2000 Chapter 19

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These notes refer to the Child Support, Pensions and Social Security Act 2000
which received Royal Assent on 28th July 2000 (c.19)

Child Support, Pensions And Social Security Act

EXPLANATORY NOTES

INTRODUCTION

These explanatory notes relate to the Child Support, Pensions and Social Security Act which received Royal Assent on 28th July 2000. They have been prepared by the Department of Social Security in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

Structure of the notes

The notes start with a brief overview of the Act as a whole, outlining the different measures and setting them in context. The notes are then divided into five parts that provide the background to the changes and detailed commentary on the sections for each of the areas covered by the Act.

Terminology

At the end of the notes there is a glossary of some of the terms that are referred to in the notes. These are marked in the text with an asterisk. Social security benefits are referred to by their common names and abbreviations (for example, "Jobseeker's Allowance" or "JSA", rather than by the terms that appear in the legislation (for example, "a jobseeker's allowance").

Financial effects

Unless otherwise indicated, figures are expressed in 1999/2000 price terms.

CONTENTS

OVERVIEW OF THE ACT

PART 1: CHILD SUPPORT

PART II: PENSIONS

Chapter 1: State Pensions

• State Second Pension

• Earnings factors

• "Inherited SERPS"

• Other provisions

Chapter II: Occupational and Personal Pensions

Chapter III: War Pensions

PART III: SOCIAL SECURITY ADMINISTRATION

     Loss of benefit for breach of community order

     Investigation powers

     Housing Benefit and Council Tax Benefit

• Revisions and appeals

• Discretionary payments

• Recovery of housing benefit

     Child Benefit disregards

     Social Security Advisory Committee

PART IV: NATIONAL INSURANCE CONTRIBUTIONS

PART V: MISCELLANEOUS AND SUPPLEMENTAL

SCHEDULES

COMMENCEMENT

PARLIAMENTARY STAGES - HANSARD REFERENCES

GLOSSARY

OVERVIEW

Background to the Act

1. In March 1998, the Government set out its broad welfare reform agenda in the Green Paper entitled New ambitions for our country: A NEW CONTRACT FOR WELFARE (Cm 3805). The central principle espoused in the Green Paper was "work for those who can, and security for those who cannot."

2. Since then, the Government has legislated for a number of reforms in the Welfare Reform and Pensions Act 1999 and has published two main documents of relevance to this Act, to take forward that broad agenda:

• Green Paper A new contract for welfare: PARTNERSHIP IN PENSIONS (Cm 4179), published in December 1998. Some of the proposals for reform have already been taken forward in the Welfare Reform and Pensions Act 1999. These include the introduction of stakeholder pensions and changes to occupational and personal pensions.

• White Paper A new contract for welfare: CHILDREN'S RIGHTS AND PARENTS' RESPONSIBILITIES (Cm 4349), published on 1st July 1999.

3. In addition, the Government has reviewed the operation of the National Insurance system, the way in which the appeals system for War Pensions operates, enforcement of community punishments, and the powers held by fraud inspectors.

The measures in the Act

4. The main elements in the Act are:

Part I:

• reform of the child support system.

Part II:

• reform of the State Earnings-Related Pension Scheme by way of the State Second Pension;

• measures to extend sharing of pension provision on divorce and to facilitate improved pension information for individuals;

• further reform of the regulation of occupational and personal pensions; and

• measures to extend appeal rights for war pensioners and the introduction of new time limits.

Part III:

• measures to withdraw or reduce benefit entitlement where an offender has breached the terms of a community sentence;

• clarification and alignment of the powers of benefit fraud Inspectors which currently differ between different benefits and between DSS and local authority investigators; and

• measures to align the arrangements for decision-making and appeals in Housing Benefit and Council Tax Benefit with those applying to other social security benefits, and to remove the discretion of Local Authorities to recover overpayments of Housing Benefit resulting from tenant fraud from a landlord (other than in cases of collusion) where the landlord has reported the alleged fraud.

Part IV:

• aligning the treatment of benefits in kind for employers' National Insurance Contributions with their treatment for Income Tax purposes;

• facilitate remuneration through share option packages, enhancing employer's flexibility in rewarding employees.

PART 1: CHILD SUPPORT

BACKGROUND

The current system

5. The current system dates from 1993, established by the Child Support Act 1991 (the 1991 Act). In the preceding decade, while the number of children living in lone-parent families increased substantially, the proportion of children receiving maintenance fell - in 1989, 23% of lone parents claiming Income Support* were receiving maintenance, compared to around 50% in 1979. The new child support system was intended to reverse this decline, by providing consistent rules for assessing maintenance liability, and a readily accessible means for collecting and enforcing payment that was due.

