The process of reforming the CSA legislation
This web site provides a fairly thorough description of the reformed scheme. However, there are still some details missing. The questions here concern linkage forcing premature migration of old cases to new rules, and caps (if any) on arrears.
The new scheme starts for new cases on 3rd March 2003. Existing cases will normally not be migrated until (probably) next year. However, some existing cases that get linked to new cases will be migrated across early, so that where an NRP has 2 cases, they will either both be old-style or both be new-style.
This leaves lots of questions over the details of how & when existing cases will get migrated early. Sooner or later, answers will be needed! Here are some of the questions. I've used some dates & amounts for illustration, but I would really like to know the general rules.
1. Does linkage apply to PWCs with 2 cases?
The idea is that an NRP will pay under a consistent set of rules. Will PWCs receive under a consistent set of rules, or can they receive under an old-style case and a new-style case?
The CSA web site says "It will not be possible to transfer to the new scheme from an earlier date. But if existing clients of the CSA are involved in a new case to which new rules apply, they will transfer early". This implies that linkage does apply to PWCs as well.
A supplementary question is: what happens if a person is both NRP for one case and PWC for another? Must they both be under the same rules?
And what about the special case here where there are just 2 parents and 2 children being looked after one-each?
2. How does the carer's allowance work for a PWC with old & new-style cases?
(This question only applies if the answer to "1" is "no").
Under the old rules, the PWC's carer's allowance is divided among the NRPs. What happens if one of the PWC's cases is old-style (with a carer's allowance because the child is young) and there is now a new case?
Does the carer's allowance get divided by 2 for the old case, even though the new scheme doesn't have a recognisable carer's allowance?
3. Does the effect of early migration get back-dated to the date of the new MEF-equivalent?
Suppose an NRP is paying for a child under old rules, and becomes the subject of an application under new rules. Does the old case switch to new rules from the date the MEF-equivalent arrives (in other words, from the effective starting date of the new case)?
Under current rules, a second application against the NRP is not backdated to the MEF issue date but is instead based on the calculation date. It's then up to the new PWC to claim compensation for the missing period. See: Child Support Guide Part Two - Appendix 2 (15); it quotes CS(MAP) Regs, reg33(7). But the question still applies if the PWC does claim compensation for the missing period.
Consider 2 examples:
An NRP is paying £100 for 1 child under old rules. (But he earns £400 and so would be paying £60 for that child under new rules). On 1st April a MEF arrives for another child by another mother. Since there are 2 children by 2 mothers, under new rules this would £40 to each.
Suppose the calculation for the new case is complete by 1st May. The new case officially runs from 1st May, but the PWC claims compensation. Does the £40 to the existing mother run from 1st April or 1st May? (By the time the new calculation has been done, the £100 will have been paid). And see the supplementary questions.
The numbers are the same as example 1, but the NRP demands a paternity test which delays things until 1st October. It is positive. Suppose the PWC requests compensation back-dated to 1st April. Is the migration of the old case back-dated to 1st April, or does it migrate from 1st October? (Or something different? A lot of money could have been paid by the time the new case calculation has been completed).
A supplementary question: is the migration of the old case phased in? In other words, if the migration of the old case is back-dated to 1st April as £40 for the new rules, is it actually £90 for the first year, then £80, etc? (Or is it phased in from what the split amount would be if both cases were under old rules?) Can an NRP be paying 2 different amounts for similar children belonging to 2 different cases, even where both are under new rules, because one is being phased-in?
And a question for ministers would be: since it is claimed that it would be unfair for a person to be paying under 2 sets of rules, how can it be fair for a person to pay different amounts under one set of rules?
It does appear that nearly all migrations from old rules to new rules are phased in, except for special cases which are not listed completely on the CSA web site: "There are a number of exceptions to the phasing rules in particular cases".
4. Is it only a valid case that triggers migration of an old case to the new rules, or is an application sufficient?
The CSA web site talks about migration if the NRP is involved with another application. But does this really not mean "application", only a valid new case?
There is an obvious loophole if it is just the application that triggers the migration - there would be a lot of spurious applications where people want their old case to be migrated early!
5. Similar to "4", but where there is "presumed paternity"?
A man is paying under old rules for a child from a previous marriage. Now on 1st April he separates from his 2nd wife and is "presumed" to be the father of their child. Under the "presumed parentage" rules he can be told to start paying immediately, so presumably the old case will be migrated? Or not?
Now he disputes paternity and goes to court for a determination. On 1st October the determination (as a result of a paternity test) is negative, and his payments so far for the 2nd child (of the 2nd wife) is refunded. What happens to the first case, which was migrated because of a new case that no longer exists?
6. How long does a new case have to run for?
Suppose a man is paying for a child under the old rules. On 1st April he gets a MEF for a new child by a new mother. The calculation is done by 1st May. The old case is migrated (either effective from 1st April or 1st May, see "3".
Now the new PWC stops the case on 1st June. Does the first case continue under the new rules?
7. Can an NRP keep an old case active to avoid restart under new rules?
If a PWC stops a case being run under old-rules, then applies again after 13 weeks, the case will start under new rules. But could the NRP (rather than the PWC) apply during that 13 week period to force the case to restart under old rules? (For example for one of the cases where the amount is more under the new scheme).
The CSA web site says: "The CSA can accept applications from parents with care, non-resident parents and other people caring for the qualifying child if all the people involved live in the United Kingdom".
It is tricky if the PWC refuses to cooperate. Cases where an NRP applies and the PWC doesn't co-operate aren't just closed. Current guidance is that the PWC should be interviewed to find out the reason why they won't comply and to be advised of the penalties for not co-operating.If they still don't comply then details have to be given to the advice unit to decide what should be done.
Apparently, prosecution for non-compliance is an option, though one that hasn't been used yet. A decision on what to do with cases where the PWC refuses to co-operate is still pending, though it has been agreed that any case where this situation applies will not be closed.
Under the old (existing) scheme, arrears can build up significantly. There are caps in place when paying them off - initially a 33% limit, but it can rise to 40% of net income. What happens under the new scheme? I haven't spotted anything in the legislation about arrears, for example defining the payment rules or any limit.
The idea is that arrears should normally be avoided, because it is intended to be able to make a calculation much faster, there are rules for default calculations, there are extra penalties for not paying, and "presumed parentage" to enable a calculation to be done in some cases of disputed parentage. But this won't eliminate cases where payments haven't been made that should have been, and where there will be some catching up to do. So what are the rules that define how much is paid?
On this web site there are nearly 40 sets of regulations (apart from the 2000 Act itself) for the new scheme, but it is hard to spot the rules on arrears.
|Page last updated: 17 January, 2004||© Copyright Barry Pearson 2003|