Dear Child Maintenance Service,
Would you please address, as FOI requests, the following 7 issues & provide the relevant documentation asked for in each instance.
1) I have read the "Internal Operational Guidance" (IOG) provided for caseworkers contained within your FOI response ref 2019/03834 12th February 2018-"Extended powers to write off debt accrued under the 1993 & 2003 Child Support Maintenance schemes – Manual Representation and write off."
This text makes reference to the following additional guidance available to case officers using this IOG.
a) Re: enforcement journey – “enforcement & collection of CSA debt on CMS.”
b) Re: complaints - “Complaints Handling Guidance.”
c) Re: Tracing the non-resident parent - “Confirm current location instructions.”
Would you kindly disclose these guidance & instructions complete & as they are available to caseworkers.
2) In the twenty odd years of its existence the CSA, until it was indicted by the National Audit Office for false accounting, amassed some £4 billion of "uncollected balances" that are now the target of the “The Child Support (Miscellaneous Amendment) Regulations 2018 involving some 400,000+ former paying parents, most of whom, actually met their "legal" obligations at the time. The “uncollected balances,” now being attributed to them, being admitted by the CSA to be mostly fictitious and unsupportable as genuine debt.
Some 57% of these cases involve children who are now aged between 20 & 30+ & in consequence many of the former paying parents, now to be involved, are beyond retirement age & in all probability impoverished, isolated and vulnerable by way of age, dementia and/or life limiting illness or infirmity & burdened by the need to pay for either residential care or help at home.
Many again, as pensioners, because they cannot claim carers allowance, will be statistically unrecognised & un recompensed as carers for new dependent partners.
The consultation document for these regulation acknowledged this obliquely in Para 84 - “as them simply not having the resources to pay these (supposed) debts.”
Even this fleeting acknowledgement of a potentially life changing problem is summarily dismissed in the “governments” (DWP/CMS) response :- “we believe parents should pay maintenance.”
Please provide, if there is any, the operational guidance notes to CMS caseworkers, as to the need, in deference to your duty of care as a public body, for making & considering any social welfare “risk assessment,” as to the circumstances & vulnerability, of any paying or former paying parent over state retirement age prior to commencing with any attempted collection or enforcement action in respect of the “principles that have been agreed for cases with uncollected CSA balances.
Income on a gross basis does not necessarily, in these circumstances, provide a realistic indication of any “ability to pay” as a result of & on account of higher than average outgoings associated with their predicament.
Please don’t prevaricate if there isn’t any such protocol just say so but by all means provide details of any ongoing initiative to address this social failure in the processes & working of the CMS. Again if there is none just say so
3)In the text of the IOG it is stated that :-
“The Child Support (Miscellaneous Amendment) Regulations 2018 amends existing Child
Support Regulations to address historic arrears built up under the CSA”.
Could you please provide the specific section of these regulations that permits anything, other than write off of such historic arrears in qualifying instances, by amending or superseding the 1991 Act in such away as to permit the retrospective reopening of "no longer valid" (having no legal force) FOI 2018/06538 historic former CSA cases by CMS, contra to the provision of that Act :- section 55 “Meaning of (qualifying) child”
"(8)No person shall be treated as continuing to fall within subsection (1) by virtue of regulations made under subsection (7) after the end of the week in which he reaches the age of 19."(now amended to 20) in order that CMS may exercise it's authority & powers, to administer, collect or enforce collection under sub section 1 of that Act :- the obligation to maintain, using the 2012 Rules
In answering this question please acknowledge that without such additional authority, as these historic CSA cases, on which formal notice has been given that are no longer valid (have no legal force see above) under the 1991 Child Support Act, then in consequence, non of the provisions of that 1991 Act or associated legislation can be lawfully applied to them including the further processing of historic inaccurate possibly corrupted CSA data & the demanding of others, such as HMRC, the Land Registry, employers, or pension providers, that they disclose current information, that is protected by the Data Protection Act 2018, in order to update CMS data files as to location or income.
Please restrict yourself to either quoting the relevant definitive section of the Child Support (Miscellaneous Amendment) Regulations 2018 or conform to the Civil Service Code by honestly declaring that these regulations in fact per se confer no such authority.
Do not seek to mislead on this by misquoting, in this context, any of the provisions of the 1991 Act or the Child Support (Collection & Enforcement) Regulations 1992 which simply do not apply to these "no legal force" cases unless you can show definitive legislation that specifically differentiates, between ongoing liability under section 1 of the 1991 Act & any uncollected balances present at the invalidation of a case, as a result of there no longer being a qualifying child, giving continued involvement by the Child Support agencies on behalf of the Secretary Of State,
The Child Support (Miscellaneous Amendment) Regulations 2018 may well lay down a process but constitutionally unless the 1991 Act is appropriately amended to give, specific retrospective enabling legislative authority, I maintain that the CMS has no lawful authority or powers to administer them.