6. The 1991 Act set out the structure of a maintenance formula for calculating child support liability. This formula, which took into account the income, housing costs and family responsibilities of both parents, replaced the largely discretionary decisions on maintenance taken by the courts. A system was built up around this formula, administered by the new Child Support Agency (CSA) to ensure the correct calculation of the liability, the collection of maintenance, and enforcement if payment was not forthcoming.

7. Further regulations and the Child Support Act 1995 (the 1995 Act) built upon the 1991 Act. In particular, the 1995 Act introduced the Child Maintenance Bonus, intended as an incentive to encourage parents with care into work, and also introduced the departures scheme which allowed for the assessment of child support liability to take account of exceptional circumstances not recognised in the formula-based assessment.

The proposals for reform

8. The Government's plans for reform of the current system are set out in the White Paper A new contract for welfare: CHILDREN'S RIGHTS AND PARENTS' RESPONSIBILITIES (Cm 4349) published on 1st July 1999. Proposals were first published in July 1998 in the consultation document CHILDREN FIRST: a new approach to child support (Cm 3992). Over 1500 written responses were received which have informed the current plans.

9. The White Paper identified a number of problems with the current system.

• While the CSA has almost 1.5 million children on its books, only around 300,000 gain financially from child support payments. Of these 300,000, only around 100,000 see the benefit of all the maintenance that is due.

• The complexity of the current formula leads to long delays in assessing liability. This in turn makes it difficult to ensure that child support is paid regularly. Because the assessment process is complex, the CSA has less time to help parents understand what they should pay or to chase up non-payment.

• Families living on Income Support do not gain from the payment of maintenance as their benefit is reduced by an amount equal to the maintenance paid.

10. The key changes proposed in the White Paper to address these issues were:

• simplification of the way in which child support liability is assessed by replacing the current complex assessment formula with a simple percentage of the non-resident parent's net income;

• the introduction of a child maintenance premium in Income Support and income-based Jobseeker's Allowance* that will enable families receiving these benefits to keep up to £10 a week of the maintenance paid for their children. Under current rules, maintenance reduces these benefits pound for pound;

• strengthening the sanctions regime by building on existing powers contained in the current scheme, and introducing new measures, to improve compliance;

• reform of the CSA's service to its customers by increasing use of the telephone and face-to-face contact, directing a greater proportion of its resources to making sure maintenance is paid on time and sorting out disputes about liability or payment arrangements as soon as possible and, wherever possible, without the need to refer the dispute to an appeal tribunal.

11. Not all of the proposed reforms require primary legislation. For example, the child maintenance premium can be introduced through amendments to the relevant secondary legislation. And, to implement the reforms, substantial changes to the way that the CSA operates will be necessary, including the introduction of new computer systems.

The measures in the Act

12. The provisions in the Act, which replace the existing formula with a simpler system of rates and clarify the responsibilities of parents, cover in particular:

• the processes for applying for child support and the way in which child support liability will be decided;

• the rates used for calculating maintenance liability, based on 15% of the non-resident parent's income for one child, 20% for two and 25% for three or more;

• what is to count as income;

• clear penalties for parents who deliberately misrepresent their circumstances to the CSA - and for those who refuse to provide the information needed to calculate liability and collect maintenance;

• the variation of the normal rate of maintenance liability to recognise certain exceptional costs and sources of income;

• rights to dispute and appeal decisions on child support liability and the processes by which liability will be kept up to date;

• financial and other penalties for late and non-payment;

• improvements to the provisions for establishing paternity;

• transitional provisions and phasing processes to allow movement from the existing scheme to the new scheme; and

• other matters such as:

• the relationship between court orders for child maintenance and the child support system;

• liability for certain non-resident parents living abroad;

• the introduction of fees for child support services when these reach an acceptable standard; and

• benefit penalties when a parent with care on Income Support opts out of child support arrangements without good cause.

COMMENTARY ON SECTIONS

Maintenance calculations and interim and default maintenance decisions

Section 1: Maintenance calculations and terminology

13. A central part of the Government's reform of the child support system is a new way of working out child support liability. In place of the existing formula, which includes a wide range of income and expenses in the assessment, will be a simpler system of rates, based solely on:

• the non-resident parent's* net income (taking into account a restricted range of potential income sources); and

• the number of children for whom the non-resident parent is responsible.

14. It is intended that the maintenance calculation should be based on one of three rates: a basic rate, a reduced rate or a flat rate.

• The general rule is that there should be a basic rate of liability based on a percentage of the non-resident parent's net weekly income. The percentages applied will depend on whether the non-resident parent is liable to pay maintenance for one, two or three or more children. Where the non-resident parent is also responsible for children living in his household (referred to as "relevant other children"), the basic rate is calculated by applying the percentages to the non-resident parent's net weekly income after this has been reduced to take account of the number of relevant other children.

