The Child Support (Variations) Regulations (Northern Ireland) 2001

Statutory Rule 2001 No. 20

The Child Support (Variations) Regulations (Northern Ireland) 2001

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STATUTORY RULES OF NORTHERN IRELAND

2001 No. 20
FAMILY LAW
CHILD SUPPORT
The Child Support (Variations) Regulations (Northern Ireland) 2001

	Made	23rd January 2001
	Approved by resolution of the Assembly on	29th May 2001
	Coming into operation in accordance with regulation 1(1)

The Department for Social Development, in exercise of the powers conferred by Articles 28A(5), 28B(2)(c), 28C(2)(b) and (5), 28E(1) and (5), 28F(2)(b) and (3)(b), 28G(3), 47 and 48(4) of, and paragraphs 1, 2(a), 4 and 5(1) of Schedule 4A and paragraphs 2(2) to (5), 3(1) and (2), 4, 5(1) and (3) to (5) and 6 of Schedule 4B to, the Child Support (Northern Ireland) Order 1991[1] and now vested in it[2], and of all other powers enabling it in that behalf, hereby makes the following Regulations:

Part I
General
Citation, commencement and interpretation
1. - (1) These Regulations may be cited as the Child Support (Variations) Regulations (Northern Ireland) 2001 and shall come into operation in relation to a particular case on the day on which section 5 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000[3] is commenced in relation to that type of case.

(2) In these Regulations -

"the Order" means the Child Support (Northern Ireland) Order 1991;

"couple" has the same meaning as in paragraph 10C(5) of Schedule 1 to the Order;

"date of notification" means the date upon which notification is given in person or communicated by telephone to the recipient or, where this is not possible, the date of posting;

"date of receipt" means the day on which the information or document is actually received;

"home" has the meaning given in regulation 1(2) of the Maintenance Calculations and Special Cases Regulations;

"qualifying child" means the child with respect to whom the maintenance calculation falls to be made;

"relevant person" means -

Documents
2. - (1) Except where otherwise stated, where -

(a) any document is given or sent to the Department, that document shall be treated as having been so given or sent on the date of receipt by the Department; and

(b) any document is given or sent to any other person, that document shall, if sent by post to that person's last known or notified address, be treated as having been given or sent on the date that it is posted.

Determination of amounts
3. - (1) Where any amount is required to be determined for the purposes of these Regulations, it shall be determined as a weekly amount and, except where the context otherwise requires, any reference to such an amount shall be construed accordingly.

(2) Where any calculation made under these Regulations results in a fraction of a penny, that fraction shall be treated as a penny if it is either one half or exceeds one half and shall be otherwise disregarded.

(c) a request under regulation 8 has not been complied with by the applicant and the Department is not able to determine the application without the information requested; or

(d) the Department is satisfied, on the information or evidence available to it, that the application would not be agreed to, including where, although a ground is stated, the facts alleged in the application would not bring the case within the prescription of the relevant ground in these Regulations.

Prescribed circumstances
7. - (1) This regulation applies where an application for a variation is made under Article 28G of the Order and -

(a) the application is made by a relevant person and a circumstance set out in paragraph (2) applies at the relevant date;

(b) the application is made by a non-resident parent and a circumstance set out in paragraph (3) or (4) applies at the relevant date;

(c) the application is made by a person with care, on a ground in paragraph 4 of Schedule 4B to the Order (additional cases) and a circumstance set out in paragraph (5) applies at the relevant date; or

(d) the application is made by a non-resident parent on a ground in paragraph 2 of Schedule 4B to the Order (special expenses) and a circumstance set out in paragraph (6) applies at the relevant date.

(2) The circumstances for the purposes of this paragraph are that -

(a) a default maintenance decision is in force with respect to the non-resident parent;

(b) the non-resident parent is liable to pay the flat rate of child support maintenance owing to the application of paragraph 4(1)(c) of Schedule 1 to the Order, or would be so liable but is liable to pay less than that amount, or nil, owing to the application of paragraph 8 of Schedule 1 to the Order, or the Transitional Regulations; or

(c) the non-resident parent is liable to pay child support maintenance at a flat rate of a prescribed amount owing to the application of paragraph 4(2) of Schedule 1 to the Order, or would be so liable but is liable to pay less than that amount, or nil, owing to the application of paragraph 8 of Schedule 1 to the Order, or the Transitional Regulations.

(3) The circumstances for the purposes of this paragraph are that the non-resident parent is liable to pay child support maintenance -

(a) at the nil rate owing to the application of paragraph 5 of Schedule 1 to the Order;

(b) at a flat rate owing to the application of paragraph 4(1)(a) of Schedule 1 to the Order, including where the net weekly income of the non-resident parent which is taken into account for the purposes of a maintenance calculation in force in respect of him is �100 per week or less owing to a variation being taken into account or to the application of regulation 18, 19 or 21of the Transitional Regulations (reduction for relevant departure direction or relevant property transfer); or

(c) at a flat rate owing to the application of paragraph 4(1)(b) of Schedule 1 to the Order, or would be so liable but is liable to pay less than that amount, or nil, owing to the application of paragraph 8 of Schedule 1 to the Order, or the Transitional Regulations.

