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These Regulations may be cited as the Child Support Maintenance Calculation Regulations 2012 and come into force in relation to a particular case on the day on which paragraph 2 of Schedule 4 to the Child Maintenance and Other Payments Act 2008 (calculation by reference to gross weekly income) comes into force in relation to that type of case.
In these Regulations—
“ the 1991 Act ” means the Child Support Act 1991;
“contribution-based jobseeker’s allowance” means an allowance under the Jobseekers Act 1995 as amended by the provisions of Part 1 of Schedule 14 to the Welfare Reform Act 2012 that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers Act 1995 as that Act has effect apart from those provisions;
“ contributory employment and support allowance ” means an allowance under Part 1 of the Welfare Reform Act 2007 as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the Welfare Reform Act 2012 that remove references to an income-related allowance, and a contributory allowance under Part 1 of the Welfare Reform Act 2007 as that Part has effect apart from those provisions; ;
“ capped amount ” means the figure specified in paragraph 10(3) of Schedule 1 to the 1991 Act (or in that sub-paragraph as modified by regulations under paragraph 10A of Schedule 1 to the 1991 Act );
“ couple ” has the meaning given by paragraph 10C(5) of Schedule 1 to the 1991 Act;
“ current income ” has the meaning given in regulation 37;
“ electronic communication ” has the same meaning as in section 15(1) of the Electronic Communications Act 2000;
“ the flat rate ” means the flat rate of child support maintenance payable under paragraph 4 of Schedule 1 to the 1991 Act;
“ gross weekly income ” means income calculated under Chapter 1 of Part 4;
“ historic income ” has the meaning given in regulation 35;
“ HMRC ” means Her Majesty's Revenue and Customs;
“ the HMRC figure ” has the meaning given in regulation 36;
“ income support ” means support to which a person is entitled under section 124 of the Social Security Contributions and Benefits Act 1992 ;
“ initial effective date ” has the meaning given in regulation 12;
“ ITEPA ” means the Income Tax (Earnings and Pensions) Act 2003 ;
“ ITTOIA ” means the Income Tax (Trading and Other Income) Act 2005 ;
“ local authority ” means, in relation to England, a county council, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly and, in relation to Wales, a county council or a county borough council and, in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;
“ net pay arrangements ” means arrangements for relief in respect of pension contributions under section 193 of the Finance Act 2004 ;
“ the nil rate ” means the nil rate of child support maintenance payable under paragraph 5 of Schedule 1 to the 1991 Act;
“ partner ” has the meaning given by paragraph 10C(4) of Schedule 1 to the 1991 Act;
“ party ”, in relation to a maintenance calculation in force or an application for a maintenance calculation, means the non-resident parent, the person with care and, in the case of an application by a child under section 7 of the 1991 Act or a maintenance calculation made in response to such an application, the child in question;
“ the PAYE Regulations ” means the Income Tax (Pay As You Earn) Regulations 2003 ;
“ qualifying lender ” has the meaning given to it in section 376(4) of the Income and Corporation Taxes Act 1988 ;
“ the reduced rate ” means the reduced rate of child support maintenance payable under paragraph 3 of Schedule 1 to the 1991 Act;
“ relievable pension contributions ” has the meaning given by section 188(2) of the Finance Act 2004;
“ review date ” has the meaning given in regulation 19;
“ self-assessment return ” means a return which an individual is required to make and deliver under section 8 of the Taxes Management Act 1970 ;
“ supersession decision ” means a decision made under section 17 of the 1991 Act superseding a decision mentioned in subsection (1) of that section;
“ state pension credit ” means the benefit payable in accordance with section 1 (entitlement) of the State Pension Credit Act 2002 ;
“ tax year ” has the meaning given by section 4 of the Income Tax Act 2007 ;
“ Tribunal Procedure Rules ” means the Tribunal Procedure (First-tier Tribunal) (Social (Entitlement Chamber) Rules 2008 ; and
“ UK social security pension ” means a pension to which section 577 of ITEPA applies .
Schedule 1 makes provision for the use of electronic communications.
In these Regulations “ calculation decision ” means a decision of the Secretary of State under section 11 (the maintenance calculation), section 16 (revision) or section 17 (supersession) of the 1991 Act determining the amount of child support maintenance to be fixed in accordance with Part 1 of Schedule 1 to that Act.
(1) In these Regulations “ latest available tax year ” means the tax year which, on the date on which the Secretary of State requests information from HMRC for the purposes of regulation 35 (historic income) or regulation 69 (non-resident parent with unearned income), is the most recent relevant tax year for which HMRC have received the information required to be provided in relation to the non-resident parent under the PAYE Regulations or in a self-assessment return.
(2) In this regulation a “ relevant tax year ” is any one of the 6 tax years immediately preceding the date of the request for information referred to in paragraph (1).
Information required for the purposes of making a calculation decision or a decision in relation to an application for a variation is the information applicable at the date from which that decision (assuming that the decision was a decision to make or amend a maintenance calculation) would have effect.
Where a calculation decision or a decision in relation to an application for a variation results in a fraction of a penny, that is to be treated as a penny if it is either one half or exceeds one half, and otherwise it is to be disregarded.
(1) Where any document is given or sent to the Secretary of State, that document is to be treated as having been given or sent on the date of receipt by the Secretary of State.
(2) Where the Secretary of State sends any written notification or any document by post to a person's last known or notified address that document is treated as having been given or sent on the second day following the day on which it is posted.
(3) Where the Secretary of State sends any written notification or any document by electronic communication to a person’s last known or notified address for electronic communication that document is treated as having been given or sent at the end of the first day after the day it was sent.