• A reduced rate, which will be payable where the non-resident parent's net weekly income is more than £100 but less than £200.

• A flat rate, which will be payable if the non-resident parent's net weekly income is £100 or less or he receives a prescribed benefit, pension or allowance, or he or his partner receive any prescribed benefit. It is also intended that certain categories of non-resident parent (including those with a net weekly income below £5) will have a nil rate of liability.

15. The new calculation rules allow for apportionment of the liability where there is more than one person with care*. The provisions for apportionment of liability are in Schedule 1, paragraph 6. The rates can be modified in shared care cases, that is, if the non-resident parent has any child for whom he is liable to pay child support living with him for at least one night a week. Provision for shared care is set out in Schedule 1, paragraphs 7 to 9. Maintenance liability can also be varied in exceptional cases - the provisions for varying the liability are in sections 5 to 7 of this Act.

16. Sections 4 and 7 of the 1991 Act provide that persons with care, non-resident parents and, in Scotland, qualifying children, can apply for a maintenance calculation. Section 6 of that Act (substituted by section 3) provides that parents with care who claim Income Support or income-based Jobseeker's Allowance can be treated as having applied for a maintenance calculation. It is the duty of the Secretary of State to reach a decision on any application for which he has jurisdiction.

17. Sections 4(10) and 44 of the 1991 Act provide circumstances in which there is no jurisdiction. These provisions are amended by sections 2 and 22 of this Act.

18. Section 1 provides the basis for the maintenance calculation and the rates that will be used to determine maintenance liability.

19. Subsection (1) substitutes a new section 11 (dealing with the rules for maintenance calculations) in the 1991 Act.

New section 11: Maintenance calculations

20. This section places a duty on the Secretary of State to make a maintenance calculation. It provides, for the purposes of revision, supersession and appeal, that the outcome of the calculation is a decision about whether child support maintenance is payable.

21. New section 11(1) and (2) provide that the Secretary of State shall deal with an application for a maintenance calculation in accordance with the Act and make a decision about whether, and how much, child maintenance is payable, or decide not to make a calculation, or make a decision under section 12.

22. New section 11(3) to (5) allow the Secretary of State to stop acting on an application treated as made under section 6(3) if the parent with care ceases to fall within section 6(1). (Section 6(3) of the 1991 Act is substituted by section 3 of this Act. It provides that a parent with care who claims or receives Income Support or income-based Jobseeker's Allowance can be treated as having applied for a maintenance calculation). However, if the parent with care still wants to apply for a maintenance calculation (in other words she wants it treated as though she has applied under section 4 of the 1991 Act) and there is no court order or pre-1993 written maintenance agreement* in place preventing this, then she has one month to respond to the letter telling her that the Secretary of State intends to stop acting. Where the parent with care is content for the Secretary of State to stop acting on her application, but the non-resident parent has already been contacted, then the non-resident parent must be notified. If the parent with care is herself prevented from applying under section 4 then she must be notified of this. These provisions mirror subsections (1A), (1B) and (1C) of the existing section 11.

23. New section 11(6) provides that the amount of a maintenance calculation shall be fixed by the rates set out in Part I of Schedule 1.

24. New section 11(7) provides for maintenance where a variation has been agreed to. New section 11(8) refers to Part II of Schedule 1.

25. Subsection (2) of section 1 amends the 1991 Act to replace existing child support terminology, where it appears in the 1991 Act, with the new terminology to be used in the reformed child support scheme.

• Maintenance calculation will replace maintenance assessment.

• Calculation will replace assessment wherever it occurs in connection with an assessment of maintenance.

26. Subsection (3) introduces a new Part I of Schedule 1 to the 1991 Act.

Schedule 1: Calculation of weekly amount of child support maintenance

27. This Schedule replaces Part I of Schedule 1 to the 1991 Act with a new provision that sets out the way that the weekly amount of child support maintenance will be calculated.

Paragraph 1: General rule

28. This paragraph provides the foundation on which child support liability is based.

Sub-paragraph (1) provides for child support liability to be calculated at the basic rate except where rules provide that a reduced rate, flat rate or nil rate liability is appropriate. These terms are explained in paragraphs 2, 3, 4 and 5.

Sub-paragraph (2) provides for the amount payable to the parent with care to be the amount calculated using the appropriate (applicable) rate or, where there is more than one parent with care, a proportion of that amount (see paragraph 6) in either case, reduced as necessary where the non-resident parent shares the care of a qualifying child* (see paragraphs 7 to 9).

Paragraph 2: Basic rate

29. This paragraph provides the rules for determining the basic rate for child support liability.

Sub-paragraph (1) provides for the basic rate to be calculated at a set percentage of the non-resident parent's net income. Where the non-resident parent is liable for maintenance for one qualifying child, the basic rate is 15%. For two children, the basic rate is 20% and for three or more children, the basic rate is 25%.

