[F1PART IE+W+S GENERAL

Textual Amendments

F1Instrument 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)

Citation, commencement and interpretationE+W+S

1.—(1) These Regulations may be cited as the Child Support Departure Direction and Consequential Amendments Regulations 1996 and shall come into force on 2nd December 1996.

(2) In these Regulations, unless the context otherwise requires—

[F10(2A) For the purposes of the definition of “relevant universal credit” in paragraph (2), “earned income” has the meaning given in regulation 52 of the Universal Credit Regulations 2013.]

(3) In these Regulations, unless the context otherwise requires, a reference—

(a)to the Schedule, is to the Schedule to these Regulations;

(b)to a numbered regulation is to the regulation in these Regulations bearing that number;

(c)in a regulation or the Schedule to a numbered paragraph is to the paragraph in that regulation or the Schedule bearing that number;

(d)in a paragraph to a lettered or numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter or number.

Textual Amendments

Marginal Citations

M1S.I. 1992/2641. Regulations 3 and 11 were amended by S.I. 1995/1045 and S.I. 1996/2450. Regulation 5, 6, and 7 were amended by S.I. 1996/2450 and regulation 13 by S.I. 1996/182 and 1996/2450.

M31992 c.4. Regulation 10 was substituted by S.I. 1995/1045.

M5S.I. 1992/1812. Regulation 9A was inserted by S.I. 1995/1045 and amended by S.I. 1995/3261, which also substituted regulation 10 and inserted regulation 10A.

M6S.I. 1992/2645. Regulation 8 was amended by S.I. 1995/913.

M7S.I. 1992/1813. Regulation 10 was amended by S.I. 1994/227, 1995/123, 1995/1045 and 1995/3261.

M8S.I. 1992/1815. Regulation 9 was amended by S.I. 1995/1045 and 1996/1945 and regulation 22 by S.I. 1993/913 and 1995/1045.

M9Paragraph (2) of regulation 1 has been amended by S.I. 1993/913, 1995/1045 and 3261.

DocumentsE+W+S

2.—(1) Except where express provision is made to the contrary, where, under any provision of these Regulations—

(a)any document is given or sent to the Secretary of State, that document shall, subject to paragraph (2), be treated as having been so given or sent on the date it is received by the Secretary of State; and

(b)any document is given or sent to any other person, that document shall, if sent by post to that person’s last known or notified address, and subject to paragraph (3), be treated as having been given or sent on the second day after the day of posting, excluding any Sunday or any day which is a Bank Holiday in England, Wales, Scotland or Northern Ireland under the Banking and Financial Dealings Act 1971 M10.

(2) The Secretary of State may treat any document given or sent to him as given or sent on such day, earlier than the day it was received by him, as he may determine, if he is satisfied that there was unavoidable delay in his receiving the document in question.

(3) Where, by any provision of these Regulations, and in relation to a particular application, notice or notification—

(a)more than one document is required to be given or sent to a person, and more than one such document is sent by post to that person but not all the documents are posted on the same day; or

(b)documents are required to be given or sent to more than one person, and not all such documents are posted on the same day,

all those documents shall be treated as having been posted on the later or, as the case may be, the latest day of posting.

Marginal Citations

Determination of amountsE+W+S

3.—(1) Where any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount and, except where the context otherwise requires, any reference to such an amount shall be construed accordingly.

(2) Where any calculation made under these Regulations results in a fraction of a penny that fraction shall be treated as a penny if it is either one half or exceeds one half and shall be otherwise disregarded.

PART IIE+W+S PROCEDURE ON AN APPLICATION FOR A DEPARTURE DIRECTION AND PRELIMINARY CONSIDERATION

Application for a departure directionE+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).

F11(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Amendment or withdrawal of applicationE+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 informationE+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 [F12one 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

Rejection of application on completion of a preliminary considerationE+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 applicationE+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[F13, 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 F14... 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.

[F15(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.

F16(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, [F17make 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.

F18(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14Words 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)

F17Words 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)

F18Reg. 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)

[F19Procedure in relation to determination of an application for a revision or a supersession of a decision with respect to a departure directionE+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

[F20Departure directions and persons in receipt of income support[F21, state pension credit][F22, income-related employment and support allowance,] income-based jobseeker’s allowance, [F23universal credit] [F24or 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[F25, state pension credit][F26, 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 a person with care to or in respect of whom income support[F28, state pension credit][F26, income-related employment and support allowance], income-based jobseeker’s allowance[F29, 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[F30, state pension credit][F26, 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 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[F32, state pension credit][F26, income-related employment and support allowance][F33, 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[F34, state pension credit][F26, income-related employment and support allowance][F33, 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[F35, state pension credit][F26, income-related employment and support allowance][F36, 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[F37, state pension credit][F26, income-related employment and support allowance], income-based jobseeker’s allowance[F38, 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[F39, state pension credit][F26, income-related employment and support allowance][F40, 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

Departure directions and interim maintenance assessmentsE+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 M11;

(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

M11S.I. 1992/1813. Regulation 8 was substituted by S.I. 1995/3261.

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

F4111.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F42Meaning of “current assessment” for the purposes of the ActE+W+S

[F4311A.  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

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

12.  For the purposes of section 28E of the Act, “benefit" means income support[F44, state pension credit], income-based jobseeker’s allowance[F45, income-related employment and support allowance,] [F46working tax credit] [F47and housing benefit] [F48council tax benefit and relevant universal credit.]

Textual Amendments

PART IIIE+W+S SPECIAL EXPENSES

Costs incurred in travelling to workE+W+S

13.—(1) Subject to paragraphs (2) and (3), the following costs shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act where they are incurred by the applicant for the purposes of travel between his home and his normal place of work—

(a)the cost of purchasing a ticket for such travel;

(b)the cost of purchasing fuel, where such travel is by a vehicle which is not carrying fare-paying passengers; or

(c)in exceptional circumstances, the taxi fare for a journey which must unavoidably be undertaken during hours when no other reasonable mode of travel is available,

and any minor incidental costs, such as tolls or fees for the use of a particular road or bridge, incurred in connection with such travel.

(2) Where the Secretary of State considers any costs referred to in paragraph (1) to be unreasonably high or to have been unreasonably incurred he may substitute such lower amount as he considers reasonable, including a nil amount.

(3) Costs which can be set off against the income of the applicant under the Income and Corporation Taxes Act 1988 M12 shall not constitute expenses for the purposes of paragraph (1).

Marginal Citations

Contact costsE+W+S

14.—(1) Where at the time a departure direction is applied for a set pattern has been established as to frequency of contact between the absent parent and a child in respect of whom the current assessment was made, the following costs, based upon that pattern and incurred by that absent parent for the purpose of maintaining contact with that child, shall, subject to paragraphs (2) to (6), constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act—

(a)the cost of purchasing a ticket for travel for the purpose of maintaining that contact;

(b)the cost of purchasing fuel, where travel is for the purpose of maintaining that contact and is by a vehicle which is not carrying fare-paying passengers; or

(c)the taxi fare for a journey or part of a journey to maintain that contact where the Secretary of State is satisfied that the disability of the absent parent makes it impracticable to use any other form of transport which might otherwise have been available to him,

and any minor incidental costs, such as tolls or fees for the use of a particular road or bridge, incurred in connection with such travel.

(2) Subject to paragraph (3), where the Secretary of State considers any costs referred to in paragraph (1) to be unreasonably high or to have been unreasonably incurred he may substitute such lower amount as he considers reasonable, including a nil amount.

(3) Any lower amount substituted by the Secretary of State under paragraph (2) shall not be so low as to make it impossible, in the Secretary of State’s opinion, for contact to be maintained at the frequency specified in any court order made in respect of the absent parent and the child mentioned in paragraph (1) where the absent parent is maintaining contact at that frequency.

(4) Paragraph (1) shall not apply where regulation 20 of the Maintenance Assessments and Special Cases Regulations (persons treated as absent parents) applies to the applicant.

(5) Where sub-paragraph (c) of paragraph (1) applies and the applicant has, at the date an application is made, received, or at that date is in receipt of, financial assistance from any source to meet, wholly or in part, costs of maintaining contact with the child who is referred to in paragraph (1), which arise wholly from his disability and which are in excess of the costs which would be incurred if that disability did not exist, only the net amount of the costs referred to in that sub-paragraph, after the deduction of that financial assistance, shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act.

(6) For the purposes of this regulation, a person is disabled if he is blind, deaf or dumb or is substantially or permanently handicapped by illness, injury, mental disorder or congenital deformity.

(7) Where, at the time a departure direction is applied for, no set pattern has been established as to frequency of contact between the absent parent and a child in respect of whom the current assessment was made, but the Secretary of State is satisfied that that absent parent and the person with care of that child have agreed upon a pattern of contact for the future, the costs mentioned in paragraph (1) and which are based upon that intended pattern of contact shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act, and paragraphs (2) to (6) shall apply to that application.

[F49(8) This regulation shall apply in relation to an application made for the purpose of superseding a decision with respect to a departure direction as though–

(a)for the words “at the time a departure direction is applied for” in paragraphs (1) and (7) there were substituted the words “at the time an application is made for a decision superseding a decision with respect to a departure direction”;

(b)in paragraph (5), after the words “an application” there were inserted the words “for the supersession of a decision with respect to a departure direction.”]

Textual Amendments

Illness or disabilityE+W+S

15.—(1) Subject to paragraphs (2) to (4), the costs being met by the applicant in respect of the items listed in sub-paragraphs (a) to (m), which arise from long-term illness or disability of that applicant or a dependant of that applicant and which are in excess of the costs which would be incurred if that illness or disability did not exist, shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act—

(a)personal care and attendance;

(b)personal communication needs;

(c)mobility;

(d)domestic help;

(e)medical aids where these cannot be provided under the health service;

(f)heating;

(g)clothing;

(h)laundry requirements;

(i)payments for food essential to comply with a diet recommended by a medical practitioner;

(j)adaptations required to the applicant’s home;

(k)day care;

(l)rehabilitation; or

(m)respite care.

(2) Where the Secretary of State considers any costs referred to in paragraph (1) to be unreasonably high or to have been unreasonably incurred he may substitute such lower amount as he considers reasonable, including a nil amount.

(3) [F50Subject to paragraph (4A),] where—

(a)an applicant or his dependant has, at the date an application is made, received, or at that date is in receipt of, financial assistance from any source in respect of his long-term illness or disability or that of his dependant; or

(b)that applicant or his dependant is adjudged eligible for [F51a disability benefit] referred to in paragraph (4),

only the net amount of the costs incurred in respect of the items listed in paragraph (1), after the deduction of the financial assistance referred to in sub-paragraph (a) and, where applicable, [F52the disability benefit] referred to in sub-paragraph (b) shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act.

