The Child Support (Meaning of Child and New Calculation Rules) (Consequential and Miscellaneous Amendment) Regulations 2012

• Citation: S.I. 2012/2785
• Sections: 12

Section 1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Child Support (Meaning of Child and New Calculation Rules) (Consequential and Miscellaneous Amendment) Regulations 2012.

(2) This regulation and regulation 11 come into force on 10th December 2012.

(3) Regulations 2 and 3 come into force on the day on which section 42 of the 2008 Act (meaning of “child”) comes into force.

(4) Subject to paragraph (5), regulations 4 to 10 and 12 come into force in relation to a particular case on the day on which paragraph 2 of Schedule 4 to the 2008 Act (calculation by reference to gross weekly income) comes into force in relation to that type of case.

(5) Regulations 4(3) to (6) and 12 come into force in relation to an arrears-only case on 10th December 2012, subject to the saving in regulation 11(1).

(6) In these Regulations—

“ 2008 Act ” means the Child Maintenance and Other Payments Act 2008.

“arrears of child support maintenance” means any payment of child support maintenance—

which has become due in relation to a maintenance assessment, or a maintenance calculation made under 2003 scheme rules, and not paid; and

in respect of which the Secretary of State is arranging collection under section 29 of the 1991 Act;

“ arrears-only case ” means a case in which—

there are arrears of child support maintenance; and

there is—

no maintenance assessment, or maintenance calculation made under 2003 scheme rules, still in force; and

no application for a maintenance assessment, or a maintenance calculation falling to be made under 2003 scheme rules, still to be determined;

“ the Collection and Enforcement Regulations ” means the Child Support (Collection and Enforcement) Regulations 1992 .

(7) For the purposes of this regulation, a maintenance calculation is made (or will fall to be made) under 2003 scheme rules if the amount of the periodical payments required to be paid in accordance with it is (or will be) determined otherwise than in accordance with Part 1 of Schedule 1 to the Child Support Act 1991 as amended by Schedule 4 to the Child Maintenance and Other Payments Act 2008.

Section 2 Amendment of the Child Support (Maintenance Assessment Procedure) Regulations 1992

(1) Schedule 1 (meaning of “ child ” for the purposes of the Act) to the Child Support (Maintenance Assessment Procedure) Regulations 1992 is amended as follows.

(2) For paragraph 1, substitute—

1 1 A person satisfies such conditions as may be prescribed for the purposes of section 55(1)(of the Act if that person satisfies any of the conditions in sub-paragraphs (2) and (3). 2 The person is receiving full-time education (which is not advanced education)— a by attendance at a recognised educational establishment; or b elsewhere, if the education is recognised by the Secretary of State. 3 The person is a person in respect of whom child benefit is payable. . 3 Omit paragraph 1A. 4 In paragraph 2— a for “section 55 of the Act” substitute “ this Schedule ” ; and b in sub-paragraph (a), after “education” insert “ , a higher national certificate ” . 5 In paragraph 3, for “section 55 of the Act” substitute “ this Schedule ” . 6 In paragraph 4, for “section 55(1)(b) of the Act” substitute “ paragraph 1(2) ” . 7 For paragraph 6, substitute— 6 In this Schedule, “ recognised educational establishment ” means an establishment recognised by the Secretary of State for the purposes of this Schedule as being, or as comparable to, a university, college or school. 8 After paragraph 6 insert— Education otherwise than at a recognised educational establishment

(7) For the purposes of paragraph 1(2), the Secretary of State may recognise education provided for a person otherwise than at a recognised educational establishment only if satisfied that education was being so provided for that person immediately before that person attained the age of 16.

Section 3 Amendment of the Child Support (Maintenance Calculation Procedure) Regulations 2000

(1) Schedule 1 (meaning of “ child ” for the purposes of the Act) to the Child Support (Maintenance Calculation Procedure) Regulations 2000 is amended as follows.