4) The Child Maintenance: A New Compliance and Arrears Strategy
Public Consultation 14th December 2017 says at 99 under “Proposed new approach for CSA debt owed to parents” that
. "For a case to be in scope for the exercise they must:
• Be an arrears-only case (no on-going liability); and
• Be non-paying (have had no payment received within the previous three months at the time of selection); and
• The debt must have accumulated under the CSA *(although the information about the debt may have been moved to the CMS system as part of the closure of a CSA case)."
It also says at 104
" We propose adopting this approach for non-paying cases with *CSA debt over £500 if the case is less than ten years old, and with debt over £1000 if the case is ten or more years old. The rationale for the higher debt threshold for older cases is that it is likely to be harder to recover older debts, so in order for this action* to be cost effective we will only pursue higher amounts. Also these cases are more likely to involve children that are now grown up,"
The Child Maintenance Compliance and Arrears Strategy Government response to the consultation 12th July 2018 confirms this in saying at 99
"We will write to parents with *non-paying debt over £1000 (for applications made before November 2008) or £500 (for applications made after November 2008) that built up on CSA schemes to ask them to tell us if they want us to try to collect their debt."
It also says at 113
. "We, therefore, plan to maintain the approach outlined in our consultation. It is not cost effective to attempt collection on individual debts of *£500 or less (or debts of £1000 or less where the case is ten or more years old), so we propose to write off all non-paying debt at or below this amount. It costs on average between £500 and £1000 to investigate and take action on these cases. This includes collection activity in our arrears teams and enforcement processes. We feel that the thresholds based on age of case and amount of debt provide a reasonable cut off point to ensure that we do not pursue cases at disproportionate cost to the taxpayer."
However I see no reference whatsoever to the, £1000 over 10 years criteria,, in the IOG or the legislation. Nevertheless the Explanatory Memorandum to the Child Support ( Miscellaneous Amendments)Regulations 2018 No. 1279 does actually state at7.25 that
“The regulations will allow representations to be sought from clients who have a 1993 or 2003 CSA scheme cases where there has not been a payment in the last three months. The client will need to make a representation to the CMS if they would like a last attempt to collect the debt, where:
• the case started on or before 1 November 2008 and the debt is more than £1000, or
• the case started after 1 November 2008 and the debt is more than £500.
•* the arrears accrued under a 1993 or 2003 scheme case which have transferred to the CMS system and the debt is more than £500”.
7.27 “The regulations will also enable CSA debt to be written off without seeking representations from clients, where there has not been a payment in the last three months and: • the case started on or before 1 November 2008 and the debt is less than £1000, or
• the case started after 1 November 2008 and the debt is less than £500.
•* the arrears accrued under a 1993 or 2003 scheme case which have transferred to the CMS system and the debt is less than £500.”
I know but I doubt many others, including the MP’s who passed it into legislation, will know that actually the DWP, unilaterally added this provision, after the consultation & Government response but before Statutory Instrument was voted on in the House Of Commons, in a reply to questions put to them by the House of Lords Secondary Legislation Scrutiny Committee & that whereas it is not included in the text of Child Support (Miscellaneous Amendment) Regulations 2018, it is in their 39th Report of Session 2017–19 (which like the Memorandum of explanation was most unlikely to be read by anyone!) under “Write off approach”
• "Our proposed approach will end the uncertainty for families about how the historic arrears that built up on CSA cases will be treated in future, as the final CSA liabilities are brought to an end during 2018. These regulations will allow:
• Representations to be sought from clients in cases with non paying CSA debt about whether they would like a last attempt to collect the debt, where the case started on or before 1 November 2008 and the debt is more than £1000, and where the case started after 1 November 2008 and the debt is more than £500. Where no representations are received, or collection of the debt is not possible, the debt may be written off.
• CSA debt in non-paying cases to be written off without seeking representations from clients, where the case started on or before 1 November 2008 and the debt is less than £1000, and where the case started after 1 November 2008 and the debt is less than £500. • CSA debt under £65 in non-paying cases to be written off without notice to the parties.
* Some CSA cases with debt have already been closed as a part of the ongoing CSA case closure programme, with the debt transferred to the CMS IT systems. For the purpose of this process then the cases will be treated as if they started after 1 November 2008."
i.e. thanks to the additional clause*such a case whatever its age can be considered as post November 2008 & subject to the £500 not £1000 minimum above which they can be pursued instead of being written off. Rather different to what was indicated in the consultation paper, the Government response or indeed the regulations themselves.
It’s a very clever wheeze I grant you but I am not at all sure it has either integrity or legitimacy!