[F53(4) Subject to paragraph (4A), where the Secretary of State considers that a person who has made an application in respect of special expenses falling within paragraph (1) or his dependant may be entitled to a disability benefit—

(a)if that applicant or his dependant has at the date of that application, or within a period of six weeks beginning with the giving or sending to that person of notification of the possibility of entitlement to a disability benefit, applied for a disability benefit, the application made by that applicant shall not be determined until a decision has been made by the Secretary of State on the eligibility for that disability benefit of that applicant or that dependant;

(b)if that applicant or his dependant has failed to apply for a disability benefit within the six week period specified in sub-paragraph (a), the Secretary of State shall determine the application for a departure direction made by that applicant on the basis that that applicant has income equivalent to the highest rate prescribed in respect of that disability benefit by or under those sections.]

[F54[F55(4A) Paragraphs (3) and (4) do not apply where the dependant of an applicant is adjudged eligible for a disability benefit and in all the circumstances of the case the Secretary of State considers that the costs being met by the applicant in respect of the items listed in paragraph (1) shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act without the deductions in paragraph (3) being made.]]

(5) For the purposes of this regulation, a dependant of an applicant shall be—

(a)where the applicant is an absent parent—

(i)the partner of that absent parent;

(ii)any child of whom that absent parent or his partner is a parent and who lives with them; or

(b)where the applicant is a parent with care—

(i)the partner of that parent with care;

(ii)any child of whom that parent with care or her partner is a parent and who lives with them, except any child in respect of whom the absent parent against whom the current assessment is made is the parent.

(6) For the purposes of this regulation—

(a)a person is disabled if he is blind, deaf or dumb or is substantially or permanently handicapped by illness, injury, mental disorder or congenital deformity;

(b)“long-term illness" means an illness from which the applicant or his dependant is suffering at the date of the application and which is likely to last for at least 52 weeks from that date or if likely to be shorter than 52 weeks, for the rest of the life of that applicant or his dependant;

(c)“the health service" has the same meaning as in section 128 of the National Health Service Act 1977 M13 or in section 108(1) of the National Health Service (Scotland) Act 1978 M14.

[F56(d)“disability benefit” means disability living allowance under section 71 of the Contributions and Benefits Act, personal independence payment under Part 4 of the Welfare Reform Act 2012[F57, armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011] or attendance allowance under section 64 of the Contributions and Benefits Act.]

Textual Amendments

Marginal Citations

Debts incurred before the absent parent became an absent parentE+W+S

16.—(1) Subject to paragraphs (2) to (4), repayment of debts incurred—

(a)for the joint benefit of the applicant and the non-applicant parent;

(b)for the benefit of the non-applicant parent where the applicant remains legally liable to repay the whole or part of that debt;

(c)for the benefit of any person who at the time the debt was incurred—

(i)was a child;

(ii)lived with the applicant and non-applicant parent; and

(iii)of whom the applicant or the non-applicant parent is the parent, or both are the parents; or

(d)for the benefit of any child with respect to whom the current assessment was made,

shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act where those debts were incurred before the absent parent became an absent parent in relation to a child with respect to whom the current assessment was made and at a time when the applicant and the non-applicant parent were [F58a couple] who were living together.

(2) Paragraph (1) shall not apply to repayment of—

(a)a debt which would otherwise fall within paragraph (1) where the applicant has retained for his own use and benefit the asset the purchase of which incurred the debt;

(b)a debt incurred for the purposes of any trade or business;

(c)a gambling debt;

(d)a fine imposed on the applicant;

[F59(e)unpaid legal costs in respect of—

(i)separation or divorce from the non-applicant parent;

(ii)separation from the non-applicant parent or the dissolution of a civil partnership that had been formed with the non-applicant parent;]

(f)amounts due after use of a credit card;

(g)a debt incurred by the applicant to pay any of the items listed in sub-paragraphs (c) to (f) and (j);

(h)amounts payable by the applicant under a mortgage or loan taken out on the security of any property except where that mortgage or loan was taken out to facilitate the purchase of, or to pay for repairs or improvements to, any property which is the home of the parent with care and any child in respect of whom the current assessment was made;

(i)amounts payable by the applicant in respect of a policy of insurance of a kind referred to in paragraph 3(4) or (5) of Schedule 3 to the Maintenance Assessments and Special Cases Regulations M15 (eligible housing costs) except where that policy of insurance was obtained or retained to discharge a mortgage or charge taken out to facilitate the purchase of, or to pay for repairs or improvements to, any property which is the home of the parent with care and any child in respect of whom the current assessment was made;

(j)a bank overdraft except where the overdraft was, at the time it was taken out, agreed to be for a specified amount repayable over a specified period;

(k)a loan obtained by the applicant, other than a loan obtained from a qualifying lender or the applicant’s current or former employer;

(l)a debt in respect of which a departure direction has already been given and which has not been repaid during the period for which that direction was in force except where the maintenance assessment in respect of which that direction was given was cancelled or ceased to have effect and, during the period for which that direction was in force, a further maintenance assessment was made in respect of the same applicant, non-applicant and qualifying child with respect to whom the earlier assessment was made; or

(m)any other debt which the Secretary of State is satisfied it is reasonable to exclude.

(3) Except where the repayment is of an amount which is payable under a mortgage or loan, or in respect of a policy of insurance, which falls within the exception set out in sub-paragraph (h) or (i) of paragraph (2), repayment of a debt shall not constitute expenses for the purposes of paragraph (1) where the Secretary of State is satisfied that the applicant has taken responsibility for repayment of that debt, as, or as part of, a financial settlement with the non-applicant parent or by virtue of a court order.

(4) Where an applicant has incurred a debt partly to repay a debt or debts repayment of which would have fallen within paragraph (1), the repayment of that part of the debt incurred which is referable to the debts repayment of which would have fallen within that paragraph shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act.

(5) For the purposes of this regulation—

(a)“[F60couple]" has the meaning set out in regulation 1 of the Maintenance Assessments and Special Cases Regulations;

(b)“non-applicant parent" means—

(i)where the applicant is the person with care, the absent parent;

(ii)where the applicant is the absent parent, the partner of that absent parent at the time the debt in respect of which the application is made was entered into;

(c)“qualifying lender" has the meaning given to it in section 376(4) of the Income and Corporation Taxes Act 1988 M16;

(d)“repairs and improvements" means major repairs necessary to maintain the fabric of the home and any of the measures set out in sub-paragraphs (a) to (j) of paragraph 2 of Schedule 3 to the Maintenance Assessments and Special Cases Regulations (eligible housing costs) and other improvements which the Secretary of State considers reasonable in the circumstances where those measures or other improvements are undertaken with a view to improving fitness for occupation of the home.

Textual Amendments

Marginal Citations

M15Paragraph 3(4) was amended by S.I. 1995/1045 and paragraph 3(5) by S.I. 1994/227.

Pre-1993 financial commitmentsE+W+S

17.—(1) A financial commitment entered into by an absent parent before 5th April 1993, except any commitment of a kind listed in paragraph (2)(b) to (g) and (j) of regulation 16 or which has been wholly or partly taken into account in the calculation of a maintenance assessment shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act where—

(a)there was in force on 5th April 1993 and at the date that commitment was entered into, [F61a maintenance order or a written] maintenance agreement made before 5th April 1993 in respect of that absent parent and every child in respect of whom, before that date, he was, or was found, or adjudged to be, the parent; F62...

[F63(aa)at least one of the children referred to in sub-paragraph (a) is a child in respect of whom the current assessment was made; and]

(b)the Secretary of State is satisfied that it is impossible for the absent parent to withdraw from that commitment or unreasonable to expect him to do so.

F64(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Costs incurred in supporting certain childrenE+W+S

18.—(1) The costs incurred by a parent in supporting a child who is not his child but who is part of his family [F65and who was, at the date on which any departure direction given in response to an application under this regulation would take effect, living in the same household as that parent] (a “relevant child") shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act if the conditions set out in paragraph (2) are satisfied and shall, if those conditions are satisfied, equal the amount specified in paragraph (3).

(2) The conditions referred to in paragraph (1) are—

[F66(a)the child became a relevant child prior to 5th April 1993 and has remained a relevant child for the whole of the period from that date to the date on which any departure direction given in response to an application under this regulation would take effect;]

[F67(b)subject to paragraph (7)—

(i)the liability of the absent parent of a relevant child to pay maintenance to or for the benefit of that child under a maintenance order, a written maintenance agreement or a maintenance assessment; or

(ii)any deduction from benefit under section 43 of the Act in place of payment of child support maintenance to or for the benefit of that child,

is less than the amount specified in paragraph (4), or there is no such liability or deduction; and]

(c)the net income of the parent’s current partner where the relevant child is the child of that partner, calculated in accordance with paragraph (5), is less than the amount calculated in accordance with paragraph (6) (“the partner’s outgoings").

(3) [F68Subject to paragraph (7A),] the amount referred to in paragraph (1) constituting special expenses for a case falling within this regulation is the difference between the amount specified in paragraph (4) and, subject to paragraph (7), the liability of the absent parent of a relevant child to pay maintenance of a kind mentioned in paragraph (2)(b)[F69(i) or any deduction from benefit mentioned in paragraph (2)(b)(ii)], and if there is no such liability [F70or deduction] is the amount specified in paragraph (4).

(4) [F71Subject to paragraphs (4A) and (4B),] The amount referred to in paragraphs (2)(b) and (3) is the aggregate of—

(a)an amount in respect of each relevant child equal to the personal allowance for that child specified in column (2) of paragraph 2 of the relevant Schedule (income support personal allowance);

(b)if the conditions set out in paragraph 14(b) and (c) [F72of] that Schedule (income support disabled child premium) are satisfied in respect of a relevant child, an amount equal to the amount specified in column (2) of paragraph 15(6) of that Schedule in respect of each such child [F72and];

[F73(c)except where the family includes other children of the parent, an amount equal to the income support family premium specified in paragraph 3(1)(b) of that Schedule that would be payable if the parent were a claimant.]

F74(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F75(4A) Where day to day care of the relevant child is shared between the current partner of the person making an application under this regulation and the other parent of that child, the amounts referred to in paragraph (4) shall be reduced by the proportion of those amounts which is the same as the proportion of the week in respect of which the child is not living in the same household as the applicant.]

[F75(4B) Where an application under paragraph (1) is made in respect of more than one relevant child and the family does not include any other children of the parent, the amount applicable under sub-paragraph (c) of paragraph (4) in respect of each relevant child shall be calculated by dividing the amount referred to in that sub-paragraph by the number of relevant children in respect of whom that application is made.]

(5) For the purposes of paragraph (2)(c), the net income of the parent’s partner shall be the aggregate of—

(a)the income of that partner, calculated in accordance with regulation 7(1) of the Maintenance Assessments and Special Cases Regulations (but excluding the amount mentioned in sub-paragraph (d) of that regulation) as if that partner were an absent parent to whom that regulation applied;

(b)the child benefit payable in respect of each relevant child; and

(c)any income, other than earnings, in excess of £10.00 per week in respect of each relevant child.

(6) For the purposes of paragraph (2)(c), a current partner’s outgoings shall be the aggregate of—

(a)an amount equal to the amount specified in column (2) of paragraph 1(1)(e) of the relevant Schedule (income support personal allowance for a single claimant aged not less than 25);

(b)where a departure direction has already been given in a case falling within regulation 27 in respect of the housing costs attributable to the partner, the amount determined in accordance with regulation 40(7) as the housing costs the partner is able to contribute;

(c)the amount of any reduction in the parent’s exempt income, calculated under paragraph (1) of regulation 9 of the Maintenance Assessments and Special Cases Regulations M17, in consequence of the application of paragraph (2) of that regulation; and

(d)the amount specified in paragraph (3) [F76or the aggregate of those amounts where paragraph (7A) applies to that partner.]