(2) For paragraph 1, substitute—

1 1 A person satisfies such conditions as may be prescribed for the purposes of section 55(1)(of the Act if that person satisfies any of the conditions in sub-paragraphs (2) and (3). 2 The person is receiving full-time education (which is not advanced education)— a by attendance at a recognised educational establishment; or b elsewhere, if the education is recognised by the Secretary of State. 3 The person is a person in respect of whom child benefit is payable. . 3 Omit paragraph 1A. 4 In paragraph 2— a for “section 55 of the Act” substitute “ this Schedule ” ; and b in sub-paragraph (a), after “education” insert “ , a higher national certificate ” . 5 In paragraph 3, for “section 55 of the Act” substitute “ this Schedule ” . 6 In paragraph 4, for “section 55(1)(b) of the Act” substitute “ paragraph 1(2) ” . 7 For paragraph 6, substitute— 6 In this Schedule, “ recognised educational establishment ” means an establishment recognised by the Secretary of State for the purposes of this Schedule as being, or as comparable to, a university, college or school. 8 After paragraph 6 insert— Education otherwise than at a recognised educational establishment

(7) For the purposes of paragraph 1(2), the Secretary of State may recognise education provided for a person otherwise than at a recognised educational establishment only if satisfied that education was being so provided for that person immediately before that person attained the age of 16.

Section 4 Amendment of the Child Support (Collection and Enforcement) Regulations 1992

(1) The Collection and Enforcement Regulations are amended as follows.

(2) For regulation 4 (intervals of payment) and its heading, substitute—

Payments to be scheduled over reference period

(4)

(1) The Secretary of State may, for the purposes of determining the frequency and amount of the payments of child support maintenance required to be made by a liable person—

(a) determine the total amount payable for the reference period on the assumption that the weekly rate of child support maintenance will not change over that period; and

(b) require that amount to be paid by equal instalments over that period at intervals determined by the Secretary of State.

(2) The reference period in relation to the maintenance calculation is, subject to paragraph (3), the period of 52 weeks mentioned in section 29(3A) of the Act beginning with—

(a) the initial effective date (where it is the first such period in relation to the maintenance calculation); or

(b) the review date.

(3) In this regulation “initial effective date” and “review date” have the meanings given by regulations 12 and 19 of the Child Support Maintenance Calculation Regulations 2012 respectively.

(3) In regulation 8(1) (interpretation of Part 3), in the definition of “normal deduction rate” for “week, month or other period” substitute “ month and the equivalent of that sum for a 1, 2 and 4 week period ” .

(4) For regulation 10 (normal deduction rate), substitute—

10 1 The period by reference to which the normal deduction rate is set must be the period by reference to which the liable person is normally paid where that period is a 1, 2 or 4 weekly or monthly period. 2 The employer must select the normal deduction rate which applies depending on the period by reference to which the liable person's earnings are normally paid. 3 Where the liable person is paid by reference to a period other than at a 1, 2 or 4 weekly or monthly period, the Secretary of State must discharge the deduction from earnings order in accordance with regulation 20. . 5 For regulation 11 (protected earnings proportion and protected earnings rate) and its heading, substitute— Protected earnings proportion

(11)

(1) The period by reference to which the protected earnings proportion is set must be the same as the period by reference to which the normal deduction rate is set in accordance with regulation 10(1).

(2) The protected earnings proportion in respect of any period shall be 60% of the liable person's net earnings in respect of that period as calculated at the pay-day of the liable person by the employer.

(6) In regulation 20 (discharge of deduction from earnings orders)—

(a) omit “or” at the end of paragraph (1)(e);

(b) at the end of paragraph (1)(f) insert—

; or

(g) the circumstances in regulation 10(3) apply.

(7) In regulations 25C(1)(a) (maximum deduction rate for regular deduction order) and 25G(2)(d) (review of a regular deduction order) for “net” substitute “ gross ” .

Section 5 Amendment of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992

(1) The Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 are amended as follows.

(2) In regulation 1(2) (interpretation) omit the definitions of “Maintenance Calculation Procedure Regulations” and “Maintenance Calculations and Special Cases Regulations”.

(3) In regulation 5(3)(c) (notifications by the Secretary of State) for “regulation 8 of the Maintenance Calculations and Special Cases Regulations” substitute “ regulation 50 of the Child Support Maintenance Calculation Regulations 2012 ” .

(4) In regulation 8A(d) (maintenance calculations and maintenance orders – payments) omit the words from “in accordance with” to the end of that paragraph.

Section 6 Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations 1999

(1) The Social Security and Child Support (Decisions and Appeals) Regulations 1999 are amended as follows.

