Office of Public Sector Information
(1) Any function under the Child Support Act 1991 which—
(a) is a function of the Secretary of State, and
(b) is not an excepted function,
is by virtue of this subsection transferred to the Commission.
(2) The following functions of the Secretary of State under the Child Support Act 1991 are excepted functions for the purposes of subsection (1)—
(a) functions under sections 23A, 24 or 25 (appeals),
(b) functions under section 46 (reduced benefit decisions) or any other provision of the Act, so far as relating to such decisions,
(c) the function under section 50(7)(c) (authorisation of a person as a “responsible person” for the purposes of section 50),
(d) functions under section 58 (commencement power and power to make consequential amendments),
(e) the function under paragraph 2A of Schedule 4 (payment of expenses), and
(f) power to make regulations under any other provision of the Act.
(3) The functions of the Secretary of State under the provisions of subordinate legislation specified in Schedule 2, except so far as relating to reduced benefit decisions under section 46 of the Child Support Act 1991, are by virtue of this subsection transferred to the Commission.
(4) Schedule 3 (which makes consequential amendments and transitional provision and savings) has effect.
(1) The Secretary of State may make one or more schemes for the transfer to the Commission of any of the following—
(a) property, rights and liabilities which the Secretary of State is entitled or subject to in connection with the transferred functions;
(b) property, rights and liabilities which the Secretary of State is entitled or subject to and which the Secretary of State considers it appropriate to transfer to the Commission in consequence of any function conferred on it by or under Part 1 of this Act.
(2) A scheme under subsection (1) (“a transfer scheme”)—
(a) may provide for the transfer of property, rights and liabilities whether or not they would otherwise be capable of being transferred or assigned;
(b) may create for the Secretary of State interests in or rights over property transferred by virtue of the scheme;
(c) may create for the Commission interests in or rights over property retained by the Secretary of State;
(d) may create rights or liabilities between the Secretary of State and the Commission;
(e) may make such supplementary, incidental, consequential or transitional provision or savings as the Secretary of State considers appropriate.
(3) A transfer scheme shall come into force in accordance with its terms.
(4) A certificate given by the Secretary of State that any property, rights or liabilities have been transferred by virtue of a transfer scheme is conclusive evidence of the transfer.
(5) In this section, “transferred functions” means functions transferred to the Commission by virtue of section 13.
The following provisions of the Child Support Act 1991 (c. 48) cease to have effect—
(a) section 6 (under which the claim of benefit by or in respect of a parent with care, or the payment of benefit to or in respect of such a person, triggers an application by her or him for child support maintenance), and
(b) section 46 (which enables the Secretary of State in certain circumstances to reduce the benefit of a person in relation to whom section 6 triggers the making of an application for child support maintenance).
Schedule 4 (which makes various changes to the provisions about the calculation of maintenance) has effect.
In section 17 of the Child Support Act 1991 (c. 48) (decisions superseding earlier decisions), for subsections (2) and (3) substitute—
“(2) The Secretary of State may by regulations make provision with respect to the exercise of the power under subsection (1).
(3) Regulations under subsection (2) may, in particular—
(a) make provision about the cases and circumstances in which the power under subsection (1) is exercisable, including provision restricting the exercise of that power by virtue of change of circumstance;
(b) make provision with respect to the consideration by the Commission, when acting under subsection (1), of any issue which has not led to its so acting;
(c) make provision with respect to procedure in relation to the exercise of the power under subsection (1).”
(1) Section 28D of the Child Support Act 1991 is amended as follows.
(2) After subsection (2) insert—
“(2A) Subsection (2B) applies if—
(a) the application for a variation is made by the person with care or (in the case of an application for a maintenance calculation under section 7) the person with care or the child concerned, and
(b) it appears to the Commission that consideration of further information or evidence may affect its decision under subsection (1)(a) whether or not to agree to a variation.
(2B) Before making the decision under subsection (1)(a) the Commission must—
(a) consider any such further information or evidence that is available to it, and
(b) where necessary, take such steps as the Commission considers appropriate to obtain any such further information or evidence.”
(3) In subsection (3), after “duties” insert “, apart from the duty under subsection (2B)”.
Schedule 5 (which makes provision for, and in connection with, enabling the Commission to require existing cases to transfer to the new maintenance calculation rules or to leave the statutory scheme, so far as future accrual of liability is concerned) has effect.