(4) The circumstances for the purposes of this paragraph are that the non-resident parent is liable to pay an amount of child support maintenance at a rate -

(a) of �5 per week or such other amount as may be prescribed owing to the application of paragraph 7(7) of Schedule 1 to the Order (shared care); or

(b) equivalent to the flat rate provided for in, or prescribed for the purposes of, paragraph 4(1)(b) of Schedule 1 to the Order owing to the application of -

(5) The circumstances for the purposes of this paragraph are that -

(a) the amount of the net weekly income of the non-resident parent to which the Department had regard when making the maintenance calculation was the capped amount; or

(b) the non-resident parent or a partner of his is in receipt of working families' tax credit (as defined in section 127 of the Contributions and Benefits Act[

    (6) The circumstances for the purposes of this paragraph are that the amount of the net weekly income of the non-resident parent to which the Department would have regard after deducting the amount of the special expenses would exceed the capped amount.

    (7) For the purposes of paragraph (1), the "relevant date" means the date from which, if the variation were agreed, the decision under Article 18 or 19 of the Order, as the case may be, would take effect.

Provision of information
     8. - (1) Where an application has been duly made, the Department may request further information or evidence from the applicant to enable that application to be determined and any such information or evidence requested shall be provided within one month of the date of notification of the request or such longer period as the Department is satisfied is reasonable in the circumstances of the case.

    (2) Where any information or evidence requested in accordance with paragraph (1) is not provided in accordance with the time limit specified in that paragraph, the Department may, where it is able to do so, proceed to determine the application in the absence of the requested information or evidence.

Procedure in relation to the determination of an application
     9. - (1) Subject to paragraph (3), where the Department has given a preliminary consideration to an application and not rejected it the Department -

(a) shall give notice of the application to the relevant persons other than the applicant, informing them of the grounds on which the application has been made and any relevant information or evidence the applicant has given, except information or evidence falling within paragraph (2);

(b) may invite representations, which need not be in writing but shall be in writing if in any case it so directs, from the relevant persons other than the applicant on any matter relating to that application, to be submitted to the Department within 14 days of the date of notification or such longer period as the Department is satisfied is reasonable in the circumstances of the case; and

(c) shall set out the provisions of paragraphs (2)(b) and (c), (4) and (5) in relation to such representations.

(2) The information or evidence referred to in paragraphs (1)(a), (4)(a) and (7), are -

(a) details of the nature of the long-term illness or disability of the relevant other child which forms the basis of a variation application on the ground in regulation 11 where the applicant requests they should not be disclosed and the Department is satisfied that disclosure is not necessary in order to be able to determine the application;

(b) medical evidence or medical advice which has not been disclosed to the applicant or a relevant person and which the Department considers would be harmful to the health of the applicant or that relevant person if disclosed to him; or

(c) the address of a relevant person or qualifying child, or any other information which could reasonably be expected to lead to that person or child being located, where the Department considers that there would be a risk of harm or undue distress to that person or that child or any other children living with that person if the address or information were disclosed.

(3) The Department need not act in accordance with paragraph (1) -

(a) where regulation 29 applies (variation may be taken into account notwithstanding that no application has been made);

(b) where the variation agreed is one falling within paragraph 3 of Schedule 4B to the Order (property or capital transfers), the Department ceases to have jurisdiction to make a maintenance calculation and subsequently acquires jurisdiction in respect of the same non-resident parent, person with care and any child in respect of whom the earlier calculation was made;

(c) if the Department is satisfied on the information or evidence available to it that the application would not be agreed to, but if, on further consideration of the application, the Department is minded to agree to the variation it shall, before doing so, comply with the provisions of this regulation; or

(d) where -

(i) a variation has been agreed in relation to a maintenance calculation;

(ii) the decision as to the maintenance calculation is replaced with a default maintenance decision under Article 14(1)(b) of the Order[

and the Department is satisfied, on the information or evidence available to it, that there has been no material change of circumstances relating to the variation since the date from which the maintenance calculation referred to in head (i) ceased to have effect.

(4) Where the Department receives representations from the relevant persons -

    (5) Where the Department has not received representations from the relevant persons notified in accordance with paragraph (1), within the time limit specified in sub-paragraph (b) of that paragraph, it may proceed to agree or not, as the case may be, to a variation in their absence.

    (6) In considering an application for a variation, the Department shall take into account any representations received at the date upon which it agrees or not, as the case may be, to the variation from the relevant persons, including any representation received in accordance with paragraphs (1)(b), (4)(a) and (7).

    (7) Where any information or evidence requested by the Department under regulation 8 is received after notification has been given under paragraph (1), the Department may, if it considers it reasonable to do so, and except where such information or evidence falls within paragraph (2), send a copy of such information or evidence to the relevant persons and may invite them to submit representations, which need not be in writing unless the Department so directs in any particular case, on that information or evidence.

    (8) The Department may, if it considers it appropriate, treat an application for a variation made on one ground as if it were an application made on a different ground, and, if it does intend to do so, it shall include this information in the notice and invitation to make representations referred to in paragraphs (1), (4) and (7).