(2) In regulation 1(3) (interpretation), omit the definitions of “the Arrears, Interest and Adjustment of Maintenance Assessments Regulations”, “the Maintenance Calculation Procedure Regulations”, “the Maintenance Calculations and Special Cases Regulations”, “relevant other child”, “relevant person” and “Variations Regulations”.

(3) Omit regulations 3A, 5A, 6A, 6B, 7B, 7C, 15A, 15B, 15C, 23 and 24.

(4) In regulation 4 (late application for a revision)—

(a) in paragraph (1), omit “or 3A(1)(a)”;

(b) in paragraph (2), omit “the relevant person”;

(c) in sub-paragraph (c) of paragraph (4), omit “or 3A”; and

(d) in paragraph (5), omit “and regulation 3A(1)(a)”.

(5) In the heading to regulation 30 (appeal against a decision which has been replaced or revised) omit “replaced or”.

(6) In regulation 30 (appeal against a decision which has been revised)—

(a) for paragraph (1) substitute—

(1) An appeal against a decision of the Secretary of State or the Board or an officer of the Board shall not lapse where—

(a) the decision is revised under section 9 before the appeal is determined; and

(b) the decision as revised is not more advantageous to the appellant than the decision before it was revised.

(b) for paragraph (3) substitute—

(3) Where a decision as revised under section 9 is not more advantageous to the appellant than the decision before it was revised, the appeal shall be treated as though it had been brought against the decision as revised.

(c) in paragraphs (4) and (5), omit “replaced or”.

(7) In regulation 33 (notice of appeal), omit paragraph (2)(d).

(8) Omit Schedule 3D (effective dates for supersession of child support decisions).

Section 7 Amendment of the Child Support (Voluntary Payments) Regulations 2000

(1) The Child Support (Voluntary Payments) Regulations 2000 are amended as follows.

(2) In regulation 1(2) (interpretation)—

(a) omit the definition of “the Maintenance Calculations and Special Cases Regulations”;

(b) in the definition of “the qualifying child's home” omit the words from “and “home” has” to the end; and

(c) in the definition of “relevant person”, in paragraph (c), for the words from “regulation 8” to the end substitute “ regulation 50 of the Child Support Maintenance Calculation Regulations 2012 ” .

(3) In regulation 2(1)(c) (voluntary payment) omit the words from “and for this purpose” to “2000”.

Section 8 Amendment of the Child Support Information Regulations 2008

(1) The Child Support Information Regulations 2008 are amended as follows.

(2) In regulation 2 (interpretation)—

(a) in paragraph (1), for the definition of “Maintenance Calculation Procedure Regulations” substitute—

“ the Maintenance Calculation Regulations ” means the Child Support Maintenance Calculation Regulations 2012 ;

(b) omit paragraphs (2) and (3).

(3) In regulation 7 (duty of persons from whom information requested) omit paragraph (3).

(4) After regulation 9 (duty to notify change of address) insert—

Duty to notify increase in current income

(9A)

(1) In a case falling within paragraphs (2) or (3), the Secretary of State may notify the non-resident parent that that parent is required to notify the Secretary of State of any relevant change of circumstances in relation to that income.

(2) A case falls within this paragraph if, in relation to a maintenance calculation in force—

(a) gross weekly income is determined by reference to the non-resident parent's current income as an employee or officeholder (in accordance with regulation 38 of the Maintenance Calculation Regulations); and

(b) paragraph 5(b) of Schedule 1 to the 1991 Act (nil rate) does not apply.

(3) A case falls within this paragraph if, in relation to a maintenance calculation in force—

(a) gross weekly income is determined by reference to the non-resident parent's current income (in accordance with regulation 37 of the Maintenance Calculation Regulations); and

(b) paragraph 5(b) of Schedule 1 to the 1991 Act applies (nil rate).

(4) A notification by the Secretary of State under paragraph (1) must be in writing.

(5) Where a relevant change of circumstances occurs after the non-resident parent has been notified of a requirement under paragraph (1), the non-resident parent must notify the Secretary of State of that change—

(a) within fourteen days beginning with the day on which the change occurs; or

(b) within such other period as the Secretary of State has specified in the notification.

