Surprise, Surprise CMS letter

[Nanaforsonsjustice]

Hi DadLad,

I’m still very early on in the process (got my FHDRA soon) and my ex applied for CMS pretty much straight away. They base it on the number of overnights you have your child and certain things can be offset as expenses. Surprise, surprise ex is not allowing me to have overnights.

Have you looked at the CMS calculator to check the amount they are requesting seem correct?

Calculate your child maintenance

Use this calculator to work out an amount of child maintenance for your children.

www.gov.uk

When I recently tried to get contact centre fees classed as expenses they said no. Apparently the child support (variations) regulations 2000 detail expenses that can be offset but I haven’t looked at this yet:

The Child Support (Variations) Regulations 2000

These Regulations provide for variations to the rate of child maintenance payable under the Child Support Act 1991 (c. 48) (“the Act”) consequent upon the introduction of changes to the child support system made by the Child Support, Pensions and Social Security Act 2000 (c. 19). Subject to...

www.legislation.gov.uk

Did they write to you advising you cannot claim contact centre fees? If they did then you can apply for a mandatory reconsideration, if they still say you can’t you can take it to a tribunal (All at no cost to you) if you present your case well enough, you can get contact centre fees included in child support (variations) regulations 2000 detail expenses. This setting a precedent for all paying parents. This may deter many RP from using children as a weapon for monetary gains.

If they didn’t write that to you, you can request it and then ask for mandatory reconsideration and then tribunal.

 

[JC83]

Did they write to you advising you cannot claim contact centre fees? If they did then you can apply for a mandatory reconsideration, if they still say you can’t you can take it to a tribunal (All at no cost to you) if you present your case well enough, you can get contact centre fees included in child support (variations) regulations 2000 detail expenses. This setting a precedent for all paying parents. This may deter many RP from using children as a weapon for monetary gains.

If they didn’t write that to you, you can request it and then ask for mandatory reconsideration and then tribunal.

Hi Nana,

Yes they did write to me saying that. Do you know if I can apply for a mandatory reconsideration through the CMS portal?

 

[Nanaforsonsjustice]

Hi Nana,

Yes they did write to me saying that. Do you know if I can apply for a mandatory reconsideration through the CMS portal?

Hi,

You would need to complete the below form or write a letter explaining why you want a mandatory reconsideration advising in detail why you think the costs should count as special expenses, ie without paying the costs you wouldn’t be able to see your child. The details of where to send it should be on the letter where they advised they cannot take contact centre costs into account as special expenses, or on any letter you have from them. I’m not sure if this address is a generic one though:
Child Maintenance Service (England, Scotland, Wales cases)
Child Maintenance Service 21
Mail Handling Site A
Wolverhampton
WV98 2BU

When you send the document ask the Post Office for free proof of postage - you might need to show when you sent it.

https://assets.publishing.service.gov.uk/media/656088523d7741000d420162/if-you-disagree-with-a-decision-made-by-dwp.pdf

 

[Ash]

Great tip Nana . It may be a lengthy procedure but it would be great if it set a precedent in future

 

[JC83]

thank you nana

 

[Nanaforsonsjustice]

Great tip Nana . It may be a lengthy procedure but it would be great if it set a precedent in future

The mandatory reconsideration will normally just be read by some random at the CMS office, they then send a letter to say standing by their original decision, normally a 3 week turnaround. Once you have their response, you go appeal using the below form. This will normally be six weeks till a hearing date and then only 1 day in court and decision given on the day.

https://assets.publishing.service.gov.uk/media/63ecb548d3bf7f62e7356d45/sscs2-eng-01-22_save.pdf

 

[DadLad]

Ex has asked for collect and pay, I've asked for direct pay to avoid the 20% surcharge.

Can she still refuse direct pay and on what grounds?

Surely the 20% charge should be on her for none compliance?

 

[Ash]

I guess you'll have to try and sort this with CMS.

 

[Pj66]

Ex has asked for collect and pay, I've asked for direct pay to avoid the 20% surcharge.

Can she still refuse direct pay and on what grounds?