    (9) Two or more applications for a variation with respect to the same maintenance calculation or application for a maintenance calculation, made or treated as made, may be considered together.

Part III
Special Expenses
Special expenses - contact costs
10. - (1) Subject to paragraphs (2) to (5) and regulation 15, the following costs incurred or reasonably expected to be incurred by the non-resident parent, whether in respect of himself or the qualifying child or both, for the purpose of maintaining contact with that child, shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order -

(2) The costs to which paragraph (1) applies include the cost of a person to travel with the non-resident parent or the qualifying child, if the Department is satisfied that the presence of another person on the journey, or part of the journey, is necessary including, but not limited to, where it is necessary because of the young age of the qualifying child or the disability or long-term illness of the non-resident parent or that child.

(3) The costs referred to in paragraphs (1) and (2) -

(b) shall be -

    (4) For the purposes of this regulation, costs of contact shall not include costs which relate to periods where the non-resident parent has care of a qualifying child overnight as part of a shared care arrangement for which provision is made under paragraphs 7 and 8 of Schedule 1 to the Order and regulation 7 of the Maintenance Calculations and Special Cases Regulations.

    (5) Where the non-resident parent has at the date he makes the variation application received, or at that date is in receipt of, or where he will receive, any financial assistance, other than a loan, from any source to meet, wholly or in part, the costs of maintaining contact with a child as referred to in paragraph (1), only the amount of the costs referred to in that paragraph, after the deduction of the financial assistance, shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order.

Special expenses - illness or disability of relevant other child
     11. - (1) Subject to paragraphs (2) and (3), expenses necessarily incurred by the non-resident parent in respect of the items listed in sub-paragraphs (a) to (m) due to the long-term illness or disability of a relevant other child shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order -

(a) personal care and attendance;

(b) personal communication needs;

(c) mobility;

(d) domestic help;

(e) medical aids where these cannot be provided as part of health services;

(f) heating;

(g) clothing;

(h) laundry requirements;

(i) payments for food essential to comply with a diet recommended by a medical practitioner;

(j) adaptations required to the non-resident parent's home;

(k) day care;

(l) rehabilitation; or

(m) respite care.

(2) For the purposes of this regulation and regulation 10 -

(a) a person is "disabled" for a period in respect of which -

(i) either an attendance allowance, disability living allowance or a mobility supplement is paid to or in respect of him;

(ii) he would receive an attendance allowance or disability living allowance if it were not for the fact that he is a patient, though remaining part of the applicant's family, or

(iii) he is registered blind or treated as blind within the meaning of paragraph 13 of Schedule 1B to the Income Support (General) Regulations (Northern Ireland) 1987[

and for the purpose of this sub-paragraph -

(b) "health services" has the same meaning as in Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972[20];

(c) "long-term illness" means an illness from which the non-resident parent or child is suffering at the date of the application or the date from which the variation, if agreed, would take effect and which is likely to last for at least 52 weeks from that date, or, if likely to be shorter than 52 weeks, for the remainder of the life of that person; and

(d) "relevant other child" has the meaning given in paragraph 10C(2) of Schedule 1 to the Order[21] and Regulations made under that paragraph.

(3) Where the non-resident parent has, at the date he makes the variation application, received, or at that date is in receipt of, or where he will receive any financial assistance from any source in respect of the long-term illness or disability of the relevant other child or a disability living allowance is received by the non-resident parent on behalf of the relevant other child, only the net amount of the costs incurred in respect of the items listed in paragraph (1), after the deduction of the financial assistance or the amount of the allowance, shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order[22].

Special expenses - prior debts
12. - (1) Subject to paragraphs (2) to (6) and regulation 15, the repayment of debts to which paragraph (2) applies shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order where those debts were incurred -

(a) before the non-resident parent became a non-resident parent in relation to the qualifying child; and

(b) at the time when the non-resident parent and the person with care in relation to the child referred to in sub-paragraph (a) were a couple.

(2) This paragraph applies to debts incurred -

(a) for the joint benefit of the non-resident parent and the person with care;

(b) for the benefit of the person with care where the non-resident parent remains legally liable to repay the whole or part of the debt;

(c) for the benefit of any person who is not a child but who at the time the debt was incurred -

(d) for the benefit of the qualifying child referred to in paragraph (1); or

(e) for the benefit of any child, other than the qualifying child referred to in paragraph (1), who, at the time the debt was incurred -

(3) Paragraph (1) shall not apply to repayment of -

(a) a debt which would otherwise fall within paragraph (1) where the non-resident parent has retained for his own use and benefit the asset in connection with the purchase of which he incurred the debt;

(b) a debt incurred for the purposes of any trade or business;

(c) a gambling debt;

(d) a fine imposed on the non-resident parent;

(e) unpaid legal costs in respect of separation or divorce from the person with care;

(f) amounts due after use of a credit card;

(g) a debt incurred by the non-resident parent to pay any of the items listed in sub-paragraphs (c) to (f) and (j);

(h) amounts payable by the non-resident parent under a mortgage or loan taken out on the security of any property except where that mortgage or loan was taken out to facilitate the purchase of, or to pay for repairs or improvements to, any property which is the home of the person with care and any qualifying child;

(i) amounts payable by the non-resident parent in respect of a policy of insurance except where that policy of insurance was obtained or retained to discharge a mortgage or charge taken out to facilitate the purchase of, or to pay for repairs or improvements to, any property which is the home of the person with care and the qualifying child;

(j) a bank overdraft except where the overdraft was at the time it was taken out agreed to be for a specified amount repayable over a specified period;

(k) a loan obtained by the non-resident parent other than a loan obtained from a qualifying lender or the non-resident parent's current or former employer;

(l) a debt in respect of which a variation has previously been agreed and which has not been repaid during the period for which the maintenance calculation which took account of the variation was in force; or

(m) any other debt which the Department is satisfied it is reasonable to exclude.

