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2000 Act - Variations - NRPs' new partners
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2000 Act - Variations - NRPs' new partners

Introduction

The current CSA scheme causes a lot of anger because it takes into account the income of the current ("new") partner (if any) of the non-resident parent. It does so primarily to identify to what extent that partner can contribute to certain costs - it does not require that partner actually to pay child support. (For example, it would not increase the amount of child support paid over the limit of 30% of net income). But this intrusion and the fact that the amount can make a difference to the assessment is often resented.

The basic formula of the reformed scheme ignores that partner's income (just as it ignores the income of the parent with care and any partner of that person). This is likely to be welcomed by non-resident parents and their partners, but may often be a source of complaint by parents with care, especially if they suspect that games are being played. It is possible in some cases for a "variation" to be applied which takes into account such income (or other assets) of the new partner. (A "variation" is similar to a "departure" under the current scheme, although the details are significantly different because of the different new formula).

Will this result in the re-introduction of examination of the incomes of partners in the way that is currently resented? That is the topic being discussed here. At the moment, this is just informed prediction, because the details of how the variations procedure will work have not been published (and may not have been designed).

Conclusions

The details are below. Here is a summary of the conclusions:

The intention is to keep the number of successful variations to less than 25,000 per year - out of over a million cases. There are threshold criteria intended to allow unsuitable applications to be dismissed early on. This particular ground for a variation can't cover all cases of earning partners - at most only a small fraction of them.

The initial test isn't that the NRP's partner earns. It is that the NRP has a lifestyle inconsistent with the income used for calculation purposes. This is a very important difference - if the NRP pays a "respectable" amount, and the partner is actually paying for other children, etc, this test should fail.

It may apply if the NRP hides his/her own income, but that is really a separate topic. It is primarily intended for the case where the NRP earns little and "controls" the partner's income or assets - although it is unclear what that means. This may need case law to establish the principles. It will be interesting to see whether it applies to cases where the NRP is motivated to give up work and stay at home to care for the "relevant children" of the household.

Extracts from the legislation, with commentary

The Act itself

The Act itself is important, especially "Schedule 1 - Substituted Part I of Schedule 1 to the Child Support Act 1991" for the description of a partner:

(4) In this Part of this Schedule, a person's "partner" is-
(a) if they are a couple, the other member of that couple;
(b) if the person is a husband or wife by virtue of a marriage entered into under a law which permits polygamy, another party to the marriage who is of the opposite sex and is a member of the same household.

5) In sub-paragraph (4)(a), "couple" means a man and a woman who are-
(a) married to each other and are members of the same household; or
(b) not married to each other but are living together as husband and wife.".

(So presumably standard social security rules apply, as in "living together as husband and wife" fraud).

The Statutory Instrument

Most of the detail is in the Statutory Instrument The Child Support (Variations) Regulations 2000. (Extracts from this are indented below).

This is what it says about NRP's partners - there is very little indeed. First there is some material about the NRP or partner claiming tax credits. That is not relevant here.

Then it is at regulation 20: "Life-style inconsistent with declared income":

20. - (1) Subject to paragraph (3), a case shall constitute a case for the purposes of paragraph 4(1) of Schedule 4B to the Act where -

(a) the non-resident parent's liability to pay child support maintenance under the maintenance calculation which is in force, or which has been applied for or treated as applied for, is, or would be, as the case may be -
[snip of some detail]

(b) the Secretary of State is satisfied that the income which has been, or would be, taken into account for the purposes of the maintenance calculation is substantially lower than the level of income required to support the overall lifestyle of the non-resident parent.
[snip of (2)]

(3) Paragraph (1) shall not apply where the Secretary of State is satisfied that the lifestyle of the non-resident parent is paid for from -
[snip of (a), (b), (c)]

(d) the income of any partner of the non-resident parent, except where the non-resident parent is able to influence or control the amount of income received by that partner; or

(e) assets as defined for the purposes of regulation 18 of any partner of the non-resident parent, or any income derived from such assets, except where the non-resident parent is able to influence or control the assets, their use, or income derived from them.

In other words, this part excludes the partner from consideration in a variation, unless "... the non-resident parent is able to influence or control the ..." (income or assets).

[snip of (4)]

(5) Where a variation on this ground is agreed to, the additional income taken into account under regulation 25 shall be the difference between the income which the Secretary of State is satisfied the non-resident parent requires to support his overall lifestyle and the income which has been or, but for the application of paragraph 4(1)(b) or 5(a) of Schedule 1 to the Act, would be taken into account for the purposes of the maintenance calculation, aggregated with any benefit, pension or allowance which the non-resident parent receives other than any benefits referred to in regulation 26(3).

And that is the end of the useful stuff about partners! Regulation 25 is important - "Effect on maintenance calculation - additional cases":

25. Subject to regulations 26 and 27, where the variation agreed to is one falling within regulations 18 to 20 (additional cases), effect shall be given to the variation in the maintenance calculation by increasing the net weekly income of the non-resident parent which would otherwise be taken into account by the weekly amount of the additional income except that, where the amount of net weekly income calculated in this way would exceed the capped amount, the amount of net weekly income taken into account shall be the capped amount.

(26 is about the cap applied to net income at £2000 per week, 27 is general material that doesn't appear to provide more detail here).

So what does this mean? Certainly it means that if the NRP can't influence or control the partner's income or assets, the latter can't be taken into account. But it is unclear what that means. (Perhaps the legislators don't know either, and are leaving their options open).

Then it doesn't actually say how much should be added to the NRP's income if the NRP can influence or control - perhaps just the amount concerned? But that is too vague to see how anyone is going to handle it - certainly front line staff couldn't be expected to apply this without a lot more very clear rules.

Can the CSA validly request the NRP's partner's details?

This is currently a matter of dispute. Many claim that informing the CSA that the non-resident parent doesn't know the partner's details, and has been denied this knowledge by the partner (perhaps invoking the Data Protection Act, which appears to be a dubious ground) is sufficient to stop the CSA pursuing the matter.

Will this apply when the information is required not for applying the standard formula, but for applying a variation where the whole point is that a discrepency has been identified?

References

The Act itself is 2000 Child Support, Pensions and Social Security Act.

The relevant sections are:
5. Departure from usual rules for calculating maintenance.
6. Applications for a variation: further provisions.
7. Variations: revision and supersession.
Schedule 1 - Substituted Part I of Schedule 1 to the Child Support Act 1991.

The Statutory Instrument which provides most of the detail is The Child Support (Variations) Regulations 2000.

The figure of no more than 25,000 variations per year, also a figure of 21,000, was given by Angela Eagle in Standing Committee F on Tuesday 1st February 2000 pm.

Page last updated: 5 July, 2004 © Copyright Barry Pearson 2003