Surely the 20% charge should be on her for none compliance?

I believe the collect and pay is taken out of the CMS you are liable to pay and not on top.

For example:

If 1 child is 10% of gross salary depending on overnight number

Income of £1000 per week gross
Is £100 per week cms
20% collect and pay means ex gets £80 per week.

You are not obligated to pay any more than the legal amount which is based on overnights.

If ex is trying to claim more than you call up cms or email them the court order which states the number of overnights per year.

By ex demanding collect and pay , she actually gets let than by private agreement.

 

[DadLad]

I believe the collect and pay is taken out of the CMS you are liable to pay and not on top.

For example:

If 1 child is 10% of gross salary depending on overnight number

Income of £1000 per week gross
Is £100 per week cms
20% collect and pay means ex gets £80 per week.

You are not obligated to pay any more than the legal amount which is based on overnights.

If ex is trying to claim more than you call up cms or email them the court order which states the number of overnights per year.

I think it is payment + 20% added on top plus 5% dedicated from ex receiving.

I spoke to CMS yesterday and they have said that because you are compliant then direct pay is first choice.

But knowing my ex she will refuse to give her bank details over and will still claim the old DA story.

 

[Pj66]

I think it is payment + 20% added on top plus 5% dedicated from ex receiving.

Link to Source of this?

 

[DadLad]

Link to Source of this?

Applying to the CMS for child maintenance

Applying to the CMS for child maintenance. Find out how to get maintenance through the Child Maintenance Service and how you can apply.

www.citizensadvice.org.uk

 

[DadLad]

For those under “direct pay”, where the CMS calculates the rate and payments are made between parents, there are no collection fees.

For those using “collect and pay”, where the CMS collects and passes on payments, the non-resident parent must pay an extra 20% of the maintenance due and the person with care (of the child) receives 96% of the child maintenance allowance paid by the non-resident parent.

 

[Pj66]

How olds you court order?

"You can’t ask the CMS to arrange maintenance if you get maintenance under a court order which is less than a year old."

 

[DadLad]

How olds you court order?

"You can’t ask the CMS to arrange maintenance if you get maintenance under a court order which is less than a year old."

There is no court order for CMS or any mention of CMS.

The ex made an application to CMS the same day she lost the FF

 

[Pj66]

There is no court order for CMS or any mention of CMS.

The ex made an application to CMS the same day she lost the FF

Ah ok I interpreted it as can't get maintenance under a CAO order that's less than a year old.

Seems you have no way around it then , direct pay under CMS or with collect and the surcharge.

You are only obliged to pay the number of nights though and if she's claiming there is less and you are claiming theirs more nights, then that order needs to be provided to cms.

In terms of paternity , CMS will process claim until proven otherwise so there's no point in delaying the process.

 

[autisticdad]

Does it count not being on the birth certificate?

I've been fighting to be on my child's birth certificate but as it stands I could be anyone.

For 3 years she has refused anything and now I win contact in court she makes an application to CMS on the same day.

The child maintenance topic aside, if you do not have your name on the birth certificate you need to formally obtain 'Parental Responsibility' and should take the Mother back to court if required.

A father who is not married to or in a civil partnership with the mother can obtain parental responsibility by:

• having their name registered or re-registered on the birth certificate if his name is not already registered;*
• entering into a Parental Responsibility Agreement with the mother;
• obtaining a Parental Responsibility Order from the court;
• being named as the resident parent under a Child Arrangements Order;

 

[autisticdad]

My contact centre fees are around £450 a month at the moment too. She’s doing it to hurt me financially in the hope I’ll give up but I’ll keep fighting.

When I recently tried to get contact centre fees classed as expenses they said no. Apparently the child support (variations) regulations 2000 detail expenses that can be offset but I haven’t looked at this yet:

If your contact involves travel then these can be claimed as special expenses. If contact takes place in the community then you can ask that your 'cost' be invoiced seperately showing travel costs for the 'contact supervisor'.

I have done extensive research on this and have currently taken the Secretary of State (DWP) to the Tribunal regarding this.

