Guide to Financial Redress for Maladministration
Child Support Agency cases
Note: This section has been developed for cases dealt with under the Child Support Act 1991. Some cases will be dealt with under the Child Support Reforms, but this guidance will initially be applied equally to them. This will be reviewed as these reforms roll out.
Categories of payment
161 The Child Support Agency, as an executive agency of the DWP, is subject to the guidance contained in this Guide. However, because of the differing nature of its business additional categories of cases exist where special payments may be appropriate. Examples of the circumstances where the Agency may consider a special payment are as follows:
- unreasonable delay in the issue of a maintenance application form (MAF) to the parent with care (PWC) - paragraphs 162-167
- unreasonable delay in the issue of a maintenance enquiry form (MEF) to the non-resident parent (NRP) - paragraphs 168-174
- inappropriate issue of a MEF to a person - paragraph 175-177
- delay in assessing child support maintenance - paragraph 178
- advance payments of child support maintenance to the parent with care - paragraphs 179-181
- court order incorrectly superseded where the Agency has no jurisdiction - paragraphs 182-183
- court order cases - delay in assessment of liability resulting in loss of child support maintenance - paragraphs 184-187
- unreasonable delay or error in enforcement action - paragraphs 188-190
- delay in reviewing maintenance liability has led to an overpayment of maintenance by the NRP - paragraph 191-195
- defective or invalid interim maintenance assessments (IMAs) made before 16 February 1995 (referred to as IMA gap cases) - paragraphs 196-197.
The above list is not exhaustive.
Unreasonable delay in the issue of a maintenance application form (MAF) to the parent with care (PWC)
162 A delay in the issue of the MAF to the PWC puts back the point at which the application for child support maintenance can be made. This in turn puts back the effective date from which the NRP's liability for child support maintenance commences. The issue of a MAF should not therefore, be unreasonably delayed.
163 Since 1 April 1996 [Footnote 4] the Agency has accepted that if (without good cause) a MAF is not issued within a month of it being requested then redress should be considered.
164 Although not legally required to do so, the Agency is willing to do this because undue delay in issuing the MAF to the PWC in turn delays its return and the commencement of action to establish any liability for child support maintenance that the NRP may have.
165 The Agency recognises that unreasonable delay in these early stages can cause the PWC to miss the opportunity to obtain some child support maintenance that they might otherwise have received. In recognition of this the Agency will make good any loss caused by its failings by way of a special payment.
| Example 1: unreasonable delay in the issue of a MAF to the PWC |
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Mrs A requested a MAF on 28 October 2002. The Agency should have issued one by 28 November 2002, but without good cause did not issue one until 19 December 2002 (three weeks late). It is reasonable to assume that had the MAF been issued three weeks earlier Mrs A would have returned it and her ex-partner (the NRP) would have become liable for child support maintenance three weeks earlier. If his first liability was assessed to be £25 a week Mrs A could have expected to receive £75 from the NRP in the three weeks concerned and the Agency would make good that loss. |
166 If the NRP had made any payments during that period the PWC will only have lost the difference between the amount that they might have received from the NRP and the amount that they actually received from the NRP. In those cases the special payment will be the amount actually lost.
| Example 2: delayed issue of MAF, NRP making payments meanwhile |
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In example 1 above Mrs A was calculated to have been due £75 in the three weeks concerned. If in each of those three weeks the NRP had paid her £15 voluntarily, she would have received £45 in total rather than the £75 that she might have received from him. In this example the Agency would pay £30 to Mrs A to make good the shortfall. |
167 Similarly, if the PWC was receiving any benefit that would have been reduced if the NRP paid child support maintenance then the special payment will be adjusted to make sure the PWC's position is properly restored to the position that it would have been but for the Agency's failing.