In section 29 of the Child Support Act 1991 (c. 48) (under which payments of child support maintenance are to be made in accordance with regulations) at the end insert—
“(4) If the regulations include provision for payment by means of deduction in accordance with an order under section 31, they must make provision—
(a) for that method of payment not to be used in any case where there is good reason not to use it; and
(b) for the person against whom the order under section 31 would be made to have a right of appeal to a magistrates' court (or, in Scotland, to the sheriff) against a decision that the exclusion required by paragraph (a) does not apply.
(5) On an appeal under regulations made under subsection (4)(b) the court or (as the case may be) the sheriff shall not question the maintenance calculation by reference to which the order under section 31 would be made.
(6) Regulations under subsection (4)(b) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of a magistrates' court (or, in Scotland, of the sheriff) in relation to an appeal under the regulations.
(7) If the regulations include provision for payment by means of deduction in accordance with an order under section 31, they may make provision—
(a) prescribing matters which are, or are not, to be taken into account in determining whether there is good reason not to use that method of payment;
(b) prescribing circumstances in which good reason not to use that method of payment is, or is not, to be regarded as existing.”
In section 31 of the Child Support Act 1991 (deduction from earnings orders), for subsection (8) substitute—
“(8) In this section and section 32 “earnings” means (subject to such exceptions as may be prescribed) any sums payable to a person which fall within one or more of the following paragraphs—
(a) sums payable by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service);
(b) periodical payments by way of pension (including an annuity payable for the purpose of providing a pension), whether or not in respect of past services;
(c) periodical payments by way of compensation for the loss, abolition or relinquishment, or diminution in the emoluments, of any office or employment;
(d) sums payable by way of statutory sick pay.
(9) For the purposes of this section and section 32 any person who (as a principal and not as a servant or agent) pays to the liable person any earnings is to be treated as having the liable person in his employment; and the following are to be read accordingly—
(a) in this section and section 32, references to the liable person’s employer; and
(b) in section 32(3), “employment”, “employed” and “re-employed”.”
After section 32 of the Child Support Act 1991 (c. 48) insert—
(1) If in relation to any person it appears to the Commission—
(a) that the person has failed to pay an amount of child support maintenance; and
(b) that the person holds an account with a deposit-taker;
it may make an order against that person to secure the payment of any amount due under the maintenance calculation in question by means of regular deductions from the account.
(2) An order under this section may be made so as to secure the payment of—
(a) arrears of child support maintenance payable under the calculation;
(b) amounts of child support maintenance which will become payable under the calculation; or
(c) both such arrears and such future amounts.
(3) An order under this section may be made in respect of amounts due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amounts would not be affected were the appeal to succeed; or
(b) where paragraph (a) does not apply, that the making of an order under this section in respect of the amounts would nonetheless be fair in all the circumstances.
(4) An order under this section—
(a) may not be made in respect of an account of a prescribed description; and
(b) may be made in respect of a joint account which is held by the person against whom the order is made and one or more other persons, and which is not of a description prescribed under paragraph (a), if (but only if) regulations made by the Secretary of State so provide.
(5) An order under this section—
(a) shall specify the account in respect of which it is made;
(b) shall be expressed to be directed at the deposit-taker with which the account is held; and
(c) shall have effect from such date as may be specified in the order.
(6) An order under this section shall operate as an instruction to the deposit-taker at which it is directed to—
(a) make deductions from the amount (if any) standing to the credit of the account specified in the order; and
(b) pay the amount deducted to the Commission.
(7) The Commission shall serve a copy of any order made under this section on—
(a) the deposit-taker at which it is directed;
(b) the person against whom it is made; and
(c) if the order is made in respect of a joint account, the other account-holders.
(8) Where—
(a) an order under this section has been made; and
(b) a copy of the order has been served on the deposit-taker at which it is directed,
it shall be the duty of that deposit-taker to comply with the order; but the deposit-taker shall not be under any liability for non-compliance before the end of the period of 7 days beginning with the day on which the copy was served on the deposit-taker.
(9) Where regulations have been made under section 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this section to have failed to pay an amount of child support maintenance unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.
(1) Before making an order under section 32A in respect of a joint account the Commission shall offer each of the account-holders an opportunity to make representations about—
(a) the proposal to make the order; and
(b) the amounts to be deducted under the order, if it is made.
(2) The amounts to be deducted from a joint account under such an order shall not exceed the amounts that appear to the Commission to be fair in all the circumstances.
(3) In determining those amounts the Commission shall have particular regard to—
(a) any representations made in accordance with subsection (1)(b);
(b) the amount contributed to the account by each of the account-holders; and
(c) such other matters as may be prescribed.