(1) A person may authorise a representative, whether or not legally qualified, to receive notices and other documents on their behalf and to act on their behalf in relation to the making of applications and the supply of information under any provision of the 1991 Act or these Regulations.
(2) Where a person has authorised a representative for the purposes of paragraph (1) who is not legally qualified, that person must confirm the authorisation in writing to the Secretary of State.
(1) The Secretary of State may determine the form in which an application for a maintenance calculation is to be made and may require the applicant to provide such information or evidence as the Secretary of State reasonably requires in order to process the application (including, in the case of an application by a person with care, information sufficient to enable the person named as the non-resident parent to be identified).
(2) The application is to be taken to have been made when the application has been submitted to the Secretary of State in the required form and the information required under paragraph (1) has been provided.
(1) Where two or more applications for a maintenance calculation are made with respect to the same child the Secretary of State may determine which to proceed with.
(2) In making a determination under paragraph (1) the Secretary of State must have regard to the following order of priority—
(a) an application by a person with care or a non-resident parent has priority over an application by a child under section 7 of the 1991 Act ;
(b) otherwise an earlier application has priority over one made later.
(3) Where—
(a) in relation to an application under section 4 or 7 of the 1991 Act , both parents of a qualifying child are named as non-resident parents; or
(b) an application is made under section 4 of that Act by both non-resident parents of a qualifying child,
the Secretary of State must proceed with the application in relation to each non-resident parent, treating it as a single application for a maintenance calculation in respect of that qualifying child.
(1) Where an application has been made under section 4 or 7 of the 1991 Act , and the requirements in paragraph (3) are satisfied, the Secretary of State must ... give written notice to the non-resident parent—
(a) requesting such information as the Secretary of State may require to make the maintenance calculation; and
(b) where relevant, advising the non-resident parent of the power of the Secretary of State to make an estimate of income or a default maintenance decision.
(2) The notice must be sent by—
(a) post to the last known address of the non-resident parent (as ascertained and verified in accordance with paragraph (3)(a)); or
(b) by electronic communication in accordance with Schedule 1.
(3) The requirements referred to in paragraph (1) are—
(a) the address of the non-resident parent in relation to the application has been ascertained and verified; and
(b) any application fee payable under regulation 3(1) (the application fee) of the Child Support Fees Regulations 2014 has been paid or waived in accordance with those Regulations.
(4) Except where paragraph (5) or (6) applies to an application, notice must be given as soon as is reasonably practicable.
(5) Where—
(a) there is an existing case related to the application; or
(b) the applicant—
(i) has been required to choose in an existing case whether or not to stay in the statutory scheme (under Schedule 5 (maintenance calculations: transfer of cases to new rules) to the 2008 Act), as a result of that applicant's existing case being related to an application made under section 4(1) or 7(1) of the 1991 Act, and
(ii) has chosen, by way of the application, to remain in the statutory scheme,
notice must be given as soon as is reasonable.
(6) Subject to paragraph (8), where the applicant—
(a) has been required to choose in an existing case whether or not to stay in the statutory scheme (under Schedule 5 to the 2008 Act), in circumstances where the existing case is not related to an application made under section 4(1) or 7(1) of the 1991 Act; and
(b) has chosen, by way of the application, to remain in the statutory scheme,
notice must be given in accordance with paragraph (7).
(7) Where paragraph (6) applies, notice must be given—
(a) where the application is made and the requirements in paragraph (3) are satisfied before the day 39 days before the liability end date (which means the date determined in accordance with regulation 6 (liability end date) of the Ending Liability Regulations) in relation to the existing case has passed, as soon as is reasonable once that day has passed; or
(b) where the application is made and the requirements in paragraph (3) are satisfied after the day 39 days before the liability end date has passed, as soon as is reasonable.
(8) Where an application to which paragraph (6) applies becomes an application to which paragraph (5) applies (because it becomes an existing case related to an application), paragraph (6) ceases to apply to that application.
(9) For the purposes of paragraphs (5) to (8) and this paragraph—
(a) “ the 2008 Act ” means the Child Maintenance and Other Payments Act 2008;
(b) “ existing case ” has the meaning given in paragraph 1(2) of Schedule 5 to the 2008 Act;
(c) “ the Ending Liability Regulations ” means the Child Support (Ending Liability in Existing Cases and Transition to New Calculation Rules) Regulations 2014;
(d) an existing case is related to an application if—
(i) the non-resident parent in relation to that application is also the non-resident parent in relation to the existing case and the person with care in relation to that application is not the person with care in relation to the existing case, or
(ii) the non-resident parent in relation to that application is a partner of a non-resident parent in relation to the existing case and either or both are in receipt of a benefit prescribed by regulations made under paragraph 4(1)(c) (flat rate) of Schedule 1 to the 1991 Act.
(1) The effective date of a decision under section 11 of the 1991 Act (“the initial effective date”) is the date provided as the initial effective date in the notice given to the non-resident parent under regulation 11.
(2) The non-resident parent must be notified of the initial effective date—
(a) by written notice posted to the last known postal address of the non-resident parent at least two days prior to the initial effective date; ...
(b) by telephone on or before the initial effective date and by written notice sent by post to the last known postal address of the non-resident parent ; or
(c) by electronic communication in accordance with Schedule 1, at least one day prior to the initial effective date
(1) Subject to paragraph (2), where an application for a variation is made in the circumstances referred to in section 28A(3) of the 1991 Act (that is before the Secretary of State has reached a decision under section 11 or 12(1) of the Act) and the application is agreed to, the effective date of the maintenance calculation which takes account of the variation is—
(a) where the ground giving rise to the variation existed from the initial effective date, that date; or
(b) where the ground giving rise to the variation arose after the initial effective date, the day on which the ground arose.
