Child Maintenance: how it is calculated and how to challenge it

To contact the Child Maintenance Service please visit https://www.gov.uk/child-maintenance-service or call 0800 121 8325.

The following article, published by Hawkins Family Law, explains more about child maintenance and hopefully answers the most commonly asked questions about it.

Since 2014, the Child Maintenance Service (CMS) has held the predominant jurisdiction over how much maintenance should be payable to and by parents caring for children. It bases its decisions, in the majority of cases, on information provided by the parents themselves. But what happens when the CMS gets it wrong?

Maintenance is payable to the ‘primary carer’ – in effect, the parent who is responsible for caring for the child for more time than the other parent.

If the day-to-day care is exactly equal, no child maintenance will be payable. In practice, this is unusual. Even in shared care arrangements, usually one parent will undertake the majority of the daily care – preparing the child for school, making meals, cleaning and washing clothes etc.

Maintenance is only payable under the CMS regulations by biological parents. It is largely not possible to claim where either or both parents live overseas.

The CMS calculates maintenance based on the gross income of the paying parent, less deductions for pension contributions. Various rates are applied incrementally to income. The figure produced is then adjusted only for special expenses, which are very limited in scope, or where the paying parent has other children that live with them, or they pay maintenance for, or if they have overnight or day-to-day care of the child.

Income is assessed on the basis of information provided to the CMS by the parents, or, in the absence of this, obtained directly from HMRC. All forms of income are considered including employment, self-employment, rental income, state benefits, pension and otherwise.

The maximum weekly income that is considered by the CMS is £3,000 gross per week after pension contributions. Any income above this can only be considered in a top-up application to a court.

The CMS may ask the paying parent to provide income information. Failing to provide information or giving information that is knowingly untrue is a criminal offence punishable with up to £1,000 fine. If the CMS do not have sufficient evidence before them from HMRC or otherwise, they may make best guess assessment based on public data.

Decisions are made annually. A decision is usually only altered on evidence which provides an over 25% difference in the income which has been relied on for the specific financial year in question.

The CMS can include certain types of additional income to increase the overall maintenance payments. These are called ‘diverted’ income – income diverted to another person or purpose so that it is not considered in the process.

On an application, the CMS or tribunal may investigate the finances of the paying parent and consider whether additional income should be included in the calculation.

If either parent does not agree with a decision made by the CMS, either is free to request mandatory reconsideration first of all. This is necessary before any other process can proceed.

If either parent does not agree with the outcome of that process, they can raise an appeal with the First Tier Tribunal. The grounds on which an appeal can be made are limited and include when one party feels that the incorrect amount has been worked out or that incorrect information has been relied upon as to the paying parents’ income.

There are strict timeframes for each step of the process and it is important that these are complied with, otherwise it may not be possible to pursue further.

The Child Support Maintenance Calculation Regulations 2012 – Regulation 69A – provides that, where the paying parent has assets (from a defined list) of more than £31,250, a weekly value can be attributed to the assets by applying the statutory rate of interest (currently 8%) to the value of the asset and dividing by 52. This is then taken into account in the calculation and child maintenance determined as applicable.

After receiving the application, a hearing will be listed. These can take some time to get to a hearing, depending on the level of backlog. It is common for there to be one or more new calculations in place (following each annual review) prior to the matter being heard.

Generally, there is just one hearing unless further information is required, in which case directions will be set for provision of that information before the full hearing.

Once the Tribunal has made its decision, this is binding and can only be appealed on a point of law, i.e. that the Tribunal has made a mistake in applying the law. Permission must be granted for a further appeal.

The Tribunal’s decision can, in limited circumstances, be set aside if the Tribunal did not place proper weight on a document that was produced and considered at the hearing (unless this was filed late). An application for a set aside must be made within 1 month of the Tribunal’s decision.

The hearing is led by a Judge and sometimes a financially qualified panel member – such as an accountant – is also in attendance. A representative of the CMS will also attend and explain how income was calculated and the evidence relied upon.

Both parents attend and the payer can provide more evidence of their income, if appropriate. The Tribunal’s job is inquisitorial – they will ask questions of both the parties. This differs from the argument-based nature of a Family Court hearing. The parties can have representatives present including non-legally trained persons.

The proceedings are conducted in public, which means that members of the public can attend if they wish, but often this is carefully limited by the Tribunal, who will seek to protect the identity of the child.

If you would like further information about the process, tailored to your circumstances, please get in touch. Talk to us in confidence and find out where you stand. Our team of family law specialists – in London, Milton Keynes, Bicester and Watford – can advise and guide you from the moment we start working with you.