    (4) Except where the repayment is of an amount which is payable under a mortgage or loan or in respect of a policy of insurance which falls within the exception set out in paragraph (3)(h) or (i), repayment of a debt shall not constitute expenses for the purposes of paragraph (1) where the Department is satisfied that the non-resident parent has taken responsibility for repayment of that debt as, or as part of, a financial settlement with the person with care or by virtue of a court order.

    (5) Where an applicant has incurred a debt partly to repay a debt repayment of which would have fallen within paragraph (1), the repayment of that part of the debt incurred which is referable to the debt repayment of which would have fallen within that paragraph shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order.

    (6) For the purposes of this regulation and regulation 14 -

(a) "qualifying lender" has the meaning given to it in section 376(4) of the Income and Corporation Taxes Act 1988[

Special expenses - boarding school fees
     13. - (1) Subject to paragraphs (2) to (5) and regulation 15, the maintenance element of the costs, incurred or reasonably expected to be incurred, by the non-resident parent for the purpose of the attendance at a boarding school of the qualifying child shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order .

    (2) Where the Department considers that the costs referred to in paragraph (1) cannot be distinguished with reasonable certainty from other costs incurred in connection with the attendance at boarding school by the qualifying child, it may instead determine the amount of those costs and any such determination shall not exceed 35 per cent. of the total costs.

    (3) Where -

(a) the non-resident parent has at the date the variation application is made, received, or at that date is in receipt of, financial assistance from any source in respect of the boarding school fees; or

(b) the boarding school fees are being paid in part by the non-resident parent and in part by another person,

a portion of the costs incurred by the non-resident parent in respect of the boarding school fees shall constitute special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order being the same proportion as the maintenance element of the costs bears to the total amount of the costs.

    (4) No variation on this ground shall reduce by more than 50 per cent. the income to which the Department would otherwise have had regard in the calculation of maintenance liability.

    (5) For the purposes of this regulation, "boarding school fees" means the fees payable in respect of attendance at a recognised educational establishment providing full-time education which is not advanced education for children under the age of 19 and where some or all of the pupils, including the qualifying child, are resident during term time.

Special expenses - payments in respect of certain mortgages, loans or insurance policies
     14. - (1) Subject to regulation 15, the payments to which paragraph (2) applies shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order.

    (2) This paragraph applies to payments, whether made to the mortgagee, lender, insurer or the person with care -

(a) in respect of a mortgage or loan where -

(b) of amounts payable in respect of a policy of insurance taken out for the discharge of a mortgage or loan referred to in sub-paragraph (a), including an endowment policy, except where the non-resident parent is entitled to any part of the proceeds on the maturity of that policy.

Thresholds for and reduction of amount of special expenses
15. - (1) Subject to paragraphs (2) to (4), the costs or repayments referred to in regulations 10 and 12 to 14 shall be special expenses for the purposes of paragraph 2(2) of Schedule 4B to the Order where and to the extent that they exceed the threshold amount, which is -

(a) �15 per week where the expenses fall within only one description of expenses, and, where the expenses fall within more than one description of expenses, �15 per week in respect of the aggregate of those expenses, where the relevant net weekly income of the non-resident parent is �200 or more; or

(b) �10 per week where the expenses fall within only one description of expenses, and, where the expenses fall within more than one description of expenses, �10 per week in respect of the aggregate of those expenses, where the relevant net weekly income of the non-resident parent is below �200.

    (2) Subject to paragraph (3), where the Department considers any expenses referred to in regulations 10 to 14 to be unreasonably high or to have been unreasonably incurred it may substitute such lower amount as it considers reasonable, including an amount which is below the threshold amount or a nil amount.

    (3) Any lower amount substituted by the Department under paragraph (2) in relation to contact costs under regulation 10 shall not be so low as to make it impossible, in the Department's opinion, for contact between the non-resident parent and the qualifying child to be maintained at the frequency specified in any court order made in respect of the non-resident parent and that child where the non-resident parent is maintaining contact at that frequency.

    (4) For the purposes of this regulation "relevant net weekly income" means the net weekly income taken into account for the purposes of the maintenance calculation before taking account of any variation on the grounds of special expenses.

Part IV
Property or Capital Transfers
Prescription of terms
16. - (1) For the purposes of paragraph 3(1)(a) and (b) of Schedule 4B to the Order -

(a) a court order means an order made -

(i) under one or more of the statutory provisions listed in or prescribed under Article 10(11) of the Order[

(b) an agreement means a written agreement made in connection with the transfer of property of a kind defined in paragraph (2).