| Example 3: delayed issue of MAF, PWC receiving benefits at the time that would reduce when child support maintenance is paid. |
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If Mrs B was calculated to have been due £50 a week for five weeks the Agency would consider that she had potentially lost £250. But, if during those five weeks she had been receiving income based Jobseeker's Allowance (JSA (IB)) and the amount of the MA is more than the JSA (IB) that had been paid, the loss will be equal to the difference between the amount of the assessment and the benefit in payment. If the JSA (IB) would have been reduced by £30 a week, Mrs B would have stood to gain only £20 a week by the NRP paying child support maintenance (rather than the full £50 a week). In those circumstances the Agency would pay her the five weeks at £20 a week to make good her losses. Consideration would be given to adding interest for loss of use of the sum (paragraph 198 et seq) |
Unreasonable delay in the issue of a maintenance enquiry form (MEF) to the non-resident parent (NRP)
168 A delay in the issue of the MEF to the NRP can put back the effective date from which the NRP's liability for child support maintenance commences. The issue of a MEF should not therefore, be unreasonably delayed. Once the MAF is received from the PWC, the Agency needs to make checks of it before a MEF can be issued. The time needed at this initial stage will depend on whether further action is required and whether or not a court order for child maintenance is already in place.
169 Since 1 April 1996 [Footnote 5] the Agency has accepted that where no existing court order is in place for child maintenance and no further action is required on the MAF, a MEF should be sent to the NRP within a month of receipt of the MAF (unless the NRP's whereabouts cannot be established).
170 The Agency has accepted that if in such cases—and without good cause—a MEF is not issued within a month then redress should be considered.
| Example 4: unreasonable delay in the issue of a MEF to the NRP - no court order in place |
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The Agency received a MAF from Mrs C on 28 October 2002. There was no existing court order for child maintenance and no further action was required on the MAF. The Agency should have sent a MEF to the NRP within a month, that is by 28 November 2002, but did not issue one until 19 December 2002 (three weeks late). It is reasonable to assume that had the MEF been issued three weeks earlier her ex-partner (the NRP) would have become liable for child support maintenance three weeks earlier than he did. If his first liability was assessed to be £30 a week Mrs C could have expected to receive £90 from the NRP in the three weeks concerned and the Agency would make good that loss. |
171 In the same way, where either a court order for child maintenance is already in place or further action is required on the MAF a MEF should be sent to the NRP within two months of receipt of the MAF. See paragraph 185 for the overall time allowed for assessing court order cases.
| Example 5: unreasonable delay in the issue of a MEF to the NRP - court order case |
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The Agency received a MAF from Mr D on 4 September 2002. He already had an existing court order for child maintenance at £25 a week. No further action was required on the MAF. The Agency should have sent a MEF to the NRP within two months, that is by 4 November 2002, but did not issue one until 16 December 2002 (six weeks late). It is reasonable to assume that had the MEF been issued six weeks earlier his ex-partner (the NRP) would have become liable for child support maintenance three weeks earlier than she did. If the maintenance assessment was not made within 20 weeks (paragraph 185) and her first liability was assessed to be £35 a week, Mr D could have expected to receive £210 from the NRP in the six weeks concerned but the NRP will only have been liable for £25 a week those six weeks under the court order. So she will only have been liable for £150. The Agency would make good the £60 lost. |
172 Where both a court order for child maintenance is already in place and further action is required on the MAF a MEF should be sent to the NRP within four months of receipt of the MAF.
173 In some cases the PWC will have been receiving a benefit that would have been reduced if the NRP paid child support maintenance. In these cases the PWC's true loss has been lessened to some extent (sometimes removed altogether) by the Secretary of State awarding them more benefit than would have been the case. Any special payment will be reduced to recover the extra benefit that the Secretary of State has paid. That is to make sure that the PWC's position is properly restored to the position that it would have been but for the Agency's failing.