(2) Where—
(a) the ground for the variation applied for under section 28A(3) of the 1991 Act is a ground in regulation 65 (prior debts) or 67 (payments in respect of certain mortgages, loans or insurance policies), and
(b) payments falling within the relevant regulation which have been made by the non-resident parent constitute voluntary payments for the purposes of section 28J of that Act (voluntary payments) and regulations made under that section,
the date from which the maintenance calculation is to take account of the variation on this ground is to be the date on which the non-resident parent is notified under regulation 25 (notification of a maintenance calculation) of the amount of their liability to pay child support maintenance.
(3) Where the ground for the variation applied for under section 28A(3) of the 1991 Act has ceased to exist by the date on which the maintenance calculation is made, that calculation is to take account of the variation for the period ending on the day on which the ground ceased to exist.
(1) A decision to which section 16(1A) of the 1991 Act applies may be revised by the Secretary of State—
(a) if the Secretary of State receives an application for the revision of a decision under either section 16 or section 28G (application for a variation where a maintenance calculation is in force) of that Act—
(i) within 30 days after the date of notification of the decision;
(ii) within 30 days after the date on which notice of the correction is given under regulation 27A(3) (correction of accidental errors); or
(iii) within such longer time as may be allowed under regulation 15;
(b) if the Secretary of State is satisfied that the decision was wrong due to a misrepresentation of, or failure to disclose, a material fact and that decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would have been but for the wrongness of the decision;
(c) if an appeal is made under section 20 of the 1991 Act (appeals to First-tier Tribunal) against a decision within the time limit prescribed by the Tribunal Procedure Rules but that appeal has not been determined;
(d) if the Secretary of State commences action leading to the revision of the decision within 30 days after the date of notification of the decision;
(e) if the decision arose from official error;
(f) if the information held by HMRC in relation to a tax year in respect of which the Secretary of State has determined historic income for the purposes of regulation 35, or unearned income for the purposes of regulation 69, has since been amended; or
(g) if the ground for revision is that a person with respect to whom a maintenance calculation was made was not, at the time the calculation was made, a parent of a child to whom the calculation relates.
(2) A decision may not be revised because of a change of circumstances that occurred since the decision had effect or is expected to occur.
(3) An interim maintenance decision or default maintenance decision made under section 12 of the 1991 Act may be revised at any time.
(3A) Where—
(a) the Secretary of State makes a decision and there is an appeal;
(b) there is a further decision in relation to the appellant (“decision B”) after the appeal but before the appeal results in a decision by the First-tier Tribunal (“decision C”); and
(c) the Secretary of State would have made decision B differently if aware of decision C at the time of making decision B,
decision B may be revised at any time.
(4) In paragraph (1)(e) “ official error ” means an error made by an officer of the Department for Work and Pensions or HMRC acting as such to which no person outside the Department or HMRC materially contributed, but excludes any error of law which is shown to have been an error by virtue of a subsequent decision of the Upper Tribunal or the court.
(1) This regulation applies in a case where—
(a) the Secretary of State gives a person written notice of a decision; and
(b) that notice includes a statement to the effect that there is a right of appeal to the First-tier Tribunal against the decision only if the Secretary of State has considered an application for a revision of the decision.
(2) In a case to which this regulation applies, a person has a right of appeal against the decision only if the Secretary of State has considered on an application whether to revise the decision under section 16 of the 1991 Act.
(3) The notice referred to in paragraph (1) must inform the person of the time limit specified in regulation 14(1) for making an application for a revision.
(4) Where, as the result of paragraph (2), there is no right of appeal against a decision, the Secretary of State may treat any purported appeal as an application for a revision under section 16 of that Act.
(5) In this regulation, “decision” means a decision mentioned in section 20(1)(a) or (b) of the 1991 Act (as substituted by section 10 of the Child Support, Pensions and Social Security Act 2000).
(1) The time limit for making an application for a revision specified in regulation 14(1)(a) (grounds for revision) may be extended where the conditions specified in the following provisions of this regulation are satisfied.
(2) An application for an extension of time must be made by one of the parties or their authorised representative.
(3) An application for an extension of time must contain particulars of the grounds on which the extension is sought and must contain sufficient details of the decision which it is sought to have revised to enable that decision to be identified.
(4) An application for an extension of time may not be granted unless the applicant satisfies the Secretary of State that–
(a) it is reasonable to grant the application;
(b) the application for revision has merit , except in a case to which regulation 14A applies ; and
(c) special circumstances are relevant to the application and because of those special circumstances it was not practicable for the application to be made within the time limit specified in regulation 14(1)(a).
(5) In determining whether it is reasonable to grant an application for an extension of time, the Secretary of State must have regard to the principle that the greater the amount of time that has elapsed between the end of the time specified in regulation 14(1)(a) for applying for a revision 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 the application for an extension of time , except in a case to which regulation 14A applies , no account shall be taken of the following–
(a) that the applicant, or any person acting for the applicant, was unaware of or misunderstood the law applicable to the case (including ignorance or misunderstanding of the time limits imposed by these Regulations); or
(b) that the 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.
Where a decision is revised and the date from which the original decision took effect is found to be wrong, the decision as revised takes effect from the date on which the original decision would have taken effect had the error not been made.
(1) A decision mentioned in section 17(1) of the 1991 Act may be superseded by a decision of the Secretary of State, on an application or on the Secretary of State's own initiative, where—
(a) there has been a relevant change of circumstances since the decision had effect or it is expected that a relevant change of circumstances will occur;
(b) the decision was made in ignorance of, or was based on a mistake as to, some material fact; or
(c) the decision was wrong in law (unless it was a decision made on appeal).
(2) The circumstances in which a decision may be superseded include where the relevant change of circumstances causes the maintenance calculation to cease by virtue of paragraph 16 of Schedule 1 to the 1991 Act or where the Secretary of State no longer has jurisdiction by virtue of section 44 of that Act.