    (2) Subject to paragraphs (3) and (4), for the purposes of paragraph 3(2) of Schedule 4B to the Order, a transfer of property is a transfer by the non-resident parent of his beneficial interest in any asset to the person with care, to the qualifying child, or to trustees where the object or one of the objects of the trust is the provision of maintenance.

    (3) Where a transfer of property would not have fallen within paragraph (2) when made but the Department is satisfied that some or all of the amount of that property was subsequently transferred to the person currently with care of the qualifying child, the transfer of that property to the person currently with care shall constitute a transfer of property for the purposes of paragraph 3 of Schedule 4B to the Order.

    (4) The minimum value for the purposes of paragraph 3(2) of Schedule 4B to the Order is the threshold amount which is �5,000.

Value of a transfer of property - equivalent weekly value
     17. - (1) Where the conditions specified in paragraph 3 of Schedule 4B to the Order are satisfied, the value of a transfer of property for the purposes of that paragraph shall be that part of the transfer made by the non-resident parent (making allowances for any transfer by the person with care to the non-resident parent) which the Department is satisfied is in lieu of periodical payments of maintenance.

    (2) The Department shall, in determining the value of a transfer of property in accordance with paragraph (1), assume that, unless evidence to the contrary is provided to it -

(a) the person with care and the non-resident parent had equal beneficial interests in the asset in relation to which the court order or agreement was made;

(b) where the person with care was married to the non-resident parent, one half of the value of the transfer was a transfer for the benefit of the person with care; and

(c) where the person with care has never been married to the non-resident parent, none of the value of the transfer was for the benefit of the person with care.

    (3) The equivalent weekly value of a transfer of property shall be determined in accordance with the provisions of the Schedule.

    (4) For the purposes of regulation 16 and this regulation, the term "maintenance" means the normal day-to-day living expenses of the qualifying child.

    (5) A variation falling within paragraph (1) shall cease to have effect at the end of the number of years of liability, as defined in paragraph 1 of the Schedule, for the case in question.

Part V
Additional Cases
Assets
18. - (1) Subject to paragraphs (2) and (3), a case shall constitute a case for the purposes of paragraph 4(1) of Schedule 4B to the Order where the Department is satisfied there is an asset -

(2) For the purposes of this regulation "asset" means -

(a) money, whether in cash or on deposit;

(b) a beneficial interest in land and rights in or over land;

(c) shares as defined in Article 2 of the Companies (Northern Ireland) Order 1986[

and includes any such asset located outside Northern Ireland.

(3) Paragraph (2) shall not apply -

    (4) For the purposes of this regulation, where any asset is held in the joint names of the non-resident parent and another person the Department shall assume, unless evidence to the contrary is provided to it, that the asset is held by them in equal shares.

    (5) Where a variation is agreed on the ground that the non-resident parent has assets for which provision is made in this regulation, the Department shall calculate the weekly value of the assets by applying the statutory rate of interest to the value of the assets and dividing by 52, and the resulting figure, aggregated with any benefit, pension or allowance which the non-resident parent receives, other than any benefits referred to in regulation 26(3), shall be taken into account as additional income under regulation 25.

    (6) For the purposes of this regulation -

Income not taken into account and diversion of income
19. - (1) Subject to paragraph (2), a case shall constitute a case for the purposes of paragraph 4(1) of Schedule 4B to the Order where -

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

(b) the Department is satisfied that the non-resident parent is in receipt of income which would fall to be taken into account under the Maintenance Calculations and Special Cases Regulations but for the application to the non-resident parent of paragraph 4(1)(b) or 5(a) of Schedule 1 to the Order.

    (2) Paragraph (1) shall apply where the income referred to in sub-paragraph (b) of that paragraph is a net weekly income of over �100.

    (3) Net weekly income for the purposes of paragraph (2), in relation to earned income of a non-resident parent who is a student, shall be calculated by aggregating the income for the year ending with the relevant week (which for this purpose shall have the meaning given in the Maintenance Calculations and Special Cases Regulations) and dividing by 52, or, where the Department does not consider the result to be representative of the student's earned income, over such other period as it shall consider representative and dividing by the number of weeks in that period.

    (4) A case shall constitute a case for the purposes of paragraph 4(1) of Schedule 4B to the Order where -

(a) the non-resident parent has the ability to control the amount of income he receives, including earnings from employment or self-employment, whether or not the whole of that income is derived from the company or business from which his earnings are derived; and

(b) the Department is satisfied that the non-resident parent has unreasonably reduced the amount of his income which would otherwise fall to be taken into account under the Maintenance Calculations and Special Cases Regulations by diverting it to other persons or for purposes other than the provision of such income for himself in order to reduce his liability to pay child support maintenance.

(5) Where a variation on this ground is agreed to -

(a) in a case to which paragraph (1) applies, the additional income taken into account under regulation 25 shall be the whole of the income referred to in paragraph (1)(b), aggregated with any benefit, pension or allowance which the non-resident parent receives other than any benefits referred to in regulation 26(3); and

(b) in a case to which paragraph (4) applies, the additional income taken into account under regulation 25 shall be the whole of the amount by which the Department is satisfied the non-resident parent has unreasonably reduced his income.