174 In example 5 above the Agency calculated that Mr D had lost the opportunity to receive an extra £10 a week in child support maintenance. If he had been in receipt of an income related benefit which would have reduced by any child support maintenance paid then any special payment will be reduced in the same way.
| Example 6: unreasonable delay in the issue of a MEF to the NRP - court order case and PWC in receipt of income-based benefit |
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If the Agency calculated that Mrs E had lost the opportunity to receive an extra £40 a week in child maintenance it then considers whether that would have affected any benefits paid. If it would any special payment is reduced in exactly the same way. If, for example, Mrs E would have had her benefit reduced by £30 a week then her loss is the £40 a week less £30 a week (that is £10 a week). Similarly if her benefit would have reduced by the full £40 a week a special payment will not be made as the lost opportunity to receive child support maintenance has already been made up through the payment of that sum through higher benefits. |
Issue of a MEF to a person wrongly identified by the PWC as the non-resident parent of the child(ren) concerned
175 When a PWC applies for child support maintenance they are asked to give details of the NRP of the child(ren) concerned. In the absence of any evidence to the contrary the Agency will accept that information in good faith and will send the alleged NRP a MEF and give them the opportunity to dispute parentage if they have valid cause to do so.
176 Where a PWC has (whether through genuine confusion or for some other reason) given the Agency details of somebody who is not the father and the Agency acts on this in good faith that is not maladministration and a special payment will not be appropriate.
Issue of a MEF to a person wrongly identified by the Agency as the NRP of the child(ren) concerned
177 A consolatory payment of £100 should automatically be paid when a MEF has been issued to the wrong person as a result of an error by the Agency. The £100 is made in recognition of the upset and inconvenience caused by the error. In these circumstances, no objective evidence of impact on health is required to support the claim. The award of £100 does not preclude a higher award, but any claim for a higher consolatory payment should be supported by objective evidence of the adverse effect of the error. For example, when the person indicates that he suffered exceptionally.
Delay in assessing child support maintenance - arrears due when first maintenance assessment or calculation made
178 Under Child Support legislation, when a maintenance assessment or calculation is made the Agency has to determine when the NRP's liability begins. In some cases that date may already have passed and so—unless the NRP has been making payments to the PWC pending the assessment—arrears may well have arisen. The NRP is asked to clear those arrears in a lump sum or, if they are unable to do so, through regular payments along with their regular maintenance. That is a situation clearly envisaged by Parliament and, although it does mean the PWC having to wait for the money due to them, a special payment cannot be made in the absence of maladministration.
Situations where a PWC may be given an advance payment of child support maintenance due to them
179 An advance payment of child support maintenance may be appropriate where
- clear Agency error or delay caused the accrual of child support maintenance arrears of over £100 and
- it would take more than 26 weeks for the NRP to pay off the debt at their normal payment rate.
180 In each case:
- the Agency must be satisfied that, on the balance of probabilities, the NRP would have complied with the maintenance assessment had it not been for maladministration. In doing so, the Agency looks for evidence that the NRP has established a payment pattern - see paragraph 201
- the PWC must have shown an interest in the progression of their case, and
- the PWC must sign a declaration slip agreeing to the Agency's retention of payments or to refund any relevant direct payments.
181 Allowance is made for the normal processing time involved in carrying out a new assessment and for the recovery of any benefits which would not have been made had the maintenance been paid at the correct time.[Footnote 6]
Court order for child maintenance incorrectly superseded where the Agency has no jurisdiction [Footnote 7]
182 When the Agency makes a maintenance assessment or calculation in court order cases that causes the automatic supersession of any existing court order for child maintenance. So, where the Agency incorrectly makes a maintenance assessment or calculation even though it has no jurisdiction the PWC may lose child maintenance for a period until such time as the court accepts a reapplication. Should this occur, redress will be given for any financial loss after taking into account any payments made by the NRP and any benefits which would not have been made had the court order continued in force throughout.
183 Any special payment would not normally exceed the amount prescribed by the court, unless the PWC provides evidence that a higher amount would have been awarded but for the Agency's intervention.
Court Order cases - delay in assessment of liability resulting in loss of child support maintenance
184 When at the time that a PWC applies for child support maintenance a court order for child maintenance is already in place, the effective date of liability for child support maintenance is two days after the date that the assessment is completed. Thus, in court order cases, any unreasonable delay in the maintenance process will put back the effective date of the maintenance assessment or calculation and may lead to a loss of opportunity to receive maintenance or may cause the NRP to pay more than they might otherwise have been required to do.