(7) The Secretary of State may, if he is satisfied that it is appropriate in the particular circumstances of the case, treat a liability of a kind mentioned in paragraph (2)(b)[F77(i)] as not constituting a liability for the purposes of that paragraph and of paragraph (3).

[F78(7A) Where an application is made in respect of relevant children of different parents, a separate calculation shall be made in accordance with paragraphs (3) and (4) in respect of each relevant child or group of relevant children who have the same parents and the amount constituting special expenses referred to in paragraph (1) shall be the aggregate of the amounts calculated in accordance with paragraph (3) in respect of each such relevant child or group of relevant children.]

(8) For the purposes of this regulation—

[F79(a)a child who is not the child of a particular person is a part of that person’s family where—

(i)that child is the child of a current partner of that person; or

(ii)that child is the child of a former partner of that person and lives in the same household as the applicant for every night of each week;]

(b)“relevant Schedule" means Schedule 2 to the Income Support (General) Regulations 1987 M18.

[F80(c)where a person has made an election under section 13A(1) of the Social Security Administration Act 1992 (election not to receive child benefit) for payments of child benefit not to be made, the amount of child benefit that would be otherwise paid in respect of the relevant child is to be treated as being payable.]

Textual Amendments

Marginal Citations

M17Paragraph (1) of regulation 9 was amended by regulation 44(2) of S.I. 1995/1045. Paragraph (2) was amended by regulation 9(2)(c) of S.I. 1993/913 and regulation 44(3) of S.I. 1995/1045.

M18S.I. 1987/1967. Paragraphs 1 and 2 of Schedule 2 were substituted by Schedule 4 to S.I. 1995/559; paragraph 15 was substituted by Schedule 5 to that instrument.

Special expenses for a case falling within regulation 13, 14, 16 or 17E+W+S

19.—(1) This regulation applies where the expenses of an applicant fall within one or more of the descriptions of expenses falling within regulation 13 (travel to work costs), 14 (contact costs), 16 (debts incurred before the absent parent became an absent parent) or 17 (pre-1993 financial commitments).

(2) Special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act in respect of the expenses mentioned in paragraph (1) shall be—

(a)where the expenses fall within only one description of expenses, those expenses in excess of £15.00;

(b)where the expenses fall within more than one description of expenses, the aggregate of those expenses in excess of £15.00.

Application for a departure direction in respect of special expenses other than those with respect to which a direction has already been givenE+W+S

20.  Where a departure direction with respect to special expenses falling within one or more of the descriptions of expenses falling within regulation 13, 14, 16 or 17 has already been given and an application with respect to special expenses falling within one or more of those descriptions of expenses is made where none of those expenses are ones with respect to which the earlier direction has been given, the special expenses with respect to which any later direction is given shall be the expenses, determined in accordance with regulation 13, 14, 16 or 17, as the case may be, with respect to which the later application is made, and the provisions of regulation 19 shall not apply.

PART IVE+W+S PROPERTY OR CAPITAL TRANSFERS

Prescription of certain terms for the purposes of paragraphs 3 and 4 of Schedule 4B to the ActE+W+S

21.—(1) For the purposes of paragraphs 3(1)(a) and 4(1)(a) of Schedule 4B to the Act—

(a)a court order means an order made—

(i)under one or more of the enactments listed in or prescribed under section 8(11) of the Act; and

(ii)in connection with the transfer of property of a kind defined in paragraph (2);

(b)an agreement means a written agreement made in connection with the transfer of property of a kind defined in paragraph (2).

(2) Subject to paragraphs (3) to (5), for the purposes of paragraph 3(1)(b) and 4(1)(b) of Schedule 4B to the Act, a transfer of property is a transfer by the absent parent of his beneficial interest in any asset to the person with care, to a child in respect of whom the current assessment was made, or to trustees where the object or one of the objects of the trust is the provision of maintenance.

(3) Where a transfer of property would not originally have fallen within paragraph (2) but the Secretary of State is satisfied that some or all of the amount of that property transferred was subsequently transferred to the person currently with care of a child in respect of whom the current assessment was made, the transfer of that property to the person currently with care shall count as a transfer of property for the purposes of paragraph 3(1)(b) and 4(1)(b) of Schedule 4B to the Act.

(4) Where, if the Act had been in force at the time a transfer of property falling within paragraph (2) was made, the person who, at the time the application is made is the person with care would have been the absent parent and the person who, at the time the application is made is the absent parent would have been the person with care, that transfer shall not count as a transfer of property for the purposes of this regulation.

(5) For the purposes of paragraph 3(3) of Schedule 4B to the Act, the effect of a transfer of property is properly reflected in the current assessment if—

(a)the amount of child support maintenance payable under any fresh maintenance assessment which would be made in consequence of a departure direction differs from the amount of child support maintenance payable under that current assessment by less than £1.00; or

(b)the transfer referred to in paragraph (2) was for a specified period only and that period ended before the effective date of any departure direction which would otherwise have been given.

Value of a transfer of property and its equivalent weekly value for a case falling within paragraph 3 of Schedule 4B to the ActE+W+S

22.—(1) Where the conditions specified in paragraph 3(1) of Schedule 4B to the Act are satisfied, the value of a transfer of property for the purposes of that paragraph shall be that part of the transfer made by the absent parent (making allowance for any transfer by the person with care to the absent parent) which the Secretary of State is satisfied is in lieu of [F81periodical payments of] maintenance.

(2) The Secretary of State shall, in determining the value of a transfer of property in accordance with paragraph (1), assume that, unless evidence to the contrary is provided to him—

(a)the person with care and the absent parent had equal beneficial interests in the assets in relation to which the court order or agreement was made;

(b)where the person with care was married to the absent parent, one half of the value of the transfer was a transfer for the benefit of the person with care; and

(c)where the person with care has never been married to the absent parent, none of the value of the transfer was a transfer for the benefit of the person with care.

(3) The equivalent weekly value of a transfer of property shall be determined in accordance with the provisions of the Schedule.

(4) For the purposes of regulation 21 and this regulation, the term “maintenance" means the normal day-to-day living expenses of the child with respect to whom the current assessment was made.

Textual Amendments

PART VE+W+S ADDITIONAL CASES

Assets capable of producing income or higher incomeE+W+S

23.—(1) Subject to paragraphs (2) and (3), a case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where—

(a)the Secretary of State is satisfied that any asset in which the non-applicant has a beneficial interest, or which he has the ability to control—

(i)is capable of being utilised to produce income but has not been so utilised;

(ii)has been invested in such a way that the income obtained from it is less than might reasonably be expected;

(iii)is a chose in action which has not been enforced where the Secretary of State is satisfied that such enforcement would be reasonable;

(iv)in Scotland, is monies due or an obligation owed, whether immediately payable or otherwise and whether the payment or obligation is secured or not and the Secretary of State is satisfied that requiring payment of the monies or the implementation of the obligation would be reasonable; or

(v)has not been sold where the Secretary of State is satisfied that the sale of the asset would be reasonable;

(b)any asset has been transferred by the non-applicant to trustees and the non-applicant is a beneficiary of the trust so created; or

(c)any asset has become subject to a trust created by legal implication of which the non-applicant is a beneficiary.

(2) Paragraph (1) shall not apply where—

(a)the total value of the asset or assets referred to in that paragraph does not exceed £10,000.00 after deduction of the amount owing under any mortgage or charge on that asset; or

(b)the Secretary of State is satisfied that any asset referred to in that paragraph is being retained by the non-applicant to be used for a purpose which the Secretary of State considers reasonable in all the circumstances of the case[F82; or

(c)if the non-applicant were a claimant, paragraph 64 of Schedule 10 to the Income Support (General) Regulations 1987 (treatment of relevant trust payments) would apply to the asset referred to in that paragraph.]

F83(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purposes of this regulation the term “asset" means—

(a)money, whether in cash or on deposit;

(b)a beneficial interest in land and rights in or over land;

(c)shares as defined in section 744 of the Companies Act 1985 M19, stock and unit trusts as defined in section 6 of the Charging Orders Act 1979 M20, gilt edged securities as defined in paragraph 1 of Schedule 2 to the Capital Gains Tax Act 1979 M21, and other similar financial instruments.

(5) For the purposes of paragraph (4) the term “asset" includes any asset falling within that paragraph which is located outside Great Britain.

Textual Amendments

Marginal Citations

Diversion of incomeE+W+S

[F8424.—(1) A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where—

(a)the non-applicant (“A”) has the ability to control the amount of income that—

(i)A receives, or

(ii)is taken into account as A’s assessable income,

including earnings from employment or self-employment and dividends from shares, whether or not the whole of that income is derived from the company or business from which those earnings are derived; and

(b)the [F85Secretary of State] is satisfied that A has unreasonably reduced the amount of A’s income which would otherwise fall to be taken into account under regulation 7 or 8 of the Maintenance Assessments and Special Cases Regulations by diverting it to other persons or for purposes other than the provision of such income for A.

(2) In this regulation “assessable income” means the amount calculated in accordance with paragraph 5(1) to (3) of Schedule 1 to the Act and regulations made for the purposes of that paragraph.]

Textual Amendments

Life-style inconsistent with declared incomeE+W+S

25.—(1) Subject to paragraph (2), a case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where the Secretary of State is satisfied that the current F86... assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall life-style of that non-applicant.

[F87(2) Paragraph (1) shall not apply where the Secretary of State is satisfied that the life-style of the non-applicant is paid for—

(a)out of capital belonging to him; or

(b)by his partner, unless the non-applicant is able to influence or control the amount of income received by that partner.]

(3) Where the Secretary of State is satisfied in a particular case that the provisions of paragraph (1) would apply but for the provisions of paragraph [F88(2)(b)], he may, whether or not any application on that ground has been made, consider whether the case falls within regulation 27.

Textual Amendments

Unreasonably high housing costsE+W+S

26.  A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where—

(a)the housing costs of the non-applicant exceed the limits set out in paragraph (1) of regulation 18 of the Maintenance Assessments and Special Cases Regulations (excessive housing costs);

(b)the non-applicant falls within paragraph (2) of that regulation or would fall within that paragraph if it applied to parents with care; and

(c)the Secretary of State is satisfied that the housing costs of the non-applicant are substantially higher than is necessary taking into account any special circumstances applicable to that non-applicant.

Partner’s contribution to housing costsE+W+S

27.  A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where a partner of the non-applicant occupies the home with him and the Secretary of State considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non-applicant.

Unreasonably high travel costsE+W+S

28.  A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where an amount in respect of travel to work costs has been included in the calculation of exempt income of the non-applicant under regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations M22 (exempt income: calculation or estimation of E) or, as the case may be, under regulation 10 of those Regulations (exempt income: calculation or estimation of F) M23 applying regulation 9(1)(i), and the Secretary of State is satisfied that, in all the circumstances of the case, that amount is unreasonably high.