 

[autisticdad]

Did they write to you advising you cannot claim contact centre fees? If they did then you can apply for a mandatory reconsideration, if they still say you can’t you can take it to a tribunal (All at no cost to you) if you present your case well enough, you can get contact centre fees included in child support (variations) regulations 2000 detail expenses. This setting a precedent for all paying parents. This may deter many RP from using children as a weapon for monetary gains.

If they didn’t write that to you, you can request it and then ask for mandatory reconsideration and then tribunal.

You cannot claim contact center costs as special expenses. This has been tested a lot in the courts including in a Judicial Review in the High Court.
The current legislation does not permit this.

Only 'travel costs' for the parent and the contact supervisor can be claimed as special expense.

 

[autisticdad]

Ex has asked for collect and pay, I've asked for direct pay to avoid the 20% surcharge.

Can she still refuse direct pay and on what grounds?

Surely the 20% charge should be on her for none compliance?

No, by legislation 'collect and pay' costs are applicable on both parties. There is no exception to this.
If and when your child spends any number of nights with you then you should make an application too.

Chapter 49 of the CMS Decision Makers Guide ('DMG') sets out in full the key provisions of this part of the guidance.

If the 'resident' (other parent) has requested Collect and Pay and you dispute it (49003 below) then CMS has to perform an 'unlikely to pay' test (49004 below). If CMS finds evidence that you have been skipping/delaying payments (criteria 49005 below) then you have no choice but to stick to Collect and Pay.

'Chapter 49 – Unlikely to pay

Introduction

49001 Where a maintenance calculation has been made, the PWC or CiS may apply to the CMS for

(1) the collection of child maintenance payable under the calculation, and
(2) the enforcement of the obligation to pay in accordance with the calculation.

49002 A DM [Decision Maker] may only make arrangements for the collection of payments if

(1) the NRP agrees to the arrangements, or
(2) the DM is satisfied that without the arrangement child support maintenance is unlikely to be paid in accordance with the calculation (referring to s. 4(2A) of the 1991 Act).

49003 Where the PWC or CiS has requested that their case be administered as collect and pay and the NRP does not agree to the arrangements, the DM should carry out an “unlikely to pay” check.

Format of the check

49004 The unlikely to pay check decision is made by the DM using their judgement and based on the merits of the individual case. When considering the case DMs need to decide if the NRP is unlikely to make regular payments voluntarily.

Basic criteria for carrying out the check

49005 When making a decision as to whether a NRP is deemed unlikely to pay, DMs should consider the following factors

(1) The NRP pays via an enforced method – for the majority of cases where a NRP pays via an enforced deduction from earnings order or deduction from earnings request they will be determined as unlikely to pay.

(2) The NRP is undergoing legal enforcement action – where a case is undergoing legal action to establish compliance it will usually be appropriate to determine them as unlikely to pay.

(3) The NRP has undergone legal enforcement action or paid via an enforced method in the six months prior to requesting direct pay – the NRP will be determined as unlikely to pay unless the DM considers there is a good reason to believe the NRP is not to be deemed as unlikely to pay, e.g. the full clearance of arrears via a voluntary lump sum.
(4) The NRP has missed one or more payments in the past six months –DMs must use their discretion to determine whether this constitutes an unlikelihood to pay. Where a payment has been missed DMs must evaluate any available evidence to determine whether or not there was a reasonable explanation for the missed payment.

(5) The NRP has demonstrated a pattern of behaviour over the past six months which indicates a potential to be considered unlikely to pay 11. Where a NRP has made all the required payments over the past six months they will generally be considered not unlikely to pay. However if from a behaviour pattern there is an indication that they may be unlikely to pay privately, DMs may decide that the NRP is nonetheless unlikely to pay, e.g. when payments are only being made following CMS action being taken.'

Note: this list is not definitive, nor does it mean that the NRP will automatically be deemed to be unlikely to pay in these circumstances, as consideration must be given to all other relevant factors

49008 All NRPs must be presumed to be not unlikely to pay unless there is evidence to the contrary.

Basically, unless there is evidence of the above you can get the Collect and Pay set aside.