185 In court cases the Agency is allowed 20 weeks [Footnote 8] to make an assessment beginning from the issue of a MAF to the PWC. It anticipates that barring delays or non-co-operation of the PWC or NRP most cases will be assessed within that time. Where this is exceeded and the Agency accepts that the delay in assessing the case was due to its failings, a special payment will be considered.
186 Any special payment is paid at a rate equivalent to the difference between the level of the court order and the maintenance assessment or calculation made by the Agency: [Footnote 9]
- if the maintenance assessment or calculation would have been higher than the court order, payment is made to the PWC in recognition of their lost opportunity to receive higher support for their child(ren)
- if the maintenance assessment or calculation would have been lower, payment may be made to the NRP - providing evidence shows that they were complying with the court order. This is in recognition that the NRP lost the opportunity to reduce their liability.
187 In both cases payment is subject to adjustment to take into account any benefits that would not have been made had the NRP's liability been assessed sooner.
| Example 7: court order case where delay in assessing the NRP's liability resulted in loss of child support maintenance |
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The Agency sent Ms F a MAF on 4 March 2002 and received it back on 13 March 2002. She gave details of an existing court order for child maintenance under which Mr X (the NRP) was paying £15 a week. No further action was required on the MAF. The Agency sent a MEF to the NRP on 26 March 2002, which he promptly returned confirming he was the father of Ms F's child and the court order for £15 a week which he said he was paying. The Agency failed to act timeously on the application and did not make an assessment until 2 December 2002. Mr X was then found to be liable for child support maintenance of £38 a week from 4 December 2002 and the court order was superseded from that date. Impact of error But for Agency error Ms F could have expected the Agency to make that assessment by 22 July 2002. The court order would then have been replaced by a maintenance assessment from 24 July 2002 rather than 4 December 2002. Mr X would have then been required to pay an extra £23 a week from 24 July 2002. Ms F lost the opportunity to receive that from Mr X and the Agency will make good that loss. A special payment is made
Consideration would be given to adding interest for the loss of use of this sum (paragraph 198 et seq) |
Delay or error in enforcement of child support maintenance liability
188 Financial redress can be considered where a client has lost the opportunity to obtain child support maintenance because the Agency has delayed enforcement action when
- there was a reasonable expectation of collecting maintenance and
- when action is finally taken, the NRP has undergone a change of circumstances and is no longer able to pay maintenance and/or arrears of maintenance.
189 The special payment is calculated by applying the maintenance assessment (or the difference between the court order and the maintenance assessment where paragraphs 184-186 apply) that would have applied to the number of weeks/months falling within the period of lost opportunity, less the waiting period.
190 Account is taken of any voluntary maintenance paid by the NRP or social security benefit payment made in this period to which the PWC would not have been entitled had a maintenance assessment been in force.
Delay in reviewing maintenance liability has led to an overpayment of maintenance by the NRP
191 Delay in reviewing a maintenance assessment or calculation, where the NRP continues paying at the rate of the existing assessment, will often lead to the NRP either overpaying or underpaying child support maintenance. This was envisaged in legislation and Parliament provided options for handling such situations.
192 Where such an over/underpayment occurs, the situation is usually corrected by adjusting future payments of maintenance under regulation 10 of the Arrears, Interest and Adjustment of Maintenance Regulations 1992. This allows the NRP to either make good any underpayment or recoup any overpayment over a period of time. [Footnote 10]
193 However, where any overpayment is large and any revised maintenance liability is too low to effectively allow the NRP to recoup their overpayment in a realistic period of time, the NRP may be reimbursed the amount overpaid under section 41B of the Child Support Act 1991. Such payments, being covered by legislation, are not special payments.
194 However, if the refund covers a period prior to 4 September 1995, then this predates the legislation. A payment can still be made but in this case it is on an extra-statutory basis and should be recorded as such.