Marginal Citations

M22Sub-paragraph (1) was added to regulation 9(1) by regulation 44(2)(b) of S.I. 1995/1045.

M23Regulation 10 was amended by regulation 45 of S.I. 1995/1045.

Travel costs to be disregardedE+W+S

29.  A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where—

(a)

an amount in respect of travel to work costs has, in the calculation of a maintenance assessment, been included in the calculation of the exempt income of the non-applicant under regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations or, as the case may be, under regulation 10 of those Regulations applying regulation 9(1)(i); and

(b)

the Secretary of State is satisfied that the non-applicant has sufficient income remaining after the deduction of the amount that would be payable under that assessment, had the amount referred to in sub-paragraph (a) not been included in its calculation, for it to be inappropriate for all or part of that amount to be included in the exempt income of the non-applicant.

PART VIE+W+S FACTORS TO BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF SECTION 28F OF THE ACT

Factors to be taken into account and not to be taken into account in determining whether it would be just and equitable to give a departure directionE+W+S

30.—(1) The factors to be taken into account in determining whether it would be just and equitable to give a departure direction in any case shall include—

(a)where the application is made on any ground—

(i)whether, in the opinion of the Secretary of State, the giving of a departure direction would be likely to result in a relevant person ceasing paid employment;

(ii)if the applicant is the absent parent, the extent, if any, of his liability to pay child maintenance under a court order or other agreement in the period prior to the effective date of the maintenance assessment;

(b)where an application is made on the ground that the case falls within regulations 13 to 20 (special expenses), whether, in the opinion of the Secretary of State—

(i)the financial arrangements made by the applicant could have been such as to enable the whole or part of the expenses cited to be paid without a departure direction being given;

(ii)the applicant has at his disposal financial resources which are currently utilised for the payment of expenses other than those arising from essential everyday requirements and which could be used to pay the whole or part of the expenses cited.

(2) The following factors are not to be taken into account in determining whether it would be just and equitable to give a departure direction in any case—

(a)the fact that the conception of a child in respect of whom the current assessment was made was not planned by one or both of the parents;

(b)whether the parent with care or the absent parent was responsible for the breakdown of the relationship between them;

(c)the fact that the parent with care or the absent parent has formed a new relationship with a person who is not a parent of the child in respect of whom the current assessment was made;

(d)the existence of particular arrangements for contact with the child in respect of whom the current assessment was made, including whether any arrangements made are being adhered to by the parents;

(e)the failure by an absent parent to make payments under a maintenance order, a written maintenance agreement, or a maintenance assessment;

(f)representations made by persons other than the relevant persons.

PART VIIE+W+S EFFECTIVE DATE AND DURATION OF A DEPARTURE DIRECTION

Refusal to give a departure direction under section 28F(4)of the ActE+W+S

31.  The Secretary of State shall not give a departure direction in accordance with section 28F of the Act if he is satisfied that the difference between the current amount and the revised amount is less than £1.00.

Effective date of a departure directionE+W+S

32.—(1) Where an application is made on the grounds set out in section 28A(2)(a) of the Act (the effect of the current assessment) and that application is given or sent within [F89one month] of the date of notification of the current assessment (whether or not that assessment has been made following an interim maintenance assessment), a departure direction given in response to that application shall take effect—

(a)where it is given on grounds that relate to the whole of the period between the effective date of the current assessment and the date on which that assessment is made, on the effective date of that assessment;

(b)in a case not falling within sub-paragraph (a), on the first day of the maintenance period following the date upon which the circumstances giving rise to that application first arose.

(2) Where an application is made on the grounds set out in section 28A(2)(a) of the Act (the effect of the current assessment) and that application is given or sent later than [F89one month] after the date of notification of the current assessment (whether or not that assessment has been made following an interim maintenance assessment)—

(a)subject to sub-paragraph (b), a departure direction given in response to that application shall take effect on the first day of the maintenance period during which that application is received;

(b)where the Secretary of State is satisfied that there was unavoidable delay, he may, for the purposes of determining the date on which a departure direction takes effect, treat the application as if it were given or sent within 28 days of the date of notification of the current assessment.

(3) The provisions of paragraphs (1) and (2) are subject to the provisions of [F90paragraphs (3A) and (6)] and of regulations 47 to 50.

[F91(3A) [F92Subject to paragraph (3B), where] an application is determined in accordance with regulation 14 and is one to which paragraph (7) of that regulation applies, a departure direction given in response to that application shall take effect—

(a)from the first day of the maintenance period immediately following the date on which the absent parent and the parent with care have agreed the pattern of contact for the future is to commence; or

(b)where no such date has been so agreed, from the first day of the maintenance period immediately following the date upon which the departure direction is given.]

[F93(3B) For the purposes of paragraph (3A), paragraph (8) of regulation 14 shall not apply.]

(4) Subject to paragraph (6), where an application for a departure direction is made on the grounds set out in section 28A(2)(b) of the Act (a material change in the circumstances of the case since the current assessment was made), any departure direction given shall take effect on the first day of the maintenance period during which the application was received.

(5) An application may be made on the grounds set out in section 28A(2)(b) of the Act only if the material change in the circumstances on which it is based has already occurred.

(6) Where—

(a)an application has been determined in accordance with regulation 15(4)(b);

(b)a subsequent application is made with respect to special expenses falling within regulation 15(1) each of which is an expense in respect of which the earlier application was made; and

(c)the Secretary of State is satisfied that there was good cause for the applicant or his dependant not applying for disability living allowance or, as the case may be, attendance allowance within the six week period specified in regulation 15(4)(a),

any departure direction given in response to the later application shall take effect from the date that the earlier direction had effect, or would have had effect if an earlier direction had been given.

F94(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F94(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F95Revision of decisionsE+W+S

32A.—(1) Subject to paragraphs (2) and (3), a decision of the Secretary of State or any decision upon referral under section 28D(1)(b) of [F96the First-tier Tribunal] with respect to a departure direction may be revised by the Secretary of State under section 16 of the Act as extended by paragraph 1 of Schedule 4C to the Act–

(a)if the Secretary of State receives an application for the revision of a decision under section 16 of the Act as extended within one month of the date of notification of the decision or within such longer time as may be allowed by regulation 32B;

(b)if–

(i)the Secretary of State notifies a person, who applied for a decision to be revised within the period specified in sub-paragraph (a), that the application is unsuccessful because the Secretary of State is not in possession of all of the information or evidence needed to make a decision; and

(ii)that person reapplies for a decision to be revised within one month of the notification described in head (i) above or such longer period as the Secretary of State is satisfied is reasonable in the circumstances of the case, and provides in that application sufficient information or evidence to enable a decision to be made;

(c)if the decision arose from an official error;

(d)if the Secretary of State is satisfied that the original decision was erroneous due to a misrepresentation of, or failure to disclose, a material fact and that the decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would otherwise have been but for that error;

(e)where a departure direction takes effect in the circumstances described in regulation 35(3); or

(f)if the Secretary of State commences action leading to the revision of a decision within one month of the date of notification of the decision.

(2) Paragraph (1) shall apply neither–

(a)in respect of a material change of circumstances which–

(i)occurred since [F97the date on which the decision was made]; or

(ii)is expected, according to information or evidence which the Secretary of State has, to occur; nor

(b)where–

(i)an appeal against the original decision has been brought but not determined; and

(ii)from the point of view of the appellant, a revision, if made, would be less to his advantage than the original decision.]

Textual Amendments

[F95Late applications for a revisionE+W+S

32B.—(1) The period of one month specified in regulation 32A(1)(a) may be extended where the requirements specified in the following provisions of this regulation are met.

(2) An application for an extension of time shall be made by a relevant person or a person acting on his behalf.

(3) An application for an extension of time under this regulation shall–

(a)be made within 13 months of the date on which notification of the decision which it is sought to have revised was given or sent; and

(b)contain particulars of the grounds on which the extension of time is sought and shall contain sufficient details of the decision which it is sought to have revised to enable that decision to be identified.

(4) The application for an extension of time shall not be granted unless the person making the application, or any person acting for him, satisfies the Secretary of State that–

(a)it is reasonable to grant that application;

(b)the application for the decision to be revised has merit; and

(c)special circumstances are relevant to the application for an extension of time,

and as a result of those special circumstances, it was not practicable for the application for a decision to be revised to be made within one month of the date of notification of the decision which it is sought to have revised.

(5) In determining whether it is reasonable to grant an application for an extension of time, the Secretary of State shall have regard to the principle that the greater the time that has elapsed between the expiration of the period of one month described in regulation 32A(1)(a) from the date of notification of the decision which it is sought to have revised and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.

(6) In determining whether it is reasonable to grant an application for an extension of time, no account shall be taken of the following–

(a)that the person making the application for an extension of time or any person acting for him was unaware of or misunderstood the law applicable to his case (including ignorance or misunderstanding of the time limits imposed by these Regulations);

(b)that [F98the Upper Tribunal] or a court has taken a different view of the law from that previously understood and applied.

(7) An application under this regulation for an extension of time which has been refused may not be renewed.]

Textual Amendments

[F95Date from which a revision of a decision takes effectE+W+S

32C.  Where the date from which a decision took effect is found to be erroneous on a revision, the revision shall take effect from the date on which the revised decision would have taken effect had the error not been made.]

Textual Amendments

[F95Supersession of decisionsE+W+S

32D.—(1) For the purposes of section 17 of the Act as it applies in relation to decisions with respect to departure directions by virtue of paragraph 2 of Schedule 4C to the Act and subject to paragraphs (6), (9) and (10), the cases and circumstances in which a decision with respect to a departure direction may be made under that section are set out in paragraphs (2) to (5).

(2) A decision may be superseded by a decision made by the Secretary of State acting on his own initiative where he is satisfied that–

(a)there has been a material change of circumstances since the decision was made; or

(b)the decision was made in ignorance of, or was based upon a mistake as to, some material fact.

(3) A decision may be superseded by a decision made by the Secretary of State where–

(a)an application is made on the basis that–

(i)there has been a change of circumstances since the decision was made; or

(ii)it is expected that a change of circumstances will occur; and

(b)the Secretary of State is satisfied that the change of circumstances is or would be material.

(4) A decision may be superseded by a decision made by the Secretary of State where–

(a)an application is made on the basis that the decision was made in ignorance of, or was based upon a mistake as to, a fact; and

(b)the Secretary of State is satisfied that the fact is or would be material.

(5) A decision, other than a decision given on appeal, may be superseded by a decision made by the Secretary of State–

(a)where an application is made on the basis that the decision was erroneous in point of law; or

(b)acting on his own initiative where he is satisfied that the decision was erroneous in point of law.

(6) Subject to paragraph (7), paragraphs (2)(a) and (3) shall not apply where, if a decision were to be superseded in accordance with section 17 of the Act, the difference between the current amount and the revised amount would be less than £1.00 per week.

(7) Paragraph (6) shall not apply where the Secretary of State is satisfied on the information or evidence available to him that a ground on which the decision to be superseded was made no longer applies.