(1) The Secretary of State may by regulations make provision with respect to orders under section 32A.
(2) Regulations under subsection (1) may, in particular, make provision—
(a) requiring an order to specify the amount or amounts in respect of which it is made;
(b) requiring an order to specify the amounts which are to be deducted under it in order to meet liabilities under the maintenance calculation in question;
(c) requiring an order to specify the dates on which deductions are to be made under it;
(d) for the rate of deduction under an order not to exceed such rate as may be specified in, or determined in accordance with, the regulations;
(e) as to circumstances in which amounts standing to the credit of an account are to be disregarded for the purposes of section 32A;
(f) as to the payment of sums deducted under an order to the Commission;
(g) allowing the deposit-taker at which an order is directed to deduct from the amount standing to the credit of the account specified in the order a prescribed amount towards its administrative costs before making any deduction required by section 32A(6)(a);
(h) with respect to notifications to be given to the person against whom an order is made (and, in the case of an order made in respect of a joint account, to the other account-holders) of amounts deducted, and amounts paid, under the order;
(i) requiring the deposit-taker at which an order is directed to notify the Commission in the prescribed manner and within a prescribed period—
(i) if the account specified in the order does not exist at the time at which the order is served on the deposit-taker;
(ii) of any other accounts held with the deposit-taker at that time by the person against whom the order is made;
(j) requiring the deposit-taker at which an order is directed to notify the Commission in the prescribed manner and within a prescribed period if, after the time at which the order is served on the deposit-taker—
(i) the account specified in the order is closed;
(ii) a new account of any description is opened with the deposit-taker by the person against whom the order is made;
(k) as to circumstances in which the deposit-taker at which an order is directed, the person against whom the order is made and (in the case of an order made in respect of a joint account) the other account-holders may apply to the Commission for it to review the order and as to such a review;
(l) for the variation of orders;
(m) similar to that made by section 32A(8), in relation to any variation of an order;
(n) for an order to lapse in such circumstances as may be prescribed;
(o) as to the revival of an order in such circumstances as may be prescribed;
(p) allowing or requiring an order to be discharged;
(q) as to the giving of notice by the Commission to the deposit-taker that an order has lapsed or ceased to have effect.
(3) The Secretary of State may by regulations make provision with respect to priority as between an order under section 32A and—
(a) any other order under that section;
(b) any order under any other enactment relating to England and Wales which provides for deductions from the same account;
(c) any diligence done in Scotland against the same account.
(4) The Secretary of State shall by regulations make provision for any person affected to have a right to appeal to a court—
(a) against the making of an order under section 32A;
(b) against any decision made by the Commission on an application under regulations made under subsection (2)(k).
(5) On an appeal under regulations made under subsection (4)(a), the court shall not question the maintenance calculation by reference to which the order was made.
(6) Regulations under subsection (4) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of the court to which the appeal under the regulations lies.
(1) A person who fails to comply with the requirements of—
(a) an order under section 32A, or
(b) any regulation under section 32C which is designated by the regulations for the purposes of this paragraph,
commits an offence.
(2) It shall be a defence for a person charged with an offence under subsection (1) to prove that the person took all reasonable steps to comply with the requirements in question.
(3) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level two on the standard scale.”
After section 32D of the Child Support Act 1991 (c. 48) (inserted by section 22 of this Act) insert—
(1) The Commission may make an order under this section if it appears to the Commission that a person (referred to in this section and sections 32F to 32J as “the liable person”) has failed to pay an amount of child support maintenance and—
(a) an amount stands to the credit of an account held by the liable person with a deposit-taker; or
(b) an amount not within paragraph (a) that is of a prescribed description is due or accruing to the liable person from another person (referred to in this section and sections 32F to 32J as the “third party”).
(2) An order under this section—
(a) may not be made by virtue of subsection (1)(a) in respect of an account of a prescribed description; and
(b) may be made by virtue of subsection (1)(a) in respect of a joint account which is held by the liable person and one or more other persons, and which is not of a description prescribed under paragraph (a) of this subsection, if (but only if) regulations made by the Secretary of State so provide.
(3) The Secretary of State may by regulations make provision as to conditions that are to be disregarded in determining whether an amount is due or accruing to the liable person for the purposes of subsection (1)(b).
(4) An order under this section—
(a) shall be expressed to be directed at the deposit-taker or third party in question;
(b) if made by virtue of subsection (1)(a), shall specify the account in respect of which it is made; and
(c) shall specify the amount of arrears of child support maintenance in respect of which the Commission proposes to make an order under section 32F.