195 Where either a statutory or extra-statutory payment as described at paragraphs 193 and 194 is made, it is appropriate to consider an interest payment for delay to redress the customer's loss of use of the money. These interest payments for delay are classed as ex gratia special payments.
Imposition of defective or invalid interim maintenance assessment (IMA) (extra-statutory payment)
196 Since 16 February 1995, there has been provision under Child Support legislation to correct an IMA that is found to be defective. However, where a defective IMA was in place before that date it can only be corrected from 16 February 1995. In such cases the period during which defective IMA has to remain in place is known as an IMA gap. Although the IMA cannot be replaced for that period it cannot be enforced.
197 The Agency will consider making an extra-statutory payment in IMA gap cases providing
- the maintenance is due to be paid to the PWC and not the Secretary of State
- the NRP is complying or has complied with the Agency's assessment (either a full maintenance assessment or an IMA) sufficient to have established a payment pattern or there are good reasons to believe they would have done so, if the Agency had taken steps to collect maintenance
Note: Compensation, in the form of interest, is payable on amounts paid under these procedures.
General matters concerning redress in Child Support Agency cases
Compensation for loss of use of child support maintenance
198 Compensation for the loss of use of child support maintenance can be considered on top of certain ex gratia payments made to provide redress. The compensation takes the form of interest - see paragraph 88 et seq. Examples of situations where interest may be added are
- delay in the issue of MAF/MEF
- delay in a review leading to overpayment of maintenance by NRP
- delay leading to lump sum payment of advance maintenance.
199 Interest is not considered in cases where a delay in review has caused an overpayment of child support maintenance by the NRP which is recouped by payments under regulation 10 of the Arrears, Interest and Adjustment of Maintenance Regulations 1992, or a reduction in outstanding arrears. Parliament envisaged such situations when passing legislation and made no provision for the NRP or PWC to pay interest on the sums overpaid or underpaid.
200 Unlike benefit cases, in all Child Support Agency cases of compensation in the form of interest, the NRP/PWC has already had to wait a period of time before the special payment award begins. In view of this waiting period, interest is calculated from the period that the special payment award covers up to the time that the special payment is made.
Payment patterns
201 Financial redress for the loss of opportunity to receive maintenance is normally considered where a payment pattern has been established. In exceptional cases, where there is evidence that, on the balance of probabilities, maintenance would have been forthcoming had the Agency acted timeously, a special payment can be considered without the need to wait for the establishment of a payment pattern.
Notional assessments
202 Normally an ex gratia payment is based on the rate of the maintenance assessment that applies at the effective date. However, in some cases either
- the Agency is unable to determine a properly calculated maintenance assessment or
- in cases of delayed MAF/MEFs, the NRP's or PWC's circumstances prior to the effective date were significantly different from those in place at the effective date.
203 In these cases, in assessing any financial loss, use of the maintenance assessment rate may not be appropriate. In these circumstances, the Agency may use a notional assessment based on the best evidence available.
4 In recognition of the unexpected demands on the Child Support Agency in its early days three months was allowed where the request for a MAF was made before 1 April 1996.
5 In recognition of the unexpected demands on it in its early days, before April 1996 the Child Support Agency allowed:
- three months for the issue of a MEF in cases where no court order for child maintenance was in place and
- six months where a court order for child maintenance was in place.
6 For more information on the Advance Payment of Maintenance scheme see the Child Support Agency's separate guide
7 Note: This does not include cases where the Child Support Agency has made a defective Interim Maintenance Assessment (IMA) where there is an existing court order and the case was otherwise within jurisdiction. Those cases should be dealt with under paragraph 197 below.
8 In 1996/97 and 1997/98, 26 weeks were allowed for the assessment. The time allowed reduced to:
- 22 weeks for 1998/99 and
- 20 weeks from 1999/2000 onwards.
9 Note that this arrangement only began from 13 March 1997. Before that date priority was given to those cases where no court order was in place.
10 Compensation in the form of interest for loss of use of the sums involved is not payable where this occurs.