(8) In paragraph (6) “revised amount” means the amount of child support maintenance which would be fixed if a decision with respect to a maintenance assessment were to be superseded by a decision made by the Secretary of State in accordance with paragraphs (2)(a) and (3) but for the operation of paragraph (6).

(9) The cases and circumstances in which a decision may be superseded by a decision made by the Secretary of State shall not include any case or circumstance in which a decision may be revised.

(10) Subject to paragraph (11), paragraphs (2) to (5) shall apply in respect of neither–

(a)a decision to reject or refuse an application for a departure direction; nor

(b)a decision to cancel a departure direction.

(11) Paragraph (10) above shall not apply in a case to which either paragraph (2) or (3) of regulation 35 applies.]

Textual Amendments

[F95Date from which a superseding decision takes effectE+W+S

32E.—(1) This regulation contains exceptions to the provisions of section 17(4) of the Act, as it applies in relation to decisions with respect to departure directions by virtue of paragraph 2 of Schedule 4C to the Act, as to the date from which decisions which supersede earlier decisions are to take effect.

(2) Subject to paragraphs [F99(3), (5) and (12)], where–

(a)a decision is made by the Secretary of State which supersedes an earlier decision in consequence of an application having been made under section 17 of the Act as it applies in relation to decisions with respect to departure directions by virtue of paragraph 2 of Schedule 4C to the Act; and

(b)the date on which the application is made is not the first day in a maintenance period, the decision shall take effect as from the first day of the maintenance period in which the application is made.

(3) [F100Subject to paragraph (12), where a decision] is superseded by a decision made by the Secretary of State in a case to which regulation 32D(2)(a) applies on the basis of evidence or information which was also the basis of a decision made under section 9 or 10 of the Social Security Act 1998 the superseding decision under section 17 of the Act as extended by paragraph 2 of Schedule 7 to the Act shall take effect as from the first day of the maintenance period in which that evidence or information was first brought to the attention of an officer exercising the functions of the Secretary of State under the Act.

(4) Where a decision is superseded by a decision made by the Secretary of State under regulation 32D(3) in consequence of an application made on the basis that a material change of circumstances is expected to occur, the superseding decision shall take effect as from the first day of the maintenance period which immediately succeeds the maintenance period in which the material change of circumstances is expected to occur.

(5) Where the Secretary of State makes, on his own initiative, a decision superseding a decision in consequence of evidence or information contained in an unsuccessful application for a revision of that decision, the superseding decision shall take effect as from the first day of the maintenance period in which that application was made.

(6) Where–

(a)a decision made by [F101an appeal tribunal or] [F102the First-tier Tribunal] under section 20 of the Act as extended by paragraph 3 of Schedule 4C to the Act is superseded on the ground that it was erroneous due to a misrepresentation of, or that there was a failure to disclose, a material fact; and

(b)the Secretary of State is satisfied that the decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would otherwise have been but for that error,

the superseding decision shall take effect as from the date the decision it superseded took, or was to take, effect.

(7) Any decision given under section 17 of the Act as extended by paragraph 2 of Schedule 4C to the Act in consequence of a decision which is a relevant determination for the purposes of section 28ZC of the Act (restrictions on liability in certain cases of error) shall take effect as from the date of the relevant determination.

(8) Where a decision with respect to a departure direction is superseded by a decision under section 17 of the Act as extended by paragraph 2 of Schedule 4C to the Act because the departure direction ceases to have effect in accordance with regulation 35(1), the superseding decision shall have effect as from the date on which the decision that the maintenance assessment is cancelled or ceases to have effect, takes or took effect.

(9) Where the superseding decision referred to in paragraph (8) above is itself superseded by a further decision made under section 17 of the Act as extended by paragraph 2 of Schedule 4C to the Act in the circumstances described in regulation 35(2), that further decision shall have effect as from the effective date of the fresh maintenance assessment.

(10) Where a decision with respect to a departure direction is superseded by a decision under section 17 of the Act as extended by paragraph 2 of Schedule 4C to the Act because the departure direction is suspended in accordance with regulation 35(4), the superseding decision shall have effect as from the effective date of the later interim maintenance assessment or, as the case may be, the interim maintenance assessment which replaces a maintenance assessment.

(11) Where the superseding decision referred to in paragraph (10) above is itself superseded by a further decision under section 17 as extended because the interim maintenance assessment referred to in regulation 35(4)(c) is followed by a maintenance assessment made in accordance with the provisions of Part I of Schedule 1 to the Act or by an interim maintenance assessment to which regulation 10 does not apply, that further decision shall have effect as from the effective date of the fresh maintenance assessment or, as the case may be, interim maintenance assessment.]

[F103(12) Where a superseding decision is made in a case to which regulation 32D(2)(a) or (3) applies and the material circumstance is the death of a qualifying child or a qualifying child ceasing to be a qualifying child, the decision shall take effect as from the first day of the maintenance period in which the change occurred.]

Textual Amendments

[F95Cancellation of departure directionsE+W+S

32F.  The Secretary of State may cancel a departure direction where–

(a)regulation 32A(1) applies and he is satisfied that it was not appropriate to have given it; or

(b)regulation 32D applies and he is satisfied that it is no longer appropriate for it to continue to have effect.]

Textual Amendments

[F95Notification of right of appeal, decision and reasons for decisionE+W+S

32G.—(1) The Secretary of State shall notify a person with a right of appeal under the Act against the decision under section 16 or 17 of the Act as those sections apply in relation to decisions with respect to departure directions by virtue of paragraphs 1 and 2 of Schedule 4C to the Act with respect to a departure direction of–

(a)that right;

(b)that decision; and

(c)the reasons for that decision.

(2) A written notice provided under paragraph (1)–

(a)shall also contain sufficient information to enable a relevant person to exercise a right of appeal; and

(b)shall not contain any information which it is not necessary for a person to have in order to understand how the decision was reached.]

Textual Amendments

Cancellation of a departure direction following a review under section 16, 17, 18 or 19 of the Act or on a change of circumstancesE+W+S

F10433.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Cancellation of a departure direction on recognition of an errorE+W+S

F10534.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F106Correction of accidental errors in departure directionsE+W+S

34A.—(1) Subject to paragraphs (3) and (4), accidental errors in any departure direction made by the Secretary of State or record of such a departure direction may, at any time, be corrected by the Secretary of State and a correction made to, or to the record of, that departure direction shall be deemed to be part of that direction or of that record.

(2) Where the Secretary of State has made a correction under the provisions of paragraph (1), he shall immediately notify the persons who were notified of the departure direction that has been corrected, so far as that is reasonably practicable.

(3) In determining whether the time limit specified [F107under Tribunal Procedure Rules] has been complied with, there shall be disregarded any day falling before the day on which notification was given or sent under paragraph (2).

(4) The power to correct errors under this regulation shall not be taken to limit any other powers to correct errors that are exercisable apart from these Regulations.]

Textual Amendments

Termination and suspension of departure directionsE+W+S

35.—(1) Subject to paragraphs (2), (3) and (4), where a departure direction has effect in relation to the amount of child support maintenance fixed by a maintenance assessment which is cancelled or ceases to have effect, that departure direction shall cease to have effect and shall not subsequently take effect.

(2) Where [F108the Secretary of State] ceases to have jurisdiction to make a maintenance assessment and subsequently acquires jurisdiction to make a maintenance assessment in respect of the same absent parent, person with care and any child with respect to whom the earlier assessment was made, a departure direction for a case falling within paragraph 3 or 4 of Schedule 4B to the Act shall again take effect. F109...

(3) Where a departure direction had effect in relation to the amount of child support maintenance fixed by a maintenance assessment which is, under regulation 8(2) of the Maintenance Arrangements and Jurisdiction Regulations (maintenance assessments and maintenance orders made in error), treated as not having been cancelled or not having ceased to have effect, that departure direction shall again take effectF110..., except where there has, since that maintenance assessment was cancelled or ceased to have effect, been a material change of circumstances relevant to that departure direction.

(4) Where—

(a)a departure direction is in force in respect of an interim maintenance assessment or a maintenance assessment made in accordance with the provisions of Part I of Schedule 1 to the Act;

(b)that interim maintenance assessment is replaced by another (“the later interim maintenance assessment") or, as the case may be, that maintenance assessment is replaced by an interim maintenance assessment; and

(c)by virtue of regulation 10 a departure direction would not be given if that interim maintenance assessment or that later interim maintenance assessment had been in force at the time that departure direction was given, that departure direction shall be suspended until that interim maintenance assessment or that later interim maintenance assessment has been cancelled or has ceased to have effect and shall again take effect [F111where the interim maintenance assessment referred to in sub-paragraph (c) is followed by a maintenance assessment made in accordance with the provisions of Part I of Schedule 1 to the Act or by an interim maintenance assessment to which regulation 10 does not apply.]

(5) For the purposes of paragraph (4), a departure direction which is in force shall include a departure direction which is suspended.

Textual Amendments

PART VIIIE+W+S MAINTENANCE ASSESSMENT FOLLOWING A DEPARTURE DIRECTION

Effect of a departure direction—generalE+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 incomeE+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 [F112the 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 [F113the 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

Effect of a departure direction in respect of special expenses—protected incomeE+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 M24 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

M24Sub-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 propertyE+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 M25, the exempt income of the absent parent shall be reduced by that component of exempt income;

[F114(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

Marginal Citations

M25Sub-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 casesE+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 [F115the 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 M26 or, in Scotland, at the statutory rate in respect of interest included in or payable under a decree in the Court of Session M27 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 [F115the 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 [F115the 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 [F115the 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

Marginal Citations

M26See Order 42, rule 1 of the Rules of the Supreme Court, S.I. 1965/1776.

M27See Act of Sederunt (Rules of the Court of Session 1994) 1994.

PART IXE+W+S MAINTENANCE ASSESSMENT FOLLOWING A DEPARTURE DIRECTION: PARTICULAR CASES

Child support maintenance payable where effect of a departure direction would be to decrease an absent parent’s assessable income but case still fell within paragraph 2(3) of Schedule 1 to the ActE+W+S

41.—(1) Subject to regulation 42 and paragraph (8), where the effect of a departure direction would, but for the following provisions of this regulation, be to reduce an absent parent’s assessable income and his assessable income following that direction would be such that the case fell within paragraph 2(3) of Schedule 1 to the Act (additional element of maintenance payable), the amount of child support maintenance payable shall be determined in accordance with paragraphs (2) to (5).

(2) There shall be calculated the amount equal to A x P, where A is equal to the amount that would be the absent parent’s assessable income if the departure direction referred to in paragraph (1) had been given and P has the value prescribed in regulation 5 of the Maintenance Assessments and Special Cases Regulations.

[F116(3) There shall be determined the amount that would be payable under a maintenance assessment made in accordance with the provisions of Part I of Schedule 1 to the Act which would be in force at the date any departure direction referred to in paragraph (1) would take effect if it were to be given.]