In point of fact as virtually every case over £500, the minimum considered viable to pursue, has or should have been transitioned to the CMS2012 Rules system by 31st Dec 2018 & so be subject to this £500 minimum but true to form the CSA failed to achieve this & a small but significant number of cases remain, as yet unprocessed for transition, on CSA systems where rather than process them for transition to CMS they are now being cleared by the CSA, prior to the closure of their systems & being used to “trial” the new processes & system functionality that will become available on CMS in 2020 in order that they may process the bulk of such cases that have transitioned to the 2012 Rules System.
This is as maybe but this, little hidden addition to the proposals, completely distorts & nullifies, the published figures & factual basis of the consultation & the Governments Response to it, as it will considerably increase the numbers of cases subjected to the process outlined in the IOG.
The bright spark who saw the “opportunity” to surreptitiously increase the scope of the attempted collection & write off process & so, deliver a potentially greater “recovery” of CSA uncollected balances than might have been envisaged under original published proposals, must have documented for presentation, their new revised proposal including, for comparison with the original basis, their revised estimates of the figures & statistics involved if their proposal were to be adopted.
Please therefore disclose this proposal document in full in order that the public & taxpayers may know the likely true revised rationale, case numbers & their value together with the costs & returns in terms of anticipated collection success rates & the total amounts estimated to be collectible & collected.
5) The Child Maintenance Compliance and Arrears Strategy Government response to
the consultation” 12th July 2018 says at 103
. "Potential collection activities may include:
• *Deduction from benefit (including extended powers detailed on page 11).
• Deduction from earnings.
• Regular or lump sum deduction order (including extended powers proposed in this consultation).
Whilst it also says at 50 - Arrears deductions from benefit
*We propose to continue deducting at the flat rate amount when liability ends where there are arrears on a case. We would also impose a deduction at the flat rate for arrears if a benefit award starts after liability has ended
& at 52.
We propose to deduct arrears from benefits including:
• Carer’s Allowance
• *State Pension
• Contribution based Employment and Support Allowance
• Contribution based Jobseeker’s Allowance
• Industrial Injuries Disablement Benefit
• Widowed Parent’s Allowance
• Widow’s pension
• War Widow’s payments
• Statutory Maternity Allowance
• Severe Disablement Allowance"
Then at 118.it further advises that
*" We plan to make changes in regulations for deduction from benefits in a second package of legislative changes at a later date."
Please disclose all working documents in relation to the current work being carried out as to the proposed content of such regulations as well as the timescale to their introduction
6) I note with some alarm that The “Child Maintenance Compliance and Arrears Strategy Government response to the consultation” 12th July 2018 says at 105
"Some of the factors that caseworkers will consider when deciding whether to progress cases through our court based enforcement powers is the amount of debt and the likelihood of recovery. Decisions would also take into account value for money for the taxpayer. *For example if we have evidence that suggests the paying parent owns a property on which we can get a charging order or take order for sale action on, the likelihood is that the case will be progressed through our court based enforcement powers.
Particularly as the Explanatory Memorandum To The Child Support (miscellaneous Amendments) Regulations 2018 No. 1279 at 3.1 says
“ the definition of asset *will now include assets owned jointly by, or held in the joint names of, the non-resident parent and another individual or individuals. This is to ensure that a provision which was intended to offer protection to third parties cannot be exploited by an NRP by transferring assets into joint names.”
Does this mean that the protection, apparently afforded by the “Child Maintenance Compliance and Arrears Strategy Government response to the consultation” 12th July 2018 At 33,
* “An asset which is the primary residence of the paying parent; the home of the paying parent’s children; being used for the paying parent’s business purposes; or jointly owned will not be taken into account for the purposes of the new power. *We will specify in regulations the asset types which we will take into account. We will not require the paying parent to pay more maintenance where this would mean that assets would have to be sold and this would cause hardship *to the paying parent or any child of the paying parent,”
is to be unilaterally withdrawn meaning that the “vulnerable” cohort of pensioners I refer to at 2 above who either solely, or jointly with a dependent partner, own the home in which they live will now also face the prospect of having a charging order placed on it or even having it sold out from under them as is happening now to a similar group of former recipients of Carers Allowance currently being pursued by the DWP, for the full amount of payments made to them, for claiming when as little as £00.01p over the earnings threshold?
Yes Or No please also kindly disclose the regulations, mentioned above, specifying the asset types that will be taken into account by caseworkers dealing with the write off proposals.
7) Please also disclose the, numbers of former carers, against whom the DWP have a) taken charging orders or b) are in the process of doing so & c) taken orders for sale or d) are in the process of doing so in respect of the repayment arising from having wrongly claiming (probably in advertently) Carers Allowance.
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