benefit of the child in respect of whom a maintenance calculation has been applied for (“the child concerned”), or for the benefit of any other child within a prescribed category,
the costs incurred in meeting the boarding school fees payable in respect of the child concerned;
payments of the mortgage on the former home, where the former partner continues to live in the house with a qualifying child, in the circumstances where, exceptionally, the non-resident parent no longer has any interest in the property.
Sub-paragraph (4) provides that the definitions of “illness”, “disability” and “long term” will be prescribed in regulations.
Sub-paragraph (5) provides that the definition of “boarding school fees” and the elements of the fees that the Secretary of State may recognise, will be prescribed in regulations. Regulations will also allow the Secretary of State to make an estimate of the fees that he may recognise, in the circumstances where the relevant amounts are not otherwise readily identifiable.
103.This is a feature of the departures scheme and the ground rules and calculations remain unchanged.
Sub-paragraph (1) requires there to have been a property settlement between the parties in pursuance of a court order or maintenance agreement which pre-dates 5 April 1993. A variation may be made in respect of, for example, the equivalent weekly value of that transfer.
Sub-paragraph (2) provides that the Secretary of State will continue to take no account of transfers valued at less than a minimum figure. This figure will, as now, be prescribed in regulations and is intended to remain at £5000.
104.This paragraph provides for regulations to specify further grounds on which any person with care (or, in Scotland, a child) may apply for a variation of the rules on the calculation of liability.
Sub-paragraph (2) gives examples of such cases. The list is not intended to be exhaustive. The person with care (or child) will be able to seek a variation in recognition of one or more of the following grounds: where the non-resident parent has assets which exceed a prescribed value (it is intended to prescribe cash or its equivalent, or property other than his normal place of residence, which exceed in total a value of £65,000); where the non-resident parent enjoys a lifestyle which is inconsistent with the income to which the Secretary of State is able to have regard in the determination of the rate of liability; where the non-resident parent is in receipt of income to which the Secretary of State would not otherwise have had regard (the intention is to prescribe for cases where the non-resident parent has a flat rate liability because he is in receipt of a prescribed social security benefit or war pension, or where he has a nil rate of liability, and has minimum additional income of £100 per week); or where the non-resident parent has unreasonably reduced the income to which the Secretary of State has had regard in the calculation of maintenance liability.
105.Paragraph 5provides additional regulation-making powers relating to variations.
Sub-paragraphs (1) and (3) provide regulation-making powers relating to the manner in which the Secretary of State may modify the normal rules for calculating maintenance in the event of a successful variation application. The Secretary of State will normally give effect to a variation by offsetting the expenses against, or increasing the value of, the non-resident parent’s net income prior to any further adjustment in respect of relevant children (where appropriate). The only exception to the normal rules will apply, as now, to pre-1993 property transfers, where the equivalent weekly value of the transfer (as calculated) will be deducted from the non-resident parent’s “bottom line” liability.
Sub-paragraph (2) provides that no variation may be made other than in the circumstances prescribed.
Sub-paragraphs (4) and (5) provide that the Secretary of State may by regulations impose a limit on the amount of special expenses which he may take into account for the purposes of a variation, and that regulations may provide for different provision with respect to different levels of income. The intention is that the Secretary of State will recognise expenditure on certain of the prescribed grounds only in so far as it exceeds £10 or £15 per week, depending on the non-resident parent’s net weekly income.
106.Paragraph 6 provides that the Secretary of State may, by regulations, and with prescribed modifications, apply the “shared care” rules and adjustments referred to in paragraph 7 of Part I, Schedule 1 (as substituted by Schedule 1 to this Act) in cases where he has agreed to a variation of the normal rules by which the maintenance liability is calculated.
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