(3) A decision may be superseded by a decision made by the Secretary of State where the Secretary of State receives an application for the supersession of a decision by way of an application under section 28G of the 1991 Act (application for a variation where a maintenance calculation is in force).
(4) A decision may not be superseded in circumstances where it may be revised.
(5) A decision to refuse an application for a maintenance calculation may not be superseded.
(6) In making a supersession decision under section 17(1) of the 1991 Act, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause the decision to be made on the Secretary of State's own initiative.
(7) This regulation is subject to any provision in Chapter 4 of this Part (updating gross weekly income) relating to the circumstances in which a supersession decision may be made.
(1) This regulation sets out cases and circumstances in which a supersession decision takes effect on a date other than the date mentioned in section 17(4) of the 1991 Act .
(2) Where the ground for the supersession decision is that a relevant change of circumstances is expected to occur or that a ground for a variation is expected to occur, the decision takes effect from the date on which that change or that ground is expected to occur.
(3) Where the ground for the supersession decision is that a relevant change of circumstances of the following kind has occurred, the decision takes effect from the date on which the change occurred—
(a) a child ceases to be a qualifying child, a relevant other child, or a child supported under another arrangement;
(b) the person with care dies or ceases to be a person with care in relation to a qualifying child;
(c) the person with care, the non-resident parent or a qualifying child ceases to be habitually resident in the United Kingdom;
(d) the non-resident parent begins or ceases to receive a benefit mentioned in regulation 44(1) or begins or ceases to be a person who receives, or whose partner receives, a benefit referred to in regulation 44(2).
(4) Where the ground for the supersession decision is that a relevant change of circumstances affecting the non-resident parent's current income has occurred and the non-resident parent was required to report that change in accordance with regulations under section 14(1) of the 1991 Act, the decision takes effect from the date on which the change occurred.
(5) Where the ground for the supersession decision is that there is a new qualifying child in relation to the non-resident parent, the decision takes effect from the date which would be the initial effective date in relation to an application under section 4 or 7 of the 1991 Act in relation to that child if there were no maintenance calculation already in force.
(6) Where paragraphs (2) to (5) do not apply—
(a) if the supersession decision is made on an application by one of the parties, the decision takes effect from the date of the application;
(b) if the supersession decision is made on the Secretary of State's own initiative on the basis of information provided by a third party, the decision takes effect from the date on which that information is provided; and
(c) if the supersession decision is made on the Secretary of State's own initiative, and sub-paragraph (b) does not apply, the decision takes effect from the date on which it is made.
(7) In paragraph (3)—
(a) the reference to a child supported under another arrangement is to a child supported under a qualifying maintenance arrangement mentioned in paragraph 5A of Schedule 1 to the 1991 Act or a child mentioned in regulation 52 (non-resident parent liable to maintain a child of the family or a child abroad); and
(b) the reference to the date on which a person begins or ceases to receive a benefit is to the date on which entitlement to the benefit commences or ceases.
(8) This regulation is subject to any provision in Chapter 4 of this Part (updating gross weekly income) relating to the date from which a supersession decision made under that Chapter takes effect.
(1) The Secretary of State must, in relation to each application for a maintenance calculation, fix a date at which the non-resident parent's gross weekly income is to be reviewed by reference to an updated HMRC figure (“the review date”).
(2) Subject to paragraph (3), the first review date falls 12 months after the initial effective date and subsequent review dates fall on each anniversary of that date, unless the Secretary of State decides in any particular case or class of case to fix a different date.
(3) Where a maintenance calculation is in force and there is a further application in relation to the non-resident parent in respect of a new qualifying child, the review dates are to be aligned so that the first review date in respect of the new application is the next review date for the calculation already in force.
(4) Where an application for a maintenance calculation in relation to both non-resident parents of a qualifying child is treated as a single application by virtue of regulation 10(3) (multiple applications) the Secretary of State may fix different review dates in respect of each non-resident parent.
(1) Where an updated figure is provided by HMRC for the latest available tax year in accordance with a request under regulation 35(2)(b) (historic income – general), that figure applies, for the purposes of determining historic income, on and after the review date.
(2) If the non-resident parent's gross weekly income, as calculated in accordance with Chapter 1 of Part 4 by reference to that updated figure, has changed, the Secretary of State may make a supersession decision with effect from the review date.
(1) This regulation applies where, in relation to a maintenance calculation in force, additional income has been taken into account by virtue of a variation previously agreed to under regulation 69 (non-resident parent with unearned income).
(2) When the Secretary of State makes a request to HMRC for the purposes of reviewing the non-resident parent's gross weekly income in accordance with regulation 20 (updating gross weekly income at the review date) the Secretary of State may also request information relating to the non-resident parent's unearned income for the latest available tax year and, where appropriate, make a supersession decision on the basis of that information with effect from the review date.
(1) Where—
(a) the non-resident parent's gross weekly income is based on an amount of current income by virtue of regulation 34(2) (the general rule for determining gross weekly income and exceptions to that rule); and
(b) no supersession decision changing that amount has been made within the past 11 months,
the Secretary of State may, for the purposes of validating that amount, require evidence of current income to be provided by the non-resident parent.
(2) Where the non-resident parent fails to provide evidence as requested under paragraph (1), the Secretary of State may make a supersession decision determining the non-resident parent's gross weekly income on the basis of historic income.
(3) Where the Secretary of State is provided with sufficient information on which to make a new determination of current income, the Secretary of State may make a supersession decision applying the general rule in regulation 34(2).
(4) Subject to paragraph (5), a supersession decision under this regulation has effect from the date on which it is made.