Sub-paragraph (2) provides for the non-resident parent's net income to be reduced by 15%, 20% or 25% before the provisions of sub-paragraph (1) are applied, where he has one, two or three or more children living with him (relevant other children).

Paragraph 3: Reduced rate

30. This paragraph provides the rules for determining which non-resident parents will have a liability calculated at the reduced rate.

Sub-paragraph (1) provides that a reduced rate is payable where the non-resident parent's net income is less than £200 but more than £100, unless the non-resident parent is liable for the nil rate or flat rate of liability.

Sub-paragraph (2) provides for the reduced rate (or its method of calculation) to be prescribed in regulations. The intention is that regulations will provide for percentages to be applied to net income so that liability increases in proportion to the amount by which net income exceeds £100.

Paragraph 4: Flat rate

31. This paragraph provides the rules for determining which non-resident parents will have a flat rate liability.

Sub-paragraph (1) provides for the flat rate to apply where the non-resident parent has net weekly income of £100 or less; or he is in receipt of a prescribed social security benefit, pension or allowance, or he or his partner (if any) is in receipt of prescribed benefits. The flat rate is not payable in a case where a non-resident parent has a nil liability (see paragraph 5).

Sub-paragraph (2) provides for the flat rate to be payable at a different amount where the non-resident parent has one or more partners who are also liable to pay child support, and either the non-resident parent or his partner is in receipt of a prescribed benefit (intended to be Income Support or income-based Jobseeker's Allowance). For example, in a case where both members of a couple in receipt of Income Support are non-resident parents, it is intended to provide for the non-resident parent's liability to be one half of the flat rate amount.

Sub-paragraph (3) provides for the prescribed social security benefits, pensions and allowances in sub-paragraph (1)(b) to include those paid to non-resident parents under the law of countries other than those in the United Kingdom, for example a state retirement pension paid to an EU national.

Paragraph 5: Nil rate

32. This paragraph provides that the non-resident parent will be liable for a nil rate where he has a net income of below £5 or is of a prescribed description. It is intended to prescribe full time students in advanced education and prisoners among the categories for this purpose.

Paragraph 6: Apportionment

33. The provisions of this paragraph deal with cases where there is more than one person with care and more than one qualifying child in respect of the same non-resident parent. In these circumstances, the maintenance liability of the non-resident parent will be apportioned between the persons with care. The non-resident parent's liability is divided by the number of qualifying children and then shared between the parents with care in proportion to the number of qualifying children in each family.

Paragraph 7: Shared care - basic and reduced rate

34. The provisions of this paragraph set out the rules for adjusting maintenance liability where the non-resident parent shares the care of a qualifying child (see paragraph 15) and the maintenance liability is calculated at the basic or reduced rate.

Sub-paragraph (1) restricts a reduction in liability for shared care under this paragraph to maintenance payable at the basic or reduced rate. Paragraph 8 (see below) provides for the effect of shared care on a flat-rate liability.

Sub-paragraphs (2) to (4) provide that where the non-resident parent has overnight care of the child for at least 52 nights in total during a prescribed 12 month period, the amount payable to the parent with care of that child will be decreased by one-seventh for care on 52 to 103 nights, two sevenths for care on 104 to 155 nights, three-sevenths for care on 156 to 174 nights and one-half for care on 175 or more nights. Where a period of 12 months is not available, paragraph 9 allows the Secretary of State to make regulations giving him flexibility to use a period other than 12 months.

Sub-paragraph (5) provides that where the parent with care is caring for more than one qualifying child of the same non-resident parent then the reduction will be the sum of the relevant fractions divided by the number of such qualifying children. For example, where the non-resident parent shares the care of two children, one for an average of one night a week, and the other for an average of two nights a week, his liability is reduced by 3/14ths.

Sub-paragraph (6) provides for the maintenance liability to be reduced by a further £7 for each qualifying child for whom care is equally shared.

Sub-paragraph (7) restricts the amount by which the provisions of this paragraph can reduce liability so that the non-resident parent cannot have a liability of less than £5. Where there is more than one person with care and more than one qualifying child in respect of the same non-resident parent, this sum will be apportioned between the persons with care in accordance with the provisions of paragraph 6.

Paragraph 8: Shared care - flat rate

35. The provisions of this paragraph apply where the non-resident parent has a flat rate liability because he is in receipt of a prescribed social security benefit, pension or allowance or he or his partner are in receipt of prescribed benefits or he or his partner receive prescribed benefits and both are non-resident parents.

Sub-paragraph (2) provides that where a non-resident parent shares the care of a qualifying child for at least 52 nights in total during a prescribed 12 month period, his liability to the parent with care of that child will be nil. However, his liability to any other parent with care to whom he is liable to pay maintenance will remain.