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 Order 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 -

(vi) the nil rate owing to the application of paragraph 5(b) of Schedule 1 to the Order, and

(b) the Department 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 life-style of the non-resident parent.

(2) Subject to paragraph (4), a case shall constitute a case for the purposes of paragraph 4(1) of Schedule 4B to the Order where 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 -

(a) a flat rate owing to the application of paragraph 4(1)(b) of Schedule 1 to the Order, or would be a flat rate but is less than that amount, or nil, owing to the application of paragraph 8 of Schedule 1 to the Order; or

(b) the nil rate owing to the application of paragraph 5(a) of Schedule 1 to the Order,

and the Department is satisfied that the income which would otherwise be taken into account for the purposes of the maintenance calculation is substantially lower than the level of income required to support the overall life-style of the non-resident parent.

(3) Paragraph (1) shall not apply where the Department is satisfied that the life-style of the non-resident parent is paid for from -

(a) income which is or would be disregarded for the purposes of a maintenance calculation under the Maintenance Calculations and Special Cases Regulations;

(b) income which falls to be considered under regulation 19(4) (diversion of income);

(c) assets as defined for the purposes of regulation 18, or income derived from those assets;

(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.

(4) Paragraph (2) shall not apply where the Department is satisfied that the life-style of the non-resident parent is paid for -

(a) from a source referred to in paragraph (3);

(b) from net weekly income of �100 or less; or

(c) from income which falls to be considered under regulation 19(1).

(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 Department is satisfied the non-resident parent requires to support his overall life-style and the income which has been or, but for the application of paragraph 4(1)(b) or 5(a) of Schedule 1 to the Order[28], 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).

Part VI
Factors to be taken into account for the purposes of Article 28F of the Order
Factors to be taken into account and not to be taken into account
21. - (1) The factors to be taken into account in determining whether it would be just and equitable to agree to a variation in any case shall include -

(b) where an application is made on the ground that the case falls within regulations 10 to 14 (special expenses), whether, in the opinion of the Department -

(2) The following factors are not to be taken into account in determining whether it would be just and equitable to agree to a variation in any case -

Part VII
Effect of a Variation on the Maintenance Calculation and Effective Dates
Effective dates
22. - (1) Subject to paragraph (2), where the application for a variation is made in the circumstances referred to in Article 28A(3) of the Order[29] (before the Department has reached a decision under Article 13 or 14(1) of the Order[30]) and the application is agreed to, the effective date of the maintenance calculation which takes account of the variation shall be -

    (2) Where the ground for the variation applied for under Article 28A(3) of the Order is a ground in regulation 12 (prior debts) or 14 (special expenses-payments in respect of certain mortgages, loans or insurance policies) and payments falling within regulation 12 or 14 which have been made by the non-resident parent constitute voluntary payments for the purposes of Article 28J of the Order[31] and Regulations made under that Article, the date from which the maintenance calculation shall take account of the variation on this ground shall be the date on which the maintenance period begins which immediately follows the date on which the non-resident parent is notified under the Maintenance Calculation Procedure Regulations of the amount of his liability to pay child support maintenance.

    (3) Where the ground for the variation applied for under Article 28A(3) of the Order has ceased to exist by the date when the maintenance calculation is made, that calculation shall take account of the variation for the period ending on the last day of the maintenance period in which the ground existed.

Effect on maintenance calculation - special expenses
     23. - (1) Subject to paragraph (2) and regulations 26 and 27, where the variation agreed to is one falling within regulations 10 to 14 (special expenses) effect shall be given to the variation in the maintenance calculation by deducting from the net weekly income of the non-resident parent the weekly amount of those expenses.

    (2) Where the income which is taken into account in the maintenance calculation is the capped amount and the variation agreed to is one falling within regulations 10 to 14 then -

(a) the weekly amount of the expenses shall first be deducted from the actual net weekly income of the non-resident parent;

(b) the amount by which the capped amount exceeds the figure calculated under sub-paragraph (a) shall be calculated; and

(c) effect shall be given to the variation in the maintenance calculation by deducting from the capped amount the amount calculated under sub-paragraph (b).

Effect on maintenance calculation - property or capital transfer
24. Subject to regulation 27, where the variation agreed to is one falling within regulation 16 (property or capital transfers) -

(a) the maintenance calculation shall be carried out in accordance with Part I of Schedule 1 to the Order[

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.

Effect on maintenance calculation - maximum amount payable where the variation is on additional cases ground
26. - (1) Subject to regulation 27, where this regulation applies the amount of child support maintenance which the non-resident parent shall be liable to pay shall be whichever is the lesser of -

(a) a weekly amount calculated by aggregating an amount equivalent to the flat rate stated in or prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the Order with the amount calculated by applying that Schedule to the additional income arising under the variation, other than the weekly amount of any benefit, pension or allowance the non-resident parent receives which is prescribed for the purposes of that paragraph; or

(b) a weekly amount calculated by applying Part I of Schedule 1 to the Order to the additional income arising under the variation.