(5) Where the Secretary of State makes a supersession decision under paragraph (3) and the relevant change of circumstances affecting the non-resident parent's current income was one that the non-resident parent was required to report in accordance with regulations under section 14(1) of the 1991 Act, the decision takes effect from the date on which the change occurred.
(1) This regulation applies where the non-resident parent's gross weekly income is based on an amount of current income by virtue of regulation 34(2) and, before the next review date, there is a change of circumstances affecting the amount of that current income.
(2) No supersession decision giving effect to that change may be made unless the amount of that current income has changed by at least 25%.
(3) Paragraph (1) does not prevent a supersession decision that—
(a) is made on the Secretary of State's own initiative under regulation 20 (updating weekly income at the annual review) or regulation 22 (periodic check where current income unchanged for 11 months);
(b) is made on the ground mentioned in regulation 17(1)(c) (error of law); or
(c) supersedes a decision determining the non-resident parent's gross weekly income on the basis of regulation 42 (estimate of current income where insufficient information available).
(4) Where the condition in paragraph (2) is satisfied, the current income (as changed) is to apply even if it does not differ from historic income by an amount that is at least 25% of historic income.
(1) Notification of a decision made by the Secretary of State under section 11 (maintenance calculation), 12 (default or interim maintenance decision) or 17 (supersession) of the 1991 Act or of any revision of such a decision under section 16 of that Act must be given to the parties in accordance with this Chapter.
(2) Any such notification must include information as to the provisions relating to the revision and supersession of, and appeals from, decisions made under the 1991 Act.
(1) Notification of a decision made under section 11 or 12(2) of the 1991 Act must set out—
(a) the effective date of the maintenance calculation;
(b) where relevant, the non-resident parent's gross weekly income, including—
(i) whether that is based on historic income or current income, and
(ii) if based on current income, whether that income has been estimated in accordance with regulation 42;
(c) the number of qualifying children;
(d) the number of relevant other children;
(e) the weekly rate;
(f) the amounts calculated in accordance with Part 1 of Schedule 1 to the 1991 Act and, where there has been an agreement to a variation or a variation has otherwise been taken into account, Part 5 of these Regulations (Variations);
(g) where the weekly rate is adjusted by apportionment or to take account of shared care;
(h) where the amount of child support maintenance is decreased—
(i) to take account of a child supported under a qualifying maintenance arrangement mentioned in paragraph 5A of Schedule 1 to the 1991 Act; or
(ii) in accordance with regulation 52 (non-resident parent liable to maintain a child of the family or a child abroad) or regulation 53 (care provided in part by a local authority).
(2) A notification of a maintenance calculation made under section 12(1) of the 1991 Act (default maintenance decision) must set out—
(a) the effective date of the maintenance calculation;
(b) the default rate;
(c) the number of qualifying children on which the rate is based; and
(d) whether apportionment has been applied under regulation 49,
and must state the nature of the information required to enable a calculation decision to be made.
(3) Except with the written permission of the person concerned, a notice under this regulation must not include—
(a) the address of any person other than the recipient of the notice (other than the address of the relevant office of the Secretary of State) or any other information the use of which could reasonably be expected to lead to any such persons being located; and
(b) any other information the use of which could reasonably be expected to lead to any person other than the qualifying child or a party to the application being identified.
(1) A notification of a decision made following the revision or supersession of a decision made under section 11 (the maintenance calculation), 12 (default or interim maintenance decision) or 17 (supersession) of the 1991 Act, whether as originally made or revised under section 16 of that Act, must, subject to the qualification in regulation 25(3), set out the information mentioned in regulation 25(1) and (2) in relation to the decision in question.
(2) The requirement in paragraph (1) does not apply where the Secretary of State has decided not to supersede a decision and in that case the Secretary of State must, where appropriate and as far as reasonably practicable, notify the parties of that decision.
(1) Where the Secretary of State decides that a maintenance calculation has ceased or is to cease to have effect, the Secretary of State must immediately notify the non-resident parent and person with care so far as that is reasonably practicable.
(2) Where a child under section 7 of the 1991 Act ceases to be a child for the purposes of that Act, the Secretary of State must immediately notify the persons mentioned in paragraph (1) and the other qualifying children with the meaning of section 7(2) of that Act.
(1) An accidental error in a decision of the Secretary of State made under the 1991 Act , or in any record of such a decision, may be corrected by the Secretary of State at any time.
(2) Such a correction is to be treated as part of that decision or of that record.
(3) The Secretary of State must give written notice of the correction as soon as practicable to the persons to whom notice of the decision was required to be given.
(4) In calculating the time within which an application may be made under regulation 14(1)(a) (grounds for revision) for a decision to be revised, no account is to be taken of any day falling before the day on which notice of any correction was given.
(1) For the purposes of section 28ZA(2)(b) of the 1991 Act (prescribed cases and circumstances in which a decision may be made on a prescribed basis)—
(a) a case in which there is no maintenance calculation in force is a prescribed case; and
(b) the prescribed basis on which the Secretary of State may make the decision is as if—
(i) the appeal in relation to the different matter, which is referred to in section 28ZA(1)(b) of that Act had already been determined, and
(ii) for the purposes of making that decision, the appeal had been determined in a way that resulted in the lowest possible amount of child support maintenance in the circumstances of that case being payable.
(2) The circumstances prescribed under section 28ZA(4)(c) of the 1991 Act (appeal treated as pending against a decision given in a different case even though an appeal against the decision has not been brought or, as the case may be, an application for permission to appeal against the decision has not been made but the time for doing so has not expired) are that the Secretary of State—
(a) certifies in writing that an appeal against that decision is being considered; and
(b) considers that, if such an appeal were to be determined in a particular way—
(i) there would be no liability for child support maintenance, or
(ii) such liability would be less than would be the case were an appeal not made.