[F117(4) The revised amount for the purposes of regulation 7 (rejection of application on completion of a preliminary consideration) and regulation 31 (refusal to give a departure direction under section 28F(4) of the Act) shall be the lowest of the following amounts—

(a)the amount calculated in accordance with paragraph (2);

(b)the amount determined in accordance with paragraph (3);

(c)where the provisions of paragraph 6 of Schedule 1 to the Act (protected income) as modified in a case to which they apply by the provisions of regulation 38 (effect of a departure direction in respect of special expenses—protected income) would apply if a departure direction were given, the amount payable under those provisions,

and the Secretary of State may apply regulation 7 and shall apply regulation 31 in relation to the current amount and the revised amount as so construed.]

(5) F118... Where the application of the provisions of paragraph (4) results in a departure direction being given, the amount of child support maintenance payable following that direction shall be determined by [F119the Secretary of State] as being the revised amount as defined in paragraph (4).

(6) Where the assessable income of an absent parent changes following [F120a decision under section 16 of the Act revising a decision as to a maintenance assessment or a decision under section 17 of the Act superseding a decision as to a maintenance assessment], the provisions of paragraphs (2) to (5) shall be applied to—

(a)the amount calculated under paragraph (2) which takes account of the change in assessable income; and

(b)the amount that would be payable under the maintenance assessment calculated in accordance with the provisions of Part I of Schedule 1 to the Act which takes account of that change in assessable income.

F121(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where a departure direction given in accordance with the provisions of [F122paragraphs (1) to (6)] has effect, those provisions shall apply, subject to the modifications set out in paragraph (9), where—

(a)the effect of a later direction would, but for the provisions of paragraphs (2) to (5), be to change the absent parent’s assessable income and his assessable income following the direction would be such that the case fell within paragraph 2(3) of Schedule 1 to the Act (additional element of maintenance payable); and

(b)that assessable income following the later direction would be less than the assessable income would be if it were calculated in accordance with the provisions of Part I of Schedule 1 to the Act by reference to the circumstances at the time the application for the later direction is made.

(9) The modifications referred to in paragraph (8) are—

(a)in paragraph (2), A would be the absent parent’s assessable income following the later direction but for the provisions of paragraphs (3) to (5);

(b)the references to regulation 7 in paragraph (4) are omitted.

Textual Amendments

Application of regulation 41 where there is a transfer of property falling within paragraph 3 of Schedule 4B to the ActE+W+S

42.—[F123(1) Where an absent parent applies for a departure direction on the grounds that the case falls within both paragraph 2 of Schedule 4B to the Act (special expenses) and paragraph 3 of that Schedule (property or capital transfers), regulation 41 shall be applied subject to the modifications set out in paragraphs (1A) to (3).

(1A) In paragraph (1) of regulation 41, the reference to a departure direction shall be construed as a reference to any departure direction that would be given if the application had been made solely on the grounds that the case falls within paragraph 2 of Schedule 4B to the Act, and the reference to the absent parent’s assessable income shall be construed as a reference to the assessable income calculated in consequence of such a direction.]

(2) 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, that amount shall be excluded—

(a)in calculating the amount A defined in paragraph (2) of regulation 41;

(b)in calculating the maintenance assessment specified in paragraph (3) of regulation 41.

[F124(3) For the purposes of this regulation, the revised amount for the purposes of regulations 7 and 31 shall be—

(a)subject to sub-paragraph (b), the lower of the amounts specified in sub-paragraphs (a) and (b) of paragraph (4) of regulation 41, subject to paragraph (2) of this regulation, less the amount determined in accordance with regulation 22 (value of a transfer of property and its equivalent weekly value for a case falling within paragraph 3 of Schedule 4B to the Act);

(b)where the amount specified in sub-paragraph (c) of paragraph(4) of regulation 41 is lower than the amount determined in accordance with sub-paragraph (a), that amount.]

(4) Where the application of the provisions of paragraph (3) results in a departure direction being given, the amount of child support maintenance payable following that direction shall be [F125determined by [F126the Secretary of State] as being] the revised amount as defined in paragraph (3).

Textual Amendments

F123Reg. 42(1)(1A) substituted for reg. 42(1) (19.1.1998) by The Child Support (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/58), regs. 1(2), 24(2) (with reg. 59)

[F127Application of regulation 41 where the case falls within paragraph 2 and paragraph 5 of Schedule 4B to the ActE+W+S

42A.—(1) Where an absent parent applies for a departure direction on the grounds that the case falls within both paragraph 5 of Schedule 4B to the Act (additional cases) and paragraph 2 of that Schedule (special expenses), and the conditions set out in paragraph (1) of regulation 41 are satisfied, the amount of child support maintenance payable shall be determined in accordance with paragraphs (2) to (6).

(2) The application shall in the first instance be treated as an application (an “additional cases application”) made solely on the grounds that the case falls within paragraph 5 of Schedule 4B to the Act, and a determination shall be made as to whether a departure direction would be given in response to that application.

(3) Following the determination mentioned in paragraph (2), the application shall be treated as an application (a “special expenses application”) made solely on the grounds that the case falls within paragraph 2 of Schedule 4B to the Act, and the provisions of regulation 41 shall be applied to the special expenses application, subject to the provisions of paragraphs (4) to (6).

(4) Where no departure direction would be given in response to the additional cases application, the provisions of regulation 41 shall be applied to determine the amount of child support maintenance payable.

(5) Where a departure direction would be given in response to the additional cases application, the provisions of regulation 41 shall be applied to determine the amount of child support maintenance payable, subject to the modification set out in paragraph (6).

(6) For paragraph (3) of regulation 41 there shall be substituted the following paragraph—

“(3) There shall be determined the amount that would be payable under the maintenance assessment made in consequence of the direction that would be given in response to the additional cases application mentioned in paragraph (2) of regulation 42A which would be in force at the date any departure direction referred to in paragraph (1) would take effect if it were to be given.”.

(7) Where—

(a)a departure direction has been given in a case where regulation 41 has been applied and an application is then made on the grounds that the case falls within paragraph 5 of Schedule 4B to the Act; or

(b)a departure direction has been given on the grounds that the case falls within paragraph 5 of Schedule 4B to the Act, an application is then made on the grounds that the case falls within paragraph 2 of that Schedule, and the conditions set out in paragraph (1) of regulation 41 are satisfied,

the case shall be treated as a case which falls within paragraph (1), and the date of the later application treated as the date on which both applications were made.

(8) Where a departure direction is given in accordance with the provisions of paragraph (7), the earlier direction shall cease to have effect from the date the later direction has effect.]

Textual Amendments

Maintenance assessment following a departure direction for certain cases falling within regulation 22 of the Maintenance Assessments and Special Cases RegulationsE+W+S

43.—(1) Where the provisions of regulation 41 or 42 are applicable to a case falling within regulation 22 of the Maintenance Assessments and Special Cases Regulations M28 (multiple applications relating to an absent parent), those provisions shall apply for the purposes of determining the total maintenance payable in consequence of a departure direction.

(2) In a case falling within paragraph (1), the amount of child support maintenance payable in respect of each application for child support maintenance following the direction shall be the [F128lowest] of—

(a)the amount as determined in accordance with paragraph (3) of regulation 41, subject to the modification that regulation 22 of the Maintenance Assessments and Special Cases Regulations is applied in determining the amount that would be payable (“Y");

(b)the amount calculated by the formula—

where A and P have the same meanings as in regulation 41(2) and Q is the sum of the amounts calculated in accordance with sub-paragraph (a) for each assessment.

[F129(c)where the provisions of paragraph 6 of Schedule 1 to the Act (protected income) apply, as modified in a case to which they apply by the provisions of regulation 38 (effect of a departure direction in respect of special expenses—protected income) or, as the case may be, regulation 40(6),(8) or (10) (effect of a departure direction in respect of additional cases), the amount calculated as payable under those provisions.]

(3) Where, in a case falling within regulation 22 of the Maintenance Assessments and Special Cases Regulations, a departure direction has been given in respect of an absent parent in a case falling within paragraph 3 of Schedule 4B to the Act (property or capital transfers), the equivalent weekly value of the transfer of property as calculated in accordance with regulation 22 of these Regulations shall be deducted from the amount of the maintenance assessment in respect of the person with care or child to or in respect of whom the property transfer was made.

Textual Amendments

Marginal Citations

M28Regulation 22 was amended by regulation 23 of S.I. 1993/913, regulation 51 of S.I. 1995/1045 and regulation 45 of S.I. 1995/3261.

Maintenance assessment following a departure direction where there is a phased maintenance assessmentE+W+S

44.—(1) Where a departure direction is given in a case falling within a relevant enactment, the assessment made in consequence of that direction shall be the assessment that fixes the amount of child support maintenance that would be payable but for the provisions of that enactment (“the unadjusted departure amount").

(2) Where a departure direction takes effect on the effective date of a maintenance assessment to which the provisions of a relevant enactment become applicable, those provisions shall remain applicable to that case following the departure direction.

(3) Where a departure direction takes effect on a date later than the date on which the provisions of a relevant enactment become applicable to a maintenance assessment, the amount of child support maintenance payable in consequence of that direction shall be—

(a)where the unadjusted departure amount is more than the formula amount, the phased amount plus the difference between the unadjusted departure amount and the formula amount;

(b)where the unadjusted departure amount is more than the phased amount but less than the formula amount, the phased amount;

(c)where the unadjusted departure amount is less than the phased amount, the unadjusted departure amount.

(4) Regulation 31 shall have effect for cases falling within paragraphs (1) to (3) as if “current amount" referred to the amount payable under the maintenance assessment that would be in force when the departure direction is given but for the provisions of the relevant enactment and “revised amount" referred to the unadjusted departure amount.

(5) [F130Where the Secretary of State is satisfied that, were a decision as to a fresh maintenance assessment to be made under section 16 or, as the case may be, section 17 of the Act] in relation to a case to which the provisions of [F131paragraphs (1) and (3)] have been applied, and the amount payable under it (“[F132the fresh unadjusted departure amount]") would be—

(a)more than the unadjusted departure amount, the amount of child support maintenance payable shall be the amount determined in accordance with paragraph (3), plus the difference between the unadjusted departure amount and [F132the fresh unadjusted departure amount];

(b)less than the unadjusted departure amount but more than the phased amount, the amount of child support maintenance payable shall be the phased amount;

(c)less than the phased amount, the amount of child support maintenance payable shall be [F132the fresh unadjusted departure amount].

(6) In this regulation—

“the 1992 enactment" means Part II of the Schedule to the Child Support Act 1991 (Commencement No.3 and Transitional Provisions) Order 1992 M29 (modification of maintenance assessment in certain cases);

“the 1994 enactment" means Part III of the Child Support (Miscellaneous Amendments and Transitional Provisions) Regulations 1994 M30 (transitional provisions);

“formula amount" has the same meaning as in the relevant enactment;

“phased amount" means—

(a)where the 1992 enactment is applicable to the particular case, the modified amount as defined in paragraph 6 of that enactment;

(b)where the 1994 enactment is applicable to the particular case, the transitional amount as defined in regulation 6(1) of that enactment;

“relevant enactment" means—

(a)

the 1992 enactment where that enactment is applicable to the particular case;

(b)

the 1994 enactment where that enactment is applicable to the particular case.

Textual Amendments

Marginal Citations

M29S.I. 1992/2644. The relevant amending instrument is S.I. 1993/966.