(2) This regulation applies where the variation agreed to is one to which regulation 25 applies and the non-resident parent's liability calculated as provided in Part I of Schedule 1 to the Order and Regulations made under that Schedule would, but for the variation, be -

(a) a flat rate under paragraph 4(1)(b) of that Schedule;

(b) a flat rate but is less than that amount or nil, owing to the application of paragraph 8 of that Schedule; or

(c) a flat rate under paragraph 4(1)(b) of that Schedule but for the application of paragraph 5(a) of that Schedule.

(3) For the purposes of paragraph (1) -

(a) any benefit, pension or allowance taken into account in the additional income referred to in sub-paragraph (b) shall not include -

(i) in the case of industrial injuries benefit under section 94 of the Contributions and Benefits Act, any increase in that benefit under section 104 (constant attendance) or 105 (exceptionally severe disablement) of that Act;

(ii) in the case of a war disablement pension within the meaning in section 146(2) of the Contributions and Benefits Act, any award under the following articles of the Service Pensions Order: article 14 (constant attendance allowance), 15 (exceptionally severe disablement allowance), 16 (service disablement occupational allowance) or 26A (mobility supplement)[

(b) "additional income" for the purposes of sub-paragraphs (a) and (b) means such income after the application of a variation falling within regulations 10 to 14 (special expenses); and

(c) "weekly amount" for the purposes of sub-paragraphs (a) and (b) means the aggregate of the amounts referred to in the relevant sub-paragraph -

Effect on maintenance calculation - general
     27. - (1) Subject to paragraphs (4) and (5), where more than one variation is agreed to in respect of the same period regulations 23 to 26 shall apply and the results shall be aggregated as appropriate.

    (2) Paragraph 7(2) to (7) of Schedule 1 to the Order (shared care) shall apply where the rate of child support maintenance is affected by a variation which is agreed to and paragraph 7(2) of that Schedule shall be read as if after "as calculated in accordance with the preceding paragraphs" there were inserted ", Schedule 4B and Regulations made under that Schedule".

    (3) Subject to paragraphs (4) and (5), where the non-resident parent shares the care of a qualifying child within the meaning in Part I of Schedule 1 to the Order, or where the care of such a child is shared in part by an authority, the amount of child support maintenance the non-resident parent is liable to pay the person with care, calculated to take account of any variation, shall be reduced in accordance with the provisions of paragraph 7 of that Part or regulation 9 of the Maintenance Calculations and Special Cases Regulations (care provided in part by an authority), as the case may be.

    (4) Subject to paragraph (5), where the variation agreed to is one falling within regulation 16 (property or capital transfers) the equivalent weekly value of the transfer calculated as provided in regulation 17 shall be deducted from the amount of child support maintenance the non-resident parent would otherwise be liable to pay the person with care in respect of whom the transfer was made after aggregation of the effects of any other variations as provided in paragraph (1) or deduction for shared care as provided in paragraph (3).

    (5) If the application of regulation 24, or paragraph (3) or (4), would decrease the weekly amount of child support maintenance (or the aggregate of all such amounts) payable by the non-resident parent to the person with care (or all of them) to less than a figure equivalent to the flat rate of child support maintenance payable under paragraph 4(1)(b) of Schedule 1 to the Order, he shall instead be liable to pay child support maintenance at a rate equivalent to that rate apportioned (if appropriate) as provided in paragraph 6 of Schedule 1 to the Order.

    (6) The effect of a variation shall not be applied for any period during which a circumstance referred to in regulation 7 applies.

    (7) For the purposes of this regulation "an authority" has the same meaning as in Article 2(2) of the Children (Northern Ireland) Order 1995[34];

    (8) For the purposes of regulations 23 and 25 "net weekly income" means as calculated or estimated under the Maintenance Calculations and Special Cases Regulations.

Transitional provisions - conversion decisions
     28. Where the variation is being applied for in connection with a subsequent decision within the meaning given in the Transitional Regulations, and the decision to be revised or superseded under Article 18 or 19 of the Order, as the case may be, takes into account a relevant property transfer as defined and provided for in those Regulations -

(a) for the purposes of regulations 23 and 25 "capped amount" shall mean the income for the purposes of paragraph 10(3) of Schedule 1 to the Order less any deduction in respect of the relevant property transfer;

(b) for the purposes of regulation 26(3)(b) the additional income for the purposes of paragraph (1) of that regulation shall be after deduction in respect of the relevant property transfer;

(c) regulation 27(4) shall be read as if the aggregation referred to included any deduction in respect of the relevant property transfer; and

(d) regulation 27(5) shall be read as if after the reference to paragraph (3) or (4) there were a reference to any deduction in respect of the relevant property transfer.

Situations in which a variation previously agreed to may be taken into account in calculating maintenance liability
     29. - (1) This regulation applies where a variation has been agreed to in relation to a maintenance calculation.

    (2) In the circumstances set out in paragraph (3), the Department may take account of the effect of such a variation upon the rate of liability for child support maintenance notwithstanding the fact that an application has not been made.