The circumstances prescribed for the purposes of section 28ZB(6)(c) of the 1991 Act (appeals involving issues that arise on appeal in other cases) are where the Secretary of State—
(a) certifies in writing that an appeal against the decision in question is being considered; and
(b) considers that, if such an appeal were already determined, it would affect the determination of the appeal described in section 28ZB(1)(a) of that Act.
Where, in accordance with section 28ZB(5) of the 1991 Act (appeals involving issues that arise on appeal in other cases), the Secretary of State makes a decision superseding the decision of the First-tier Tribunal or the Upper Tribunal, the superseding decision takes effect from the date on which the decision of the First-tier Tribunal or, as the case may be, the Upper Tribunal would have taken effect had it been decided in accordance with the determination of the Upper Tribunal or the court in the appeal referred to in section 28ZB(1)(b) of that Act.
(1) Where—
(a) a decision made by the First-tier Tribunal or the Upper Tribunal is superseded on the ground that it was erroneous due to 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 takes effect from the date on which the decision of the First-tier Tribunal or, as the case may be, the Upper Tribunal, took or was to take, effect.
Any supersession decision made under section 17 of the 1991 Act in consequence of a determination which is a relevant determination for the purposes of section 28ZC of that Act (restriction on liability in certain cases of error) takes effect from the date of the relevant determination.
Schedule 2 to these Regulations has effect.
(1) The gross weekly income of a non-resident parent for the purposes of a calculation decision is a weekly amount determined at the effective date of the decision on the basis of either historic income or current income in accordance with this Chapter.
(2) The non-resident parent's gross weekly income is to be based on historic income unless—
(a) current income differs from historic income by an amount that is at least 25% of historic income; or
(b) ... no historic income is available ; or
(c) the Secretary of State is unable, for whatever reason, to request or obtain the required information from HMRC.
(2A) For the purposes of paragraph (2)(a), current income is to be treated as differing from historic income by an amount that is at least 25% of historic income where—
(a) the amount of historic income is nil; and
(b) the amount of current income is greater than nil.
(3) For the purposes of paragraph (2)(b) no historic income is available if HMRC did not, when a request was last made by the Secretary of State for the purposes of regulation 35, have the required information in relation to a relevant tax year.
(4) “ Relevant tax year ” has the meaning given in regulation 4(2).
(5) This regulation is subject to regulation 23(4) (change to current income outside the annual review or periodic current income check).
(1) Historic income is determined by—
(a) taking the HMRC figure last requested from HMRC in relation to the non-resident parent;
(b) adjusting that figure where required in accordance with paragraph (3); and
(c) dividing by 365 and multiplying by 7.
(2) A request for the HMRC figure is to be made by the Secretary of State—
(a) for the purposes of a decision under section 11 of the 1991 Act (the initial maintenance calculation) no more than 30 days before the initial effective date; and
(b) for the purposes of updating that figure, no more than 30 days before the review date.
(3) Where the non-resident parent has made relievable pension contributions during the tax year to which the HMRC figure relates and those contributions have not been deducted under net pay arrangements, the HMRC figure is, if the non-resident parent so requests and provides such information as the Secretary of State requires, to be adjusted by deducting the amount of those contributions.
(1) The HMRC figure is the amount identified by HMRC from information provided in a self-assessment return or under the PAYE regulations, as the sum of the income on which the non-resident parent was charged to tax for the latest available tax year—
(a) under Part 2 of ITEPA (employment income);
(b) under Part 9 of ITEPA (pension income);
(c) under Part 10 of ITEPA (social security income) but only in so far as that income comprises the following taxable UK benefits listed in Table A in Chapter 3 of that Part—
(i) incapacity benefit;
(ii) contributory employment and support allowance;
(iii) jobseeker's allowance; and
(iv) income support; and
(d) under Part 2 of ITTOIA (trading income).
(2) The amount identified as income for the purposes of paragraph (1)(a) is to be taken after any deduction for relievable pension contributions made by the non-resident parent’s employer in accordance with net pay arrangements.
(3) The amount identified as income for the purposes of paragraph (1)(b) is not to include a UK social security pension.
(4) The amount identified as income for the purposes of paragraph (1)(d) is to be taken after deduction of any relief under section 83 of the Income Tax Act 2007 (carry forward trade loss relief against trade profits).
(5) Where, for the latest available tax year, HMRC has both information provided in a self-assessment return and information provided under the PAYE Regulations, the amount identified for the purposes of paragraph (1) is to be taken from the former.
(1) Current income is the sum of the non-resident parent's income—
(a) as an employee or office-holder;
(b) from self-employment; and
(c) from a pension,
calculated or estimated as a weekly amount at the effective date of the relevant calculation decision in accordance with regulations 38 to 42.
(2) Where payment is made in a currency other than sterling, an amount equal to any banking charge payable in converting that payment to sterling is to be disregarded in calculating the current income of a non-resident parent.
(1) The non-resident parent's current income as an employee or office-holder is income of a kind that would be taxable earnings within the meaning of section 10(2) of ITEPA and is to be calculated as follows.
(2) As regards any part of the non-resident parent's income that comprises salary, wages or other amounts paid periodically—
(a) if it appears to the Secretary of State that the non-resident parent is (or is to be) paid a regular amount according to a settled pattern that is likely to continue for the foreseeable future, that part of the non-resident parent's income is to be calculated as the weekly equivalent of that amount; and
(b) if sub-paragraph (a) does not apply (for example where the non-resident parent is a seasonal worker or has working hours that follow an irregular pattern) that part of the non-resident parent's income is to be calculated as the weekly average of the amounts paid over such period preceding the effective date of the relevant calculation decision as appears to the Secretary of State to be appropriate.