M30S.I. 1994/227. The relevant amending instrument is S.I. 1995/1045.

PART XE+W+S MISCELLANEOUS

Regular payments conditionE+W+S

45.—(1) For the purposes of section 28C(2)(b) of the Act (regular payments condition—reduced payments), reduced payments shall, subject to paragraph (3), be such payments as would be equal to the payments of child support maintenance fixed by the fresh maintenance assessment that would be made if the circumstances of the case were those set out in paragraph (2).

(2) The circumstances referred to in paragraph (1) are—

(a)the Secretary of State is satisfied that the case is one which falls within paragraph 2 of Schedule 4B to the Act (special expenses);

(b)the Secretary of State is satisfied that the expenses claimed by the absent parent are both being incurred and, for a case falling within regulation 13 (costs incurred in travelling to work), 14 (contact costs) or 15 (illness or disability), are neither unreasonably high nor being unreasonably incurred, and that it is just and equitable to give a departure direction in respect of the whole of those expenses; and

(c)a departure direction is given in response to the application.

(3) Where the Secretary of State considers it likely that the expenses incurred by the absent parent are lower than those claimed by him or are not reasonably incurred, he may fix such amount as he considers to be reasonable in all the circumstances of the case.

(4) Where the absent parent, following written notice under section 28C(8) of the Act, fails within 28 days of that notice to comply with the regular payments condition that was imposed on him, the application shall lapse.

Special case—departure direction having effect from date earlier than effective date of current assessmentE+W+S

46.—(1) A case shall be treated as a special case for the purposes of the Act if the conditions specified in paragraph (2) are satisfied.

(2) The conditions are—

(a)liability to pay child support maintenance commenced earlier than the effective date of the maintenance assessment in force (“the current assessment");

(b)an application is made F133... in relation to the current assessment which results in a departure direction being given in respect of that assessment [F134or, where regulation 11A (meaning of “current assessment” for the purposes of the Act) applies, in respect of the fresh maintenance assessment referred to in that regulation];

(c)the applicant was unable to make an application on a date falling within a period in respect of which an earlier assessment had effect because he had not been notified of that earlier assessment during that period; and

(d)if the applicant had been able to make such an application and had done so, the Secretary of State is satisfied that a departure direction would have been given in response to that application.

(3) Where a case falls within paragraph (2), references to “the current assessment" and “the current amount" in these Regulations shall be construed as including references to an earlier assessment falling within paragraph (2)(c) and to the amount of child support maintenance fixed by it, and these Regulations shall be applied to such an earlier assessment accordingly.

Textual Amendments

F133Words in reg. 46(2)(b) omitted (27.10.2008) by virtue of The Child Support (Consequential Provisions) Regulations 2008 (S.I. 2008/2543), regs. 1, 3

[F135Cases to which regulation 11A appliesE+W+S

46A.—(1) A case where the conditions set out in paragraphs (a) [F136and (b)] of regulation 11A (meaning of “current assessment” for the purposes of the Act) are satisfied shall be treated as a special case for the purposes of the Act.

(2) Where a case falls within paragraph (1), references to “the current assessment” and “the current amount” in these Regulations shall, subject to paragraph (3), be construed as including reference to the fresh maintenance assessment referred to in regulation 11A.

(3) Paragraph (2) shall not apply to references to “the current assessment” in regulation 32, with the exception of the reference in paragraph (1)(a) of that regulation, and in regulations 46, 49 and 50.]

Textual Amendments

PART XIE+W+S TRANSITIONAL PROVISIONS

Transitional provisions—application before 2nd December 1996E+W+S

47.—(1) This paragraph applies in any case where an application for a departure direction has been made before 2nd December 1996 M31.

(2) Where paragraph (1) applies, the Secretary of State shall request the applicant to inform him in writing before 2nd December 1997—

(a)whether he wishes the application to be treated as an application under these Regulations in respect of the maintenance assessment in force on 2nd December 1996; and

(b)whether there have been any changes in the circumstances which are relevant for the determination or, as the case may be, redetermination of the application which have occurred since his application and, if so, what those changes are.

(3) Where the applicant fully complies with the request set out in paragraph (2), and states that he wishes the application to be treated as described in paragraph (2)(a), the Secretary of State shall treat the application as an application under these Regulations which contains the statement mentioned in section 28A(2)(a) of the Act, and paragraphs (4) to (10) and regulation 48 shall apply.

(4) Where the applicant informs the Secretary of State that there have not been any changes of the kind mentioned in paragraph (2)(b), the Secretary of State shall nevertheless invite representations in writing from the relevant persons other than the applicant.

(5) Where the applicant informs the Secretary of State that there have been changes in the circumstances of the kind mentioned in paragraph (2)(b), the Secretary of State shall—

(a)give notice that he has been informed of such changes to the relevant persons other than the applicant;

(b)send to them the information as to such changes which the applicant has given except where the Secretary of State considers that information to be information of the kind falling within paragraph (2) of regulation 8;

(c)invite representations in writing from the relevant persons other than the applicant as to such changes; and

(d)set out the provisions of paragraph (6) in relation to such representations.

(6) The following provisions shall apply to information provided under paragraph (2)(b) or representations made following an invitation made in accordance with paragraph (4) or (5)(c)—

(a)paragraphs (2) [F137to (10)] of regulation 8, subject to the modification set out in paragraph (7);

(b)in relation to an applicant, regulations 6 and 7.

(7) The modification of regulation 8 mentioned in paragraph (6)(a) is that for the references to paragraph (1) or, as the case may be, paragraph (1)(c) of that regulation, there were substituted references to paragraph (5) or, as the case may be, paragraph (5)(c) of this regulation.

(8) Where the Secretary of State has not determined the application in accordance with the Departure Direction Anticipatory Application Regulations, a determination shall be made in accordance with these Regulations.

(9) Where the Secretary of State has determined the application in accordance with the Departure Direction Anticipatory Application Regulations, he shall determine whether there have been any changes in—

(a)the circumstances referred to in paragraph (2)(b);

(b)the relevant provisions of these Regulations compared with the corresponding provisions of the Departure Direction Anticipatory Application Regulations.

(10) Where the Secretary of State determines that there have been no changes of the kind referred to in paragraph (9)(a) or (b), and the relevant persons other than the applicant have not made any representations in accordance with paragraph (4), his determination of the application in accordance with the Departure Direction Anticipatory Application Regulations shall take effect.

(11) Where the Secretary of State determines that there have been changes of the kind referred to in paragraph (9)(a) or (b), or where the relevant persons other than the applicant have made representations, he shall make a determination of the application, taking those changes and representations into account, in accordance with these Regulations.

Textual Amendments

Marginal Citations

M31Section 28A of the Act and other provisions of the Act relating to departure directions come fully into force on 2nd December 1996.

Effective date of departure direction for a case falling within regulation 47E+W+S

48.—(1) Where the determination made by the Secretary of State by application of the provisions of paragraphs (1) to (10) of regulation 47 is to give a departure direction, that direction shall take effect on the first day of the first maintenance period commencing on or after 2nd December 1996.

(2) Where a case falls within paragraph (1) of regulation 47, and the applicant complies with the request for information mentioned in paragraph (2) of that regulation but not by the date mentioned in that paragraph, his response shall be treated as an application for a departure direction.

Transitional provisions—no application before 2nd December 1996E+W+S

49.—(1) Where—

(a)a maintenance assessment was in force on 2nd December 1996;

(b)no application has been made before that date by any of the persons with respect to whom that assessment was made; and

(c)an application is made by one of those persons on the grounds set out in section 28A(2)(a) of the Act (the effect of the current assessment) on or after that date and before 2nd December 1997,

any departure direction given in response to that application shall take effect on the first day of the first maintenance period commencing on or after 2nd December 1996.

Transitional provisions—new maintenance assessment made before 2nd December 1996 whose effective date is on or after 2nd December 1996E+W+S

50.  Where a new maintenance assessment is made before 2nd December 1996 but the effective date of that assessment is a date on or after 2nd December 1996—

(a)the provisions of paragraph (1) of regulation 32 shall apply as if for the reference to an application being given or sent within [F138one month] of the date of notification of the current assessment there were substituted a reference to an application being given or sent before 30th December 1996;

(b)the provisions of paragraph (2) of regulation 32 shall apply as if for the reference to an application being given or sent later than [F138one month] after the date of notification of the current assessment there were substituted a reference to an application being given or sent after 29th December 1996.

Textual Amendments

PART XIIE+W+S REVOCATION

Revocation of the Departure Direction Anticipatory Application RegulationsE+W+S

51.  The Departure Direction Anticipatory Application Regulations are hereby revoked.

PART XIIIE+W+S CONSEQUENTIAL AMENDMENTS

Amendment of regulation 1 of the Appeals RegulationsE+W+S

52.  In paragraph (2) of regulation 1 of the Appeals Regulations (citation, commencement and interpretation)—

(a)in the definition of “party to the proceedings"—

(i)in sub-paragraph (d), after the word “officer" there shall be inserted the words “except where the proceedings relate only to an appeal under section 28H of the Act or to a referral;";

(ii)after sub-paragraph (d) there shall be added the following sub-paragraph—

“(dd)the Secretary of State where the proceedings relate to an appeal under section 28H of the Act;”;

(b)in the definition of “proceedings", for the words “or application" there shall be substituted the words “, application or referral";

(c)after the definition of “proceedings", there shall be inserted the following definition—

““referral" means a reference by the Secretary of State to a tribunal under section 28D(1)(b) of the Act;”;

(d)in the definition of “tribunal", after the words “section 21 of" there shall be inserted the words “or regulations made under paragraph 9 of Schedule 4A to,".

Amendment of regulation 3 of the Appeals RegulationsE+W+S

53.—(1) Regulation 3 of the Appeals Regulations (making an appeal or application and time limits), shall be amended in accordance with the following provisions of this regulation.

(2) In sub-paragraph (a) of paragraph (1), after the words “section 20(1)" there shall be inserted the words “, 28H(1)".

(3) In paragraph (5), for the words “as the case may be, paragraph (4)" there shall be substituted the words “(4) or in section 20(2) or 28H(3) of the Act, as the case may be".

Amendment of regulation 5 of the Appeals RegulationsE+W+S

54.—(1) Regulation 5 of the Appeals Regulations (directions) shall be amended in accordance with the following provisions of this regulation.

(2) In paragraph (1), after the words “a chairman may" there shall be inserted the words “, subject to paragraph (3),".

(3) In paragraph (2), after the word “may" there shall be inserted the words “, subject to paragraph (3),".

(4) After paragraph (2), there shall be added the following paragraphs—

“(3) In the case of an appeal under section 28H of the Act or of a referral, as the case may be, a direction requiring the Secretary of State to provide information shall have effect only if that information is information of which he is aware or which he has in his possession in connection with his functions under the Act.

(4) Where a chairman is considering whether to give a direction under paragraph (1) or the terms of any direction, he may direct that an oral hearing be held by a tribunal to determine whether a direction shall be given under that paragraph and the terms of any direction which may be given.

(5) The provisions of these Regulations shall apply to a hearing held under the provisions of paragraph (4).”.