(5) An order under this section may specify an amount of arrears due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amount would not be affected were the appeal to succeed; or
(b) where paragraph (a) does not apply, that the making of an order under section 32F in respect of the amount would nonetheless be fair in all the circumstances.
(6) The Commission shall serve a copy of any order made under this section on—
(a) the deposit-taker or third party at which it is directed;
(b) the liable person; and
(c) if the order is made in respect of a joint account, the other account-holders.
(7) An order under this section shall come into force at the time at which it is served on the deposit-taker or third party at which it is directed.
(8) An order under this section shall cease to be in force at the earliest of the following—
(a) the time at which the prescribed period ends;
(b) the time at which the order under this section lapses or is discharged; and
(c) the time at which an order under section 32F made in pursuance of the proposal specified in the order under this section is served on the deposit-taker or third party at which that order is directed.
(9) Where regulations have been made under section 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this section to have failed to pay the amount unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.
(1) The Commission may make an order under this section in pursuance of a proposal specified in an order under section 32E if—
(a) the order in which the proposal was specified (“the interim order”) is in force;
(b) the period prescribed for the making of representations to the Commission in respect of the proposal specified in the interim order has expired; and
(c) the Commission has considered any representations made to it during that period.
(2) An order under this section—
(a) shall be expressed to be directed at the deposit-taker or third party at which the interim order was directed;
(b) if the interim order was made by virtue of section 32E(1)(a), shall specify the account specified in the interim order; and
(c) shall specify the amount of arrears of child support maintenance in respect of which it is made.
(3) The amount so specified—
(a) shall not exceed the amount of arrears specified in the interim order which remain unpaid at the time at which the order under this section is made; and
(b) if the order is made in respect of a joint account, shall not exceed the amount that appears to the Commission to be fair in all the circumstances.
(4) In determining the amount to be specified in an order made in respect of a joint account the Commission shall have particular regard—
(a) to the amount contributed to the account by each of the account-holders; and
(b) to such other matters as may be prescribed.
(5) An order under this section may specify an amount of arrears due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amount would not be affected were the appeal to succeed; or
(b) where paragraph (a) does not apply, that the making of an order under this section in respect of the amount would nonetheless be fair in all the circumstances.
(6) The Commission shall serve a copy of any order made under this section on—
(a) the deposit-taker or third party at which it is directed;
(b) the liable person; and
(c) if the order is made in respect of a joint account, the other account-holders.
(1) During the relevant period, an order under section 32E or 32F which specifies an account held with a deposit-taker shall operate as an instruction to the deposit-taker not to do anything that would reduce the amount standing to the credit of the account below the amount specified in the order (or, if already below that amount, that would further reduce it).
(2) During the relevant period, any other order under section 32E or 32F shall operate as an instruction to the third party at which it is directed not to do anything that would reduce the amount due to the liable person below the amount specified in the order (or, if already below that amount, that would further reduce it).
(3) Subsections (1) and (2) have effect subject to regulations made under section 32I(1).
(4) In this section “the relevant period”, in relation to an order under section 32E, means the period during which the order is in force.
(5) In this section and section 32H “the relevant period”, in relation to an order under section 32F, means the period which—
(a) begins with the service of the order on the deposit-taker or third party at which it is directed; and
(b) (subject to subsection (6)) ends with the end of the period during which an appeal can be brought against the order by virtue of regulations under section 32J(5).
(6) If an appeal is brought by virtue of the regulations, the relevant period ends at the time at which—
(a) proceedings on the appeal (including any proceedings on a further appeal) have been concluded; and
(b) any period during which a further appeal may ordinarily be brought has ended.
(7) References in this section and sections 32H and 32J to the amount due to the liable person are to be read as references to the total of any amounts within section 32E(1)(b) that are due or accruing to the liable person from the third party in question.
(1) Once the relevant period has ended, an order under section 32F which specifies an account held with a deposit-taker shall operate as an instruction to the deposit-taker—
(a) if the amount standing to the credit of the account is less than the remaining amount, to pay to the Commission the amount standing to the credit of the account; and
(b) otherwise, to deduct from the account and pay to the Commission the remaining amount.
(2) If an amount of arrears specified in the order remains unpaid after any payment required by subsection (1) has been made, the order shall operate until the relevant time as an instruction to the deposit-taker—
(a) to pay to the Commission any amount (not exceeding the remaining amount) standing to the credit of the account specified in the order; and
(b) not to do anything else that would reduce the amount standing to the credit of the account.
Child Maintenance and Other Payments Act 2008