xmlns:atom="http://www.w3.org/2005/Atom" xmlns:atom="http://www.w3.org/2005/Atom"

[F1PART IXE+W+S MAINTENANCE ASSESSMENT FOLLOWING A DEPARTURE DIRECTION: PARTICULAR CASES

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)

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.

[F2(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.]

[F3(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) F4... 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 [F5the Secretary of State] as being the revised amount as defined in paragraph (4).

(6) Where the assessable income of an absent parent changes following [F6a 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.

F7(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where a departure direction given in accordance with the provisions of [F8paragraphs (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.—[F9(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.

[F10(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 [F11determined by [F12the Secretary of State] as being] the revised amount as defined in paragraph (3).

Textual Amendments

F9Reg. 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)

[F13Application 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 M1 (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 [F14lowest] 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.

[F15(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

M1Regulation 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) [F16Where 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 [F17paragraphs (1) and (3)] have been applied, and the amount payable under it (“[F18the 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 [F18the 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 [F18the 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 M2 (modification of maintenance assessment in certain cases);

“the 1994 enactment" means Part III of the Child Support (Miscellaneous Amendments and Transitional Provisions) Regulations 1994 M3 (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

M2S.I. 1992/2644. The relevant amending instrument is S.I. 1993/966.

M3S.I. 1994/227. The relevant amending instrument is S.I. 1995/1045.