(6) For the purposes of a case falling within paragraph (2), a relevant change of circumstances occurs where—

(a) the non-resident parent—

(i) commences a new employment or office; or

(ii) in relation to an existing employment or office, commences a new rate of remuneration or a new working pattern,

and could reasonably be expected to know that would result in an increased liability under the maintenance calculation in force if reported to the Secretary of State; or

(b) the non-resident parent receives from their employment or office the following number of consecutive payments, each of which (if it were taken as a weekly average) exceeds the gross weekly income taken into account in the maintenance calculation in force by 25% or more—

(i) five payments, in the case of a non-resident parent paid weekly;

(ii) three payments, in the case of a non-resident parent paid fortnightly;

(iii) two payments, in the case of a non-resident parent paid four weekly or monthly.

(7) The payments referred to in paragraph (6)(b) are the gross remuneration from the employment or office in question less any pension contributions deducted under net pay arrangements.

(8) In paragraph (7)—

“ net pay arrangements ” means arrangements for relief in respect of pension contributions under section 193 of the Finance Act 2004 .

(9) For the purposes of a case falling within paragraph (3), a relevant change of circumstances occurs where the non-resident parent's income increases to a gross weekly income of £5 or more.

(10) For the purposes of paragraph (9), gross weekly income is to be calculated in accordance with regulation 45(2) of the Maintenance Calculation Regulations.

(5) In regulation 13 (disclosure of information to other persons)—

(a) in paragraph (1)(d), for “regulation 23” to “Procedure Regulations” substitute “ regulation 25 of the Maintenance Calculation Regulations (notification of a maintenance calculation) ” ; and

(b) in paragraph (2)(c), for “regulation 34” to “Regulations 1999” substitute “ paragraph 4 of the Schedule to the Maintenance Calculation Regulations ” .

Section 9 Amendment of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008

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Section 10 Revocations

The following Regulations are revoked—

(a) the Child Support (Maintenance Assessment Procedure) Regulations 1992 ;

(b) the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 ;

(c) the Child Support (Maintenance Assessments and Special Cases) Amendment Regulations 1993 ;

(d) the Child Support Departure Direction and Consequential Amendments Regulations 1996 ;

(e) the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 ;

(f) the Child Support (Variations) Regulations 2000 ; and

(g) the Child Support (Maintenance Calculation Procedure) Regulations 2000 .

Section 11 Saving where arrears-only case

(1) Regulations 8, 10, 11 and 20 of the Collection and Enforcement Regulations continue to apply in relation to an arrears-only case, as they were in force immediately before the amendments made by regulation 4(3) to (6) come into force, until notice is given to the non-resident parent by the Secretary of State that the provisions of the Regulations as amended by regulation 4(3) to (6) apply to that case.

(2) Any notice given under paragraph (1) must be in writing and sent by post to the non-resident parent's last known or notified address and will be treated as having been given on the second day following the day on which it is posted.

(3) For the purposes of this regulation any reference to a non-resident parent includes reference to an absent parent.

Section 12 Transitional provision

(1) Where, in any case, a deduction from earnings order was made before the date on which the Collection and Enforcement Regulations as amended by regulation 4(3) to (6) apply in relation to that case, this regulation shall apply in respect of that order.

(2) Where the deduction from earnings order still has effect immediately before regulation 4(3) to (6) comes into force in relation to that case—

(a) the order continues to take effect for the purposes of any deductions which are required to be made under the order until it is discharged or lapses;

(b) the Collection and Enforcement Regulations, as they were in force before the amendments made by regulation 4(3) to (6) came into force, continue to apply in relation to the order until it is discharged or lapses; and

(c) the order is to be treated as discharged, if it has not otherwise lapsed or been discharged, on the date that the first deduction from earnings order made under the Collection and Enforcement Regulations as amended by regulation 4(3) to (6) takes effect.

the order is to be treated as discharged, if it has not otherwise lapsed or been discharged, either—

(i) in a case where there are old scheme arrears, on the date on which the old scheme arrears have been transferred to the computer system on which cases where child support maintenance calculated under the new scheme rules are administered by the Secretary of State, or

(ii) in a case where there are no old scheme arrears, on the date on which the first deduction from earnings order made under the Collection and Enforcement Regulations as amended by regulation 4(3) to (6) takes effect.

(3) In this regulation—

“calculated under the new scheme rules” means calculated in accordance with Part 1 of Schedule 1 to the Child Support Act 1991 as amended by paragraph 2 of Schedule 4 to the 2008 Act;

“old scheme arrears” means the amount of child support maintenance calculated other that in accordance with the new scheme rules which is overdue and which remains outstanding.