    (3) The circumstances are -

(a) that the decision as to the maintenance calculation is superseded under Article 19 of the Order[

Circumstances for the purposes of Article 28F(3) of the Order
30. The circumstances prescribed for the purposes of Article 28F(3) of the Order[36] (Department shall not agree to a variation) are -

Part VIII
Miscellaneous
Regular payments condition
     31. - (1) For the purposes of Article 28C(2)(b) of the Order[37] (payments of child support maintenance less than those specified in the interim maintenance decision) the payments shall be those fixed by the interim maintenance decision or the maintenance calculation in force, as the case may be, adjusted to take account of the variation applied for by the non-resident parent as if that variation had been agreed.

    (2) The Department may refuse to consider the application for a variation where a regular payments condition has been imposed and the non-resident parent has failed to comply with it in the circumstances to which paragraph (3) applies.

    (3) This paragraph applies where the non-resident parent has failed to comply with the regular payments condition and fails to make such payments which are due and unpaid within one month of being required to do so by the Department or such other period as the Department may in the particular case decide.

Meaning of "benefit" for the purposes of Article 28E of the Order
     32. For the purposes of Article 28E of the Order[38], "benefit" means income support, income-based jobseeker's allowance and housing benefit.

Part IX
Revocation
Revocation and savings
     33. - (1) Subject to paragraph (2), the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996[39] ("the Departure Direction Regulations") shall be revoked with respect to a particular case with effect from the date that these Regulations come into operation with respect to that type of case ("the commencement date").

    (2) Where before the commencement date in respect of a particular case -

(b) the Department had begun but not completed a revision or supersession of a decision on its own initiative;

(c) any time limit provided for in Regulations for making an application for a revision or a departure direction had not expired; or

(d) any appeal was made but not decided or any time limit for making an appeal had not expired,

the provisions of the Departure Direction Regulations shall continue to apply for the purposes of -

    (3) Where, after the commencement date, a decision with respect to a departure direction is revised from a date which is prior to the commencement date, the provisions of the Departure Direction Regulations shall continue to apply for the purposes of that revision.

    (4) Where, under regulation 28(1) of the Transitional Regulations, an application for a maintenance calculation is treated as an application for a maintenance assessment, the provisions of the Departure Direction Regulations shall continue to apply for the purposes of an application for a departure direction in relation to any such assessment made.

    (5) For the purposes of this regulation -

Sealed with the Official Seal of the Department for Social Development on

23rd January 2001.

L.S.

John O'Neill
Senior Officer of the Department for Social Development

SCHEDULERegulation 17(3)

Equivalent weekly value of a transfer of property

     1. - (1) Subject to paragraph 3, the equivalent weekly value of a transfer of property shall be calculated by multiplying the value of a transfer of property determined in accordance with regulation 17 by the relevant factor specified in the Table set out in paragraph 2 ("the Table").

    (2) For the purposes of sub-paragraph (1), the relevant factor is the number in the Table at the intersection of the column for the statutory rate and of the row for the number of years of liability.

    (3) In sub-paragraph (2) -

(a) "the statutory rate" means interest at the same rate as that prescribed for judgments by Order 42 rule 9 of the Rules of the Supreme Court (Northern Ireland) 1980[

and where that period includes a fraction of a year, that fraction shall be treated as a full year if it is either one half or exceeds one half of a year, and shall otherwise be disregarded.

2. The Table referred to in paragraph 1(1) is -

THE TABLE

Number of years of liability Statutory Rate

7.0% 8.0% 10.0% 11.0% 12.0% 12.5% 14.0% 15.0%

1. .02058 .02077 .02115 .02135 .02154 .02163 .02192 .02212

2. .01064 .01078 .01108 .01123 .01138 .01145 .01168 .01183

3. .00733 .00746 .00773 .00787 .00801 .00808 .00828 .00842

4. .00568 .00581 .00607 .00620 .00633 .00640 .00660 .00674

5. .00469 .00482 .00507 .00520 .00533 .00540 .00560 .00574

6. .00403 .00416 .00442 .00455 .00468 .00474 .00495 .00508

7. .00357 .00369 .00395 .00408 .00421 .00428 .00448 .00462

8. .00322 .00335 .00360 .00374 .00387 .00394 .00415 .00429

9. .00295 .00308 .00334 .00347 .00361 .00368 .00389 .00403

10. .00274 .00287 .00313 .00327 .00340 .00347 .00369 .00383

11. .00256 .00269 .00296 .00310 .00324 .00331 .00353 .00367

12. .00242 .00255 .00282 .00296 .00310 .00318 .00340 .00355

13. .00230 .00243 .00271 .00285 .00299 .00307 .00329 .00344

14. .00220 .00233 .00261 .00275 .00290 .00298 .00320 .00336

15. .00211 .00225 .00253 .00267 .00282 .00290 .00313 .00329

16. .00204 .00217 .00246 .00261 .00276 .00283 .00307 .00323

17. .00197 .00211 .00240 .00255 .00270 .00278 .00302 .00318

18. .00191 .00205 .00234 .00250 .00265 .00273 .00297 .00314

3. The Department may determine a lower equivalent weekly value than that determined in accordance with paragraphs 1 and 2 where the amount of child support maintenance that would be payable in consequence of agreeing to a variation of that value is lower than the amount of the periodical payments of maintenance which were payable under the court order or written agreement referred to in regulation 16.