(3) Where the income from the non-resident parent's present employment or office has, during the past 12 months, included bonus or commission or other amounts paid separately from, or in relation to a longer period than, the amounts referred to in paragraph (2), the amount of that income is to be calculated by aggregating those payments, dividing by 365 and multiplying by 7.
(4) Where the earnings from the non-resident parent's present employment or office have, in the past 12 months, included amounts treated as earnings under Chapters 2 to 11 of Part 3 of ITEPA (the benefits code) the non-resident parent's current income is to be taken to include the amount of those benefits as last obtained by HMRC divided by 365 and multiplied by 7.
(5) Where the non-resident parent's employer makes deductions of relievable pension contributions from the payments referred to in paragraph (2) or (3) the amount of those payments is to be calculated after those deductions.
(1) The non-resident parent's current income from self-employment is to be determined by reference to the profits of any trade, profession or vocation carried on by the non-resident parent at the effective date of the relevant calculation decision.
(2) The profits referred to in paragraph (1) are the profits determined in accordance with Part 2 of ITTOIA for the most recently completed relevant period or, if no such period has been completed, the estimated profits for the current relevant period.
(3) The weekly amount is calculated by dividing the amount of those profits by the number of weeks in the relevant period.
(4) In paragraphs (2) and (3) the “ relevant period ” means a tax year or such other period in respect of which the non-resident parent should, in the normal course of events, report the profits or losses of the trade, profession or vocation in question to HMRC in a self-assessment return.
(5) In the case of a non-resident parent who carries on a trade, profession or vocation in partnership, the profits referred to in this regulation are the profits attributable to the non-resident parent's share of the partnership.
(6) The profits of a trade, profession or vocation that the non-resident parent has ceased to carry on at the effective date of the relevant calculation decision are to be taken as nil.
Where the non-resident parent—
(a) has current income from self-employment or as an employee or office-holder at the effective date of the relevant calculation decision; and
(b) makes relievable pension contributions which are not taken into account under regulation 38(5),
there is to be deducted from the sum of any amounts calculated in accordance with regulation 38 or 39 (current income as an employee, current income from self-employment) an amount determined by the Secretary of State as representing the weekly average of those contributions.
The non-resident parent's current income from a pension is to be calculated as the weekly average, over such period as the Secretary of State considers appropriate, of amounts received by the non-resident parent from a pension or annuity or other income (excluding UK social security pensions) of a kind that would be charged to tax under Part 9 of ITEPA.
(1) Where—
(a) current income applies by virtue of regulation 34(2)(a) where the amount of historic income is nil or by virtue of regulation 34(2)(b) or (c) (historic income ... not available); and
(b) the information available in relation to current income is insufficient or unreliable,
the Secretary of State may estimate that income and, in doing so, may make any assumption as to any fact.
(2) Where the Secretary of State is satisfied that the non-resident parent is engaged in a particular occupation, whether as an employee, office-holder or self-employed person, the assumptions referred to in paragraph (1) may include an assumption that the non-resident parent has the average weekly income of a person engaged in that occupation in the UK or in any part of the UK.
The reduced rate is an amount calculated as follows—
where—
F is the flat rate liability applicable to the non-resident parent;
A is the amount of the non-resident parent's gross weekly income between £100 and £200; and
T is the percentage determined in accordance with the following Table—
(1) The following benefits, pensions or allowances are prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the 1991 Act (that is the benefits, pensions or allowances that qualify the non-resident parent for the flat rate)—
(a) under the Social Security Contributions and Benefits Act 1992 —
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) category A retirement pension under section 44 ,
(iii) category B retirement pension under section 48C ,
(iv) category C and category D retirement pension under section 78 ,
(v) incapacity benefit under section 30A ,
(vi) carer's allowance under section 70 ,
(vii) maternity allowance under section 35 or 35B ,
(viii) severe disablement allowance under section 68 ,
(ix) industrial injuries benefit under section 94,
(x) widowed mother's allowance under section 37 ,
(xi) widowed parent's allowance under section 39A , and
(xii) widow's pension under section 38 ;
(b) contribution-based jobseeker's allowance under the Jobseekers Act 1995 ;
(c) a social security benefit paid by a country other than the United Kingdom;
(d) a training allowance (other than work-based training for young people or, in Scotland, Skillseekers training);
(e) a war disablement pension within the meaning of section 150(2) of the Social Security Contributions and Benefits Act 1992 or a pension which is analogous to such a pension paid by the government of a country outside Great Britain;
(f) a war widow's pension, war widower's pension or surviving civil partner's war pension within the meaning of that section ;
(g) a payment under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces); ...
(h) contributory employment and support allowance ; ...
(i) a state pension under Part 1 of the Pensions Act 2014 and .
(j) the carer support payment component of carer support given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023.
(2) The following benefits are prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the 1991 Act (that is the benefits that qualify the non-resident parent for the flat rate if received by the non-resident parent or their partner)—
(a) income support;
(b) income-based jobseeker's allowance;
(c) income-related employment and support allowance; ...
(d) state pension credit; and
(e) universal credit under Part 1 of the Welfare Reform Act 2012, where the award of universal credit is calculated on the basis that the non-resident parent does not have any earned income
(3) Where the conditions referred to in paragraph 4(2) of Schedule 1 to the 1991 Act are satisfied (that is where an income-related benefit is payable to the non-resident parent or their partner and a maintenance calculation is in force in respect of each of them) the flat rate of maintenance payable is half the flat rate that would otherwise apply.
(4) In paragraph (1)(d) “ training allowance ” means a payment under section 2 of the Employment and Training Act 1973 or section 2 of the Enterprise and New Towns (Scotland) Act 1990 which is paid to a person for their maintenance while they are undergoing training.