Amendment of regulation 6 of the Appeals RegulationsE+W+S

55.  After paragraph (1B) of regulation 6 of the Appeals Regulations (striking out of proceedings), there shall be inserted the following paragraph—

“(1C) In the case of an appeal under section 28H of the Act, no direction shall be given under paragraph (1B) requiring the Secretary of State to provide information other than information of which he is aware or which he has in his possession in connection with his functions under the Act.”.

Amendment of regulation 7 of the Appeals RegulationsE+W+S

56.—(1) Regulation 7 of the Appeals Regulations (withdrawal of appeals and applications), shall be amended in accordance with the following provisions of this regulation.

(2) In heads (i) and (ii) of sub-paragraph (b) of paragraph (1), after the words “child support officer" there shall be added the words “or, in the case of an appeal under section 28H of the Act, the Secretary of State".

(3) In paragraph (1A), after the words “child support officer" there shall be inserted the words “or, in the case of an appeal under section 28H of the Act, the Secretary of State".

Amendment of regulation 10 of the Appeals RegulationsE+W+S

57.  In paragraph (1) of regulation 10 of the Appeals Regulations (summoning of witnesses), for the words “appeal or application" wherever they appear there shall be substituted the words “appeal, application or referral".

Amendment of regulation 11 of the Appeals RegulationsE+W+S

58.—(1) Regulation 11 of the Appeals Regulations (hearings) shall be amended in accordance with the following provisions of this regulation.

(2) In paragraphs (1), (2A) and (2B), for the words “appeal or application" wherever they appear there shall be substituted the words “appeal, application or referral".

(3) In paragraph (8), after sub-paragraph (e), there shall be inserted the following sub-paragraph—

“(ee)any person undergoing training to enable him to act in the name of the Secretary of State in relation to applications for a departure direction under section 28A of the Act and any person acting on behalf of the Secretary of State in the training or supervision of persons undergoing that training or in the monitoring of standards of decisions made by persons on behalf of the Secretary of State in relation to those applications;”.

Insertion of regulations 11A and 11B into the Appeals RegulationsE+W+S

59.  After regulation 11 of the Appeals Regulations there shall be inserted the following regulations—

“ Hearing by chairman sitting alone

11A.—(1) The prescribed circumstances for the purpose of paragraph 9 of Schedule 4A to the Act (child support appeal tribunals) are—

(a)in relation to a referral, where an application has been made on the grounds set out in paragraph 3 or 4 of Schedule 4B to the Act;

(b)in relation to an appeal under section 28H of the Act, where that appeal is against the rejection of an application by the Secretary of State under section 28B(2) of the Act or a decision of the Secretary of State on an application made on the grounds set out in paragraph 3 or 4 of Schedule 4B to the Act; or

(c)in relation to an appeal under section 28H of the Act or to any referral, where a chairman has directed that an oral hearing be held by a tribunal under regulation 5(4).

(2) Where the circumstances set out in sub-paragraph (a), (b) or (c) of paragraph (1) apply, a chairman may decide that the appeal or referral shall be dealt with by a tribunal constituted by the chairman of the tribunal sitting alone.

Consideration of more than one appeal under section 28H of the Act

11B.  A tribunal which is considering an appeal under section 28H of the Act in respect of a departure direction which relates to a maintenance assessment may, if it considers it appropriate to do so, consider at the same time any appeal under that section in respect of another departure direction which relates to the same maintenance assessment.”.

Amendment of regulation 13 of the Appeals RegulationsE+W+S

60.—(1) Regulation 13 of the Appeals Regulations (decisions) shall be amended in accordance with the following provisions of this regulation.

(2) In paragraph (3A), for the words “and of the terms of any direction under section 20(4) of the Act" there shall be substituted the words “, of the terms of any direction under section 20(4) of the Act and of the terms of any decision made by the tribunal under section 28H(4)(c) of the Act or on a referral".

(3) After paragraph (3E), there shall be inserted the following paragraph—

“(3F) Paragraphs (1) and (3D) shall not apply where the tribunal is constituted in accordance with the provisions of regulation 11A.”.

(4) For paragraph (4), there shall be substituted the following paragraph—

“(4) A child support officer may apply to the tribunal or another tribunal for directions or further directions and the tribunal may give such directions or further directions as it thinks fit where the child support officer—

(a)to whom a case is referred by the Secretary of State under section 20(3) of the Act (procedure following a successful appeal) is uncertain, having regard to the terms of the decision and of any directions contained in it, how he should deal with the case; or

(b)who has been notified of a decision of a tribunal on an appeal under section 28H of the Act or on a referral is uncertain, having regard to the terms of that decision or of any departure direction given by that tribunal, how he should deal with the case.”.

Amendment of regulation 14 of the Appeals RegulationsE+W+S

61.—(1) Regulation 14 of the Appeals Regulations (corrections) shall be amended in accordance with the following provisions of this regulation.

(2) In paragraph (1), after the words “Subject to" there shall be inserted the words “paragraph (3) and".

(3) After paragraph (2), there shall be added the following paragraph—

“(3) Paragraphs (1) and (2) shall not apply to referrals.”.

Amendment of regulation 10 of the Arrears RegulationsE+W+S

62.  In paragraph (2) of regulation 10 of the Arrears Regulations (adjustment of the amount payable under a maintenance assessment), after the word “subsequently" there shall be inserted the words “revised as a result of a departure direction having been given or".

Amendment of regulation 8 of the Information, Evidence and Disclosure RegulationsE+W+S

63.  Regulation 8 of the Information, Evidence and Disclosure Regulations (disclosure of information to a court or tribunal) shall be numbered paragraph (1) of that regulation and after paragraph (1) there shall be added the following paragraph—

“(2) For the purposes of this regulation “proceedings" includes the determination of an application referred to a child support appeal tribunal under section 28D(1)(b) of the Act.”.

Amendment of regulation 9A of the Information, Evidence and Disclosure RegulationsE+W+S

64.  For sub-paragraph (c) of paragraph (2) of regulation 9A of the Information, Evidence and Disclosure Regulations (disclosure of information to other persons), there shall be substituted the following sub-paragraph—

“(c)the personal representative of a relevant person where—

(i)a review or appeal was pending at the date of death of that person and the personal representative is dealing with that review or appeal on behalf of that person; or

(ii)an application for a departure direction had been made but not determined at the date of death of that person and the personal representative is dealing with that application on behalf of that person.”.

Amendment of regulation 10 of the Information, Evidence and Disclosure RegulationsE+W+S

65.  In paragraph (1) of regulation 10 of the Information, Evidence and Disclosure Regulations (disclosure of information by the Secretary of State), for the words “or in connection with an assessment which is or has been in force" there shall be substituted the words “,an assessment which is or has been in force or in connection with a departure direction.".

Amendment of regulation 10A of the Information, Evidence and Disclosure RegulationsE+W+S

66.  In paragraph (2) of regulation 10A of the Information, Evidence and Disclosure Regulations (disclosure of information by a child support officer), the words “or in connection with" shall be omitted and at the end, there shall be added the words “or in connection with a departure direction".

Amendment of regulation 10 of the Maintenance Assessment Procedure RegulationsE+W+S

67.—(1) Regulation 10 of the Maintenance Assessment Procedure Regulations (notification of a new or a fresh maintenance assessment), shall be amended in accordance with the following provisions of this regulation.

(2) For sub-paragraphs (a) and (b) of paragraph (1), there shall be substituted the following sub-paragraphs—

“(a)makes a new or fresh maintenance assessment following an application under section 4, 6 or 7 of the Act, a review under section 16, 17, 18 or 19 of the Act, or the giving or cancellation of a departure direction;

(b)makes a new interim maintenance assessment under section 12 of the Act, substitutes an interim maintenance assessment for one which is in force in accordance with regulation 8 or 9, or gives or cancels a departure direction; or”.

(3) In paragraph (2), after sub-paragraph (h), there shall be added the following sub-paragraph—

“(i)where the notification under paragraph (1)(a) or (b) follows the giving, or cancellation of a departure direction, the amounts calculated in accordance with Part I of Schedule 1 to the Act, or in accordance with regulation 8A, which have been changed as a result of the giving or cancellation of that departure direction.”.

(4) After paragraph (2A), there shall be added the following paragraph—

“(2AA) where a fresh Category D interim maintenance assessment is made following the giving or cancellation of a departure direction, a notification under paragraph (1) shall set out in relation to that interim maintenance assessment the amounts calculated in accordance with regulation 8A which have changed as a result of the giving or cancellation of that departure direction.”.

(5) For sub-paragraphs (a) and (b) of paragraph (2B) there shall be substituted the following sub-paragraphs—

“(a)the matters listed in sub-paragraphs (a), (b) and (d) to (f) of paragraph (2);

(b)where known, the absent parent’s assessable income; and

(c)where the Category B interim maintenance assessment is made following the giving or cancellation of a departure direction, the amounts calculated in accordance with regulation 8A which have changed as a result of the giving or cancellation of that departure direction.”.

(6) In paragraph (4) for sub-paragraph (d) there shall be substituted the following sub-paragraphs—

“(d)where a fresh maintenance assessment is made following a review under section 19 of the Act, sections 16, 17 and 18 of the Act;

(e)where a fresh maintenance assessment is made following the giving of a departure direction, sections 16, 17 and 18 of the Act.”.

(7) After paragraph (5) there shall be added the following paragraph—

“(6) Where a fresh Category D interim maintenance assessment is made following the giving or cancellation of a departure direction, a notification under paragraph (1) shall include information as to sections 16 and 19(1) of the Act.”.

Amendment of the Maintenance Assessments and Special Cases RegulationsE+W+S

68.—(1) The Maintenance Assessments and Special Cases Regulations shall be amended in accordance with the following provisions of this regulation.

F139(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In paragraph (4) of regulation 1, there shall be inserted at the beginning the words “These Regulations are subject to the provisions of Parts VIII and IX of the Departure Direction and Consequential Amendments Regulations and".

(4) In paragraph (2)(c) of regulation 9, after head (iv) there shall be added the following head—

“(v)where a departure direction has been given on the grounds that a case falls within regulation 27 of the Departure Direction and Consequential Amendments Regulations (partner’s contribution to housing costs), the amount of the housing costs which corresponds to the percentage of the housing costs mentioned in regulation 40(7) of those Regulations.”.

(5) In regulation 22—

(a)in paragraph (2), after the words “and in these Regulations" there shall be inserted the words “, and subject to paragraph (2ZA),"; and

(b)after paragraph (2), there shall be inserted the following paragraph—

“(2ZA) Where a case falls within regulation 39(1)(a) of the Departure Direction and Consequential Amendment Regulations, for the purposes of assessing the amount of child support maintenance payable in respect of an application for child support maintenance before a departure direction in respect of the maintenance assessment in question is given, for references to the assessable income of an absent parent in the Act and in these Regulations there shall be substituted references to the amount calculated by the formula—

where A, T, B and D have the same meanings as in paragraph (2).”.

Textual Amendments

Signed by authority of the Secretary of State for Social Security.

A.J.B. Mitchell

Parliamentary Under-Secretary of State,

Department of Social Security]