(5) For the purposes of paragraph (2)(e) and regulation 45(1)(c), “earned income” has the meaning given in regulation 52 of the Universal Credit Regulations 2013.
(1) The nil rate is payable where the non-resident parent is—
(a) a child;
(b) a prisoner or a person serving a sentence of imprisonment detained in hospital;
(c) a person who is 16 or 17 years old and—
(i) in receipt of income support, income-based jobseeker's allowance or income-related employment and support allowance, ...
(ii) a member of a couple whose partner is in receipt of income support, income-based jobseeker's allowance or income-related employment and support allowance;
(iii) in receipt of universal credit under Part 1 of the Welfare Reform Act 2012, where the award of universal credit is calculated on the basis that they do not have any earned income; or
(iv) in a case not covered by paragraph (iii), a member of a couple where their partner is in receipt of universal credit under Part 1 of the Welfare Reform Act 2012 and the award of universal credit is calculated on the basis that the non-resident parent does not have any earned income
(d) a person receiving an allowance in respect of work-based training for young people, or in Scotland, Skillseekers training; or
(e) a person who is resident in a care home or an independent hospital or is being provided with a care home service or an independent health care service who—
(i) is in receipt of a pension, benefit or allowance specified in regulation 44(1) or (2) (flat rate), or
(ii) has the whole or part of the cost of their accommodation met by a local authority.
(2) For the purposes only of determining whether paragraph 5(b) of Schedule 1 to the 1991 Act applies (nil rate payable where non-resident parent has gross weekly income of below the flat rate that is referred to in, or prescribed for the purposes of, paragraph 4(1) of Schedule 1 to the 1991 Act), the gross weekly income of the non-resident parent is to include any payments made by way of benefits, pensions or allowances referred to in regulation 44(1) or (2).
(3) In paragraph (1)—
“care home” in England has the meaning given by section 3 of the Care Standards Act 2000;
“ care home service ” in Wales means a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 which is provided wholly or mainly to persons aged 18 or over and in Scotland has the meaning given by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 and “ independent health care service ” has the meaning given by section 10F(1)(a) and (b) of the National Health Service (Scotland) Act 1978 ;
“independent hospital” has the meaning given by section 2 of the Care Standards Act 2000;
“ person serving a sentence of imprisonment detained in hospital ” means a person who—
is being detained—
under section 45A or 47 of the Mental Health Act 1983 ; and
before the day which the Secretary of State certifies to be that person's release date within the meaning of section 50(3) of that Act (in any case where there is such a release date); or
is being detained under—
section 59A of the Criminal Procedure (Scotland) Act 1995 ; or
section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 ;
“ prisoner ” means a person who—
is detained in custody pending trial or sentence upon conviction or under sentence imposed by a court; or
is on temporary release in accordance with the provisions of the Prison Act 1952 or the Prisons (Scotland) Act 1989 ,
other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 or, in Scotland, the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995.
(1) This regulation and regulation 47 apply where the Secretary of State determines the number of nights which count for the purposes of the decrease in the amount of child support maintenance under paragraphs 7 and 8 of Schedule 1 to the 1991 Act .
(2) Subject to paragraph (3), the determination is to be based on the number of nights for which the non-resident parent is expected to have the care of the qualifying child overnight during the 12 months beginning with the effective date of the relevant calculation decision.
(3) The Secretary of State may have regard to a period of less than 12 months where the Secretary of State considers a shorter period is appropriate (for example where the parties have an agreement in relation to a shorter period) and, if the Secretary of State does so, paragraphs 7(3) and 8(2) of Schedule 1 to the 1991 Act are to have effect as if—
(a) the period mentioned there were that shorter period; and
(b) the number of nights mentioned in the Table in paragraph 7(4), or in paragraph 8(2), of that Schedule were reduced proportionately.
(4) When making a determination under paragraphs (1) to (3) the Secretary of State must consider—
(a) the terms of any agreement made between the parties or of any court order providing for contact between the non-resident parent and the qualifying child; or
(b) if there is no agreement or court order, whether a pattern of shared care has already been established over the past 12 months (or such other period as the Secretary of State considers appropriate in the circumstances of the case).
(5) For the purposes of this regulation—
(a) a night will count where the non-resident parent has the care of the qualifying child overnight and the child stays at the same address as the non-resident parent;
(b) the non-resident parent has the care of the qualifying child when the non-resident parent is looking after the child; and
(c) where, on a particular night, a child is a boarder at a boarding school, or an in-patient in a hospital, the person who would, but for those circumstances, have the care of the child for that night, shall be treated as having care of the child for that night.
(1) This regulation applies where the Secretary of State is required to make a determination under regulation 46 for the purposes of a calculation decision.
(2) If it appears to the Secretary of State that—
(a) the parties agree in principle that the care of a qualifying child is to be shared during the period mentioned in regulation 46(2) or (3) (decrease for shared care); but
(b) there is insufficient evidence to make that determination on the basis set out in regulation 46(4) (for example because the parties have not yet agreed the pattern or frequency or the evidence as to a past pattern is disputed),
the Secretary of State may make the decision on the basis of an assumption that the non-resident parent is to have the care of the child overnight for one night per week.
(3) Where the Secretary of State makes a decision under paragraph (2) the assumption applies until an application is made under section 17 of the 1991 Act for a supersession of that decision and the evidence provided is sufficient to enable a determination to be made on the basis set out in regulation 46(4).
The Child Support Maintenance Calculation Regulations 2012 (legislation.gov.uk, OGL v3.0). Retrieved via LawPlayer, https://lawplayer.com/uk/act/uksi-2012-2677
Contains public sector information licensed under the Open Government Licence v3.0.
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